7/5-/2-pi,"

7/5-/2-pi," Fee • Serial Charge Out Date/4/2-D/ ; — FO-5 (Rev. 10-13-89) Last Serial O Panting O Closed /fi Re_b k,h9tLe-2-15 J-0pm nen /y)Aii-roo Employee RECHARGE Date To From Employee Location Date charged FOP RBI< CONFIDENTIAL 3501.226-037 Page I of 46 EFTA_00075880 EFTA01248965 February 26, 2015 Via Federal Express Federal Bureau of Investigation Ann: FOI/PA Request Record/Information Dissemination Section Federal Bureau of Investigation Denartment of Justice RE: FOIA Request for pictures, videos and documents relating to Dear FOIA Officer, (represent (a.k.a. and pursuant to the federal Freedom of Information Act. 5 U.S.C. 552 we are requesting the copies of materials relating to Specifically, was interviewed by the FBI on March 17, 2011. A FD-302 report was entered on July 5, 2013. See Exhibit A. During the interview process. the FBI agents informed that they had retrieved from Jeffrey E stein's homes, video to s CDs and DVDs, pictures and documents, that include video tapes of pictures of and documents (including but not limited to e-mails and other records discussing It is our understanding that these images include naked images of and included images of IMIE who was a minor at the time, being forced to engage in sexual acts with adults and other minors. We are requesting copies of these materials. It is our understanding that the materials were collected from the following residences owned by Jeffrey Epstein. 1) 358 El Brillo Way Palm Beach, Florida 33480 2) Little St. James 6100 Red Hook Quarters, Suite B3 St. Thomas. Virgin Islands 00802 CONFIDENTIAL mvt-iow4 - ,255 3501.226-037 Page 2 of 46 EFTA_00075881 EFTA01248966 • SOIES. SCHILLER & FlEXNER• LLP Letter to Federal Bureau of Investigation February 26, 2015 Page 2 3) 9 E. 7131 Street New York, NY 10021-4102 4) 5) This request covers the time period of June 1999 to December 2002. We agree to pay reasonable duplication fees for the processing of this request in an amount not to exceed $5000, without prior authorization. If our request is denied in whole or in part, we ask that you justify all deletions by reference to specific exemptions in the act. We will also expect that you will release all segregable portions of otherwise exempt material. We of course, reserve the right to appeal your decision to withhold any information. We have included in our submission a Certification of Identity from our client MK such that records can be released tc her attorney. SSM Enclosures Sincerely, CONFIDENTIAL 3501.226-037 Page 3 of 46 EFTA_00075882 EFTA01248967 I EXHIBIT A CONFIDENTIAL " ZIM4 76 131,1,00%5883 EFTA01248968 a -1 of 12- FEDERAL BUREAU OF INVESTIGATION , maiden name Social Security Account Number Australian Permanent Resident, Consulate in interviewing agents and purpose of the interview. Present during interview was Federal Bureau of Investiga ion Special Agent i United States Attorney' following information: 1 Datedenty 07/05/2013 , date of birth United States Citizen and was interviewed at the United States was advised of the identity of the the and via telephone, Assistant was born inl I current' resides in and currently resides in Beach County, Florida with her parents when returned to at age 11. She returned to Florida at age 13 and was placed in a rehabilitation or foster care facility in West Palm Beach, Florida. provided the to parental f birth, date of birth moved to Palm she was four years old and ran away from the rehabilitation facility when she was approximately 14 years old, and while living on the streets in Miami, Florida, she met' Iwas training to be an escort 'gave a life off of the streets which made her feel mve pwmm 03/17/2011 m File I by In Person) DetedmilW 07/05/2013 This document contains nett recommaxlations nor caulunons of the FBI. It is the property of the FBI and is loaned to your agency, it and its contents are not to be dntributed outride your agency. CONFIDENTIAL b6 b7C b6 b7C b6 b7C b6 b7C 3501.226-037 Page 5 of 46 EFTA_00075884 EFTA01248969 / ( 00 (Rev 05-06-10) eomon of FD-302 of a like she was locked into the relationship pharmaceutical drugs toward the end of their on 03/17/2011 , per 2 of 12 gave relationship. b6 b7c relationship with) fended while she was at a private ranch near Ocala, Florida. telephonically contacted a childhood friend,) from a telephone at the ranch. knewl 'from elementary school and called him at the home telephone of his parents told) Ishe was very lonely, an sked her why she did not leave telephone conversation with the recreational vehicle Mrs staying in at the ranch) Idid not strike her) Ipack her belongings and told her she was going to live with another man. b6 b7C 1 1 1 1 b6 felt that she was sent t lbut did not know the b7C specifics of the arrangement. engaged in sexual activity with 'who was described as a white male I approximately one or two weeks before the police located her and returned her to her parents. was interviewed by a male detective. parents were still married at the time and lived near Florida. stated stayed withi jLNV for believed there was an FBI investigation related to She never saw again after In approximately June 1998 or 1999 began working at Donald Trump's Mar-A-Lago Club in Palm Beach, Florida. father lwas able to help her gain employment as a baby sitter and later as a locker room attendant at the club. started studying for her GED and wanted to become a massage therapist. In Au ust, was reading an anatomy/massage book and was approached by land help her get her masseuse accreditation Irr consulted her father about the opportunity and at a roximately 5:00 p.m. the same day, her father drove her to a residence at CONFIDENTIAL b6 b7C 3501.226-037 Page 6 of 46 EFTA_00075885 EFTA01248970 r • „omo(Rsoos-0840 a 1 COMMON:'' of FD-302 of Florida. spoke with it was a wonderful opportunity for lalso known as upstairs' O„ 03/17/2011 p h se 3 of 12 father and told him met was led Once upstairs En' 'instructed beginning the massage. The massage bega techniques to to wash her hands prior to demonstrated massage 1,6 b7C I b6 b7C During the course of the massage, uestioned b6 about her past, including her time as a runaway. was also b7C asked if she took birth control. was given instruction and began kissing' I At the conclusion,) 'instructed to obtain two warm wash clothes. One wash cloth was used to clean second was' to help him relax. describe and then moved to the steam room with soap and a loofah in the shower. and shower where massaged At the conclusion of the shower, went downstairs and' Arrangements were made for to return to the house the following day after work. cellular phone number was given tol CONFIDENTIAL b6 b7C b6 b7C b6 b7C b6 b7C 3501.226-037 Page 7 of 46 EFTA_00075886 EFTA01248971 .00410,4440 a a e Continuation of FD-302 of O, 03/17/2011 no 4 of 12 The same routine and pattern of massages and sexual activity between land continued for between one and two weeks. At times, loffered the option to quit her job at Mar-A-Lago and travel There was also discussion of receiving massage training. was to be paid $200.00 per day for travel and $200.00 per hour for massages. Early in her relationship with! land was introduced as[ met( soon began traveling traveled( (around including California, New York City, tri s. During those trips,( assistant. Six to nine months after For the initial six months, the United States and Caribbean, New Mexico, and various business began working for was introduced tol PU,I in IFlorida. I lat the time. met the couple at a condominium next to the (The condominium was bought) land was a In the condominium, e t. NU. Shortly thereafter,[ 'LAU provided an erotic massage to provided a normal massa RE and cleaned) paid cash paid years old at the timer- Kntroduced her to the drug Xanax. She explained that Xanax still function normally. with land others. pills per day. doing eight She was IIn addition, was 16 advised! helped her escape from reality but allowed her to Xanax helped her go forward with what she was Her habit went from two pills per day up to second client was an academic of some sort described as an older American male) from Miami Int rnational Airport tol (by commercial airline. airport byl land then taken to the CONFIDENTIAL 'sent was picked up at the island by boat. b6 b7C b6 b7C b6 b7C b6 b7C b6 b7C 1,6 b7C 3501.226-037 Page 8 of 46 EFTA_00075887 EFTA01248972 )0Lociter 05-0S-10) a contract prevented period. advised informatio (CCIIISI011 of 11).302 of ct 03/17/2011 my 5 of 12 pointed out that 'instructed to entertain the client' land wanted to ride jet skis and participate in other island activities' spent two days on the island with the client. commercially. I assumes the client also traveled Durina th following several months, traveled internationally I Prior to her traveling abroad ssisted in getting her pass ort. got passport photographs of herself and provided them t he remaining paperwork was taken care of by I l l traveled to Paris, France, the South of France, London, England, Africa, and Spain. While in Paris, recalled staying at a hotel overlooking the Champs-Elysees. While traveling) traveled on I a black plane. During the international travel,' lAt times, would 'Rarely a day would pass' land wanted to talk to - 'contacted thro h land offered a contract. agreed to the contract for her story and was paid $)40,000 for the story, $10,000 when the article was printed, and another $10,000 to be wired into account in May 2011. The from talking to any other press for a specified that she provided' Faith detailed CONFIDENTIAL b6 b7C b6 b7C b6 b7C b6 b7C b6 b7C 3501.226-037 Page 9 of 46 EFTA_00075888 EFTA01248973 "Ass(Rev 05.08-10) • a fr i Cool:rowan of FD-302 of 0, 03/17/2011 spar 6 of 12 At age 16, met believed she and were approximately the same ail!: an would dress , though 'explained I provided an rEMIM described' b6 b7C b6 b7C b6 b7C b6 b7C b6 b7C An unknown individual b6 b7C saw] when she arrived at I =III' had' said that day because she could not was a low stage in her relationship believe' never CONFIDENTIAL 3501.226-037 Page 10 of 46 EFTA 00075889 EFTA01248974 Otev.05-08-10) 4 Or Continuation of FD-302 of saw .0, 03/17/2011 ht, 7 of 12 believed the girls may have been' but was not certain ofr 'involvement. had a picture of herself she wanted to give' described some of the unique interior areas of which referred to Jwhich stayed. was where While in New York, also stayed at an apartment on 66th street was aware ofl 'additional apartments in the same building. According tor- Jthe apartment building on 66th street was owned by] advised that she had a photo raph of the interior of the 66th Street apartment among other photos advised that some of her photographs that were provided to her civil attorneys by her family were not returned. One of the missing photos depicted wearing a pink dress while seated on a quad bike. ILNU was (female that formerly lived in' CONFIDENTIAL b6 b7C b6 b7C b6 b7C b6 b7C b6 b7C 3501.226-037 Page 11 of 46 EFTA_00075890 EFTA01248975 (litv 03-03-10) e Comma:me of FD-302 of a a 0„ 03/17/2011 joir 8 of 12 LNU and went shopping together and purchased clothing and sex to s. explained that I used a cellular telephone' IShe believed it was a New York City number but could not recall the number. and could only remember faces' did not unsuccessfully to get 'not their names. but she did try recalled' but she could not recall the wording. U. rIIIIIII advised' traveled' to a self-help conference at a hotel in New Orleans, Louisiana. The hotel s near the Ha d Rock Café in New Orleans. traveled the world 'ncluding the VSVI, New York, Santa Fe, Palm Beach, France, Africa, Spain and the United Kingdom. I recalled visiting Alhambra Castle in Spain. I I. eventually traveled to the United Kingdom and CONFIDENTIAL b6 b7C b6 b7c 126 b7C b6 b7C b6 b7C 3501.226-037 Page 12 of 46 EFTA 00075891 EFTA01248976 v 05-OH0) Cootinunkm of FD-302 of while there' 'approached her they had to go shopping to pick out a dress because would be dancing with' I and' $went shopping and purchased makeup, clothini, and a Burberr ba . The items were purchased with' an returned' I instructed to get ready. When came down after getting ready, she was introduced to On 03/17/2011 Jaw 9 of 12 in a very excited manner and told danced' traveled to CLUB TRAMP 'at CLUB TRAMP' 'stayed at CLUB TRAMP for an hour or hour and a half and drank a couple of cocktails before returning to had not received any direction from After returning t4 requested' Ito take a photograph of her' advised that she still had the original photograph in her possession and would provide it to the interviewing agents. proceeded with Approximately two months later, met] lat recalledi LNU, recalled' 'joking about trading in because she was getting too old. CONFIDENTIAL b6 b7C b6 b7C b6 b7C 3501.226-037 Page 13 of 46 EFTA_00075892 EFTA01248977 .102.(Rei 05-08-10) a Communion of FD-302 call11115 I. MIME On 03/17/2011 " age 10 of 12 milt recalled meeting was using Xanax heavily at time, and her recollection was not clear. She remembered there were many models on the island that did not speak English along with a modeling person who had an unknown accent. I I 'did not have a problem with using prescription drugs. 'was described by as a I (TRUE NAME UNKNOWN a ranch employee inl flout could not recall his name. Sle did have a photograph of the ranch employee. met numerous famous people jincluding acadiemics, politicians, and celebrities. She me Ian I H and! received many gifts, lincluding jewelry, watches, bags, shoes, make up, cloth Ina. and home furnishings.' left all of the items behind when she traveled to Thailand to receive massage training. I I In August 2002, traveled by commercial airline to and began her massage training at International Training Massage Sch.. TM where she received hpr mamsaae certification. She stayed at the contacted y and had fallen in ove with someone. CONFIDENTIAL b6 b7C b6 b7c b6 b7c b6 b7c b6 b7C b6 b7c b6 b7C 3501.226-037 Page 14 of 46 EFTA_00075893 EFTA01248978 4902Javw0544-10 Ccetinusuon of FD-302 of .00 03/17/2011 , putt 11 of 12 had not heard from' received a telephone call from[ 'During that call/ stated he was an FBI agent. He was trying to determine what she knew about She did not tell' anything about her knowledge of She also received another telephone call from a person that indicated he was an FBI agent. She did not tell that individual anything either. She also received a call from an attorney that was trying to determine if she had spoken with anyone or was willing to speak to anyone' 'She explained that she was receiving telephone calls from people whom she did not know and that she was uncomfortable telling them anything over the telephone. One or two weeks later, an unknown attorney andf 'contacted telephonically.' was using a cellular telephone belonging to her husband. She nor her husband could recall the telephone number but advised that the carrier was OPTUS telephone company. b6 b7C b6 b7C the reviewed following: a series of photographs of individuals and identified Page Page 1, number 1, b6 b7C ILNU, a.k.a 1, number 2, Page Page Page 2, number 1, 2, number 6, 3, number 2, Page Page Page Page 4, number 3, 4, number 7, 4, number 8, 5, number 1, LNU advised that the following were familiar to her, but she could not recall their names or her association to them: CONFIDENTIAL 3501.226-037 Page 15 of 46 EFTA_00075894 EFTA01248979 May 2001 CPB Commotion of FD-302 of Page 1, number 4 Page 2, numbers 7 and 8 Page 3, number 8 Page 4, number 1 Page 5, numbers 5 and 8 ,, 03/17/2011 pan 12 of 12 The images reviewed by were placed in a lA envelope of the case file. When questioned about United States Customs and Border (CBP) Patrol records of her entries into the United States, advised t at her p January 2001 record was the return from her London, England trip IThe April 2001 CBP record was her return to the United States, March and Passport was turned over to the United States Consulate in Sydney, Australia. could not recall her travel from records. advised that her United States On March 18, 2011, writer, SAI land traveled to residence where she provided 20 photographs and her ITM massage school certification. FD-597 Receipts for Property were executed for the items and a copy was provided to . It is noted that the receipts were dated based on the United States Eastern Standard Time Zone date. The photographs, certification and original FD-597s were placed in a lA envelopes of case file. CONFIDENTIAL b6 b7C 1,6 b7C 3501.226-037 Page 16 of 46 EFTA_00075895 EFTA01248980 r • • FORM APPROVED OMB NO. It 53 ROM EXPIRES0M/O Privacy Act Statement. In accordance with 28 CFR Section 16.4 lid) personal data sufficient to identify the individuals submitting requests by mail under the Privacy Act of 1974. 5 U.S.C. Section 552*. is required. The purpose of this solicitation is to ensure that the records of individuals who are the t of U.S. meat of Justice stems of records are not wen full disclosed th mina! penalties under IS U.S.C. Section 1001 and/or 5 U.S.C. Section 552a( 3). Public reporting burden for this collection of information is estimated to average 0.50 hours per response. including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Suggestions for reducing this burden may be submitted to the Office of Information and Regulatory Affairs. Office of Management and Budget. Public Use Reports Project (1103-00161. Washington. DC 20503. Full Name of Requester Citizenship Status 2 k..X C•-• ;-• 12 en Social Security Number 3 Current Address Date of Birth Place of Birth OPTIONAL: Authorization to Release Information to Another Person This form is also to be completed by a niquestrt oho is authorizing information relating to himself or herself to be released io another person. Further. pursuant to 5 US. ,, • on relating to me to: I declare under penalty of perjury war ie 6R of the toted Stake of America that the foregoing is true and cone* and that I am the person -lamed above. and I understand tint Wry laisirration of this statemen is punishable under the provisions of IS U.S.C. Section 1001 by a fate of 'Kg mom than 510,000 or by implication* of sot let en five years a both. and that requesting a obtaining any record(s) under false =tenses is punishable wider the provision of 5 USC 5520101 by a hive of not more de $5,000. Signature ' Date Ca-/ ce-S 'Name of individual who is the subject of the teat) sone& : Individual submitting a request under the Privacy Act of Pin ilea be either citizen of the United States a an alien lawfully atoned for permanent residence," pursuant to 5 1.1SC Sedan, 552ata)(2). Requests will be processed as Freedom of Information Act equests pursuant to 5 U.S.C. Section 552. rather than Privacy Act requests. for individuals who are not United States citizens or aliens awfully admitted for permanent residence. ' Providing your social security number is voluntary. You are asked to provide your social security number only to facilitate the ientification of records relating to you. Without your social security number, the Department may be unable to locate any or all records enaining to you. 4Sipature of individual who is the subject of the record sought. CONFIDENTIAL WIDLI PINS V..' 3501.226-037 Page 17 of 46 EFTA_00075896 EFTA[ADDRESS REDACTED] CRIMINAL DIVISION P.O. Box 2906 West Palm Beach, FL 33402-2906 SHARON R. BOCK Clerk & Comptroller Palm Beach County PP IP CONFIDENTIAL EFTA _00075897 EFTA01248982 8685L000- Vidg ELECTRONIC COURT REPORTING WITNESS LOG CASE NO. Page ti' s - ----- A 4 • • of ITNESS DIRECT CROSS REDIRECT RE-CROSS REDIRECT CONTINUED RE-CROSS CONTINUED END TTI 1 • hi • 143 10 .002,5' //:3A•eng g:_•47.w :47 /o:56::',Q, •• i 1 • /5 J1:31.7 "fr..- T7a. . . I . 21 : id ,D:s•-frto ' -''.34:siei C-5g4.7 :54 :--)1 "2:fri,53(t, vial OFZ77,0fAi2) ..71mysiiiir,terixe. 2)647-.7-7) 41741 in - ill•A : ArfAry/Aw2t•hkcmv 1 :17: c?2, / :341:51 Defense AttorneYisl: Asst. State Attylsl: .4.t at ik4 aw . A E 214 Ay .4itiAt .2>ite15.4 At EFTA01248983 1VIINKIHNOD 6685L000-VLIM ELECTRONIC COURT REPORTING WITNESS LOG STATE V. - CASE NO. ‘-- 'tr.- / "'IL 4-0 I ' . _me r7 't'd Ai io !WI C rzil A .114/ I Z 'Cr Ara qt.? I I 'L- TIT r i vine •-• F - • . 4.44•• • tr." it: DATE ST or DFS WITNESS DIRECT CROSS REDIRECT RE-CROSS REDIRECT CONTINUEL (74942/4 ,: M : ieR ,/ %!'O:2'4 rr '/).Cl/OZ ff /1: /1 .. /5 1%4Z- tr , c 7/II/a, if 9:21-,Eme ?//9/ev tr li:341.-4q -16eilet, 1/ ti - I " : 5 4. ; 7 ) 1 e W ,t, itt ern/1CW < I f .7.:eitAsi2 ) l 7; : ; ) ,. .7)//r.,:cli a l 2: 14 742 ) *Ak 5 / 4 . B: Bench Conference Defense A torneYisl: *: Motion to Strike Asst. State Atty[s]: 444A/NA 6C-l-(≤WLAVex 4-14-cy Aliov .2),W5AN FomunNoness Log - 2005 EFTA01248984 CONFIDENTIAL 3501.226-037 Page 21 of 46 EFTA_00075900 EFTA01248985 CONFIDENTIAL 3501.226-037 Page 22 of 46 EFTA_00075901 EFTA01248986 CONFIDENTIAL 3501.226-037 Page 23 of 46 EFTA_00075902 EFTA01248987 CONFIDENTIAL 3501.226-037 Page 24 of 46 EFTA_00075903 EFTA01248988 lir -5 -7,//q/a..6. CONFIDENTIAL 3501.226-037 Page 25 of 46 EFTA_00075904 EFTA01248989 CONFIDENTIAL 3501.226-037 Page 26 of 46 EFTA_00075905 EFTA01248990 CONFIDENTIAL 3501.226-037 Page 27 of 46 EFTA_00075906 EFTA01248991 CONFIDENTIAL 3501.226-037 Page 28 of 46 EFTA_00075907 EFTA01248992 CONFIDENTIAL 3501.226-037 Page 29 of 46 EFTA_00075908 EFTA01248993 CONFIDENTIAL 3501.226-037 Page 30 of 46 EFTA_00075909 EFTA01248994 UV/VD/LIMO LU:41 Pets ablOUGildi UbAU lire) ry !WW2 U.S. Department of Justice United States Attorney Southern District of Florida September 6, 2006 DELIVERY BY FACSIMILE Denise Coffinan, Esq. Counsel to the Clerk of Court and Comptroller 15th Judicial Circuit of Florida West Palm Beach, Florida Re: Federal Grand Jury Subpoena Dear Ms. Coffman: Thank you for your agreement to accept service of the attached subpoena by facsimile. As I discussed with Kim Collins, the Clerk of Court is the custodian of the transcripts' of the state grand jury proceedings. Ms. Collins asked me to inform you that the transcripts are kept in the Circuit's Criminal Department. Florida Statute Sections 905.17(1) and 905.27 discuss the disclosure of state grand jury transcripts. Pursuant to those statutes, a transcript can be released upon an order of "a court." The statutes do not require that the order be issued by the Palm Beach County Court. I have attached two cases regarding the procedures for obtaining state grand jury transcripts for use in federal grand jury investigations. 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. The cases that4have enclosed both involve orders issued by a federal court that compel the production of the transcripts. If the Clerk of Court feels that she cannot comply with the grand jury subpoena absent an order from the United States District Court compelling the production, then you must file a motion to quash the grand jury subpoena before the United States District Judge who empaneled the federal grand jury. Alternatively, if you like, you can state in writing your inability to produce the transcript absent a court order, and I can proceed before the United States District Judge by filing a motion to 'I do not know whether the grand jury proceedings have yet been transcribed. The enclosed subpoena calls for the tapes or the transcripts. If you would prefer to produce the tapes to be transcribed by one of our grand jury stenographers, that would satisfy the subpoena. If the Clerk of Court would prefer to have one of the state court stenographers do the transcription. production of the transcripts also would suffice. CONFIDENTIAL 3501.226-037 Page 31 of 46 EFTA 00075910 EFTA01248995 UV/Uti/ZUUli ZU:42 PAA 4b1OUZLIOI USAU $E$ rt. DENISE Comovs ESQ. SEPTEMBER 6, 2006 PAGE 2 compel with a proposed order for the United States District Judge to sign. If you prefer to file your own motion, I can assist in notifying the Court of the motion, which should be filed ex pane and under seal in accordance with Federal Rule of Criminal Procedure 6(e)(5) and (6). 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 'mow. 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 cc: Special Agen By: Assistant United States Attorney CONFIDENTIAL 3501.226-037 Page 32 of 46 EFTA _00075911 EFTA01248996 USAU tlrn rL United States District Court SOUTHERN DISTRICT OF FLORIDA TO: CUSTODIAN OF RECORDS Clerk of Court and Comptroller 15th Judicial Circuit of Florida Palm Beach County Courthouse 205 North Dixie Highway West Palm Beach, FL 3340] SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-17 SUBPOENA FOR PERSON X DOCUMENTS OR OBJECT[S1 YOU ARE HEREBY COMMANDED to appear and testify before the GrandJury oftheUnited StatesDistrict Court at the place, date and time specified below. PLACE: Palm Beach County Courthouse Juvenile Courts Building 205 N. Dixie Highway West Palm Beach, Florida 33401 (Temporary location for the United States District Courthouse, West Palm Beach) ROOM: Room 4-A DATE AND TIME: August 18, 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 d Jury on Wednesday, July 19, 2006, referring or relating to Jeffrey Epstein and/or 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 coord of this subpoena and confirm the date and ranee 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 This subpoena is issucd upon application Name, Address and Phone Number of Assistant U.S. Attorney CONFIDENTIAL September 6, 2006 3501.226-037 Page 33 of 46 EFTA_000759 I2 EFTA01248997 vanv net. CI. tvvv 832 F.2d 554 832 F.2d 554, 24 Fed. R. Evid. Serv. 275 (Cite as: 832 F.2d 554) N United States Court of Appeals, Eleventh Circuit. In re GRAND JURY PROCEEDINGS—Subpoena to State Attorney's Office. Thomas H. Greene, Dawson A. McQuaig, Jake Godbold, Don McClure, Intervenors- Appellants. Nos. 87-3228. 87-3[SSN REDACTED], and 87-3472. Oct. 26, 1987. Rehearing and Rehearing En Banc Denied Dee. 10, 1987. Persons whose sure grand jury testimony had been subpoenaed by a federal grand jury appealed from order of the United States District Court for the Middle District of Florida, Nos. MISC-1-86-183-14, MISC-J-86-183- 4, Susan H. Black, J., which denied motions to suppress subpoenas. The Court of Appeals, Tjofbt, Circuit Judge. held that: (1) appellants could appeal denial of the motions to the extent that they asserted a privilege, but (2) Florida statute imposing secrecy on grand jury does not create evidentiary privilege. Affirmed in part and dismissed in part. West Headnotes (1) Criminal Law C1023(3) 110k1023(3) Grand jury proceeding is not a 'civil action" for purposes of statute permitting interlocutory appeals in civil actions with respect to controlling questions of law. 28 U.S.C.A. § 1292(b). [2] Criminal Law 0=1023(3) 110k1023(3) Persons whose state grand jury testimony had been subpoenaed by federal grand jury could appeal the denial of their motions to quash the subpoenas to the extent that they asserted a privilege as to the material, but could not raise issues of procedural violations or federal-state comity on appeal. (3) Criminal Law it=.1023(3) 110k1023(3) When party has been subpoenaed to testify or produce records for grand jury and third-party merely fears that privileged material may be disclosed along with other, nonprivileged material, Page 1 the case is not ripe for appellate review until the subpoenaed party has actually been asked to reveal specific material covered by the assertive privilege. [4) Grand Jury C=e36.9(2) 193k36.9(2) Federal common-law presumption of grand jury secrecy cannot be asserted in the form of a privilege by those seeking to prevent disclosure to a federal grand jury of their state grand jury testimony. Fed.Rules Cr.Proc.Rule 6(e). 18 U.S.C.A. [5) Grand Jury tE=.41.10 193k41.10 [5] Wimesses C=184(1) 410k184(I) Florida statute imposing secrecy on grand jury proceedings does not create an evidentiary privilege. West's F.S.A. § 905.27; Fed.Rules Evid.Rule 501, 28 U.S.C.A. °555 Lamar Winegeart, III, Arnold, Stratford & Booth, Jacksonville, Fla., for Greene. Eliyanerti White, Sheppard & White. William Sheppard, Jacksonville, Fla., for McQuaig. Lacy Mahon, Jr., Jacksonville, Ha., for appellants. Robert W. Merkle, Curtis S. Fallganer, M. Alan CeibaHos, Asst. U.S. Attys., U.S. Attorney's Office. Jacksonville, Ha.. for appellee. Appeals from the United States District Court for the Middle District of Florida. Before TJOFLAT and KRAYITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge. TJOFLAT, Circuit Judge: Appellants appeal from an order of the district court denying their motion to quash a federal grand jury subpoena directing a state prosecutor to produce transcripts of their testimony before a state grand jury. We affirm. I. In 1985, the State Attorney's Office for the Fourth Judicial Circuit of the State of Florida initiated a grand jury investigation into allegations of improper 0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501.226-037 Page 34 of 46 EFTA_000759 13 EFTA01248998 ustO wpB FL Z 006 832 F.2d 554 (Cite as: 832 F.2d 554, *555) influence peddling by certain public officials of the City of Jacksonville. Witnesses appearing before the state grand jury included the four appellants in this case: lake Godbold, then the mayor of Jacksonville. Don McClure, Godbold's chief administrative aide. Dawson McQuaig, a former general counsel for the city, and Thomas Greene, a practicing attorney and an associate of Godbold's. Each of these witnesses appeared and testified voluntarily. No criminal charges resulted from the state grand jury investigation. In August 1985, however, the state grand jury issued a report that identified several instances in '556 which "political favors and game-playing for friends" had infected the City's process of awarding contracts for professional services. Godbold, McClure, McQuaig, and Greene each waived his right under F1a.Stat. § 905.28(1) (1985) to suppress the report. The report, however, did not contain the substance of their testimony. Meanwhile, federal prosecutors had initiated a federal grand jury investigation into substantially the same matters investigated by the state grand jury. Godbold. McQuaig, McClure, and Greene each indicated that he would assert the fifth amendment if subpoenaed to testify before the federal grand jury. Relying on the disclosure provisions of Fla.Stat. § 905.27(I)(t) (1985). [FNI) the United States in August 1985 petitioned a state judge to order the State Attornenanun nver.to_die federal grand jury the appellants' state grand jury testimony. The United States made to factual suisT4ssion in support of its petition. _The_uate judgtxefused LoSslaracterizing the effort to obtain the testimony as a "fishing expedition." FN1. Under this provision, a court may order disclosure of grand jury testimony for die purpose of "fflurthering justice." in October 1986, the federal grand_nny" issued subpoena duces tecum ordering the State Attorney to produce appellants' state grand jury testimony. The State Attorney moved the federal district court to _quash the subpoima, arguing that disclosure of grand—Wry transcripts was unlawful under Florida IS law, that the United States had not demonstrated sufficient need for the transcripts, and that comity required the district court to honor the state court's Page 2 ruling against disclosure. Greene and McQuaig then moved the court to permit them to intervene pursuant to Fed.R.Civ.P. 24 and to file similar motions to quash. In his motion to intervene. McQuaig asserted that prior to testifying before the state grand jury, he had received assurances from the State Attorney that Florida law prohibited any disclosure of his grand jury testimony. Greene did not allege in his motion that he bad received funilar assurances, but stated that he was entitled to intervene because -state grand jury proceedings [axe] secret and confidential by virtue of the provisions of Chapter 905 of the Florida Statutes.* The district court granted the motions to intervene, and subsequently permitted Godbold and McClure to intervene as well. IFN2) FN2. Godbold and McClure also based their motions to intervene on the Florida grand jury secrecy requirement. The substance of the privilege that appellants assert is discussed in part nr, In November 1986, the district court entered an order inviting the United States to make an ex pane factual submission showing why it needed the state grand jury transcripts. The government declined to accept the invitation and made no submission. The court then entered an order granting the motions to 4,29, quash. Applying the balancing test set forth in Douglas Oil Co. v. Petrol Sr .t Northwest, 441 U.S. 211, 99 S.Ct. 1667. 60 M.2c1 156 (1979), the court found that the government had failed to establish a sufficient need for the testimony. Twenty-eight days after the court granted the motions to quash, the United States filed ''M for Reconsideration of Opinion and Order" along with an ex parte affidavit identifying facts supporting the grand jury's need for the testimony. The district court questioned the procedural correctness of the government's motion for reconsideration, and stated that under ordinary circumstances it would not consider the motion. In the court's view, however, denial of the motion would not prevent the United States from obtaining the testimony: the United States could simply reissue the subpoena and defeat any motion to quash on the strength of the information contained in the ex pane affidavit. The court concluded that the most efficient solution was to consider the newly submitted information in the rontext of the government's motion for reconsideration. Atter 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501.226.037 Page 35 of 46 EFTA_00075914 EFTA01248999 832 F.2d 554 (Cite as: 832 F.2d 554, 4556) considering the new information in camera, the district court entered an amended order in which it reversed its original order denying the motion to quash. The district court certified its amended order for interlocutory *557 appeal pursuant to 28 U.S.C. § 1292(b) (1982 & Supp. 11 1984), and this court granted permission to appeal. The four intervenors appealed, although the State Attorney did not. Appellants make two arguments before this court. First, they argue that the government's motion for reconsideration was untimely and that the district court therefore had no authority to hear it. According to appellants, the applicable time limit for the motion was the ten-day limit of Fed.R.Civ.P. 59(e), not, as the government contends, the thirty-day limit of 18 U.S.C. § 3731 (1982 & Supp. 11 1984). Second, appellants argue that the district courts amended order was in error for the following reasons: (1) the government had failed to demonstrate a sufficient need for appellants' grand jury testimony, and (2) comity required the court to give greater deference to the state judge's decision against releasing the testimony. Because of the nature of our ruling today, we do not reach the merits of these arguments. 11. We first address the threshold issue whether we have jurisdiction to hear this appeal. Although this court granted the intervenors permission to appeal pursuant to section 1292(b), we must of course dismiss the appeal if we are without jurisdiction. See Robinson v. Tanner. 798 F.2d 1378, 1379 (11th Cir.1986) cen. denied. 481 U.S. 1039, 107 S.°. 1979. 95 S.2d 819 (1987). Under section 1292(b), a district court may certify for appeal a non-final order entered in a civil action if the court is of the opinion that the order 'involves a controlling question of law as to which there is substantial ground for difference of opinion' and that resolution of the question 'may materially advance the ultimate termination of the litigation.' By its terms, section 1292(b) applies only to orders in civil actions, and has no application to appeals in crimir.al cases. See United States v. Doucet. 461 F.2d 1095 (5th Cir.1972): United Stares v. Lowe. 433 F.2d 349 (5th Cir.1970). Therefore, we have no jurisdiction to hear this appeal pursuant to section 1292(b) unless the district courts order Page 3 denying the motion to quash can be considered an order entered in a 'civil action.' (1] We hold that a grand jury proceeding is not a 'civil action' for purposes of section 1292(b). lust in terms of the plain meaning of words, it seems self-evident that an order denying a motion to quash a subpoena issued by a grand jury investigating possible criminal violations is not part of a 'civil action.' We base our conclusion on more than a mechanical labeling of the proceedings below, however. By expressly limiting section 1292(b)'s application to 'controlling question[s] of law" in "civil' cases, Congress clearly indicated its intent not to disturb well-established precedent forbidding piecemeal review of grand jury proceedings. In Cobbkdick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 M. 783 (1940), decided eighteen years before Congress enacted section 1292(b), the Supreme Court held that a district court's denial of a motion to quash a grand jury subpoena was not an appealable final decision within the meaning of the predecessor section of 28 U.S.C. § 1291 (1982). Noting that the Constitution itself makes the grand jury part of the criminal process, the Court concluded that "(th is no less important to safeguard against undue interruption the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found." Id. at 327, 60 S.Ct. at 542; see also Di Bella v. United States. 369 U.S. 121, 124, 82 S.Ct. 654, 656-57, 7 M.2d 614 (1962) ('This insistence on finality and prohibition of piecemeal review discourage undue litigiousness and leaden-footed administration of justice, particularly damaging to the conduct of criminal cases.`). Although Cobbledick was based on the principle of finality found in section 1291, that same principle fords expression in section 1292(b). We are unable to conclude that Congress, by authorizing permissive interlocutory appeals of 'controlling question(sJ of law' in 'civil" actions, intended to undermine the strong policy against permitting appellate interruption of grand jury *558 proceedings. Accord In re April 1977 Grand Jury Subpoenas. 584 F.2d 1366, 1369 (6th Cir.1978) ("[Section 1292(b) ] limits interim review of 'a controlling question of law' to civil cases only and, therefore, should not be read to allow interlocutory review or grand jury proceedings.'), cert. denied, 440 U.S. 934, 99 S.Ct. 1271, 59 M.2.d 492 (1979). e 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501.226.037 Page 36 of 46 EFTA 00075915 EFTA01249000 4JUU8 832 F.2d 554 (Cite as: 832 F.2d 554, •5511) [21 We next examine whether there is a separate basis for appellate jurisdiction in this case. As we have already indicated, orders denying motions to quash grand jury subpoenas are ordinarily not appealable foul orders under section 1291. The subpoenaed party can obtain review by refusing to comply with the subpoena and then contesting a contempt citation, which is immediately appealable. See United States v. 402 U.S. 530, 532-33, 91 S.Q. 1580, 1582, 29 M.2c1 85 (1971). The contempt route for obtaining review. however, is not open to a third party who claims a privilege of nondisclosure with respect to materials in the custody of the subpoenaed parry. In such a case, the putative privilege-bolder has no power to compel the subpoenaed party to incur a contempt citation. And the subpoenaed party, unless be has either a particularly close relationship to the putative privilege-holder or a personal interest in nondisclosure of the material is unlikely to risk a contempt citation simply to vindicate the rights of the third parry. In this situation, the order denying the motion to quash is indeed final with respect to the putative privilege-holder, for any prejudice he suffers as a result of disclosure will remain forever unredressed unless appeal is permitted. Accordingly, this circuit follows the so-called Perlman exception to the general rule prohibiting interlocutory appeal of orders denying motions to quash grand jury subpoenas. See In re Grand Jury Proceedings (Twist), 689 F.2d 1351 (I Ith Cir.1982) In re Grand Jury Proceedings (Fine), 641 F.2d 199 (5th Cir. Unit A Mar. 1981); cf. In re International Horizons, Inc., 689 F.2d 996 (11th Cir.1982) (discovery order in bankruptcy proceedings). This exception, derived from Perlman v. United States. 247 U.S. 7, 38 S.Q. 417, 62 M . 950 (1918). and confirmed in United States v. Nunn 418 U.S. 683, 691, 94 S.Ct. 3090, 3099, 41 M.2d 1039 (1974), permits an order denying a motion to quash to be 'considered final as to the injured third party who is otherwise powerless to prevent the revelation.' Fine, 641 F.2d at 202. [3) The circumstances supporting application of the Perlman exception are present in this case. Relying on the Florida grand jury secrecy requirement, appellants in essence assert a privilege of nondisclosure. The material with respect to which they assert the privilege—transcripts of their state grand jury testimony—is in the custody of the Page 4 State Attorney. The State Attorney has indicated his intention to produce the transcripts. In light of these circumstances, the order denying the motion to quash is a final order as far as appellants are concerned. We therefore have jurisdiction to bear their appeal. [F7l3) F113. We note that the wily material sought from the subpoenaed party in this use is material that falls squarely within the privilege asserted by the third parties. This is not a case. thelk, where * party has been subpoenas to testify or product records and a third party mady fears that privileged material may be disclosed along with other, conprivilcectl material. In the law situation. the use is nor ripe for appellate review until the subpoenaed parry has actually been asked to reveal specific material coveted by the asserted privilege. See In it Grand Jury Proceedings (Doe ). 831 F.24 222 (11th Cir.1987). 111. In deciding that the narrow Perlman exception applies in this case, we have also necessarily defined the scope of the matters properly before us for review. Appellants raise several objections to disclosure, including procedural objections and objections based on comity considerations and the need to protect the int Sbheaa jury system. wever, the only matter that the Perinuut exception gives us jurisdiction to review is the appellants' claim_ of to prevent disclosure of their state grand jury testimony. *559 The rationale of the Perlman exception extends only to appeals based on privileges personal to the third party seeking review: if the subpoenaed party has a direct or primary interest. in the right or privilege in question, the concerns giving rise to the Perlman excepticui simply are not present. Here, to the extent that their objections to disclosure are based .on concerns relating to comity and the integrity of the Florida grand jury, appellants cannot argue that the subpoenaed parry bad no interest in seeking to vindicate their derivative right. lam_ the subpoenaed party--the State] Floridanou4 by the Stare tetwney- had ants prima lateness the Protection of its trend jurialtent Accordingly, the Perlman exception does pot give us jurisdiction to review the appellants' arguments concerning comity and the need to preserve the integrity of the Florida grand jury. [FN4) Nor does it give us jurisdiction to review their procedural arguments. Thus, we do not pass upon the district court's disposition of tt 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501.226-037 Page 37 of 46 EFTA_00075916 EFTA01249001 to !sou 832 F.2d 554 (Cite as: 832 F.2d 554, '559) those matters and we turn to appellants' claims of privilege. FN4. We should emphasize that this discussion relates only to appellants' right to appeal under the PCIIMCLIt exception. It does not relate to their standing to raise these claims before the district °NAO. The appellants' motions to intervene in the district court proceedings reveal the nature of the privilege they assert. Appellant McQuaig's motion stated that "[p]rior to appearing before the [state] Grand July, Mr. McQuaig was advised by the State Attorney that pursuant to Section 905.27, F1a.Stat. (1985): a) none of the testimony be provided to the Grand Jury was disclosable under the law; and b) any disclosure of said testimony was a crime: Appellant Green's motion stated that "[the) state grand jury proceedings were secret and confidential by virtue of the provisions of Chapter 905 of the Florida Statutes." Appellant Godbold's motion stated that "testimony was provided with the understanding on the part of lake Godbold that pursuant to § 905.27 of the Florida Seamus. his testimony would not and could not be disclosed under the law." Finally, appellant McClure's motion stated that "[Om substantial interest of Don McClure is equal to or greater than that of the two other parties previously allowed to intervene." In essence, then, appellants derive the privilege they assert from the Florida statutory grand jury secrecy requirement. The statute imposing that requirement provides as follows: (I) A grand juror, state attorney, assistant state attorney, reporter. stenographer. interpreter, or any other person appearing before the grand jury shall not disclose the testimony of a witness examined before the grand jury or other evidence received by it except when required by a court to disclose the testimony for the purpose of: (a) Ascertaining whether it is consistent with she testimony given by the witness before the court: (b) Determining whether the witness is guilty of perjury; or (c) Furthering justice. Fla.Stat. § 905.27 (1985). [FNS) FNS. The remainder of section 905.27 provides as follows: (2) It is unlawful for any person knowingly to publish. broadcast, disclose. divulge, • or communicate to any other person, or knowingly to Page 5 awe or permit to be published. broadcast. disclosed, divulged. or oxamuoicated to any other person in any manner whatsoever, any testimony of a witness examined before the grand jury. or the content, gist, or import thereof, except when such testimony is or has been disclosed in a court proceeding. When a court orders the disclosure of such testimony pursuant to subsection (1) for use in a criminal ease, it may be disclosed to the prosecuting attorney of the court in which such criminal ease is pending. and by him to his assistants, legal associates, and employees, and to. the defendant and his manna, and by the to his legal associates and employees. disclosure is ordaed by a court pursuant to subsection (1) for use in a civil case, it may be disclosed to all parties to the case and to their attorneys and by the latter to their legal associates and employees. However, the gland jury testimony afforded such persons by the court an only be used in the defense or prosecution of the civil or criminal case and for no other purpose whatsoever. (3) Nothing in this season shall affect the attorney. aka relationship. A client shall have the right to communicate to his attorney any testimony given by the client to the greed jury, any mauers involving the diem discussed in the eliem's presence before the grand jinn and any evidence involving the client received by or proffered to the grand jury in the client's presence. (0) Persons convicted of violating this section shall be guilty of a misdemeanor of the first degree. punishable as provided in s. 775.083, or by line not exceeding $5,000, or both. (5) A violation of this section shalt constitute criminal contempt of court. [4] Federal Rule of Evidence 501 provides that privileges in federal court proceedings "560 shall be governed by the principles of the content law as they may be interpreted by the courts of the United States in the light of reason and experience." The privilege appourtut assert, as stated in their motions to intervene, is based solely on state law. [FN6] We acknowledge that some federal courts have recognized state law evidentiary privileges in particular cases when to do so would not substantially burden federal policies. See. e.g., Lora v, Board of Education, 74 F.R.D. 565, 576 (E.D.N.Y.); cf. ACLU v. Finch, 638 F.24 1336, 1342-45 (5th Cir. Unit A Mar. 1981). FN6. In their briefs, appellants suggest that the privilege they assert has an independent basis in the federal common law presumption of grand jury socray. That presumption, which is cod:: in C 2006 ThornsonfWest. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501226-037 Page 38 of 46 EFTA_00075917 EFTA01249002 "(JULY 832 F.2d 554 (Cite as: 832 F.2d 554, '560) Fed.R.Crim.P. 6(c), relates to disclosure of federal grand jury records. It cannot be asserted in the form of a privilege by appellants, who seek to prevent disclosure of their stole grand jury testimony. [5) We need not apply any such balancing test here, however, because we find that the privilege asserted by appellants is without a basis in Florida law. We find no evidence that the Florida courts derive an evidentiary privilege from Fla.Stat. § 905.27. indeed, the Florida Supreme Court has noted that [t]he rule of secrecy concerning matters transpiring in the grand jury room is not designed (or the protection of witnesses before the grand jury, but for that of the grand jurors, and in furtherance of the public justice. A witness before the grand jury has no privilege of having his testimony there treated as a confidential communication.... Stare a rel. Brown v. Dewell, 167 So. 687, 690 (Fla.1936). Florida case law directly construing section 905.27 bits to provide a contrary interpretation of the relationship between the secrecy requitement and the rights of grand jury wimesses. (FN7j Accordingly, we conclude that Page 6 appellants have no privilege of nondisclosure under state law. A federal court will not selectively reach into a state code and fashion evidentiary privileges merely to suit the purposes of the parties before it. FN7. Some Florida cases refer to the 'privilege' of a grand jury witness, but only with reference to the general principle under Florida law that a witness' testimony in a judicial proceeding nowt be used as the basis of a defamation action. See, e.g.. State v. Tilka. Ill S0.24 716 (Fla.Disi.CLApp.1959). Iv. In light of our conclusion that appellants have no privilege of nondisclosure under state law, we affirm the district court's order denying their motion to quash. Because we must observe the limitations on our appellate jurisdiction discussed above, we dismiss their appeal to the extent that it is based on other objections to disclosure. AFFIRMED in pan; DISMISSED in part. 832 F.2d 554, 24 Fed. R. Evid. Sm. 275 END OF DOCUMENT t 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501.226-037 Page 39 of 46 EFTA_000759113 EFTA01249003 wjVA.1. 824 F.Supp. 330 824 F.Supp. 330 (Cite as: 824 F.Supp. 330) C United States District Court, W.D. New York. In the Matter of Subpoena Duce Tecum Directed to the Honorable Kevin M. DILLON, District Attorney of Erie Counry. Civ. No. 92-13A. Feb. 20, 1992. State district attorney moved to quash subpoena duces tecum issued by federal grand jury seeking production of state grand jury records as part of investigation into whether police officers violated federal criminal civil rights statute when making zrrests. The District Court, Arcata, 1., held that federal grand jury was entitled to transcripts and tapes of state grand jury testimony of uncooperating police officers. Motion to quash denied. West Headnotes [I] Grand Jury C=2.5 193k25 Grand jury is to be afforded wide latitude conducting its investigation. Page 11 grand jury investigation after police officers refused to cooperate, subpoena was definite and did not call for production of unreasonable amount of documents, United States had strong interest in insuring just enforcement of its criminal laws, and privacy limitations on federal grand jury documents limited potential harm from disclosure. Fed.Rules Cr.Proc.Rules 6(c). 17, 18 U.S.C.A.; N.Y.McKinney's CPL § 190.25, subd. 4. (5) Grand Jury C=36.3(1) 193k36.3(1) [5) States C='18.63 360k 18.63 State statutes which preclude disclosure of state grand jury records to general public cannot be used to prevent federal grand juries from obtaining records through subpoena. (6J Grand Jury C=36.4(1) 193k36.4(1) Custodian of records, who is proper party for service of federal grand jury subpoena, is person or entity who is in actual possession of documents at in time subpoena is issued. N.Y.McKinney's CPL § 190.25, subd. 4. [2) Grand Jury C=36.4(2) 193k36.4(2) Federal grand jury subpoena may not be unreasonable or oppressive, it may not violate constitutional, common law or statutory privilege. Fed.Rules Cr.Proc.Rule 17(c), 18 U.S.C.A. (3) Grand Jury C=36.9(2) 193k36.9(2) Federal grand jury subpoenas are presumed to be reasonable and party seeking to quash subpoena bears burden of showing that compliance would be unreasonable or oppressive. Fed.Rules Cr.Proc.Rule I7(c), /8 U.S.C.A. 141 Grand Jury C=36.4(2) 193k36.4(2) Federal grand jury was entitled to subpoena transcripts and tapes of state grand jury testimony of police officers as part of investigation to determine whether officers violated federal criminal civil rights laws during or after arrests; disputed testimony was relevant and necect3ry to federal (7) Grand Jury C=41.10 I93k41.10 Basic purposes of New York grand jury secrecy laws are: to prevent accused from escaping before being indicted; to prevent tampering with witnesses; and to protect accused person who is not indicted from unwarranted exposure. N.Y.McKinney's CPL § 190.25, subd. 4. (8) Witnesses C:=7184(1) 410k184(1) Evidentiary privileges protect confidential communications between persons in special relationships from disclosure and are generally disfavored in that privileges impede search for truth. 191 Grand Jury <8=36.3(2) 193136.3(2) When faced with claim that grand jury should be denied evidence because of privilege, reviewing court must weigh potential harm from disclosure against benefits of disclosure. 3, 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501.226-037 Page 40 of 46 EFTA 00075919 EFTA01249004 824 F.Supp. 330 (Cite as: 824 F.Supp. 330, *331) *331 John J. DeFranks, J. Michael Marion, Asst. Erie County Dist. Attys. (Kevin Dillon, Erie County Dist. Auy., of counsel). Buffalo. NY. Russell P. Buscaglia, Asst. U.S. Any. (Dennis C. Vacco, U.S. Atty.. W.D.N.Y., of counsel). Buffalo, NY. DECISION AND ORDER ARCARA, District Judge. • Presently before the Court is a motion to quash a subpoena duce zeta pursuant to Fed.R.Crim.P. 17, filed by Kevin M. Dillon, District Attorney for Erie County. New York. The District Attorney's motion seeks an order from this Court quashing a federal grand jury subpoena %r state grand jury records. The parties were given an opportunity to brief and argue their respective positions. After reviewing the submissions of the panics and hearing argument from counsel, the Court denies the District Attorney's motion to quash the subpoena. BACKGROUND A federal grand jury investigation is currently being conducted regarding an incident which occurred on March 8, 1990 in the Main Place Mall, Buffalo, New York, involving the arrest of Mark Aiken and Steven Johnson by officers of the Buffalo Police Department. Specifically, a federal grand jury is investigating allegations that certain officers of the Buffalo Police Department violated federal criminal civil rights laws during and after the arrest of Mr. Aiken and Mr. Johnson. (FN1) FM. The background and focus of the feelers/ grand jury investiganon is set forth in grater detail in an in camera submission of facts surrounding the federal grand jury investigation submitted by the United States. The District Attorney's Office prosecuted Mr. Aiken and Mr. Johnson on numerous state misdemeanor charges arising from this incident. During the state trial, only two of the six or more officers who were either involved in or wimessed the incident in question actually testified. Consequently. the state trial shed little light on the officers' versions of the allegations that are the focus of the federal criminal civil rights investigation. Page 12 Following the conclusion of the state trial, the District Attorney's Office—nredented the case to an Erie County grand jury that considered whether the officers' actions durmg and after the arrest of Mr. Aiken and Mr. Johnson constituted violations of state law. The United States, which was then conducting *332 its own investigation, delayed 9 taking any action in the matter in order to prevent interference with the state investigation The —Ede_ COurl al— charges against any of the pglice-afficers. As a result, the-state investigation into the police officers' conduct concluded in approximately November, 1990. When the District Attorney's Office concluded its investigation, the United States conducted an independent review of the matter and concluded that a federal grand jury investigation was.aganzanierl--- After further investigation, evidence was presented to a federal grand jury in October, 1991. The United States claims that the federal grand jury investigation has reached a logjam because of the refusal of the police officers to cooperate with the Federal Bureau of Investigation ("FBi"). Moreover, none of the officers who are most seriously implicated in the investigation submitted any written reports regarding the alleged incident, nor did most of the officers who were present and should have witnessed the incident. Thus, the United States argues that reviewing the transcripts and tapes of the state grand jury testimony of the police officers is the only way that it will be able to learn the officers' versions of what happened. The United States initially attempted to obtain the state grand jury material through informal means. When then efforts failed, a grand jury subpoena was issued to the Distriet_Aitornev's Office Am October b, 1991 for the production of t jury transcripts or tapes o all witnesses who testified in this matter before the Erie County grand jury. At the request of the District Attorney's Office, the return date was delayed until January 8, 1992, in an effort to facilitate the resolution of this matter. When further efforts to resolve the matter failed, the District Attorney filed the present motion to quash, raising four objections to the production of the stare trend jury material. First, the District Attorney argues that compliance would be 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL S 3501226-037 Page 41 of 46 EFTA_00075920 EFTA01249005 ••••• II•VVY ilwif • 'MY MS VJAV CUSS 824 F.Supp. 330 (Cite as; 824 F.Supp. 330, •332) unreasonable baniisr it would force him to violate state law relating to grand jury secrecy. Second. he argues that the subpoena was served upon the wrong party. Third, the District Attorney contends that compliance would be unreasonable because it would violate polities of comity. Finally, he contends that the subpoenaed grand jury records are privileged. DISCUSSION [1][2](3) It is well-established that a federal grand jury is to be afforded wide latitude in conducting its investigation. See United States v. R. Enters., Inc., 498 U.S. 292. 297-98, 111 S.Ct. 772, 726, 112 M.24 795 (1991); Uniled States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 M.2t1 561 (1974). "A grand jury investigation 'is not fully carried out until every available clue has been tun down and all witnesses examined in every proper way to find if a crime has been corn/Dined.' " Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.C. 2646. 2667, 33 M.24 626 (1972) (quoting (Inked States v. Stone, 429 F.24 138, 140 (24 Cir.1970)); In It Grand Jury Subpoena for the Prod. of Certain New York State Sales Tax Records, 382 F.Supp. 1205, 1206 (W.D.N.Y.1974) (quoting Stone, 429 F.24 at 140). in accordance with its broad mandate to investigate possible criminal activity, a federal grand jury has few limitations placed on its subpoena powers. R. Enters.. 498 U.S. at 297-98, 111 S.Ct. at 726. "A grand jury 'may compel the production of evidence or the testimony of wimesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.' " Id. (quoting Calandra, 414 U.S. at 343, 94 5.O. at 617). The only restrictions that have been placed upon the grand jury concern reasonableness and privileges. A grand jury subpoena may not be unreasonable or oppressive, and it may not violate a constitutional. common law or statutory privilege. Branthurg, 408 U.S. at 688, 92 S.Ct. at 2660; Fed.R.Crim.13. 17(c). Grand jury subpoenas are presumed to be reasonable and the party seeking to quash the subpoena bears the burden of showing that compliance would be unreasonable or oppressive. R. Ewers., 498 U.S. at 300-02, 111 S.Ct. at 728. •333 In this case, the District Attorney contends that compliance with the subpoena would be unreasonable. In order to meet his heavy burden of showing that compliance with the subpoena Page 13 would be unreasonable or oppressive, the District Attorney must prove that (.1) "there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation;' or (2) the subpoena is too indefinite; or (3) compliance would be overly burdensome. Id. After applying these tests to the instant case, the Court finds that the District Attorney is unable to rebut the presumption that the federal grand jury subpoena is reasonable. [4] Regarding the relevancy question, the United States has set forth in some detail, both in its motion papers and in its in camera submission, the reasons underlying the need for the state grand jury records. The United States has been unable to obtain the information contained in the grand jury records from other sources beem,'te the police officers have been unwilling to cooperate with the investigation. Accordingly, the Court finds that the statements of the police officers and other witnesses who testified before the state grand jury are relevant and necessary to the federal grand jury investigation. It does not appear that the District Attorney challenges the subpoena as being too indefinite or overly burdensome. The Court notes that the subpoena is discreet and calls for the production of speafic material stemming from a particular state grand jury investigation. Thus, the subpoena is sufficiently definite. Further, the subpoena does not call for the production of an unreasonable amount of documents. Consequently, producing the requested material would require minimal effort on the part of the District Attorney's Office and therefore would not be overly burdensome. The District Attorney argues that compliance with the subpoena would be unreasonable because it would place him in a position where be would be violating state law provisions relating to grand jury secrecy. Specifically, the District Attorney argues that N.Y.Crim.Froc.Law § 190.25, subd. 4, requires that state grand jury materials be kept secret and therefore prohibits him from turning over the subpoenaed grand jury records to the United States. He contends that the only way the United States can gad access to these materials is to file a motion in state court pursuant to N.Y.Crim Proc Law4. 1410-11, cub' 4. The ----Court finds this argument without merit. tt, 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501.226-037 Page 42 of 46 EFTA_00075921 EFTA01249006 • • 0.• IQ 014 824 F.Supp. 330 Page 14 (Cite as: 824 F.Supp. 330, 933) (5) Federal courts have consistently held that stale statutes which preclude disclosure of records to the general public cannot be used to prevent federal grand juries from obtaining the records through a subpoena. The cases of In re Grand Jury Subpoena for New York State Income Tax Records, 468 F.Supp. 575 (N.D.N.Y.), appeal dismissed 607 F.2d 566 (2d Cir.1979). and In re Grand Jury Subpoena for the Prod. of Certain New York Stare Sales Tax Records. 382 F.Supp. 1205 (W.D.N.Y.1974). are particularly relevant to the ease at hand. Both cases involved federal grand jury subpoenas issued to officials of the New York State Department of Taxation for the production of certain tax records. The petitioners moved to quash the subpoenas on the grounds that compliance would be in violation of certain secrecy provisions of New York State tax laws. These laws are very similar to N.Y.Crim.Proc.Law § 190.25, subd. 4, which die District Attorney relies on in his motion. The courts in these cases explicitly rejected the argument that compliance was unreasonable because it would force the state officials to violate state law secrecy provisions. The courts ruled that the Supremacy Clause must prevail over the state nondisclosure provisions. As the court in In re Grand Jury Subpoena for New York Stare Income Tar Records stated: The Supreme Court has seven) times indicated that. by virtue of the supremacy clause, state legislation must yield whenever it comes into conflict with an Act of Congress or the superior authority of the Constitution. Thus, inasmuch as the federal *334 grand jury is a product of the Fifth Amendment and its powers, as a result of its long history and specific Congressional attention, the conflict between state confidentiality provisions and Congressional or constitutional investigatory powers has resulted in enforcement of federal grand jury subpoenas despite state statutes which would otherwise prohibit compliance. In re Grand Jury Subpoena for New York Stare Income Tax. 468 F.Supp. at 577 (citations omitted). Courts in other Circuits, relying on the Supremacy Clause, have similarly rejected claims from state officials that compliance with a federal subpoena would force them to violate stale confidentiality laws. See, e.g., In re Special April 1977 Grand Jury, 581 F.2d 589, 593 a. 3 (7th Cirajr. denied, 439 U.S. 1046, 99 S.Ct. 721, 58 M.25 705 (1978); Carr v. Monroe Mfg. Co., 431 F.2d 384, 388 (5th Cir.1970), car. denied, 400 U.S. 1000. 91 S.Ct. 456, 27 M.2.d 451 (1971); In re 1980 United Stales Grand Jury Subpoena Duces Team. 502 F.Supp. 576, 579-80 (E.D.La.1980); United States v. Grand Jury fnvesii anon F.Supp. 389, 393 (E.D.Pa.1976). Thus, the ease law clearly establishes that state law provisions relating to grand jury secrecy do not preclude a federal grand jury from obtaining state grand jury records pursuant to a subpoena. (6) The District Attorney further argues that the grand jury subpoena was not served upon the proper party. Specifically, the District Attorney contends that pursuant to the state grand jury secrecy law, N.Y.Crim.P.Law § 190.25, subd. 4. the state court has the ultimate and exclusive control over the subpoenaed grand jury material and, therefore, is the actual custodian of the grand jury records. Thus, the District Attorney argues that the grand jury subpoena should have been served on the presiding state court judge rather than the District Attorney. The Court disagrees. A custodian of records is the person or entity who is in actual possession of the documents at the time the subpoena is issued. In re Grand Jury Impaneled Jan. 21. 1975, 541 F.24 373, 377 (3d Cir.1976) (citations omitted). In order to testify competently as a records custodian, a witness must be able to verify the authenticity and completeness of the requested documents. In this case, the District Attorney does not dispute the fact that his office possesses the requested grand jury material, nor does he deny that the grand jury materials were generated as a result of an investigation conducted by his office. Accordingly, the District Attorney's office is the sole entity that can competently testify as to the authenticity and completeness of the requested material. The presiding state court judge does not possess the subpoenaed materials nor would he or she have any knowledge concerning the authenticity or completeness of the grand jury records. Thus, the Court finds that the District Attorney's Office is the custodian of the sure grand jury records and is therefore the proper party to be served with the subpoena. The District Attorney also contends that compliance with the federal grand jury subpoena would be unreasonable because it would violate policies of comity. Specifically, the District Attorney 4D 2006 Thomsoo/West. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501226-037 Page 43 of 46 EFTA_00075922 EFTA01249007 824 F.Supp. 330 (Cite as: 824 F.Supp. 330,'334) contends that, just as the federal government has an interest in protecting the secrecy of federal grand jury material, the slam has an interest in protecting state grand jury material from disclosure. Thus, the District Attorney argues that, in order to show proper deference to the State's interest in the confidentiality of the grand jury records, the United States should be required to move initially for disclosure before the presiding state court judge. The Court finds that no such requirement exists. [1 The Court recognizes that 'policies of comity and federalism require some deference to the objective sought to be achieved by state confidentiality provisions." In re Grand Jury Subpoena for New York State Income Tar Records, 468 F.Supp. at 577. The basic purposes of the state grand jury secrecy laws in question are: (I) to prevent an accused front escaping before he is indicted; (2) to prevent tampering with witnesses; and (3) to protect an accused person who is not indicted from unwarranted exposure. People v. McAdoo, 45 Misc.2d 664, 257 N.Y.S,2d 763, ofd. 51 Misc.2d 263, 272 •335 N.Y.S.24 412. ten. denied. 386 U.S. 1031, 87 S.Ct. 1479, 18 MI.2d 592 (1967). In this ease, compliance with the federal grand jury subpoena will not subvert New York's interest in maintaining the secrecy of grand jury proceedings because federal grand jury proceedings are also conducted secretly. The secrecy requirements of Fen-Ceini.P. 6(e). will adequately ensure that none of the purposes of the state grand jury secrecy laws are undermined by compliance with the federal grand jury subpoena. See In re New York Grand Jury Subpoena for State Income Tax Records, 468 F.Supp. at 577-78; see also United Stares v. Field 532 F.24 404, 407-08 (5th Cir. ISS. cert. denied. 429 U.S. 940, 97 S.Q. 354, 50 =.2d 309; In re Grand July Empaneled Jan. 21, 1975, 541 F.23:1 at 377-78. Moreover, it is important to note that comity is a policy which must be balanced against 'the necessity of thorough grand jury investigations into violations of federal law.' In re Grand Jury Subpoena for New York Stare Income Tax Records. 468 F.Supp. at 577. In this case, the subpoenaed documents are necessary to the federal grand jury investigation. Thus, the policy of comity must yield to the constitutional right and duty of the federal grand jury to conduct a broad investigation. Page 15 Id. 468 F.Supp. at 578. Finally, the District Attorney contends that the motion to quash should be granted because the subpoenaed materials are privileged. Specifically. the District Attorney argues that the state grand jury secrecy law creates a federal privilege under Federal Rule of Evidence 501. The Coun finds this argument without merit. [8] Evidentiary privileges protect confidential communications between persons in special relationships from disclosure. By their very nature they impede the search for the truth and are therefore generally disfavored. Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 M. 74 186 (1980); Herbert v. Lando, 441 U.S. 153. 99 S.Ct. 1635, 60 M.2d 115 (1979); United Stares v. Nixon, 418 U.S. 683, 709-10, 94 5.0. 3090, 3108- 09, 41 M.2d 1039 (1974). Accordingly, 'the party asserting a privilege bears the burden of proving the applicability of the privilege," In re Bevil!, Dressler ti Schulman Asset Management Corp., 805 F.2d 120, 126 ad Cir.1986). and privileges, 'whatever their origins ... [should] not [be] lightly created or expansively construed.' Nixon. 418 U.S. at 710, 94 S.Ct. at 3109. [9] When faced with a claim that a grand jury should be denied evidence because of privilege, the reviewing court must weigh the potential harm from disclosure against the benefits of disclosure. American Civil Lthertrts Union of Miss., Inc. v. Finch, 638 F.2d 1336, 1343 (5th Cir.1981). In this case, the federal grand jury is investigating possible violations of federal criminal civil rights laws by police officers of the Buffalo Police Department. As fully explained in the United States' in camera statement of facts, the subpoenaed documents are. vital td the grand jury investigation and arc not simply needed to attell credibility of potential witnesses. In addition, the information sought to be obtained from the subpoenaed material is not otherwise available since the police officers are unwilling to talk to the FBI. Thus, the grand jury may not be able to learn the truth of the allegations without the subpoenaed mataial. On the other side of the scale, the potential harm from disclosure of the state grand jury material is minimal. Because Fed.R.Crim.P. 6(e) limits disclosure of federal grand jury material, the Ct 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501226-037 Page 44 of 46 EFTA_00075923 EFTA01249008 IVJ V10 824 F.Supp. 330 (Cite as: 824 F-Supp• 330, •335) secrecy of the subpoenaed documents would be closely guarded. Thus, since the benefits of disclosure in this case substantially outweigh the potemtial harm from disclosure, the Court finds that the state grand jury records are not privileged as a matter of federal common law. See Matter of Special April 1977 Grand Jury. 581 F.2d at 592-93: In re Grand Jury Proceeding, 563 F.2d 577. 582-85 (3d Cir.1977): In re Grand Jury Empaneled January 21, 1975. 541 F.2d at 382-83. in sum, the United SLIMS has a strong interest in ensuring the just enforcement of its criminal laws. Public policy has long favored giving the grand jury broad powers of investigation. The District Attorney, who has the burden of proving that the subpoena should be quashed, has failed to establish •336 that the subpoena is unreasonable or that it Page 16 violates any recognized privilege. Furthermore, because of the secrecy provisions of the federal grand jury, little or no prejudice would result to the state from compliance with the federal grand jury subpoena. CONCLUSION For the reasons stated. the Court denies the District Attorney's motion to quash the federal grand jury subpoena. This Decision and Order and the entire file are to be filed under seal. It is so ordered. 824 F.Supp. 330 END OF DOCUMENT © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. CONFIDENTIAL 3501.226-037 Page 45 of 46 EFTA_00075924 EFTA01249009 CONFIDENTIAL 3501.226-037 Page 46 of 46 EFTA_00075925 EFTA01249010