EFTA00277521

.tJ VA 
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. Atty., of counsel). Buffalo. NY. 
Russell P. Buscaglia, Asst. U.S. Atty. (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 duces recum. 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 for state grand jury 
records. 
The parties were given an opportunity to 
brief and argue their respective positions. 
After 
reviewing the submissions of the parties 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 S, 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 tights laws during and after the arrest 
of Mr. Aiken and Mr. Johnson. [FN I) 
FNI. The background and focus of the federal 
grand jury investigation is set forth in greater detail 
in an in COMM submission of facts surrounding 
the federal grand jury investigation submitted by 
the United States. 
The District Anorney's Office prosecuted Mr. 
Aileen 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 witnessed 
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 presented the case to an 
Erie County grand jury that considered whether the 
officers' actions during 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 
taking any action in the matter in order to prevent 
interference with the state investigation 
The Pai<_ 
cChlungtSinia—airilini-
es against any of the police_cifficers. 
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 fedenlgord_ 
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 thesesfforts failed a
 iury su 
was issued to the District_Attomev's Office nn 
October-25, 1991 for the production of the 
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 state grand jury material. 
First, the District 
Attorney 
argues 
that 
compliance 
would 
be 
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824 F.Supp. 330 
(Cite as; 824 F.Supp. 330, *332) 
unreasonable because it would force him to violate 
state law relating to grand jury secrecy. 
Second, 
he argues that the subpoena was served upon the 
wrong parry. Third, the District Attorney contends 
that compliance would be unreasonable because it 
would violate policies 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, Ill S.Ct. 722, 726, 
112 L.Ed.2d 795 (1991); 
United States v. 
Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 
561 (1974). "A grand jury investigation 'is not 
fully carried out until every available clue has been 
run down and all witnesses examined in every 
proper way to find if a crime has been committed.' 
" Branzburg v. Hayes, 408 U.S. 665, 701, 92 
2646, 2667, 33 L.Ed.2d 626 (1972) (quoting 
United States v. Stone, 429 F.2d 138, 140 (2d 
Cir.1970)); In re 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.2d 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 witnesses 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 S.Ct. at 617). The 
only restrictions that have been placed upon the j 
grand jury concern reasonablenecc and privileges. 
A grand jury subpoena may not be unreasonable or 
oppressive, and it may not violate a constitutional, 
common law or statutory privilege. Branzburg, 408 
U.S. at 68S, 92 S.Ct. at 2660; 
Fed.R.Crim.P. 
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. Enters., 498 U.S. at 300-02, 111 S.C. 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. 
14) 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 because 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 
speed& material stemming from a particular state 
grand jury investigation. 
Thus, the subpoena is 
sufficiently definite. 
Flutter, 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 he would be 
violating state law provisions relating to grand jury 
secrecy. 
Specifically, the District Attorney argues 
that N.Y.Crim.Proc.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. Be contends that the only way the United 
States can gait access to these materials is to file a 
motion 
in 
state 
court  
pursuant 
to 
NN-Crkn-Proc 1-2V/ §_1941,-IS,subd.--4. 
The 
Court finds this argument without merit. 
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824 F.Supp. 330 
(Cite as: 824 F.Supp. 330, *333) 
(5) Federal courts have consistently held that state 
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 Stare 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 State 
Sales 
Tax 
Records, 
382 
F.Supp. 
1205 
(W.D.N.Y.1974). are particularly relevant to the 
ease at band. 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.CrimProc.Law § 190.25, subd. 4, 
which the 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 
 
 
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 State Income 
Tax Records stated: 
The Supreme Court has several 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 
stare 
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 State 
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 stare confidentiality 
laws. 
See, e.g., In re Special April 1977 Grand 
Jury. 581 F.24 589, 593 n. 3 (7th Cir.), cert. 
denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 
705 (1978); Can. v. Monroe Mfg. Co., 431 F.2d 
384, 388 (5th Cir.1970), cen. denied, 400 U.S. 
Page 14 
1000. 91 S.Ct. 456, 27 L.Ed.2d 451 (1971); In re 
1980 United Slates Grand Jury Subpoena Duces 
Team, 502 F.Supp. 576, 579-80 (E.D.La.1980); 
United States v. Grand Jury Investi anon 
F.Supp. 389, 393 (E.D.Pa.1976). 
Thus, the case 
law dearly establishes that state law provisions 
relating to grand jury secrecy do not preclude a 
federal grand jury from obtaining stale grand jury 
records pursuant to a subpoena. 
IQ The District Attorney further argues that the 
grand jury subpoena was not served upon the proper 
parry. 
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 poscnses 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 stare 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 state 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 
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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 state 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. 
[7] 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 Tax Records. 
468 F.Supp. at 577. 
The basic purposes of the 
stale grand jury secrecy laws in question are: (1) to 
prevent an accused from 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, 
ord. 51 Misc.24 263, 272 *335 N.Y.S.2d 412, 
ctn. denied, 386 U.S. 1031, 87 S.Ct. 1479, 18 
L.Ed.2d 592 (1967). 
In this case, 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 
Fed.R.Crim.P. 6(e), will adequately ensure that 
none of the purposes of the stare grand jury secrecy 
laws are undermined by compliance with the federal 
grand jury subpoena. 
See In re New York Grand 
Jury Subpoena for Stare Income Tax Records, 468 
F.Supp. at 577-78: see also United States v. Field, 
532 F.2d 404, 407-08 (5th Cir.1976), cert. denied, 
429 U.S. 940, 97 S.O. 354, 50 L.Ed.2d 309; In re 
Grand Jury Empaneled Jan. 21, 1975, 541 F.2d 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. 
46S 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 Court 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. Unked 
States, 445 U.S. 40, 50. 100 S.Ct. 906, 912, 63 
L.Ed.2d 186 (1980); Herbert v, Lando, 441 U.S. 
153. 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); 
United Stares v. Nixon, 418 U.S. 683, 709-10, 94 
5.O. 3090, 3108- 09, 41 L.Ed.24 1039 (1974). 
Accordingly, "the party asserting a privilege bears 
the burden of proving the applicability of the 
privilege," In re Bevil:, Dressler & Schulman Asset 
Management Corp., 805 F.2d 120, 126 (3d 
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 !rause of privilege, the 
reviewing court must weigh the potential harm from 
disclosure against the benefits of disclosure. 
American Civil Liberties 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 tai the grand jury investigation and arc not 
simply needed to assess 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 material. 
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 
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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 
potential 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 Empanekd 
January 21, 1975, 541 F.2d at 382-83. 
In sum, the United States 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 
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