Criminal Law Summaries
First Circuit Strikes Down Massachusetts Local Federal Court Rule in Slap at District Judges. McDade Act Not a Factor.
Stern v. United States District Court for the District of Massachusetts, 2000 WL 361662 (1st Cir. 2000).
In a broad and stunning opinion a First Circuit panel has struck down a local federal court rule which required federal prosecutors to engage in an adversarial hearing and obtain judicial approval before issuing grand jury or trial subpoenas to attorneys. Local Rule 3.8(f), patterned on an identical Massachusetts State Bar Rule and on an outdated version of ABA Model Rule 3.8(f), prohibited federal prosecutors from issuing grand jury or trial subpoenas to attorneys "to present evidence against a past or present client" unless: (1) the prosecutor reasonably believed that: (i) the information sought was not privileged; (ii) the evidence sought was essential to the successful completion of an ongoing investigation or prosecution; and (iii) there was no other feasible alternative to obtain the information; and (2) the prosecutor obtained prior judicial approval after an adversarial hearing.
The United States Attorney for the District of Massachusetts, Donald K. Stern, filed suit against the local federal judiciary. The court below, in Stern v. SJC, 184 F.R.D. 10 (D. Mass. 1999), read subparagraphs (1) and (2) independently. It upheld the prior judicial approval and adversarial hearing requirements of subparagraph (2) but did not require a federal district court to apply the subparagraph (1) requirements in deciding whether to approve an attorney subpoena. The subparagraph (1) requirements would be relevant however to potential disciplinary proceedings against the prosecutor.
The First Circuit, in a sweeping opinion by Judge Selya, refused to parse the Rule in this unnatural manner. "[J]udicial preapproval under subparagraph (2) of the rule proceeds, if at all, on the basis of the substantive standards elucidated in subparagraph (1)." It held, moreover, that the Rule as properly construed was beyond the power of the lower federal judiciary to propound in both the trial and grand jury contexts.
Using United States v. Williams, 504 U.S. 36 (1992) as a benchmark, the court noted the very limited power of local federal rules to affect the grand jury process. A local federal rule may not encroach upon a core attribute of the grand jury or alter the fundamental relationship between the prosecutor, the supervising court, and the grand jury. Local Rule 3.8(f) did precisely that by, inter alia, imposing substantive new requirements for the issuance of grand jury subpoenas, mandating judicial preapproval through the application of such requirements, inducing procedural delays, compromising grand jury secrecy, and hampering the broad investigatory powers of the grand jury.
The validity of Local Rule 3.8(f) in the context of criminal trial subpoenas was a closer call. The relevant inquiry was whether application of the rule would likely "affect the ultimate outcome of criminal proceedings." The First Circuit held that it would because the Federal Rules of Criminal Procedure render subpoenas duces tecum reasonable if a proponent can show relevancy, admissibility, and specificity and render subpoenas ad testificandum reasonable if the proponent can show that the testimony sought is relevant and material. By way of contrast, the Rule 3.8(f) proponent must show that the information sought is "essential, not privileged, and not otherwise easily available." The court gave examples of situations where such a standard would be difficult to meet and where, as a result, potentially relevant, outcome-affecting evidence would be excluded.
The court distinguished Whitehouse v. United Sates District Court for the District of Rhode Island, 53 F.3d 1349 (1st. Cir. 1995), in which the First Circuit upheld a version of Rule 3.8(f) fashioned by the local federal judiciary of Rhode Island. In Whitehouse, the version of Rule 3.8(f) at issue had been interpreted to require judicial preapproval (albeit in an ex parte and/or in camera setting if the prosecutor so desired) of grand jury and trial subpoenas to attorneys, but the Whitehouse holding "rested squarely on the panel’s determination that the particular local rule worked no substantive change in the governing law because judicial preapproval would be granted or denied under traditional motion-to-quash standards." (The Whitehouse court had noted that, in effect, the version of Rule 3.8(f) it dealt with only changed the timing with respect to a certain class of motions to quash.)
The court also held that the McDade Act, 28 U.S.C. Section 530B(a), did not moot any conflict between Local Rule 3.8(f) and federal law. The McDade Act, entitled "Ethical Standards for Attorneys for the Government," provides that: "An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each state where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State." Judge Selya reasoned that if Congress had meant to tamper with the uniformity of the Federal Rules of Criminal Procedure in passing the McDade Act, it would have done so more clearly and specifically. Instead, ignoring the potential for conflict between state and local federal ethics rules on the one hand and federal law on the other, it left the "details of enforcement" to the Department of Justice ("DOJ") to fashion through regulation. These regulations in turn provide that the McDade Act "should not be construed in any way to alter federal substantive, procedural, or evidentiary law." The court also held that Local Rule 3.8(f), whatever its title, was not really an ethical rule and therefore did not come within the purview of the McDade Act which applies only to ethical standards.
This case represents a smashing victory for the DOJ in its longstanding feud with the criminal defense bar and certain segments of the federal judiciary over the powers of federal prosecutors and the reach of local "ethics" rules. Judge Selya’s opinion is a good introduction to some of the history of that feud. This holding, however, is clearly just a battle in what promises to be a protracted war within the federal circuits. The ruling contains two key holdings: (1) local federal court rules cannot trump the Federal Rules of Criminal Procedure with respect to core grand jury functions such as the substantive requirements (and the procedures) for issuing grand jury subpoenas; and (2) the McDade Act was not intended to alter the uniformity of the Federal Rules of Criminal Procedure and will only apply to bar rules which are truly ethical in nature.