In Re Grand Jury Subpoena (Maltby). United States of America v. John B. Lacoste, Intervenor-Appellee

The United States (government) appeals from a district court order quashing part of a grand jury subpoena. At issue is whether certain records belonging to intervenor John B. Lacoste (Lacoste) are protected by the Fifth Amendment privilege against compelled incrimination or by the attorney-client privilege.

I. BACKGROUND

Lacoste was the Chief of Police in Emer-yville, California. On the evening of November 15,1983, the Emeryville City Council suspended Lacoste from this position. Lacoste went to police headquarters and began removing boxes and papers. Although Lacoste claimed he was removing only personal records, Police Department officials were concerned about the possible removal of department property. In response to this situation, representatives of the Alameda County District Attorney’s office were summoned. A sorting process was begun and continued throughout the night and early morning hours, through which the ownership of each document could be verified by the District Attorney representatives. Lacoste was allowed to remove those items determined to be his personal property. The procedure was tedious and shortly after 7:00 a.m. on November 16, the parties agreed to…

dissenting:

Lacoste was the Chief of Police in Emer-yville, California, until November 15, 1983, when the city council suspended him. Shortly after being suspended, Lacoste went to his office at police headquarters and began removing what he claimed were his personal records. Acknowledging that Lacoste was entitled to this property, a representative of the Alameda County District Attorney’s office nevertheless supervised the sorting process, but only to insure that no department property was removed by Lacoste. The process turned out to be quite lengthy and cumbersome so that about 7:00 a.m. in the morning, the parties, many of whom had been up all night, agreed to take a break. During this break the federal prosecutor heard about the situation and that afternoon, before the sorting could be resumed, a grand jury subpoena was served on the new Acting *985 Chief of Police, compelling the production of various documents thought to be located in Laeoste’s old office. Lacoste correctly filed a motion to intervene and to quash the subpoena, claiming that certain documents were not subject to production.

In an effort to enforce the subpoena yet protect the rights of Lacoste, the…

800 F.2d 981 21 Fed. R. Evid. Serv. 962 In re GRAND JURY SUBPOENA (MALTBY). UNITED STATES of America, Plaintiff-Appellant, v. John B. LACOSTE, Intervenor-Appellee. No. 85-1168. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 15, 1986. Decided Sept. 29, 1986. John Penrose, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellant. Doron Weinberg, San Francisco, Cal., for intervenor-appellee. Appeal from the United States District Court for the Northern District of California. Before SNEED, ANDERSON, and POOLE, Circuit Judges. J. BLAINE ANDERSON, Circuit Judge: 1 The United States (government) appeals from a district court order quashing part of a grand jury subpoena. At issue is whether certain records belonging to intervenor John B. Lacoste (Lacoste) are protected by the Fifth Amendment privilege against compelled incrimination or by the attorney-client privilege. I. BACKGROUND 2 Lacoste was the Chief of Police in Emeryville, California. On the evening of November 15, 1983, the Emeryville City Council suspended Lacoste from this position. Lacoste went to police headquarters and began removing boxes and papers. Although Lacoste claimed he was removing…