State of Delaware Office of the Secretary of State PAGE 1 I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE or DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF "JEGE, INC.", FILED IN THIS OFFICE ON THE SEVENTH DAY OF SEPTEMBER, A.D. 2000, AT 2:15 O'CLOCK P.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS. 3284812 8100 Edward f. Free!, Secretary of State AUTHENTICATION: 0662136 001452017 Case No. 08-80736-CV-MARRA DATE: 09-07-00 P-000101 EFTA00227481

imp-u'stuu0 Oi:b0pe Froe-J Epstein i Coapany, Inc T-150 P.004/005 F-135 CERTIFICATE OF LNCORPORATION OF JEGE, INC. 1. The name of the corporation to be formed upon the filing of this Certificate of Incorporation is JEGE, Inc. (the "Corporation"). 2. The address of the Corporation's registered office in the State of Delaware is Corporation Trust, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of the Corporation's registered agent at such address is The Corporation Trust Company. 3. The nature of the business to be conducted by the Corporation is, or the purposes to be promoted by the Corporation are, to engage in any lawful acts or activities for which corporations may be organized under the General Corporation Law of the State of Delaware. 4. The total number of shares of stock which the Corporation shall have authority to issue is One Thousand Five Hundred (1,500) shares of Common Stock, all of which shares shall be without par value. S. The name and mailbag address of the sole incorporator of the Corporation are Darren Indyke, 457 Madison Avenue. Fourth Floor, New York, New York 10022. 6. The Corporation is to have perpetual existence. 7. In furtherance, and not in limitation, of the powers conferred by the General Corporation Law of the State of Delaware upon the board of directors of the Corporation, the board of directors of the Corporation is expressly authorized to make, alter or repeal the by-laws of the Corporation. S. Elections of the directors of the Corporation need not be by written ballot, unless the by-laws of the Corporation shall so provide. Meetings of the stockholders of the Corporation may be held within or without the State of Delaware, as the by-laws may provide The books of the Corporation may be kept (subject to any provision contained in the General Corporation Law of the State of Delaware) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the Corporation. 9. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter Case No. 08-80736-CV-MARRA P-000102 EFTA00227482

erne kir wawa rua clot...sin • Nanny, lag IILSI lault 1-110 F.005/005 F-I35 prescribed by the General Corporation Law of the State of Delaware, and all rights conferred in this Certificate of Incorporation upon the stockholders of the Corporation are granted subject to such reservation. 10. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the General Corporation Law of the State of Delaware, or (d) for any transaction from which the director derived any improper personal benefit. I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, hereby certify and declare that this is my act and deed and that the facts stated herein are true, and have hereunto set my hand this 7th day of September, 2000. Darren IC. lndyke Sole Incorporator Case No. 08-80736-CV-MARRA P-000103 EFTA00227483

For,. 2553 Rev. July 19914 Deparmart of de Dente/ lateral Renews Sante Election by a Small Business Corporation (Under section 1362 of the Internal Revenue Code) ► See Parts lI and Ill on back and the separate instructions. ► The corporation may either send or fax this form to the IRS. See page 1 of the Instructions. OMB No. I545-014e Notes 1. This election to be an S cap.nedon Can be accepted only Nall the tests are met under Who may elect on page I at I the instructions signaftres in Pretend III am originelS (no photocopied): and the exact name and address of the corporation and other required form information me provided 2. Do not Ile Form 17205 U.S. Income Tar Ream fur an S Corporation. for any tax yes before the year the election takes effect. 3. If the COrpaetion ores hi tudstence before the effective date of this election. see Tans an S corpration may move on page 1 of the instrtcdons. Part I Election Information Name of corporation See Ianajons) JEGE Tnr arnbet sweet and room or sults no. Of a P.O. box. see iratnaztkinii 103 Fou1k Road. Suite 70, City or town, state end ZIP coda Wiltningtnrc nr 1RRA1 D Election is to be effective for tax year beginning (month. day. year) E Name end title of officer or legal representative who the IRS may call for more information Darren K. Indyke, Vice President G If the corporation changed its name or oddness after applying for the EIN shown In A above. check this box H ■ Iris election takes effect for the Int tax year the corporation exists. enter month, day, and yew of the easiest of the following: (1) date the corporation first had shareholders, (2) data the caporatan first had astatS. or 43) date the corporation began doing business lic Selected tax year Annual return vel be filed for tax year ending (month and day) Ill...1.1exember..3.1 If the tax year ands on any date other than December 31. except for an automatic 52-53-week tax year endingielith reference to the month of December, you must complete Pan II on the ban. W the date you enter is the ending date of an autocratic 52-53-week tax year. write '52-53-week year' to the right of the data See Temporary Regulations section 1.441 2T(e)(3). Please Type or Print September 7 7000 C State or Incorporation Delaware ►• 1 / 01 / 01 F Telephone number of officer a le elm resartative .1 Name and address at each starenolder: SharIMMiers snot's° lining • ocienankr property Interest n the stock: and tad, tares In common, Joke terse. Ard tenant by the enemy. (A husbard rd wife land ear estates) we counted as one Sherehokler Si clearnnalll the manna* at shaorhOiden arrow ono to the waead.) nner in witch the k b K Swehaders' Consent Stadment. Under Detains of pejury. we declare test to the election of the above-named corporation S corporadon wide section 1352(a) end erameined this consent statement, Inducing acoampanying schedules and statetTentS, best knowledge bent we consent to be en that we ham L Stock owned - M Social serially nianber or employe identification number bee InsbuctIonsl N Shore- to taa WW arida Month and day) and a Number of shares Dates expired of n and It is true, correct and complete We understand as COnsaa Is binding and ow/ not be Menem arter the CorpOratkrn has made a mid election. (Shareholders sign and date belted Otw Signature Date Jeffrey E. Epstein 6100 Red Hook Qugrte Suite B-3 - . ..! 1 --1-' 100 1/1/01 12/3 bin, ThUITIMS I UbV UV* I. 2 ( • t1 under penalties or perjury. I declare that h ere examined this election) it is true. correct. a e. nclw.t e, Signature of officer i t A rs k ing accompanying schedules and statements. and to the best of my knowledge and belief. WAIWORR*Slident For Paperwork Reduction Act Notice. see once 2 of the *ructions. Cal Nn linden EFTA00227484

0 0 INCORPORATED UNDER THE INNS OF THE STATE OF DELAWARE HYPERION AIR, INC. TOTAL AUTHORIZED ISSUE 1.500 SHAPES PAR VALUE 50001 EACH COMMON STOCK fAC •Co(*S1I •001 Ctn.. car.tresict Ili. in to Certify Ant Jeffrey E. Epstein in die owner of One Hundred (100) A4 / zaed aied mom,- adiesiaA dZeed, aXore, tea4airesaa ofe# on. eecZ 1 4‘ZorAoriavv , idded,/feeeert)st0eidelpo4,44,aaliotelee p 'Oen, dead.e..edee. 14a, ..r.e.4447,4.,404 e.x.detied. Vitttenn, Z‘.zeaGW. Yzoyzota di* .440.d.xriva,. Dexte4L: As of July 26, 1991 EFTA00227485

Case No. 08-80736-CV-MARRA P-000106 EFTA00227486

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FG1 05-02(WPB)-Fri./No. OLY-07 SUBPOENA FOR: PERSON ri DOCUMENTS OR OBJECTISI X YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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): Please coordinate your liana of this subpoena and confirm the date and time of your appearance 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 (BY) DEPUTY CLERK This subpoena is issued upon application of the United States of America DAM. August 2, 2006 Name, Address and Phone Number of Assistant U.S. Attorney o. us a tan venue, w West Palm Beach, FL 33401.6235 app Ka• ,en none ase Nm41,40•736gGV-MARRA ESO00#Q7 EFTA00227487

Case No. 08-80736-CV-MARRA P-000108 EFTA00227488

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-FriJNo. OLY-08 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECTS] YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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): Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with Special Agen , Federal Bureau of Investigation, Telephone: Please see additional infonnation on tone This subpoena shall remain in effect until you arc granted leave to depart by the court or by an officer acting on behalf of the court. This subpoena is issued upon application of the United States of America •If not applicabk. enter "none • Case Not..0 DATE August 2, 2006 ante, Address and Phone Number of Assistant U.S. Attorney 500 So. Avenue, 400 est Palm Beach, FL 33401.6235 P004006109 EFTA00227489

0 r. se t Case No. 08-80736-CV-MARRA P-000110 EFTA00227490

This subpoena is issued upon application of the United States of America Unued States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-09 SUBPOENA FOR: PERSON I .] DOCUMENTS OR OBJECTfS1 YOU ARE HEREBY COMMANDED to appear and testi ly be fore the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: Palm Beach County Courthouse Juvenile Courts Building 205 14. 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): l'leasc coordinate ur corn liance of this subpoena and confirm the date and time of your appearance with Special Agent Federal Bureau of Investigation, Telephone: Please see additional information on incrse This subpoena shall remain in effect until you arc granted leave to depart by the court or by an officer acting on behalf of the court. DATE: August 2, 2006 Name, Address and Phone Number of Assistant U.S. Attorney Aust . . 1 .et livenue te West Palm Beach, FL. 33401.6235 •If not applii able. enter "none' Toles. mind A0110 Case No. 08-80736-CV-MARRA FORM ORD-227 P-000111 EFTA00227491

Case No. 08-80736-CV-MARRA P-000112 EFTA00227492

Case No. 08-80736-CV-MARRA P-000113 EFTA00227493

Case No. 08-80736-CV-MARRA P-000114 EFTA00227494

Case No. 08-80736-CV-MARRA P-000115 EFTA00227495

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY- I 0/2 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECT'S! YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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: September 15, 2006 9:00am YOU ARE ALSO COMMANDED to brin with ou the followin: documen s) or object(s): Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with Special Agent Nesbitt Kuyrkendall, Federal Bureau of Investigation, Telephone: (561) 822-5946. 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 )eat V i k eirs A P \ DATE: August 28, 2006 This subpoena is issued upon application Itiarnc. Address and Phone Number of Assistant U.S. Attorney of the U States of merit 500 So. Australian Avenue, Suite West Palm Reach. Ft. 33401-6235 °If not applicable, enter "none.* To teed le hey a A EFTA00227496

7 • • 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 Duces Tecum Directed to the Honorable Kevin M. DILLON, District Attorney of Eric County. Civ. No. 92-I3A. 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 arrests. The District Court, Arcara, J.. 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 [1] Grand Jury €25 I93k25 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(e), 17, 18 U.S.C.A.; N.Y.McKinney's CPL § 190.25, subd. 4. [5] Grand Jury €36.3(1) 193k36.3(1) [5] States €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. [6] Grand Jury €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 €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 €36.9(2) 193k36.9(2) Federal grand jury subpoenas arc 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 17(c), 18 U.S.C.A. [4[ Grand Jury €36.4(2) I93k36.4(2) Federal grand jury was entitled to subpoena transcripts and tapes of state grand jury testimony of police officers as pan of investigation to determine whether officers violated federal criminal civil rights laws during or after arrests; disputed testimony was relevant and necessary to federal (7] Grand Jury €41.10 193k41.10 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 €184(1) 410k184(I) Evidentiary privileges protect confidential communications between persons in special relationships from disclosure and are generally disfavored in that privileges impede search for truth. [9] Grand Jury €36.3(2) I93k36.3(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. 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000117 EFTA00227497

• • • 824 F.Supp. 330 Page 12 (Cite as: 824 F.Supp. 330, •331) •331 John J. DeFranks, J. Michael Marion, Asst. Eric County Dist. Attys. (Kevin Dillon, Erie County Dist. Atty., 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 duces tecum. 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 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. IFNI] FNI. The background and focus of the federal grand jury investigation is set forth in greater 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 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. 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 Erie County grand jun• declined to return criminal charges against any of the police officers. As a result, the state investigation into the police officers' conduct concluded in approximately November, 199th 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 warranted. 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 arc 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 these efforts failed, a grand jury subpoena was issued to the District Attorney's Office on October 25, 1991 for the production of the grand jury transcripts or tapes of 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 C 2006 ThomsonMeg. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000118 EFTA00227498

• • • 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 party. 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 (11(21(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.' " Branrburg v. Hayes. 408 U.S. 665, 701, 92 S.Ct. 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 Stare Sales Tax Records, 382 F.Supp. 1205, 1206 (W.D.N.Y.I974) (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. III S.O. at 726. 'A grand jury 'may compel the production of evidence or thc 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 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. Branzburg, 408 U.S. at 688, 92 5.O. at 2660; Fed.R.Crim.R. 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.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 (I) *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. (41 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 arc 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 specific 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 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. He contends that the only way the United States can gain access to these materials is to file a motion in state court pursuant to N.Y.Crim.Proc.Law § 190.25, subd. 4. The Court finds this argument without merit. 12 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000119 EFTA00227499

824 F.Supp. 330 (Cite as: 824 F.Supp. 330, •333) 15l 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 State Income Tax Records, 468 F.Supp. 575 (N.D.N.Y.), appeal dismissed, 607 F.24 566 (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.I974), are particularly relevant to the case 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 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 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 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 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 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 federal subpoena would force them to violate state confidentiality laws. See. e.g., in re Special April 1977 Grand Jury. 581 F.2d 589, 593 n. 3 (7th Cir.), ten. denied. 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 705 (1978); Carr v. Monroe Mfg. Co.. 431 F.2d 384, 388 (5th Cir.1970), cert. denied. 400 U.S. Page 14 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971); In re 1980 United States Grand Jury Subpoena Duces Team 502 F.Supp. 576, 579-80 (E.D.La.1980); United States v. Grand Jury Investigation, 417 F.Supp. 389, 393 (E.D.Pa.1976). Thus, the case law clearly establishes that state law provisions relating to grand jury secrecy do not preclude a federal grand jury from obtaining gate grand jury records pursuant to a subpoena. 161 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.2d 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 docurnents. 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 fords 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 ID 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000120 EFTA00227500

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 state 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, aff'd, 51 Misc.2d 263, 272 *335 N.Y.S.2d 412, cert. 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 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 States v. Fuld, 532 F.2d 404, 407438 (5th Cir.1976), cen. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309; In re Grand Jury Ent panekd 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 State Income Tax Records, 468 F.Supp. at 577. In this case, the subpoenaed documents are neenclry 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 arc therefore generally disfavored. Trammel v. United 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 States v. Nixon. 418 U.S. 683, 709-10, 94 S.Ct. 3090, 3108. 09, 41 L.Ed.2d 1039 (1974). Accordingly, "the party asserting a privilege bears the burden of proving the applicability of the privilege," In re Bevil!, Bressler if 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 because of privilege, the reviewing court must weigh the potential harm from disclosure against the benefits of disclosure. American Ovil 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 arc vital to the grand jury investigation and are 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 C 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000121 EFTA00227501

4 . . • • • 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 fords 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.1971); In re Grand Jury Ernpaneled 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 O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000122 EFTA00227502

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, 87-3412--87-3414, and 87.3472. Oct. 26. 1987. Rehearing and Rehearing En Banc Denied Dec. 10. 1987. Persons whose state 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-J-86-183-14, MISC-1.86.183- 4, Susan H. Black, J., which denied motions to suppress subpoenas. The Court of Appeals, Tjoflat, 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 pan and dismissed in part. West Headnotes Ill Criminal Law €1023(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). 121 Criminal Law €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. 131 Criminal Law 48= 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. 141 Grand Jury (8=36.9(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. 151 Grand Jury C=41.10 I93k41.10 15] Witnesses eg=,184(1) 410k184(1) 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, 111, Arnold. Stratford & Booth, Jacksonville, Fla., for Greene. Elizabeth L. White, Sheppard & White, William Sheppard, Jacksonville, Fla.. for McQuaig. Lacy Mahon, Jr., Jacksonville. Fla., for appellants. Robert W. Mericle, Curtis S. Fallgatter, M. Alan Ceballos, Asst. U.S. Attys., U.S. Attorney's Office, Jacksonville, Fla., for appellee. Appeals from the United States District Court for the Middle District of Florida. Before TJOFLAT and KRAVITCH, 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. 1. 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 O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000123 EFTA00227503

832 F.24 554 (Cite as: 832 F.24 554, 1'555) 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: Jake 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 Fla.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 F1a.Stat. § 905.27(1Xc) (1985). [FN 11 the United States in August 1985 petitioned a state judge to order the State Attorney to turn over to the federal grand jury the appellants' state grand jury testimony. The United States made no factual submission in support of its petition. The state judge refused to enter the order, characterizing the effort to obtain the testimony as a "fishing expedition." FNI. Under this provision, a court may order disclosure of grand jury testimony for the purpose of elflunhering justice.' In October 1986, the federal grand jury issued a 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 subpoena, arguing that disclosure of grand jury transcripts was unlawful under Florida 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 had received similar assurances but stated that he was entitled to intervene because "state grand jury proceedings (are) 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. [FN2) 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 Pan Ill, infra. In November 1986, the district court entered an order inviting the United States to make an cx 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 quash. Applying the balancing test set forth in Douglas Oil Co. v. Petrol Stops Northwest. 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.24 156 (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 a "Motion 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 context of the government's motion for reconsideration. After C 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000124 EFTA00227504

832 F.2d 554 (Cite as: 832 F.2d 554, '556) 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. II 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. II 1984). Second. appellants argue that the district court's amended order was in error for the following reasons: (I) 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), ctn. denied, 481 U.S. 1039, 107 S.Ct. 1979, 95 L.Ed.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 criminal cases. See United States v. Doucet, 461 F.2d 1095 (5th Cir.1972); United States v. Lowe, 433 F.2d 349 (5th Cir.I970). Therefore, we have no jurisdiction to hear this appeal pursuant to section 1292(b) unless the district court's 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 question14 of law' in "civil" cases, Congress clearly indicated its intent not to disturb well-established precedent forbidding piecemeal review of grand jury proceedings. In Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 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 lijt 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 &Ct. at 542; see also Di Bella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656-57. 7 L.Ed.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 arc unable to conclude that Congress. by authorizing permissive interlocutory appeals of "controlling questionts1 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) J limits interim review of 'a controlling question of law' to civil cases only and, therefore, should not be read to allow interlocutory review of grand jury proceedings.'), cen. denied, 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492 (1979). tt, 2006 Thomson/West. No Claim to Otig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000125 EFTA00227505

832 F.2d 554 (ate as: 832 F.2d 554, •558) RI 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 arc ordinarily not appealable final 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. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580. 1582, 29 L.Ed.2d 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 party. In such a case, the putative privilege-holder has no power to compel the subpoenaed party to incur a contempt citation. And the subpoenaed party, unless he 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 party. 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 ( is:), 689 F.2d 1351 (11th 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.Ct. 417, 62 L.FAL 950 (1918), and confirmed in United States v. Nixon, 418 U.S. 683, 691, 94 S.Ct. 3090, 3099, 41 L.Ed.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. 131 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 arc concerned. We therefore have jurisdiction to hear their appeal. (FN31 FN3. We note that the only material sought from the subpoenaed party in this case is material that falls squarely within the privilege asserted by the third parties. This is not a case, then, where a party has been subpoenaed to testify or produce records and a third party merely fears that privileged material may be disclosed along with other, nonprivileged material. In the latter situation, the case is not ripe for appellate review until the subpoenaed party has actually been asked to reveal specific material covered by the asserted privilege. See In re 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 integrity of the Florida grand jury system. However, the only matter that the Perlman exception gives us jurisdiction to review is the appellants' claim of privilege 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 exception 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 party had no interest in seeking to vindicate their derivative rights. Indeed, the subpoenaed party—the State of Florida as represented by the State Attorney-- had as its primary interest the protection of its grand jury system. Accordingly. the Perlman exception does not give us jurisdiction to review the appellants' arguments concerning comity and the need to preserve the integrity of the Florida grand jury. (FN41 Nor does it give us jurisdiction to review their procedural arguments. Thus, we do not pass upon the district court's disposition of C 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000126 EFTA00227506

832 F.2d 554 (ate as: 832 F.2d 554, •559) those matters and we turn to appellants' claims of privilege. F744. We should emphasize that this discussion relates only to appellants' right to appeal under the Perlman exception. It does not relate to their standing to raise these claims before the district COWL The appellants' motions to intervene in the district court proceedings reveal the nature of the privilege they assert. Appellant McQuaig's motion stated that "lp]rior to appearing before the (state) Grand Jury, Mr. McQuaig was advised by the State Attorney that pursuant to Section 905.27, Fla.Stat. (1985): a) none of the testimony he 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 'Mel 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 pan of Jake Godbold that pursuant to § 905.27 of the Florida Statutes, his testimony would not and could not be disclosed under the law." Finally, appellant McClure's motion stated that "Itihe 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 the 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] FN5. 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 cause or permit to be published, broadcast, disclosed, divulged, or communicated 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 (I) for use in a criminal case, it may be disclosed to the prosecuting attorney of the court in which such criminal case is pending. and by him to his assistants, legal associates. and employees. and to the defendant and his attorney, and by the latter to his legal associates and employees. When such disclosure is ordered by a court pursuant to subsection (I) 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 grand jury testimony afforded such persons by the court can only be used in the defense or prosecution of the civil or criminal use and for no other purpose whatsoever. (3) Nothing in this section shall affect the attorney- client relationship. A client shall have the right to communicate to his attorney any testimony given by the client to the grand jury, any matters involving the client discussed in the client's presence before the grad jury. and any evidence involving the client received by or proffered to the grand jury in the client's presence. (4) 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 fine not exceeding 55,000. or both. (5) A violation of this section shall constitute criminal contempt of court. (41 Federal Rule of Evidence 501 provides that privileges in federal court proceedings "•560 shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." The privilege appellants assert, as stated in their motions to intervene, is based solely on state law. (FN6J 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.2d 1336, 1342-45 (5th Cir. Unit A Mar. 1981). R46. In their briefs, appellants suggest that the privilege they assert has an independent basis in the federal common law presumption of grand jury secrecy. That presumption, which is codified in C 2006 Thomson/West. No Claim to 04. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000127 EFTA00227507

832 F.2d 554 (Cite as: 832 F.2d 554, •560) Fed.R.Crim.P. 6(e), 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 state grand jury testimony. 151 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 Mlle rule of secrecy concerning matters transpiring in the grand jury room is not designed for 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.... State ex rel. Brown v. Delvell, 167 So. 687, 690 (Fla.1936). Florida case law directly construing section 905.27 fails to provide a contrary interpretation of the relationship between the secrecy requirement and the rights of grand jury witnesses. (FN7] 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 cannot be used as the basis of a defamation anion. See, e.g.. State v. Tiller, Ill So.2d 716 (Fla.Dist.Ct.App.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 part: DISMISSED in part. 832 F.2d 554, 24 Fed. R. Evil. Serv. 275 END OF DOCUMENT' A 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000128 EFTA00227508

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-FriJNo. OLY-10 SUBPOENA FOR: I PERSON X DOCUMENTS OR OBJECTril YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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): Please coordi of this subpoena and confum the date and time of ur a ante with Special Agen 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. CI.F.RIC This subpoena is issued upon application of the United States of America °If not applicable, es -none, DATE: August 2, 2006 Name. Address and Phone Number of Assistant U.S. Attorney ustra tan Avenue, Suue West Palm Beach. FL 33401-6235 Folly.001;10fi EFTA00227509

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FG1 05-02(WPB)-Fri./No. OLY-10/2 SUBPOENA FOR: K PERSON DOCUMENTS OR OBJECT'S] YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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: September 15, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with Special Agen 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 'Ibis subpoena is issued upon application So. Australian Avenue, Suite 400 West Palm Beach, FL 33401-6235 • II not applicable. enta "none' HA It August 28. 2006 S. Attorney EFTA00227510

401 N Owe Rightly. Wes* Palm Reach. Fkrida 11401 4209 (561) 353.7100 Case No. 08-80736-CV-MARRA P-000131 EFTA00227511

ZE1OOVIDIVIAI-A3-9£L08-80 v BARRY E. KRISCHER STATE ATTORNEY Fifteenth Judicial Circuit Palm Beach County 401 Noah Dixie Highway Weil Palm Beach, Florida 33401-4209 3340i+6236 —00 COED EFTA00227512

Case No. 08-80736-CV-MARRA P-000133 EFTA00227513

0 Case No. 08-80736-CV-MARRA P-000134 EFTA00227514

nited States District ourt SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-1 1 SUBPOENA FOR: PERSON n DOCUMENTS OR OBJECT'S' YOU ARE HEREBY COMMANDED to appear and testifybefore the Grand Jury of the United States District 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 25, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance of this sub oena and confirm the date and time of your appearance with Special A ent 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. DATE: August 15, 2006 (BY) DEPUTY CLERK Name, Address and Phone Number of Assistant U.S. Attorney This subpoena is issued upon application of the United States f Amer' 08-80736-CV 5 . us an venue, West Palm Beach, FL 33401-6235 a-000135 EFTA00227515

0 r4 '". IN Case No. 08-80736-CV-MARRA P-000136 EFTA00227516

United Sti s, anirsnia ourt SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-FriJNo. OLY- I 2 a SUBPOENA FOR: PERSON a DOCUMENTS OR OBJECTISI YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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 25, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with Special Agent Federal Bureau of Investigation, Telephone This subpoena shall remain in effect until you arc granted leave to depart by the court or by an officer acting on behalf of the court. DATE August 18, 2006 This subpoena is issued upon application Name, Address and Phone Number of Assistant U.S. Attorney of the Unit States of Ameri • West Palm Beach Fl 33401-6235 Australian o. Avenue, suite •If not applicable. enter 'none ' P 000137 FORM ORD-227 EFTA00227517

United States District Court .S'OUllIERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-12 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECT'S! YOU ARE HEREBY COMMANDED to appear and testify be fore the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: Palm Beach County Courthouse Juvenile Courts Building 205 N. Dixie Highway West Palm Bach, Florida 33401 (Temporary location for the United States District Courthouse, West Palm Beach) ROOM: Room 4-A DATE AND TIME: August 25, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your complia d confirm the date and time of your appearance w ent Federal Bureau of Investigation, Telephone: 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 (BY) DEPUTY CLERK DATE August IS, 2006 This subpoena is issued upon application of the United States of America si y •AV N A e k rs and phone Number of Assistant U.S. Attorney 500 So. Australian Avenue, Suite 400 West Palm Beach, FL 33401-6235 •If not apphable. alit: 'none Lase NomMigalashoV-IVIARRA Foitt+04104titi EFTA00227518

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY Fat 05-02(WPB)-FriJNo. OLY-12/2 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECTISI YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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 Reach) ROOM: Room 4-A DATE AND TIME: September I, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following documcnt(s) or objcct(s): Please coordinate your compliance of this sub oenaandconfirmthedateandtimeofyour appearance with Special Agent Federal Bureau of Investigation, Telephone This subpoena shall remain in effect until you arc granted leave to depart by the court or by an officer acting on behalf of the court. CLERK (DY) DEPUTY ('I IRK "Reis subpoena is issued upon application •If not applicable. nun 'none DATE: August 23, 2006 Name, Address and Phone Number of Assistant U.S. Attorney West Palm Beach, FL 33401-6235 ice No 08-"0736-f T• Le und sin et AO110 FORM ORD-227 EFTA00227519

0 r r.; Case No. 08-80736-CV-MARRA P-000140 EFTA00227520

United States District Court SOUTIIL RN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri /No. OLY-13 SUBPOENA FOR: e PERSON lx 1 DOCUMENTS OR OBJECTIS1 YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United Stales District 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 25, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with Special Agent Federal Bureau of Investigation, Telephone: 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. This subpoena is issued upon application of the United Stairs of America o. Australian venue, West Palm Beach, FL 33401-6235 DATE August 18.2006 S. Attorney Case No. 0 3-8073 • lc not applicable, enter 'none To be 'isle. in a 'Aim P-000141 FARM CIRI11771 EFTA00227521

ocr —ebo. —adorn° 1 .Ob htll (tSI PRLM BEACH RR P.01/01 TO: United States District court SOUTHERN DISTRICT OF FLORIDA SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-13 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECT'S! YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of theUnited States District Court at the place, date and time specified below. PLACE: Palm Bach County Courthouse Juvenile Count 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: September 8, 2006 11:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with Special en Federal Bureau of Investigation, Telephone This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acung on behalf of the court. (BY) DEPUTY CLERK DATEL September I, 2006 This subpoena it issued upon application umber of Assistant U.S Attorney of the Unitod States of America enuc, lute L 33401-6235 Case No. 08-80736-CV-NIARRA EFTA00227522

• •••••••••• United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-13/2 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECT'S' YOU ARE HEREBY COMMANDED to appear and testify before the Grand Juryof the United States District 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: September I, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with S •• .ent Federal Bureau of Investigation, Telephone: This subpoena shall remain in effect until you are granted leave to depart by the cowl or by an officer acting on behalf of the court. This subpoena is issued upon application of the U States of America West Palm Beach FL 33401-6235 DATE: August 23, 2006 Name, Address and Phone Number of Assistant U.S. Attorney • If not applicable. cum - none * Tete mei &Sea A0110 FORM ORD227 EFTA00227523

Urn 'ed States District I urt SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. GI,Y-1343 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECTISI YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: Fourth District Court of Appeals 1525 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (Temporary location for the United States District Courthouse, West Palm Beach) ROOM: Courtroom DATE AND TIME: October 27, 2006 1:00pm YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance with this subpoena and confirm the date and time of your appearance with Special Agent Immigration and Customs Enforcement, Telephone: 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 (BY) DEPUTY CLERK DATE: October 19, 2006 This subpoena is issued upon application the (In • I State< 1 m. ira Name. Address and Phone Number of Assistant U.S. Attorney 500 So. Australian Avenue, Suite 400 West Palm Beach, FL 33401-6235 •U cot applicable. eon swot" Case NkbOtt±809.34d€V-MARRA roPistwatizt 3 1E - °foto_ 589-12 EFTA00227524

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 07-103(WPB)-TuesJNo. OLY-13/4 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECTINI YOU ARE HEREBY COMMANDED to appear and testify before the Grandiaryofthc United States District Court at the place, date and time specified below. PLACE: United States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Joy Room DATE AND TIME: April 24, 2007 1:00pm' YOU ARE ALSO COMMANDED to bring with you the following dominan(s) or object(s): Please coordinate your com liance with this subpoena and confirm the date and time of your appearance with Special Agen , Immigration and Customs Enforcement, Telephone: This subpoena shall remain in effect until you arc granted leave to depart by the court or by an officer acting on behalf of the court. CI ERK (BY) DEPUTY CLERK This subpoena is issued upon application of the Unite inerica DATE: April 16, 2007 Name, Address and Phone Number of Assistant U.S. Attorney us tan West Palm Bach, FL 334014235 not applicable, enter 'none." Case INI(ZionVg82M-MARRA EFTA00227525

Case No. 08-80736-CV-MARRA P-000146 EFTA00227526

United States District court FILE COP SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FG.105-02(WPB)-Fri./No. OLY-I3/2 SUBPOENA FOR: e PERSON X 1 DOCUMENTS OR OBJECTISI YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: Fourth District Court of Appeals 1525 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (Temporary location for the United States District Courthouse, West Palm Beach) ROOM: Courtroom DATE AND TIME: October 27, 2006 1:00pm YOU ARE ALSO COMMANDED to bring with you the following documents) or object(s): Please coordinate your compliance with your appearance with Special A rent ' • • • confirm the date and time of Immigration and Customs Enforcement, Telephone: 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. (BY) DEPUTY CLEfUC This subpoena is issued upon application •If not applicable. enter 'none. Case Not. DATE October 19, 2006 Name. Address and Phone Number of Assistant U.S. Attorney 0 us ra Ian Avenue, Suite West Palm Beach, FL 33401-6235 EoP430,3147 EFTA00227527

TO: Ur2llted States District Pourt SOUTHERN DISTRICT OF FLORIDA FILE COPY SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-13/2 SUBPOENA FOR: PERSON X DOCUMENTS OR OBJECT'S' YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: Fourth District Court of Appeals 1525 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (Temporary location for the United States District Courthouse, West Palm Beach) ROOM: Courtroom DATE AND TIME: October 27, 2006 1:00pm YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance with this subpoena and confirm the date and time of your appearance with Special Agent Immigration and Customs Enforcement, Telephone: 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. (BY) DEPUTY CLERK DATE October 19, 2006 This subpoena is issued upon application Name, Address and Phone Number of Assistant U.S. Attorney 500 So. Australian Avenue, Suite 400 West Palm Beach, FL 33401.6235 •If not applicable, enter "none Case No.**40.7-3400-MARRA RP101504487 EFTA00227528

0 Case No. 08-80736-CV-MARRA P-000149 EFTA00227529

United States District tours SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-FriJNo. OLY-14 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECTIS1 YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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 25, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance of this %Oilmen a and eon firm the date and time of your appearance with Special Agent Federal Bureau of Investigation, Telephone: 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 (BY) DEPUTY CLERK This subpoena is issued upon application of the United States of America 500 So. Australian Avenue, Suite 400 West Palm Beach, FL 33401-6235 DATE August 18, 2006 Assistant U.S. Attorney 'If not appiRable. nun. 'none.' C'aseN,r.na Rn7 MIS ruleu,cd altar Of AO110 FokagiA9 EFTA00227530

Case No. 08-80736-CV-MARRA P-000151 EFTA00227531

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-15 SUBPOENA FOR: PERSON 1 X DOCUMENTS OR OBJECTISI YOU ARE ti EREBY COMMANDED to appear and testify before the Grand Jury of the United States District 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: September 1, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance of this subpoena and confirm the date and time of our a pearance with Special Agent Federal Bureau of Investigation, Telephone: Please see additional infomutton on reverse This subpoena shall remain in effect until you arc granted leave to depart by the court or by an officer acting on behalf of the court. CLERK (BY) DEPUTY CLERK This subpoena is issued upon application of the d S Case No. 08- 073 DATE August 23, 2006 Name Address and Phone Number of Assistant U.S. Attorney EFTA00227532

O r. Case No. 08-80736-CV-MARRA P-000153 EFTA00227533

United States District Court SOUTHERN DISTRICT OF FLORIDA 1O: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY- 16 SUBPOENA FOR: n PERSON DOCUMENTS OR OBJECT'S] YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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: September I, 2006 9:00am Please coordinate your compliance of this subpoena and confirm the date and time of your a ranee with Special Agent-Federal Bureau of Investigation, Telephone: Please see additional information on '.et sc This subpoena shall remain in effect until you arc granted leave to depart by the court or by an officer acting on behalf of the court. CLERK This subpoena is issued upon application Name Address and Phone Number of Assistant U.S. Attorney 'If not applicable, coin none.' DATE: August 25, 2006 LAS Case N-0, „QU QZ10 - soksnatA4 500 So. Australian Avenue, Suite 400 35 EFTA00227534

0 r ''. Case No. 08-80736-CV-MARRA P-000155 EFTA00227535

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-17 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECTS] YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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): Please coordi of this subpoena and confirm the date and ti nee with Special Agen Federal Bureau of Investigation, Telephone: Please see additional infomiation 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. C1.1,RX. This subpoena is issued upon application DA II: September 6, 2006 Name Address and Phone Number of Assistant U.S. Attorney West Palm Beach, FL 33401-6235 JIL114- FIMQQab5lb EFTA00227536

RETURN OF SERVICE' RECEIVED BY SERVER DATE qi ii,‘ PLACE L..CS1 SERVED DA1E 6 04 PIACE KSA 0 A .k . SERVED ON (NAME) Ny tk A it CeFfitylay) a / SERVED l TITLE MASA STATEMENT OF SERVICE FEES TRAVEL SERVICES TOTAL DECLARATION OF SERVICE' I declare under penally of penury under the Statement of Service Fees is true and Carted. Executed on CFA 4 0 laws of the United Stales of America that the foregceng information contained m the Return of Service and DATE 1.(k 'SI i C-Q Address of Sever ADDITIONAL INFORMATION 1.As to who may serve a subpoena and the manner of its service sot Rule 17(d). Federal Rules of Criminal Procedure, or Rule 45(c), Federal Rules of Civil Procedure. 2.-Fees and mileage need not be tendered to the witness upon service of a subpoena issued on behalf of the United Stales or an officer or agency thereof (Rule 45(c), Federal Rules of Civil Procedure; Rulo 17(d), Federal Rules of Criminal Procedure) or on behalf of certain indigent parties and criminal defendants who are unable to pay such costs (28 USC 1825, Rule 17(b) Federal Rules of Criminal Procedure)" Case No. 08-80736-CV-MARRA P-000157 EFTA00227537

Case No. 08-80736-CV-MARRA P-000158 EFTA00227538

Case No. 08-80736-CV-MARRA P-000159 EFTA00227539

United States District Ltd SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-FriJNo. OLY-17 SUBPOENA FOR: D PERSON DOCUMENTS OR OBJECT'S' YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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): Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with Special Agent Nesbitt Kuyrkendall, Federal Bureau of Investigation, Telephone: (561) 822.5946. Plcase 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 (BY) DEPUTY CLERK This subpoena is issued upon application •11 not applicable, alto "none* DATE September 6, 2006 Name, Address and Phone Number of Assistant U.S. Attorney ustra tan venue. t West Palm Beach, FL 33401-6235 P-000160 Tob and o lee °M0110 FORM ORD-227 EFTA00227540

832 F.2d 554 832 Fief 554, 24 Fed. R. Evid. Serv. 275 (Cite as: 832 F.2d 554) H United Stales 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, 87.3412--87-3414, and 87-3472. Oct. 26. 1987. Rehearing and Rehearing En Banc Denied Dec. 10, 1987. Persons whose state 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, M1SC-J-86-183- 4. Susan H. Black. L. which denied motions to suppress subpoenas. The Court of Appeals, Tjollat, Circuit Judge, held that: (I) 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 lieadnotes pj Criminal Law C=1023(3) 11013023(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). PI Criminal Law 48=1023(3) 11081023(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. PI Criminal Law rg;‘21023(3) 11013023(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. 141 Grand Jury C=.36.9(2) 193136.9(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.Ruks Cr.Proc.Rulc 6(e), 18 U.S.C-A. PI Grand Jury 18=>41.10 193k41.10 151 Witnesses tE=.184(1) 410k184(1) 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. Elizabeth L. White, Sheppard & White, William Sheppard, Jacksonville, Fla., for McQuaig. Lacy Mahon. Jr., Jacksonville, Fla., for appellants. Robert W. Merkk, Curtis S. Fallgatter, M. Alan Cellallos, Asst. U.S. Attys., U.S. Attorney's Office, Jacksonville, Fla., for appellee. Appeals from the United States District Court for the Middle District of Florida. Before TJOFLAT and KRAVITCH. 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. 1. 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 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000161 EFTA00227541

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: Jake 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 ascoriate 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 FIa.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(1)(c) (1985). (FNI] the United States in August 1985 petitioned a state judge to order the State Attorney to turn over to the federal grand jury the appellants' state grand jury testimony. The United States made no factual submission in support of its petition. The state judge refused to enter the order, characterizing the effort to obtain the testimony as a "fishing expedition." FNI. Under this provision, a court may order disclosure of grand jury testimony for the purpose of lfturthering justice." In October 1986, the federal grand jury issued a 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 subpoena, arguing that disclosure of grand jury transcripts was unlawful under Florida 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 had received similar assurances, but stated that he was entitled to intervene because "state grand jury proceedings [are] 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. (FN2) 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 III, infra. 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 quash. Applying the balancing test set forth in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 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 a "Motion for Reconsideration of Opinion and Order" along with an ex pane 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 context of the government's motion for reconsideration. After @ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000162 EFTA00227542

832 F.2d 554 (Cite as: 832 F.2d SSA, • SS6) 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. II 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. II 1984). Second, appellants argue that the district court's amended order was in error for the following reasons: (I) 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. II. 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 arc without jurisdiction. See Robinson v. Tanner, 798 F.2d 1378, 1379 (11th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1979, 95 L.Ed.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 criminal cases. See United States v. Doucet, 461 F.2d 1095 (5th Cir.1972); United States 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 court's order Page 3 denying the motion to quash can be considered an order entered in a "civil action." [If We hold that a grand jury proceeding is not a 'civil action" for purposes of section 1292(b). Just 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 bast 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 Cobbledick v. United States, 309 U.S. 323. 60 S.Ct. 540, 84 L.Ed. 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 'lilt 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 L.Ed.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 I292(b). We are unable to conclude that Congress, by authorizing permissive interlocutory appeals of "controlling question's] 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.I978) ("[Section 1292(b) 1 limits interim review of 'a controlling question of law' to civil cases only and, therefore, should not be read to allow interlocutory review of grand jury proceedings."). cert. denied, 440 U.S. 934, 99 5.O. 1277, 59 L.Ed.2d 492 (1979). 4:5 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000163 EFTA00227543

832 F.2d 554 (Cite as: 832 F.2d 554, *558) 121 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 final 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. Ryan, 402 U.S. 530, 532.33. 91 S.Ct. 1580, 1582, 29 L.Ed.2d 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 party. In such a case, the putative privilege-holder has no power to compel the subpoenaed party to incur a contempt citation. And the subpoenaed party, unless he 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 party. 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 (1Ith 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 P.2d 996 (11th Cir.1982) (discovery order in bankruptcy proceedings). This exception, derived from Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), and confirmed in United States v. Alton. 418 U.S. 683, 691,94 S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974), permits an order denying a motion to quash to be "considered foul as to the injured third party who is otherwise powerless to prevent the revelation." Fine, 641 F.2d at 202. 131 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 hear their appeal. 117N31 FN3. We note that the only material sought from the subpoenaed party in this case is material that falls squarely within the privilege asserted by the third parties. This is not a case, then, where a party has been subpoenaed to testify or produce records and a third party merely fears that privileged material may be disclosed along with other, nonprivileged material. In the latter situation, the case is not ripe for appellate review until the subpoenaed party has actually been asked to reveal specific material covered by the asserted privilege. See In it Grand hay Proceedings (Doe ), 831 F.2d 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 integrity of the Florida grand jury system. However, the only matter that the Perlman exception gives us jurisdiction to review is the appellants' claim of privilege 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 exception 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 party had no interest in seeking to vindicate their derivative rights. Indeed, the subpoenaed party--the State of Florida as represented by the State Attorney-- had as its primary interest the protection of its grand jury system. Accordingly, the Perlman exception does not give us jurisdiction to review the appellants' arguments concerning comity and the need to preserve the integrity of the Florida grand jury. IFN4J Nor does it give us jurisdiction to review their procedural arguments. Thus, we do not pass upon the district court's disposition of t, 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-0001(A EFTA00227544

832 F.2d 554 Page 5 (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 Perlman exception. It does not relate to their standing to raise these claims before the district court. The appellants' motions to intervene in the district court proceedings reveal the nature of the privilege they assert. Appellant McQuaig's motion stated that 1pIrior to appearing before the (state) Grand Jury. Mr. McQuaig was advised by the State Attorney that pursuant to Section 905.27. Fla.Stat. (1985): a) none of the testimony he 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 "Niel 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 Jake Godbold that pursuant to § 905.27 of the Florida Statures, his testimony would not and could not be disclosed under the law.' Finally, appellant McClure's motion stated that '(t]he 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 the 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). (ENS) 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 cause or permit to be published, broadcast, disclosed, divulged, or communicated 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 cowl orders the disclosure of such testimony pursuant to subsection (I) for use in a criminal case, it may be disclosed to the prosecuting attorney of the court in which such criminal case is pending. and by him to his assistants, legal associates. and employees, and to the defendant and his attorney, and by the latter to his legal associates and employees. When such disclosure is ordered by a taut pursuant to subsection (I) 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 grand jury testimony afforded such persons by the court can only be used in the defense or prosecution of the civil or criminal cast and for no other purpose whatsoever. (3) Nothing in this section shall affect the attorney- client relationship. A client shall have the right to communicate to his attorney any testimony given by the client to the grand jury, any matters involving the client discussed in the client's presence before the grand jury. and any evidence involving the client received by or proffered to the grand jury in the client's presence. (4) Persons convicted of violating this section shall be guilty of a misdemeanor of the first degree, punish able as provided in s. 775.083, or by fine not exceeding $5,000. or both. (5) A violation of this section shall constitute criminal contempt of court. 14] Federal Rule of Evidence 501 provides that privileges in federal court proceedings "•560 shall be governed by the principles of the common law as they may be interpreted by the courts of the United Status in the light of reason and experience.' The privilege appellants assert, as stated in their motions to intervene, is based solely on state law. 1FN61 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., Lan v. Roan! of Education. 74 F.R.D. 565, 576 (E.D.N.Y.); cf• ACLU v. Finch, 638 F.2d 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 secrecy. That presumption, which is codified in C 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000165 EFTA00227545

832 F.2d 554 (Cite as•. 832 F.2d 554, '560) Fod.R.Crim.P. 6(e), 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 state 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 (Ube rule of secrecy concerning matters transpiring in the grand jury room is not designed for 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.... State ex rel. Brown v. Dewell, 167 So. 687. 690 (Ha.1936). Florida case law directly construing section 905.27 fails to provide a contrary interpretation of the relationship between the secrecy requirement and the rights of grand jury witnesses. (FN7) 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. FF17. Some Florida caws 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 canna be used as the basis of a defamation action. See, e.g., State v. Tillett. 111 Sold 716 (Fb.Dist.Ct.App.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 part: DISMISSED in part. 832 F.2d 554, 24 Fed. R. Evid. Serv. 275 END OF DOCUMENT 0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000166 EFTA00227546

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 Duces Tecum Directed to the Honorable Kevin M. DILLON, District Attorney of Erie County. 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 arrests. The District Court, Arena, J., held that federal grand jury was entitled to transcripts and tapes of slate grand jury testimony of uncooperating police officers. Motion to quash denied. West Headnotes [I] Grand Jury €25 I93k25 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.Rulcs Cr.Proc.Rules 6(e), 17, 18 U.S.C.A.; N.Y.McKinney's CPL § 190.25. subd. 4. [5] Grand Jury <8=36.3(1) 193k36.3(I) [51 States f3=718.63 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. [6] Grand Jury c8=736.4(1) 193k36.4(I) 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 dt=i36.4(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 4:=P36.9(2) 193k36.9(2) Federal grand jury subpoenas arc 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 17(c). 18 U.S.C.A. [4] Grand Jury 4:=36.4(2) I93k36.4(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 necessary to federal [7] Grand Jury cE=P41.I0 193k41.10 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 indictcd from unwarranted exposure. N.Y.McKinney's CPL § 190.25, subd. 4. [8) Witnesses (11=l84(1) 410k184(I) 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 C=736.3(2) I93k 36.3(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. 0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000167 EFTA00227547

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 ducts tecwn, 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. Thc 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 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. (PHI F141. The background and focus of the federal grand jury investigation is set fonh in greater 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 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. Thc Erie County grand jury declined to return criminal charges against any of the police officers. 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 warranted. 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 ("FB1'). 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 these efforts failed, a grand jury subpoena was issued to the District Attorney's Office on October 25. 1991 for the production of the grand jury transcripts or tapes of 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 V 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000168 EFTA00227548

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 party. 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 arc 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.O. 613, 38 L.Ed.2d 561 (1974). "A grand Jury investigation 'is not billy 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 committed.' Branzburg v. Hayes. 408 U.S. 665, 701. 92 S.Ct. 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, III 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 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. Branzburg, 408 U.S. at 688, 92 S.Ct. at 2660; Fcd.R.Crim.P. 17(c). Grand jury subpoenas arc 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, III 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 (I) "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 indefmite; or (3) compliance would be overly burdensome. Id. After applying these tests to the instant cast 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 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 arc 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 specific 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 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. He contends that the only way the United States can gain access to these materials is to file a motion in state court pursuant to N.Y.Crim.Proc.Law § 190.25, subd. 4. The Court finds this argument without merit. 4> 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000169 EFTA00227549

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 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 State Sales Tax Records. 382 F.Supp. 1205 (W.D.N.Y.1974), are particularly relevant to the case 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 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 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 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 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 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 state confidentiality laws. See, e.g., In re Special April 1977 Grand Jury, 581 F.2d 589, 593 n. 3 (7th Cir.), car. denied, 439 U.S. 1046, 99 S.Ct. 721, SS L.Ed.2d 705 (1978): Carr I Monroe Mfg. Co., 431 F.2d 384. 388 (5th Cir.I970), an. denied, 400 U.S. Page 14 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971); In re 1980 United States Grand Jury Subpoena Duces Tecum, 502 F.Supp. 576. 579-80 (E.D.La.1980); United States v. Grand Jury Investigation. 417 F.Supp. 389, 393 (E.D.Pa.1976). Thus, the case 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.2d 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 funds 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 O 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000170 EFTA00227550

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 fads 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 state grand jury secrecy laws in question are: (I) 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, affd, 51 Misc.2d 263, 272 •335 N.Y.S.2d 412, cert. 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 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 States v. Field, 532 F.2d 404, 407-08 (5th Cir.I976), cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309; in re Grand Jury Empanekd 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 State 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. Foully, 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 mate grand jury secrecy law creates a federal privilege under Federal Rule of Evidence 501. The Court finds this argument without merit. [81 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 L.Ed.2d 186 (1980); Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); United States v. Nixon, 418 U.S. 683. 709-10, 94 S.Ct. 3090, 3108- 09. 41 L.Ed.2d 1039 (1974). Accordingly, "the party asserting a privilege bears the burden of proving the applicability of the privilege," In re Bevil!, Bressler & Schulman Asset Management Corp.. 805 F.24 120, 126 (3d Cir. 1986), and privileges. 'whatever their origins ... [should] not (bel lightly created or expansively construed.' Nixon, 418 U.S. at 710, 94 S.Ct. at 3109. 191 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 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 td the grand jury investigation and are 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 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000171 EFTA00227551

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 Empaneled 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 die federal grand jury subpoena. This Decision and Order and the entire tile are to be filed under seal. It is so ordered. 824 F.Supp. 330 END OF DOCUMENT C 2006 Thonuon/West. No Claim to Orig. U.S. Govt. Works. Case No. 08-80736-CV-MARRA P-000172 EFTA00227552

U.S. Departmeneustice United States Attorney Southern District of Florida SOO South Australian Ave, Suite 400 West Palm Beach, Florida 33401 FACSIMILE COVER SHEET TO: DENISE COFFMAN, ESQ. DATE: September 6, 2006 FAX NO. U OF PAGES: 16 PHONE NO. RE: GRAND JURY SUBPOENA FROM: PHONE NO. ASSISTANT U.S. ATTORNEY COMMENTS: Case No. 08-80736-CV-MARRA P-000173 EFTA00227553

09/08/2008 20:48 FAX 5818021787 USAO WPB FL ?pm • • ass TX REPORT wits TRANSMISSION OK TX/RX NO 2691 CONNECTION TEL 3556727 SUBADDRESS CONNECTION ID ST. TIME 09/06 20:41 USAGE T 06'34 PGS. SENT 16 RESULT OK U.S. Department of Justice United States Attorney Southern District of Florida Ave. Suite 400 West Palm Beak Florida 33401 FACSIMILE COVER SHEET TO: DENISE COFFMAN, EGO, DATE: September 6. 2006 FAX NO. 16 # OF PAGES; PHONE NO. RE: GRAND JURY SUBPOENA FROM: PHONE NO. COINCENTS: 1.5 ASSISTANT U.S. ATTORNEY Case No. 08-80736-CV-MARRA P-000174 EFTA00227554

Case No. 08-80736-CV-MARRA P-000175 EFTA00227555

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-FriiNo. O1X-018 SUBPOENA FOR: n PERSON DOCUMENTS OR OBJECT'S] YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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: September 22, 2006 9:30am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with Special Agent Nesbitt Kuyrkendall, Federal Bureau of Investigation, Telephone: (561) 822-5946. O 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. .00 ear ; l CLERK e k 41•141k Visr ii,4\,:z-tipy (LIY) DEPUTY CLERK DATE September 13, 2006 This subpoena is issued upon application of the United States A Number of Assistant ll.S. Attorney us a tan Avenue, Juttc West Palm Beach, FL 33401-6235 • If not appltrAble. enter "none To he coed in he, of AO110 Case No. 08-80736-CV-MARRA FORM ORD-227 JAN 86 P-000176 EFTA00227556

U.S. Dcpartn. of Justice United States Attorney Southern District of Florida 500 X Australian Ave., Suite 100 West Polon Beach, FL 334014235 (560820-8711 APPEARANCE NOTICE The attached subpoena requires the production of the records specified to a Federal Grand Jury/Trial in the Southern District of Florida. A new provision of the Federal Rules of Evidence provides that routine business records may be admitted at trial through the declaration of a custodian, if they are provided sufficiently in advance of trial to allow an opportunity for any challenges to their authenticity. Therefore, you may be able to avoid appearing personally at the grand jury/trial at the time and place specified by completely filling out the attached Certification nd immediately returning it with the records to Special Agent I at the following address: Federal Bureau of Investigation 505 South Flagler Drive, Ste. 500 West Palm Beach, Florida 33401-5923 EARLY VOLUNTARY TURNOVER Please note that we are requesting an early voluntary turnover of the materials subpoenaed. The early voluntary turnover date is prior to September 22. 2006. B Sincerely, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY ASSISTANT UNITED STATES ATTORNEY Case No. 08-80736-CV-MARRA P-000177 EFTA00227557

CERTIFICATION OF BUSINESS RECORDS I, the undersigned, , declare that I am: employed by/associated with in the position of and by reason of my position am authorized and qualified to make this declaration. In my employment with the above-named bank/company I am familiar with the business records it maintains. The above-named bank/company maintains records of its business which are: 1. made at or near the time of the occurrence of the matters set forth therein, by, or from information transmitted by, a person with knowledge of those matters; 2. kept in the course of regularly conducted business activity; and 3. made by the regularly conducted activity as a regular practice. Among the records so maintained are the attached records itemized in Appendix A, Inventory of Documents. I declare under penalty of perjury that the foregoing is true and correct. Date of execution: Place of execution: Signature: Case No. 08-80736-CV-MARRA P-000178 EFTA00227558

APPENDIX A DOCUMENT INVENTORY The documents submitted are as follows: Signature of Records Custodian: Case No. 08-80736-CV-MARRA P-000179 EFTA00227559

o r Case No. 08-80736-CV-MARRA P-000180 EFTA00227560

• United States District Court TO: UTHERN DISTRICT OF FLORIDA SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-FriJNo. OLY-19 SUBPOENA FOR: 11 PERSON DOCUMENTS OR OBJECTS] YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. 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: September 29, 2006 9:00am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with S ecial A ent l ederal Bureau of Investigation, Telephone: 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. This subpoena is issued upon application DATE September 21, 2006 Address and Phone Number of Assistant U.S. Attorney 500 So. Australian Avenue, Suite 400 *If not applicable, truer 'nom ' To Stood= in of A0110 Case No. 08-80736-CV-MARRA FORM ORD-227 JAN.S6 P-000181 EFTA00227561

U.S. Depart:. of Justice United States Attorney Southern District of Florida 500S A Ida A .r., Suite 400 West Pal, Beach, ft 33401-6235 (561) 820-8711 APPEARANCE NOTICE The attached subpoena requires the production of the records specified to a Federal Grand Jury/Trial in the Southern District of Florida. A new provision of the Federal Rules of Evidence provides that routine business records may be admitted at trial through the declaration of a custodian, if they are provided sufficiently in advance of trial to allow an opportunity for any challenges to their authenticity. Therefore, you may be able to avoid appearing personally at the grand jury/trial at the time and place specified by completely filling out the attached Certification and Inventory and immediately returning it with the records to Special Agen' FBI at the following address: Federal Bureau of Investigation 505 South Flagler Drive, Ste. 500 West Palm Beach, Florida 33401-5923 EARLY VOLUNTARY TURNOVER Please note that we are requesting an early voluntary turnover of the materials subpoenaed. The early voluntary turnover date is prior to September 29, 2006. BY: Sincerely, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY ASSISTANT UNITED STATE ATTORNEY Case No. 08-80736-CV-MARRA P-000182 EFTA00227562

CERTIFICATION OF BUSINESS RECORDS I, the undersigned, , declare that I am: employed by/associated with in the position of and by reason of my position am authorized and qualified to make this declaration. In my employment with the above-named bank/company I am familiar with the business records it maintains. The above-named bank/company maintains records of its business which are: 1. made at or near the time of the occurrence of the matters set forth therein, by, or from information transmitted by, a person with knowledge of those matters; 2. kept in the course of regularly conducted business activity; and 3. made by the regularly conducted activity as a regular practice. Among the records so maintained are the attached records itemized in Appendix A, Inventory of Documents. I declare under penalty of perjury that the foregoing is true and correct. Date of execution: Place of execution: Signature: Case No. 08-80736-CV-MARRA P-000183 EFTA00227563

APPENDIX A DOCUMENT INVENTORY The documents submitted are as follows: Signature of Records Custodian: Case No. 08-80736-CV-MARRA P-000184 EFTA00227564

Case No. 08-80736-CV-MARRA P-000185 EFTA00227565

Holland±Knight Holland & Knight LLP 195 Broadway. 24th Floor New York. NY 10007-3189 NEW YORK NY 100 20 OCT 200(N PM U eo M t- 00 00 00 Assistant United States Attorney U.S. Department of Justice Southern District of Florida 500 South Australian Ave., Suite 400 West Palm Beach, Florida 33401 33401$8235 hallmthilan z U EFTA00227566

Case No. 08-80736-CV-MARRA P-000187 EFTA00227567

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-FridNo. OLY-20 SUBPOENA FOR: O PERSON r DOCUMENTS OR OBJECTISI X YOU ARE HEREBY COMMANDED to appear and testifybefore the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: United States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: November 17, 2006 9:30 am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance of this subpoena and confirm the date and time of your appearance with Special Agent Nesbitt Kuyrkendall, Federal Bureau of Investigation, Telephone: (561) 822-5946. 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. This subpoena is issued upon application applicabk, alior 'none vzitit Dip DATE: October 23, 2006 Name Address and Phone Number of Assistant U.S. Attorney West Palm Beach, FL 33401-6235 • To lass1 • In of AO110 FORM ORD-227 JAILF6 Case No. 08-80736-CV-MARRA P-000188 EFTA00227568

U.S. Departn of Justice United States Attorney Southern District of Florida 500 S Australian Ave.. Suite 400 West Palm Beach. FL 334014233 (361)8204711 APPEARANCE NOTICE The attached subpoena requires the production of the records specified to a Federal Grand Jury/Trial in the Southern District of Florida. A new provision of the Federal Rules of Evidence provides that routine business records may be admitted at trial through the declaration of a custodian, if they are provided sufficiently in advance of trial to allow an opportunity for any challenges to their authenticity. Therefore, you may be able to avoid appearing personally at the grand jury/trial at the time and place specified by completely filling out the attached Certification and Invento and immediately retuming it with the records to Special Agent BI at the following address: Federal Bureau of Investigation 505 South Flagler Drive, Ste. 500 West Palm Beach, Florida 33401-5923 EARLY VOLUNTARY TURNOVER Please note that we are requesting an early voluntary turnover of the materials subpoenaed. The early voluntary tumover date is prior to November 17. 2006. BY: Sincerely, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY ASSISTANT UNITED STATES ATTORNEY Case No. 08-80736-CV-MARRA P-000189 EFTA00227569

CERTIFICATION OF BUSINESS RECORDS I, the undersigned, , dedare4hat I am: employed by/associated with in the position of and by reason of my position am authorized and qualified to make this declaration. In my employment with the above-named bank/company I am familiar with the business records it maintains. The above-named bank/company maintains records of its business which are: 1. made at or near the time of the occurrence of the matters set forth therein, by, or from information transmitted by, a person with knowledge of those matters; 2. kept in the course of regularly conducted business activity; and 3. made by the regularly conducted activity as a regular practice. Among the records so maintained are the attached records itemized in Appendix A, Inventory of Documents. I declare under penalty of perjury that the foregoing is true and correct. Date of execution: Place of execution: Signature: Case No. 08-80736-CV-MARRA P-000190 EFTA00227570

APPENDIX A DOCUMENT INVENTORY The documents submitted are as follows: Signature of Records Custodian: Case No. 08-80736-CV-MARRA P-000191 EFTA00227571

Case No. 08-80736-CV-MARRA P-000192 EFTA00227572

• United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-FriJNo. OLY-2I SUBPOENA FOR: PERSON DOCUMENTS OR OBJECT'S I YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury ofthe United States District Court at the place, date and time specified below. PLACE' llnited States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: December 1, 2006 9:30 am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance with this subpoena and confirm the date and time of your a arance with Special Agent Federal Bureau of Investigation, Telephone: 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. this subpoena ts issued upon application of the rated States o A •If not applicable. cola none To be we ma d/All* FORM ORD-227 /AN 86 DATE November 13, 2006 • ' • .S. Attorney . o. us a tan cnue, in e West Palm Reach, El. 33401-6235 Case No. 08-80736-CV-MARRA P-000193 EFTA00227573

Case No. 08-80736-CV-MARRA P-000194 EFTA00227574

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-22 SUBPOENA FOR: PERSON a DOCUMENTS OR OBJECT'S' YOU ARE HEREBY COMMANDED to appear andtestifybefore the Grand Juryofthe United States District Court at the place, date and time specified below. PLACE: United States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: December 1, 2006 9:30 am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your com liance with this subpoena and confirm the date and time Of our a »ca ra nee with Special Agen Federal Bureau of Investigation, Telephone: This subpoena shall remain in effect until you arc granted leave to depart by the court or by an officer acting on behalf of the court. CIERK This subpoena is issued upon application •If not applicable. enter 'none DATE: November 13, 2006 Name, Address and Phone Number of Assistant U.S. Attorney Ir. IHM Wrill iazi venue, tie West Palm Beach, FL 3340/-6235 Tao umditmetAOINI FORM ORD-227 lAN.S6 Case No. 08-80736-CV-MARRA P-000195 EFTA00227575

Case No. 08-80736-CV-MARRA P-000196 EFTA00227576

Case No. 08-80736-CV-MARRA P-000197 EFTA00227577

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-23 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECT IS) YOU ARE HEREBY COMMANDED to appearand testify before the Grand Jury ofthc United States District Court at the place, date and time specified below. PLACE: United States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: December I, 2006 9:30 am YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): Please coordinate your compliance with this sub oena and confirm the date and time , and location of your appearance with Special Agen ederal Bureau of Investigation, Telephone: 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 (BY) DEPUTY CLERK This subpoena is issued upon application 'If not applicable, enter "none DA It. November 13, 2006 Name, Address and Phone Number of Assistant U.S. Attorney O. ultra lan Venue, P .M West Palm Beach, FL 33401-6235 u be ned ga Is of AO110 FORM ORD-227 JAN.86 Case No. 08-80736-CV-MARRA P-000198 EFTA00227578

United States District Court SOUTHERN DISTRICT OF FLORIDA TO: SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 05-02(WPB)-Fri./No. OLY-23-2 SUBPOENA FOR: PERSON a DOCUMENTS OR OBJECTS( YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: United States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: January 12, 2007 9:30 am• YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): •Please coordinate your compliance with this subpoena and confirm the date and time , and location of 'our a earance with Special Agent Federal Bureau of Investigation, Telephone: 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. (BY) DEPUTY ("LURK NA) ICA cn CT To is sial is hoof A01110 FORM ORIT227 This subpoena is issued upon application of the United States of America DAIT December 18, 2006 Name, Address and Phone Number of Assistant U.S. Attorney 500 So. Australian Avenue, Suite 400 West Palm Beach, FL 33401.6235 JAN 66 Case No. 08-80736-CV-MARRA P-000199 EFTA00227579

2da7 Case No. 08-80736-CV-MARRA Pc.SF P-000200 EFTA00227580