Unpublished Disposition, 904 F.2d 40 (9th Cir. 1990)

MEMORANDUM^* 

On behalf of Serpico Insurance Trust Association and related entities ("Serpico"), Donald Lamb accepted service of federal grand jury subpoenas requiring Serpico to produce various categories of documents. Lamb and Serpico appeal the district court's denial of their motion to quash the grand jury subpoenas and the court's subsequent order holding them in civil contempt and imposing sanctions for failure to comply with the subpoenas. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1826, and affirm.¹ 

We review the district court's order for abuse of discretion. See In re Grand Jury Proceedings (John Doe), 801 F.2d 1164, 1167 (9th Cir. 1986). Appellants contend that the district court abused its discretion in denying their motion to quash the subpoenas because (1) service on Lamb as custodian of records was improper; (2) the subpoenas are overbroad, unreasonable and oppressive; (3) the documents subpoenaed are not relevant to a criminal investigation; and (4) the subpoenas represent an abuse of the grand jury process.

Appellants assert that service was improper because Mr. Lamb is not the custodian of records, but merely the "United States Information Officer" for Serpico, a foreign corporation. Appellants rely on United States v. Miller, 800 F.2d 129 (7th Cir. 1986), for the proposition that when an alleged custodian has neither "apparent authority" over nor "legitimate access" to an organization's records, then seizure or use of those records by the government may violate the Fourth Amendment. In the context of the validity of service of the grand jury subpoenas, appellants' Fourth Amendment argument is unavailing.

Our concern here is with whether service of the subpoenas was proper pursuant to Fed. R. Crim. P. 17(d), which provides that service "shall be made by delivering a copy to the person named." When the subpoena is directed to a corporation, delivery may be made to an officer or agent explicitly or implicitly authorized to accept service. In re Grand Jury Subpoenas Issued to Thirteen Corporations, 775 F.2d 43, 46 (2d Cir. 1985) (holding that person served was sufficiently involved in the affairs of the corporation to make him an agent for service purposes). Similarly, with regard to service of process on corporate defendants in civil litigation, our court has stated that "service can be made 'upon a representative so integrated with the organization that he will know what to do with the papers.' " Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) (upholding service on corporation's receptionist).

In this case, the government submitted an affidavit to the district court stating that when Lamb was served, he provided government agents with substantial information indicating his nexus with Serpico and establishing that he was a proper party for service.²  No contrary affidavit was filed by Serpico in support of its motion to quash the subpoenas. Accordingly, we are not persuaded that the district court abused its discretion in refusing to quash the subpoenas due to improper service.

Appellants further argue that the subpoenas should be quashed because they are overbroad and unreasonable, lack specificity, and are not relevant to a criminal investigation. In this circuit we abide by the standard that "a court may not exercise its 'supervisory power' in a way which encroaches on the prerogatives of the [prosecutor and grand jury] unless there is a clear basis in fact and law for doing so. " United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir.) (emphasis added), cert. denied, 434 U.S. 825 (1977). While appellants assert in their brief that production of the subpoenaed documents is unreasonably oppressive or that the subpoenas improperly advance a civil suit rather than a criminal investigation, appellants made no factual showing whatsoever of these or any other assertions before the district court. Neither the district court nor this court, of course, may accept appellants' counsel's bare assertions in place of the "clear basis in fact" that judicial exercise of supervisory control requires. Absent the required "clear basis in fact," appellants have not shown that the subpoenas are overbroad, unreasonable, oppressive, or irrelevant to the criminal investigation.

In sum, we hold that the district court did not abuse its discretion in failing to quash the subpoenas and holding appellants in contempt. Accordingly, the district court's order is AFFIRMED.