Sobura Lasu v. William P. Barr

United States Court of Appeals
For the Eighth Circuit
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No. 20-1404
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In re: Grand Jury Subpoena Dated August 14, 2019
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: June 16, 2020
Filed: July 9, 2020
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Before LOKEN, ARNOLD, and GRASZ, Circuit Judges.
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LOKEN, Circuit Judge.
On August 14, 2019, the United States District Court for the Southern District
of Iowa issued a subpoena duces tecum commanding the Iowa Department of Public
Safety (“IDPS”) to appear before the court’s grand jury and provide documents
relating to the investigation of an Iowa State Patrol (“ISP”) officer for misconduct or
use of excessive force. IDPS complied with five of the listed document categories but
filed a motion to quash categories 3 and 4, which seek the following:
3) Any and all records relating to the investigation of [Officer John
Doe] for misconduct, violations of ISP policy, use of force, and other
legal/administrative violations, including but not limited to:
a) ISP criminal, administrative, and Internal Affairs investigative
records;
b) Records provided to ISP by outside agencies as a result of any

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external investigations;
c) Internal communications between ISP employees, including
but not limited to e-mails, letters, notes, memoranda, and similar
communications;
d) Investigative findings of any such investigations and the
resulting penalties/discipline levied against the employee listed
above.
4) Any and all records relating to complaints made against [Officer
John Doe], including but not limited to complaints by members of the
public and internal complaints from ISP or State of Iowa employees.
On November 19, 2019, the district court1 denied the motion to quash in a
lengthy Order filed under seal. In re: Grand Jury Subpoena Dated August 14, 2019,
No. 4:19-MC-00042, Opinion and Order (S.D. Iowa Nov. 19, 2019). Subsequently,
the court held IDPS in contempt for failing to provide the documents, establishing
jurisdiction for appellate review. See In re Grand Jury Subpoenas Dated Feb. 28,
2002, 472 F.3d 990, 1000 (8th Cir. 2007). IDPS appeals, arguing the district court
abused its discretion in denying the motion to quash. See United States v. Kalter, 5
F.3d 1166, 1169 (8th Cir. 1993) (standard of review). To prevent undue delay of the
grand jury proceedings, we granted the government’s motion for expedited review.
Based on the particular circumstances of this case, we affirm.
The Supreme Court has repeatedly recognized “the longstanding principle that
the public has a right to every man’s evidence, except for those persons protected by
a constitutional, common-law, or statutory privilege.” Branzburg v. Hayes, 408 U.S.
665, 688 (1972) (cleaned up). In this case, IDPS has not asserted a common law or
constitutional privilege of the executive branch of government, such as President
Nixon asserted in United States v. Nixon, 418 U.S. 683, 703-13 (1974), nor does
1The Honorable John A. Jarvey, Chief Judge of the United States District Court
for the Southern District of Iowa.
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IDPS rely on a federal, state, or local statutory privilege. Rather, its motion to quash
was based upon Rule 17(c)(2) of the Federal Rules of Criminal Procedure, which
provides: “On motion made promptly, the court may quash or modify the subpoena
[duces tecum] if compliance would be unreasonable or oppressive.” In its last major
discussion of the subpoena power of a grand jury, the Supreme Court observed,
“[t]his standard is not self-explanatory. . . . [W]hat is reasonable depends on the
context.” United States v. R. Enterprises, Inc., 498 U.S. 292, 299 (1991). “[A] grand
jury subpoena issued through normal channels is presumed to be reasonable, and the
burden of showing unreasonableness must be on the recipient who seeks to avoid
compliance.” Id. at 301.
IDPS is a Department housing several agencies, including the Professional
Standards Bureau (“PSB”). The PSB conducts internal investigations of alleged
misconduct by Department employees and operates an “early intervention system” to
assist IDPS managers in identifying employees whose performance warrants review
and intervention in the public interest. The PSB may order employees to cooperate
with its investigations. Its employee complaint files are confidential. Investigated
employees are given a written Order to Cooperate, which provides:
Before you answer any questions, I wish to advise you that any answers
you give may be used in any administrative proceeding against you but
cannot be used in any criminal prosecution. Failure to answer any
questions directed to you or answering such questions untruthfully will
be considered insubordination and will be considered grounds for
disciplinary action up to and including dismissal from the employment
of the Department.
IDPS argues on appeal, as it did to the district court, that the challenged
portions of the subpoena are unreasonable for two interrelated reasons -- because
producing the internal investigation materials would violate participating officers’
Fifth Amendment privilege against self-incrimination and would “eviscerate” IDPS’s
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efforts to investigate and prevent misconduct by destroying the confidentiality of its
internal investigations. IDPS relies heavily on In re Grand Jury, John Doe No.
G.J.2005-2, 478 F.3d 581, 587 (4th Cir. 2007) (John Doe). In that case, affirming a
decision to quash a federal grand jury subpoena issued to a city police department,
the Fourth Circuit noted that the district court “took the City’s two interests -- in
preserving confidentiality and forestalling possible self-incrimination problems --
together, and weighed those interests as a whole against those of the United States.”
In this case, the district court, like the Fourth Circuit, considered both IDPS interests
but concluded they did not warrant quashing the challenged parts of the subpoena.2
1. We reject IDPS’s assertion that quashing the subpoena is needed to protect
the Fifth Amendment rights of IDPS employees who participated in internal
investigations. “The Fifth Amendment privilege against self-incrimination extends
to statements a government employee is compelled to make under the threat of
removal from public office.” United States v. Moten, 551 F.3d 763, 766 (8th Cir.
2008), citing Garrity v. New Jersey, 385 U.S. 493, 500 (1967). The government may
compel an officer to answer questions, but the Constitution is violated only “when the
compelled statement, or the fruit of that statement, is used against the officer in a
subsequent criminal proceeding.” In re Grand Jury Subpoenas Dated Dec. 7 & 8,
Issued to Bob Stover, 40 F.3d 1096, 1102 (10th Cir. 1994), cert. denied, 514 U.S.
1107 (1995) (Stover). If an officer whose compelled statements are subpoenaed by
a federal grand jury is eventually indicted, he is entitled to a hearing at which the
government must prove that the indictment was not based in any way on the officer’s
compelled statements or the fruits of those statements. See Kastigar v. United States,
406 U.S. 441 (1972).
2The government does not argue that IDPS lacks standing to assert individual
officers’ Fifth Amendment rights, so we need not decide the issue.
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When compelled statements are produced in response to a grand jury subpoena,
this strict Kastigar prohibition gives the government strong incentive to employ what
it calls a “Garrity screening team” to remove compelled statements of the target of the
federal investigation, including investigative fruits of those statements, before the
subpoenaed material is given to the grand jury or to the prosecution team. At least
two of our fellow circuits have concluded that this “Garrity review procedure,”
combined with Kastigar protections if the target is criminally prosecuted, provide
sufficient Fifth Amendment protection from improper use of the compelled
statements. See In re Grand Jury Subpoena, 75 F.3d 446, 448 (9th Cir. 1996)
(Huntington Beach); Stover, 40 F.3d at 1103; accord John Doe, 478 F.3d at 587.
IDPS argues that allowing the government to use compelled statements from
police officers regarding other police officers as an “investigatory lead” for the grand
jury violates the Supreme Court’s instruction that the “total prohibition on use
provides a comprehensive safeguard, barring the use of compelled testimony as an
‘investigatory lead.’” Kastigar, 406 U.S. at 460. This argument overstates the scope
of the Fifth Amendment privilege, which applies only to the use or derivative use of
compelled statements, not their mere production. Id. at 453. “When federal officials
are barred not only from introducing the testimony into evidence in a federal
prosecution but also from introducing any evidence derived from such testimony, the
[compelled] disclosure has in no way contributed to the danger or likelihood of a
federal prosecution.” Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52,
101 (1964) (White, J., concurring). Moreover, the privilege only prohibits the use of
compelled statements and their fruits against the person making the compelled
statements. Thus, it does not prohibit a grand jury or government investigators from
using compelled statements of other officers against the target of the investigation.
“[T]he Fifth Amendment allow[s] the government to prosecute using evidence from
legitimate independent sources.” Kastigar, 406 U.S. at 461.
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2. IDPS further argues that the subpoena is unreasonable because producing
the subpoenaed documents would undermine the confidentiality of the PSB’s internal
investigations. The Supreme Court in R. Enterprises held that a grand jury subpoena
may be quashed if it is unreasonable or oppressive -- for example, if the grand jury
is “engage[d] in arbitrary fishing expeditions” or has “select[ed] targets of
investigation out of malice or an intent to harass.” 498 U.S. at 299. The subpoena
in that case was challenged on relevancy grounds; the Court upheld the subpoena,
adopting a broad view of what is relevant to a grand jury -- a motion to quash must
be denied unless “there is no reasonable possibility [the subpoenaed] materials . . .
will produce information relevant to . . . the grand jury’s investigation.” Id. at 301.
In this case, IDPS does not challenge the subpoena on relevancy grounds, nor
does it argue compliance would be unduly burdensome or otherwise oppressive.
Rather, IDPS argues that its interests in confidentiality and the integrity of its internal
affairs investigations outweigh the federal government’s interest in enforcing a
subpoena to produce documents relevant to a grand jury investigation of possible
civil rights violations by Iowa law enforcement officers. This is a timely and
important issue. The government argues that the judiciary may not engage in the
balancing of interests IDPS urges. “[I]f evidence is relevant and unprivileged,” the
government argues, “the grand jury is entitled to it,” citing Branzburg, 408 U.S. at
688. We reject this argument. In Branzburg, the Court declined to recognize a new
testimonial privilege for newsmen. The Court did not foreclose the kind of Rule
17(c) interest-balancing the Fourth Circuit upheld in John Doe based on the Supreme
Court’s later statement in R. Enterprises that “what is reasonable depends on the
context.” We agree with the Fourth Circuit that a district court has discretion to
quash a subpoena under Rule 17(c)(2) if it “intrudes gravely on significant interests
outside of the scope of a recognized privilege.” 478 F.3d at 585 (citation omitted).
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The district court recognized the importance of confidentiality in the PSB’s
internal investigations of law enforcement officers. Like the district court in John
Doe, the district court balanced IDPS’s interests in confidentiality against the federal
government’s legitimate interest in enforcing the subpoena and came to a different
conclusion given the circumstances of this case:
The[] interests served by grand jury secrecy are the same as or analogous
to those cited by the IDPS as reasons that its own internal investigations
must be kept confidential. . . . [T]he court believes that the IDPS goes
too far when it asserts that “no employee would come forward with early
intervention problems or participate in investigations if their statements
could be used to criminally indict a fellow officer.” . . . [E]mployees
who make statements reporting misconduct of a fellow employee, to
PSB and more particularly in the course of an internal affairs
investigation, are well aware that a result of such reports could be the
indictment of a fellow officer for criminal wrong-doing. IDPS cites no
evidence that the internal investigations of any specific law enforcement
agency that has complied with a comparable grand jury subpoena have
subsequently lost effectiveness or that the agency has since been unable
to investigate misconduct internally. Instead, IDPS has . . . provided
affidavits of law enforcement officers . . . stating concerns that
compliance with grand jury subpoenas for information from internal
investigations might have a chilling effect. . . . Opinions that are based
on concerns rather than actual experience are too speculative to
outweigh a grand jury’s legitimate interests in obtaining the information
in question . . . .
(Emphasis in original.) Turning to the government’s interest, the court reasoned that
internal affairs materials are likely to have significant value in the grand jury’s
investigation because they include contemporaneous statements that may or may not
have remained consistent over time, and information concerning prior incidents that
may shed light on whether an officer acted willfully. The court emphasized that the
facts in John Doe were materially distinguishable because in that case the government
was indifferent to obtaining the information in question. See 478 F.3d at 587-88
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(“[C]ounsel for the United States repeatedly suggested that the information sought
was of negligible value to the government.”).
On appeal, IDPS argues the district court gave insufficient weight to its interest
in an effective early intervention program to prevent employee misconduct.
Confidentiality is an essential aspect of this program, IDPS argues, because assurance
that an officer can cooperate without being ostracized or prosecuted is needed to
overcome the so-called “blue wall of silence.” See id. at 586. We agree with the
district court that this interest, while important, does not control the issue in this case.
As the district court noted, the Fifth Amendment privilege applies only to self
incrimination. See Moten, 551 F.3d 763, 766. Whether to discipline an officer for
refusing to discuss another officer’s misconduct, the most effective way to take down
the “blue wall,” is an issue of state law and agency policy. Therefore, compliance
with a federal grand jury subpoena will not “intrude gravely” on IDPS’s ability to
deal effectively with any “blue wall” it encounters in conducting its internal
investigations.
We conclude that the district court did not abuse its Rule 17(c)(2) discretion
in deciding that IDPS failed to meet its substantial burden to show that compliance
with the challenged portions of the grand jury subpoena would be “unreasonable or
oppressive” when balanced against the interests of the government in enforcing the
subpoena. Therefore, we affirm the Order denying IDPS’s motion to quash. Our
decision is based on the record and the issues raised in this case, including the
absence of a relevant statutory or executive privilege.
The district court Opinion and Order Regarding Motion To Quash Grand Jury
Subpoena dated November 19, 2019 is affirmed.
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