Petition — Consumer Credit Insurance Agency, Inc. v. United States

Supreme Court brief1980

Ask Donna

What actually matters in this document.

Text

me .

—— - 7 ————

IN THE

Supreme Court of the United States

OcToBER TERM, 1979

Case No. 9 is 6 93

CONSUMER CREDIT INSURANCE AGENCY, INC., et al.,

Petitioners,

—_—Vi—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BERNARD A. BERKMAN

BERKMAN, GORDON, KANCELBAUM,

LEVY and Murray

2121 The Illuminating Building

55 Public Square

Cleveland, Ohio 44113

(216) 781-5245

Attorney for Petitioners

Of Counsel:

J. MICHAEL MuRRAY

TABLE OF CONTENTS

ee iii

I ee ae oe ek

SE TES. ne a rr

Constitutional and Statutory Provisions Involved .... 3

Statement of the Case.......................... 4

Reasons for Granting the Writ

I. AN IMPORTANT QUESTION IS PRESENTED AS TO

WHETHER THE FourRTH AMENDMENT Is

VIOLATED WHEN, IN ORDER TO Bypass THAT

PROVISION’S PROBABLE CAUSE REQUIREMENT,

THE GOVERNMENT IssuES ForRTHWITH GRAND

JURY SUBPOENAS Duces TECUM AND EMPLOYS

AS MANY AS Five F.B.I. AGENTS AND ONE

SPECIAL ATTORNEY OF THE DEPARTMENT OF

JUSTICE TO COERCE IMMEDIATE COMPLIANCE

WITH THE COMMANDS OF THE SUBPOENAS IN

ORDER TO OBTAIN ALL OF THE BOOKS AND

RECORDS OF THE PETITIONERS’ FIVE INSURANCE

COMPANIES COVERING A THIRTY-THREE MONTH

ee Ee a ce ae 15

Il.

IV.

PAGE

AN IMPORTANT QUESTION IS PRESENTED AS TO

WHETHER THE RULE OF BUMPER v. NorTH

CAROLINA, 391 U.S. 543 (1968), TuaT A

SEARCH AND SEIZURE May Nor Be JUSTIFIED

ON THE BASIS OF CONSENT, IS APPLICABLE

WHEN THE SEIZURE IS ACCOMPLISHED UNDER

THE CLAIMED AUTHORITY OF ForTHWITH GRAND

JURY SUBPOENAS Duces TECUM............

THIs CASE PRESENTS THE CourT WITH AN

IMPORTANT OPPORTUNITY TO GIVE MEANINGFUL

GUIDANCE TO THE LOWER COURTS OF THE

NATION CONCERNING THE KIND OF ANALYSIS

REQUIRED AND THE WEIGHT 1T0 BE GIVEN

VARIOUS FACTORS IN THE APPLICATION OF THE

TOTALITY OF THE CIRCUMSTANCES TEST FOR

CONSENT TO A SEARCH AND SEIZURE ENUN.

CIATED BY THIS CourT Six YeEarS AGO IN

SCHNECKLOTH v. BUSTAMONTE, 412 US. 218

Gee WYN am SSW rage Fale ork

AN IMPORTANT QUESTION IS PRESENTED AS TO

WHETHER FORTHWITH GRAND JURY SUBPOENAS

Ducres TECUM COMMANDING THE PRODUCTION

OF ALL OF THE BOOKS AND RECORDS OF THE

PETITIONERS’ FIVE INSURANCE COMPANIES FOR A

THIRTY-THREE MONTH PERIOD ENDING ON THE

Day IMMEDIATELY PRECEDING THE DATE OF

SERVICE ARE UNREASONABLE, OVERBROAD AND

VIOLATIVE OF THE FOURTH AMENDMENT ......

iii

PAGE

V. AN IMPORTANT QUESTION IS PRESENTED AS TO

WHETHER THE PERSON UPON WHOSE INFORMA.

TION THE FEDERAL AGENTS RELIED TO OBTAIN

A SEARCH WARRANT AND TO MAKE THE SUB.

POENAS RETURNABLE FORTHWITH AND WHOSE

IDENTITY Was KNOWN BY PETITIONERS SHOULD

HAVE BEEN PRODUCED 10 TESTIFY, AS PETI.

TOON TAINO. og 5 vv vv ckvicccccnnnn. 35

ere eee eos res ty jae 4.37

Appendix

Order of the Sixth Circuit Denying Rehearing .... la

Judgment and Opinion of the Sixth Circuit ...... 2a

Opinion and Order of the District Court......... 22a

Order of the District Court.................... 34a

TABLE OF AUTHORITIES

Cases:

Amos v. United States, 255 U.S. 313 >} a 21, 26

Boyd v. United States, 116 U.S. 616 Ds okwia 32

Brown v. United States, 276 U.S. 134 (1986)....... 32

Bumper v. North Carolina, 391 U.S. 543 (1968)... . 2, 21,

23, 24, 25, 26

DiBella v. United States, 369 U.S. 121 fi Re 15

Goodman v. United States, 369 F. 2d 166 (9th Cir.

WE CE 0 a BURKE TE ee 16

PAGE

Gordon v. United States, 438 F. 2d 858 (5th Cir.

1971), cert. denied, 404 U.S. 828 (1971)......... 36

Gouled v. United States, 255 U.S. 298 | 19

Hale v. Henkel, 201 U.S. 43 (1906).............. 32, 34

In re Grand Jury Subpoena Duces Tecum Addressed

to Paul Paczolt, No. C76-998 (N.D. Ohio 1976).... 32

In re Nwamu, 421 F. Supp. 1361 (S.D.N.Y. 1976)... 19

Johnson v. United States, 333 U.S. 10 (1948) ...... 23

Mancusi v. DeForte, 392 U.S. 364 ae 19

Oklahoma Press Publishing Co. v. Walling, 327 US.

196 (396@. ... 5.235. ee eee 32, 33

Richey v. Smith, 515 F. 2d 1239 (5th Cir. 1975).... 16

Rovario v. United States, 363 U.S. 53 - S 36

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ...3, 24,

25, 26, 30

Silverthorne Lumber Co. v. United States, 251 USS.

365 (2080)... ea eee 19

United States v. Day, 384 F. 2d 464 (8rd Cir. 1967) 36

United States v. Dionisio, 410 U.S. 1 ty a 23

United States v. Gomez-Rojas, 507 F. 2d 1213 (5th

Cir. 1975), cert. denied, 423 U.S. 826 (3976)... .. 36

United States v. Gurule, 437 F. 2d 239 (10th Cir.

1970), cert. denied sub nom. Baker v. United

States, 408 US. 004 GOT... ae 33

PAGE

United States v. Hearn, 496 F. 2d 236 (6th Cir.

1974), cert. denied, 419 U.S. 1048 (1974)...... oe

United States v. Long, 533 F. 2d 505 (9th Cir. 1976) 36

United States v. Matlock, 415 U.S. 164 | Se 30

United States v. Schwimmer, 232-F. 2d 855 (8th Cir.

1956), cert. denied, 352 U.S. 833 (1956)......... 33

United States v. Watson, 423 U.S. 411 (1976)...... 30

Vonderale v. Howland, 508 F. 2d 364 (9th Cir. 1975) 16

Constitutional Provisions:

oe es nS ee eae passim

IN THE

Supreme Court of the United States

OcToBER TERM, 1979

Case No.

CONSUMER CREDIT INSURANCE AGENCY, INC., et al.,

Petitioners,

_—V—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Consumer Credit Insurance Agency, Inc.; Consumer

Fidelity Insurance Agency, Inc.; Consumer Credit In-

surance Agency, Inc., d.b.a. Lee Hoffman and Associates;

Thomas A. Mills and Associates, Inc.; and American Inter-

national Assurance Co., Ltd., petitioners, respectfully pray

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Sixth Circuit

entered in this case. That judgment affirmed the judg-

ment and order of the United States District Court for

the Northern District of Ohio, Eastern Division, overrul-

ing petitioners’ motion, brought under Federal Rule of

Criminal Procedure 41, for return of property seized by

federal agents on September 10, 1976.

Opinions Below

The opinion of the United States Court of Appeals for

the Sixth Circuit, reported at 599 F.2d 770 (6th Cir.

1979), is set forth in the Appendix, infra, pp. 2a-21a. The

unreported opinion of the District Court is set forth in

the Appendix, infra, pp. 22a-33a.

Jurisdiction

The opinion of the Court of Appeals was filed on June

13, 1979. Appendix, infra, p. 2a. The Court of Appeals

denied the petitioners’ motion for rehearing on August 8,

1979. Appendix, infra, p. 1a.

This petition seeks review of the judgment of a United

States Court of Appeals in a civil case. This Court has

jurisdiction to grant this petition under 28 U.S.C.

§ 1254(1).

Questions Presented For Review

1. Is the Fourth Amendment violated when, in order to

bypass that provision’s probable cause requirement, the

government issues forthwith grand jury subpoenas duces

tecum and employs as many as five F.B.I. agents and one

Special Attorney of the Department of Justice to coerce

immediate compliance with the commands of the sub-

poenas in order to obtain all of the books and records of

five insurance companies, the petitioners herein, covering

a thirty-three month period?

2. Is the rule of Bumper v. North Carolina, 391 US.

543 (1968), that a search and seizure under the claimed

authority of a warrant may not be justified on the basis

of consent applicable when the seizure is accomplished

OME ane tia ie thts pian, we

under the claimed authority of forthwith grand jury sub-

poenas duces tecum?

3. Did the courts below correctly apply the totality of

the circumstances test for consent to a search and seizure

enunciated in Schneckloth v. Bustamonte, 412 U.S. 218

(1973), in concluding that the petitioners had voluntarily

consented to the seizure of their business records?

4. Are forthwith grand jury subpoenas duces tecum

which command the production of all of the books and

records of five insurance companies, the petitioners

herein, for a thirty-three month period ending just prior

to the date of service unreasonable, overbroad and

violative of the Fourth Amendment?

5. Where the petitioners knew the identity of the per-

son upon whose information the federal agents relied to

obtain a search warrant for a firearm and to issue forth-

with subpoenas but were unable to subpoena her because

she was a participant in the government’s witness protec-

tion program, did the district court err in overruling the

petitioners’ motion to require that she be produced to

testify on matters central to the issues being contested?

Constitutional and Statutory Provisions Involved

United States Constitution, Amendment IV:

“The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be

seized.”

Federal Rule of Criminal Procedure 41(e) (pertinent por-

tion):

“A person aggrieved by an unlawful search and

seizure may move the district court for the

district in which the property was seized for the

return of the property on the ground that he is

entitled to lawful possession of the property

which was illegally seized. . . .”

Statement of the Case

A. Procedural History

On September 16, 1976, the petitioners filed a motion

in the United States District Court for the Northern

District of Ohio, pursuant to Federal Rule of Criminal

Procedure 41(e), solely for the return of a huge quantity

of business documents which, they asserted, had been

unlawfully seized six days earlier by federal agents acting

under color of three “forthwith” grand jury subpoenas

duces tecum and a search warrant. A hearing on the peti-

tioners’ motion began on September 23, 1976 and on Oc-

tober 5, 1976 the district court entered an order overrul-

ing the motion for return on the ground that the peti-

tioners had consented to the seizure. Recognizing that the

petitioners’ businesses would be substantially impeded

without the subpoenaed documents, however, the district

court ordered the government to return the originals to

the petitioners after the government had an opportunity

to make copies of the records. In an effort to secure

return of the copies made by the government of their

records, the petitioners appealed the district court’s order

overruling their motion for return of property to the

United States Court of Appeals for the Sixth Circuit.

That court, by a vote of 2-1, affirmed the district court’s

decision, even though the majority stated that it did not

condone the procedure employed by the government to

obtain the petitioners’ records.’ Judge Weick wrote a

blistering dissent in which he concluded that the method

- utilized by the government to secure the records was “an

unlawful practice” which “should be stopped in its tracks

by the Court.” Appendix, infra, at 21a.

Although the government has had copies of the peti-

tioners’ business records for well over three years now, no

criminal proceeding has to this date ever been instituted

against anyone as a result of the government’s investiga-

tion in this matter.

B. Facts?

Shortly before 9:30 a.m. on the morning of September

10, 1976, Special F.B.I. Agent Terry Lyons, along with

two other F.B.I. agents, arrived by automobile at 514

Prospect Avenue in Cleveland, Ohio. They parked in front

of the building at that location and waited there in an-

ticipation of gaining entrance to the fifth-floor offices oc-

cupied by the five insurance companies who are the peti-

tioners here. (Tr. 10, 32, 27, 133, 134.)

‘The building occupied by the petitioners was equipped

with a locked security system. In order to reach the fifth

floor, it was necessary to place a call to someone on that

‘See Appendix, infra at Ya.

7 Since, as to those factual issues upon which there was con-

flicting testimony, the district court elected “to assign greater

credibility and weight to the Government’s witnesses than to

plaintiffs (See Appendix, infra at 31a), the recitation of facts

set forth herein is based primarily upon the direct and cross-

examination of the government’s witnesses.

floor from a telephone located between the inner and

outer doors located at the main entrance to the building.

The inner front door of the building would be opened

automatically from the fifth floor, and an elevator would

be sent down to the first floor to pick up the caller. (Tr.

12-13).

At approximately 9:40 a.m., Allan Wachs, one of the

custodians of petitioners’ records upon whom a subpoena

was to be served, arrived in front of the building and

was immediately approached by Lyons and the other two

F.B.I. agents. ‘Lyons informed Wachs that they were there

on official business. (Tr. 38). Wachs, accordingly, escorted

them to the fifth-floor offices of the petitioners so that

they could talk indoors rather than outside on the

sidewalk. (Tr. 37-38).

Upon reaching the fifth floor, the agents and Wachs

proceeded to Wachs’ office where Wachs was served with

the first of three “forthwith” grand jury subpoenas duces

tecum which the agents intended to serve that morning.

(Tr. 13, 15). Each of the three subpoenas, which were

substantively identical, was addressed to a custodian of

petitioners’ business records, and commanded him to ap-

pear forthwith before the grand jury and to bring with

him all of the business records, without limitation, ac-

cumulated between January 1, 1974 and September 9,

1976 (the day prior to the date upon which service was

effected) by the five insurance companies who are the

petitioners here. The three subpoenas were directed to

Allan M. Wachs, Thomas Bosse and Gennaro Orrico,

respectively, as custodians of records.’

*The subpoenas commanded the immediate production of the

following documents:

“ali books and records of Consumer Credit Insurance Agency,

Inc., Consumer Fidelity Insurance Agency, Inc., Lee Hoffman

Immediately after Wachs read the subpoena that had

been served upon him, Agent Lyons presented him with a

search warrant which authorized a search for and seizure

of a firearm allegedly located in “{tJhe top right hand

desk drawer” of the desk used by Gennaro Orrico. At

about this time, Thomas Bosse arrived on the premises

and, upon his arrival, he too was served with a forthwith

subpoena. (Tr. 15-11). Agent Lyons told Bosse, as he had

also told Wachs, that the subpoenas required them to pro-

duce the business records “right away.” (Tr. 49).

After examining the subpoena and the search warrant,

which was shown to him, Bosse stated that he wanted to

telephone his attorney. (Tr. 17). Bosse then left the room

and went to his office to make that call. (Tr. 17). One of

the F.B.I. agents followed Bosse and positioned himself in

the doorway of Bosse’s office. (Tr. 42).

In the meantime, the other federal agents, accompanied

by Wachs, went to Orrico’s office to execute the search

warrant. (Tr. 17). It turned out that the “firearm” iden-

tified in the search warrant was not a firearm at all but

was, in fact, a toy pistol used as a paperweight. (Tr.

184).*

and Associates, Thomas A. Mills and Associates, Inc., and

American International Assurance Co., Ltd. for the period

from January 1, 1974 to September 9, 1976 said records to

include, but not be limited to, corporate minute book(s), cor-

respondence, memoranda, books of account including all jour-

nals and ledgers, bank statements, cancelled checks, check

stubs, savings account books, records of all insurance policies

written, computer printouts, all agreements, contracts,

treaties, or understandings with any insurance companies and

any agreements, contracts, treaties or understandings with

any automobile, trailer, boat, or mobile home dealers.”

‘The affidavit for the search warrant, which was signed by

Agent Lyons, was based upon five or six conversations Lyons

had had with an “informant” during a 15-day period. (Tr. 54).

(footnote continued on following page)

At this point, the federal agents apparently had com-

pleted any lawful business they may have had to transact

at the offices of the petitioners. They had executed the

search warrant and served the two subpoenas which could

be served that morning.’ Nevertheless, the three federal

ogents remained on the premises. (Tr. 18, 60-61). Indeed,

they not only remained on the premises, but in fact, they

placed a telephone call to request that Special United

States Attorney Ken Bravo come to the scene. (Tr. 18). A

short time later, Bravo arrived at the petitioners’

premises along with two other F.B.I. agents (Tr. 18). At

that point, a total of five F.B.I. agents and a Special U.S.

Attorney occupied the premises at which the petitioners’

insurance offices were located.

The testimony of Agent Lyons, who was in charge of

the investigation, revealed much about the plan for-

mulated by the government to obtain all of the peti-

tioners’ business records that day. He admitted that the

F.B.I agents and Special Attorney Bravo had considered

seeking a search warrant to obtain the records. (Tr.

57-58). They rejected that possibility, however, because

they knew that they lacked probable cause for the is-

suance of a warrant:

“Q. And my question is, that your reason

would be that you did not go after a search

warrant was that you did not have probable

cause to go before a magistrate?

A. That is the reason” (Tr. 58).

Lyons had no independent information about the informant,

who had never supplied information for any prior investigation.

(Tr. 54).

* Gennaro Orrico, the third person to be subpoenaed, was not

on the premises at that time.

In order to bypass the probable cause requirement, the

federal agents and the Special U.S. Attorney decided that

they would issue a grand jury subpoena for the records:

“Q. So you determined to bypass that require-

ment by issuing a Grand Jury subpoena instead,

is that not correct?

A. I did not make that decision.

Q. But you participated in the discussions in

which that determination was made?

A. Yes.

Q. And that was the reason, was it not?

A. Yes.” (Tr. 58-59).

Even more importantly, they decided to make the grand

jury subpoenas returnable forthwith for the express pur-

pose of bypassing the probable cause requirement of the

Fourth Amendment:

“Q. That is why the Grand Jury subpoena

was a forthwith subpoena, was it not?

A. I would say, yes.” (Tr. 59).°

*On direct examination, Agent Lyons had stated that the

reason for the “forthwith” command of the subpoenas was that

he had received information which led him to believe that a

possibility existed that the records would, otherwise, not reach

the grand jury. (Tr. 31). On cross-examination, it was estab-

lished that the source of this information was the same inform-

ant mentioned in the search warrant affidavit. (Tr. 56). The

informant was a former employee of the petitioners and,

because they were aware of her identity, the petitioners at-

tempted to subpoena her to testify. (Tr. 200-201). However, she

was under the Witness Protection Program of the U.S. Marshal

Service, and, thus, could not be found. (Tr. 223). The peti-

Moreover, under the plan formulated by the federal

agents, it was their intention not merely to serve the sub-

poenas but to gain entrance to the petitioners’ premises

even if force was required. And they arrived at peti-

tioners’ premises prepared to obtain the records, not

merely to effect service of the subpoenas. Agent Lyons

testified as follows:

“Q. So that, armed with the subpoenas duces

tecum and the search warrant it was your clear

intention that whether you met resistance or

not, to gain entry to the premises on that morn-

ing, is that not the case?

A. Yes.

Q. Have you ever had occasion to serve sub-

poenas before?

A. Many times.

Q. How many F.B.I. Agents are necessary, in

your opinion, to serve a subpoena?

A. That would depend on the amount of

records involved, whether they are going to be

turned over immediately, or whether they are

tioners, therefore, moved that the informant be produced so

that they could demonstrate the falsity of the search warrant

affidavit and the government’s claim that a danger existed that

the petitioners’ business records would be destroyed, evidence

which would certainly impeach the credibility of the govern-

ment’s primary witness, Agent Lyons. (Tr. 225-227). The

district court overruled the motion to produce the witness, ap-

parently on the ground that her testimony would be irrelevant.

(Tr. 228). Ironically, the district court’s order overruling peti-

tioners’ motion for return was based, in part, upon the court’s

determination to assign greater credibility and weight to the

government’s witnesses than to the petitioners’.

twSB 05 Cs sae ot

not. A lot of factors are taken into considera-

tion.

Q. Let me back up. I’m talking about taking

service of a subpoena, not the execution of a

warrant, are we clear?

A. Yes.

Q. It takes two or three to make service on a

document?

A. There again it would, you would have to

determine what records are going to be taken.

Q. I'm not talking about obtaining them, sir,

I'm talking about service of a subpoena duces

tecum only.

The Court: He has answered. Let’s not be

repetitious.

Mr. Berkman: I'm sorry.” (Tr. 40-41).

As already noted, after Thomas Bosse was served with

his forthwith subpoena, he stated that he wanted to

telephone an attorney. He attempted to contact Robert

Jackson, the attorney for petitioner Consumer Credit In-

surance Agency, Inc. (Tr. 73, 115). Unable to reach

Jackson, Bosse talked to Steve Kalette, a young attorney

employed at Jackson’s law firm. (Tr. 73, 115). Shortly

thereafter, Kalette, at the direction of Jackson, went to

the premises and spoke with Bosse and Wachs. (Tr. 19).’

" At about this time, Agent Lyons informed two of the F.B.I.

agents that they were no longer needed and could leave. (Tr.

19). Special Attorney Bravo and three F.B.I. Agents remained

on the premises, however, for the rest of the day.

Kalette remained on the premises for the balance of the

day. (Tr. 125).°

Robert Jackson did not arrive until sometime between

10:30 and 10:45 a.m., approximately one hour after the

subpoenas had been served. (Tr. 74). Upon his arrival, he

had conversations with both Bravo and Bosse. (Tr. 163).

Jackson had never had any experience with a forthwith

subpoena before and was generally unfamiliar with the

legal ramifications of what was occurring. (Tr. 164).

Nevertheless, he outlined to Bosse, as best he could, the

three options he believed were available: (1) Bosse could

physically resist the commands of the subpoenas, a course

of action which would probably result in Bosse’s im-

mediate arrest and a contempt of court citation; (2) Bosse

could voluntarily comply with the subpoenas, turn over

the documents and forget the matter; or (3) Bosse could

acquiesce to the legal commands of the subpoenas and

begin the process of turning over the documents while

Jackson returned to his office and attempted to prepare

and file a motion to quash the subpoenas before the

documents had already been released and it was too late.

(Tr. 163-167).

At no time during the course of the day’s events did

any federal agent, Special Attorney Bravo or attorney

Jackson advise Bosse that he had a right to test the

validity of the subpoenas before either complying with

them or subjecting himself to arrest and a contempt cita-

tion. (Tr. 105). Bosse, therefore, decided to acquiesce to

the commands of the subpoenas while Jackson returned

to his office to prepare a motion to quash. (Tr. 166-167).

* Bosse testified that Kalette was not asked for legal advice

but acted solely on the instructions of Jackson. (Tr. 124-125).

Bosse’s instructions to Jackson were to proceed as soon as

Jackson could. (Tr. 167).°

This decision was reached at 11:15 a.m. and, according

to the testimony of Agent Lyons, Bosse and Jackson

asked the federal agents and Special Attorney Bravo to

remain on the premises in order to assist in the collection

of the records. (Tr. 22). Thus, accepting the testimony of

Agent Lyons, federal agents had occupied the petitioners’

offices for an hour and a half after executing the warrant

and serving the subpoenas before anyone “invited” them

to stay.

For the next few hours, Bosse, Wachs and the federal

agents collected the documents identified in the sub-

poenas. At approximately 2:40 p.m., Gennaro Orrico ar-

rived on the scene and was immediately served by Agent

Lyons with the forthwith subpoena duces tecum addressed

to him. Special Attorney Bravo testified that Orrico em-

phatically refused to comply with the subpoena and that

Orrico stated “if you want me to go you're going to have

to take me in handcuffs.” (Tr. 236). Bravo testified that

he told Orrico that the federal agents expected Orrico to

comply with the subpoena and that, if he did not, Bravo

would seek a warrant for Orrico’s arrest. (Tr. 236).

Bravo, according to his own testimony, then told Bosse

the same thing—that they expected Orrico to comply with

the subpoena and that his failure to do so would result in

* Jackson, who left the premises at 11:30 a.m., was unable to

return to his office until 2 o'clock in the afternoon, at which

time he began to research the law and to work on a motion to

quash. Before he could complete his research and drafting,

however, he received a telephone call from Bosse at 3:15 p.m.

informing him that the federal agents had already left with the

records (Tr. 170-171). Thus, Jackson concluded, it was too late

to move to quash the subpoenas. (Tr. 171).

Bravo's seeking a warrant for Orrico’s arrest. (Tr.

237-238). Bravo also, according to his own testimony,

warned Bosse that the issuance of a warrant for Orrico’s

arrest might well result in newspaper publicity that would

have an adverse effect on Bosse’s and Orrico’s insurance

business. (Tr. 238). In view of what Bravo had told him,

Bosse calmed Orrico sufficiently to avoid a confrontation.

(Tr. 132).

Shortly thereafter, an F.B.I. van arrived at the peti-

tioners’ building to transport the records to the grand

jury. (Tr. 25-26). The records, which filled a four-drawer

metal filing cabinet and three cardboard boxes were taken

at about 3:20 p.m. from the premises and delivered to

the grand jury by federal agents. (Tr. 25, 28, 133).'°

Six days later the petitioners filed their motion for

return of property in the United States District Court for

the Northern District of Ohio, claiming that their busi-

ness records had been unlawfully seized by the federal

agents. After hearing, the district court overruled the mo-

tion for return on the ground that the petitioners had

consented to the seizure. That decision was affirmed by a

divided Court of Appeals for the Sixth Circuit. The peti-

tioners now ask this Court to review the decisions below.

' Bosse testified that the daily operation of the petitioners’

wae business was impossible without the records. (Tr.

134).

Reasons For Granting the Writ

AN IMPORTANT QUESTION IS PRESENTED AS TO

WHETHER THE FOURTH AMENDMENT IS VIOLATED

WHEN, IN ORDER TO BYPASS THAT PROVISION’S PROB-

ABLE CAUSE REQUIREMENT, THE GOVERNMENT ISSUES

FORTHWITH GRAND JURY SUBPOENAS DUCES TECUM

AND EMPLOYS AS MANY AS FIVE F.B.I. AGENTS AND

ONE SPECIAL ATTORNEY OF THE DEPARTMENT OF

JUSTICE TO COERCE IMMEDIATE COMPLIANCE WITH

THE COMMANDS OF THE SUBPOENAS IN ORDER TO OB-

TAIN ALL OF THE BOOKS AND RECORDS OF THE PETI-

TIONERS’ FIVE INSURANCE COMPANIES COVERING A

THIRTY-THREE MONTH PERIOD.

The decision of the Court of Appeals in this case raises

important and far-reaching questions concerning the effec-

tiveness of the Fourth Amendment to thwart carefully

conceived and executed schemes created by federal agents

to sidestep that Amendment’s guarantees. The decision of

the Sixth Circuit represents a disturbing invitation to

federal agents and prosecutors to abuse the power of the

grand jury by issuing, in its name, and coercing im-

mediate compliance with, broad forthwith subpoenas duces

tecum employed as substitutes for search warrants."

“The majority below expressed reservations about its

jurisdiction in this case because the district court ordered the

originals of petitioners’ records returned and the petitioners

were, therefore, seeking return of the copies of their records

made by the government. However, the court clearly had

jurisdiction. The petitioners’ motion has always been solely for

the return of property and no indictment or other criminal

charge has ever been brought as a result of the government’s

investigation in this matter. Jurisdiction plainly lies under this

Court’s decision in DiBella v. United States, 369 US. 121

(1962). The rule is no different merely because the petitioners

seek return of the copies made of their records by the govern-

EE EO ee Tee

The record in this case makes it abundantly clear that

the single-minded goal of the federal agents who occupied

the petitioners’ premises for several hours on September

10, 1976 was to obtain thousands of business records

maintained by the petitioners. They were not there

merely to effect service of subpoenas.

Indeed, the purpose of their mission was clear from the

outset, when a total of three F.BI. agents appeared out-

side the petitioners’ building for the purpose of serving

three subpoenas and executing a search warrant which av-

thorized the search of a single desk drawer and the

seizure of a single object. Obviously Agent Lyons did not

need the assistance of two additional F.B.I. agents to

search a single desk drawer and to seize a single object.

Nor did he need their help to serve three subpoenas. All

of that could have been accomplished in five minutes by

Agent Lyons alone. The only purpose served by the ap-

pearance at the petitioners’ premises of three agents of

the F.B.I. was to secure the thousands of records iden-

tified in the subpoenas and to intimidate the petitioners’

custodians by their number and by their claim of lawful

authority. Indeed, Agent Lyons admitted as much when,

in response to a question as to how may agents are need-

ed to serve a subpoena, he responded, “there again it

would, you would have to determine what records are go-

ing to be taken”. (Tr. 41) (Emphasis added).

ment. The property of the petitioners seized by the government

did not consist merely of the actual pieces of paper taken; the

valuable property seized was the information recorded on the

paper and the government still has that property. While there

are decisions to the contrary, several courts have held that

copies of seized documents are appropriate subjects of motions

for return of property. See Goodman v. United States, 369 F.2d

166 (9th Cir. 1966); Vonderale v. Howland, 508 F.2d 364 (9th

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

The purpose served by obtaining the search warrant for

the “firearm” was apparent, as well. The petitioners’ of-

fices were located on the fifth floor of a building and, in

order to reach those offices, it was necessary to proceed

through a security system. In order to carry out their

plan to obtain the petitioners’ records, it was essential for

the federal agents to gain access to the petitioners’ of-

fices. Once on the petitioners’ premises, the agents could

then apply whatever pressure and coercion was necessary

to cause the petitioners to part with their business

records. Armed with the warrant for the “firearm”, the

agents were assured of gaining access to the petitioners’

offices, whether the agents met resistance or not. Indeed,

Agent Lyons admitted that they intended to invade the

petitioners’ premises on the morning of September 10,

1976 regardless of the resistance they may have en-

countered. (Tr. 40).

The conduct of the federal agents after gaining en-

trance to the petitioners’ offices also amply demonstrated

their intention to employ the forthwith subpoenas as sub-

stitutes for a search warrant. Within minutes after their

entry into petitioners’ offices, Agent Lyons had executed

the search warrant and had served the only two sub-

poenas which could be served. At that point, the three

F.B.I. agents had completed any lawful business they may

have had to transact. They had no right to remain on the

premises and should have left immediately. Instead, they

emphatically warned the petitioners’ custodians that

“forthwith” meant immediately and they remained to

coerce compliance with the subpoenas.

Indeed, in order to apply greater pressure on the peti-

tioners, Agent Lyons telephoned to request that Special

Attorney Bravo appear at petitioners’ premises. A short

time later, Bravo arrived with two more F.B.I. agents.

They had no right whatsoever to enter or remain on the

petitioners’ premises. Certainly Bravo, a Special Attorney,

knew that there was no authority whatsoever for their

entrance onto the premises and that they had no lawful

purpose for remaining on the premises, whether they

were asked to leave or not.’? The only conceivable purpose

for their presence was to exert whatever pressure they

could to coerce compliance with the “forthwith” subpoenas

and, thereby, obtain the records.

This is further demonstrated by Bravo’s reaction to the

resistance he met when Orrico appeared on the scene and

was served with his “forthwith” subpoena. When Orrico

refused to comply with the subpoena, Bravo told him that

the federal agents expected him to turn over the records

and threatened him with arrest if he failed to do so.

Bravo told Bosse the same thing and further warned

Bosse that adverse newspaper publicity would result in

the event Orrico was arrested.

Furthermore, Agent Lyons admitted that the forthwith

subpoenas were used as substitutes for a search warrant.

He admitted that they had considered seeking a search

warrant to obtain the records, but had rejected that idea

because they knew that they lacked probable cause. (Tr.

58). Lyons stated that they decided to use the power of

the grand jury, by issuing subpoenas, for the specific pur-

pose of “bypassing” the probable cause requirement of the

Fourth Amendment. (Tr. 59). And, most importantly, that

was the reason that they decided to make the subpoenas

returnable “forthwith’—in order to bypass the probable

cause requirement of the Fourth Amendment. (Tr. 59).

‘* Even accepting the testimony of Agent Lyons it was not

until 11:15 a.m., long after the arrival of Bravo, that anyone

asked the federal agents to stay. (Tr. 22).

2 SS a

Thus, by issuing grand jury subpoenas for the records,

by making the subpoenas returnable forthwith, by secur-

ing a narrow warrant for a “firearm” to insure that they

could gain entrance to petitioners’ offices and by employ-

ing numerous agents to coerce immediate compliance with

the subpoenas, the federal agents were able to accomplish

indirectly that which they could not accomplish directly—

seizure of the petitioners’ business records without a war-

rant and without probable cause. See Silverthorne Lumber

Co. v. United States, 251 U.S. 385 (1920); Gouled v.

United States, 255 U.S. 298 (1921); Mancusi v. De Forte,

392 U.S. 364 (1968). And both courts below countenanced

this end-run around the Fourth Amendment.

By way of contrast, the United States District Court

for the Southern District of New York condemned a

similar episode as an unlawful seizure in In re Nwamu,

421 F. Supp. 1361 (S.D.N.Y. 1976). In that case, federal

agents appeared at the movant’s offices on two con-

secutive days armed with “forthwith” grand jury sub-

poenas duces tecum. On the first day, the subpoena was

addressed to une of the movant’s corporate officers and

required the production of certain files and other

documents. The agent who served the subpoenas informed

movant’s officer that the records had to be produced im-

mediately and a failure to do so would result in a con-

tempt of court citation. The agent told movant’s officer

that he would take the documents in lieu of the officer’s

appearance before the grand jury and the officer sur-

rendered the documents. The next morning, three other

agents appeared at movant’s offices under color of three

grand jury subpoenas, two of which were returnable

“forthwith” and commanded the production of a file and

certain typewriter balls. These items were surrendered to

the agents. Subsequently, a motion for return of property

and to quash the subpoenas was filed and granted. The

court analyzed the use by federal agents of the forthwith

subpoenas as follows:

“The subpoena was not a warrant. It gave the

agents no authority to arrest or otherwise com-

pel the movants’ employees either to accompany

them to the offices of the FBI or to the grand

jury. Nor did it authorize the agents to seize

subpoenaed items, nor to get and take me items

with them if the employees chose to ride the

subway’. Such courses of action required a war-

rant, issued by an objective magistrate, based on

a showing of probable cause. Lacking either type

of warrant, the agents derived no authority

from the ‘forthwith’ subpoena to ‘execute’ the

subpoena by demanding that the employees

either accompany them to the grand jury imme-

diately or hand over the subpoenaed items un-

less they did.” Jd., at 421 F. Supp. 1365.

The decision of the court below presents an important

issue as to whether the warrant requirements of the

Fourth Amendment can be avoided by the use and en-

forcement of forthwith grand jury subpoenas duces tecum

to obtain thousands of business records. As Judge Weick

aptly put it in his dissent below:

“The majority opinion permits the FBI to ef-

fect an unlawful search and seizure of all the

books and records of the plaintiff corporations

for a period covering the thirty-three months

immediately preceding the seizure, by using as

many as five FBI Agents and one Special At-

torney of the Department of Justice to coerce

immediate compliance with overbroad, unlawful

forthwith grand jury subpoenas duces tecum. It

constituted a gross abuse of the Grand Jury

process.” See Appendix, infra at p. 10a.

The petitioners respectfully urge the Court to grant the

writ of certiorari in order to consider this important

issue.

AN IMPORTANT QUESTION IS PRESENTED AS TO

WHETHER THE RULE OF BUMPER v. NORTH CAROLINA,

* 391 U.S. 543 (1968), THAT A SEARCH AND SEIZURE

UNDER THE CLAIMED AUTHORITY OF A WARRANT

MAY NOT BE JUSTIFIED ON THE BASIS OF CONSENT, IS

APPLICABLE WHEN THE SEIZURE IS ACCOMPLISHED

UNDER THE CLAIMED AUTHORITY OF FORTHWITH

GRAND JURY SUBPOENAS DUCES TECUM.

Both the district court and the court of appeals re-

jected the petitioners’ claim of unlawful seizure in this

case on the ground that petitioners’ custodians had volun-

tarily consented to the delivery of all of their records to

the government. In both courts, the petitioners argued,

inter alia, that the question of consent in this case was

controlled by this Court’s decision in Bumper v. North

Carolina, 391° U.S. 543 (1968), which, the petitioners

argued, compelled a finding that the petitioners’ ac-

quiescence to the claimed authority of the forthwith sub-

poenas did not constitute consent. This argument was re-

jected, however. Petitioners submit that an important

quéstion is presented by the refusal of the courts below

to apply the rationale of Bumper to the present case.

In Bumper, this Court carefully stated the issue as

follows: “whether a search can be justified as lawful on

the basis of consent when that ‘consent’ has been given

only after the official conducting the search has asserted

that he possesses a warrant.” Id., at 391 U.S. 548 (foot-

note omitted). This Court held that “there can be no con-

sent under such circumstances.” Jd., at 391 U.S. 548-550.

The Court reasoned as follows:

“When a prosecutor seeks to rely upon con-

sent to justify the lawfulness of a search, he has

the burden of proving that the consent was, in

fact, freely and voluntarily given. This burden

cannot be discharged by showing no more than

acquiescence to a claim of lawful authority. A

search conducted in reliance upon a warrant can-

not later be justified on the basis of consent if

it turns out that the warrant was invalid. The

result can be no different when it turns out that

the State does not even attempt to rely upon

the validity of the warrant, or fails to show that

there was, in fact, any warrant at all.

“When a law enforcement officer claims

authority to search a home under a warrant, he

announces in effect that the occupant has no

right to resist the search. The situation is in-

stinct with coercion—albeit colorably lawful coer-

cion. Where there is coercion there cannot be

consent.” (footnotes omitted).

In the present case, three federal agents entered the

petitioners’ offices under color of legal process in the

form of a warrant for a “firearm” and three forthwith

subpoenas commanding the immediate production of

thousands of business records. The agents, who by their

own admission issued the subpoenas as substitutes for a

search warrant, emphatically stated to petitioners’ custo-

dians that those legal documents required the immediate

production of the petitioners’ business records. The

agents, joined by a Special United States Attorney, re-

mained on the premises to enforce compliance with the

forthwith command of the subpoenas and, when they met

resistance, threatened the petitioners’ custodians with ar-

rest and adverse media publicity. “The situation [was] in-

stinct with coercion . . . And {wJhere there is coercion,

there cannot be consent.’” Id. See also, Johnson v. United

States, 333 U.S. 10 (1948); Amos v. United States, 255

U.S. 313 (1921).

In Bumper, of course, the police officers claimed the

authority of a warrant to conduct a search. In the pres-

ent case, federal agents acted under the claimed authority

of forthwith subpoenas. The district court found this fac-

tual distinction sufficient to render the principles an-

nounced in Bumper inapplicable to the case at bar on the

ground that “. . . the coercion inherent in a search war-

rant is far greater than that existent in a subpoena duces

tecum.” See Appendix, infra at 33a.

The district court’s analysis ignored the crucial fact

that the subpoenas employed in this case were by no

means ordinary grand jury subpoenas duces tecum. Or-

dinarily, a subpoena duces tecum is served by a United

States marshal, who delivers the document in the same

manner as other legal process and then departs. It usually

is returnable at some later date which gives the party

subpoenaed ample time to make an informed and unco-

erced decision as to whether to comply voluntarily with

the subpoena or to seek the intervention of a court to

protect any rights which may be infringed by the sub-

poena’s command. See United States v. Dionisio, 410 U.S.

1, 10 (1973).

of contrast, the subpoenas employed in the

Pu: Bey were returnable “forthwith”. They Wie

served by three agents of the F.B.I., who were also arm

with a search warrant and who warned the petitioners

custodians that the subpoenas required them to produce

thousands of documents immediately. And ——

with the subpoenas was coerced by as many as five a

agents and a Special U.S. Attorney, who threatened :

petitioners’ custodians with arrest and adverse ergy

they failed to comply with the subpoenas. In short, e

effect of the forthwith subpoenas in this case was no -

coercive than was the effect of the search warrant for the

“firearm.” In each case, the petitioners acquiesced to the

claim of lawful authority. The courts below should,

therefore, have applied this Court’s decision in Bumper to

conclude that the seizure of petitioners’ records in reliance

upon the forthwith subpoenas could not be justified on

the basis of consent.

The district court, however, found further support for

its conclusion that the rule agar cage ae was J

icable to this case in this urt’s decision

raat a v. Bustamonte, 412 U.S. 218 (1973). In that

case, the Court held that a prosecutor, in order to satisfy

his burden of proving that consent to a search was volun-

tary and freely given, need not necessarily establish that

the subject of the search knew he had a right to withhold

consent. While the subject’s knowledge of his right to

refuse is one factor to be considered, the Court held that

“voluntariness is a question of fact to be determined from

all the circumstances.” Id., at 412 U.S. 249. The district

court concluded that Schneckloth reflected this Court's

disfavor with any per se rule regarding consent, such as

the rule announced in Bumper, applicable to a particular

class of cases. Thus, the district court refused to apply

the rule announced in Bumper to the seizure which oc-

curred in this case, and, instead, applied the totality of

the circumstances test announced in Schneckloth. The

court of appeals did the same, without even addressing

the petitioners’ argument, pressed in that court as well,

that this Court’s holding in Bumper controlled the issue

of consent in this case.

Moreover, the lower courts not only declined to apply

the rule announced in Bumper to the facts of this case,

but, in applying a totality of the circumstances test, they

gave little or no weight to the fact that the petitioners

“consented” to the seizure of their business records only

after the federal agents asserted a right to immediate

possession of the records under the authority of the forth-

with subpoenas. Thus, the lower courts apparently not

only concluded that Bumper was inapplicable to this case,

but that its precedential value, in any event, had been

substantially eroded by this Court’s decision in

Schneckloth.

Thus, an issue of great importance is presented fo:

review by this Court—whether the rule announced in

Bumper has continued validity in the wake of

Schneckloth. The petitioners submit that the rule an-

nounced in Bumper remains viable and applicable to that

class of cases where the “consent” to a search or seizure

has been given only after an assertion by the government

that it is armed with legal process which entitles the

government to effect the seizure. Indeed, in Schneckloth,

the Court specifically reviewed the Bumper rule and af-

firmed its continuing validity. Schneckloth, supra, at 412

U.S. 233-234. Nevertheless, the decisions of the courts

below reflect a view that Schneckloth has eroded the

principles announced in Bumper.

This Court, therefore, should grant the writ of cer-

tiorari in this case in order to consider this important

question concerning the continued validity of Bumper and

to consider whether the rule announced in Bumper 1s ap-

plicable when the seizure is accomplished, not under the

claimed authority of a warrant, but under the claimed

authority of forthwith subpoenas employed as substitutes

for a warrant.

SE PRESENTS THE COURT WITH AN. IMPOR-

ik OPPORTUNITY TO GIVE MEANINGFUL GUIDANCE

TO THE LOWER COURTS OF THE NATION CONCERNING

THE KIND OF ANALYSIS REQUIRED AND THE WEIGHT

TO BE GIVEN VARIOUS FACTORS IN THE APPLICATION

OF THE TOTALITY OF THE CIRCUMSTANCES TEST FOR

CONSENT TO A SEARCH AND SEIZURE ENUNCIATED BY

THIS COURT SIX YEARS AGO IN SCHNECKLOTH ¥.

BUSTAMONTE, 412 U.S. 218 (1973).

In addition to their argument that this Court’s decision

in Bumper was controlling as a matter of law on the

issue of consent in this case, the petitioners also argued

in the lower courts that, under the totality of the cir-

cumstances approach of Schneckloth v. Bustamonte,

supra, the conclusion was inescapable that the govern-

ment had failed to meet its burden of proving that peti-

tioners’ “consent” to the seizure of their records was

freely and voluntarily given and was uncontaminated by

any duress or coercion. See also Amos v. United States,

255 U.S. 313 (1921); United States v. Hearn, 496 F. 2d

236 (6th Cir., 1974), cert. denied, 419 U.S. 1048 (1974).

The district court concluded otherwise, however, and the

majority in the court of appeals refused to find that the

district court’s determination was clearly erroneous.

Both the district court and the majority in the court of

appeals relied very heavily upon two factors in concluding

that the government had satisfied its burden of proving

he voluntariness of the petitioners’ consent. In particular,

both courts placed great emphasis upon the fact that the

petitioners’ custodians had an opportunity to consult with

counsel and upon the fact, found by the district court,

that the petitioners’ custodians requested the federal

agents to remain on the premises in order to assist in the

collection of the documents.

However, as Judge Weick in his dissenting opinion per-

suasively demonstrated, the presence of counsel in this

case hardly dissipated the effect of the coercive at-

mosphere generated by the presence at petitioners’

premises of as many as six federal agents, because

counsel expressed ignorance of the legal ramifications of

what was occurring and never advised petitioners’ custo-

dians that they had a right to test the validity of the

subpoenas before either complying with the subpoenas or

subjecting themselves to arrest and a contempt citation.

As to the “invitation” extended by petitioners’ custodians

to the federal agents to remain on the premises, Judge

Weick demonstrated that federal agents had occupied the

petitioners’ premises for more than an hour before anyone

“requested” them to remain, even accepting the testimony

of the government’s witnesses.

The majority in the court of appeals also emphasized

the determination made by the district court to assign

greater credibility and weight to the government’s

witnesses than to petitioners’. But as Judge Weick noted,

both the district court and the majority in the court of

appeals ignored numerous uncontroverted facts in the

record which militated against any conclusion that the

petitioners had voluntarily consented to the seizure of

their records. Judge Weick was able to list numerous im-

portant facts ignored by the majority, even accepting the

testimony of government witnesses. As Judge Weick put

it:

“Accordingly, even if one assigns greater

weight and credibility to the testimony of the

Government’s witnesses, the following facts

emerge as uncontroverted: First, at least three,

and as many as_ six, Government agents

(including Special Attorney Bravo) were present

on the plaintiffs’ premises for over an hour

before any ‘request’ was made that they stay at

all. Second, the FBI agents and Special Attorney

Bravo repeatedly emphasized that the forthwith

command of the subpoenas mandated immediate

compliance. Third, the plaintiffs’ custodians were

never informed by the Government agents of

the right to refuse compliance in order to test

the validity of the subpoenas. Fourth, Special

Attorney Bravo admittedly threatened plaintiffs’

custodians with arrest and with unfavorable

publicity. Fifth, the normaliy beneficial effects

of the advice and presence of counsel were

reduced in this case because Attorney Jackson

expressed ignorance of the plaintiffs’ rights

under a forthwith subpoena duces tecum, and

the plaintiffs did obtain, promptly, other counsel

to file their motion for the return of property.”

Appendix, infra, at 16a-17a.

The petitioners would add to the compelling list com-

piled by Judge Weick the following uncontroverted facts

to which the majority in the court of appeals and the

district court failed to direct adequate attention:

(1) Although Agent Lyons could have served

the subpoenas by himself in a matter of seconds,

he was accompanied by two other F.B.I. agents.

Lyons testified that the number of agents

needed to serve subpoenas depends upon “what

records are going to be taken.” (Tr. 41) (Em-

phasis added).

(2) The three F.B.I. agents who appeared at

petitioners’ premises were also armed with a

search warrant for a “firearm”. Lyons testified

that they intended to gain access to the peti-

tioners’ offices, which had a security system,

whether they met resistance or not.

(3) After serving the subpoenas and executing

the warrant, the federal agents remained on the

premises. Indeed, they summoned Special At-

torney Bravo and two other agents to the peti-

tioners’ premises. It was only a_ substantial

period of time following the arrival of Bravo

that anyone asked the agents to remain, even

accepting the testimony of the government’s

witnesses.

(4) Agent Lyons admitted that the federal

agents had issued forthwith subpoenas and made

the subpoenas returnable forthwith for the

specific purpose of bypassing the probable cause

requirement of the Fourth Amendment.

(5) The “consent” given by the petitioners’

custodians to the seizure of their records oc-

curred only after the federal agents had asserted

that the forthwith subpoenas required that the

petitioners immediately produce their records.

In short, the petitioners submit that the courts below

failed to give adequate consideration to all of the facts

and circumstances surrounding the seizure, as required by

Schneckloth. The petitioners further submit that the

lower courts gave disproportionate emphasis to the factors

upon which those courts did rely in their determination

that the government had met its burden of proving the

voluntariness of the petitioners’ consent.

There can be no question but that the issue of consent

to a search is one which frequently arises in every trial

and appellate court of this nation. It has now been six

years since this Court’s watershed decision in Schneckloth.

And while the Court has had a couple of occasions since

that time to consider certain aspects of the consent

issue,"* the time is ripe for this Court to give its full at-

tention again to this important question. Because of the

recurring nature of the issue, trial and appellate courts

are sorely in need of this Court’s guidance on the proper

application of the totality of the circumstances test an-

nourced in Schneckloth—the kind of analysis required,

the weight to be given various factors, and the deference

which appellate courts owe to the findings of fact made

by the trial courts. This case, because of its factual set-

ting, as thoroughly developed in the record, presents the

Court with a unique opportunity to supply in a mean-

ingful way the kind of guidance needed by the lower

courts. The petition for a writ of certiorari should be

granted.

18 See United States v. Matlock, 415 U.S. 164 (1974); United

States v. Watson, 423 U.S. 411 (1976).

AN IMPORTANT QUESTION IS PRESENTED AS TO

WHETHER FORTHWITH GRAND JURY SUBPOENAS

DUCES TECUM COMMANDING THE PRODUCTION OF

ALL OF THE BOOKS AND RECORDS OF THE PETI-

TIONERS’ FIVE INSURANCE COMPANIES FOR A THIRTY-

THREE MONTH PERIOD ENDING ON THE DAY IM-

MEDIATELY PRECEDING THE DATE OF SERVICE ARE

UNREASONABLE, OVERBROAD AND VIOLATIVE OF THE

FOURTH AMENDMENT.

The petitioners took the position throughout this litiga-

tion that an independent basis upon which their motion

for return of property should have been granted was that

the forthwith grand jury subpoenas duces tecum were so

all-encompassing and overbroad as to constitute an

unreasonable search and seizure under the Fourth Amend-

ment. The petitioners further argued that the fact that

the subpoenas were unlawful on their face bolstered their

argument that the entire scheme employed by the federal

agents to obtain the petitioners’ business records was

tainted with illegality from the very outset. The peti-

tioners argued that the employment by the federal agents

of overbroad and unlawful subpoenas merely verified their

contention that federal agents had used the subpoenas to

coerce the petitioners to deliver records which the govern-

ment could not lawfully have obtained either by a search

warrant (because, as the government admitted, there was

no probable cause for the issuance of a warrant) or by a

subpoena reasonable in scope. Neither the district court

nor the majority in the court of appeals deemed it

necessary to reach the issue raised by the petitioners con-

cerning the legality of the subpoenas, however, because of

their determination that the petitioners’ “voluntary con-

sent” was sufficient justification for the government’s

retention of petitioners’ records.‘ Judge Weick, in his dis-

sent in the court of appeals, did reach that issue,

however, and concluded that the subpoenas were

unreasonable and overbroad and, therefore, unlawful

under the Fourth Amendment. The petitioners submit

that an important issue, which they have preserved, is

presented by this case concerning the validity of the sub-

poenas under color of which federal agents obtained peti-

tioners’ records.

This Court has consistently recognized that a grand

jury subpoena duces tecum may be so sweeping in its

scope that it violates the Fourth Amendment’s prohibition

against unreasonable searches and seizures. Hale v.

Henkel, 201 U.S. 43 (1906); Oklahoma Press Publishing

Co. v. Walling, 327 U.S. 186 (1946); Brown v. United

States, 276 U.S. 134 (1928); Boyd v. United States, 116

U.S. 616 (1886). While there is no fixed formula, a sub-

poena, to be reasonable under the Fourth Amendment,

must be limited in scope to materials relevant to the

grand jury’s investigation, must designate with reasonable

particularity the items to be produced and must focus on

‘Interestingly enough, the district court quashed a substan-

tively identical subpoena served on a fourth custodian of peti-

tioners’ records the same day the three subpoenas at issue here

were served. That fourth subpoena was served in Hillsdale,

Illinois, on Paul Paczolt. The only difference between the sub-

poena served on Paczolt and those served in Cleveland was the

time for appearance before the grand jury. Paczolt was not

directed to appear “forthwith”. Rather he was directed to ap-

pear on September 21, 1976. During the intervening ten-day

period, Paczolt, unlike the parties served in Cleveland, had

ample opportunity to test the validity of his subpoena. In the

case In re Grand Jury Subpoena Duces Tecum Addressed to

Paul Paczolt, No. C76-998 (N.D. Ohio 1976), the same court

which heard the present case quashed the Paczolt subpoena as

unreasonable under the Fourth Amendment.

a reasonable period of time. See Oklahoma Press

Publishing Co. v. Walling, supra; United States v. Gurule,

437 F. 2d 239, 241 (10th Cir. 1970), cert. denied sub

nom. Baker v. United States, 403 U.S. 904 (1971); United

States v. Schwimmer, 232 F. 2d 855 (8th Cir. 1956), cert.

denied, 352 U.S. 833 (1956).

The subpoenas employed in the present case possessed

none of these qualities. Rather, the subpoenas each broad-

ly commanded, without limitation, the immediate produc-

tion of all of the records of the petitioners’ five insurance

companies covering a thirty-three month period. Further-

more, the subpoenas focused upon the petitioners’ most

current and active files and records, without which the

operation of their businesses was impossible. In particular,

the subpoenas commanded the forthwith production of

the following documents:

“all books and records of Consumer Credit In-

surance Agency, Inc., Consumer Fidelity In-

surance Agency, Inc., Lee Hoffman and

Associates, Thomas A. Mills and Associates, Inc.,

and American International Assurance Co., Ltd.

for the period from January 1, 1974 to

September 9, 1976 said records to include, but

not be limited to, corporate minute book(s), cor-

respondence, memoranda, books of account in-

cluding all journals and _ ledgers, bank

statements, cancelled checks, check stubs, sav-

ings account books, records of all insurance

policies written, computer printouts, ll

agreements, contracts, treaties or understandings

with any insurance companies and any

agreements, contracts, treaties or understandings

with any automobile, trailer, boat, or mobile

home dealers.”

As Judge Weick stated in his dissenting opinion in the

court below:

“It can be fairly said that the subpoenas re-

quired the production of all of the plaintiffs’

business records for the period of two years and

nine months immediately preceding the date of

service of the subpoenas. Moreover, it would be

difficult to find a clearer case where the produc-

tion of documents ‘more completely put a stop

to the [plaintiffs’] business. . . . ’ Hale v. Hen-

kel, supra, 201 U.S. at 77.”

“In this case the Grand Jury forthwith sub-

poenas duces tecum amounted to an illegal

search and seizure. They demanded, without any

substantial limitation as to the subject matter of

the class of document sought, the forthwith pro-

duction of all of the business records of the

plaintiffs for a period of two years and nine

months. Because of their Sweeping command,

and because they focused on the most current

records, these subpoenas unreasonably burdened

the plaintiffs and interfered impermissibly with

the ongoing operation of their business.” Appen-

dix, infra at 19a-20a, 21a.

An important question is presented in this case concer-

ning the legality, under the Fourth Amendment, of forth-

with subpoenas duces tecum requiring the production of

all of the records of five ongoing insurance companies

covering a thirty-three month period ending just prior to

the date of service of the subpoenas. The petitioners urge

the Court to grant certiorari to consider this important

issue.

The affidavit submitted by Agent Lyons in support of

his application for a search warrant for the “firearm” was

based upon inforniation allegedly obtained by him from

an informant. Additionally, Agent Lyons’ testimony on

direct examination that the subpoenas were made return-

able forthwith because he had determined that the peti-

tioners’ records might, otherwise, never reach the grand

jury, was based upon information he allegedly had ob-

tained from the same source. The person who allegedly

provided this information was a former employee of the

petitioners and they knew her identity. Although the peti-

tioners attempted to subpoena her to testify at the hear-

ing on the motion for return (Tr. 200-201), she was under

the protection of the United States Marshal Service and

could not be located (Tr. 222-223). The petitioners, there-

fore, moved the district court to direct the government to

produce the informant to testify (Tr. 224), so that the

petitioners could demonstrate the falsity of Lyons’ claim

that a danger existed that the petitioners’ business

records would be destroyed and the falsity of the af.-

fidavit for the search warrant (Tr. 225-227). The peti-

tioners argued that such testimony would demonstrate the

government’s bad faith in obtaining the search warrant in

order to insure that they could gain access to petitioners’

premises and the government’s bad faith in using “forth-

with” subpoenas to obtain the petitioners’ records. Such

testimony, the petitioners argued, would substantially re-

duce the credibility of the government’s witnesses, par-

ticularly its chief witness, Lyons (Tr. 225-227). The

government opposed the petitioners’ request, and the

district court overruled it, apparently on the ground that

the informant’s testimony would be irrelevant (Tr. 228).

In the court of appeals, the petitioners argued that it

was prejudicial error for the trial court to overrule the

petitioners’ request that the informant be produced. The

court of appeals, however, affirmed the district court’s

order in this case without any comment upon this claim

of error by the petitioners. An important issue, which has

been preserved by the petitioners, is, therefore, presented

concerning the refusal of the district court to permit the

petitioners to elicit vital testimony from the informant,

whose identity was known by the petitioners.

Petitioners submit that there simply was no basis for

the trial court’s refusal to direct that the government pro-

duce its informant. Certainly the privilege recognized in

this Court’s decision in Rovario v. United States, 363

U.S. 53 (1957) of the government to withhold the iden-

tity of persons who furnish information to law enforce-

ment officers had no application to this case. This is

because the privilege is inapplicable once the identity of

the informant has been disclosed, as was the case here.

Rovario v. United States, supra, at 353 USS. 59; see

United States v. Gomez-Rojas, 507 F. 2d 1213, 1219 (5th

Cir. 1975), cert. denied, 423 U.S. 826 (1976); United

States v. Day, 384 F. 2d 464, 465 (3rd Cir. 1967); Gor-

don v. United States, 438 F. 2d 858, 875 (5th Cir. 1971),

cert. denied, 404 U.S. 828 (1971); United States v. Long,

533 F. 2d 505, 507 (9th Cir. 1976).

Furthermore, the testimony sought by the petitioners

was central to the issues raised in their motion for return

of property. This is particularly borne out by the fact

that the district court’s order overruling the motion for

return was based, in large part, upon that court’s ex-

pressed determination “to assign greater credibility and

weight to the Government’s witnesses than to

plaintiffs’.”** In view of that determination, the district

court’s refusal to permit the petitioners to question the

government’s informant was particularly _ prejudicial

because it deprived the petitioners of the one witness who

could have supplied evidence which would have destroyed

the credibility of the very government witnesses upon

whose testimony the district court so heavily relied.

An important question, therefore, is presented concern-

ing the district court’s decision to overrule the petitioners’

request that the informant, their former employee, be

produced to testify. For this reason as well, the writ of

certiorari should be granted.

Conclusion

For the reasons stated, the petitioners respectfully urge

this Court to grant the petition for a writ of certiorari.

Respectfully submitted,

BERNARD A. BERKMAN

BERKMAN, GORDON, KANCELBAUM,

LEVY and Murray

2121 The Illuminating Building

55 Public Square

Cleveland, Ohio 44113

(216) 781-5245

Of Counsel:

J. MICHAEL Murray

'* See Appendix, infra at 31a.

BOT

Order

UNITED STATES COURT OF APPEALS

For THE SIXTH CiRCUIT

76-2583

——>—_

ConsuMER CkEpIT INSURANCE AGENCY, INC., et al.,

Plaintiffs-Appellants,

APPENDIX ae

UNITED States or AMERICA,

Defendant-Appellee.

Filed August 8, 1979.

Before:

WEIck, ENGEL and MERRITT,

Circuit Judges.

No judge in regular active service of the court having

requested a vote on the suggestion for a rehearing en banc, the

petition for rehearing filed herein by the plaintiffs-appellants

has been referred to the panel which heard the original appeal.

* Upon consideration of said petition, the court concludes that it is

} without merit. Accordingly,

Iv Is ORDERED that the petition for rehearing is hereby denied.

Judge Weick adheres to his dissent.

ENTERED BY ORDER OF THE Court

| JOHN P. Herman

| Clerk

UNITED STATES COURT OF APPEALS

For THE SIXTH CiRcUIT

No. 76-2583

ConsuMER CrepIT INSURANCE AGENCY, Inc., et al.,

Plaintiffs-A ppellants,

—_—Vi—

Unitep States OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Ohio.

Decided and Filed June 13, 1979.

Before:

Weick, ENGEL and Merrit,

Circuit Judges.

ENGEL, Circuit Judge, delivered the opinion of the Court, in

which Merrtr, Circuit Judge, joined. Weck, Circuit J udge (pp.

9-20) filed a separate dissenting opinion.

ENGEL, Circuit Judge. Plaintiffs commenced an action in the

district court pursuant to Rule 41(e), Fed. R. Crim. P., seeking

return of certain corporate books, correspondence, memoranda,

books of account and like corporate documents, which they

alleged had been unlawfully seized pursuant to “forthwith”

grand jury subpoenas duces tecum.

On the morning of September 10, 1976, Special Agent Terry

A. Lyons of the FBI went to the office building at 514 Prospect

Avenue, Cleveland, Ohio, wherein plaintiffs had their offices on

the fifth floor. On the ground floor he identified and introduced

himself to Allan M. Wachs, who worked for the plaintiffs in the

building. Lyons and Wachs had known each other as the result of

4 previous investigation of the affairs of the Northern Ohio

Bank. Upon Lyons’ representation that he wanted to discuss

proceed to the company’s fifth floor offices for the purpose of

continuing the discussion. At that time Lyons was joined by

Special Agents Fetterman and Graessle,

in violation of 18 U.S.C. App. §1202(a) (1) (1976). Upon service

of the subpoena and of the search warrant, Bosse immediately

advised the agents that he would consult with his attorney and

firm of Kohrman & Jackson Company, LPA, legal counsel for

plaintiff Corporations and Bosse. The government agents were

He Joined by Kenneth A. Bravo, Special Attorney for the

epartment of Justice assigned to the Strike F

additional FBI agents. te ii

After substantial discussion between Wachs, Bosse and one

Stephen Kalette, an attorney with the law firm of Kohrman &

Jackson who had meanwhile arrived pursuant to Bosse’s call

' The search of the drawer + as

produced a hand n, as

later turned out to be an feitadion: gun, as indicated, but it

Robert H. Jackson appeared on the scene to consult with Wachs,

Bosse and Kalette and to examine the subpoenas. Bosse, with

Jackson's concurrence, asked that Bravo and the FBI agents stay

in order to determine whether certain records were covered by

the subpoenas. Jackson then departed, leaving Kaletie to render

further counsel.

For the remainder of the morning and into mid-afternoon

Bosse, Wachs and Kalette continued intermittently to express

their desire to cooperate in satisfying the requirements of the

subpoenas. None of these individuals nor anyone else, according

to the district court's findings, requested or directed the agents

to leave the premises. Any examination of the records by the

agents was found to have been upon the express consent of Bosse

‘and Wachs, with no ‘objection from Kalette. Immediately prior

to the removal of the documents, Jackson was contacted by

telephone for advice, yet thereafter Wachs, Bosse and Kalette

continued to cooperate with the agents. After the review of

plaintiffs’ files was completed, the documents whose return is

now sought were produced and delivered to the grand jury for

use in its then-pending investigations.

The plaintiffs’ motion made before the district court detailed a

number of charges that the subpoenas were invalid and that the

government conduct under the circumstances here was so

tainted that they were in all events entitled to relief. Essentially

they claimed that the subpoenas were overbroad, that the search

warrant was but a ruse to enable the officers to gain entrance to

the building, and that in the service of the subpoenas, the FBI

agents were guilty of trespass and of threats and intimidation

which coerced them into consenting to the delivery of the

documents and which rendered their consent invalid.

Anevidentiary hearing was held before United States District

Judge Robert B. Krupansky, who thereafter filed extensive

factual findings, concluding that the plaintiffs’ consent to the

search had been voluntary and that the documents had been

lawfully seized. The court made the following ruling:

Our review of the record convinces us that there is much in the

conduct of the officers here which we cannot approve if

* We are troubled by the issue of jurisdicti 1

' Jurisdiction over the appeal from

the district court's order, but in view of our conclusion that plaintiffs

appealability.” Id. at 131 (emphasis added). Based upon the relation-

Bearing in mind that the burden is u

nd that th pon the appellants to satisf

court that it has Jurisdiction over the appeal, see Mansfield Canibase

& Lake Michigan Ry. Co. v. Swan, 111 US. 379, 382 (1884): Chapman

plaintiffs’ version of the facts is to believed. Nonetheless, after

personally hearing the witnesses, Judge Krupansky elected to

assign greater weight and credibility to the government’s

witnesses than to the plaintiffs’ with respect to the issue of

voluntariness. In support of his finding is the fact that plaintiffs’

agents consented to the examination and delivery of documents

only after advice of their counsel, Jackson, and his associate,

Kalette, who was present at the scene during the entire episode

and who oversaw and approved the final delivery of possession

to the agents. It is also noteworthy that Jackson testified to

having advised Bosse that he was not required to turn over the

documents sought.

We are not impressed with plaintiffs’ characterization that

Kalette, the attorney sent from the firm of Kohrman & Jackson,

v. Houston Welfare Rights Organization, 47 U.S.L.W. 4528, 4531 n.28

(U.S. May 14, 1979), we entertain doubts whether the instant appeal

pertains “solely” to return of property, the district court having

ordered the government to return the originals. In other words, any

interest which plaintiffs have in receiving their business records has

been fully met; the remaining relief sought on appeal is to deprive the

government of any further evidence derived from the documents.

While the plaintiffs represent that they “are not seeking suppression of

[the] copies but only their return,” the necessary consequence of

enlarging the relief granted by the district court is that the evidence

will be unavailable for the grand jury’s further consideration. But see

United States v. Calandra, 414 US. 338 (1974) (exclusionary rule

inapplicable to grand jury proceedings). In this circumstance we

conceive that an appeal aimed solely at the return of copies may lack

the requisite independence from the extant grand jury probe, Meister

v. United States, 397 F. 2d 268 (3d Cir. 1968), even accepting arguendo

the proposition that, on the merits of the claim, Rule 41(e) applies to

copies as well as originals. Goodman v. United States, 369 F. 2d 166,

168 (9th Cir. 1966). We do not read G.M. Leasing Corp. v. United

States, 429 U.S. 338 (1977), as addressing the issue, let alone settling

it. To the extent that the case is relevant, G.M. Leasing supports the

conclusion that the within appeal is premature, particularly in view of

the Court’s favorable reference on this point to Meister, supra, 429 U.S.

at 359.

I Nt

was only a “law clerk” and Somehow allowed himself to be

intimidated by the aggressive behavior of the government

agents. He was admitted to practice; he was sent by a responsible

law firm; he was accepted by theclients for that purpose, and had

been introduced to the agents by Bosse and Wachs as “their

attorney.” He gave advice to them, and they followed that advice.

Moreover, the evidence showed that J ackson, Kalette’s superior,

also participated significantly in the rendering of advice. In the

absence of other persuasive evidence, we do not think it is

Appellants also rely upon a confrontation between Special

Attorney Bravo and Orrico, who arrived at 2:35 p.m. and who

was then served with a subpoena identical to the two previously

served upon Wachs and Bosse. While Orrico’s testimony stresses

the coercive nature of the events in issue, Bravo's testimony

places the incident in a different light:

[The conversation occurred] just at the time we were

getting ready to leave and we were located in the large open

area of the office in the end, close to the elevators. Mr.

Orrico began talking, I don’t believe at first directly to me,

saying that he was not going to the Grand J ury and then he

looked in the direction of Agent Lyons and myself and said,

“If you want me to 80 you're going to have to take me in

handcuffs.”

I then explained to Mr. Orrico that he had been served

with a subpoena, that until such time asa Court ruled to the

contrary I expected that he would obey that subpoena and

in the event he did not, we would have no alternative but to

ask a Federal J udgein this district to rule on the question of

whether or not a warrant should be issued.

It is clear from the foregoing that Orrico objected not so much to

the collection of documents, at issue here, as to the subpoena

insofar as it called for his personal presence. Moreover, the

district court failed to find, as plaintiffs urged, that Bravo

“threatened” Orrico. 5

Following Orrico’s recalcitrance Bravo talked to Bosse,

informing him of the possible adverse publicity which would

attend noncompliance. In fact, apparently unknown to Bravo,

plaintiffs’ attorney Jackson had likewise earlier counselled

Bosse that resistance could generate adverse publicity. Bosse

then talked to Orrico and prevailed upon him to comply.

We cannot agree that Bravo's statements to Bosse and Orrico

were coercive and overbore their will. The agent’s observations

were not shown to have been untrue, and they may have in fact

been realistic arguments which a prudent businessman would

have wished to consider in determining whether to comply.

Moreover, Kalette was on the scene to provide advice, and

Jackson was consulted by telephone. That compliance was

obtained only after extensive consultations with counsel dimin-

ishes whatever coercive effect Bravo's statements may have had.

The plaintiffs also claim that the officers, after having

executed the search warrant and having served the subpoenas,

should immediately have left the premises. We might agree if the

trial judge had found that they had been asked to leave. They

were not, however, but rather had been invited to stay by Bosse,

found by the district court to be in charge of the office, in order

that they might assist in compliance. We reject the claim that

their presence on the premises amounted to so high a degree of

coercion under the circumstances as to nullify the otherwise

proper effect of the subpoenas in producing the documents

desired, since, as the district court found, the agents “never

entered into any physical space without the express permission

of plaintiffs,” and in fact remained upon an express invitation to

do so. It must be remembered that these were business offices,

a sts

that the agents entered in the company of and with the

permission of Wachs, that entry was in the daytime, and that

there were other office employees present at the time, thus

diminishing any impact of a show of force. While we do not

condone the procedure employed by the government, we accept

the district court’s finding that compliance was voluntary. We

hold, in conclusion, that the plaintiffs were not “aggrieved by an

unlawful search and seizure” and are thus not entitled to relief

under Rule 41(e).*

Finally, we are bound to note that while in a technical sense,

the motion was denied, the trial judge has in fact granted the

plaintiffs the relief which they initially sought: return of the

documents, subject, however, to the government’s right to make

copies. To the extent that the motion for return stems from

plaintiffs’ concern for the privacy interests of themselves and

their clients, we conceive that their remedy at this Stage is to seek

a protective order in the district court under Rule 6(e), Fed. R.

Crim. P., which would effectively recognize those rights, limiting

the disclosure and use of the copies to the grand jury proceedings

and any criminal prosecutions which may follow in their wake.

While the plaintiffs have not seen fit to do so, we have no doubt

that the district judge, who carefully considered their interests

in the first place, would be fully willing and able to consider such

a protective order.

Affirmed.

ESE SA TORE TS TELE

eee ern

SRR Se: phn Fi om

10a

Weick, Circuit Judge. I respectfully dissent. The majority

opinion permits the FBI to effect an unlawful search and seizure

of all the books and records of the plaintiff corporations for a

period covering the thirty-three months immediately preceding

the seizure, by using as many as five FBI agents and one Special

Attorney of the Department of Justice to coerce immediate

compliance with overbroad, unlawful forthwith grand jury

subpoenas duces tecum. It constituted a gross abuse of the Grand

Jury process.

Actually, unless coercion was intended, the grand jury

subpoenas could and should have been served by a single United

States Marshal and after serving the subpoenas the Marshal

should leave the premises of the subpoenaed persons.

In footnote 2 the majority is “troubled” about the Court’s

jurisdiction over this appeal, but found it unnecessary to resolve

that question because of its conclusion that plaintiffs are not

entitled to relief. However, the majority should not be troubled

because if this Court had no jurisdiction the majority was

without power to rule on the merits of the case, and its decision

on the merits would be pure obiter dictum.

The Government never filed a motion to dismiss the appeal for

lack of jurisdiction, no doubt because such a claim would be

plainly frivolous.

The majority, in footnote 2, correctly states the applicable

jurisdictional rule. The order is appealable “only if the motion is

solely for return of property and is in no way tied to a criminal

prosecution in esse against the movant... .” DiBella v. United

States, 369 U.S. 121, 131-32 (1962). The plaintiffs herein have

appealed from the entire order of the District Court quoted by

the majority, ante at 5, which began by denying the motion for

return of seized property. Denial of such a motion is plainly

appealable. If that ruling was incorrect, as I believe it to be, the

lla

District Court was not entitled, sua sponte, to authorize the

Government to make copies because the entire order was invalid.

The majority would use the “relief” granted by the District

Court, which was never sought by either party, to change the

nature of the motion brought by the plaintiffs. The fact is that

the plaintiffs have never sought other than the return of

property. There is simply no reason to treat the motion other

than as the plaintiffs have brought it.

Moreover, even if one views this case as only involving copies,

there is ample authority that copies are property and may

properly be the subject of a motion for return of property. Richey

v. Smith, 515 F.2d 1239, 1242-43 n.5 (5th Cir. 1975); VonderAhe

v. Howland, 508 F.2d 364, 368 (9th Cir. 1975); Hunsucker v.

Phinney, 497 F.2d 29, 35 (5th Cir. 1974), cert. denied, 420 U.S.

927 (1975); Goodman v. United States, 369 F.2d 166 (9th Cir.

1966). But see Meister v. United States, 397 F.2d 268 (3d Cir.

1968) (per curiam). Also the majority ignores the fact that in

G.M. Leasing Co. v. United States, 429 U.S. 338, 359(1977), the

Court found that the motion for return of property was moot

both because the originals had been returned, and because the

photocopies had been destroyed.

Finally, although the majority opinion is unclear on this point,

it is plain that the present motion is “in no way tied to a criminal

prosecution in esse against the movant . . . .” DiBella, supra, 369

U.S. at 132. In the more than two and one-half years since the

District Court entered its order, two separate Grand Juries have

had access to the documents, and yet neither Grand Jury has

handed down any indictments relating to these records and the

plaintiffs or their custodians. Thus, this is not a case “[w]hen at

the time of ruling there is outstanding a complaint, or a

detention or a release on bail following arrest, or an arraignment,

information, or indictment . . .,” DiBella, supra, 369 U.S. at 131.

so that there is in fact “no criminal prosecution pending against

the movant,” United States v. Ryan, 402 U.S. 530, 533 (1971).

12a

See Soverign News Co. v. United States, 544 F.2d 909 (6th Cir.

1976) (per curiam), cert. denied, 434 U.S. 817 (1977).

In my view the order was final and was fully appealable. See

United States v. Williams, 459 F.2d 909 (6th Cir. 1972) (per

curiam); Coury v. United States, 426 F.2d 1354 (6th Cir. 1970).

I am not unmindful that the voluntariness of the consent in

this case is “a question of fact to be determined from the totality

of all the circumstances,” Schneckloth v. Bustamonte, 412 U.S.

218, 227 (1973). As such, the District Court’s finding must be

clearly erroneous before we can overturn it, United States v.

Hearn, 496 F.2d 236, 242 (6th Cir. 1974); but as we recently said

in United States v. McCaleb 552 F.2d 717, 721 (6th Cir. 1977):

Consent “must be proved by ‘clear and positive testi-

mony, Amos v. United States, 255 U.S. 313, 41 S.Ct. 266,

65 L.Ed. 654 (1921), and ‘must be unequivocal, specific and

intelligently given, uncontaminated by any duress or

coercion, ‘Simmons v. Bomar, 349 F.2d 365 (6th Cir. 1965).”

United States v. Hearn, supra, 496 F.2d at 244. [Emphasis

added. ]}

At the outset, it must be noted that the majority has totally

ignored the fact that the FBI engaged in what is, at minimum,

the highly unusual procedure of using as many as five FBl agents

and one Special Attorney to serve and “enforce” forthwith grand

jury subpoenas duces tecum. The normal practice, and the one

which is contemplated by the Federal Rules of Criminal and Civil

Procedure, is that subpoenas will be served by a U.S. Marshal.

Fed.R.Cr.P. 17(d); Fed.R.Civ.P. 45(c); see L.Cr.R. 3(d) (N.D.

Ohio). The majority also ignores the fact that the plaintiffs’

building was equipped with a locked security system. The agents

achieved admittance through the system only after making

13a

obscure references to “business” which had to be discussed with

Wachs. His subpoena could have been served on the street, but

was not.

The majority makes much of the fact that the agents allegedly

were “requested” to remain in order to aid in the assembly of

documents. They ignore, however, the fact that Agent Lyons’

testimony showed the absence of any “request” for the federal

_ agents to remain on the premises until after they had already

been there for more than an hour. App. 76,77. Moreover, there is

no suggestion whatever that the plaintiffs’ custodians ever

“requested” the FBI personnel to summon the help of Special

Attorney Bravo and the two additional FBI agents that he

brought with him.

It is apparent that from almost the outset, three FBI agents

and one Government attorney were present on the plaintiffs’

premises. Unless the agents, from the beginning, intended to

enforce compliance with the subpoenas I can find no reason for

such an initial show of force, particularly after the execution of

the search warrant and the removal of the toy pistol which had

been used as a paper weight, and which was found in a desk

drawer.

As soon as the agents had executed the search warrant and

had completed service of the three forthwith subpoenas duces

tecum, they had finished their task and should have left the

premises immediately. The obvious purpose of their remaining

at the plaintiffs’ place of business was for duress and coercion, to

enforce compliance with the forthwith subpoenas. This was not

their function and they had no lawful right to engage in such

activity.

In this context the use of the forthwith command itself

became coercive.' The record shows that the federal agents more

——

‘Of course, the use of a forthwith subpoena will not in most

circumstances work to vitiate otherwise voluntary compliance. Cer-

tainly it is proper to require forthwith return where the grand jury has

l4a

than once emphasized that they expected immediate com-

pliance. App. 105, 175, 298. At no time did the agents or Special

Attorney Bravo inform the plaintiffs’ custodians of the right to

refuse to comply in order to seek to test the validity of the

subpoenas. See Schneckloth, supra, 412 U.S. at 227. Ifanything,

the inference from their statements was that the plaintiffs’

custodians had no choice but to comply at once. It appears that

the forthwith command simply provided the agents with an

excuse tc remain on the premises until either compliance was

effected or they were forced to leave.

It may also be noted that the District Court found that the FBI

provided the van to carry the records only after the plaintiffs’

custodians stated that they had no means to transport the file

cabinet and three cartons of documents. While this finding is

supported in the record, it is also consistent with a plan by the

agents to ensure that they obtained immediate custody of the

reason to believe that the items might otherwise be destroyed. But the

danger of the forthwith subpoena is that it places a premium on the

party’s knowledge of his right to refuse until the subpoena has been

tested in court. Its use tends to blur the distinction between traditional

arrests and searches, on the one hand, and traditional subpoenas on the

other. As the Supreme Court recognized in United States v. Dionisio,

410 US. 1, 10 (1973):

The compulsion exerted by a grand jury subpoena differs from the

seizure effected by an arrest .. .

“The latter is abrupt, is effected with force or the threat of it

and often in demeaning circumstances. . . . A subpoena is served

in the same manner as other legai process; it involves no stigma

whatever; if the time for appearance is inconvenient, this can

generally be altered; and it remains at all times under the control

and supervision of a court.”

United States v. Doe (Schwartz). 457 F.2d at 898.

Since subpoenas are generally served without any antecedent

judicial intervention, reviewing courts should be cautious where it

appears that the forthwith requirement may have been used to

preclude any review.

15a

documents. Indeed, Agent Lyons admitted that the agents chose

to obtain the records by means of a forthwith subpoena duces

tecum because they lacked probable cause to obtain a search

warrant. While it is axiomatic that the grand jury need not have

probable cause to issue a subpoena, see United States v.

Bisceglia, 420 U.S. 141, 147-48 (1975), the subpoena itself

cannot be transformed into an instrument by which an illegal

search or seizure is effectuated. Mancusi v. DeForte, 392 U.S.

eo esa see United States v. Ryan, 455 F.2d 728 (9th Cir.

The majority relies heavily on the fact that the plaintiffs’

custodians acted with the advice and assistance of counsel.

While the presence of counsel is a factor to consider, Schneck-

loth, supra, 412 US. at 226, it is not conclusive. The undisputed

evidence showed that the plaintiffs’ attorney was unfamiliar

with criminal practice and the procedures surrounding

forthwith subpoenas, and that this fact was communicated to

Bosse. App. 222, 225. Thus the normal salutary effect of

counsel's presence was diminished in this case.

The majority states that attorney Jackson told Bosse that he

was not “required” to turn over the documents. I believe that a

faix reading of that portion of the record shows that Jackson

advised that Bosse could “resist physically,” but that Jackson did

not know what the legal consequences of such an action would

be. Jackson suggested that such resistance might subject Bosse

to arrest. App. 220-28.

It is plain that Jackson never advised that Bosse had the right

to test the validity of the forthwith grand jury subpoenas by

filing a motion in court prior to turning over the documents. Any

suggestion to the contrary is simply wrong.

The majority also relies on the advice provided by attorney

Kalette, Jackson’s young associate. The evidence showed rather

plainly that Kalette initially tried only to preserve the status quo

pending the arrival of attorney Jackson. The majority does not

16a

appear to contend otherwise. And the District Court found that

after Jackson left, Kalette’s activities were pursuant to

Jackson’s instructions. There is simply no evidence that

Kalette’s advice was ever any different or any better than that

offered by Jackson.

It is also significant to note that the plaintiffs hired a new law

firm to represent them in this matter almost immediately after

the documents were delivered tothe Grand Jury. Within six days

of the delivery of the records, the motion presently before this

Court was filed in the District Court. The plaintiffs were

evidently dissatisfied with the quality of the advice and

representation provided by Jackson and Kalette.

The majority does state:

...[T]here is much in the conduct of the officers here

which we cannot approve if plaintiffs’ version of the facts is

to be believed.

Nevertheless, however politely the majority wishes to view it, it

is clear from the record that Special Attorney Bravo admitted

that he threatened Orrico with arrest and threatened Bosse with

unfavorable publicity when Orrico initially refused to comply

with the subpoenas. Whether his primary objection was to

personal appearance or to the production of documents, the fact

is that Orrico was threatened when he indicated a desire to resist

immediate compliance. ys

Accordingly, even if one assigns greater weight and credibil-

ity to the testimony of the Government’s witnesses, the

following facts emerge as uncontroverted: First, at least three,

and as many as six, Government agents (including Special

Attorney Bravo) were present on the plaintiffs’ premises for over

an hour before any “request” was made that they stay at all.

Second, the FBI agents and Special Attorney Bravo repeatedly

emphasized that the forthwith command of the subpoenas

mandated immediate compliance. Third, the plaintiffs’ custo-

17a

dians were never informed by the Government agents of the

right to refuse compliance in order to test the validity of the

subpoenas. Fourth, Special Attorney Bravo admittedly threat-

ened plaintiffs’ custodians with arrest and with unfavorable

publicity. Fifth, the normally beneficial effects of the advice and

presence of counsel were reduced in this case because Attorney

Jackson expressed ignorance of the plaintiffs’ rights under a

forthwith subpoena duces tecum, and the plaintiffs did obtain,

promptly, other counsel to file their motion for the return of

property.

In my opinion the duress and coercion exerted here was much

greater than that which was involved in United States v.

McCaleb, 552 F.2d 717 (6th Cir. 1977), which condemned “any

duress or coercion,” id at 721 (emphasis added), quoting

Simmons v. Bomar, 349 F.2d 365, 366 (6th Cir. 1965) (per

curiam),

Because of the uncontroverted evidence as to duress and

coercion, the District Court’s conclusion that the compliance was

voluntary is not supported by substantial evidence, and isclearly

erroneous.

The plaintiffs are not entitled to relief under Fed.R.Cr.P. 41(e)

unless they have established that they are entitled to the lawful

Possession of property which has been illegally seized. A

subpoena duces tecum will constitute such an illegal seizure

when it is “far too Sweeping in its terms to be regarded as

reasonable.” Hale v. Henkel, 201 US. 43, 76 (1906). See e.g.,

Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208

(1946); Brown v. United States, 276 US. 134, 142-43 (1928);

Boyd v. United States, 116 U.S. 616, 621-22 (1886). The present

subpoenas were unreasonable and therefore unlawful.

The cases demonstrate that in addition to the requirement

that the Grand Jury pursue an investigation only “for a lawfully

18a

authorized purpose,” Oklahoma Press Publishing Co., supra,

327 U.S. at 209, a Grand Jury subpoena duces tecum must limit

its scope to matters somehow relevant to the investigation, and

must limit its burdensomeness by specifying the documents

desired with reasonable particularity, and by focusing on a

reasonable time period. Id.; United States v. Gurule, 437 F.2d

239, 244 (10th Cir. 1970), cert. denied sub nom. Baker v. United

States, 403 U.S. 904 (1971); Schwimmer v. United States, 232

F.2d 855, 861 (8th Cir.), cert. denied, 352 U.S. 833 (1956);

McMann v. S.E.C., 87 F.2d 377, 379 (2d Cir.), cert. denied, 301

U.S. 684 (1937). And in evaluating the burden imposed, it is

important to consider whether the documents sought are part of

an ongoing business, or instead relate to a defunct operation.

Hale v. Henkel, supra, 201 U.S. at 76-77; In re Horowitz, 482

F.2d 72, 79 (2d Cir., cert. denied, 414 U.S. 867 (1973); ef.

Wheeler v. United States, 226 U.S. 478(1913). In addition, other

factors may be considered in appropriate cases. Oklahoma Press

Publishing Co., supra, 327 U.S. at 209; Boyd v. United States,

supra, 116 US. at 630.

There is no fixed requirement that the subpoenas recite either

the purpose of the investigation or the precise relevance of each

document sought, although these matters may be inquired into

by the District Court on an appropriate motion. What is

required, however, is that the subpoena duces tecum express

limitations as to the time period involved and either as to the

subject matter or the class of documents sought, or both, as

appropriate. No precise formula can be stated. The requirements

of “reasonableness” will vary in each case, but will almost

certainly include consideration of the type of documents sought,

the age of the documents, the availability of the documents, the

requirements of the particular business, as well as the type of

investigation being conducted. See Oklahoma Press Publishing

Co., supra, 327 U.S. at 208-09; Hale v. Henkel, supra, 201 U.S. at

76-77.

19a

In the present case the subpoenas commanded the production

forthwith of:

all books and records of Consumer Credit Insurance

Agency, Inc., Consumer Fidelity Insurance Agency, Inc.,

Lee Hoffman and Associates, Thomas A. Mills and Associ-

ates, Inc., and American International Assurance Co., Ltd.,

for the period from January 1, 1974 to September 9, 1976

said records to include, but not be limited to, corporate

minute book(s), correspondence, memoranda, books of

account including all journals and ledgers, bank state-

ments, cancelled checks, check stubs, saving account books,

records of all insurance policies written, computer print-

outs, all agreements, contracts, treaties, or understan dings

with any insurance companies and any agreements, con-

tracts, treaties or understandings with any automobile,

trailer, boat or mobile home dealers.

By their terms they required the production of “all books and

records” of the five companies, including, but not limited to:

corporate minute book(s), correspondence, memoranda,

books of account, including all journals and ledgers, bank

statements, cancelled checks, check stubs, Savings account

books, records of all insurance policies written, computer

printouts. .. .

Only two categories of items were limited to a particular type of

transaction:

... all agreements, contracts, treaties, or understandings

with any insurance companies and any agreements, con-

tracts, treaties or understandings with any automobile,

trailer, boat, or mobile home dealers.

It can be fairly said that the subpoenas required the produc-

tion of all of the plaintiff's business records for the period of two

20a

years and nine months immediately preceding the date of service

of the subpoenas. Moreover, it would be difficult to find a clearer

case where the production of documents “more completely put a

stop to the [plaintiffs’] business . . . .” Hale v. Henkel, supra, 201

US. at 77.

The District Court explicitly recognized this when it ordered

the return of the originals. Moreover, it is noteworthy that the

District Judge quashed a fourth substantively identical sub-

poena served on one of the plaintiffs’ employees, Paul Paczolt,

because the Court found the subpoena was impermissibly

overbroad. In re Grand Jury Subpoena Addressed to Paul

Paczolt, Custodian of Records, No. C-76-998 (N.D. Ohio, Sept.

17, 1976). This holding by the same District Judge supports the

plaintiffs’ contention that the three identical forthwith sub-

poenas in the present case are invalid as being impermissibly

overbroad and unreasonable.

In its brief, the Government relies on Bellis v. United States,

417 U.S. 85 (1974), for the proposition that a subpoena duces

tecum which requires the production of records covering two

years is not invalid. Aside from the fact that Bellis deals with an

asserted Fifth Amendment privilege, and not a Fourth Amend-

ment violation, it is important to note that the subpoena in Bellis

had been judicially limited to financial records, 417 U.S. at 86-87

& n.1, and that it related to a partnership no longer in existence.

It did not, as in the present case, stop the operation of plaintiffs’

business.

Similarly, Wheeler v. United States, supra, also cited by the

Government, involved the records of a defunct corporation, and

the subpoena particularly stated the classes of records sought, if

not the particular subject matter. See 226 U.S. at 483, 489-90.

Finally, in Brown v. United States, supra, the subpoenas

specified the subject matters of the requested records. In

addition, Brown had previously complied with an identical

subpoena without difficulty. 276 U.S. at 143.

2la

In this case the Grand J ury forthwith subpoenas duces tecum

amounted to an illegal search and seizure. They demanded

without any substantial limitation as to the subject matter of “

class of document sought, the forthwith production of all of the

business records of the plaintiffs for a period of two years and

nine months. Because of their sweeping command, and because

they focused on the most current records, these subpoenas

unreasonably burdened the plaintiffs and interfered impermis-

sibly with the ongoing operation of their businesses. Such an

unlawful practice should be stopped in its tracks by the Court.

The judgment of the District Court should be reversed and the

cause remanded with instructions to order the return of the

copies of the records to the plaintiffs.

nee 22a

Order

THE UNITED STATES DISTRICT COURT

THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Civil Action No. C76-998

—~< >

CONSUMER CREDIT INSURANCE AGENCY, INC., et al.,

Plaintiffs,

—y —

Unrrep STATES oF AMERICA,

Defendant.

Filed October 5, 1976.

KRUPANSKY, J.

Plaintiffs have initiated this action pursuant to Rule

41(e), Fed. R. Crim. P., seeking the return of corporate

minute books, correspondence, memoranda, books of ac-

count, bank statements, cancelled checks, check stubs,

Savings account books, computer printouts, agreements,

contracts, production reports, financial and cther business

records, asserting illegal search and seizure, in violation of

the Fourth Amendment, of said documents from premises

situated at 514 Prospect Avenue, Cleveland, Ohio on

September 10, 1976 by Agents of the Federal Bureau of

Investigation (FBI),

The evidence disclosed that on the morning of

September 10, 1976, between approximately 9:15 a.m.

and 9:30 a.m., Allan M. Wachs (Wachs) and Thomas D.

23a

Bosse (Bosse) arrived via personal automobile at the park-

ing lot located adjacent to 514 Prospect Avenue,

Cleveland, Ohio. The two men exchanged greetings.

Wachs proceeded to the entrance of the building at 514

Prospect Avenue and Bosse to a restaurant in the vicinity

for coffee and donuts. Immediately in front of the

building, Terry A. Lyons (Lyons) approached Wachs,

presented credentials identifying himself as a Special

Agent of the FBI and indicated that he was desirous of

discussing with Wachs certain of his business activities.

Lyons and Wachs were known to each other as a result

of a previous investigation involving the affairs of the

Northern Ohio Bank. Wachs invited Lyons, who had been

joined by Special Agents Jay Fetterman (Fetterman) and

Fred Graessle (Graessle) to accompany him to his fifth

floor office for purposes of continuing the discussions.

The four men entered the foyer of the building, where-

upon Wachs placed a telephone call to the fifth floor

offices and requested that the elevator be sent down to

the first floor. A buzzer signalled the electronic opening

of a second door through which the group proceeded to

the elevator which carried them to the fifth floor. The

men followed Wachs to his office. Upon entering the of-

fice, Lyons served Wachs with a forthwith subpoena

duces tecum (Gov't Exh. 1). Immediately subsequent to

reading the subpoena, Lyons served Wachs with a search

warrant (Pl. Exh. A) authorizing the agents to search

the top right-hand drawer of a brown wooden

desk used by Gennaro J. Orrico located on the

fifth floor, 514 Prospect Avenue, Cleveland,

Ohio, in the office occupied by Consumer Credit

Insurance Agency, Inc.

24a

for

a firearm which is being possessed in violation

of Title 18, U.S.C., App. Section 1202(a)(1).

At approximately this point in time, Bosse appeared in

the office. Lyons, identifying himself, served Bosse with a

forthwith subpoena duces tecum (Gov't Exh. 2). Wachs

presented the search warrant to Bosse for examination.

Upon examining both documents, Bosse immediately ad-

vised the agents that he would consult with his attorney,

thereupon proceeded to his office, and placed a telephone

call to Robert H. Jackson (Jackson), a partner in the law

firm of Kohrman & Jackson Company, L.P.A., legal coun-

sel for the plaintiff corporations and Bosse. It should be

noted that at no time did the agents interfere with or

restrain the movements of either Wachs or Bosse.

During Bosse’s absence, Wachs directed the agents into

the office of Gennaro J. Orrico (Orrico), whereupon Lyons

searched the top right-hand drawer of a brown wooden

desk used by Orrico and confiscated a hand gun. No fur-

ther search of Orrico’s office was conducted and the

agents immediately returned to Wachs’ office. Immed-

iately thereafter, Bosse reappeared, advising the agents

that Jackson was on his way to the offices; Lyons accord-

ingly directed Fetterman to place a telephone call to

Special Agent James Manning (Manning), requesting the

presence of a Strike Force Attorney. Thereafter, Manning

arrived with Special Agent John Billi (Billi), and Kenneth

A. Bravo (Bravo), Special Attorney for the United States

Department of Justice, assigned to the Strike Force.

At approximately 10:00 a.m. Steve Kollette (Kollette),

an attorney with the law firm of Kohrman & Jackson, ar-

rived, and shortly thereafter, agents Manning and Billi

departed the premises. Kollette was introduced to the

25a

agents by Bosse and Wachs as “their attorney,”

whereupon Kollette, Bosse and Wachs retired for a con-

ference. Within fifteen minutes, Jackson made his ap-

pearance, conferred first with Bravo and then with

Kollette, Bosse and Wachs. At the conclusion of the con-

ference, Jackson, Kollette, Bosse and Wachs proceeded to

a conference room for discussions with Bravo, Lyons, Fet-

terman and Graessle. Jackson and Bosse reviewed the

subpoenas, indicating to Bravo and the agents various

records that were available upon the premises. Jackson

and Bosse also expressed a desire to cooperate by furnish-

ing the available subpoenaed documents and suggested

that Bravo and the agents remain upon the premises to

assist in identifying the records and documents listed in

the subpoenas. To this point in time, neither Bosse,

Wachs nor their attorneys produced any records or

documents, nor did Bravo or the agents expressly insist

that any of the records and documents be produced.

Thereafter, Jackson departed and Kollette, Bosse and

Wachs, under the supervision of Kollette, commenced the

collection and inventory of the records and documents

ultimately produced. From approximately 10:15 a.m. until

3:20 p.m., Bosse, Wachs and Kollette, in consultation

with Bravo, examined a number, but not all, of the

records and documents listed in the subpoenas. At various

intervals throughout this period Bosse, Wachs and

Kollette continued intermittently to express a desire to

cooperate in satisfying the requirements of the subpoenas.

Any examination of records by Bravo or the agents was

pursuant to and upon express consent of Bosse, Wachs,

with no objection from Kollette. Not once during the en-

tire period did any of these individuals request or direct

Bravo or the agents to leave the premises.

26a

The documents produced pursuant to Kollette’s direc-

tion were placed in a four-drawer metal filing cabinet and

three cardboard containers. Bosse expressed an inability

to provide the necessary transportation, prompting Lyons

to offer assistance of a truck, to which proposal Bosse

agreed. When the file cabinet and cartons had been

placed into a truck for transportation to the courthouse,

Lyons inquired of Bosse if his colleagues were desirous of

accompanying the records in the truck to the courthouse.

Besse, Wachs, and Orrico, who had arrived at approx-

imately 2:35 p.m., declined the invitation and walked to

the Federal Courthouse on Public Square, accompanied by

their legal counsel, Kollette.

The testimony given by Orrico is in conflict, to a

degree, with the testimony offered by the Government’s

witnesses, who testified that no one at any time during

the entire period they were upon the premises, requested

or directed them to leave and that all of the parties ar-

ticulated on numerous occasions an intention and desire

to cooperate. Orrico, on the other hand, testified that

upon his arrival on the scene at approximately 2:35 p.m.,

he became incensed and highly indignant upon being

served a forthwith subpoena duces tecum (Gov’t Exh. 3)

and demanded that the agents leave the premises without

the records and documents. He further testified that he

conveyed these sentiments to Bosse and Wachs as well as

Jackson, whom he had called by telephone after his out-

burst directed to the agents and Bosse. In any event,

subsequent to his conversation with Jackson, the records

and documents were removed without objection from

Kollette, Bosse or Wachs.

Jackson, who appeared as a witness, confirmed Bosse’s

testimony that he received a telephone call from the lat-

ter on the morning of September 10, 1976, advising him

27a

of the circumstances at the fifth floor offices of the

plaintiffs. He also testified that he directed Kollette to

the premises for the purposes of advising Bosse,

thereafter arriving himself between approximately 10:20

and 10:45 a.m.; Jackson further disclosed that during his

initial conference with Bosse, Wachs and Kollette, he ex-

amined both a search warrant and the forthwith sub-

poenas duces tecum, explained the ramifications of the

said documents, including the necessity, to seek interven-

tion of a federal judge either for enforcement or quashing

the subpoena duces tecum and thereupon placed the deci-

sion of which course to pursue upon his clients. It was

collectively decided between the parties that Jackson

would express a desire to cooperate with the Government,

but it was the true intention of the parties to contest the

subpoenas. Jackson concedes that neither he nor the other

individuals at any time expressed to Bravo or the agents

on the premises any intention to quash the subpoenas,

testimony supported by both Bosse and Wachs. Jackson

testified that he departed the premises at between ap-

proximately 10:30 a.m. and 10:45 am., leaving Kollette

to counsel Bosse and Wachs and to supervise the collec-

tion and inventory of the documents sought by the sub-

poenas. He testified with some ambiguity that he con-

tinued “to work on the matter” and that he placed a

telephone call to Judge Thomas Lambros of the District

Court. The evidence fails to disclose, however, what

resulted from these efforts. What is apparent from the

evidence in its entirety, is the absence of any effort on

behalf of either the law firm of Kohrman & Jackson,

Jackson individually and/or collectively, to initiate any

legal action to quash the subpoenas either during the six

remaining business hours of September 10, the following

day, or during the ensuing six days, when ultimately this

action was belatedly commenced.

28a

In considering plaintiff's contention that their corporate

records were the subject of an illegal search and seizure

in contravention of the Fourth Amendment, it is im-

perative at the outset to distinguish between the produc-

tion of documents commanded by a subpoena duces tecum

and seizure thereof pursuant to a search warrant.

A subpoena duces tecum is a summons to produce

documents or other material, the implementation of which

may be, in the absence of voluntary compliance, chal-

lenged before a court prior to the imposition of sanctions.

On the other hand, a search warrant is a self-executing

document, issued by the Court upon a showing of pro-

bable cause, with sanctions attaching immediately for

failure to comply therewith. Thus, the crucial distinction

between these two documents, as articulated by Justice

McKenna in his concurring opinion in Hale v. Henkel,

201 U.S. 43, 80 (1905) is:

a search implies a quest by an officer of the law: a

seizure contemplates a forcible dispossession of the

owner. Nothing can be more direct and_ plain;

nothing more expressive to distinguish a subpoena

from a search warrant. Can a subpoena lose this

essential distinction from a search warrant by the

generality or speciality of its terms? I think not. The

distinction is based upon what is authorized or

directed to be done,—not upon the form of words by

which the authority or command is given. “The quest

of an officer” acts upon the things themselves,—may

be secret, intrusive, accompanied by force. The ser-

vice of a subpoena is but the delivery of a paper to

a party,—is open and aboveboard. There is no ele-

ment of trespass or force in it. It does not disturb

the possession of property. It cannot be finally en-

forced except after challenge, and a judgment of the

court upon the challenge.

29a

In the case sub judice, the plaintiffs concede that the

documents that are the subject of their Rule 41(e) Motion

were produced pursuant to the Grand Jury subpoena

duces tecum, not the search warrant. Yet they maintain

that production pursuant to the forthwith subpoena in

this instance must be viewed as a warrantless search and

seizure, in which the Government failed to meet its

burden of establishing the plaintiffs’ consent thereto, as

mandated by the Supreme Court in Schneckloth v.

Bustamonte, 412 U.S. 218 (1973).

The Court is appreciative that in the proper cir-

cumstances, a forthwith subpoena duces tecum can be so

Sweeping in its reach as to constitute an unreasonable

search and seizure, thereby violating the Fourth Amend-

ment. Hale v. Henkel, supra at 76. Yet, assuming arguen-

do, that the instant subpoena duces tecum is so broad as

to infringe on the plaintiffs Fourth Amendment rights,

the Court is constrained to conclude that the Government

met its burden of proving plaintiff's consent to any

search.

As enunciated by the Supreme Court in Schneckloth,

supra, the voluntariness of a search “is a question of fact

to be determined from the totality of all the cir-

cumstances.” Jd. at 227. Further, knowledge of the right

to refuse consent is but one factor to be considered. Id.

Upon review, it is clear that in the totality of the cir-

cumstances, the continuous presence of plaintiffs’ at-

torneys on the premises of 514 Prospect Avenue, and the

active role of legal counsel in advising and influencing

plaintiffs’ decision to comply, precludes the Court from

finding that plaintiffs’ compliance with the subpoena was

involuntary.

First, the FBI agents in no way restrained Bosse from

seeking legal counsel from Jackson immediately upon ser-

30a

vice of the search warrant and subpoena. Second, plain-

tiffs complied with the subpoena only after conferring

with Jackson and upon his advice as to the legal

ramifications of the document. See, United States v. Re,

313 F. Supp. 442 (S.D. N.Y. 1970). Third, although plain-

tiffs seek to minimize Kollette’s professional experience as

well as his presence on the premises throughout the en-

tire day, the fact remains that Kollette is a member of

the law firm of Kohrman & Jackson, and he was

specifically instructed by Jackson to monitor, collect, in-

ventory and deliver all documents presented, thereby

undermining any implication by plaintiffs that Kollette

was operating in a merely clerical capacity.

A second significant factor supporting the Court’s

determination that the compliance was voluntary is the

numerous references to the desire, communicated both by

plaintiffs and their legal counsel, to cooperate with the

Grand Jury. Moreover, the Court cannot ignore the tele-

phone call from Jackson’s law clerk received by Douglas

Roller, Special Attorney for the United States Department

of Justice, also assigned to the Strike Force, subsequent

to the delivery of the documents to the Grand Jury,

wherein he was told that plaintiffs’ legal counsel did not

intend to challenge the subpoena. The six-day delay in fil-

ing of this Motion is further reflection of the plaintiffs’

initial decision to not resist the subpoena. Indeed, had

plaintiffs pursued, as they did in related case, the

available legal remedies to quash the subpoenas issued

herein at any time prior to the use, by the Grand Jury,

of the documents produced thereunder, this Court may

very well have held as it did in the related case, when

the issue was properly joined. See, United States v. Ryan,

402 U.S. 530 (1971). However, the query is merely

academic at this point in time.

3la

The Court is cognizant that there is a conflict in the

testimony with regard to the voluntariness of the com-

pliance. However, after having observed the witnesses’

manner of testifying, their candor or lack thereof; their

intelligence, interest and bias, together with all other cir-

cumstances surrounding their testimony, the Court elects

to assign greater credibility and weight to the Govern-

ment’s witnesses than to plaintiffs’.

To that end, the Court concludes that, contrary to

Bosse’s testimony, the Government neither reviewed

documents nor entered into any physical space without

the express permission of the plaintiffs. Moreover, the

Court finds that not only did the plaintiffs, including Or-

rico, fail to demand that the FBI agents depart the

premises, but to the contrary, the agents’ continued

presence was, in fact, requested to assist in the gathering

of the documents.

Furthermore, assuming that the Court had determined

that Orrico had demanded that the agents leave, it is ap-

parent that, in light of the subsequent events, such de-

mand is without legal significance. The evidence presents

some confusion in that Bosse, Wachs and Orrico testified

that each was the custodian of the records subpoenaed,

without further evidence of official capacity or position

with the corporations. The Court is faced with the ob-

vious dilemma of two individuals’ articulating voluntary

compliance and one, if Orrico’s testimony is to believed,

objecting. Absent definitive testimony as to official ca-

pacity, the Court must infer authority to comply, as

developed by the testimony and actions of the individual

parties. Viewing the testimony in its entirety, it is ap-

parent that from the outset Bosse assumed the dominant

role, formulating the decision to seek legal counsel, direct-

ing Wachs, Kollette and Jackson in their respective ac-

32a

tions, and counseling, to the point of directing, Orrico to

conform to his instructions. The Court is therefore con-

strained to conclude that Bosse, if anyone, had the

authority to order compliance with the subpoenas, which,

in this case, constituted a waiver of possible Fourth

Amendment infringement. See, Schwimmer v. United

States, 232 F.2d 855, 860 (8th Cir.), cert. denied, 352

U.S. 833 (1956).

In light of the identity of the subpoenas served on

Bosse, Wachs and Orrico, and the admission by each of

his role as custodian of the records, the decision by any

one of the three to voluntarily comply enabled the

Government to properly obtain all the records over any

objection by either of the other two.

Finally, plaintiffs urge the Court to adopt a per se rule

that consentual compliance can never exist when produc-

tion is obtained pursuant to an overly broad forthwith

subpoena duces tecum. In support thereof, the Court’s at-

tention is directed to Bumper v. North Carolina, 391 US.

543, 549 (1968), wherein the Supreme Court stated:

A search warrant conducted in reliance upon a war-

rant cannot later be justified on the basis of consent

if it turns out that the warrant was invalid. The

result can be no different when it turns out that the

State does not even attempt to rely upon the validity

of the warrant, or fails to show that there was, in

fact, any warrant at all. When a law enforcement of-

ficer claims authority to search a home under a war-

rant, he announces in effect that the occupant has

no right to resist the search. The situation is instinct

with coercion—albeit colorably lawful coercion. When

there is coercion there cannot be consent.

33a

The Court concludes that the extension of the Bumper

principle to vitiate consent when production of documents

is obtained pursuant to an invalid subpoena duces tecum

would not be appropriate. First, as heretofore noted, the

coercion inherent in a search warrant is far greater than

that existent in a subpoena duces tecum. Indeed, that the

agents cannot seize documents in the face of a custodian’s

refusal to comply with a subpoena duces tecum, Mancusi

v. DeForte, 392 U.S. 364 (1968), serves, in large part to

dissipate any aura of coercion therein. Moreover, in the

wake of the Supreme Court's refusal to adopt a per se

rule regarding consentual searches in Schneckloth, supra,

opting instead to employ a factual analysis of each case,

reflects the disfavor in which such per se rules are held

and clearly militates against the extension plaintiff seeks,

The Court’s decision that plaintiffs’ Fourth Amendment

rights have not been violated is limited to the facts and

circumstances of this case, and should not be construed as

an indication of what this Court might conclude under

similar circumstances but involving unsophisticated in-

dividuals acting without advice of legal counsel.

Accordingly, plaintiffs’ Motion fer Return of Seized

Property, pursuant to Rule 41(e), Fed. R. Crim. P., must

be and hereby is denied. It appearing to the Court,

however, that the great volume of documents subpoenaed

from petitioners could understandably impede the opera-

tion of their business for a protracted period, the Court

hereby OrpDERS the Government to return to petitioners

the originals of all documents produced pursuant to the

instant subpoenas duces tecum by October 18, 1976. This

Order does not preclude the Government from copying

any or all such records.

IT IS SO ORDERED.

ROBERT KRUPANSKY

United States District Judge.

34a

Order

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

No. C76-998

~~~

i CONSUMER CREDIT INSURANCE AGENCY, INC., et al.,

ci ‘ ‘

i: Plaintiffs,

f —Vv.—

Unirep STATES OF AMERICA,

Defendant.

—<>—

Filed October 7, 1976.

In accordance with the Order filed herein on Oct. 6,

1976,

IT IS ORDERED that plaintiff's motion for return of seized

property is denied. |

IT IS FURTHER ORDERED that the Government return to peti-

tioners the originals of all documents produced pursuant

to the instant subpoenas duces tecum by October 18,

1976. The Government is not precluded from copying any

or all such records.

RoBerRT B. KRUPANSKY

| United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.