In Re Grand Jury Proceedings

United States Court of Appeals,

Fifth Circuit.

No. 96-20728.

In re GRAND JURY PROCEEDINGS.

June 26, 1997.

Appeal from the United States District Court for the Southern
District of Texas.

Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

I. BACKGROUND

Faced with a request to quash a grand jury subpoena, the

federal district court in Houston was apprised that two months

earlier, the movants' premises had been searched in Colorado under

a warrant with a sealed supporting affidavit. The district court

disagreed philosophically that a search could be so conducted.

Consequently, although the movants never objected to the search,

the court went them one better on relief from the grand jury

subpoena. He ordered that unless the search warrant affidavit was

unsealed, he would suppress the evidence from the search. The

government has appealed. Because this order lacks supporting

authority and, indeed, flouts the governing procedures for contest

of search warrants and grand jury subpoenas, we reverse.

On May 6, 1996, the United States Attorney for the Southern

District of Texas requested two grand jury subpoenas, to be served

on two Colorado organizations, Pro Vantage One International,

L.L.C., and Pro Vantage One (collectively, "Pro Vantage"),

requiring them to produce documents and appear before a Houston,

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Texas federal grand jury. In connection with the grand jury

investigation, the government also applied to a federal magistrate

judge in Colorado for a search warrant. The magistrate judge

promptly issued the warrant, which was executed on May 15 at a

house in Colorado. The printed search warrant form completed by

the government did not list the objects of the search. Instead,

the form stated:

[T]here is now concealed a certain person or property, namely
(describe the person or property)

PLEASE SEE AFFIDAVIT

The only attachment described the premises with a photograph of the

building to be searched. By request of the government, the

Colorado magistrate judge sealed the application and affidavit

supporting the search warrant except to law enforcement officials.

Thus, Pro Vantage never received the affidavit that listed the

objects of the search in the warrant. After a large volume of

documents was seized pursuant to the warrant, however, Pro Vantage

was given an inventory.

On July 25, Pro Vantage One International, L.L.C. and its

manager Thomas Kiser ("Appellees") moved to quash the grand jury

subpoenas in the Southern District of Texas, arguing that the

subpoenas are impermissibly overbroad and lacking in particularity

in violation of the Fourth Amendment, and that by serving subpoenas

simultaneously with search warrants, the government was seizing

Appellees' papers and effects without having to show the probable

cause that a search warrant would require.

The federal district court held a hearing on this motion,

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during which the court requested to see the sealed affidavit that

the government had filed in the Colorado federal court pursuant to

its FED. R. CRIM. P. 41 search warrant application. The court

reviewed the affidavit in camera. A day later, he ordered the

government to disclose the search warrant affidavit to Appellees.

That August 2nd order also stated that the scope of the subpoena

was "excessive on the basis of the affidavit," and required the

government to revise its description of the documents being sought

by subpoena. Responding to the government's motion to reconsider,

the court entered another order on August 7, which stated in part:

"the government must disclose the affidavit supporting the search

warrant by noon, Friday, August 9, 1996, or all the evidence from

the search will be suppressed." The district court reiterated this

demand in an accompanying Opinion on Search Warrant issued on

August 7, 1996. This court stayed the district court's order

pending appeal.

II. STANDARD OF REVIEW

We review subject matter jurisdiction de novo as a question

of law. DeCell & Assoc. v. Federal Deposit Ins. Corp., 36 F.3d

464, 467 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct.

2275, 132 L.Ed.2d 279 (1995). We review a district court's

decision granting a motion to quash or modify a subpoena for abuse

of discretion. See Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th

Cir.1994). We review a district court's rulings on a motion to

suppress under the clearly erroneous standard for findings of fact,

and de novo for issues of law, viewing evidence in the light most

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favorable to the prevailing party. United States v. Brown, 102

F.3d 1390, 1394 (5th Cir.1996), cert. denied, --- U.S. ----, 117

S.Ct. 1455, --- L.Ed.2d ---- (1997).

We have jurisdiction over a district court order quashing or

modifying a grand jury subpoena pursuant to 18 U.S.C. § 3731. See

In re Grand Jury Subpoena, 646 F.2d 963, 967 (5th Cir.1981). We

also have jurisdiction over a preindictment conditional suppression

order pursuant to 18 U.S.C. § 3731. See United States v. Ramirez-

Gonzalez, 87 F.3d 712, 713 (5th Cir.1996) (stating that court had

jurisdiction over appeal of suppression order before jeopardy

attached under 18 U.S.C. § 3731); United States v. Presser, 844

F.2d 1275, 1279-80 (6th Cir.1988) (finding appellate jurisdiction

under 18 U.S.C. § 3731 for a government appeal of a discovery order

when suppression of evidence was threatened for noncompliance);

United States v. Horwitz, 622 F.2d 1101, 1104-05 (2d Cir.1980),

cert. denied, 449 U.S. 1076, 101 S.Ct. 854, 66 L.Ed.2d 799 (1981)

(concluding that government could immediately appeal a conditional

suppression order under 18 U.S.C. § 3731).

III. ANALYSIS

1. Order to Revise Grand Jury Subpoenas.

The only issue properly before the district court in Houston

was Appellees' motion to quash the grand jury subpoenas. Appellees

did not challenge the Colorado search based on Fourth Amendment

grounds or pursuant to Fed. Rule Crim. Proc. 41(e), but rather

argued that the documents requested by the subpoenas might be the

same as those seized during the search, and that the subpoenas (not

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the warrants ) were overbroad and lacking in particularity.

Although the district court reviewed the search warrant affidavit

in camera, the government never filed the sealed affidavit with the

district court, and the government urged that it did not need to

establish probable cause to support a grand jury subpoena. Thus,

the subpoena alone, and not the search warrant, was properly before

the court.

In general, courts have very little authority over the

proceedings of a grand jury. As the Supreme Court has observed,

"the grand jury is an institution separate from the courts, over

whose functioning the courts do not preside." United States v.

Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352

(1992). Further, "[j]udges' direct involvement in the functioning

of the grand jury has generally been confined to the constitutive

one of calling the grand jurors together and administering their

oaths of office." Id. These cautions frame the first issue,

whether there was any ground for the district court, in its August

2 order, to find that the scope of the subpoena was excessive and

to require the government to modify the subpoena by revising the

list of documents being sought.

In examining a grand jury subpoena, a court considers whether

compliance "would be unreasonable or oppressive." See FED. R.

CRIM. P. 17(c); United States v. R. Enterprises, Inc., 498 U.S.

292, 299, 111 S.Ct. 722, 727, 112 L.Ed.2d 795 (1991). The law

presumes, however, that, "absent a strong showing to the contrary,

... a grand jury acts within the legitimate scope of its

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authority." Id. at 301, 111 S.Ct. at 728. Moreover, "a grand jury

subpoena issued through normal channels is presumed to be

reasonable, and the burden of showing unreasonableness must be on

the recipient who seeks to avoid compliance." Id.

The Appellees have failed to meet their burden. In their

Motion to Quash Subpoenas to Testify Before Grand Jury, Appellees

objected to the grand jury subpoenas on three grounds. First, they

argued that certain items which the subpoenas required the

Appellees to produce may have already been seized pursuant to the

search warrant; they asserted they were hampered from confirming

this by the sealing of the warrant affidavit. This complaint

proves nothing in terms of unreasonableness or oppression.

Appellees received a written inventory of the documents seized.

Rather than seeking to quash the subpoenas, the Appellees could

state to the grand jury that the documents are now in the

government's possession. Appellees' administrative compliance

problem is not the courts' business.

Second, Appellees contended that the subpoenas were overbroad

and lacking in particularity, in violation of their Fourth

Amendment right to be free of unreasonable searches and seizures.

A subpoena duces tecum is not itself a search or seizure, however,

and the actual search that occurred on May 15, 1996 was conducted

pursuant to a search warrant. Thus, Appellees' argument conflates

a grand jury subpoena with a magistrate judge's search warrant.

But the instruments are different in nature and issued from

different authorities. Even if this court were to construe

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Appellees' argument as an assertion that compliance with the

subpoena would be unreasonable or oppressive, Appellees have failed

to make the requisite showing. Appellees cite that the subpoena

requested at least eighty-five kinds of documents relating to

approximately one hundred and seventy-eight different persons and

entities, but they do not explain how, if at all, production of the

documents unreasonably burdens them. Simply citing the types of

information sought by the government does not alone constitute a

"strong showing" sufficient to counter the presumption that the

grand jury was acting within the proper scope of its authority.

Third, Appellees asserted that because the subpoenas were

issued simultaneously with a search warrant, they evidenced an

attempt to seize and secure items belonging to the Appellees

without showing probable cause for the issuance of a search

warrant. This argument is a red herring; even if the search

warrant was defective, there is no probable cause requirement for

the issuance of a grand jury subpoena. R. Enterprises, 498 U.S. at

297, 111 S.Ct. at 726. Issues of probable cause relate solely to

the validity of the search warrant, not the subpoenas.

For all these reasons Appellees failed to meet the standards

of FED. R. CRIM. P. 17(c); therefore, the district court abused

its discretion in ordering that the subpoenas be modified by

revising the list of the documents being sought.

2. Order to Unseal Search Warrant Affidavit/Conditional Order to
Suppress.

The government also appeals Judge Hughes's actions in going

beyond the motion to quash and granting, sua sponte, a conditional

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suppression order mandating that the government produce the sealed

affidavit "or all the evidence from the search w[ould] be

suppressed." This order was problematic for several reasons. Most

important, Appellees never contested the search warrant based on

the Fourth Amendment; instead, they challenged the grand jury

subpoenas. Appellees, however, had the burden of affirmatively

challenging the search warrant based on Fourth Amendment grounds:

In order to effectuate the Fourth Amendment's guarantee of
freedom from unreasonable searches and seizures, this Court
long ago conferred upon defendants in federal prosecutions the
right, upon motion and proof, to have excluded from trial
evidence which had been secured by means of an unlawful search
and seizure.... However, we have also held that rights
assured by the Fourth Amendment are personal rights, and that
they may be enforced by exclusion of evidence only at the
instance of one whose own protection was infringed by the
search and seizure.

Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 974, 19

L.Ed.2d 1247 (1968) (emphasis added). Because the Fourth Amendment

right must be affirmatively asserted, Judge Hughes erred in

fashioning a suppression order in the absence of a motion by

Appellees requesting such relief.

But even if Appellees had sought relief for the search and

seizure, the Southern District of Texas was not the appropriate

preindictment forum in which to proceed. The Federal Rules of

Criminal Procedure govern these issues. FED. R. CRIM. P. 41(e)

states:

A person aggrieved by an unlawful search and seizure or by the
deprivation of property may move the district court for the
district in which the property was seized for the return of
the property on the ground that such person is entitled to
lawful possession of the property.... If a motion for return
of property is made or comes on for hearing in the district of
trial after an indictment or information is filed, it shall be

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 treated also as a motion to suppress under Rule 12 (emphasis
added).

Rule 41(e) specifies that an aggrieved party's preindictment remedy

is a motion for the return of property, which should be filed in

the district in which the property was seized—in this case the

District of Colorado. Rule 41(f), on the other hand, states:

A motion to suppress evidence may be made in the court of
the district of trial as provided in Rule 12.

(emphasis added). The court of the district of trial cannot be

determined prior to an indictment.

A district court in the Eighth Circuit recognized the limits

imposed by Rule 41. In re Grand Jury Proceedings, 466 F.Supp. 863

(D.C.Minn.1979), aff'd as modified by 629 F.2d 548 (8th Cir.1980).

In Grand Jury Proceedings, the potential corporate defendant sought

a preindictment motion to suppress in a district court in the

district where the trial would be held if a grand jury indicted the

company. The district court concluded that it was not the proper

court to rule on the legality of the seizure prior to indictment,

observing: "This court is located in the district where any future

criminal trials probably would occur, but it is not the trial

court. If any indictments are handed down, there is no guarantee

that this court, rather than other courts in this district, would

be assigned the resulting criminal trials.... Moreover, Rule 41(e)

contains no express authorization for this court to rule prior to

indictment." Id. at 866 (emphasis added).1 The same logic applies

1
Appellees inexplicably cite this case for the proposition
that a district court that is not in the district of seizure has
jurisdiction to decide a preindictment Rule 41(e) motion. Grand

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here. Judge Hughes's court is not a court in the district in which

Appellees' property was seized, nor will it necessarily be the

trial court, if ProVantage and Kiser are ever indicted. Thus, the

Federal Rules did not authorize this court to rule on a motion to

suppress at the preindictment stage. Rules 41(e) and (f) together

provide that Appellees' only remedy for the search and seizure

prior to indictment was to seek a Rule 41(e) motion for the return

of property in the District of Colorado—an option they ignored.

Nevertheless, Appellees are not left unprotected. If they are

indicted, Appellees may move to suppress in the trial court,

whatever court that may be.

Appellees have not defended the court's order to unseal the

search warrant affidavit on the basis of the Federal Rules.

Instead, they urge various bases for his inherent authority to act.

Appellees principally rely on an amorphous theory called anomalous

jurisdiction. Anomalous jurisdiction was expressly recognized by

this court in Hunsucker v. Phinney, 497 F.2d 29 (5th Cir.1974),

cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975):

A substantial body of precedent establishes that federal
district courts have power to order the suppression or return
of unlawfully seized property even though no indictment has

Jury stands for precisely the opposite proposition. Appellees also
cite Ex Parte Decious, 622 F.Supp. 40 (E.D.N.Y.), appeal dismissed,
779 F.2d 35 (2d Cir.1985) to support their proposition, even though
the Decious court (which was in the district of seizure), in
declining to exercise jurisdiction over the Rule 41(e) motion,
noted that the movants still retained the right "to make a
suppression motion in any district court where a trial is pending."
Id. at 41 (emphasis added). This reasoning expressly contemplates
that the movants' only potential remedy, once a district of seizure
court declines to exercise jurisdiction over the Rule 41(e) motion,
lies in a trial court after indictment.

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 been returned and thus no criminal prosecution is yet in
existence.... The theory articulated by most of the cases is
that jurisdiction to order suppression or return prior to
indictment exists not by virtue of any statute but rather
derives from the inherent authority of the court over those
who are its officers.

Id. at 32. Despite this court's recognition of anomalous

jurisdiction, it has rarely been invoked or discussed since

Hunsucker, and its very existence has been questioned.2 Several

considerations lead us to conclude the district court's attempt to

exercise this jurisdiction, if it exists, was inappropriate.

In Richey v. Smith, 515 F.2d 1239 (5th Cir.1975), this court

listed the factors a court should consider in deciding whether to

exercise anomalous jurisdiction: whether the government displayed

"a callous disregard for the constitutional rights of the

[plaintiff];" "whether the plaintiff has an individual interest in

and need for the material whose return he seeks; whether the

plaintiff would be irreparably injured by denial of the return of

the property; and whether the plaintiff has an adequate remedy at

law for the redress of his grievance." Id. at 1243-44 (citations

2
Only five other decisions in this circuit have discussed this
doctrine, even in passing. See In re Grand Jury Proceedings, 724
F.2d 1157, 1160 (5th Cir.1984) (holding that the appellate court
lacked jurisdiction to entertain the appeal of an order denying a
motion for the return of property that was based on anomalous
jurisdiction); Linn v. Chivatero, 714 F.2d 1278, 1281 (5th
Cir.1983) (questioning whether the doctrine of anomalous
jurisdiction survived the repeal of the amount-in-controversy
requirement of 28 U.S.C. § 1331); United States v. Chapman, 559
F.2d 402, 406 (5th Cir.1977) (discussing equitable factors
justifying the use of anomalous jurisdiction); Mason v. Pulliam,
557 F.2d 426, 428 (5th Cir.1977) (affirming the district court's
exercise and discussion of anomalous jurisdiction); Richey v.
Smith, 515 F.2d 1239, 1243-44 (5th Cir.1975) (discussing the basis
and rationale for anomalous jurisdiction).

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and internal quotations omitted). The district court articulated

none of these factors, and they are not conducive to the result

Appellees seek.

First, while this court has not yet determined whether the

issuance of a search warrant combined with a sealed affidavit

constitutes a violation of the Fourth Amendment, the Seventh

Circuit has expressly affirmed the practice. See In re Eyecare

Physicians of America, 100 F.3d 514, 516 (7th Cir.1996). The

Seventh Circuit observed that "no provision within the Fourth

Amendment grants a fundamental right of access to sealed search

warrant affidavits before an indictment." Id. at 517. This court

ordinarily abides by the decisions of our sister circuits, and we

do so with respect to this sensible decision. Accordingly

government did not display "callous disregard" of Appellees'

rights.

The next two factors promoting anomalous jurisdiction are

likewise unsatisfied. Appellees have neither explained their

specific interest in and need for the documents seized pursuant to

the warrant, nor have they stated how they will be irreparably

injured by denial of the return of the property. Appellees have

not indicated, for example, whether they requested a copy of the

documents seized, and whether the government refused to comply with

such a request. See, e.g., Eyecare Physicians, 100 F.3d at 515

(noting that the government offered to provide appellant with

copies of the seized documents). The absence of any showing of

necessity or irreparable injury weigh against the exercise of

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anomalous jurisdiction.

Finally, unlike the situation in Richey,3 these Appellees have

an adequate remedy at law. They failed to avail themselves of the

preindictment remedy provided by Rule 41(e) in the Colorado federal

court. Such a motion, if granted, might well have affected the

government's decision whether to continue seeking an indictment.

Thus, this also was not a situation in which Appellees possessed no

opportunity to avoid the stigma of a criminal indictment. See

Richey, 515 F.2d at 1243, n. 10 (observing that "where examination

of the seized material leads to a criminal prosecution, it may not

be sufficient that a motion to suppress the evidence can be filed

prior to the criminal trial"). Appellees may still pursue a

suppression order, should they be indicted.

Having examined these factors, we find that even if Appellees

had affirmatively moved to suppress in Judge Hughes's court based

on anomalous jurisdiction, its exercise was not warranted under

these circumstances.

Appellees assert two other grounds to show the district court

had jurisdiction to enter its order. First, Appellees cite several

cases in which the media was the applicant for the unsealing of

search warrant materials and jurisdiction was simply assumed.4

3
In Richey, the district court had determined that the issue
whether the appellants were entitled to an order granting the
return of property was moot, and also held that a motion to
suppress could not be granted because no criminal prosecution was
pending, thus leaving the appellants without a procedural leg on
which to stand. Richey, 515 F.2d at 1242.
4
See In re Application of Newsday, Inc., 895 F.2d 74 (2d
Cir.), cert. denied sub nom. Gardner v. Newsday, Inc., 496 U.S.

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Each of these cases, however, involved motions to unseal, not

conditional suppression orders contingent on the government's

producing a warrant affidavit. Furthermore, each of the decisions

regarding the access to warrant material arose in the district of

seizure, and implicated no cross-jurisdictional concerns. None of

these cases support the argument that a court in one district,

which is neither the district of trial nor the district of seizure,

has jurisdiction to issue a conditional suppression order based on

a warrant issued in another district.

Second, Appellees cite two cases for essentially the same

proposition: courts have a general supervisory power over records

and files presented to them.5 Both of these cases considered the

931, 110 S.Ct. 2631, 110 L.Ed.2d 651 (1990) (appeal of decision by
the district court, which had originally ordered search warrant
application sealed, to release a redacted copy of the warrant
application); Baltimore Sun Company v. Goetz, 886 F.2d 60 (4th
Cir.1989) (appeal from district court's order denying a petition
for writ of mandamus ordering a magistrate to unseal a search
warrant affidavit); Times Mirror Co. v. United States, 873 F.2d
1210 (9th Cir.1989) (appeal of district court orders in two
different districts denying requests to unseal search warrant
materials after direct review of magistrate decisions in the
respective districts); In re Search Warrant for Secretarial Area
Outside Office of Gunn, 855 F.2d 569 (8th Cir.1988) (appeal of
decision by the district court in the district of seizure not to
unseal affidavits and materials attached to search warrants issued
by the court).
5
See Nixon v. Warner Communications, Inc., 435 U.S. 589, 598,
98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978) (stating that "[e]very
court has supervisory power over its own records and files, and
access has been denied where court files might have become a
vehicle for improper purposes"); In re Sealed Affidavit(s) To
Search Warrants Executed on February 14, 1979, 600 F.2d 1256, 1257
(9th Cir.1979) (noting that "courts have inherent power, as an
incident of their constitutional function, to control papers filed
with the courts within certain constitutional and other
limitations").

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question whether a court has the power to restrict access to

documents properly filed with that court. Nixon v. Warner

Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570

(1978) involved a decision by the district court to restrict media

access to tape recordings that had been entered into evidence in a

criminal trial, until the defendants' appeal of the trial had been

resolved. In the Matter of Sealed Affidavit(s) To Search Warrants

Executed on February 14, 1979, 600 F.2d 1256 (9th Cir.1979)

involved a decision by the district court, which had issued search

warrants, to seal the master affidavit supporting the warrants.

These cases do not provide an independent basis for jurisdiction

apart from the federal rules, however, and we do not construe their

holdings to give the district court in the instant case inherent

power over the search warrant affidavit simply because he was

briefly provided with the affidavit for an in camera inspection.

To hold otherwise would allow any federal court in this nation to

disrupt the proceedings of another court if it temporarily peruses

a document within the other court's control.

IV. CONCLUSION

Based on the foregoing, we REVERSE the district court's ruling

on the motion to quash the grand jury subpoenas and its sua sponte

issuance of a conditional suppression order.

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