EFTA00227381

832 F.2d 554 
832 Fief 554, 24 Fed. R. Evid. Serv. 275 
(Cite as: 832 F.2d 554) 
H 
United Stales Court of Appeals, 
Eleventh Circuit. 
In re GRAND JURY PROCEEDINGS--Subpoena to 
State Attorney's Office. 
Thomas H. Greene, Dawson A. McQuaig, Jake 
Godbold, Don McClure, Intervenors-
Appellants. 
Nos. 87-3228, 87.3412--87-3414, and 87-3472. 
Oct. 26. 1987. 
Rehearing and Rehearing En Banc Denied Dec. 10, 
1987. 
Persons whose state grand jury testimony had been 
subpoenaed by a federal grand jury appealed from 
order of the United States District Court for the 
Middle District of Florida. Nos. MISC-1-86-183-14, 
M1SC-J-86-183- 4. Susan H. Black. L. which 
denied motions to suppress subpoenas. 
The Court 
of Appeals, Tjollat, Circuit Judge, held that: (I) 
appellants could appeal denial of the motions to the 
extent that they asserted a privilege, but (2) Florida 
statute imposing secrecy on grand jury does not 
create evidentiary privilege. 
Affirmed in part and dismissed in part. 
West lieadnotes 
pj Criminal Law C=1023(3) 
11013023(3) 
Grand jury proceeding is not a -civil action" for 
purposes of statute permitting interlocutory appeals 
in civil actions with respect to controlling questions 
of law. 28 U.S.C.A. § 1292(b). 
PI Criminal Law 48=1023(3) 
11081023(3) 
Persons whose state grand jury testimony had been 
subpoenaed by federal grand jury could appeal the 
denial of their motions to quash the subpoenas to 
the extent that they asserted a privilege as to the 
material, but could not raise issues of procedural 
violations or federal-state comity on appeal. 
PI Criminal Law rg;‘21023(3) 
11013023(3) 
When party has been subpoenaed to testify or 
produce records for grand jury and third-party 
merely fears that privileged material may be 
disclosed along with other. nonprivileged material, 
Page 1 
the case is not ripe for appellate review until the 
subpoenaed party has actually been asked to reveal 
specific material covered by the assertive privilege. 
141 Grand Jury C=.36.9(2) 
193136.9(2) 
Federal common-law presumption of grand jury 
secrecy cannot be asserted in the form of a privilege 
by those seeking to prevent disclosure to a federal 
grand jury of their state grand jury testimony. 
Fed.Ruks Cr.Proc.Rulc 6(e), 18 U.S.C-A. 
PI Grand Jury 18=>41.10 
193k41.10 
151 Witnesses tE=.184(1) 
410k184(1) 
Florida statute imposing secrecy on grand jury 
proceedings 
does 
not 
create 
an evidentiary 
privilege. 
West's F.S.A. § 905.27; 
Fed.Rules 
Evid.Rule 501.28 U.S.C.A. 
'555 Lamar Winegeart. III, Arnold. Stratford & 
Booth, Jacksonville, Fla., for Greene. 
Elizabeth L. White, Sheppard & White, William 
Sheppard, Jacksonville, Fla., for McQuaig. 
Lacy Mahon. Jr., Jacksonville, Fla., for appellants. 
Robert W. Merkk, Curtis S. Fallgatter, M. Alan 
Cellallos, Asst. U.S. Attys., U.S. Attorney's 
Office, Jacksonville, Fla., for appellee. 
Appeals from the United States District Court for 
the Middle District of Florida. 
Before 
TJOFLAT 
and 
KRAVITCH. Circuit 
Judges, and TUTTLE, Senior Circuit Judge. 
TJOFLAT, Circuit Judge: 
Appellants appeal from an order of the district 
court denying their motion to quash a federal grand 
jury subpoena directing a state prosecutor to 
produce transcripts of their testimony before a state 
grand jury. We affirm. 
1. 
In 1985, the State Attorney's Office for the Fourth 
Judicial Circuit of the State of Florida initiated a 
grand jury investigation into allegations of improper 
2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
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EFTA00227541

832 F.2d 554 
(Cite as: 832 F.2d 554, *555) 
influence peddling by certain public officials of the 
City of Jacksonville. 
Witnesses appearing before 
the state grand jury included the four appellants in 
this case: 
Jake Godbold, then the mayor of 
Jacksonville, 
Don 
McClure, 
Godbold's chief 
administrative aide, Dawson McQuaig, a former 
general counsel for the city, and Thomas Greene, a 
practicing attorney and an ascoriate of Godbold's. 
Each of these witnesses appeared and testified 
voluntarily. 
No criminal charges resulted from the state grand 
jury investigation. 
In August 1985, however, the 
state grand jury issued a report that identified 
several instances in *556 which "political favors and 
game-playing for friends" had infected the City's 
process of awarding contracts for professional 
services. 
Godbold, McClure, McQuaig, and 
Greene each waived his right under FIa.Stat. § 
905.28(1) (1985) to suppress the report. 
The 
report, however, did not contain the substance of 
their testimony. 
Meanwhile, federal prosecutors had initiated a 
federal grand jury investigation into substantially 
the same matters investigated by the state grand 
jury. 
Godbold, McQuaig, McClure, and Greene 
each indicated that he would assert the fifth 
amendment if subpoenaed to testify before the 
federal grand jury. 
Relying on the disclosure 
provisions of Fla.Stat. § 905.27(1)(c) (1985). (FNI] 
the United States in August 1985 petitioned a state 
judge to order the State Attorney to turn over to the 
federal grand jury the appellants' state grand jury 
testimony. 
The United States made no factual 
submission in support of its petition. 
The state 
judge refused to enter the order, characterizing the 
effort to obtain the testimony as a "fishing 
expedition." 
FNI. Under this provision, a court may order 
disclosure of grand jury testimony for the purpose 
of lfturthering justice." 
In October 1986, the federal grand jury issued a 
subpoena duces tecum ordering the State Attorney 
to produce appellants' state grand jury testimony. 
The State Attorney moved the federal district court 
to quash the subpoena, arguing that disclosure of 
grand jury transcripts was unlawful under Florida 
law, that the United States had not demonstrated 
sufficient need for the transcripts, and that comity 
required the district court to honor the state court's 
Page 2 
ruling against disclosure. 
Greene and McQuaig 
then moved the court to permit them to intervene 
pursuant to Fed.R.Civ.P. 24 and to file similar 
motions to quash. In his motion to intervene, 
McQuaig asserted that prior to testifying before the 
state grand jury, he had received assurances from 
the State Attorney that Florida law prohibited any 
disclosure of his grand jury testimony. Greene did 
not allege in his motion that he had received similar 
assurances, but stated that he was entitled to 
intervene because "state grand jury proceedings 
[are] secret and confidential by virtue of the 
provisions of Chapter 905 of the Florida Statutes." 
The district court granted the motions to intervene, 
and subsequently permitted Godbold and McClure 
to intervene as well. (FN2) 
FN2. Godbold and McClure also based their 
motions to intervene on the Florida grand jury 
secrecy requirement. 
The substance of the 
privilege that appellants assert is discussed in Part 
III, infra. 
In November 1986, the district court entered an 
order inviting the United States to make an ex pane 
factual submission showing why it needed the state 
grand jury transcripts. The government declined to 
accept the invitation and made no submission. The 
court then entered an order granting the motions to 
quash. 
Applying the balancing test set forth in 
Douglas Oil Co. v. Petrol Stops Northwest, 441 
U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979), 
the court found that the government had failed to 
establish a sufficient need for the testimony. 
Twenty-eight days after the court granted the 
motions to quash, the United States filed a "Motion 
for Reconsideration of Opinion and Order" along 
with an ex pane affidavit 
identifying 
facts 
supporting the grand jury's need for the testimony. 
The district court 
questioned 
the procedural 
correctness of 
the government's 
motion 
for 
reconsideration, and stated that under ordinary 
circumstances it would not consider the motion. In 
the court's view, however, denial of the motion 
would not prevent the United States from obtaining 
the testimony: 
the United States could simply 
reissue the subpoena and defeat any motion to quash 
on the strength of the information contained in the 
ex pane affidavit. 
The court concluded that the 
most efficient solution was to consider the newly 
submitted information in 
the context of the 
government's motion for reconsideration. 
After 
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
P-000162 
EFTA00227542

832 F.2d 554 
(Cite as: 832 F.2d SSA, • SS6) 
considering the new information in camera, the 
district court entered an amended order in which it 
reversed its original order denying the motion to 
quash. 
The district court certified its amended 
order for interlocutory •557 appeal pursuant to 28 
U.S.C. § 1292(b) (1982 & Supp. II 1984), and this 
court granted permission to appeal. The four 
intervenors appealed, although the State Attorney 
did not. 
Appellants make two arguments before this court. 
First, they argue that the government's motion for 
reconsideration was untimely and that the district 
court therefore had no authority to hear it. 
According to appellants, the applicable time limit 
for 
the 
motion 
was 
the 
ten-day 
limit of 
Fed.R.Civ.P. 59(e), not, as the government 
contends, the thirty-day limit of 18 U.S.C. § 3731 
(1982 & Supp. II 1984). Second, appellants argue 
that the district court's amended order was in error 
for the following reasons: (I) the government had 
failed to demonstrate 
a 
sufficient need 
for 
appellants' grand jury testimony, and (2) comity 
required the court to give greater deference to the 
state 
judge's 
decision 
against 
releasing 
the 
testimony. 
Because of the nature of our ruling 
today, we do not reach the merits of these 
arguments. 
II. 
We first address the threshold issue whether we 
have jurisdiction to hear this appeal. 
Although this 
court granted the intervenors permission to appeal 
pursuant to section 1292(b). we must of course 
dismiss the appeal if we arc without jurisdiction. 
See Robinson v. Tanner, 798 F.2d 1378, 1379 (11th 
Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 
1979, 95 L.Ed.2d 819 (1987). 
Under section 1292(b), a district court may certify 
for appeal a non-final order entered in a civil action 
if the court is of the opinion that the order "involves 
a controlling question of law as to which there is 
substantial ground for difference of opinion" and 
that resolution of the question "may materially 
advance the ultimate termination of the litigation." 
By its terms, section 1292(b) applies only to orders 
in civil actions, and has no application to appeals in 
criminal cases. 
See United States v. Doucet, 461 
F.2d 1095 (5th Cir.1972); United States v. Lowe, 
433 F.2d 349 (5th Cir.1970). Therefore, we have 
no jurisdiction to hear this appeal pursuant to 
section 1292(b) unless the district court's order 
Page 3 
denying the motion to quash can be considered an 
order entered in a "civil action." 
[If We hold that a grand jury proceeding is not a 
'civil action" for purposes of section 1292(b). Just 
in terms of the plain meaning of words, it seems 
self-evident that an order denying a motion to quash 
a subpoena issued by a grand jury investigating 
possible criminal violations is not part of a "civil 
action." 
We bast our conclusion on more than a 
mechanical labeling of the proceedings below, 
however. 
By expressly limiting section 1292(b)'s 
application to "controlling question's] of law" in 
"civil" cases, Congress clearly indicated its intent 
not to disturb well-established precedent forbidding 
piecemeal review of grand jury proceedings. 
In 
Cobbledick v. United States, 309 U.S. 323. 60 
S.Ct. 540, 84 L.Ed. 783 (1940), decided eighteen 
years before Congress enacted section 1292(b), the 
Supreme Court held that a district court's denial of 
a motion to quash a grand jury subpoena was not an 
appealable final decision within the meaning of the 
predecessor section of 28 U.S.C. § 1291 (1982). 
Noting that the Constitution itself makes the grand 
jury part of the criminal process, the Court 
concluded that 'lilt is no less important to safeguard 
against undue interruption the inquiry instituted by a 
grand jury than to protect from delay the progress 
of the trial after an indictment has been found." Id. 
at 327, 60 S.Ct. at 542; see also Di Bella v. United 
States, 369 U.S. 121, 124, 82 S.Ct. 654, 656-57, 7 
L.Ed.2d 614 (1962) ("This insistence on finality and 
prohibition of piecemeal review discourage undue 
litigiousness and leaden-footed administration of 
justice, particularly damaging to the conduct of 
criminal cases ") 
Although Cobbledick was based on the principle of 
finality found in section 1291, that same principle 
fords expression in section I292(b). We are unable 
to 
conclude 
that 
Congress, 
by 
authorizing 
permissive interlocutory appeals of "controlling 
question's] of law" in "civil" actions, intended to 
undermine the strong policy against permitting 
appellate 
interruption of 
grand 
jury 
*558 
proceedings. 
Accord In re April 1977 Grand Jury 
Subpoenas. 584 F.2d 1366, 1369 (6th Cir.I978) 
("[Section 1292(b) 1 limits interim review of 'a 
controlling question of law' to civil cases only and, 
therefore, should not be read to allow interlocutory 
review of grand jury proceedings."). cert. denied, 
440 U.S. 934, 99 5.O. 1277, 59 L.Ed.2d 492 
(1979). 
4:5 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
P-000163 
EFTA00227543

832 F.2d 554 
(Cite as: 832 F.2d 554, *558) 
121 We next examine whether there is a separate 
basis for appellate jurisdiction in this case. 
As we 
have already indicated, orders denying motions to 
quash grand jury subpoenas are ordinarily not 
appealable final orders under section 1291. 
The 
subpoenaed party can obtain review by refusing to 
comply with the subpoena and then contesting a 
contempt citation, which is immediately appealable. 
See United States v. Ryan, 402 U.S. 530, 532.33. 
91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971). 
The 
contempt route for obtaining review, however, is 
not open to a third party who claims a privilege of 
nondisclosure with respect to materials in the 
custody of the subpoenaed party. 
In such a case, 
the putative privilege-holder has no power to 
compel the subpoenaed party to incur a contempt 
citation. 
And the subpoenaed party, unless he has 
either a particularly close relationship to the putative 
privilege-holder 
or 
a 
personal 
interest 
in 
nondisclosure of the material, is unlikely to risk a 
contempt citation simply to vindicate the rights of 
the third party. In this situation, the order denying 
the motion to quash is indeed final with respect to 
the putative privilege-holder, for any prejudice he 
suffers as a result of disclosure will remain forever 
unredressed unless appeal is permitted. 
Accordingly, this circuit follows the so-called 
Perlman exception to the general rule prohibiting 
interlocutory appeal of orders denying motions to 
quash grand jury subpoenas. 
See In re Grand Jury 
Proceedings (Twist). 689 F.2d 1351 (1Ith Cir.1982) 
In re Grand Jury Proceedings (Fine), 641 F.2d 
199 (5th Cir. Unit A Mar. 1981); 
cf. In re 
International Horizons, Inc., 689 P.2d 996 (11th 
Cir.1982) 
(discovery 
order 
in 
bankruptcy 
proceedings). 
This exception, derived from 
Perlman v. United States, 247 U.S. 7, 38 S.Ct. 
417, 62 L.Ed. 950 (1918), and confirmed in United 
States v. Alton. 418 U.S. 683, 691,94 S.Ct. 3090, 
3099, 41 L.Ed.2d 1039 (1974), permits an order 
denying a motion to quash to be "considered foul as 
to the injured third party who is otherwise 
powerless to prevent the revelation." 
Fine, 641 
F.2d at 202. 
131 The circumstances supporting application of the 
Perlman exception are present in this case 
Relying on 
the Florida 
grand jury secrecy 
requirement, appellants in essence assert a privilege 
of nondisclosure. 
The material with respect to 
which they assert the privilege--transcripts of their 
state grand jury testimony--is in the custody of the 
Page 4 
State Attorney. 
The State Attorney has indicated 
his intention to produce the transcripts. In light of 
these circumstances, the order denying the motion 
to quash is a final order as far as appellants are 
concerned. 
We therefore have jurisdiction to hear 
their appeal. 117N31 
FN3. We note that the only material sought from 
the subpoenaed party in this case is material that 
falls squarely within the privilege asserted by the 
third parties. 
This is not a case, then, where a 
party has been subpoenaed to testify or produce 
records and a third party merely fears that 
privileged material may be disclosed along with 
other, nonprivileged material. 
In the latter 
situation, the case is not ripe for appellate review 
until the subpoenaed party has actually been asked 
to reveal specific material covered by the asserted 
privilege. See In it Grand hay Proceedings (Doe 
), 831 F.2d 222 (11th Cir.1987). 
111. 
In deciding that the narrow Perlman exception 
applies in this case, we have also necessarily 
defined the scope of the matters properly before us 
for review. 
Appellants raise several objections to 
disclosure, including procedural objections and 
objections based on comity considerations and the 
need to protect the integrity of the Florida grand 
jury system. 
However, the only matter that the 
Perlman exception gives us jurisdiction to review is 
the appellants' claim of privilege to prevent 
disclosure of their state grand jury testimony. 
*559 The rationale of the Perlman exception 
extends only to appeals based on privileges personal 
to the third party seeking review: if the subpoenaed 
party has a direct or primary interest in the right or 
privilege in question, the concerns giving rise to the 
Perlman exception simply are not present. 
Here, 
to the extent that their objections to disclosure are 
based on concerns relating to comity and the 
integrity of the Florida grand jury, appellants 
cannot argue that the subpoenaed party had no 
interest in seeking to vindicate their derivative 
rights. 
Indeed, the subpoenaed party--the State of 
Florida as represented by the State Attorney-- had 
as its primary interest the protection of its grand 
jury system. Accordingly, the Perlman exception 
does not give us jurisdiction to review the 
appellants' arguments concerning comity and the 
need to preserve the integrity of the Florida grand 
jury. IFN4J 
Nor does it give us jurisdiction to 
review their procedural arguments. 
Thus, we do 
not pass upon the district court's disposition of 
t, 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
P-0001(A 
EFTA00227544

832 F.2d 554 
Page 5 
(Cite as: 832 F.2d 554, •559) 
those matters and we turn to appellants' claims of 
privilege. 
FN4. We should emphasize that this discussion 
relates only to appellants' right to appeal under the 
Perlman exception. 
It does not relate to their 
standing to raise these claims before the district 
court. 
The appellants' motions to intervene in the district 
court proceedings reveal the nature of the privilege 
they assert. 
Appellant McQuaig's motion stated 
that 1pIrior to appearing before the (state) Grand 
Jury. Mr. McQuaig was advised by the State 
Attorney that pursuant to Section 905.27. Fla.Stat. 
(1985): a) none of the testimony he provided to the 
Grand Jury was disclosable under the law; and b) 
any disclosure of said testimony was a crime.' 
Appellant Green's motion stated that "Niel state 
grand jury proceedings were secret and confidential 
by virtue of the provisions of Chapter 905 of the 
Florida Statutes.' 
Appellant Godbold's motion 
stated that 'testimony was provided with the 
understanding on the part of Jake Godbold that 
pursuant to § 905.27 of the Florida Statures, his 
testimony would not and could not be disclosed 
under the law.' 
Finally, appellant McClure's 
motion stated that '(t]he substantial interest of Don 
McClure is equal to or greater than that of the two 
other parties previously allowed to intervene.' 
In essence, then, appellants derive the privilege 
they assert from the Florida statutory grand jury 
secrecy requirement. 
The statute imposing that 
requirement provides as follows: 
(I) A grand juror, state attorney, assistant state 
attorney, reporter, stenographer, interpreter, or 
any other person appearing before the grand jury 
shall not disclose the testimony of a witness 
examined before the grand jury or other evidence 
received by it except when required by a court to 
disclose the testimony for the purpose of: 
(a) Ascertaining whether it is consistent with the 
testimony given by the witness before the court; 
(b) Determining whether the witness is guilty of 
perjury: or 
(c) Furthering justice. 
Fla.Stat. § 905.27 (1985). (ENS) 
FNS. The remainder of section 905.27 provides as 
follows: 
(2) It is unlawful for any person knowingly to 
publish, 
broadcast, 
disclose, 
divulge, 
or 
communicate to any other person, or knowingly to 
cause or permit to be published, broadcast, 
disclosed, divulged, or communicated to any other 
person, in any manner whatsoever, any testimony 
of a witness examined before the grand jury, or the 
content, gist, or import thereof, except when such 
testimony is or has been disclosed in a court 
proceeding. When a cowl orders the disclosure of 
such testimony pursuant to subsection (I) for use in 
a criminal case, it may be disclosed to the 
prosecuting attorney of the court in which such 
criminal case is pending. and by him to his 
assistants, legal associates. and employees, and to 
the defendant and his attorney, and by the latter to 
his legal associates and employees. 
When such 
disclosure is ordered by a taut pursuant to 
subsection (I) for use in a civil case, it may be 
disclosed to all parties to the case and to their 
attorneys and by the latter to their legal associates 
and employees. 
However, the grand jury 
testimony afforded such persons by the court can 
only be used in the defense or prosecution of the 
civil or criminal cast and for no other purpose 
whatsoever. 
(3) Nothing in this section shall affect the attorney-
client relationship. A client shall have the right to 
communicate to his attorney any testimony given 
by the client to the grand jury, any matters 
involving the client discussed in the client's 
presence before the grand jury. and any evidence 
involving the client received by or proffered to the 
grand jury in the client's presence. 
(4) Persons convicted of violating this section shall 
be guilty of a misdemeanor of the first degree, 
punish able as provided in s. 775.083, or by fine 
not exceeding $5,000. or both. 
(5) A violation of this section shall constitute 
criminal contempt of court. 
14] Federal Rule of Evidence 501 provides that 
privileges in federal court proceedings "•560 shall 
be governed by the principles of the common law as 
they may be interpreted by the courts of the United 
Status in the light of reason and experience.' 
The 
privilege appellants assert, as stated in their motions 
to intervene, is based solely on state law. 1FN61 
We acknowledge that some federal courts have 
recognized state law evidentiary privileges in 
particular 
cases 
when to do so would not 
substantially burden federal policies. 
See. e.g., 
Lan v. Roan! of Education. 74 F.R.D. 565, 576 
(E.D.N.Y.); cf• ACLU v. Finch, 638 F.2d 1336, 
1342-45 (5th Cir. Unit A Mar. 1981). 
FN6. In their briefs, appellants suggest that the 
privilege they assert has an independent basis in the 
federal common law presumption of grand jury 
secrecy. 
That presumption, which is codified in 
C 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
P-000165 
EFTA00227545

832 F.2d 554 
(Cite as•. 832 F.2d 554, '560) 
Fod.R.Crim.P. 6(e), relates to disclosure of federal 
grand jury records. 
It cannot be asserted in the 
form of a privilege by appellants, who seek to 
prevent disclosure of their state grand jury 
testimony. 
(5) We need not apply any such balancing test 
here, however, because we find that the privilege 
asserted by appellants is without a basis in Florida 
law. We find no evidence that the Florida courts 
derive an evidentiary privilege from Fla.Stat. § 
905.27. 
Indeed, the Florida Supreme Court has 
noted that 
(Ube 
rule of secrecy 
concerning 
matters 
transpiring in the grand jury room is not designed 
for the protection of witnesses before the grand 
jury, but for that of the grand jurors, and in 
furtherance of the public justice. 
A witness 
before the grand jury has no privilege of having 
his testimony there treated as a confidential 
communication.... 
State ex rel. 
Brown v. Dewell, 167 So. 687. 690 
(Ha.1936). 
Florida case law directly construing 
section 905.27 
fails to provide 
a 
contrary 
interpretation of the relationship between the 
secrecy requirement and the rights of grand jury 
witnesses. (FN7) Accordingly, we conclude that 
Page 6 
appellants have no privilege of nondisclosure under 
state law. A federal court will not selectively reach 
into a state code and fashion evidentiary privileges 
merely to suit the purposes of the parties before it. 
FF17. Some Florida caws refer to the 'privilege' 
of a grand jury witness. but only with reference to 
the general principle under Florida law that a 
witness' testimony in a judicial proceeding canna 
be used as the basis of a defamation action. See, 
e.g., 
State 
v. 
Tillett. 
111 
Sold 
716 
(Fb.Dist.Ct.App.1959). 
IV. 
In light of our conclusion that appellants have no 
privilege of nondisclosure under state law, we 
affirm the district court's order denying their 
motion to quash. 
Because we must observe the 
limitations on our appellate jurisdiction discussed 
above, we dismiss their appeal to the extent that it is 
based on other objections to disclosure. 
AFFIRMED in part: DISMISSED in part. 
832 F.2d 554, 24 Fed. R. Evid. Serv. 275 
END OF DOCUMENT 
0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
P-000166 
EFTA00227546

824 F.Supp. 330 
824 F.Supp. 330 
(Cite as: 824 F.Supp. 330) 
C 
United States District Court, 
W.D. New York. 
In the Matter of Subpoena Duces Tecum Directed to 
the Honorable Kevin M. 
DILLON, District Attorney of Erie County. 
Civ. No. 92-13A. 
Feb. 20. 1992. 
State district attorney moved to quash subpoena 
duces tecum issued by federal grand jury seeking 
production of state grand jury records as part of 
investigation into whether police officers violated 
federal criminal civil rights statute when making 
arrests. 
The District Court, Arena, J., held that 
federal grand jury was entitled to transcripts and 
tapes 
of 
slate 
grand jury 
testimony 
of 
uncooperating police officers. 
Motion to quash denied. 
West Headnotes 
[I] Grand Jury €25 
I93k25 
Grand jury is to be afforded wide latitude 
conducting its investigation. 
Page 11 
grand jury investigation after police officers refused 
to cooperate, subpoena was definite and did not call 
for 
production 
of unreasonable 
amount 
of 
documents, United States had strong interest in 
insuring just enforcement of its criminal laws, and 
privacy limitations on federal grand jury documents 
limited potential harm from disclosure. Fed.Rulcs 
Cr.Proc.Rules 
6(e), 
17, 
18 
U.S.C.A.; 
N.Y.McKinney's CPL § 190.25. subd. 4. 
[5] Grand Jury <8=36.3(1) 
193k36.3(I) 
[51 States f3=718.63 
360k 18 .63 
State statutes which preclude disclosure of state 
grand jury records to general public cannot be used 
to prevent federal grand juries from obtaining 
records through subpoena. 
[6] Grand Jury c8=736.4(1) 
193k36.4(I) 
Custodian of records, who is proper party for 
service of federal grand jury subpoena, is person or 
entity who is in actual possession of documents at 
in 
time subpoena is issued. N.Y.McKinney's CPL § 
190.25, subd. 4. 
[2) Grand Jury dt=i36.4(2) 
193k36.4(2) 
Federal 
grand jury 
subpoena 
may 
not 
be 
unreasonable or oppressive, it may not violate 
constitutional, common law or statutory privilege. 
Fed.Rules Cr.Proc.Rule 17(c), 18 U.S.C.A. 
[3) Grand Jury 4:=P36.9(2) 
193k36.9(2) 
Federal grand jury subpoenas arc presumed to be 
reasonable and party seeking to quash subpoena 
bears burden of showing that compliance would be 
unreasonable 
or 
oppressive. 
Fed.Rules 
Cr.Proc.Rule 17(c). 18 U.S.C.A. 
[4] Grand Jury 4:=36.4(2) 
I93k36.4(2) 
Federal grand jury was entitled to subpoena 
transcripts and tapes of state grand jury testimony of 
police officers as part of investigation to determine 
whether officers violated federal criminal civil 
rights laws during or after arrests; 
disputed 
testimony was relevant and necessary to federal 
[7] Grand Jury cE=P41.I0 
193k41.10 
Basic purposes of New York grand jury secrecy 
laws are: to prevent accused from escaping before 
being indicted; 
to prevent tampering with 
witnesses; and to protect accused person who is not 
indictcd 
from 
unwarranted 
exposure. 
N.Y.McKinney's CPL § 190.25, subd. 4. 
[8) Witnesses (11=l84(1) 
410k184(I) 
Evidentiary 
privileges 
protect 
confidential 
communications 
between 
persons 
in 
special 
relationships from disclosure and are generally 
disfavored in that privileges impede search for 
truth. 
191 Grand Jury C=736.3(2) 
I93k 36.3(2) 
When faced with claim that grand jury should be 
denied evidence because of privilege, reviewing 
court must weigh potential harm from disclosure 
against benefits of disclosure. 
0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
P-000167 
EFTA00227547

824 F.Supp. 330 
(Cite as: 824 F.Supp. 330, •331) 
•331 John J. DeFranks, J. Michael Marion, Asst. 
Erie County Dist. Attys. (Kevin Dillon. Erie 
County Dist. Atty., of counsel), Buffalo, NY. 
Russell P. Buscaglia, Asst. U.S. Atty. (Dennis C. 
Vacco, U.S. Atty., W.D.N.Y., of counsel). 
Buffalo, NY. 
DECISION AND ORDER 
ARCARA, District Judge. 
Presently before the Court is a motion to quash a 
subpoena ducts tecwn, pursuant to Fed.R.Crim.P. 
17, filed by Kevin M. Dillon. District Attorney for 
Erie County. New York. 
The District Attorney's 
motion seeks an order from this Court quashing a 
federal grand jury subpoena for state grand jury 
records. 
Thc parties were given an opportunity to 
brief and argue their respective positions. 
After 
reviewing the submissions of the parties and hearing 
argument from counsel, the Court denies the 
District Attorney's motion to quash the subpoena. 
BACKGROUND 
A federal grand jury investigation is currently 
being conducted regarding an incident which 
occurred on March 8, 1990 in the Main Place Mall. 
Buffalo, New York, involving the arrest of Mark 
Aiken and Steven Johnson by officers of the Buffalo 
Police Department. 
Specifically, a federal grand 
jury is investigating allegations that certain officers 
of the Buffalo Police Department violated federal 
criminal civil rights laws during and after the arrest 
of Mr. Aiken and Mr. Johnson. (PHI 
F141. The background and focus of the federal 
grand jury investigation is set fonh in greater detail 
in an in camera submission of facts surrounding 
the federal grand jury investigation submitted by 
the United States. 
The District Attorney's Office prosecuted Mr. 
Aiken and Mr. Johnson on numerous state 
misdemeanor charges arising from this incident. 
During the state trial, only two of the six or more 
officers who were either involved in or witnessed 
the 
incident 
in 
question 
actually 
testified. 
Consequently, the state trial shed little light on the 
officers' versions of the allegations that are the 
focus 
of 
the 
federal 
criminal 
civil rights 
investigation. 
Page 12 
Following the conclusion of the state trial, the 
District Attorney's Office presented the case to an 
Erie County grand jury that considered whether the 
officers' actions during and after the arrest of Mr. 
Aiken and Mr. Johnson constituted violations of 
state law. 
The United States, which was then 
conducting •332 its own investigation, delayed 
taking any action in the matter in order to prevent 
interference with the state investigation. 
Thc Erie 
County grand jury declined to return criminal 
charges against any of the police officers. 
As a 
result, the-state investigation into the police officers' 
conduct concluded in approximately November, 
1990. 
When the District Attorney's Office concluded its 
investigation, the United States conducted an 
independent review of the matter and concluded that 
a federal grand jury investigation was warranted. 
After further investigation, evidence was presented 
to a federal grand jury in October. 1991. 
The United States claims that the federal grand jury 
investigation has reached a logjam because of the 
refusal of the police officers to cooperate with the 
Federal 
Bureau 
of 
Investigation 
("FB1').
Moreover, none of the officers who are most 
seriously implicated in the investigation submitted 
any written reports regarding the alleged incident, 
nor did most of the officers who were present and 
should have witnessed the incident. 
Thus, the 
United States argues that reviewing the transcripts 
and tapes of the state grand jury testimony of the 
police officers is the only way that it will be able to 
learn the officers' versions of what happened. 
The United States initially attempted to obtain the 
state grand jury material through informal means. 
When these efforts failed, a grand jury subpoena 
was issued to the District Attorney's Office on 
October 25. 1991 for the production of the grand 
jury transcripts or tapes of all witnesses who 
testified in this matter before the Erie County grand 
jury. 
At the request of the District Attorney's 
Office, the return date was delayed until January 8. 
1992, in an effort to facilitate the resolution of this 
matter. 
When further efforts to resolve the matter failed, 
the District Attorney filed the present motion to 
quash, raising four objections to the production of 
the state grand jury material. 
First, the District 
Attorney 
argues 
that 
compliance 
would 
be 
V 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
P-000168 
EFTA00227548

824 F.Supp. 330 
(Cite as: 824 F.Supp. 330, *332) 
unreasonable because it would force him to violate 
state law relating to grand jury secrecy. 
Second. 
he argues that the subpoena was served upon the 
wrong party. Third, the District Attorney contends 
that compliance would be unreasonable because it 
would violate policies of comity. Finally, he 
contends that the subpoenaed grand jury records arc 
privileged. 
DISCUSSION 
[1][2][3] It is well-established that a federal grand 
jury is to be afforded wide latitude in conducting its 
investigation. 
See United States v. R. Enters., 
Inc., 498 U.S. 292, 297-98, Ill S.Ct. 722, 726, 
112 L.Ed.2d 795 (1991); 
United States v. 
Calandra, 414 U.S. 338, 94 S.O. 613, 38 L.Ed.2d 
561 (1974). 
"A grand Jury investigation 'is not 
billy carried out until every available clue has been 
tun down and all witnesses examined in every 
proper way to find if a crime has been committed.' 
Branzburg v. Hayes. 408 U.S. 665, 701. 92 
S.Ct. 2646, 2667, 33 L.Ed.2d 626 (1972) (quoting 
United States v. Stone, 429 F.2d 138, 140 (2d 
Cir.1970)); In re Grand Jury Subpoena for the 
Prod. of Certain New York State Sales Tax Records, 
382 F.Supp. 1205, 1206 (W.D.N.Y.1974) (quoting 
Stone, 429 F.2d at 140). 
In accordance with its 
broad mandate to investigate possible criminal 
activity, a federal grand jury has few limitations 
placed on its subpoena powers. R. Enters.. 498 
U.S. at 297-98, III S.Ct. at 726. "A grand jury 
'may compel the production of evidence or the 
testimony of witnesses as it considers appropriate, 
and its operation generally is unrestrained by the 
technical procedural and evidentiary rules governing 
the conduct of criminal trials.' " 
Id. (quoting 
Calandra, 414 U.S. at 343, 94 S.Ct. at 617). The 
only restrictions that have been placed upon the 
grand jury concern reasonableness and privileges. 
A grand jury subpoena may not be unreasonable or 
oppressive, and it may not violate a constitutional, 
common law or statutory privilege. Branzburg, 408 
U.S. at 688, 92 S.Ct. at 2660; 
Fcd.R.Crim.P. 
17(c). 
Grand jury subpoenas arc presumed to be 
reasonable and the party seeking to quash the 
subpoena bears the burden of showing that 
compliance would be unreasonable or oppressive. 
R. Enters.. 498 U.S. at 300-02, III S.Ct. at 728. 
•333 In this case, the District Attorney contends 
that compliance with the subpoena would be 
unreasonable. 
In order to meet his heavy burden 
of showing that compliance with the subpoena 
Page 13 
would be unreasonable or oppressive, the District 
Attorney must prove that (I) "there is no reasonable 
possibility that the category of materials the 
Government seeks will produce information relevant 
to the general subject of the grand jury's 
investigation:" or (2) the subpoena is too indefmite; 
or (3) compliance would be overly burdensome. Id. 
After applying these tests to the instant cast the 
Court finds that the District Attorney is unable to 
rebut the presumption that the federal grand jury 
subpoena is reasonable. 
[4] Regarding the relevancy question, the United 
States has set forth in some detail, both in its motion 
papers and in its in camera submission, the reasons 
underlying the need for the state grand jury records. 
The United States has been unable to obtain the 
information contained in the grand jury records 
from other sources because the police officers have 
been unwilling to cooperate with the investigation. 
Accordingly, the Court finds that the statements of 
the police officers and other witnesses who testified 
before the state grand jury arc relevant and 
necessary to the federal grand jury investigation. 
It does not appear that the District Attorney 
challenges the subpoena as being too indefinite or 
overly burdensome. 
The Court notes that the 
subpoena is discreet and calls for the production of 
specific material stemming from a particular state 
grand jury investigation. 
Thus, the subpoena is 
sufficiently definite. 
Further, the subpoena does 
not call for the production of an unreasonable 
amount of documents. 
Consequently, producing 
the requested material would require minimal effort 
on the part of the District Attorney's Office and 
therefore would not be overly burdensome. 
The District Attorney argues that compliance with 
the subpoena would be unreasonable because it 
would place him in a position where he would be 
violating state law provisions relating to grand jury 
secrecy. 
Specifically, the District Attorney argues 
that N.Y.Crim.Proc.Law § 
190.25, subd. 4, 
requires that state grand jury materials be kept 
secret and therefore prohibits him from turning over 
the subpoenaed grand jury records to the United 
States. He contends that the only way the United 
States can gain access to these materials is to file a 
motion 
in 
state 
court 
pursuant 
to 
N.Y.Crim.Proc.Law § 190.25, subd. 4. 
The 
Court finds this argument without merit. 
4> 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
P-000169 
EFTA00227549

824 F.Supp. 330 
(Cite as: 824 F.Supp. 330, •333) 
[5] Federal courts have consistently held that state 
statutes which preclude disclosure of records to the 
general public cannot be used to prevent federal 
grand juries from obtaining the records through a 
subpoena. 
The cases of In re Grand Jury 
Subpoena for New York State Income Tax Records, 
468 F.Supp. 575 (N.D.N.Y.), appeal dismissed. 
607 F.2d 566 (2d Cir.1979), and In re Grand Jury 
Subpoena for the Prod. of Certain New York State 
Sales 
Tax 
Records. 
382 
F.Supp. 
1205 
(W.D.N.Y.1974), are particularly relevant to the 
case at hand. Both cases involved federal grand 
jury subpoenas issued to officials of the New York 
State Department of Taxation for the production of 
certain tax records. The petitioners moved to quash 
the subpoenas on the grounds that compliance 
would be in violation of certain secrecy provisions 
of New York State tax laws. 
These laws are very 
similar to N.Y.Crim.Proc.Law § 190.25, subd. 4, 
which the District Attorney relies on in his motion. 
The courts in these cases explicitly rejected the 
argument that compliance was unreasonable because 
it would force the state officials to violate state law 
secrecy provisions. 
The courts ruled that the 
Supremacy Clause must prevail over the state 
nondisclosure provisions. 
As the court in In re 
Grand Jury Subpoena for New York State Income 
Tax Records stated: 
The Supreme Court has several times indicated 
that, by virtue of the supremacy clause, state 
legislation must yield whenever it comes into 
conflict with an Act of Congress or the superior 
authority of the Constitution. 
Thus, inasmuch as 
the federal •334 grand jury is a product of the 
Fifth Amendment and its powers, as a result of its 
long history and specific Congressional attention, 
the 
conflict 
between 
state 
confidentiality 
provisions and Congressional or constitutional 
investigatory powers has resulted in enforcement 
of federal grand jury subpoenas despite state 
statutes 
which 
would 
otherwise 
prohibit 
compliance. 
In re Grand Jury Subpoena for New York State 
Income Tax, 468 F.Supp. at 577 (citations omitted). 
Courts in other Circuits, relying on the Supremacy 
Clause, have similarly rejected claims from state 
officials that compliance with a federal subpoena 
would force them to violate state confidentiality 
laws. 
See, e.g., In re Special April 1977 Grand 
Jury, 581 F.2d 589, 593 n. 3 (7th Cir.), car. 
denied, 439 U.S. 1046, 99 S.Ct. 721, SS L.Ed.2d 
705 (1978): Carr I Monroe Mfg. Co., 431 F.2d 
384. 388 (5th Cir.I970), an. denied, 400 U.S. 
Page 14 
1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971); In re 
1980 United States Grand Jury Subpoena Duces 
Tecum, 502 F.Supp. 576. 579-80 (E.D.La.1980); 
United States v. Grand Jury Investigation. 417 
F.Supp. 389, 393 (E.D.Pa.1976). 
Thus, the case 
law clearly establishes that state law provisions 
relating to grand jury secrecy do not preclude a 
federal grand jury from obtaining state grand jury 
records pursuant to a subpoena. 
[6] The District Attorney further argues that the 
grand jury subpoena was not served upon the proper 
party. 
Specifically, the District Attorney contends 
that pursuant to the state grand jury secrecy law, 
N.Y.Crim.P.Law § 190.25, subd. 4, the state court 
has the ultimate and exclusive control over the 
subpoenaed grand jury material and, therefore, is 
the actual custodian of the grand jury records. 
Thus, the District Attorney argues that the grand 
jury subpoena should have been served on the 
presiding state court judge rather than the District 
Attorney. The Court disagrees. 
A custodian of records is the person or entity who 
is in actual possession of the documents at the time 
the subpoena is issued. In re Grand Jury Impaneled 
Jan. 21. 1975. 541 F.2d 373, 377 (3d Cir.1976) 
(citations omitted). In order to testify competently 
as a records custodian, a witness must be able to 
verify the authenticity and completeness of the 
requested documents. 
In this case, the District Attorney does not dispute 
the fact that his office possesses the requested grand 
jury material, nor does he deny that the grand jury 
materials were generated as a result of an 
investigation 
conducted 
by 
his 
office. 
Accordingly, the District Attorney's office is the 
sole entity that can competently testify as to the 
authenticity and completeness of the requested 
material. 
The presiding state court judge does not 
possess the subpoenaed materials nor would he or 
she have any knowledge concerning the authenticity 
or completeness of the grand jury records. 
Thus, 
the Court funds that the District Attorney's Office is 
the custodian of the state grand jury records and is 
therefore the proper party to be served with the 
subpoena. 
The District Attorney also contends that compliance 
with the federal grand jury subpoena would be 
unreasonable because it would violate policies of 
comity. 
Specifically, the District Attorney 
O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
P-000170 
EFTA00227550

824 F.Supp. 330 
(Cite as: 824 F.Supp. 330, *334) 
contends that, just as the federal government has an 
interest in protecting the secrecy of federal grand 
jury material, the state has an interest in protecting 
state grand jury material from disclosure. 
Thus, 
the District Attorney argues that, in order to show 
proper deference to the State's interest in the 
confidentiality of the grand jury records, the United 
States should be required to move initially for 
disclosure before the presiding state court judge. 
The Court fads that no such requirement exists. 
[7) The Court recognizes that "policies of comity 
and federalism require some deference to the 
objective 
sought 
to 
be 
achieved 
by 
state 
confidentiality provisions." 
In re Grand Jury 
Subpoena for New York State Income Tax Records, 
468 F.Supp. at 577. 
The basic purposes of the 
state grand jury secrecy laws in question are: (I) to 
prevent an accused from escaping before he is 
indicted: (2) to prevent tampering with witnesses; 
and (3) to protect an accused person who is not 
indicted from unwarranted exposure. 
People v. 
McAdoo, 45 Misc.2d 664, 257 N.Y.S.2d 763, 
affd, 51 Misc.2d 263, 272 •335 N.Y.S.2d 412, 
cert. denied, 386 U.S. 1031, 87 S.Ct. 1479, 18 
L.Ed.2d 592 (1967). 
In this case compliance with the federal grand jury 
subpoena will not subvert New York's interest in 
maintaining the secrecy of grand jury proceedings 
because federal grand jury proceedings are also 
conducted secretly. 
The secrecy requirements of 
Fed.R.Crim.P. 6(e), will adequately ensure that 
none of the purposes of the state grand jury secrecy 
laws are undermined by compliance with the federal 
grand jury subpoena. 
See In re New York Grand 
Jury Subpoena for State Income Tax Records, 468 
F.Supp. at 577-78; see also United States v. Field, 
532 F.2d 404, 407-08 (5th Cir.I976), cert. denied, 
429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309; in re 
Grand Jury Empanekd Jan. 21, 1975, 541 F.2d at 
377-78. 
Moreover, it is important to note that comity is a 
policy which must be balanced against 
"the 
necessity of thorough grand jury investigations into 
violations of federal law." 
In re Grand Jury 
Subpoena for New York State Income Tax Records, 
468 F.Supp. at 577. 
In this case, the subpoenaed 
documents are necessary to the federal grand jury 
investigation. 
Thus, the policy of comity must 
yield to the constitutional right and duty of the 
federal grand jury to conduct a broad investigation. 
Page 15 
Id. 468 F.Supp. at 578. 
Foully, the District Attorney contends that the 
motion to quash should be granted because the 
subpoenaed materials are privileged. 
Specifically. 
the District Attorney argues that the mate grand jury 
secrecy law creates a federal privilege under 
Federal Rule of Evidence 501. 
The Court finds 
this argument without merit. 
[81 Evidentiary privileges protect confidential 
communications 
between 
persons 
in 
special 
relationships from disclosure. By their very nature 
they impede the search for the truth and are 
therefore generally disfavored. Trammel v. United 
States, 445 U.S. 40, 50. 100 S.Ct. 906. 912, 63 
L.Ed.2d 186 (1980); Herbert v. Lando, 441 U.S. 
153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); 
United States v. Nixon, 418 U.S. 683. 709-10, 94 
S.Ct. 3090, 3108- 09. 41 L.Ed.2d 1039 (1974). 
Accordingly, "the party asserting a privilege bears 
the burden of proving the applicability of the 
privilege," In re Bevil!, Bressler & Schulman Asset 
Management Corp.. 805 F.24 120, 126 (3d 
Cir. 1986), and privileges. 'whatever their origins 
... [should] not (bel lightly created or expansively 
construed.' Nixon, 418 U.S. at 710, 94 S.Ct. at 
3109. 
191 When faced with a claim that a grand jury 
should be denied evidence because of privilege, the 
reviewing court must weigh the potential harm from 
disclosure against 
the benefits of disclosure. 
American Civil Liberties Union of Miss.. Inc. v. 
Finch, 638 F.2d 1336, 1343 (5th Cir.1981). In this 
case, the federal grand jury is investigating possible 
violations of federal criminal civil rights laws by 
police officers of the Buffalo Police Department. 
As fully explained in the United States' in camera 
statement of facts, the subpoenaed documents are. 
vital td the grand jury investigation and are not 
simply needed to assess credibility of potential 
witnesses. 
In addition, the information sought to 
be obtained from the subpoenaed material is not 
otherwise available since the police officers are 
unwilling to talk to the FBI. Thus, the grand jury 
may not be able to learn the truth of the allegations 
without the subpoenaed material. 
On the other side of the scale, the potential harm 
from disclosure of the state grand jury material is 
minimal. 
Because Fed.R.Crim.P. 6(e) limits 
disclosure of federal grand jury material, the 
2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
P-000171 
EFTA00227551

824 F.Supp. 330 
(Cite as: 824 F.Supp. 330, •335) 
secrecy of the subpoenaed documents would be 
closely guarded. 
Thus, since the benefits of 
disclosure in this case substantially outweigh the 
potential harm from disclosure, the Court finds that 
the state grand jury records are not privileged as a 
matter of federal common law. 
See Matter of 
Special April 1977 Grand Jury, 581 F.2d at 592-93; 
In re Grand Jury Proceeding, 563 F.2d 577, 582-85 
(3d Cir.1977); 
In re Grand Jury Empaneled 
January 21, 1975, 541 F.2d at 382-83. 
In sum, the United States has a strong interest in 
ensuring the just enforcement of its criminal laws. 
Public policy has long favored giving the grand jury 
broad powers of investigation. 
The District 
Attorney, who has the burden of proving that the 
subpoena should be quashed, has failed to establish 
'336 that the subpoena is unreasonable or that it 
Page 16 
violates any recognized privilege. 
Furthermore, 
because of the secrecy provisions of the federal 
grand jury, little or no prejudice would result to the 
state from compliance with the federal grand jury 
subpoena. 
CONCLUSION 
For the reasons stated, the Court denies the District 
Attorney's motion to quash die federal grand jury 
subpoena. 
This Decision and Order and the entire 
tile are to be filed under seal. 
It is so ordered. 
824 F.Supp. 330 
END OF DOCUMENT 
C 2006 Thonuon/West. No Claim to Orig. U.S. Govt. Works. 
Case No. 08-80736-CV-MARRA 
P-000172 
EFTA00227552

U.S. Departmeneustice 
United States Attorney 
Southern District of Florida 
SOO South Australian Ave, Suite 400 
West Palm Beach, Florida 33401 
FACSIMILE COVER SHEET 
TO: 
DENISE COFFMAN, ESQ. 
 
 
DATE: 
September 6, 2006 
FAX NO. 
U OF PAGES: 
16 
PHONE NO. 
RE: 
GRAND JURY SUBPOENA 
FROM: 
PHONE NO. 
ASSISTANT U.S. ATTORNEY 
COMMENTS: 
Case No. 08-80736-CV-MARRA 
P-000173 
EFTA00227553

09/08/2008 20:48 FAX 5818021787 
USAO WPB FL 
?pm 
• 
• 
ass 
TX REPORT 
wits 
TRANSMISSION OK 
TX/RX NO 
2691 
CONNECTION TEL 
3556727 
SUBADDRESS 
CONNECTION ID 
ST. TIME 
09/06 20:41 
USAGE T 
06'34 
PGS. SENT 
16 
RESULT 
OK 
U.S. Department of Justice 
United States Attorney 
Southern District of Florida 
Ave. Suite 400 
West Palm Beak Florida 33401 
FACSIMILE COVER SHEET 
TO: 
DENISE COFFMAN, EGO, 
 DATE: 
September 6. 2006 
FAX NO. 
16 
# OF PAGES; 
PHONE NO. 
 
 RE: 
GRAND JURY SUBPOENA 
FROM: 
PHONE NO. 
COINCENTS: 
1.5 
ASSISTANT U.S. ATTORNEY 
Case No. 08-80736-CV-MARRA 
P-000174 
EFTA00227554

Case No. 08-80736-CV-MARRA 
P-000175 
EFTA00227555

United States District Court 
SOUTHERN DISTRICT OF FLORIDA 
TO: 
SUBPOENA TO TESTIFY 
BEFORE GRAND JURY 
FGJ 05-02(WPB)-FriiNo. O1X-018 
SUBPOENA FOR: 
n
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: 
Palm Beach County Courthouse 
Juvenile Courts Building 
205 N. Dixie Highway 
West Palm Beach, Florida 33401 
(Temporary location for the United States District Courthouse, West Palm Beach) 
ROOM: 
Room 4-A 
DATE AND TIME: 
September 22, 2006 
9:30am 
YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): 
Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with 
Special Agent Nesbitt Kuyrkendall, Federal Bureau of Investigation, Telephone: (561) 822-5946. 
O 
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. 
.00 ear 
;
l 
CLERK 
e 
k
 
41•141k Visr 
ii,4\,:z-tipy
(LIY) DEPUTY CLERK 
DATE 
September 13, 2006 
This subpoena is issued upon application 
of the United States 
A 
Number of Assistant ll.S. Attorney 
us a tan Avenue, Juttc 
West Palm Beach, FL 33401-6235 
• If not appltrAble. enter "none 
To he coed in he, of AO110 
Case No. 08-80736-CV-MARRA 
FORM ORD-227 
JAN 86 
P-000176 
EFTA00227556

U.S. Dcpartn. 
of Justice 
United States Attorney 
Southern District of Florida 
500 X Australian Ave., Suite 100 
West Polon Beach, FL 334014235 
(560820-8711 
APPEARANCE NOTICE 
The attached subpoena requires the production of the records specified to a Federal 
Grand Jury/Trial in the Southern District of Florida. 
A new provision of the Federal Rules of Evidence provides that routine business 
records may be admitted at trial through the declaration of a custodian, if they are provided 
sufficiently in advance of trial to allow an opportunity for any challenges to their 
authenticity. Therefore, you may be able to avoid appearing personally at the grand 
jury/trial at the time and place specified by completely filling out the attached Certification 
nd immediately returning it with the records to Special Agent 
I at the following address: 
Federal Bureau of Investigation 
505 South Flagler Drive, Ste. 500 
West Palm Beach, Florida 33401-5923 
EARLY VOLUNTARY TURNOVER 
Please note that we are requesting an early voluntary turnover of the materials 
subpoenaed. The early voluntary turnover date is prior to September 22. 2006. 
B 
Sincerely, 
R. ALEXANDER ACOSTA 
UNITED STATES ATTORNEY 
ASSISTANT UNITED STATES ATTORNEY 
Case No. 08-80736-CV-MARRA 
P-000177 
EFTA00227557

CERTIFICATION OF BUSINESS RECORDS 
I, the undersigned, 
, declare that I am: 
employed by/associated with  
 in the 
position of 
and by reason of my 
position am authorized and qualified to make this declaration. 
In my employment with the above-named bank/company I am familiar with the 
business records it maintains. The above-named bank/company maintains records of its 
business which are: 
1. made at or near the time of the occurrence of the matters set forth therein, by, 
or from information transmitted by, a person with knowledge of those matters; 
2. kept in the course of regularly conducted business activity; and 
3. made by the regularly conducted activity as a regular practice. 
Among the records so maintained are the attached records itemized in Appendix A, 
Inventory of Documents. 
I declare under penalty of perjury that the foregoing is true and correct. 
Date of execution:  
Place of execution: 
Signature: 
Case No. 08-80736-CV-MARRA 
P-000178 
EFTA00227558

APPENDIX A 
DOCUMENT INVENTORY 
The documents submitted are as follows: 
Signature of Records Custodian: 
Case No. 08-80736-CV-MARRA 
P-000179 
EFTA00227559

o 
r 
Case No. 08-80736-CV-MARRA 
P-000180 
EFTA00227560