In Re Grand Jury Proceedings GJ-98-011-M 12/04/98 P UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

In Re Grand Jury Proceedings Involving William Harry Vickers and Joseph Haas.

Case No. 98-GJ-ll

O R D E R

On October 29, 1998, William Harry Vickers was served with a

grand jury subpoena, directing him to provide major case prints

(i.e., fingerprints and palm prints), saliva, and hair samples to

the federal grand jury investigating recent pipe bombing

incidents in Concord, New Hampshire.1 On November 2, 1998,

Joseph Haas, Jr., received a similar subpoena, seeking major case

prints, saliva, and hair samples. Neither man provided the grand

jury with the reguested samples. Conseguently, on application of

the government, the court ordered them to appear and show cause

why they should not be held in contempt.

On November 6, 1998, a show cause hearing was held. Mr.

Haas appeared, pro se, and Mr. Vickers appeared with counsel.

1 The subpoena also directed Mr. Vickers to provide the grand jury with handwriting exemplars and fingernail scrapings. However, after receiving additional information from the FBI, the Assistant United States Attorney, acting as counsel to the grand jury, withdrew the reguests for handwriting exemplars and fingernail scrapings. Attorney Paul McEachern. After determining that the government

did not plan to reference any information pertinent to the grand

jury's investigation not already known to the public, the court

concluded, and the government agreed, that the hearing need not

be sealed. The general public was, therefore, permitted to

attend.2

Attorney McEachern explained that he had been retained by

Mr. Vickers that afternoon, so was not adeguately prepared to

address the legal issues he thought relevant. He reguested, and

was granted, an opportunity to file a written motion to guash the

subpoena served upon his client, supported by a legal memorandum.

Mr. Haas sought to join in that anticipated motion. The

government had no objection and the court allowed it.

Conseguently, the court deferred ruling on whether either Mr.

Vickers or Mr. Haas (collectively, "respondents") should be held

in contempt for failing to comply with the subpoenas, pending

review of the anticipated motions to guash and supporting

memoranda, which have since been filed.

2 However, because the government's Ex Parte Petition for Order to Show Cause (document no. 1) discloses matters and evidence pending before the grand jury, it shall remain subject to seal.

2 Many of the arguments raised by respondents focus on the

government's alleged failure to comply with the provisions of the

United States Attorney's Manual (e.g., failure to provide an

advice of rights form, failure to provide "subject" or "target"

letters, etc.) and/or relate to items of evidence no longer

sought by the grand jury (i.e., fingernail scrapings and

handwriting exemplars). Those claims do not warrant much

discussion as they are adeguately and correctly addressed in the

government's objection to the motion to guash (document no. 12).

Moreover, neither the United States Attorney nor the grand jury

is strictly bound by the administrative guidelines set forth in

the United States Attorney's Manual when issuing a grand jury

subpoena. See In re Grand Jury Proceedings,

(E.D . Texas 198 6) .

The core of respondents' remaining argument is based upon

the assumption that the only basis for the grand jury's subpoena

is their outspoken and constitutionally protected views critical

of the government. Thus, they claim that the subpoenas at issue

violate their First Amendment rights. They also assert that the

grand jury subpoenas violate their Fourth Amendment right to be

free from unreasonable searches and seizures. Conseguently, they

say that the only means by which the grand jury can obtain the

3 requested evidence without unlawfully imposing on their

constitutional rights is by obtaining a search warrant, supported

by probable cause and issued by a neutral and detached judicial

officer.

First, it is important to note that matters pending before,

and evidence presented to, the grand jury are kept secret.

Accordingly, respondents do not know what evidence is before the

grand jury, nor why the grand jury might be interested in

particular information. Similarly, the FBI agent who interviewed

Mr. Vickers (and upon whose alleged statements respondents rely

in support of what are essentially claims of harassment) likely

was also unaware of such evidence (or, even if he was aware of

it, he was legally obligated not to share it with respondents).

Consequently, respondents' assertion that they have been

"targeted" by the grand jury based solely upon their outspoken

but constitutionally protected views is, at best, unsupported

speculation.

The court is obviously sensitive to the need to keep secret

those matters and that evidence pending before the grand jury.

Based on an _in camera review of the government's submissions, the

court is satisfied that the grand jury's purpose in issuing the

4 subpoenas is not to infringe respondents' First Amendment rights

or otherwise harass them because of whatever social or political

views they may espouse. It is, therefore, sufficient to note

that respondents are incorrect in asserting that the "exercise of

[their] protected First Amendment right of petition was the

criterion underpinning the government's decision to initiate

[its] investigation." Respondents' motion (document no. 10) at

4. Accordingly, the court will focus exclusively on respondents'

Fourth Amendment claims.3

I. Scope of the Court's Review.

The grand jury occupies a unigue position in the criminal

justice system.

3 Even if the court were to accept respondents' claim that the government must make a heightened showing justifying the issuance of the subpoenas at issue (on the strength of vague notions that such a showing is necessary whenever someone claims that First Amendment rights are implicated by a grand jury subpoena), the court would conclude that the government has made such a showing. See Government's Ex Parte Petition for Order to Show Cause. See generally, Branzburq v. Haves,

(1972) (rejecting the claim that a reporter has a conditional privilege under the First Amendment to refuse to appear and testify before a grand jury, but recognizing that a grand jury would have no justification for undertaking an investigation in bad faith or solely for the purpose of harassing or otherwise interfering with a reporter's relationship with his or her sources). As noted above, in this case there is absolutely no basis upon which to suggest, much less conclude, that the grand jury is acting in bad faith or that it is seeking to harass respondents.

5 [T]he grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It 'is a constitutional fixture in its own right.' In fact the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people. Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm's length. Judges' direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office.

United States v. Williams,

(1992) (citations

omitted). Because grand jury proceedings are "other than a

constituent element of a 'criminal prosecution,'" the Court has

held that certain constitutional protections afforded in the

context of a criminal prosecution (e.g.. Fifth Amendment

protections of the Double Jeopardy Clause, the Sixth Amendment's

right to counsel, etc.) are inapplicable in proceedings before a

grand jury. See

at 49 (citing cases).

In light of those holdings, and recognizing the historical

function of the grand jury as an independent investigatory body

which acts as a buffer between the citizenry and government, the

Court has been reluctant to measure the enforceability of grand

6 jury subpoenas against the same standards applicable to search

warrants. See, e.g.. Hale v. Henkel,

(1906)

(holding that while a grand jury subpoena for the production of

books and papers may implicate the Fourth Amendment, when

presented with a challenge to such a subpoena a court need only

determine whether the reguest is "far too sweeping in its terms

to be regarded as reasonable."); United States v. Calandra,

(1974) (guoting Henkel and again suggesting that

Fourth Amendment rights are adeguately protected when grand jury

subpoenas are subjected to court review for reasonableness, but

not for "probable cause").

In fact, the Court has held the Fourth Amendment applicable

in the context of a grand jury's subpoena duces tecum only by

analogy, concluding that the subpoena constitutes only a

"figurative" or "constructive," and not an "actual" search and

seizure. Accordingly, the Court has observed (at least with

regard to subpoenas duces tecum reguiring the production of

corporate documents):

It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of the law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command. This has been ruled most often perhaps in relation to grand jury investigations . . . . The

7 requirement of "probable cause, supported by oath or affirmation," literally applicable in the case of a warrant, is satisfied in that of an order for production by the court's determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry. Beyond this the requirement of reasonableness, including particularity in "describing the place to be searched, and the persons or things to be seized," also literally applicable to warrants, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry.

Oklahoma Press Publishing Co. v. Wallace,

(1946) .

Interpreting Supreme Court precedent on this issue. Judge

Friendly observed:

These decisions, and the reasoning behind them, suggest that the Court may be moving toward the position, urged by Mr. Justice Miller in Boyd and Mr. Justice McKenna in Hale v. Henkel and strongly intimated in Oklahoma Press Publishing Co. v. Walling, that restriction on overbroad subpoenas duces tecum rests not on the Fourth Amendment but on the less rigid requirements of the due process clause.

In Re Grand Jury Subpoena Served upon Simon Horowitz,

(2d Cir. 1973). So, while the Constitution undoubtedly

protects a citizen from an overly broad grand jury subpoena, the subpoena is not subject to the same type or degree of scrutiny

under the Fourth Amendment as are search warrant applications.

When a grand jury subpoena arguably implicates a citizen's

rights under the Fourth Amendment, the means by which those

rights are vindicated usually involves two steps. First, the

subject of the subpoena normally files a motion to guash, setting

forth in detail why he or she believes the subpoena is improper,

unreasonable, or overly broad. Next, a judicial officer reviews

those claims, determines whether the citizen's constitutional

rights are, in fact, implicated by the subpoena and, if so,

balances those rights against the grand jury's need for the

reguested information. As a starting point in its inguiry,

however, the reviewing court must be mindful that a "presumption

of regularity attaches to grand jury proceedings and hence to a

grand jury subpoena." In re Lopreato,

(1st

Cir. 1975). Accordingly, "[t]hose challenging such a subpoena

have the burden of showing that irregularity exists."

(citation omitted). See also United States v. R. Enterprises,

Inc.,

(1991) (holding that because "a grand

jury subpoena issued through normal channels is presumed to be

reasonable, . . . the burden of showing unreasonableness must be

on the [subpoena] recipient who seeks to avoid compliance," but recognizing that a court may be justified, under some

circumstances, in reguiring the government to "reveal the general

subject of the grand jury's investigation before reguiring the

challenging party to carry its burden of persuasion.").

With those principles in mind, then, this court must

determine whether: (1) respondents' constitutional rights are

implicated by the subpoenas (which will determine the appropriate

level of scrutiny); and (2) whether respondents have stated

adeguate grounds to justify guashing the subpoenas. See

generally Fed. R. Grim. P. 17(c) (authorizing the court to guash

a subpoena for the production of documentary evidence or "other

objects" if compliance would be unreasonable or oppressive).

However, it is important to remember that even when a citizen's

Fourth Amendment rights are arguably implicated by a grand jury's

subpoena, the relevant inguiry is not whether the subpoena is

supported by "probable cause." Instead, the court must simply

determine whether the subject matter and scope of the subpoena

are reasonable under the circumstances, including consideration

of the subpoenaed person's constitutional rights. See, e.g..

Hale.

.

10 The following questions are pertinent to that

"reasonableness" assessment: (1) Does the subpoena command the

production of things relevant to the investigation being pursued

by the grand jury?; (2) Does the subpoena specify with sufficient

particularity the things being sought?; (3) Is the subpoena

sufficiently narrow in scope to be considered reasonable?;

(4) Has the subpoena issued for reasons other than to harass the

subject?; and (5) Can the subject provide the requested evidence

without unnecessary risk of personal harm (e.g., potentially

dangerous invasive surgery) and/or personal humiliation (e.g.,

unnecessary invasion of bodily integrity or dignitary interests)?

In short, the court must determine whether protected

constitutional values or rights are likely to be unduly burdened

or violated if the subpoena is not quashed. See, e.g.. In re

Grand Jury Subpoena Duces Tecum,

(D.R.I. 1975).

See generally Winston v. Lee,

(1985); C u p p v .

Murphy,

(1973); Schmerber v. California,

(1966) .

I. Grand Jury Subpoena of Fingerprints and Hair Samples.

To the extent the subpoenas issued in this case seek to

compel the production of fingerprint samples, they plainly do not

implicate respondents' Fourth Amendment rights.

11 Obtaining physical evidence from someone can implicate

Fourth Amendment concerns at two different levels: the initial

"''seizure' of the 'person' necessary to bring him into contact

with government agents, and the subseguent search for and seizure

of the evidence." United States v. Dionisio,

(1973) (citations omitted). As to the first step, "[i]t is clear

that a subpoena to appear before a grand jury is not a 'seizure'

[of the person] in the Fourth Amendment sense, even though that

summons may be inconvenient or burdensome."

. As to the

second step, respondents do not enjoy a constitutionally

protected privacy interest in their fingerprints. See generally

Cu p p v . Murphy,

(characterizing fingerprints as

"mere physical characteristics" which are "constantly exposed to

the public."); Dionisio,

(holding that a person

does not have a reasonable expectation of privacy with regard to

physical characteristics which he or she routinely exposes to

public view); Katz v. United States,

(1967)

("What a person knowingly exposes to the public, even in his own

home or office, is not a subject of Fourth Amendment

protection."). See also Davis v. Mississippi,

(1969) (holding that the initial seizure of the defendant was

unlawful, but noting, with regard to the second step in the

Fourth Amendment analysis, that "[f]ingerprinting involves none

12 of the probing into an individual's private life and thoughts

that marks an interrogation or search."); In re Grand Jury

Proceedings,

6 ("The reguirement that the

witness must furnish [the grand jury with] . . . fingerprints and

palm prints does not violate his Fourth or Fifth Amendment

rights.").

Accordingly, respondents' initial position - that the grand

jury cannot lawfully issue a subpoena reguiring them to provide

fingerprint samples without first meeting the probable cause

reguirements of the Fourth Amendment and obtaining a valid search

warrant - is wrong. Because respondents' Fourth Amendment rights

are not implicated by the grand jury's reguest for fingerprints,

the court need only determine whether the evidence sought is

potentially relevant to a legitimate investigatory purpose and

whether reguiring compliance with the subpoenas would be

unreasonable or oppressive. See Fed. R. Grim. P. 17(c).

Respondents' fingerprints plainly meet the test of relevance, see

Government's Ex Parte Petition for Order to Show Cause (sealed

document no. 1), and reguiring production of the reguested

evidence will obviously impose minimal inconvenience, and

certainly neither an unreasonable nor oppressive burden.

13 For essentially the same reasons, the court also rejects

respondents' assertions with regard to the grand jury's demand

for hair samples. The Court of Appeals for the First Circuit has

held, at least implicitly, that a grand jury subpoena seeking

hair samples need not be supported by either a warrant or

probable cause. In re De Jesus Berrios,

(1st Cir.

1983). Other circuit courts of appeals agree. See, e.g.. In re

Grand Jury Proceedings (Mills),

(3rd Cir. 1982)

("[W]e conclude that there is no greater expectation of privacy

with respect to hair which is on public display than with respect

to voice, handwriting or fingerprints. ... If fingerprints can

be subjected to compelled disclosure by the grand jury without

implicating the Fourth Amendment, it follows logically that the

hair strands can as well."); In re Grand Jury Proceedings

Involving Eve Rosahn,

(2d Cir. 1982) (holding

that a grand jury's subpoena of fingerprints, handwriting

exemplars, and hair samples need not be supported by a search

warrant or a showing of reasonableness).

Thus, it follows that the grand jury's reguest for hair

samples, like fingerprints, does not implicate respondents'

Fourth Amendment rights. Conseguently, the scope of review

applicable to a grand jury subpoena seeking hair samples is guite

14 limited. Here, the subpoenas describe the evidence sought with

particularity; the evidence is reasonably related to a legitimate

aspect of the grand jury's ongoing investigation; and reguiring

compliance with those subpoenas would impose neither an

unreasonable nor oppressive burden. See Fed. R. Grim. P. 17(c).

Accordingly, to the extent the grand jury seeks major case

prints and hair samples, respondents' motion to guash the

subpoenas is denied.

II. Saliva Samples.

A more difficult issue is presented by the motion to guash

as it pertains to the grand jury's reguest for saliva samples.

Whether a grand jury may compel a citizen to submit saliva

samples, absent some showing beyond the test set forth in Rule

1 7 (c) (unreasonableness or oppressiveness), is a fairly open

guestion. Respondents argue that because taking a saliva sample

involves an undeniable intrusion compromising their right to

bodily integrity, their Fourth Amendment right to be free from

unreasonable searches and seizures is implicated. The court is

inclined to agree: a grand jury subpoena compelling a citizen to

provide saliva samples does implicate his or her Fourth Amendment

rights. Therefore, it is necessary to balance the grand jury's

15 legitimate interest in conducting a thorough investigation and

obtaining relevant evidence against respondents' constitutionally

protected interests, to determine whether what is effectively a

search and seizure is, nevertheless, reasonable.

The Supreme Court has not directly confronted the issue,

commentators generally lament the state of confusion in this area

of the law,4 and the guestion appears to be one of first

impression in this circuit. However, a brief survey reveals that

at least two federal district courts have ruled on the guestion,

at least indirectly. See United States v. Nicolosi,

(E.D.N.Y. 1995); Henry v. Ryan,

(N.D. 111.

1991). Other courts have addressed it in the related context of

a grand jury subpoena seeking to compel the production of blood

samples. See, e.g.. In re Grand Jury Proceedings (T.S.),

(W.D. Ky. 1993).

In Nicolosi, the district court was presented with a motion

to guash a subpoena issued by the prosecution (not a grand jury),

4 See, e.g., Paul S. Diamond, Federal Grand Jury Practice and Procedure, § 6.02 (3d ed. 1997); Floralynn Einesman, Vampires Among Us - Does a Grand Jury Subpoena for Blood Violate the Fourth Amendment?,

(1995); Rosemary Elizabeth-Ann Smith, A Proposal to Prevent Unlawful Bodily Intrusion in the Context of a Grand Jury Subpoena Duces Tecum,

(1994).

16 after the subject of the subpoena had already been indicted.

Factually, therefore, Nicolosi is distinguishable from the

present case, in which neither respondent has been indicted (nor

has either respondent been served with a "subject" or "target"

letter). Nevertheless, the Nicolosi court's reasoning is

instructive and helpful.

In Nicolosi, Judge Glasser observed that, in terms of

implicating constitutional rights, evidence a grand jury might

seek in the course of conducting a legitimate investigation

should be viewed as falling along a continuum. Where particular

evidence lies on that continuum will dictate the extent of the

showing the government must make in order to justify enforcement

of a subpoena.

Cast in terms of those items upon which the courts have already spoken, on one end of the continuum are things such as voice, hair and handwriting samples. These items are outwardly manifested and in the public domain. Obtaining these samples does not implicate any privacy or dignity interests and can be affected without a full Fourth Amendment procedure. . . .

On the other end of the continuum is a blood sample and presumably other internal fluids which could only be obtained by extracting them from the body. Obtaining such samples reguires full compliance with Fourth Amendment procedures. These items are not in the public domain and privacy and dignitary interests are implicated by the method of obtaining the sample - an individual is reguired to submit to an agent of the

17 state who extracts the sample by penetrating the subject's body.

Nicolosi,

. The court then concluded that

saliva samples arguably "fall sguarely in the middle of this

continuum."

.

In In re Grand Jury Proceedings (T.S.), supra, the district

court addressed a related guestion: "whether a grand jury

subpoena, rather than a warrant, can be used to obtain blood

samples." Id., at 1205. Relying upon Schmerber v. California,

(1966), the court concluded that a "demand for blood

does constitute a search within the protection of the Fourth

Amendment."

Acknowledging that the Supreme Court had not

yet addressed whether a grand jury subpoena may compel the

production of blood, the district court reasoned that employing a

grand jury subpoena in that manner would constitute an abuse of

the grand jury's subpoena power. Conseguently, the court held

that if the grand jury sought blood samples, the government would

be reguired to obtain such evidence via a search warrant,

supported by probable cause, and issued by a neutral and detached

judicial officer. Id. at 1205-06.

18 Regarding the subpoenas at issue in this case, the court is

not persuaded that the reasoning of In re Grand Jury Proceedings

(T.S .) should counsel the same result. First, it is worth noting

that the cited case involved a grand jury subpoena seeking blood

(evidence at the far end of the posited Fourth Amendment privacy

continuum), while the material sought here is saliva (evidence

falling more toward the middle of that continuum). Moreover,

Supreme Court precedent in this area suggests that when a

person's Fourth Amendment rights are implicated by production

demands found in a grand jury subpoena (regardless of the type of

evidence sought), the proper remedy is not to reguire the

government (or grand jury) to obtain a search warrant. See,

e.g., Dionisio,

(holding that a grand jury

subpoena seeking a voice exemplar did not implicate Fourth

Amendment rights, but suggesting that even if it had, at most the

government would have been reguired to demonstrate that the grand

jury subpoena was "reasonable."). Additionally, reguiring the

government or grand jury to obtain a search warrant before it

could compel the production of a saliva sample would intrude to

an unnecessary extent upon the grand jury's independent

investigatory function.

19 That is not to say, however, that a citizen is without

constitutional protection or a means by which constitutional

guarantees can be enforced when confronted with a grand jury

subpoena. When a legitimate constitutional right is implicated

by a grand jury subpoena, a reviewing court will, in considering

a motion to guash, ensure that the subject's constitutional

rights are protected by determining whether the subpoena is

"reasonable" under the circumstances. See

Fed. R.

Crim. P. 17(c). And, during its inguiry into the

"reasonableness" of the challenged subpoena, the court will

balance the legitimate and protected privacy interests of those

subpoenaed against the grand jury's legitimate need to conduct

its investigation and obtain evidence relevant to its inguiry

into possible criminal wrongdoing. See Winston v. Lee,

("The reasonableness of . . . intrusions beneath the skin

depends on a case-by-case approach, in which the individual's

interests in privacy and security are weighed against society's

interests in conducting the procedure.").

Turning to that balancing task, respondents have identified

an interest protected by the Fourth Amendment: their right to

bodily integrity and privacy. See generally Schmerber v.

California,

(1966). In response, the government has

20 demonstrated that the evidence sought: (1) is plainly relevant to

a legitimate and ongoing investigation being conducted by the

grand jury; (2) is described with sufficient particularity to

notify respondents of precisely what is sought; (3) is not sought

to harass respondents or to impose some burden because of their

social or political views; (4) could be probative in identifying

or eliminating persons who may have participated in, or may have

knowledge of or evidence relating to, the crimes under

investigation; (5) can be obtained from respondents with very

minimal invasion of their bodily integrity (i.e., by simply

swabbing the inside of the mouth); and (6) can be obtained with

no risk of physical pain, injury, or embarrassment to

respondents, and with the most minimal personal inconvenience.

This situation is, therefore, dramatically different from

that presented in Winston v.

in which the government

(not a grand jury) sought to compel a suspect to undergo

potentially dangerous and highly invasive surgery to remove a

bullet, of minimal comparative evidentiary value, from his

shoulder.

On balance, therefore, the court concludes that the grand

jury subpoenas at issue are neither "unreasonable" nor otherwise

21 properly subject to an order to quash. The grand jury's

justification for issuance and enforcement of those subpoenas is

more than adequate to warrant denial of respondents' motion to

quash.

Conclusion

For the foregoing reasons, respondents' motion to quash

(document no. 10) is denied. Respondents are hereby ORDERED to,

and SHALL comply with the subpoenas at issue, without fail, not

later than December 11, 1998. or as otherwise directed by the

grand jury, by providing the grand jury with major case prints,

hair samples, and saliva samples in accordance with procedures

established by the grand jury or the United States Attorney.

Failure to comply will expose respondents to coercive contempt

sanctions.

SO ORDERED

Steven J. McAuliffe United States District Judge

December 4, 1998

cc: United States Attorney Paul McEachern, Esq. Joseph Haas, pro se

22