APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. D.C. No. 82-173-3
Before: Adams, Weis and Becker, Circuit Judges.
In these consolidated appeals we are called upon to decide whether the district court erred when it entered orders denying a petition to quash a grand jury subpoena duces tecum and a petition for access to certain grand jury records. Since the two orders in question are not final for purposes of appeal, we conclude that we lack jurisdiction, and accordingly the appeals will be dismissed.
A federal grand jury investigating possible antitrust violations in the highway construction industry issued a subpoena duces tecum to a corporation engaged in such construction, commanding the corporation to testify and to bring documents.*fn1 The subpoena was served on an individual who had recently been president and principal owner of the corporation. Although the individual claims to have had no interest in the corporation named in the subpoena at the time the subpoena was served, he appears to have acknowledged that he had custody of documents referred to in the subpoena. Shortly before the return date of the subpoena, the corporation petitioned in the district court for access to grand jury ministerial records and for disclosure of matters occurring before the grand jury ("the petition for access").*fn2 The information was requested because counsel for the corporation and the individual had doubts regarding the propriety of the grand jury proceedings, but lacked facts sufficient to support a petition to quash the subpoena. The petition for access had not been acted upon by the return date of the subpoena. For that reason, the corporation and the individual, on the return date, filed a petition to quash the subpoena, citing the Fifth Amendment privilege against self-incrimination. The district court denied the petition for access, explaining that the presumption of regularity which accompanies grand jury proceedings had not been rebutted, and that no particularized need for the information covered by the petition had been shown. The court also concluded -- based on an affidavit filed by the government -- that at a conference with the government, counsel for the corporation had been provided with sufficient information to advise his clients whether to comply with the subpoena. Shortly after denying the petition for access, the court also denied the petition to quash. It held that a corporation has no Fifth Amendment privilege against self-incrimination, and that the individual's privilege would not be violated by the production of the corporate records. The court denied requests for reconsideration of its refusal to allow access or to quash the subpoena. The present appeals followed, but the subpoenaed material was nevertheless turned over, thus avoiding the possibility of a contempt citation. In No. 82-1503, the corporation and the individual attempt to appeal from the denial of the petition for access. No. 82-1518, brought by the individual, challenges the district court's order declining to quash the subpoena. Appellate jurisdiction is asserted under 28 U.S.C. § 1291 and under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 93 L. Ed. 1528 , 69 S. Ct. 1221 (1949).
The rule governing the appealability of a denial of a motion or petition to quash a grand jury subpoena is clear:
One to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey.
United States v. Ryan, 402 U.S. 530, 532, 29 L. Ed. 2d 85 , 91 S. Ct. 1580 (1971). See also, e.g., Cobbledick v. United States, 309 U.S. 323, 84 L. Ed. 783 , 60 S. Ct. 540 (1940); Alexander v. United States, 201 U.S. 117, 50 L. Ed. 686 , 26 S. Ct. 356 (1906); In re Grand Jury Proceedings (Mills), 686 F.2d 135, 140-41 (3d Cir. 1982); In re Grand Jury Applicants, (C. Schmidt & Sons, Inc.), 619 F.2d 1022, 1024 (3d Cir. 1980). Absent a contempt citation, the denial of a petition to quash a grand jury subpoena is interlocutory and lacks the finality required by 28 U.S.C. § 1291.
The individual appellant relies on a well-established exception to the Alexander-Cobbledick-Ryan precept. This exception, which has developed in a long line of decisions beginning with Perlman v. United States, 247 U.S. 7, 62 L. Ed. 950 , 38 S. Ct. 417 (1918), provides that when a party lacks the opportunity to contest a grand jury subpoena by refusing obedience, the order denying the petition to quash is final without the issuance of a contempt citation. We recently stated that
in contrast with the Alexander-Cobbledick-Ryan rule on finality, it has been recognized that when a party, other than the one to whom a subpoena has been addressed, moves to quash the subpoena, the denial of his motion disposes of his claim fully and finally. Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417, 62 L. Ed. 950 (1918). See also Gravel v. United States, 408 U.S. 606, 608 n.1, 92 S. Ct. 2614, 2618, 33 L. Ed. 2d 583 (1972); United States v. Nixon, 418 U.S. at 691, 94 S. Ct. at 3099. In this court we have had several occasions to recognize the distinction between the Perlman and the Alexander-Cobbledick-Ryan rule.
Schmidt, supra, 619 F.2d at 1025 (citations omitted). Accord Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 103 (3d Cir. 1982). In Schmidt, six employees of C. Schmidt & Sons, Inc. had been served with subpoenas to testify before a grand jury. The employees, and Schmidt as an intervenor, moved to quash the subpoenas. When the motion was denied, the employees and Schmidt took appeals. On the authority of the Alexander-Cobbledick-Ryan line, we dismissed the appeal of the employees, ...