18-3485 In re Grand Jury Proceeding

United States Court of Appeals For the Second Circuit

August Term 2019

Argued: August 26, 2019 Decided: June 3, 2020

No. 18-3485

IN RE: GRAND JURY PROCEEDING

FREDERICK MARTIN OBERLANDER,

Respondent-Appellant,

RICHARD E. LERNER,

Respondent,

v.

UNITED STATES OF AMERICA,

Movant-Appellee.

Appeal from the United States District Court for the Eastern District of New York No. 17-mc-2242, LaShann DeArcy Hall, Judge. Before: WINTER, POOLER, AND SULLIVAN, Circuit Judges.

Respondent-Appellant Frederick Oberlander challenges orders issued by the district court (LaShann DeArcy Hall, J.) denying his motion to quash various grand jury subpoenas and directing him to comply with the subpoenas on pain of coercive monetary sanctions. Oberlander argues that the district court lacked jurisdiction to enforce those subpoenas because they were either issued by the government without a sitting grand jury or were enforced only after the issuing grand jury had expired. In addition, Oberlander argues that the subpoenas were overbroad, issued for an improper purpose, and infringed upon his First and Fifth Amendment rights. We hold that (1) the district court lacked jurisdiction to enforce a subpoena issued without a sitting grand jury; (2) the district court retained jurisdiction to oversee a subpoena involving the same subject matter that was subsequently issued by a newly impaneled grand jury; and (3) the district court ceased to have jurisdiction to enforce the validly issued subpoena after the issuing grand jury’s term expired. Nevertheless, because yet another grand jury has been impaneled and has issued an identical subpoena, we have jurisdiction to reach the merits of Oberlander’s motion to quash the subpoena and find that the subpoena was neither overbroad nor issued with an improper purpose, and that it did not infringe upon Oberlander’s First or Fifth Amendment rights.

VACATED IN PART; AFFIRMED IN PART AND REMANDED.

FREDERICK M. OBERLANDER, ESQ., pro se, Montauk, New York.

RICHARD D. BELLISS (Stephen C. Green, on the brief) Assistant United States Attorneys, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Albany, New York, for Movant-Appellee United States of America.

RICHARD J. SULLIVAN, Circuit Judge:

Respondent-Appellant Frederick Oberlander challenges orders issued by

the district court (LaShann DeArcy Hall, Judge) denying his motion to quash

2 various grand jury subpoenas and directing him to comply with the subpoenas on

pain of coercive monetary sanctions. Oberlander argues that the district court

lacked jurisdiction to enforce those subpoenas because they were either issued by

the government without a sitting grand jury or were enforced only after the

issuing grand jury had expired. In addition, Oberlander argues that the subpoenas

were overbroad, issued for an improper purpose, and infringed upon his First and

Fifth Amendment rights.

We VACATE IN PART, AFFIRM IN PART, and REMAND, holding that

(1) the district court lacked jurisdiction to enforce a subpoena issued without a

sitting grand jury; (2) the district court retained jurisdiction to oversee a subpoena

involving the same subject matter that was subsequently issued by a newly

impaneled grand jury; and (3) the district court ceased to have jurisdiction to

enforce the validly issued subpoena after the issuing grand jury’s term expired.

Nevertheless, because yet another grand jury has been impaneled and has issued

an identical subpoena, we have jurisdiction to reach the merits of Oberlander’s

motion to quash and find that the subpoena was neither overbroad nor issued with

an improper purpose, and that it did not infringe upon Oberlander’s First or Fifth

Amendment rights.

3 I. Background

A. Prior Proceedings

In 1998, Felix Sater pleaded guilty to participating in a “pump and dump”

securities fraud scheme as a part of a racketeering enterprise involving the La Cosa

Nostra organized crime families. Estate of Gottdiener v. Sater,

(S.D.N.Y. 2014); see also Information at 10, United States v. Sater, No. 98-cr-1101

(ILG) (E.D.N.Y. Dec. 10, 1998), ECF No. 6. Over the next decade, he secretly

cooperated with the government in an undercover capacity, providing “valuable

foreign intelligence as well as information concerning some of the most elusive

and dangerous criminals of interest to U.S. law enforcement.” United States v.

Sater, No. 98-cr-1101 (ILG),

, at *1 (E.D.N.Y. July 22, 2019).

Although Sater’s criminal proceedings were finally terminated when he was

sentenced in 2009, the fact of his cooperation remained sealed until it was

inadvertently disclosed by the Office of the Clerk of Court in August 2012. See In

re Applications to Unseal 98 CR 1101(ILG),

(2d Cir. 2014); see also

Sater,

, at *1 (discussing Sater’s cooperation as a matter of public

record).

4 Between 2010 and 2013, on the heels of Sater’s sentencing, Oberlander filed

a series of lawsuits seeking compensation on behalf of clients who alleged that

Sater had defrauded them. See Notice of Removal, Kriss v. BayRock Grp. LLC,

No. 13-cv-3905 (LGS) (S.D.N.Y. June 7, 2013), ECF No. 1; Complaint, Estate of

Gottdiener v. Sater, No. 13-cv-01824 (LGS) (S.D.N.Y. March 18, 2013), ECF No. 1;

Complaint, Kriss v. BayRock Grp. LLC, No. 10-cv-3959 (LGS) (S.D.N.Y. May 10,

2010), ECF No. 1. As part of those lawsuits, Oberlander sought to publicly disclose

information about Sater’s cooperation with the government, even going so far as

to attach sealed materials to the complaints as exhibits. See Roe v. United States,

, 63–64 (2d Cir. 2011). Ultimately, this Court enjoined Oberlander from

publicly disclosing any sealed information and directed the Chief Judge of the

Eastern District of New York to appoint a special master to oversee compliance

with the relevant sealing orders. Roe v. United States,

(2d Cir.

2011); see also In re Applications to Unseal 98 CR 1101(ILG),

(affirming sealing orders); Roe,

(affirming injunction).

In August 2012, Sater commenced a civil contempt proceeding against

Oberlander, alleging that Oberlander had intentionally violated this Court’s

disclosure injunction. See Motion, In re Motion for Civil Contempt by John Doe,

5 No. 12-mc-557 (PKC) (E.D.N.Y. Aug. 22, 2012), ECF No. 1. In March 2015, Judge

Cogan, then serving as special master, issued an order directing Oberlander to

show cause as to why he had not violated the sealing orders and this Court’s

orders by repeatedly disclosing sealed documents and other information between

February 2011 and January 2015. See

ECF No. 97. Four months later, Judge

Cogan referred the matter to the United States Attorney for the Eastern District of

New York for a criminal investigation. See

ECF. No. 117. The United States

Attorney’s Office for the Eastern District of New York subsequently recused itself

and referred the investigation to the United States Attorney for the Northern

District of New York.

B. Grand Jury and District Court Proceedings

In April 2016, following Judge Cogan’s referral, a grand jury was impaneled

in the Eastern District of New York (the “First Grand Jury”) to investigate

Oberlander’s conduct with respect to the sealing orders. Two months later, in

June 2016, the First Grand Jury issued the first of at least four subpoenas

requesting documents from Oberlander relating to his communications with

reporters. Oberlander refused to comply with the subpoena, and the First Grand

Jury’s term expired on December 14, 2016.

6 Nevertheless, over four months later, the government, apparently unaware

that the First Grand Jury had expired, served Oberlander with another grand jury

subpoena (the “April 2017 Subpoena”) in connection with the same investigation.

This subpoena, dated April 3, 2017, was directed to the custodian of records for

Oberlander’s law firm and requested the same records as the first subpoena, as

well as the custodian’s testimony. Neither Oberlander nor a different records

custodian appeared to give testimony, and no records were produced.

Meanwhile, on April 19, 2017, a new grand jury was impaneled (the “Second

Grand Jury”) to investigate the same conduct: Oberlander’s mishandling of sealed

documents and his violation of court-issued sealing orders.

In August 2017, the government filed a motion to compel Oberlander to

comply with the April 2017 Subpoena. The district court granted the motion a

week later. After eight months and at least nine extensions of time, Oberlander

filed a pro se motion to quash the subpoena on May 7, 2018.

On June 6, 2018, the district court denied Oberlander’s motion to quash but

directed the government to reissue the April 2017 Subpoena with minor

amendments not relevant here. The court further ordered Oberlander to produce

the documents demanded by the soon-to-be-reissued subpoena within a month

7 and warned that failure to comply would “result in sanctions, including the

imposition of coercive fines or imprisonment pending compliance.” Gov’t App’x

at 133.

On June 12, 2018, in accordance with the district court’s direction, the

Second Grand Jury issued a revised subpoena (the “June 2018 Subpoena”), which,

like the prior two subpoenas, sought records of communications between

Oberlander and eight news reporters “involving any matters about Felix Sater”

and others occurring between January 11, 2011 and February 1, 2015. Gov’t App’x

at 136. The June 2018 Subpoena also required the custodian of records to testify

before the Second Grand Jury.

On June 22, 2018, Oberlander filed a motion for reconsideration of his

motion to quash the April 2017 Subpoena and to stay enforcement of the district

court’s June 6 order, which the district court denied on June 27, 2018. 1 In so doing,

the district court again warned Oberlander that his continued failure to produce

responsive documents would result in coercive sanctions.

1Though Oberlander did not formally style this as a motion to quash the June 2018 Subpoena, that was its practical effect. The June 2018 Subpoena was substantively identical to the April 2017 Subpoena, and a decision to quash the April 2017 Subpoena would apply with equal force to the June 2018 Subpoena. Moreover, as the June 2018 Subpoena was then the operative subpoena in the investigation, Oberlander had no need to quash the old April 2017 Subpoena.

8 On July 3, 2018, one day before the production deadline set by the district

court’s June 6 order, Oberlander produced responsive records for the period

beginning on January 9, 2013 – the date on which Oberlander had incorporated his

law practice – and continuing through the June 2018 Subpoena’s end date.

Oberlander subsequently submitted to the district court additional records

covering the period from the subpoena’s start date to January 8, 2013 – a period in

which Oberlander operated his law firm as an unincorporated sole proprietorship.

Relying on that fact, Oberlander, ostensibly moving to quash the June 2018

Subpoena, requested that the court review those records in camera to determine

whether they constituted personal records protected by the Fifth Amendment’s

“act of production” privilege – an argument that he had already raised,

unsuccessfully, in his motion to quash the April 2017 Subpoena. Predictably, on

September 25, 2018, the district court, treating Oberlander’s request as “an

additional baseless motion for reconsideration,” determined that the records were

not protected by the Fifth Amendment and ordered Oberlander to produce them

“to the government” within six days. Gov’t App’x at 144, 146.

Despite this order, Oberlander still had not produced the withheld

documents by October 17, 2018 – the date on which the Second Grand Jury, which

9 issued the June 2018 Subpoena, expired. Five days later, without an impaneled

grand jury, the government filed a motion to compel Oberlander to produce all

withheld documents as required by the district court’s orders and the June 2018

Subpoena. On October 23, 2018, the district court ordered Oberlander to produce

any remaining responsive documents by October 31, 2018 or be subject to civil

contempt sanctions in the form of a $1,000 daily fine until he complied. After

Oberlander claimed that he received late notice of that order, the district court

issued yet another order, dated November 8, 2018, that temporarily stayed the

October 23 order and directed Oberlander to produce the subpoenaed documents

within seven days of receiving the court’s November 8 order, again with a $1,000

daily fine to follow for noncompliance thereafter. As before, the deadline imposed

by the district court came and went without Oberlander producing any

documents. 2

On November 16, 2018, Oberlander timely appealed from the district court’s

November 8, 2018 order. Doc. No. 1. He also challenges the district court’s

(i) June 6, 2018 order denying his motion to quash the April 2017 Subpoena;

2On November 29, 2018, a newly impaneled grand jury, which was still sitting as of February 19, 2019, issued a new subpoena to Oberlander. The new subpoena is identical in all material respects to the June 2018 Subpoena. Though the government moved to compel Oberlander to comply with this new subpoena, the district court has not yet ruled on that motion.

10 (ii) June 27, 2018 and September 25, 2018 orders denying his motions for

reconsideration of his motion to quash; and (iii) October 23, 2018 order directing

compliance with the June 2018 Subpoena on pain of coercive monetary sanctions.

This Court granted Oberlander’s motion for a stay of monetary sanctions pending

appeal. Doc. No. 34.

II. Appellate Jurisdiction and Standard of Review

We have jurisdiction over the district court’s November 8, 2018 final order

imposing contempt sanctions, and the orders preceding it, under

.

See In re Air Crash at Belle Harbor,

, 104–05 (2d Cir. 2007); Anobile v.

Pelligrino,

(2d Cir. 2002) (“Generally, . . . this Court interprets an

appeal from a specific order disposing of the case as an appeal from the final

judgment, which incorporates all previous interlocutory judgments in that case

and permits their review on appeal.”). Insofar as Oberlander challenges our

jurisdiction and that of the district court, we may consider those issues as well. See

Kuhali v. Reno,

(2d Cir. 2001) (acknowledging that all Article III

courts possess the “inherent jurisdiction . . . to determine their jurisdiction”).

“The standard of review for determinations regarding subject-matter

jurisdiction is clear error for factual findings, and de novo for the legal conclusion

11 as to whether subject[-]matter jurisdiction exists.” Cohen v. Postal Holdings, LLC,

(2d Cir. 2017) (quoting Lyndonville Sav. Bank & Tr. Co. v. Lussier,

, 701 (2d Cir. 2000)).

III. Discussion

Oberlander challenges the district court’s sanctions orders and its refusal to

quash the subpoenas on various grounds. He argues that the district court:

(1) ceased to have subject-matter jurisdiction over the case once the government

served the April 2017 Subpoena without a sitting grand jury; (2) lacked the power

to issue coercive sanctions to enforce compliance with the April 2017 and June 2018

Subpoenas because the issuing grand juries had expired by the time the sanctions

orders had issued; and (3) erred in not quashing the April 2017 and June 2018

Subpoenas on the grounds that they were overbroad and issued in bad faith,

unduly burdened his First Amendment rights, and compelled him to produce

certain documents in violation of his Fifth Amendment “act of production”

privilege. We address each of these issues in turn.

A. Validity of April 2017 Subpoena and Jurisdiction Over Later Proceedings

Oberlander argues that the district court lacked jurisdiction over all

proceedings relating to the April 2017 and June 2018 Subpoenas because the

12 April 2017 Subpoena – which was issued without a sitting grand jury – was “never

more than a scrap of paper.” Oberlander’s Br. at 30. We therefore must determine

whether the April 2017 Subpoena was invalid when issued and, if so, whether that

fact somehow stripped the district court of jurisdiction to consider any subsequent

subpoenas issued by later grand juries containing the same information requests

or involving the same underlying conduct.

On the first point, we agree with Oberlander. The April 2017 Subpoena was

invalid because it was served by the government in the name of an expired grand

jury. That the Second Grand Jury was subsequently impaneled before the

subpoena’s April 19 return date does not alter this conclusion.

It is well settled that more than one grand jury may investigate the same

matter. See United States v. Thompson,

, 413–15 (1920); see also United

States v. Halper,

, 433 n.16 (2d Cir. 1978). Nevertheless, each grand

jury’s investigation is “separate and independent” from its predecessor’s, since an

investigation “terminates with the grand jury [that] undertakes it.” Loubriel v.

United States,

(2d Cir. 1926) (Learned Hand, J.). 3 On that basis, a

3 That Loubriel is nearly a century old is neither here nor there; it may be old, but it is “old precedent, and we are bound to follow [it].” See Vasquez v. GMD Shipyard Corp.,

(2d Cir. 2009) (internal quotation marks omitted) (treating as binding opinions issued in 1903 and 1909).

13 subpoena, which is merely an investigative tool, also terminates with the

investigating grand jury that issued it. More to the point, the duty imposed by a

subpoena to produce documents to, or to testify before, a specific grand jury ceases

once that grand jury’s term expires. See

(“When that [grand jury] adjourned,

Loubriel was under no further duty to testify [pursuant to the subpoena] . . . .”).

We have never wavered from this long-standing precedent, and at least one other

circuit has agreed that each new grand jury must issue its own subpoena. See In

re Grand Jury Proceedings (“NITHPO”),

, 217–18 (1st Cir. 2014)

(reasoning that to hold otherwise “would render the grand jury subpoena process

all but meaningless” and noting that there is “no great administrative difficulty in

requiring, as a precondition to the use of coercive contempt power, the issuance of

a new subpoena for each new grand jury”). 4

Accordingly, the April 2017 Subpoena was invalid from its inception. The

subpoena was labeled “4/4/2016[],” the date on which the First Grand Jury was

4 We note, however, that two other circuits have held to the contrary. See In re Sealed Case,

(D.C. Cir. 2000) (“Appellant has identified no prejudice arising from enforcement of a subpoena where the originally issuing grand jury has expired and another has indisputably carried the investigation forward.”); In re Grand Jury Proceedings,

, 783–84 (10th Cir. 1981) (reasoning that “to hold that a second subpoena is required would simply result in a complete waste of judicial time” and limiting the holding in Loubriel to subpoenas calling for testimony before a grand jury). Nevertheless, we find the analysis provided by Loubriel and NITHPO to be more compelling.

14 impaneled, reflecting that the subpoena concerned the First Grand Jury’s

investigation. Gov’t App’x at 15–17. But by April 2017, when the subpoena was

issued, the grand jury – and its investigation – had long since terminated. The

subpoena was therefore a nullity, since it required Oberlander to produce

documents to and appear before a grand jury that was no longer impaneled, in

connection with an investigation that had expired in December 2016. Compliance

with such a subpoena was obviously impossible, Loubriel,

, and the

district court lacked the power to compel the impossible through coercive

sanctions.

But that finding does not end our inquiry. Even though the April 2017

Subpoena was invalid when issued, the district court could clearly enforce the June

2018 Subpoena, which was properly issued by the then-impaneled Second Grand

Jury. See

(a) (granting district courts the authority to sanction a

recalcitrant witness “in any proceeding before or ancillary to any . . . grand jury”);

In re Doe,

(2d Cir. 1988) (explaining that district courts have

“inherent supervisory power” to enforce grand jury subpoenas); cf. Cosme v. IRS,

(E.D.N.Y. 1989) (holding that the district court had jurisdiction

over a summons even though it lacked jurisdiction over two related summonses,

15 which were issued to entities outside of the district). We are aware of no authority

suggesting that the issuance of an invalid subpoena automatically strips the court

of subject-matter jurisdiction to enforce subsequent subpoenas issued by a

properly impaneled and still-sitting grand jury investigating the same alleged

misconduct. To the contrary, in other contexts, we have recognized that even “if

a jurisdictional defect exists at some time prior to a district court’s entry of

judgment, the court’s judgment is still valid if the jurisdictional defect is cured

before final judgment is entered.” Brown v. Eli Lilly & Co.,

(2d

Cir. 2011); see also Hallingby v. Hallingby,

(2d Cir. 2009) (“[T]he

critical issue [is] whether the district court had subject matter jurisdiction at any

time before it rendered judgment.” (quoting Briarpatch Ltd. v. Phoenix Pictures, Inc.,

(2d Cir. 2004)). We therefore have little trouble concluding that

the district court had authority to enforce the June 2018 Subpoena while the

Second Grand Jury, which issued it, was still impaneled.

B. Power to Issue Coercive Sanctions to Compel Compliance with a Subpoena After the Issuing Grand Jury Has Expired

Oberlander next argues that even if the June 2018 Subpoena was validly

issued, the district court’s October 23, 2018 and November 8, 2018 sanctions orders

were invalid because they were issued after the Second Grand Jury had already

16 expired. Because “the law does not compel the impossible,” NITHPO,

, we agree.

As an initial matter, the district court had jurisdiction to enforce the

June 2018 Subpoena when it issued its June 27, 2018 and September 25, 2018

orders. At that time, the subpoena, having been validly issued by a still-sitting

grand jury, was enforceable. And had the district court issued coercive sanctions

at that time – or at any point before the Second Grand Jury expired on October 17,

2018 – we would have no hesitation in upholding that order. But it did not. The

district court instead waited until after the Second Grand Jury’s term expired to

finally hold Oberlander in contempt.

Once the issuing grand jury expired, Oberlander’s duty to comply with the

June 2018 Subpoena ceased. See Loubriel,

. And, as we previously held

in Loubriel, Oberlander cannot be “compelled to discharge a duty which ha[s]

ended.”

To hold otherwise would place Oberlander in the untenable position

of being subject to civil sanctions without the ability to purge himself of contempt.

See Shillitani v. United States,

(1966) (“Where the grand jury has

been finally discharged, a contumacious witness can no longer be confined since

he then has no further opportunity to purge himself of contempt.”).

17 The government attempts to sidestep this logic, arguing that Oberlander can

still purge himself of contempt because (i) the district court ordered Oberlander to

produce documents directly to the government, not the grand jury and (ii) a

successor grand jury has since been impaneled to continue the investigation. We

disagree.

First, the government does not identify any authority for the district court’s

orders except the expired June 2018 Subpoena. And, as we held in Loubriel, any

order to produce evidence pursuant to an expired grand jury’s subpoena is “void.”

; see also United States v. First Nat’l City Bank,

, 900 n.9 (2d

Cir. 1968) (“[T]he punishment [of civil contempt] c[annot] extend beyond the

expiration of the life of the Grand Jury.”). The fact that the district court ordered

Oberlander to produce the documents to the government directly is of no moment,

since the government is not authorized to stand in the shoes of the grand jury. To

hold otherwise would effectively overturn Loubriel and, more importantly, reduce

the grand jury to a quaint fiction. Cf. Branzburg v. Hayes,

(1972)

(“Grand jury proceedings are constitutionally mandated for the institution of

federal criminal prosecutions for capital or other serious crimes, and its

constitutional prerogatives are rooted in long centuries of Anglo-American

18 history.” (internal quotation marks omitted));

(“[T]he grand jury plays

an important, constitutionally mandated role . . . .”); Trump v. Vance,

,

643–44 (2d Cir. 2019) (“[T]he grand jury has a central role in our system of

federalism . . . [and] [w]e are thus hesitant to interfere with the ancient role of the

grand jury.” (internal quotation marks omitted)).

Second, as discussed above, a grand jury cannot merely pick up an

investigation from where its predecessor left off. Loubriel,

. Each is a

separate entity conducting its own investigation. Just as evidence and testimony

presented to one grand jury must be re-presented to a new grand jury, see, e.g., In

re Grand Jury Matter #3,

(3d Cir. 2017) (noting that evidence

presented to an initial grand jury was re-presented to a subsequent grand jury

before it issued a superseding indictment); see also United States v. Guillen, No. 17-

cr-512 (KMW),

, at *7 (S.D.N.Y. Nov. 7, 2018) (same); United States

v. Allen, No. 09-cr-329 (RJA),

, at *2 (W.D.N.Y. Apr. 30, 2014)

(same), so too must the new grand jury issue new investigative subpoenas to

obtain evidence previously sought by or submitted to an earlier grand jury.

To be sure, requiring each subsequent grand jury to issue nearly identical

subpoenas may result in more paperwork for the government. But, like the First

19 Circuit, “we see no great administrative difficulty in requiring, as a precondition

to the use of coercive contempt power, the issuance of a new subpoena for each

new grand jury.” NITHPO,

. And it certainly will not require much

effort on the part of the government to stay abreast of the expiration dates of the

grand juries charged with investigating serious and potentially criminal conduct.

Indeed, federal law allows for grand jury terms to be extended up to 36 months

when “the district court determines [that] the business of the grand jury has not

been completed.”

(a); see also

§ 3333(e) (allowing extensions

beyond 36 months in certain circumstances).

Accordingly, the district court’s authority to enforce the June 2018 Subpoena

ceased when the issuing grand jury’s term expired on October 17, 2018. We

therefore vacate the district court’s October 23, 2018 and November 8, 2018

sanctions orders for lack of jurisdiction. 5

That is not to say that the district court stands powerless in the face of

Oberlander’s recalcitrance and repeated violations of court orders. On remand,

5 As we vacate the district court’s sanctions order, we do not reach Oberlander’s alternative arguments that the sanctions were improper because he was not granted a hearing, that the record did not demonstrate that the amount imposed was reasonable, or that he was denied his right to counsel with respect to the sanctions order.

20 the district court is certainly free to consider whether to initiate criminal contempt

proceedings against Oberlander. 6 See Fed. R. Crim. P. 42 (providing courts with

the power to initiate criminal contempt prosecutions); see also Fed. R. Crim. P. 17(g)

(“The court . . . may hold in contempt a witness who, without adequate excuse,

disobeys a subpoena issued by a federal court in that district.”). Whereas civil

contempt seeks to compel compliance with the court’s orders for the benefit of the

complainant, the purpose of criminal contempt “is punitive, to vindicate the

authority of the court.” In re Weiss,

(2d Cir. 1983) (quoting

Gompers v. Buck’s Stove & Range Co.,

(1911)); see also

(providing that a court shall have the power to punish “contempt of its authority”).

As explained above, the district court here could not hold Oberlander in civil

contempt because he would be unable to purge himself of that contempt. But that

inability is irrelevant in a criminal contempt action, which is punitive in nature.

See In re Grand Jury Proceedings,

(1st Cir. 1989) (recognizing that

“the court always has available the sanction of criminal contempt” where a witness

6 The one-year statute of limitations prescribed by

applies only to contempt proceedings “within [18 U.S.C. §] 402.” Because Oberlander’s contempt “was committed in disobedience of a court order entered in an action prosecuted on behalf of the United States,” § 402 is inapplicable. See United States v. Woodard,

, 1150–51 (8th Cir. 2012) (alterations omitted) (quoting United States v. Miller,

(9th Cir. 1978)).

21 has not complied with an expired grand jury’s subpoena); cf. Shillitani,

(“Having sought to deal only with civil contempt, the District Courts lacked

authority to imprison petitioners for a period longer than the term of the grand

jury.” (emphasis added)).

C. Motion to Quash

Our decision that the June 2018 Subpoena is now unenforceable does not

render Oberlander’s motion to quash moot. We have jurisdiction to review the

issues raised in that motion because this dispute is “capable of repetition, yet

evading review.” United States. v. Juvenile Male,

(2011) (internal

quotation marks omitted).

This exception to the mootness doctrine applies “where (1) the challenged

action is in its duration too short to be fully litigated prior to cessation or

expiration, and (2) there is a reasonable expectation that the same complaining

party will be subject to the same action again.”

(internal quotation marks and

alterations omitted). Both requirements are met here. As the history of this

dispute demonstrates, the relatively short duration of the grand jury has made it

practically impossible to fully litigate Oberlander’s challenges to the subpoena.

See In re Grand Jury Subpoena Served Upon Doe,

(2d Cir. 1986) (en

22 banc) (“Grand jury investigations must proceed expeditiously. The length of time

required for appellate review [of a motion to quash a subpoena] often is

protracted.”). Moreover, a successor grand jury has already initiated a similar

investigation and has issued a new subpoena seeking the same documents and

testimony as the June 2018 Subpoena. And, as noted above, even if that grand jury

has itself expired, the district court may well choose to institute criminal contempt

proceedings against Oberlander, which would no doubt raise similar issues

concerning the June 2018 Subpoena’s validity. It is therefore apparent that this

dispute is alive and well. See

(holding that a motion to quash a grand jury

subpoena falls within the “capable of repetition yet evades review” exception to

mootness (internal quotation marks omitted)); see also NITHPO, 744 F.3d at 218–19

(holding that a challenge to a subpoena is not moot where a successor grand jury

is investigating the same conduct). Accordingly, there is no bar to our

consideration of Oberlander’s motion to quash on the merits.

Oberlander argues that the district court abused its discretion in denying his

motion to quash the June 2018 Subpoena because the subpoena (i) was overbroad

and issued in bad faith; (ii) improperly burdened his First Amendment rights; and

23 (iii) called for the production of incriminating personal records in violation of the

Fifth Amendment. We disagree.

1. Overbreadth & Bad Faith

Oberlander’s contention that the June 2018 Subpoena was invalid because it

was overbroad and issued in bad faith fails for a number of reasons.

First, the district court did not abuse its discretion in finding that the

June 2018 Subpoena was reasonable in scope. Because the grand jury’s function

“is to inquire into all information that might possibly bear on its investigation until

it has identified an offense or has satisfied itself that none has occurred,” the grand

jury necessarily “paints with a broad brush.” United States v. R. Enters., Inc.,

(1991). Thus, a grand jury subpoena is unreasonably broad only if

“there is no reasonable possibility that the category of materials the [g]overnment

seeks will produce information relevant to the general subject of the grand jury’s

investigation.”

. Oberlander, as the party seeking to quash the subpoena,

bears the heavy burden of making that showing. In re Liberatore,

(2d Cir. 1978) (“[T]he party seeking to quash a subpoena must carry the burden of

showing that the information sought bears no conceivable relevancy to any

legitimate object of investigation by the federal grand jury.” (internal quotation

marks omitted)).

24 Oberlander argues that he has met this burden because the subpoena

demanded the production of records for all communications between Oberlander

and eight reporters that in any way concerned the individuals and entities

associated with the litigations underlying the sealing orders. According to

Oberlander, the subpoena instead should have been limited to only those

communications concerning information subject to the sealing orders. But given

the “broad brush” with which grand juries paint, the subpoena was sufficiently

related to Judge Cogan’s criminal referral. See R. Enters.,

. This is

especially true in light of the grand jury’s authority to “investigate merely on

suspicion that the law is being violated, or even just because it wants assurance

that it is not.” United States v. Morton Salt Co.,

, 642–43 (1950).

Second, the district court also reasonably concluded that the subpoena was

not issued in bad faith or otherwise used for an improper purpose. “A grand jury

subpoena is presumed to have a proper purpose,” and the party challenging the

subpoena “bears the burden of showing that the grand jury has exceeded its legal

powers.” United States v. Salameh,

(2d Cir. 1998) (citing R. Enters.,

498 US. at 300–01). To do so, that party “must present ‘particularized proof’ of an

25 improper purpose to overcome the presumption of propriety of the grand jury

subpoena.”

(quoting United States v. Mechanik,

(1986)).

Oberlander’s arguments fall well short of that mark. Most of his allegations

predate the criminal referral and concern the conduct of the referring court, rather

than the government or the grand jury. For example, Oberlander suggests –

without any support – that Judge Cogan was biased against him. His remaining

allegations fare no better. For instance, Oberlander bemoans the length of the

investigation, but fails to explain why the investigation’s timeline was

unreasonable or how it offers “particularized proof” of bad faith. See Salameh,

(internal quotation marks omitted). Oberlander also suggests that the

government intentionally sought to enforce an invalid subpoena in initiating this

action, and then intentionally concealed that fact. But that claim is at best

speculative. And although Oberlander asserts that the conduct under

investigation did not violate valid court orders, even if true, that would not render

the investigation improper. See, e.g., United States v. Williams,

(1992)

(noting that a grand jury “need not identify the offender it suspects, or even the

precise nature of the offense it is investigating” (internal quotation marks

omitted)); R. Enters.,

.

26 2. First Amendment Burdening

Oberlander next argues that the district court erred in finding that the

subpoenas did not burden his First Amendment rights, and that it should have

applied “a heightened scrutiny, compelling interest test” to the subpoena, because

it sought documents related to Oberlander’s communications with the press.

Oberlander’s Br. at 31. But a potential witness is not excused from compliance

with a grand jury subpoena merely because the subpoena concerns the witness’s

communications with reporters. See Branzburg,

. And this

Court previously rejected Oberlander’s First Amendment challenges to the

underlying sealing orders and injunctions. See, e.g., Roe, 428 F. App’x at 66–67.

Oberlander’s First Amendment arguments are thus meritless.

3. Fifth Amendment Act of Production Privilege

Lastly, Oberlander argues that the district court abused its discretion in

refusing to permit him to withhold certain documents on Fifth Amendment

grounds. In particular, Oberlander tells us that he is entitled to assert a Fifth

Amendment privilege with respect to all documents predating the January 2013

incorporation of his law firm. The district court concluded that those documents

were created in Oberlander’s professional capacity and were therefore ineligible

for protection under the Fifth Amendment. We agree with the district court’s

27 ultimate conclusion, though we affirm on slightly different grounds. See Thyroff v.

Nationwide Mut. Ins. Co.,

(2d Cir. 2006) (“[W]e are free to affirm a

decision on any grounds supported in the record, even if it is not one on which the

trial court relied.”).

The Fifth Amendment guarantees that no individual “shall be compelled in

any criminal case to be a witness against himself.” U.S. Const. amend. V; see also

Lefkowitz v. Turley,

(1973) (acknowledging that the Fifth

Amendment may be invoked outside of criminal proceedings). Although that

guarantee plainly applies to statements, its reach is not so limited – it applies to

any “compelled incriminating communications . . . that are ‘testimonial’ in

character.” United States v. Hubbell,

(2000). “Because the act of

producing documents can be both incriminating and testimonial . . . a subpoenaed

party may be able to resist production on Fifth Amendment grounds.” In re Grand

Jury Subpoena Issued June 18, 2009 (“ASC”),

(2d Cir. 2010); see also

Fisher v. United States,

(1976) (acknowledging that the Fifth

Amendment guarantees an act-of-production privilege).

It is well understood, however, that an individual may not assert a Fifth

Amendment privilege on behalf of a “collective entity” – i.e., “an[y] organization

28 which is recognized as an independent entity apart from its individual members,”

such as a corporation or partnership. Bellis v. United States,

(1974);

see also Braswell v. United States,

, 104–10 (1988); ASC, 593 F.3d at 157–59.

This “collective entity” exception applies to any testimonial privilege under the

Fifth Amendment, including the act-of-production privilege. See Braswell, 487 U.S.

at 109–10 (“We cannot agree . . . that [Fisher] rendered the collective entity rule

obsolete.”). Thus, when a witness refuses to produce documents on Fifth

Amendment grounds, the court must distinguish between those documents that

are personal in nature, and therefore may be withheld, and those that are corporate

in nature, and therefore fall within the “collective entity” exception.

Although drawing this distinction is not always an easy task, we have

developed a non-exhaustive multi-factor balancing test under which district

courts are to consider:

[W]ho prepared the document, the nature of its contents, its purpose or use, who maintained possession and who had access to it, whether the corporation required its preparation, and whether its existence was necessary to the conduct of the corporation’s business.

Grand Jury Subpoena Duces Tecum Dated Apr. 23, 1981 Witness v. United States

(“Grand Jury Witness”),

(2d Cir. 1981).

29 Here, Oberlander argues that the documents created when he was a sole

proprietor are personal in nature and thus do not fall within the “collective entity”

exception. Oberlander is correct to the extent that an unincorporated sole

proprietorship is not a “collective entity,” and its documents are therefore entitled

to Fifth Amendment protection. See United States v. Doe,

, 612–14 (1984)

(holding that the compelled production of a sole proprietorship’s records would

violate the Fifth Amendment); see also Braswell,

(“Had petitioner

conducted his business as a sole proprietorship, Doe would require that he be

provided the opportunity to show that his act of production would entail

testimonial self-incrimination.”). But simply because a document was not created

by a corporation does not mean that it cannot later become a corporate record.

Indeed, the identity of a document’s creator is merely one of many factors to be

considered in divining its nature. See Grand Jury Witness,

.

Having applied the Grand Jury Witness test to the facts in the record before

us, we conclude that the documents targeted by the June 2018 Subpoena are

corporate in nature and thus exempt from the Fifth Amendment. The subpoena

was directed to the custodian of records for Oberlander’s corporate entity, thereby

reaching only records in the corporation’s possession. Moreover, the records were

30 maintained for corporate purposes and necessary to the conduct of the

corporation’s business: they pertained to the representation of clients that began

pre-incorporation but continued post-incorporation. For example, Oberlander

represented Jody Kriss from at least 2010 through 2015. See Letter Motion, Kriss v.

BayRock Grp., LLC, 10-cv-3959 (LGS) (S.D.N.Y. Mar. 26, 2015), ECF No. 134. Thus,

any pre-incorporation records concerning Oberlander’s representation of Kriss

have now become necessary corporate documents. Accordingly, though these

records were created before Oberlander incorporated his law firm, they have since

become corporate in nature and are exempt from protection under the Fifth

Amendment.

IV. Conclusion

For the reasons stated above, we VACATE the district court’s October 23,

2018 and November 8, 2018 orders. We AFFIRM the district court’s June 27, 2018

and September 25, 2018 orders. We further REMAND to the district court for

proceedings consistent with this opinion.

31