EFTA00186748.pdf

EFTA00186748  United States District Court SOUTHERN DISTRICT OF FLORIDA TO: CUSTODIAN OF RECORDS SUBPOENA TO TESTIFY Clerk of Court and Comptroller 15th Judicial Circuit of Florida BEFORE GRAND JURY Palm Beach County Courthouse FGJ 05-02(WPB)-FriJNo. OLY-17 205 North Dixie Highway West Palm Beach, FL 33401 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECT[S] YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: ROOM: Palm Beach County Courthouse Room 4-A Juvenile Courts Building 205 N. Dixie Highway West Palm Beach, Florida 33401 DATE AND TIME: (Temporary location for the United States District Courthouse, West Palm Beach) August 18, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Tapes or transcripts of any and all proceedings before the Grand Jury on Wednesday, July 19, 2006, referring or relating to Jeffrey Epstein and/or , including but not limited to witness testimony, statements made by any member of the State Attorney's Office, and instructions given by any member of the State Attorney's Office. Please coordi of this subpoena and confirm the date and time of our a earance with Special Agent Federal Bureau of Investigation, Telephone: Please see additional information on reverse This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court. CLERIC DATE: September 6, 2006 This subpoena is issued upon application Name Address and Phone Number of Assistant U.S. Attorney *If not applicable, entcr "none." v To Ix used ern ciAO110 FORM ORD-227 EFTA00186749  JAN.86 RETURN OF SERVICE' RECEIVED DATE ce 0G PLACE U .SAO • BY SERVER SERVED DATE eia" PLACE KSA 0 Vi ck Irak_ &Jr\La / cfrycy, S 65 SERVED ON (NAME) / SERVED ' PL TITLE A./ 0 STATEMENT OF SERVICE FEES TRAVEL SERVICES TOTAL DECLARATION OF SERVICE= I declare under penally of perjury under the laws of the United States of America that the foregoing information contained in the Return of Service and Statement of Service Fees is true and correct. Executed on 674 /00 DATE / u Si C lifi fU Address of Server ADDITIONAL INFORMATION 1.As to who may serve a subpoena and the manner of its service see Rule 17(d). Federal Rules of Criminal Procedure, or Rule 45(c), Federal Rules of Civil Procedure. 2."Fees and mileage need not be tendered to the witness upon service of a subpoena issued on behalf of the United States or an officer or agency thereof (Rule 45(c), Federal Rules of Civil Procedure; Rule 17(d), Federal Rules of Criminal Procedure) or on behalf of certain indigent parties and criminal defendants who are unable to pay such costs (28 USC 1825, Rule 17(b) Federal Rules of Criminal Procedure)" EFTA00186750  U.S. Department of Justice United States Attorney Southern District of Florida 500 South Australian Ave., Suite 400 West Palm Beach, FL 33401 September 6, 2006 DELIVERY BY FACSIMILE Denise Coffman, Esq. Counsel to the Clerk of Court and Comptroller 15th Judicial Circuit of Florida West Palm Beach, Florida Re: Federal Grand Jury Subpoena Dear Ms. Coffman: Thank you for your agreement to accept service of the attached subpoena by facsimile. As I discussed with Kim Collins, the Clerk of Court is the custodian of the transcripts' of the state grand jury proceedings. Ms. Collins asked me to inform you that the transcripts are kept in the Circuit's Criminal Department. Florida Statute Sections 905.17(1) and 905.27 discuss the disclosure of state grand jury transcripts. Pursuant to those statutes, a transcript can be released upon an order of "a court." The statutes do not require that the order be issued by the Palm Beach County Court. I have attached two cases regarding the procedures for obtaining state grand jury transcripts for use in federal grand jury investigations. The cases that I have enclosed suggest that the appropriate way is to issue a federal grand jury subpoena to the party currently in possession of the tapes and/or transcripts of the proceedings. The cases that I have enclosed both involve orders issued by a federal court that compel the production of the transcripts. If the Clerk of Court feels that she cannot comply with the grand jury subpoena absent an order from the United States District Court compelling the production, then you must file a motion to quash the grand July subpoena before the United States District Judge who empaneled the federal grand jury. Alternatively, if you like, you can state in writing your inability to produce the transcript absent a court order, and I can proceed before the United States District Judge by filing a motion to 'I do not know whether the grand jury proceedings have yet been transcribed. The enclosed subpoena calls for the tapes or the transcripts. If you would prefer to produce the tapes to be transcribed by one of our grand jury stenographers, that would satisfy the subpoena. If the Clerk of Court would prefer to have one of the state court stenographers do the transcription, production of the transcripts also would suffice. EFTA00186751 DENISE COFFMAN, ESQ. SEPTEMBER 6, 2006 PAGE 2 compel with a proposed order for the United States District Judge to sign. If you prefer to file your own motion, I can assist in notifying the Court of the motion, which should be filed ex parte and under seal in accordance with Federal Rule of Criminal Procedure 6(e)(5) and (6). The subpoena calls for the production of the tape(s) or transcripts by September 15, 2006. If you need any additional time, please let me know. If you have any questions or concerns, please do not hesitate to call me. Thank you for your assistance. Sincerely, R. Alexander Acosta United States Attorney By: Assistant United States Attorney cc: Special Agent F.B.I. EFTA00186752  United States District Court SOUTHERN DISTRICT OF FLORIDA TO: CUSTODIAN OF RECORDS SUBPOENA TO TESTIFY Clerk of Court and Comptroller 15th Judicial Circuit of Florida BEFORE GRAND JURY Palm Beach County Courthouse FGJ 05-02(WPB)-Fri./No. OLY-17 205 North Dixie Highway West Palm Beach, FL 33401 SUBPOENA FOR: ri PERSON DOCUMENTS OR OBJECT( SI YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury ofthe United States District Court at the place, date and time specified below. PLACE: ROOM: Palm Beach County Courthouse Room 4-A Juvenile Courts Building 205 N. Dixie Highway DATE AND TIME: West Palm Beach, Florida 33401 August 18, 2006 (Temporary location for the United States District Courthouse, West Palm Beach) 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Tapes or transcripts of any and all proceedings before the Grand Jury on Wednesday, July 19, 2006, referring or relating to Jeffrey Epstein and/or , including but not limited to witness testimony, statements made by any member of the State Attorney's Office, and instructions given by any member of the State Attorney's Office. Please coordinate your compliance of this subpoena and confirm the date and time of our appearance with Special Agent Federal Bureau of Investigation, Telephone: Please see additional information on reverse This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court. CLERK DATE: September 6, 2006 (BY) DEPUTY CLERK This subpoena is issued upon application Name, Address and Phone Number of Assistant U.S. Attorney of the niter! States of America West Palm Beach, FL 33401-6235 Tel: Fax: *If not applicable, enter 'none.' To k ,cd in No of AO :0 FORM ORD-227 EFTA00186753 832 F.24 554 Page 1 832 F.2d 554, 24 Fed. R. Evid. Serv. 275 (Cite as: 832 F.2d 554) H United States Court of Appeals, the case is not ripe for appellate review until the Eleventh Circuit. subpoenaed party has actually been asked to reveal In re GRAND JURY PROCEEDINGS--Subpoena to specific material covered by the assertive privilege. State Attorney's Office. Thomas H. Greene, Dawson A. McQuaig, Jake [4] Grand Jury C36.9(2) Godbold, Don McClure, Intervenors- 193k36.9(2) Appellants. Federal common-law presumption of grand jury Nos. 87-3228, 87-3412--87-3414, and 87-3472. secrecy cannot be asserted in the form of a privilege by those seeking to prevent disclosure to a federal Oct. 26, 1987. grand jury 9f their state grand jury testimony. Rehearing and Rehearing En Banc Denied Dec. 10, Fed.Rules Cr.Proc.Rule 6(e), 18 U.S.C.A. 1987. [5] Grand Jury C=41.10 Persons whose state grand jury testimony had been 193k41.10 subpoenaed by a federal grand jury appealed from order of the United States District Court for the [5] Witnesses €=•184(1) Middle District of Florida, Nos. MISC-J-86-183-14, 410k184(1) MISC-J-86.183. 4, Susan H. Black, J., which Florida statute imposing secrecy on grand jury denied motions to suppress subpoenas. The Court proceedings does not create an evidentiary of Appeals, Tjoflat, Circuit Judge, held that: (1) privilege. West's F.S.A. § 905.27: Fed.Rules appellants could appeal denial of the motions to the Evid.Rule 501, 28 U.S.C.A. extent that they asserted a privilege, but (2) Florida *555 Lamar Winegeart, III, Arnold, Stratford & statute imposing secrecy on grand jury does not Booth, Jacksonville, Fla., for Greene. create evidentiary privilege. Elizabeth L. White, Sheppard & White, William Affirmed in part and dismissed in part. Sheppard, Jacksonville, Fla., for McQuaig. West Headnotes Lacy Mahon, Jr., Jacksonville, Ha., for appellants. [1] Criminal Law €'1023(3) Robert W. Merkle, Ctirtis S. Fallgatter, M. Alan 110k1023(3) Ceballos, Asst. U.S. Attys., U.S. Attorney's Grand jury proceeding is not a "civil action" for Office, Jacksonville, Ha., for appellee. purposes of statute permitting interlocutory appeals in civil actions with respect to controlling questions Appeals from the United States District Court for of law. 28 U.S.C.A. § 1292(b). the Middle District of Florida. [2) Criminal Law C1023(3) Before TJOFLAT and KRAVITCH, Circuit 110k1023(3) Judges, and TUTTLE, Senior Circuit Judge. Persons whose state grand jury testimony had been subpoenaed by federal grand jury could appeal the TJOFLAT, Circuit Judge: denial of their motions to quash the subpoenas to the extent that they asserted a privilege as to the Appellants appeal from an order of the district material, but could not raise issues of procedural court denying their motion to quash a federal grand violations or federal-state comity on appeal. jury subpoena directing a state prosecutor to produce transcripts of their testimony before a state [3] Criminal Law €1023(3) grand jury. We affirm. 110k1023(3) When party has been subpoenaed to testify or 1. produce records for grand jury and third-party In 1985, the State Attorney's Office for the Fourth merely fears that privileged material may be Judicial Circuit of the State of Florida initiated a disclosed along with other, nonprivilegcd material. grand jury investigation into allegations of improper 0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186754 832 F.2d 554 Page 2 (Cite as: 832 F.2d 554, *555) influence peddling by certain public officials of the ruling against disclosure. Greene and McQuaig City of Jacksonville. Witnesses appearing before then moved the court to permit them to intervene the slate grand jury included the four appellants in pursuant to Fed.R.Civ.P. 24 and to file similar this case: Jake Godbold. then the mayor of motions to quash. In his motion to intervene, Jacksonville, Don McClure, Godbold's chief McQuaig asserted that prior to testifying before the administrative aide, Dawson McQuaig, a former state grand jury, he had received assurances from general counsel for the city, and Thomas Greene, a the State Attorney that Florida law prohibited any practicing attorney and an associate of Godbold's. disclosure of his grand jury testimony. Greene did Each of these witnesses appeared and testified not allege in his motion that he had received similar voluntarily. assurances, but stated that he was entitled to intervene because "state grand jury proceedings No criminal charges resulted from the state grand [are] secret and confidential by virtue of the jury investigation. In August 1985, however, the provisions of Chapter 905 of the Florida Statutes." state grand jury issued a report that identified The district court granted the motions to intervene, several instances in •556 which "political favors and and subsequently permitted Godbold and McClure game-playing for friends" had infected the City's to intervene as well. (FN2] process of awarding contracts for professional services. Godbold, McClure, McQuaig, and FN2. Godbold and McClure also based their Greene each waived his right under Fla.Stat. § motions to intervene on the Florida grand jury 905.28(1) (1985) to suppress the report. The secrecy requirement. The substance of the report, however, did not contain the substance of privilege that appellants assert is discussed in Part their testimony. HI, infra. Meanwhile, federal prosecutors had initiated a In November 1986, the district court entered an federal grand jury investigation into substantially order inviting the United States to make an ex parte the same matters investigated by the state grand factual submission showing why. it needed the state jury. Godbold, McQuaig, McClure, and Greene grand jury transcripts. The government declined to each indicated that he would assert the fifth accept the invitation and made no submission. The amendment if subpoenaed to testify before the court then entered an order granting the motions to . federal grand jury. Relying on the disclosure quash. Applying the balancing test set forth in provisions of FIa.Stat. § 905.27(1)(c) (1985), [PNI] Douglas Oil Co. v. Petrol Stops Northwest, 441 the United States in August 1985 petitioned a state U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979), judge to order the State Attorney to turn over to the the court found that the government had failed to federal grand jury the appellants' state grand jury establish a sufficient need for the testimony. testimony. The United States made no factual submission in support of its petition. The state Twenty-eight days after the court granted the judge refused to enter the order, characterizing the motions to quash, the United States filed a "Motion effort to obtain the testimony as a "fishing for Reconsideration of Opinion and Order" along expedition." with an ex parte affidavit identifying facts supporting the grand jury's need for the testimony. FNI. Under this provision, a court may order The district court questioned the procedural disclosure of grand jury testimony for the purpose correctness of the government's motion for of "(flurthering justice." reconsideration, and stated that under ordinary circumstances it would not consider the motion. In In October 1986, the federal grand jury issued a the court's view, however, denial of the motion subpoena duces tecum ordering the State Attorney would not prevent the United States from obtaining to produce appellants' state grand jury testimony. the testimony: the United States could simply The State Attorney moved the federal district court reissue the subpoena and defeat any motion to quash to quash the subpoena, arguing that disclosure of on the strength of the information contained in the grand jury transcripts was unlawful under Florida ex pane affidavit. The court concluded that the law, that the United States had not demonstrated most efficient solution was to consider the newly sufficient need for the transcripts, and that comity submitted information in the context of the required the district court to honor the state court's government's motion for reconsideration. After © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186755 832 F.2d 554 Page 3 (Cite as: 832 F.2d 554, •556) considering the new information in camera, the denying the motion to quash can be considered an district court entered an amended order in which it order entered in a "civil action." reversed its original order denying the motion to quash. The district court certified its amended [1] We hold that a grand jury proceeding is not a order for interlocutory 957 appeal pursuant to 28 "civil action" for purposes of section 1292(b). Just U.S.C. § 1292(b) (1982 & Supp. II 1984), and this in terms of the plain meaning of words, it seems court granted permission to appeal. The four self-evident that an order denying a motion to quash intervenors appealed, although the State Attorney a subpoena issued by a grand jury investigating did not. possible criminal violations is not part of a "civil action." We base our conclusion on more than a Appellants make two arguments before this court. mechanical labeling of the proceedings below, First, they argue that die government's motion for however. By expressly limiting section 1292(b)'s reconsideration was untimely and that the district application to "controlling questionts] of law" in court therefore had no authority to hear it. "civil" cases, Congress clearly indicated its intent According to appellants, the applicable time limit not to disturb well-established precedent forbidding for the motion was the ten-day limit of piecemeal review of grand jury proceedings. In Ped.R.Civ.P. 59(e), not, as the government Cobbledick v. United States, 309 U.S. 323. 60 contends, the thirty-day limit of 18 U.S.C. § 3731 S.Ct. 540, 84 L.Ed. 783 (1940), decided eighteen (1982 & Supp. ll 1984). Second, appellants argue years before Congress enacted section 1292(b), the that the district court's amended order was in error Supreme Court held that a district court's denial of for the following reasons: (1) the government had a motion to quash a grand jury subpoena was not an failed to demonstrate a sufficient need for appealable final decision within the meaning of the appellants' grand jury testimony, and (2) comity predecessor section of 28 U.S.C. § 1291 (1982). required the court to give greater deference to the Noting that the Constitution itself makes the grand state judge's decision against releasing the . jury pan of the criminal process, the Court testimony. Because of the nature of our ruling concluded that "[i]t is no less important to safeguard today, we do not reach the merits of these against undue interruption the inquiry instituted by a arguments. grand jury than to protect from delay the progress of the trial after an indictment has been found." Id. II. at 327, 60 S.Ct. at 542; see also Di Bella v. United We first address the threshold issue whether we States, 369 U.S. 121, 124, 82 S.Ct. 654, 656-57, 7 have jurisdiction to hear this appeal. Although this L.Ed.2d 614 (1962) ("This insistence on finality and court granted the intervenors permission to appeal prohibition of piecemeal review discourage undue pursuant to section 1292(6), we must of course litigiousness and leaden-footed administration of dismiss the appeal if we are without jurisdiction. justice, particularly damaging to the conduct of See Robinson v. Tanner, 798 F.2d 1378, 1379 (11th criminal cases."). Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1979, 95 L.Ed.2d 819 (1987). Although Cobbledick was based on the principle of finality found in section 1291, that same principle Under section 1292(6), a district court may certify finds expression in section 1292(b). We are unable for appeal a non-final order entered in a civil action to conclude that Congress, by authorizing if the court is of the opinion that the order "involves permissive interlocutory appeals of "controlling a controlling question of law as to which there is question[s] of law" in "civil" actions, intended to substantial ground for difference of opinion" and undermine the strong policy against permitting that resolution of the question "may materially appellate interruption of grand jury •558 advance the ultimate termination of the litigation." proceedings. Accord In re April 1977 Grand Jury By its terms, section 1292(b) applies only to orders Subpoenas, 584 P.2d 1366, 1369 (6th Cir.1978) in civil actions, and has no application to appeals in ("[Section 1292(b) limits interim review of 'a criminal cases. See United States v. Doucet, 461 controlling question of law' to civil cases only and, F.2d 1095 (5th Cir.1972); United States v. Lowe, therefore, should not be read to allow interlocutory 433 F.2d 349 (5th Cir.1970). Therefore, we have review of grand jury proceedings."), cert. denied, no jurisdiction to hear this appeal pursuant to 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492 section 1292(b) unless the district court's order (1979). Ci 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186756 832 F.2d 554 Page 4 (Cite as: 832 F.2d 554, •558) [2] We next examine whether there is a separate State Attorney. The State Attorney has indicated basis for appellate jurisdiction in this case. As we his intention to produce the transcripts. In light of have already indicated, orders denying motions to these circumstances, the order denying the motion quash grand jury subpoenas are ordinarily not to quash is a final order as far as appellants are appealable final orders under section 1291. The concerned. We therefore have jurisdiction to hear subpoenaed party can obtain review by refusing to their appeal. [FN3] comply with the subpoena and then contesting a contempt citation, which is immediately appealable. F143. We note that the only material sought from See United Stares v. Ryan, 402 U.S. 530, 532-33, the subpoenaed party in this case is material that 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971). The falls squarely within the privilege asserted by the contempt mute for obtaining review, however, is third parties. This is not a case, then, where a not open to a third party who claims a privilege of party has been subpoenaed to testify or produce records and a third party merely fears that nondisclosure with respect to materials in the privileged material may be disclosed along with custody of the subpoenaed party. In such a case, other, nonprivileged material. In the latter the putative privilege-holder has no power to situation, the case is not ripe for appellate review compel the subpoenaed party to incur a contempt until the subpoenaed party has actually been asked citation. And the subpoenaed party, unless he has to reveal specific material covered by the asserted either a particularly close relationship to the putative privilege. See In re Grand Jury Proceedings (Doe privilege-holder or a personal interest in ), 831 P.2d 222 (11th Cir.1987). nondisclosure of the material, is unlikely to risk a contempt citation simply to vindicate the rights of III. the third party. In this situation, the order denying In deciding that the narrow Perlman exception the motion to quash is indeed final with respect to applies in this case, we have also necessarily the putative privilege-holder, for any prejudice he defined the scope of the matters properly before us suffers as a result of disclosure will remain forever for review. Appellants raise several objections to unredressed unless appeal is permitted. disclosure, including procedural objections and objections based on comity considerations and the Accordingly, this circuit follows the so-called need to protect the integrity of the Florida grand Perlman exception to the general rule prohibiting jury system. However, the only matter that the interlocutory appeal of orders denying motions to Perinian exception gives us jurisdiction to review is quash grand jury subpoenas. See In re Grand Jury the appellants' claim of privilege to prevent Proceedings (Thist), 689 F.2d 1351 (11th Cir.1982) disclosure of their state grand jury testimony. ; In re Grand Jury Proceedings (Fine), 641 F.2d *559 The rationale of the Perhnan exception 199 (5th Cir. Unit A Mar. 1981); cf. In re extends only to appeals based on privileges personal International Horizons, Inc., 689 F.2d 996 (11th to the third party seeking review: if the subpoenaed • Cir.I982) (discovery order in bankruptcy party has a direct or primary interest in the right or proceedings). This exception, derived from privilege in question, the concerns giving rise to the Perlman v. United States, 247 U.S. 7, 38 S.Ct. Perlman exception simply are not present. Here, 417, 62 L.Ed. 950 (1918), and confirmed in United to the extent that their objections to disclosure are States v. Nixon, 418 U.S. 683, 691, 94 S.Ct. 3090, based on concerns relating to comity and the 3099, 41 L.Ed.2d 1039 (1974), permits an order integrity of the Florida grand jury, appellants denying a motion to quash to be "considered final as cannot argue that the subpoenaed party had no to the injured third party who is otherwise interest in seeking to vindicate their derivative powerless to prevent the revelation." Fine, 641 rights. Indeed, the subpoenaed party--the State of F.2d at 202. Florida as represented by the State Attorney-- had as its primary interest the protection of its grand [3] The circumstances supporting application of the jury system. Accordingly, the Perlman exception Perlman exception are present in this case. does not give us jurisdiction to review the Relying on the Florida grand jury secrecy appellants' arguments concerning comity and the requirement, appellants in essence assert a privilege need to preserve the integrity of the Florida grand of nondisclosure. The material with respect to jury. [FN4] Nor does it give us jurisdiction to which they assert the privilege--transcripts of their review their procedural arguments. Thus, we do state grand jury testimony—is in the custody of the not pass upon the district court's disposition of O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186757 832 F.2d 554 Page 5 (Cite as: 832 F.2d 554,'559) those matters and we turn to appellants' claims of cause or permit to be published, broadcast, privilege. disclosed, divulged, or communicated to any other person, in any manner whatsoever, any testimony of a witness examined before the grand jury, or the FN4. We should emphasize that this discussion content, gist, or import thereof, except when such relates only to appellants' right to appal under the testimony is or has been disclosed in a court Perlman exception. It does not relate to their proceeding. When a court orders the disclosure of standing to raise these claims before the district such testimony pursuant to subsection (I) for use in court. a criminal case, it may be disclosed to the prosecuting attorney of the court in which such The appellants' motions to intervene in the district criminal case is pending, and by him to his court proceedings reveal the nature of the privilege assistants, legal associates, and employees, and to they assert. Appellant McQuaig's motion stated the defendant and his attorney, and by the latter to that "[p]rior to appearing before the [state] Grand his legal associates and employees. When such Jury, Mr. McQuaig was advised by the State disclosure is ordered by a court pursuant to Attorney that pursuant to Section 905.27, Fla.Stat. subsection (I) for use in a civil case, it may be (1985): a) none of the testimony he provided to the disclosed to all parties to the case and to their Grand Jury was disclosable under the law; and b) attorneys and by the latter to their legal associates and employees. However, the grand jury any disclosure of said testimony was a crime." testimony afforded such persons by the court can Appellant Green's motion stated that The) state only be used in the defense or prosecution of the grand jury proceedings were secret and confidential civil or criminal case and for no other purpose by virtue of the provisions of Chapter 905 of the whatsoever. Florida Statutes." Appellant Godbold's motion (3) Nothing in this section shall affect the attorney- stated that "testimony was provided with the client relationship. A client shall have the right to understanding on the part of Jake Godbold that communicate to his attorney any testimony given pursuant to § 905.27 of the Florida Statutes, his by the client to the grand jury, any matters testimony would not and could not be disclosed involving the client discussed in the client's under the law." Finally, appellant McClure's presence before the grand jury, and any evidence involving the client received by or proffered to the motion stated that "[t]he substantial interest of Don grand jury in the client's presence. McClure is equal to or greater than that of the two (4) Persons convicted of violating this section shall other parties previously allowed to intervene." be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.083, or by fine In essence, then, appellants derive the privilege not exceeding $5,000, or both. they assert from the Florida statutory grand jury (5) A violation of this section shall constitute secrecy requirement. The statute imposing that criminal contempt of court. requirement provides as follows: (I) A grand juror, state attorney, assistant state [4] Federal Rule of Evidence 501 provides that attorney, reporter, stenographer, interpreter, or privileges in federal court proceedings "4'560 shall any other person appearing before the grand jury be governed by the principles of the common law as shall not disclose the testimony of a witness they may be interpreted by the courts of the United examined before the grand jury or other evidence States in the light of reason and experience." The received by it except when required by a court to privilege appellants assert, as stated in their motions disclose the testimony for the purpose of: to intervene, is based solely on state law. (17N6] (a) Ascertaining whether it is consistent with the We acknowledge that some federal courts have testimony given by the witness before the court; recognized state law evidentiary privileges in (b) Determining whether the witness is guilty of particular cases when to do so would not perjury; or substantially burden federal policies. See, e.g., (c) Furthering justice. Lora v. Board of Education, 74 F.R.D. 565, 576 Fla.Stat. § 905.27 (1985). [FINS] (E.D.N.Y.); cf. ACLU v. Finch, 638 F.2d 1336, 1342-45 (5th Cir. Unit A Mar. 1981). FNS. The remainder of section 905.27 provides as follows: FN6. In their briefs, appellants suggest that the (2) It is unlawful for any person knowingly to privilege they assert has an independent basis in the publish, broadcast, disclose, divulge, or federal common law presumption of grand jury communicate to any other person, or knowingly to secrecy. That presumption, which is codified in C 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186758 832 F.2d 554 Page 6 (Cite as: 832 F.24 554, *560) Fed.R.Crim.P. 6(e), relates to disclosure of federal appellants have no privilege of nondisclosure under grand jury records. It cannot be asserted in the state law. A federal court will not selectively reach form of a privilege by appellants, who seek to into a state code and fashion evidentiary privileges prevent disclosure of their ante grand jury merely to suit the purposes of the parties before it. testimony. Fb17. Some Florida cases refer to the "privilege" [5] We need not apply any such balancing test of a grand jury witness, but only with reference to here, however, because we find that the privilege the general principle under Florida law that a asserted by appellants is without a basis in Florida witness' testimony in a judicial proceeding cannot law. We fmd no evidence that the Florida courts be used as the basis of a defamation action. See, derive an evidentiary privilege from Fla.Stat. § e.g., State v. Tinett, Ill So.2d 716 905.27. Indeed, the Florida Supreme Court has (Fla.Dist.Ct.App.1959). noted that [t]he rule of secrecy concerning matters Iv. transpiring in the grand jury room is not designed In light of our conclusion that appellants have no for the protection of witnesses before the grand privilege of nondisclosure under state law, we jury, but for that of the grand jurors, and in affirm the district court's order denying their furtherance of the public justice. A witness motion to quash. Because we must observe the before the grand jury has no privilege of having limitations on our appellate jurisdiction discussed his testimony there treated as a confidential above, we dismiss their appeal to the extent that it is communication.... based on other objections to disclosure. State ex rel. Brown v. Dewell, 167 So. 687, 690 (Fla.1936). Florida case law directly construing AFFIRMED in part; DISMISSED in part. section 905.27 fails to provide a contrary interpretation of the relationship between the 832 F.2d 554, 24 Fed. R. Evid. Serv. 275 secrecy requirement and the rights of grand jury witnesses. [FN7] Accordingly, we conclude that END OF DOCUMENT O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186759 824 F.Supp. 330 page n 824 F.Supp. 330 (Cite as: 824 F.Supp. 330) C United States District Court, grand jury investigation after police officers refused W.D. New York. to cooperate, subpoena was definite and did not call In the Matter of Subpoena Duces Tecum Directed to for production of unreasonable amount of the Honorable Kevin M. documents, United States had strong interest in DILLON, District Attorney of Erie County. insuring just enforcement of its criminal laws, and Civ. No. 92-13A. privacy limitations on federal grand jury documents limited potential harm from disclosure. Fed.Rules Feb. 20, 1992. Cr.Proc.Rules 6(e), 17, 18 U.S.C.A.; N.Y.McKinney's CPL § 190.25, subd. 4. State district attorney moved to quash subpoena duces lecum issued by federal grand jury seeking [5] Grand Jury C=136.3(1) production of state grand jury records as part of 193k36.3(1) investigation into whether police officers violated federal criminal civil rights statute when making [5] States (S=18.63 arrests. The District Court, Arcata, I., held that 360k18.63 federal grand jury was entitled to transcripts and State statutes which preclude disclosure of state tapes of state grand jury testimony of grand jury records to general public cannot be used uncooperating police officers. to prevent federal grand juries from obtaining records through subpoena. Motion to quash denied. [6] Grand Jury O=36.4(1) West Headnotes 193k36.4(1) Custodian of records, who is proper party for [1] Grand Jury C=25 service of federal grand jury subpoena, is person or 193k25 entity who is in actual possession of documents at Grand jury is to be afforded wide latitude in time subpoena is issued. N.Y.McKinney's CPL § conducting its investigation. 190.25, subd. 4. [2] Grand Jury C=36.4(2) [7] Grand Jury <i >41.10 193k36.4(2) 193k41.10 Federal grand jury subpoena may not be Basic purposes of New York grand jury secrecy unreasonable or oppressive, it may not violate laws are: to prevent accused from escaping before constitutional, common law or statutory privilege. being indicted; to prevent tampering with Fed.Rules Cr.Proc.Rule 17(c), 18 U.S.C.A. witnesses; and to protect accused person who is not indicted from unwarranted exposure. [3] Grand Jury C=36.9(2) N.Y.McKinney's CPL § 190.25, subd. 4. 193k36.9(2) Federal grand jury subpoenas are presumed to be [8] Witnesses C=184(1) reasonable and party seeking to quash subpoena 410k184(1) bears burden of showing that compliance would be Evidentiary privileges protect confidential unreasonable or oppressive. Fed.Rules communications between persons in special Cr.Proc.Rule I7(c), 18 U.S.C.A. relationships from disclosure and are generally disfavored in that privileges impede search for [4] Grand Jury C=36.4(2) truth. 193k36.4(2) Federal grand jury was entitled to subpoena [9] Grand Jury C=, 36.3(2) transcripts and tapes of state grand jury testimony of 193k36.3(2) police officers as part of investigation to determine When faced with claim that grand jury should be whether officers violated federal criminal civil denied evidence because of privilege, reviewing rights laws during or after arrests; disputed court must weigh potential harm from disclosure testimony was relevant and necessary to federal against benefits of d