In the affidavit approved in Schofield II, the only information about the nature of the possible criminal violations being investigated were the provisions of federal law involved and the indirect suggestion contained in the statement that the fingerprints, photographs and handwriting exemplars sought were to be used " "solely as a standard of comparison to determine whether or not the witness uttered and forged, falsely made, altered or counterfeited (a) check.' " Id. at 967. The affidavit did not explicitly negate the absence of any improper motive behind the subpoena, but the court did not hold the district court's acceptance of the affidavit with that defect to have been an abuse of discretion.
There is another noteworthy aspect of Schofield I and Schofield II. While the court in Schofield I does state that, "unless extraordinary circumstances appear, the Government's supporting affidavit should be disclosed to the witness in the enforcement proceeding," the court also refused to "rule out the possibility that the Government's affidavit may be presented to the court in camera." Schofield I, at 93. This clearly suggests that the purpose of the Schofield affidavit is extremely narrow: to assure the district court that enforcement of the subpoena is sought as part of a legitimate grand jury investigation. The affidavit is not intended to serve as notice to the witness of the range of questions to be expected or the Government's developing factual theories of the case. To impose such requirements could jeopardize the grand jury's ability to uncover the traces of wrongdoing necessary to support an indictment by tipping the Government's hand and revealing the strengths and weaknesses of the case. With that information, witnesses seeking to scuttle a grand jury investigation could prepare their testimony accordingly.
The statement in Schofield I that the affidavit should be disclosed to the witness "unless extraordinary circumstances appear" does not compel a different conclusion. The statement merely reflects a policy of assuring not only justice, but the appearance of justice, by satisfying the witness whenever possible that the Government has made the minimal showing that the objectives of the grand jury investigation are proper.
The Court now turns to consider the sufficiency of the affidavit submitted by the Government. First, the affidavit states that the grand jury is investigating possible violations of the federal mail fraud statute, 18 U.S.C. § 1341. Considering the broad range of fraudulent schemes which may legitimately be reached by the mail fraud statute, it is more than likely that handwriting exemplars and photographs would be helpful to the grand jury's investigation. The corporate records sought are those of a company which the Government believes to be involved in the possible mail fraud violations. The Court cannot say that subpoenas seeking such tangible evidence in regard to a mail fraud investigation carry any traces of impropriety or are overreaching. Furthermore, the Government here has "specifically negated" the existence of any improper purpose behind the subpoenas. See In re Grand Jury Proceedings (Schofield II), supra, at 968 (Adams, J., concurring). The movants, on the other hand, have not pointed to any specific impropriety which may exist regarding the grand jury's investigation, its jurisdiction or its motives in issuing the subpoena. Therefore, although the Government's affidavit provides little information, the Court holds that the affidavit is nevertheless sufficient to constitute the "minimum showing" required by Schofield I.
Movants also argue that the subpoenas are defective in their failure to disclose whether any of the persons subpoenaed are targets of the investigation. However, the Government has since disclosed in its answer and by letter to the movants' counsel, that Alan P. Scott is a target of the investigation and that Donna Scott is not. Therefore, the Court need not decide whether such disclosure is required on the face of a grand jury subpoena.
The Court has considered the other arguments raised by the motion to quash and has found them to be wholly without merit. For this reason, as well as those discussed above, the motion to quash has been denied. This Memorandum is in support of this Court's Order of March 23, 1981.