846 F2d 1382 Grand Jury Subpoena Fenster v. United States Grand Jury Subpoena Chow

846 F.2d 1382

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

In re GRAND JURY SUBPOENA.
Alan FENSTER, Witness-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
In re GRAND JURY SUBPOENA.
David CHOW, Intervenor-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

Nos. 87-6087, 87-6088.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 1988.
Decided May 6, 1988.

Before FARRIS, BOOCHEVER and REINHARDT, Circuit Judges.

1

MEMORANDUM*

2

This appeal concerns a grand jury subpoena served on appellant Alan Fenster, an attorney for appellant David Chow. Fenster and Chow moved the district court to quash the subpoena, claiming the attorney-client privilege. They also claimed privileges under the fifth and sixth amendments and asserted that the subpoena was overbroad. The district court denied the motions. Fenster and Chow appeal1 on the same grounds and further claim that they were entitled to an additional hearing on the matter before the district judge. We affirm the district court's decision.

3

On January 7, 1987, the grand jury subpoenaed Fenster to testify and directed him to produce all documents in his possession or under his control concerning the income or assets of Chow or of any entity owned or controlled by Chow. These documents were to include (but were not limited to) ten specific categories; the subpoena covered documents for the period January 1, 1979, to date. Fenster moved to quash the subpoena on the grounds noted above; Chow moved to intervene2 and to quash the subpoena on the same grounds. Following a hearing in the district court, Fenster filed a declaration under seal along with several documents he believed were encompassed by the subpoena. After reviewing these materials, and without any further hearing, the district court denied the motions.

4

We note first that the only materials at issue in this appeal--the documents Fenster filed under seal--fall under category number nine of the subpoena, namely documents reflecting or relating to Chow's ownership, wholly or in part, of any real estate. Therefore we need not consider the validity of the remainder of the subpoena. The district court found that the documents in question did not fall within the scope of the attorney-client privilege. After reviewing the documents and Fenster's declaration, we agree with the district court that the material at issue is not privileged.

5

The appellants also contend that the subpoena interferes with their attorney-client relationship, which is protected by the sixth amendment. They argue that in order to justify such interference, the government must make a preliminary showing that the information sought is relevant to and needed for its investigation. We have already rejected this argument. In re Grand Jury Proceeding (Schofield), 721 F.2d 1221, 1223 (9th Cir.1983) (no affidavit of relevance and need must be introduced); see Tornay v. United States, No. 86-4432, slip op. at 1965 (9th Cir. Feb. 22, 1988) (citing Schofield). The fact that Fenster may be required to testify, as well as to produce documents, does not further threaten the attorney-client relationship to any significant degree, because Fenster can assert the attorney-client privilege in response to particular questions that implicate the privilege. See Fisher v. United States, 425 U.S. 391, 402 n. 8 (1976) (attorney-client privilege may be raised by attorney). This approach is adequate to protect the professional relationship between Fenster and Chow. Under our holding in Schofield, no preliminary showing is required.

6

The appellants' other arguments also fail. Chow's fifth amendment privilege against compelled self-incrimination is a personal privilege which would not be violated by enforcement of a subpoena on his attorney. Fisher, 425 U.S. at 397-99. In any event the documents at issue are not privileged, because their creation was not compelled and because in light of the nature of the documents, the act of producing them cannot be considered either testimonial or incriminating. See United States v. Doe, 465 U.S. 605, 610-12 (1984). The appellants further contend that the subpoena is overbroad because the time period it covers is unreasonable. However, the scope of discovery is left to the trial court's discretion, United States v. Domina, 784 F.2d 1361, 1372 (9th Cir.1986), cert. denied, 107 S.Ct. 893 (1987), and it was well within the scope of that discretion to uphold the reasonableness of this subpoena. Finally, we hold that the district court's determination that a second hearing on the motions to quash was unnecessary in no way deprived the appellants of their due process rights.

7

For the foregoing reasons, the district court's denial of the motions to quash the grand jury subpoena is

8

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Immediate appeal of a denial of a motion to quash a grand jury subpoena is proper when the subpoena is directed to a third party. In re Grand Jury Subpoenas Duces Tecum (Lahodny), 695 F.2d 363, 364-65 (9th Cir.1982)

2

Chow's motion to intervene was granted without opposition from the government