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,
1
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,
2
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
3
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
4
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
5
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
6
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
7
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
8
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
9
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.
10
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).
11
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
12
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.
13
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").
14
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.
15
In Re Grand Jury Proceedings
Court: Court of Appeals for the Fifth Circuit
Date filed: 1997-06-26
Citations: 115 F.3d 1240
Copy CitationsCombined Opinion