The opinion of the court was delivered by: Paul D. Borman United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO QUASH GRAND JURY SUBPOENA FOR DEFENDANT'S TESTIMONY BASED ON HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
On December 10, 2009, the Federal Grand Jury issued an indictment charging Defendant Thomas Joseph Kirschner with three felony counts:
COUNT ONE: 18 U.S.C. § 2252A(a)(2)(A) - Receipt of Child Pornography on or about May 9, 2009, "including by computer."
COUNT TWO: 18 U.S.C. § 2252A(a)(2)(A) - Receipt of Child Pornography on or about June, 2009, "including by computer."
COUNT THREE: 18 U.S.C. § 2252A(a)(2)(A) - Receipt of Child Pornography on or about August 2009, "including by computer."
On November 20, 2009, an Assistant U.S. Attorney ("AUSA") issued a "subpoena to Defendant Kirschner to testify before a Grand Jury" on December 8, 2009. The subpoena required Defendant "to provide all passwords used or associated with the . . . computer . . . and any files."
On December 7, 2009, Defendant Kirschner filed a Motion to Quash Grand Jury Subpoena asserting Defendant's Fifth Amendment privilege against self-incrimination.
On December 22, 2009, the Government filed a Response, which stated in the accompanying brief:
In order to examine the contents of the encryption file, the government issued a grand jury subpoena ordering Defendant to provide all passwords associated with its computer. (Gov't Br. in Response to Mot., p. 1.)
On February 11, 2010, Defendant filed a Reply.
On February 16, 2010, the Court held a hearing on the Defendant's Motion to Quash at which the Court raised an additional issue: use of grand jury, post-indictment, to acquire additional evidence in support of the prosecution, citing United States v. Doss, 563 F.2d 265 (6th Cir. 1977) (en banc). The Court provided the parties with a two-week period to file a brief on that second issue. On March 16, 2010, both parties filed a supplemental brief.
I. Post-Indictment Grand Jury Subpoena.
The Court concludes that the subpoena will not be quashed because, per government averment, it is being utilized post-indictment to investigate additional charges. The government recognizes that it cannot use the grand jury to secure additional information on the charges contained in the indictment. Yet, the instant situation creates a murky factual situation.
The government concedes that the instant grand jury subpoena was issued to secure evidence of child pornography allegedly contained in Defendant Kirschner's computer, which spawned the three counts contained in the indictment:
AUSA: [I]t's our position that the grand jury is still investigating the contents of the encryption file.
COURT: It's the same computer.
AUSA: It is the same computer. (Hr'g Tr., Feb. 16, 2010, p. 10.)
The Handbook on Criminal Procedure, authored by Professors LaFave, Israel, King and Kerr, (2d. ed. 2007), states the law in this area as follows:
The grand jury is given its broad investigative powers to determine whether a crime has been committed and an indictment should issue, not to gather evidence for use in cases in which indictments have already issued. Accordingly, both state and federal courts hold that it is an abuse of the grand jury process to use grand jury subpoenas "for the sole or dominating purpose of preparing an already pending indictment for trial."
Courts note that establishing a misuse claim is extremely difficult. "Absent some indicative sequence of event demonstrating an irregularity, a court has to take at face value the Government's word that the dominant purpose of the Grand Jury proceedings is proper." Not surprisingly, reported cases finding an improper purpose are rare. Though a few cases suggest that the potential for abuse is heightened where the grand jury post-indictment seeks evidence bearing upon the pending charge from an indicted person himself, the government can often point to the ...