Herby Branscum, Jr., P.A. is the professional association in 1

which Herby Branscum, Jr. practices law. 

 Robert M. Hill, P.A. is the professional association in which 2

Robert M. Hill previously practiced accounting.

 The Honorable Stephen M. Reasoner, United States District

3

Judge for the Eastern District of Arkansas.

___________

Nos. 95-3279/95-3282

___________

*

In re: Grand Jury Subpoenas * Appeals from the United States

Duces Tecum. * District Court for the Eastern

* District of Arkansas.

*

___________

 Submitted: December 12, 1995

 Filed: March 15, 1996

___________

Before BOWMAN, BEAM, and LOKEN, Circuit Judges.

___________

BEAM, Circuit Judge.

Appellants Herby Branscum, Jr. (Branscum), Herby Branscum, Jr., P.A.1

(Branscum P.A.), Robert M. Hill (Hill), Robert M. Hill, P.A. (Hill P.A.), 2

and Perry County Bank appeal the district court's orders refusing to quash 3

grand jury subpoenas duces tecum served upon them by the Office of

Independent Counsel and holding them in contempt for failing to comply with

those subpoenas. We affirm. 
 The Hill and Branscum subpoenas, served upon them in both

4

their individual and professional capacities, requested information

regarding contributions to the 1990 and 1992 campaigns made by

either themselves or their relatives. The subpoenas also requested

information regarding transfers of funds to certain persons, mostly

relatives. The subpoenas served upon the Perry County Bank

requested information regarding expenses incurred between 1990 and

1993 and monthly account statements for the other appellants and

their relatives. 

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I. BACKGROUND

This appeal arises out of a grand jury investigation conducted by the

Office of Independent Counsel (OIC) into what has become known as

"Whitewater." On August 5, 1994, the Special Division of the United States

Court of Appeals for the District of Columbia appointed Kenneth W. Starr

as Independent Counsel pursuant to 28 U.S.C. § 593(b). Starr's task was

to investigate possible violations of federal criminal law, "relating in

any way to James B. McDougal's, President William Jefferson Clinton's or

Mrs. Hillary Rodham Clinton's relationships with Madison Guaranty Savings

and Loan Association, Whitewater Development Corporation, or Capital

Management Services, Inc." Starr was given jurisdictional authority to

investigate "other allegations" and violations "by any person or entity

developed during the Independent Counsel's investigation referred to above

and connected with or arising out of that investigation."

In the course of its investigation, the OIC uncovered information

involving allegedly improper contributions to then-Governor Clinton's 1990

gubernatorial reelection campaign and his 1992 presidential campaign by the

appellants and/or those agencies with which they were affiliated.

Subsequently, grand jury subpoenas requesting papers and documents

containing information regarding these contributions were issued on June

27, 1995.4

 
 Apparently, the fines which accrued between December 1 and

5

December 5 remain unpaid. 

-3-

In July 1995, the appellants moved to quash the subpoenas. The

district court denied the motions on August 17. On August 22, the OIC

asked the district court for an order to compel the production of documents

by the appellants. Meanwhile, the appellants moved for reconsideration of

the district court's August 17 order and again asked the court to quash the

subpoenas. On August 24, the district court denied the renewed request to

quash the subpoenas and granted the OIC's motion compelling the production

of documents. The appellants were ordered to comply with the subpoenas by

August 31.

 

As of August 31, the appellants had still not complied with the

subpoenas. In its September 8 order holding the appellants in contempt,

the district court allowed them until September 15 to purge themselves of

their contempt. As of that date, fines of $1,000 per day against the

individuals and $5,000 per day against the bank were to accrue. The

appellants immediately appealed the September 8 order alleging that the

district court erred in refusing to quash the subpoenas.

The appellants moved for, but were denied, a stay of the imposition

of contempt sanctions pending appeal. Hill P.A., Branscum, and Perry

County Bank complied with the subpoenas prior to the accrual of fines.

However, because Hill and Branscum P.A. remained in contempt on September

15, they were fined $1,000 per day for their noncompliance. 

On December 5, the district court issued an order requiring Hill and

Branscum P.A. (the contemnors) to pay into the court registry the sum of

$77,000, representing the contempt fines which had accrued through December

1, 1995. The contemnors paid their fines and complied with the subpoenas 5

on December 5. There is no
 In a letter dated October 27, 1995, requesting that the

6

contemnors be required to pay the accrued fines into the court

registry, Independent Counsel Starr implied that such compliance

would not moot this appeal. Similarly, a November 16 letter from

Assistant Independent Counsel Timothy Mayopoulos stated that the

appellants could comply with both the subpoenas and the sanctions

without mooting this appeal.

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indication in the record that the contempt order against these two

contemnors has been purged. Appellants appeal the district court's orders

dated August 17, 24 and September 8. 

 

II. DISCUSSION 

A. Mootness

As a threshold matter, we must determine whether the appellants'

compliance with the subpoenas at issue renders this appeal moot. We hold

that it does not.

The appellants argue that the OIC should be estopped from arguing

mootness due to prior representations by the OIC that their compliance

would not moot the appeal. Even if the appellants' allegations are true, 6

however, parties cannot agree to jurisdiction if none exists. If the case

were moot, Article III would divest this court of jurisdiction and any

representations to the contrary by the OIC would not alter that outcome.

The "existence of a live case or controversy is a constitutional

prerequisite to the jurisdiction of the federal courts." In re Grand Jury

Subpoenas Dated December 7 and 8, 40 F.3d 1096, 1099 (10th Cir. 1994)

(citation omitted) (holding appeal of district court's denial of motion to

quash subpoena was not moot due to compliance with subpoena because the

court retained the authority to order improperly obtained materials

returned or destroyed), cert. denied, 115 S. Ct. 1957 (1995).

Consequently, federal courts have no authority to render decisions upon

moot
 Admittedly, this argument reflects what has been the general 7

rule, i.e., that a contemnor's compliance with a grand jury

subpoena moots his ability to appeal the correctness of that

subpoena. However, the United States Supreme Court's decision in

Church of Scientology of California v. United States altered the

general rule. 506 U.S. at 13. Moreover, even if this court is

incorrect in applying Church of Scientology to these facts, the

error is harmless because on the merits, we find that the act of

the OIC in seeking these subpoenas was within the scope of its

prosecutorial jurisdiction. See United States v. Tucker, No. 95-

3268, slip op. (8th Cir. Mar. 15, 1996). 

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questions. Church of Scientology of California v. United States, 506 U.S.

9, 12 (1992). 

If a party has a sufficient stake in the outcome so that the court's

rendering of relief alleviates the harm complained of, the question

presented is not moot. However, if during the pendency of an appeal, an

event occurs which destroys the court's ability to render the prevailing

party "`any effectual relief whatever,'" the appeal must be dismissed as

moot. Id. (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). The OIC

contends such an event has occurred and that this appeal has become moot

because the requested documents have now been turned over to the grand

jury. "In Church of Scientology, however, the Supreme Court rejected a

7

similar argument, holding that the mere compliance with a summons . . .

does not moot an appeal." In re Grand Jury Subpoenas Dated December 7 and

8, 40 F.3d at 1100 (citing Church of Scientology, 506 U.S. at 13). 

In Church of Scientology, the IRS issued a summons requesting the

production of two audio tapes of conversations between Church officials and

their attorneys. 506 U.S. at 10. At the time the summons was issued, the

tapes were being held by the clerk of court pursuant to court order.

Although the Church immediately appealed the issuance of the summons, the

clerk produced the tapes while the appeal was pending. Arguing for

dismissal, the IRS claimed the compliance with the summons had rendered the

appeal moot. The
 As one court stated, "We merely point out that there is a

8

possibility of equitable relief. It is only if there is no such

possibility that the appeal should be dismissed as moot." O.J.

Osborn v. Durant Bank & Trust Co., 24 F.3d 1199, 1210 (10th Cir.

1994). Our observation of the mere availability of this partial

relief in no way implies that we find the appellants' arguments on

the merits compelling. In fact, we do not.

 The appellants also argue that this case is not moot because 9

it meets the "capable of repetition, yet evading review" exception

to the mootness doctrine. See, e.g., Southern Pac. Terminal Co. v.

I.C.C. and Young, 219 U.S. 498, 515 (1911); In re Larson, 785 F.2d

629, 631 (8th Cir. 1986). Because we find this appeal is not moot,

we need not address this argument.

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United States Supreme Court, however, held that a court's ability to render

partial relief, the potential return of items wrongly obtained through the

summons, prevented the controversy from becoming moot. Therefore, although

it was incapable of providing full relief to the Church, the Court noted

that it could "effectuate a partial remedy" by ordering the return or

destruction of the tapes. Id. at 13. 

As in Church of Scientology, we could effectuate a partial remedy

under these circumstances. For example, we could find that the subpoenas

were improperly issued and that the appellants' privacy interest in their

documents "plainly would be benefitted by an order requiring" the return

or destruction of those documents. Reich v. National Eng'g & Contracting

Co., 13 F.3d 93, 98 (4th Cir. 1993) (compliance with order directing

production of documents did not render appeal from that order moot because

persons forced to produce documents retained privacy interest in disclosed

information). See also Church of Scientology, 506 U.S. at 13. As a

result, it is not "impossible" for us to grant "any effectual relief

whatever" in this case. Church of Scientology, 506 U.S. at 12.

8

Therefore, the case is not moot. We now turn to the merits of this

9

appeal.
-7-

B. The Merits

The appellants argue that, for various reasons, the OIC lacked

authority to seek the issuance of the subpoenas in question. Appellants

claim the OIC was without such power because: (1) the Attorney General

improperly referred the campaign contribution matters to the OIC as matters

"related" to the OIC's prosecutorial jurisdiction; (2) the Attorney General

failed to conduct the necessary recusal determination prior to referring

these matters to the OIC; (3) the grant of prosecutorial jurisdiction to

the OIC violates the Appointments Clause and Article III of the United

States Constitution; (4) the passage of Public Law 103-270 did not validly

reauthorize the appointment of Independent Counsels; (5) the oaths given

to Independent Counsel Starr and Assistant Independent Counsel Mayopoulos

were invalid; and (6) the subpoenas violate the appellants' right of

freedom of association under the First Amendment.

Issues one and two are precluded by another Whitewater case, decided

concurrently with this appeal. See United States v. Tucker, No. 95-3268,

slip op. at 5-11 (8th Cir. Mar. 15, 1996) (holding that the Attorney

General's referral decisions under the Independent Counsel law are

nonreviewable). Following the lead of Tucker, we also find appellants'

"relatedness" argument unavailing. The analysis to be made is, of course,

fact specific and not totally controlled by Tucker. We believe, however,

that the campaign contribution allegations peculiar to this case are

unquestionably related to both the OIC's original jurisdiction and any

additional referrals by the Attorney General. In sum, if Tucker passes the

relatedness test, then this case even more clearly passes muster in that

regard. Further discussion of issues one and two is, therefore,

unnecessary. Also, as noted in the Tucker opinion, issue three was fully

disposed of in Morrison v. Olson. Tucker, slip op. at 6 n.3 (citing

Morrison v. Olson, 487 U.S. 654 (1988)).
 Further evidence of this intent is found in the reports of

10

the Senate and the House of Representatives regarding the

Independent Counsel Reauthorization Act of 1994. See, e.g., S.

Rep. No. 101, 103d Cong., 1st Sess. (1993); H.R. Rep. No. 224, 103d

Cong., 1st Sess. (1993).

 Appellants also argue that such reenactment violated the

11

separation of powers doctrine. The appellants argue that the 1987

Act's sunset provision, which permitted the discretionary

continuance of ongoing Independent Counsel actions, delegated a

purely legislative function (determining the duration of

legislation) to an executive branch office (the OIC). Because

there is no allegation that any of the Independent Counsels

involved in this grand jury investigation were "carryovers" from

the 1987 Act, we need not address this argument. 

-8-

Issue four concerns the reenactment of the Independent Counsel

Reauthorization Act of 1987 (1987 Act). As we observed in Tucker, the 1987

Act was reenacted in June 1994. Tucker, slip op. at 3. To accomplish

this, Congress passed Public Law 103-270. This enactment amended the

sunset provision (28 U.S.C. § 599) of the 1987 Act by substituting the year

1994 for the year 1987, thereby providing for the 1987 Act to run for five

years from 1994 instead of from 1987. Notwithstanding appellants'

arguments to the contrary, this was a valid renewal of the 1987 Act.

Initially, we note that the intent of Congress controls the meaning of its

words. See Norfolk & W. Ry. Co., Inc. v. American Train Dispatchers'

Ass'n, 499 U.S. 117, 128 (1991); Vermilya-Brown Co. v. Connell, 335 U.S.

377, 386 (1948). Furthermore, generally speaking, "Congress may revive or

extend an act by any form of words which makes clear its intention so to

do." Kersten v. United States, 161 F.2d 337, 338 (10th Cir.), cert.

denied, 331 U.S. 851 (1947). In amending the sunset provision, Congress

made clear its intention to reenact the 1987 Act. Consequently, we find 10

that the 1987 Act was validly reenacted by Congress in June 1994. 

11

Appellants also argue Starr failed to take the required oath of

office. As a result of this alleged failure, the appellants challenge

Starr's authority to prosecute, administer the oath to
 Section 3332 provides: 12

An officer, within 30 days after the effective date of

his appointment, shall file with the oath of office

required by section 3331 of this title an affidavit that

neither he nor anyone acting in his behalf has given,

transferred, promised, or paid any consideration for or

in the expectation or hope of receiving assistance in

securing the appointment.

5 U.S.C. § 3332. 

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his assistant Mayopoulos, and consequently, Mayopoulos's authority to

prosecute. On August 9, 1994, Starr took the oath of office as required

by 5 U.S.C. section 3331. In addition to the section 3331 oath, 5 U.S.C.

section 3332 required Starr to file an affidavit stating that he had not

purchased the office. Starr did not complete this affidavit until August

29, 1995. Because the section 3332 affidavit requirement is not a

condition precedent to Starr taking office, however, this delay did not

affect Starr's prosecutorial authority during the interim. Although

Congress can impose conditions on an appointee which must be satisfied

before that appointee takes office, the affidavit requirement found in 5

U.S.C. section 3332 is not such a condition precedent. In support of this

conclusion, we need only refer to the language of section 3332. That

12

language requires that the affidavit be filed "within 30 days after the

effective date of [the] appointment." 5 U.S.C. § 3332 (emphasis added).

The use of the word "after" expressly negates the claim that the filing of

the affidavit is a condition precedent to Starr's execution of his duties

as Independent Counsel. Thus, Starr's execution of section 3331's oath

permitted him to administer the oath of office to Mayopoulos. Therefore,

this challenge to the OIC's prosecutorial authority fails.

Finally, the appellants argue that the subpoenas at issue violate

their First Amendment right to freedom of association by imposing a

"chilling" effect on their associations with the additional persons listed

in the subpoenas, including certain
 Furthermore, absent "unusual circumstances," the First

13

Amendment rarely offers protection from a duty to testify before a

grand jury. United States v. Weinberg, 439 F.2d 743, 748 (9th Cir.

1971); see also Branzburg v. Hayes, 408 U.S. 665, 682 (1972)

("[c]itizens generally are not constitutionally immune from grand

jury subpoenas").

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family members. Assuming, arguendo, that the appellants could show an

infringement of their freedom of association, that showing would not

complete the analysis. A grand jury subpoena will be enforced despite a

First Amendment challenge if the government can demonstrate a compelling

interest in and a sufficient nexus between the information sought and the

subject matter of its investigation. In re Faltico, 561 F.2d 109, 111 (8th

Cir. 1977). We agree with the district court's finding that the OIC met

its burden in this case. Therefore, the First Amendment challenge to the 13

subpoenas fails. See In re Grand Jury Proceeding, 842 F.2d 1229, 1236

(11th Cir. 1988); Glass v. Heyd, 457 F.2d 562, 564-65 (5th Cir. 1972). We

have considered the remainder of appellants' arguments and find them to be

without merit.

 

III. CONCLUSION

Having found that appellants' compliance with the subpoenas here at

issue did not moot their appeal, we nonetheless find that the district

court correctly refused to quash the subpoenas. Accordingly, we affirm.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.