EFTA00186707.pdf

EFTA00186707  U.S. Departme A- Justice U.S. Department of Justice United States Attorney Southern District ofFlorida SOO South Australian Ave., Suite 400 West Palm Beach F September 5, 2006 Grand Jury Coordinator State Attorney's Office 15th Judicial Circuit of Florida West Palm Beach, Florida Re: Federal Grand Jury Subpoena Dear Ms. Thank you for your assistance regarding the transcript of the proce edings from the State's grand jury related to Jeffrey Epstein. I have done some additional resear ch regarding the procedures for obtaining the tapes or transcripts from those proceedings.' The cases that I have enclosed suggest that the appropriate way is to issue a federal grand jury subpoena to the party currently in possession of the tapes and/or transcripts of the proceedings. From my conversatio ns with you and your staff, you currently possess the materials. I reviewed the state statutes governing the release of grand jury transc ripts, and both Sections 905.17(1) and 905.27 refer to the.release of the transcripts upon an order of "a court;" they do not specify that the order must be issued by the Palm Beach County Court. The cases that I have enclosed both involve orders issued by a federal court that compel the production of the transcripts. If you feel that you must file a motion to quash the grand jury subpo ena, or if you would like to state in writing your inability to produce the transcript absent a court order , we can proceed before the United States District Judge who empaneled the federal grand jury. If you prefer to proceed by motion, I can assist in notifying the Court of the motion, which should be filed ex parte and under seal in accordance with the Federal Rules of Criminal Procedure. If, instead, you prefer to proceed by stating in writing that you cannot produce the items without a court order, I can file a Motion to Compel with a proposed order for the United States District Judge to sign. 'From our conversation and my conversation with , it appears that the proceedings may not yet have been transcribed. The enclosed subpoena calls for the tapes or the transcripts. If you would prefer to produce the tapes to be transc ribed by one of our grand jury stenographers, that would satisfy the subpoena. EFTA00186708  GRAND JURY COORDINATOR SEPWAKBER5,2006 FA0132 The subpoena calls for the production of the tape(s) or transcripts by September 15, 2006. If you need any additional time, please let me know. If you have any questions or concerns, please do not hesitate to call me. Thank you for your assistance. Sincerely, R. Alexander Acosta United States Attorney By: Assistant United States Attorney cc: Special Agent F.B.I. EFTA00186709  United States District Court SOUTHERN DISTRICT OF FLORIDA TO: CUSTODIAN OF RECORDS SUBPOENA TO TESTIFY STATE ATTORNEY'S OFFICE 15th Judicial Circuit of Florida BEFORE GRAND JURY Palm Beach County FGJ 05-02(WPB)-Fri./No. OLY-10/2 SUBPOENA FOR: n PERSON X DOCUMENTS OR OBJECTISI YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. t PLACE: ROOM: Room 4-A I Palm Beach County Courthouse Juvenile Courts Building 205 N. Dixie Highway DATE AND TIME: West Palm Beach, Florida 33401 (Temporary location for the United States District Courthouse, West Palm Beach) September 15, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Tapes or transcripts of any and all proceedings before the Grand Jury on Wednesday, July 19, 2006, referring or relating to Jeffrey Epstein and/or S including but not limited to witness testimony, statements made by any member of the State Attorney's Office, and instructions given by any member of the State Attorney's Office. Please coordi • of this subpoena and confirm the date and trance with Special Agent Federal Bureau of Investigation, Telephone Please see additional information on reverse This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court. CLERK DATE: August 28, 2006 (BY) DEPUTY CLERK This subpoena is issued upon application ne Address and Phone Number of Assistant U.S. Attorney of the UnitctStates of men' , o. Us ra We -6235 Fax •If not applicable. enter "none." rout iv, 11c0 of A0110 FORM ORD-227 EFTA00186710  824 F.Supp. 330 824 F.Supp, 330 Page 11 (Cite as: 824 F.Supp. 330) C United States District Court, grand jury investigation after police officers refused W.D. New York. to cooperate, subpoena was definite and did not call In the Matter of Subpoena Duces Tecum Directed to for production of unreasonable amount of the Honorable Kevin M. documents, United States had strong interest in DILLON, District Attorney of Erie County. insuring just enforcement of its criminal laws, and Civ. No. 92-13A. privacy limitations on federal grand jury documents limited potential harm from disclosure. Fed.Rules Feb. 20, 1992. Cr.Proc.Rules 6(e), 17, 18 U.S.C.A.; N.Y.McKinney's CPL § 190.25, subd. 4. State district attorney moved to quash subpoena duces tecum issued by federal grand jury seeking [5J Grand Jury C=36.3(1) production of slate grand jury records as part of 193k36.3(1) investigation into whether police officers violated federal criminal civil rights statute when making [5] States C=18.63 arrests. The District Court, Arcara, J., held that 360k18.63 federal grand jury was entitled to transcripts and State statutes which preclude disclosure of slate tapes of state grand jury testimony of grand jury records to general public cannot be used uncooperating police officers. to prevent federal grand juries from obtaining records through subpoena. Motion to quash denied. [6] Grand Jury €36.4(1) West Headnotes 193k36.4(1) Custodian of records, who is proper party for [1] Grand Jury C=25 service of federal grand jury subpoena, is person or 193k25 entity who is in actual possession of documents at Grand jury is to be afforded wide latitude in time subpoena is issued. N.Y.McKinney's CPL § conducting its investigation. 190.25, subd. 4. [2] Grand Jury C^=36.4(2) [7] Grand Jury C=41.10 193k36.4(2) 193k41.10 Federal grand jury subpoena may not be Basic purposes of New York grand jury secrecy unreasonable or oppressive, it may not violate laws are: to prevent accused from escaping before constitutional, common law or statutory privilege. being indicted; Fed.Rules Cr.Proc.Rule 17(c), 18 U.S.C.A. to prevent tampering with witnesses; and to protect accused person who is not indicted from unwarranted exposure. [3] Grand Jury eft=a36.9(2) N.Y.McKinney's CPL § 190.25, subd. 4. 193k36.9(2) Federal grand jury subpoenas are presumed to be [8] Witnesses C=184(1) reasonable and party seeking to quash subpoena 410k184(1) bears burden of showing that compliance would be Evidentiary privileges protect confidential unreasonable or oppressive. Fed.Rules communications between persons in special Cr.Proc.Rule 17(c), 18 U.S.C.A. relationships from disclosure and arc generally disfavored in that privileges impede search for [4] Grand Jury C=36.4(2) truth. I93k36.4(2) Federal grand jury was entitled to subpoena [9] Grand Jury tS=36.3(2) transcripts and tapes of state grand jury testimony of 193k36.3(2) police officers as part of investigation to determine When faced with claim that grand jury should be whether officers violated federal criminal civil denied evidence because of privilege, reviewing rights laws during or after arrests; disputed court must weigh potential harm from disclosure testimony was relevant and necessary to federal against benefits of disclosure. © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186711  824 F.Supp. 330 (Cite as: 824 F.Supp. 330, *331) Page 12 •331 John J. DeFranks, J. Michael Marion, Asst. Following the conclusion of the state trial, the Erie County Dist. Attys. (Kevin Dillon, Eric District Attorney's Office presented the case to an County Dist. Atty., of counsel), Buffalo, NY. Erie County grand jury that considered whether the officers' actions during and after the arrest of Mr. Russell P. Buscaglia, Asst. U.S. Atty. (Dennis C. Aiken and Mr. Johnson constituted violations of Vasco, U.S. Atty., W.D.N.Y., of counsel), state law. The United States, which was then Buffalo, NY. conducting *332 its own investigation, delayed taking any action in the matter in order to prevent DECISION AND ORDER interference with the state investigation. The Erie County grand jury declined to return criminal ARCARA, District Judge. charges against any of the police officers. As a result, the state investigation into the police officers' Presently before the Court is a motion to quash a conduct concluded in approximately November, subpoena duces !cum, pursuant to Fed.R.Crim.P. 1990. 17, filed by Kevin M. Dillon, District Attorney for Erie County, New York. The District Attorney's When the District Attorney's Office concluded its motion seeks an order from this Court quashing a investigation, the United States conducted an federal grand jury subpoena for state grand jury independent review of the matter and concluded that records. The parties were given an opportunity to a federal grand jury investigation was warranted. brief and argue their respective positions. After After further investigation, evidence was presented reviewing the submissions of the parties and hearing to a federal grand jury in October, 1991. argument from counsel, the Court denies the District Attorney's motion to quash the subpoena. The United States claims that the federal grand jury investigation has reached a logjam because of the BACKGROUND refusal of the police officers to cooperate with the A federal grand jury investigation is currently Federal Bureau of Investigation ("FBI"). being conducted regarding an incident which Moreover, none of the officers who are most occurred on March 8, 1990 in the Main Place Mall, seriously implicated in the investigation submitted Buffalo, New York, involving the arrest of Mark any written reports regarding the alleged incident, Aiken and Steven Johnson by officers of the Buffalo nor did most of the officers who were present and Police Department. Specifically, a federal grand should have witnessed the incident. Thus, the jury is investigating allegations that certain officers United States argues that reviewing the transcripts of the Buffalo Police Department violated federal and tapes of the state grand jury testimony of the criminal civil rights laws during and after the arrest police officers is the only way that it will be able to of Mr. Aiken and Mr. Johnson. [FNI] learn the officers' versions of what happened. FNI. The background and focus of the federal The United States initially attempted to obtain the grand Jury investigation is set forth in greater detail state grand jury material through informal means. in an la camera submission of facts surrounding the federal grand jury investigation submitted by When these efforts failed, a grand jury subpoena the United States. was issued to the District Attorney's Office on October 25, 1991 for the production of the grand The District Attorney's Office prosecuted Mr. jury transcripts or tapes of all witnesses who Aiken and Mr. Johnson on numerous state testified in this matter before the Erie County grand misdemeanor charges arising from this incident. jury. At the request of the District Attorney's During the state trial, only two of the six or more Office, the return date was delayed until January 8, officers who were either involved in or witnessed 1992, in an effort to facilitate the resolution of this the incident in question actually testified. matter. Consequently, the state trial shed little light on the When further efforts to resolve the matter failed, officers' versions of the allegations that are the the District Attorney filed the present motion to focus of the federal criminal civil rights quash, raising four objections to the production of investigation. the state grand jury material. First, the District Attorney argues that compliance would be O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186712  824 F.Supp. 330 (Cite as: 824 F.Supp. 330, '332) Page 13 unreasonable because it would force him to violate would be unreasonable or oppressive, the District state law relating to grand jury secrecy. Second, Attorney must prove that (1) "there is no reasonable he argues that the subpoena was served upon the possibility that the category of materials the wrong party. Third, the District Attorney contends Government seeks will produce information relevant that compliance would be unreasonable because it to the general subject of the grand jury's would violate policies of comity. Finally, he investigation;" or (2) the subpoena is too indefinite; contends that the subpoenaed grand jury records are or (3) compliance would be overly burdensome. Id. privileged. After applying these tests to the instant case, the Court finds that the District Attorney is unable to DISCUSSION rebut the presumption that the federal grand jury [1][2][3] It is well-established that a federal grand subpoena is reasonable. jury is to be afforded wide latitude in conducting its investigation. See United States v. R. Enters., [4] Regarding the relevancy question, the United Inc., 498 U.S. 292, 297-98, 111 S.Ct. 722, 726, States has set forth in some detail, both in its motion 112 L.Ed.2d 795 (1991); United States v. papers and in its in camera submission, the reasons Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d underlying the need for the state grand jury records. 561 (1974). "A grand jury investigation 'is not The United States has been unable to obtain the fully carried out until every available clue has been information contained in the grand jury records run down and all witnesses examined in every from other sources because the police officers have proper way to find if a crime has been committed.' been unwilling to cooperate with the investigation. " Branzburg v. Hayes, 408 U.S. 665, 701, 92 Accordingly, the Court finds that the statements of S.Ct. 2646, 2667, 33 L.Ed.2d 626 (1972) (quoting the police officers and other witnesses who testified United States v. Stone, 429 F.2d 138, 140 (2d before the state grand jury are relevant and Cir.1970)): In re Grand Jury Subpoena for the necessary to the federal grand jury investigation. Prod, of Certain New York State Sales Tax Records, 382 P.Supp. 1205, 1206 (W.D.N.Y.1974) (quoting It does not appear that the District Attorney Stone, 429 F.2d at 140). In accordance with its challenges the subpoena as being too indefinite or broad mandate to investigate possible criminal overly burdensome. activity, a federal grand jury has few limitations The Court notes that the subpoena is discreet and calls for the production of placed on its subpoena powers. R. Enters., 498 specific material stemming from a particular state U.S. at 297-98, 111 5.O. at 726. "A grand jury grand jury investigation. Thus, the subpoena is 'may compel the production of evidence or the sufficiently definite. Further, the subpoena does testimony of witnesses as it considers appropriate, not call for the production of an unreasonable and its operation generally is unrestrained by the amount of documents. Consequently, producing technical procedural and evidentiary rules governing the requested material would require minimal effort the conduct of criminal trials.' " Id. (quoting on the part of the District Attorney's Office and Calandra, 414 U.S. at 343, 94 5.O. at 617). The therefore would not be overly burdensome. only restrictions that have been placed upon the grand jury concern reasonableness and privileges. The District Attorney argues that compliance with A grand jury subpoena may not be unreasonable or the subpoena would be unreasonable because it oppressive, and it may not violate a constitutional, would place him in a position where he would be common law or statutory privilege. Branzburg, 408 violating state law provisions relating to grand jury U.S. at 688, 92 S.Ct. at 2660; Fed.R.Crim.P. secrecy. Specifically, the District Attorney argues 17(c). Grand jury subpoenas are presumed to be that N.Y.Crim.Proc.Law § 190.25, subd. reasonable and the party seeking to quash the 4, requires that state grand jury materials be kept subpoena bears the burden of showing that secret and therefore prohibits him from turning over compliance would be unreasonable or oppressive. the subpoenaed grand jury records to the United R. Enters., 498 U.S. at 300-02, 111 S.Ct. at 728. States. He contends that the only way the United States can gain access to these materials is to file a *333 In this case, the District Attorney contends motion in state court pursuant to that compliance with the subpoena would be N.Y.Crim.Proc.Law § 190.25, subd. 4. The unreasonable. In order to meet his heavy burden Court finds this argument without merit. of showing that compliance with the subpoena 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works . EFTA00186713 824 F.Supp. 330 Page 14 (Cite as: 824 F.Supp. 330, *333) [5] Federal courts have consistently held that state 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971); In re statutes which preclude disclosure of records to the 1980 United States Grand Jury Subpoena Duces general public cannot be used to prevent federal Tecum, 502 F.Supp. 576, 579-80 (E.D.La.1980); grand juries from obtaining the records through a United States v. Grand July Investigation, 417 subpoena. The cases of In re Grand Jury F.Supp. 389, 393 (E.D.Pa.1976). Thus, the case Subpoena for New York State Income Tax Records, law clearly establishes that state law provisions 468 F.Supp. 575 (N.D.N.Y.), appeal dismissed, relating to grand jury secrecy do not preclude a 607 F.2d 566 (2d Cir.1979), and In re Grand Jury federal grand jury from obtaining state grand jury Subpoena for the Prod. of Certain New York State records pursuant to a subpoena. Sales Tax Records, 382 F.Supp. 1205 (W.D.N.Y.1974), are particularly relevant to the [6] The District Attorney further argues that the case at hand. Both cases involved federal grand grand jury subpoena was not served upon the proper jury subpoenas issued to officials of the New York party. Specifically, the District Attorney contends State Department of Taxation for the production of that pursuant to the state grand jury secrecy law, certain tax records. The petitioners moved to quash N.Y.Crim.P.Law § 190.25, subd. 4, the state court the subpoenas on the grounds that compliance has the ultimate and exclusive control over the would be in violation of certain secrecy provisions subpoenaed grand jury material and, therefore, is of New York State tax laws. These laws are very the actual custodian of the grand jury records. similar to N.Y.Crim.Proc.Law § 190.25, subd. 4, Thus, the District Attorney argues that the grand which the District Attorney relies on in his motion. jury subpoena should have been served on the The courts in these cases explicitly rejected the presiding state court judge rather than the District argument that compliance was unreasonable because Attorney. The Court disagrees. it would force the state officials to violate state law secrecy provisions. The courts ruled that the A custodian of records is the person or entity who Supremacy Clause must prevail over the state is in actual possession of the documents at the time nondisclosure provisions. As the court in In re the subpoena is issued. In re Grand Jury Impaneled Grand Jury Subpoena for New York State Income Jan. 21, 1975, 541 F.2d 373, 377 (3d Cir.1976) Tax Records stated: (citations omitted). In order to testify competently The Supreme Court has several times indicated as a records custodian, a witness must be able to that, by virtue of the supremacy clause, state verify the authenticity and completeness of the legislation must yield whenever it comes into requested documents. conflict with an Act of Congress or the superior authority of the Constitution. Thus, inasmuch as In this case, the District Attorney does not dispute the federal *334 grand jury is a product of the the fact that his office possesses the requested grand Fifth Amendment and its powers, as a result of its jury material, nor does he deny that the grand jury long history and specific Congressional attention, materials were generated as a result of an the conflict between state confidentiality investigation conducted by his office. provisions and Congressional or constitutional Accordingly, the District Attorney's office is the investigatory powers has resulted in enforcement sole entity that can competently testify as to the of federal grand jury subpoenas despite state authenticity ' and completeness of the requested statutes which would otherwise prohibit material. The presiding state court judge does not compliance. possess the subpoenaed materials nor would he or In re Grand Jury Subpoena for New York State she have any knowledge concerning the authenticity Income Tax, 468 FSapp. at 577 (citations omitted). or completeness of the grand jury records. Thus, Courts in other Circuits, relying on the Supremacy the Court fords that the District Attorney's Office is Clause, have similarly rejected claims from state the custodian of the state grand jury records and is officials that compliance with a federal subpoena therefore the proper party to be served with the would force them to violate state confidentiality subpoena. laws. See, e.g., In re Special April 1977 Grand Jury, 581 F.2d 589, 593 n. 3 (7th Cir.), cert. The District Attorney also contends that compliance denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d with the federal grand jury subpoena would be 705 (1978); Carr v. Monroe Mfg. Co., 431 F.2d unreasonable because it would violate policies of 384, 388 (5th Cir.1970), cert. denied, 400 U.S. comity. Specifically, the District Attorney © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186714 824 F.Supp. 330 Page 15 (Cite as: 824 F.Supp. 330, *334) contends that, just as the federal government has an Id. 468 F.Supp. at 578. interest in protecting the secrecy of federal grand jury material, the state has an interest in protecting Finally, the District Attorney contends that the state grand jury material from disclosure. Thus, motion to quash should be granted because the the District Attorney argues that, in order to show subpoenaed materials are privileged. Specifically, proper deference to the State's interest in the the District Attorney argues that the state grand jury confidentiality of the grand jury records, the United secrecy law creates a federal privilege under States should be required to move initially for Federal Rule of Evidence 501. The Court finds disclosure before the presiding state court judge. this argument without merit. The Court finds that no such requirement exists. [8] Evidentiary privileges protect confidential [7] The Court recognizes that "policies of comity communications between persons in special and federalism require some deference to the relationships from disclosure. By their very nature objective sought to be achieved by state they impede the search for the truth and are confidentiality provisions." In re Grand Jury therefore generally disfavored. Tranunel v. United Subpoena for New York State Income Tax Records, States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 468 F.Supp. at 577. The basic purposes of the L.Ed.2d 186 (1980); Herbert v. Lando, 441 U.S. state grand jury secrecy laws in question are: (1) to 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); prevent an accused from escaping before he is United States v. Nixon, 418 U.S. 683, 709-10, 94 indicted; (2) to prevent tampering with witnesses; S.Ct. 3090, 3108- 09, 41 L.Ed.2d 1039 (1974). and (3) to protect an accused person who is not Accordingly, "the party asserting a privilege bears indicted from unwarranted exposure. People v. the burden of proving the applicability of the McAdoo, 45 Misc.2d 664, 257 N.Y.S.2d 763, privilege," In re Bevil!, Bressler & Schubnan Asset aff'd, 51 Misc.2d 263, 272 *335 N.Y.S.2d 412, Management Corp., 805 F.2d 120, 126 (3d cert. denied, 386 U.S. 1031, 87 S.Ct. 1479, 18 Cir.1986), and privileges, "whatever their origins L.Ed.2d 592 (1967). ... [should] not [be] lightly created or expansively construed." Nixon, 418 U.S. at 710, 94 5.O. at In this case, compliance with the federal grand jury 3109. subpoena will not subvert New York's interest in maintaining the secrecy of grand jury proceedings [9] When faced with a claim that a grand jury because federal grand jury proceedings are also should be denied evidence because of privilege, the conducted secretly. The secrecy requirements of reviewing court must weigh the potential harm from Fed.R.Crim.P. 6(e), will adequately ensure that disclosure against the benefits of disclosure. none of the purposes of the state grand jury secrecy American Civil Liberties Union of Miss., Inc. v. laws are undermined by compliance with the federal Finch, 638 P.2d 1336, 1343 (5th Cir.1981). In this grand jury subpoena. See In re New York Grand case, the federal grand jury is investigating possible Jury Subpoena for State Income Tax Records, 468 violations of federal criminal civil rights laws by F.Supp. at 577-78; see also United States v. Field, police officers of the Buffalo Police Department. 532 F.2d 404, 407-08 (5th Cir.1976), cm. denied, As fully explained in the United States' in camera 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309; In re statement of facts, the subpoenaed documents are Grand Jury Empaneled Jan. 21, 1975, 541 F.2d at vital to the grand jury investigation and are not 377-78. simply needed to assess credibility of potential witnesses. In addition, the information sought to Moreover, it is important to note that comity is a be obtained from the subpoenaed material is not policy which must be balanced against "the otherwise available since the police officers are necessity of thorough grand jury investigations into unwilling to talk to the FBI. Thus, the grand jury violations of federal law." In re Grand Jury may not be able to learn the truth of the allegations Subpoena for New York State Income Tax Records, without the subpoenaed material. 468 F.Supp. at 577. In this case, the subpoenaed documents are necessary to the federal grand jury On the other side of the scale, the potential harm investigation. Thus, the policy of comity must from disclosure of the state grand jury material is yield to the constitutional right and duty of the minimal. Because Pcd.R.Crhn.P. 6(e) limits federal grand jury to conduct a broad investigation. disclosure of federal grand jury material, the O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186715 824 F.Supp. 330 Page 16 (Cite as: 824 F.Supp. 330, *335) secrecy of the subpoenaed documents would be violates any recognized privilege. Furthermore, closely guarded. Thus, since the benefits of because of the secrecy provisions of the federal disclosure in this case substantially outweigh the grand jury, little or no prejudice would result to the potential harm from disclosure, the Court fords that state from compliance with the federal grand jury the state grand jury records are not privileged as a subpoena. matter of federal common law. See Matter of Special April 1977 Grand Jury, 581 F.2d at 592-93; CONCLUSION In re Grand July Proceeding, 563 F.24 577, 582-85 For the reasons stated, the Court denies the District (3d Cir.1977); In re Grand Jury Ernpaneled Attorney's motion to quash the federal grand jury January 21, 1975, 541 F.2d at 382-83. subpoena. This Decision and Order and the entire In sum, the United States has a strong interest in file are to be filed under seal. ensuring the just enforcement of its criminal laws. Public policy has long favored giving the grand jury It is so ordered. broad powers of investigation. The District Attorney, who has the burden of proving that the 824 F.Supp. 330 subpoena should be quashed, has failed to establish *336 that the subpoena is unreasonable or that it END OF DOCUMENT (0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186716  832 F.2d 554 832 F.2d 554, 24 Fed. R. Evid. Serv. 275 Page 1 (Cite as: 832 F.2d 554) United States Court of Appeals, the case is not ripe for appellate review until the Eleventh Circuit. subpoenaed party has actually been asked to reveal In re GRAND JURY PROCEEDINGS—Subpoena to specific material covered by the assertive privilege. State Attorney's Office. Thomas H. Greene, Dawson A. McQuaig, Jake [4] Grand Jury tE , 36.9(2) Godbold, Don McClure, Intervenors- 193k36.9(2) Appellants. Federal common-law presumption of grand jury Nos. 87-3228, 87-3412--87-3414, and 87-3472. secrecy cannot be asserted in the form of a privilege by those seeking to prevent disclosure to a federal Oct. 26, 1987. grand jury of their state grand jury testimony. Rehearing and Rehearing En Banc Denied Dec. 10, Fed.Rules Cr.Proc.Rule 6(e), 18 U.S.C.A. 1987. [5] Grand Jury C=41.10 Persons whose state grand jury testimony had been 193k41.10 subpoenaed by a federal grand jury appealed from order of the United States District Court for the [5] Witnesses C=184(I) Middle District of Florida, Nos. MISC-J-86.183-14, 410k184(1) MISC-J-86-183- 4, Susan H. Black, J., which Florida statute imposing secrecy on grand jury denied motions to suppress subpoenas. The Court proceedings does not create an evidentiary of Appeals, Tjoflat, Circuit Judge, held that: (1) privilege. West's F.S.A. § 905.27; Fed.Rules appellants could appeal denial of the motions to the Evid.Rule 501, 28 U.S.C.A. extent that they asserted a privilege, but (2) Florida *555 Lamar Winegeart, III, Arnold, Stratford & statute imposing secrecy on grand jury does not Booth, Jacksonville, Fla., for Greene. create evidentiary privilege. Elizabeth L. White, Sheppard & White, William Affirmed in part and dismissed in part. Sheppard, Jacksonville, Ha., for McQuaig. West Headnotes Lacy Mahon, Jr., Jacksonville, Ha., for appellants. [1] Criminal Law Cr 1023(3) Robert W. Merkie, Curtis S. Fallgatter, M. Alan 1101(1023(3) Ceballos, Asst. U.S. Attys., U.S. Attorney's Grand jury proceeding is not a "civil action" for Office, Jacksonville, Ha., for appellee. purposes of statute permitting interlocutory appeals in civil actions with respect to controlling questions Appeals from the United States District Court for of law. 28 U.S.C.A. § 1292(b). the Middle District of Florida. [2) Criminal Law 4=1023(3) Before TJOFLAT and KRAVITCH, Circuit 110k1023(3) Judges, and TUTPLE, Senior Circuit Judge. Persons whose state grand jury testimony had been subpoenaed by federal grand jury could appeal the TJOFLAT, Circuit Judge: denial of their motions to quash the subpoenas to the extent that they asserted a privilege as to the Appellants appeal from an order of the district material, but could not raise issues of procedural court denying their motion to quash a federal grand violations or federal-state comity on appeal. jury subpoena directing a state prosecutor to produce transcripts of their testimony before a state [3] Criminal Law €1023(3) grand jury. We affirm. 110k1023(3) When party has been subpoenaed to testify or produce records for grand jury and third-party I. In 1985, the State Attorney's Office for the Fourth merely fears that privileged material may be Judicial Circuit of the State of Florida initiated a disclosed along with other, nonprivileged material, grand jury investigation into allegations of improper O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00186717  832 F.2d 554 (Cite as: 832 F.2d 554, *555) Page 2 influence peddling by certain public officials of the ruling against disclosure. City of Jacksonville. Witnesses appearing before Greene and McQuaig then moved the court to permit them to intervene the state grand jury included the four appellants in pursuant to Fed.R.Civ.P. 24 and to file similar this case: Jake Godbold, then the mayor of motions to quash. In his motion to intervene, Jacksonville, Don McClure, Godbold's chief McQuaig asserted