June 18, 2019

Tenth Circuit: No Appellate Jurisdiction Where Grand Jury Subpoena Complied With

The Tenth Circuit published its opinion in In re Grand Jury Subpoena on Friday, March 1, 2013.

The appellant was the sole member of a limited liability company (LLC) whose federal income taxes were being investigated by a grand jury. The “Custodian of Records” of the LLC was subpoenaed to bring LLC records to the grand jury. As the records custodian, the appellant moved to quash the subpoena duces tecum on the ground that it violated his personal Fifth Amendment privilege against self-incrimination. The district court denied the motion to quash and refused to grant a stay pending appeal. The appellant complied with the district court’s order to produce the records.

A protesting grand jury witness may seek appellate review only after the witness refuses to obey the subpoena and is held in contempt. The appellant argued that he came within the Perlman exception that allows a witness to appeal based on a third party’s intent to produce records. The appellant’s argument that the subpoena was directed to the custodian of records of the LLC and the capacity in which he claimed a privilege—as an individual entitled to the protection of the Fifth Amendment—was distinct from his capacity as the LLC’s records custodian did not qualify as a third-party situation. The Tenth Circuit dismissed the appeal because it lacked jurisdiction.

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