LOCATION: United States Court of Appeals for the Firth Circuit
DOCKET NO.: 758
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 402 US 530 (1971)
ARGUED: Apr 26, 1971
DECIDED: May 24, 1971
Facts of the case
Media for United States v. Ryan
Audio Transcription for Oral Argument - April 26, 1971 in United States v. Ryan
Warren E. Burger:
We’ll hear arguments now in number 758, United States against Raymond J. Ryan.
Mr. Feit, you may proceed.
Mr. Chief Justice, may it please the Court.
This case is here on certiorari to the Court of Appeals for the Ninth Circuit and raises as its basic issue, the applicability of the finality rule of Cobbledick against the United States, to an order of a District Court which denied a motion to quash a grand jury subpoena duces tecum and at the same time modified the terms of the subpoena.
It is our submission that the court below in holding the order appealable prior to any contempt conviction, disregarded the central conditions of a consideration and finality upon which Cobbledick rests.
The relevant facts are these.
On March 5, 1968, respondent was served with a grand jury subpoena, directing to he produce before a grand jury sitting in the central district of California, those records in his possession, control or custody, either personally or as a corporate director of five enumerated Kenya corporations.
These were the Ryan Investments Limited, Mawingo Limited, Mount Kenya Safari Club Limited, Zimmerman Limited, and Seven Up Bottling Company.
Later that month, respondent moved to quash the subpoena, asserting among other things that its terms were overly broad, that he did not have control or possession of the records and that removal from Kenya as to certain of the records would violate Kenya law.
On five dates thereafter, the first April 9, 1968 and the last July 25, 1968, proceedings were held before the District Court concerning this motion to quash.
Arguments of counsel during these proceedings send it primarily on the issue of control, the relationship between internal revenue summonses, and the grand jury investigation, and the restrictions of Kenya law regarding the removability from Kenya of certain of the records without the authorization of Kenya authorities.
In dealing with this latter restriction or latter consideration, namely the limitations of Kenya law at certain of the records, the Court at July 12, at the July 12, 1968 hearing, indicated that it was making a finding of control and suggested that the parties enter a stipulation under which none of the records would have to be removed from Kenya, but that instead, agents of the Government representing the grand jury would be permitted to inspect and copy all the sought after records in Kenya.
The Court made it clear that if defense counsel agreed to this arrangement, he would be waving only the authenticity of the records and that all other objections would be preserved.
The Government agreed to this procedure and directed that the parties try to work out some arrangement, mutually satisfactory ones.
The Court further pointed out at this hearing that if an agreement could be worked out, presumably Mr. Ryan would not have to appear before the grand jury at all in connection with these documents.
Were these domestic corporations or with the --
These were Kenya corporations.
All of them.
All of them.
And what was Mr. Ryan’s connection with them?
The Government’s position was that Mr. Ryan was a Director who owned 80% of Ryan -- who owned 80% of the Mawingo which was doing business at Mount Kenya Safari Club but he owned 98% of Ryan Investments and that in fact he was in control generally of all these corporations.
What have you said was the Pepsi Cola Company.
Well, that was subsequently, that was in the original subpoena but the Court’s order which modified the subpoena excluded the Pepsi Cola and one of the other companies, the Zimmerman Company from the reach of the subpoena on the ground that Pepsi Cola Company apparently had gone out of business several years before.
That’s Pepsi Cola Company of Kenya.
Of Kenya, not the Pepsi Cola generally.
On July 25, counsel reappeared before the Court, respondent’s attorney said that it could not agree proposed stipulation since he did not believe his clients could authenticate the record source.
The Court thereupon entered the order which is here in issue and it's set forth for the Court’s convenience at 63 and 64 of the appendix.
In this order, the Court first made clear that it found that respondent had control of the records of two or perhaps three as the way one reads it of the five companies originally specified in the subpoena, that Ryan Investments Limited and Mawingo Limited doing business as the Mount Kenya Safari Club.
The order then contained three operative parts. Paragraph one, denied the motion to quash the subpoena.
Paragraph two, required production before the grand jury of all the sought after records of the two companies except for the type restricted by Kenya law which were books of account, minutes of meetings and lists of members.