UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 29, 1985
IN RE: GRAND JURY MATTER: IN RE: GRAND JURY MATTER 84-246
On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. No. GJ 84-246-3, J. William Ditter, Jr.
BEFORE: HUNTER and GARTH, Circuit Judges and GERRY, District Judge*fn*
MEMORANDUM OPINION OF THE COURT
GARTH, Circuit Judge :
Appellants, targets of a federal grand jury investigation into corruption in the Philadelphia Police Department, take this appeal from a partial denial of their motion to quash a subpoena requiring the Police Department to produce their personnel files. The police officers were allowed to intervene. The district court stayed enforcement of the subpoena pending this appeal. Finding no abuse of discretion in the district court's determination that the files are relevant to the investigation, and finding no cognizable fifth amendment issue preserved for review, we affirm the order of the district court.
The subpoena in question demanded production of the full and complete personnel files of twenty-six police officers under investigation by the grand jury. According to the United States Attorney's Schofield affidavit (see In Re Schofield, 507 F.2d 963 (3d Cir. 1975), the grand jury investigation concerned "potential violations of federal law, including Title 18, United States Code, Sections 371 and 1951, relating to allegations of corruption within the Philadelphia Police Department." This affidavit further attests that "The materials sought by the subpoena are (1) relevant to the Grand Jury's investigation; (2) properly within the Grand Jury's jurisdiction; and (3) not sought primarily for any other purpose."
During a hearing held by the district court on the police officers' motion to quash, Officer Herron testified that he did not know the contents of his file, and he opposed disclosure of his personnel file for fear of damage to his employment and to his reputation. Officer Herron did not state that he personally was the source of information in his, or any other file, nor did he testify that he had ever been forced to divulge information for his personnel file under threat of job loss.
The district court denied in part the motion to quash, finding personnel files relevant to show police officers' duty assignments and associations on the force, which might aid an investigation of conspiracy. The district court limited enforcement of the subpoena to information dated subsequent to August 1, 1974, finding the unlimited time scope of the subpoena to be unreasonable and irrelevant to a current prosecution.
In this circuit, a district court's order that a subpoena be enforced will not be overturned absent an abuse of discretion. In re Grand Jury Proceedings (Smith, 579 F.2d 836 (3d Cir. 1978); In re Schofield, 507 F.2d 963 (3d Cir.) cert denied, 421 U.S. 1015 (1975). Schofield required that in all cases the U.S. Attorney must submit an affidavit, upon challenge to the subpoena, stating the grounds of the investigation and showing that each item sought is "(1) relevant to the investigation, (2) properly within the grand jury's jurisdiction, and (3) not sought primarily for another purpose." 507 F.2d at 966. Once such an affidavit is submitted, any further inquiry into the validity of the subpoena is left to the district court's discretion. Id. at 838. As stated in Smith, supra,
The sufficiency of the government's showing is committed to the sound discretion of the district court whose decision will not be disturbed unless this court finds that the district court's judgment amounted to an abuse of discretion.
579 F.2d at 838.
The Schofield court also set out a broad standard of relevance under Fed. R. Crim. P. 17:
We cite an appropriate definition of relevancy:
Relevancy, in context of a Grand Jury proceeding is not a probative relevancy, for it cannot be known in advance whether the document produced will actually advance the investigation. It is rather a relevancy to the subject matter of the investigation.
507 F.2d at 967 n.4 (quoting In re Morgan, 377 F. Supp. 281, 285 (S.D.N.Y. 1974)). While the Schofield affidavit in the instance case is scant, setting out no more than the purpose of the grand jury investigation and a conclusory statement that the files sought are relevant, this affidavit is nor more scant than the one we upheld in Smith, supra:
The government's affidavit reveals that the grand jury was conducting an investigation into alleged "receipt of bribes by employee benefit plan officials and theft or embezzlement from employee benefit plans" and "alleged criminal activity on the part of individuals involved in the administration of the assets of employee benefit plans." The affidavit contains the representation that: "The items sought by the Grand Jury are relevant to the Grand Jury investigation and are not sought primarily for another purpose."
579 F.2d at 838. Given the relevance of personnel files reflecting an officer's duty assignments and associations on the force to an inquiry into the officer's possible involvement in a conspiracy of corruption, the district court cannot be said to have abused its discretion in enforcing the subpoena.
Nor does the fifth amendment protection against compelled self-incrimination bar enforcement of the subpoena in this case. The police officers rely on Garrity v. New Jersey, 385 U.S. 493 (1967) for their fifth amendment contention. Garrity held that police officers who were given the choice between testifying before a committee investigating a ticket fixing scheme and losing their jobs could not later have this testimony used against them in a prosecution for obstruction of justice. Due to the threat of job loss, the testimony was found to be compelled in violation of the fifth amendment. Likewise, the officers argue here that their files may contain some information divulged by the subject himself under threat of dismissal.
The officers made no attempt to show the existence of such information or such compulsion before the district court, however. While the officers may possibly have raised a general fifth amendment objection in the court below, they made no contention that specific information contained in the files was obtained under threat of dismissal. We cannot consider such an argument for the first time on appeal, without the benefit of any factfinding as to the existence of such fifth amendment privileged information. See Resident Advisory Board v. Rizzo, 564 F.2d 126, 151 (3d Cir. 1977); Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir. 1976).*fn1
For the foregoing reasons, the order of the district court entered August 17, 1984, which refused to quash the subpoena will be affirmed.*fn2