In Re Grand Jury Proceedings. Appeal of Jacqueline Schofield

ALDISERT, Circuit Judge

(dissenting).

Before treating my disagreement with the majority, which follows an extremely narrow compass, I find it necessary to discuss the precise holding of In re Grand Jury Proceedings, 486 F.2d 85 (3d Cir. 1973) (Schofield I), and to answer the government’s attack on it in this case.

I.

In Schofield I we recognized that United States v. Dionisio, 410 U.S. 1 , 93 S.Ct. 764 , 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19 , 93 S.Ct. 774 , 35 L.Ed.2d 99 (1973), “[b]oth hold that the fourth amendment does not require any preliminary showing for the issuance of a grand jury subpoena, either to compel testimony, or to compel production of voice or handwriting exemplars.” Schofield I, supra, 486 F.2d at 89 . (Emphasis supplied). We then carefully proceeded to delineate the distinction between an adjudication predicated on constitutional principles and one “involving] the district court’s supervisory power over the proper use of its process in a grand jury proceeding, the supervisory power of this court over the manner in which the district court supervises the proper use of its process, or the substantive and procedural law of civil contempt.” Ibid.

We then set forth precise guidelines to be followed as the law in this circuit:

In view of the fact that information which would justify obtaining the handwriting exemplars, fingerprints, and a mug shot, is in the Government’s sole possession, we think it reasonable that the Government be required to make some preliminary showing by affidavit that [1] each item is at least relevant to an investigation being conducted by the grand jury and [2] properly within its jurisdiction, and [3] is not sought primarily for another purpose.

Ibid, at 93. So that there would be a complete understanding that these requirements were not constitutionally mandated, see United States v. Dionisio, supra, and United States v. Mara, supra, we said:

We impose this requirement both [a] pursuant to the federal courts’ supervisory power over grand juries and [b] *969 pursuant to our supervisory power over civil proceedings . . .. Ibid.

Thus, we must understand what is meant in Judge Hunter’s expressions that “we are not inclined to interpret Schofield I as a major deviation from the thrust of [several] Supreme Court decisions” and “[i]n bottoming its analysis in Dionisio and Branzburg, Schofield I makes clear that no radical departure from these cases is intended.” (p. 965). Judge Hunter is saying (1) we are not altering the constitutional parameters of those decisions and (2) we are reasserting district court power to control grand jury subpoenas.

As to the creation of new procedures, however, Schofield I has mandated, in Judge Hunter’s phrase, “a major deviation” and a “radical departure.” Under Mara and Dionisio no preliminary showing by the government is required. Under Schofield I “three tests for determining . . . the required showing” are mandated. (Judge Hunter’s Op., p. 964). Prior to Schofield I, the government was not required to make a showing. Now it is. That is the “major deviation”; that is the “radical departure.”

II.

The foregoing is the precise interpretation urged by Mrs. Schofield in the present appeal. The government would contest this: “Implicit in Mrs. Schofield’s argument on this appeal is the assertion that federal courts can, pursuant to their supervisory power, impose requirements on the Government which the Supreme Court has specifically ruled are not required by the Constitution. This assertion can not be supported. See, e. g., United States v. Watson, 469 F.2d 362 , 364—65 (5th Cir. 1972).” (Government Brief at 4.) There is neither procedural nor substantive merit to the government’s position.

Dissatisfied with Schofield I, the government petitioned for rehearing, alleging in substance the argument it now repeats:

2. The Court’s opinion is not only without precedent but is also in direct contravention of recent opinions of the Supreme Court, including [Dionisio], [Mara] and Branzburg v. Hayes, 408 U.S. 665 [ 92 S.Ct. 2646 , 33 L.Ed.2d 626 ] (1972). . . .

* * * * * *

3. While it is true that the Supreme Court’s opinions in Mara and Dionisio emphasized the constitutional issues, . . . [the Court] found that such questions could not be properly raised unless the witness were claiming some abuse of the Grand Jury process.

The petition for rehearing was denied. The government did not seek review by the United States Supreme Court. Scho-field I is the law of this circuit.

It was expected that the decision be respected by all — including that department of the Executive Branch of the federal government charged with the enforcement of both statutes and case law in this circuit. I do not deem it procedurally proper for the government to re-litigate the holding of Schofield I. However, such “a second bite” is exactly what the government attempts here, albeit through the transparent device of asserting that the holding of Schofield I was ambiguous and that appellant’s contention, which I have characterized as a precise interpretation, is unwarranted. Nevertheless, I would meet the government’s substantive attack.

Present reliance on United States v. Watson, supra, is misplaced. There the Fifth Circuit held that the government need prove “knowing, intelligent and voluntary” waiver of a defendant’s constitutional rights during police interrogation only by a preponderance of evidence, not beyond a reasonable doubt. Analogizing to Lego v. Twomey, 404 U.S. 477 , 92 S.Ct. 619 , 30 L.Ed.2d 618 (1972), which held that in order to establish the admissibility of a confession the prosecution was constitutionally required to show voluntariness only by a preponderance of the evidence, the court made reference to a Lego footnote. This footnote must not be considered in vacuo; it must be related to the text. The text *970 states: “But we are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond a reasonable doubt.” Ibid, at 488, 92 S.Ct. at 626. The Supreme Court decided to go further, and rejected the argument that it mandate a higher burden of proof in the exercise of the Supreme Court’s supervisory power. By footnote the Supreme Court stated:

It is no more persuasive to impose the stricter standard of proof as an exercise of supervisory power than as a constitutional rule. Cf. Ralph v. Warden [ 438 F.2d 786 (4th Cir. 1970)], clarifying United States v. Inman [ 352 F.2d 954 (4th Cir. 1965)]; Pea v. United States [ 130 U.S.App.D.C. 66 , 397 F.2d 627 (1967)]. Ibid. n.16.

In Watson the Fifth Circuit suggested that where the Supreme Court had declined to adopt a higher burden of proof in the exercise of its supervisory power, the inferior federal courts could not, on the same or related subject matter, impose a higher burden of proof in the exercise of the Court of Appeals’ supervisory power. As I have already noted, supra p. 968, the Supreme Court opinions in Dionisio, supra, and Mara, supra, were confined to the constitutional issue; they did not address the question whether the Court, in the exercise of its supervisory power, would require a preliminary showing for the enforcement of a grand jury subpoena. In the absence of this second step, I would have no necessity to accept or reject the Fifth Circuit’s interpretation. Suffice it to say, I would not read Lego or Watson to suggest that a federal court may not impose, upon the government, requirements not mandated by “constitutional rule.” Neither have I been directed to, nor has my independent research disclosed, a Supreme Court holding that would foreclose such a court-imposed rule of law. Therefore, I would reject the government’s substantive attack.

Deciding a case in the exercise of a court’s supervisory power means little more than ruling on a basis not specifically set forth in the Constitution, or by statute, procedural rule, or precedent. Although generally associated with the imposition of procedural safeguards for proper judicial administration, exercise of the supervisory power of the Supreme Court or of the Court of Appeals is but a legitimate function of a court’s law-making role. Whatever had been the ancient debate over the power of a court to make, as well as interpret, law suggested in Swift v. Tyson, 41 U.S. (16 Pet.) 1 , 10 L.Ed. 865 (1842), that old saw has been laid aside for decades. As recently as Illinois v. City of Milwaukee, 406 U.S. 91, 99 , 92 S.Ct. 1385, 1390 , 31 L.Ed.2d 712 (1972), the Court has emphasized:

“[F]ederal courts have an extensive responsibility of fashioning rules of substantive law . . . . These rules are as fully ‘laws’ of the United States as if they had been enacted by Congress.”

In the context of federal courts, the expression “exercise of its supervisory authority” had its genesis in McNabb v. United States, 318 U.S. 332, 340-341 , 63 S.Ct. 608, 613 , 87 L.Ed. 819 (1943), wherein Mr. Justice Frankfurter explained that in the review of direct criminal appeals, the Supreme Court was not limited to a consideration of constitutional rules:

For, while the power of this Court to undo convictions in state courts is limited to the enforcement of those “fundamental principles of liberty and justice,” Hebert v. Louisiana, 272 U.S. 312, 316 [, 47 S.Ct. 103, 104 , 71 L.Ed. 270 ], which are secured by the Fourteenth Amendment, the scope of our reviewing power over convictions brought here from the federal courts is not confined to ascertainment of Constitutional validity. Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence. .

The principles governing the admissibility of evidence in federal criminal *971 trials have not been restricted to those derived solely from the Constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts, see Nardone v. United States, 308 U.S. 338, 341-342 , 60 S.Ct. 266, 267, 268 , 84 L.Ed. 307 , this Court has, from the very beginning of its history, formulated rules of evidence to be applied in federal criminal prosecutions. And in formulating such rules of evidence for federal criminal trials the Court has been guided by considerations of justice not limited to the strict canons of evidentiary relevance.

Three years later the Court was to say in Fay v. New York, 332 U.S. 261, 287 , 67 S.Ct. 1613, 1627 , 91 L.Ed. 2043 (1947):

Over federal proceedings we may exert a supervisory power with greater freedom to reflect our notions of good policy than we may constitutionally exert over proceedings in state courts, and these expressions of policy are not necessarily embodied in the concept of due process.

In La Buy v. Howes Leather Co., 352 U.S. 249, 259-260 , 77 S.Ct. 309, 315 , 1 L.Ed.2d 290 (1957), Mr. Justice Clark stated flatly:

We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system.

Bartone v. United States, 375 U.S. 52, 54 , 84 S.Ct. 21, 23 , 11 L.Ed.2d 11 (1963) (per curiam), emphasized that “the Courts of Appeals and this Court (McNabb v. United States, 318 U.S. 332 [ 63 S.Ct. 608 , 87 L.Ed. 819 ],) have broad powers of supervision” over federal proceedings.

The Court of Appeals for the Third Circuit has not been hesitant in expressing what would best further the administration of criminal justice in the exercise of our supervisory authority. And in each case we imposed requirements not mandated by Constitutional rule. United States v. Schiavo, 504 F.2d 1, 7 (3d Cir. 1974) (in banc), cert. denied sub nom., Ditter v. Philadelphia Newspapers, Inc., - U.S. -, 95 S.Ct. 690 , 42 L.Ed.2d 688 (1974); United States v. Crutchley, 502 F.2d 1195, 1200 (3d Cir. 1974); United States v. Barber, 442 F.2d 517 (3d Cir.), cert. denied, 404 U.S. 958 , 92 S.Ct. 327 , 30 L.Ed.2d 275 (1971); Government of Virgin Islands v. Bodle, 427 F.2d 532, 534 (3d Cir. 1970); United States v. Fioravanti, 412 F.2d 407, 419-420 (3d Cir.), cert. denied sub nom., Panaccione v. United States, 396 U.S. 837 , 90 S.Ct. 97 , 24 L.Ed.2d 88 (1969); Government of Virgin Islands v. Lovell, 378 F.2d 799, 805 (3d Cir. 1967); cf. United States ex rel. Sturdivant v. New Jersey, 289 F.2d 846, 848 (3d Cir.), cert. denied, 368 U.S. 864 , 82 S.Ct. 109 , 7 L.Ed.2d 61 (1961). For an anthology of cases relating to the supervisory power of federal courts of appeals see Burton v. United States, 483 F.2d 1182, 1187-1188 (9th Cir. 1973), quoted at length in United States v. Bailey, 480 F.2d 518, 520 (5th Cir. 1973) (Goldberg, J., concurring and dissenting).

While Judge Weis and I have expressed concern about promulgating procedures that possess retrospective force and effect in the exercise of our supervisory power, see United States v. Schiavo, supra, dissenting opinion, no such considerations are present in the instant appeal; the happenings which gave rise to this appeal took place following the effective date of Schofield I. I now turn to these.

III.

The first subpoena, at issue in Scho-field I, was issued in April, 1973, and directed Mrs. Schofield to present herself for photographs, fingerprinting and handwriting or handprinting exemplars. After our court’s decision became final, there was no government effort to enforce the initial subpoena. A second subpoena was issued in January, 1974, requesting that she testify before the *972 grand jury. She did so under a grant of immunity. A third subpoena was issued in July, 1974, again seeking handwriting or handprinting exemplars, photographs, and fingerprints. Appellant filed a motion to quash on the ground that there was no supporting affidavit as required by Schofield I. On July 22 the district court denied this motion, finding that no advance request was made of the appellant to produce the materials. Such a request did follow on July 30; the next day a purported affidavit was submitted. This “affidavit” was not sworn to.

On August 28, appellant filed an answer to the government’s motion to enforce, averring that the government had in its possession both a photograph and a handwriting exemplar. She later moved for additional discovery into the government’s claim of relevance and necessity. On October 16, the district court denied both motions; denying the government’s motion without prejudice.

On October 29, a revised, sworn-to affidavit was filed. On. November 1, the district court ordered appellant to appear before the grand jury on November 12; on November 13, after she refused to comply, a show cause order issued and, following a hearing on that order November 15, the district court held her in civil contempt. This appeal followed; appellant has been released on bail.

Reviewing these detailed proceedings and the opinion of the district court, I am persuaded that the government met two of the three requirements of Scho-field I. By affidavit, the government reported that the grand jury was investigating “possible violations of federal criminal statutes, including 18 U.S.C. §§ 1621 , 1623 [Perjury and False Swearing before a Grand Jury]. Jacqueline Schofield has been subpoenaed by the said Grand Jury and has been fully advised that she is a potential defendant in its investigation.” Thus, the government demonstrated: (1) the items are relevant to a grand jury investigation and (2) the investigation was properly within the grand jury’s jurisdiction.

The government further averred that the items “will be used solely as a standard of comparison to determine whether or not the witness uttered any forged, falsely made, altered or counterfeited checks.” It was on this averment that the district court reasoned that the third requirement of Schofield I was met: “Thus, the affidavit affirmatively shows that the material ‘is not sought primarily for another purpose.’ ”

Judge Hunter describes the court’s action as a proper exercise of discretion, and would affirm. My difficulty is not in evaluating an exercise of discretion. My problem is more fundamental. I find no exercise of discretion in the most crucial aspect of the proceedings before the district court. There is not one word in the district court’s opinion indicating that it treated appellant’s specific con- ' tentions that the government was in possession of both her photograph and her handwriting in the form of a letter. Paragraphs 2(d) and (e) of Answer of Jacqueline Schofield, Witness, to Motion to Enforce Grand Jury Subpoena. These averments required the district court to proceed as more particularly set forth in Schofield I:

If after such disclosure [of the affidavit] the witness makes application to the district court for additional discovery in the enforcement proceeding the court must in deciding that request weigh the quite limited scope of an inquiry into abuse of the subpoena process, and the potential for delay, against any need for additional information which might cast doubt upon the accuracy of the Government’s representations.

486 F.2d at 93 . Because this was neither pursued nor adjudicated, I would require the district court to exercise its discretion. I would vacate the judgment of civil contempt and remand the proceedings for this limited purpose.