### Herby Brans cum, 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 Distric t 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 Bra nscum, 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 refus ing to quash 3 gra nd jury subpoenas duces tecum served upon them by the Office o f Independent Counsel and holding them in contempt for failing to comply wit h those subpoenas. We affirm.

### The Hill and Branscum subpoenas, served upon them in bot h 4 

### their individual and professional capacities, requested info rmation regarding contributions to the 1990 and 1992 campaigns made b y either themselves or their relatives. The subpoenas also re quested information regarding transfers of funds to certain persons, mostly relatives. The subpoenas served upon the Perry County Ban k requested information regardin g expenses incurred between 1990 and 199 3 and monthly account statements for the other appellants an d their relatives.
-2- I. BACKGROUND
This appeal arises out of a grand jury investigation conducted by the Offic e of Independent Counsel (OIC) into what has become known a s "Whitewater." On August 5, 1994, the Special Division of the United State s 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 C linton's relationships with Madison Guaranty Savings

an d Loan Association, Whitewater Development Corporation, or Capita l Manage ment Services, Inc." Starr was given jurisdictional authority t o invest igate "other allegations" and violations "by any person or entit y developed during the Independent Counsel's inves tigation referred to above and connected with or arising out of that investigation."

In the course of its investigation, the OIC uncovered informatio n involving allegedly improper contributions to th en-Governor Clinton's 1990 gubernatorial reelection campaign and his 1992 presidential campaign by th e app ellants and/or those agencies with which they were affiliated

. Subsequently, grand jury subpoenas requesting papers and document s containing information regarding these contributions were issued on June 27, 1995. 4

### Apparently, the fines which accrued between December 1 an d 5 

### December 5 remain unpaid.
-3- In July 1995, the appellants moved to quash the subpoenas. Th e district court denied the motions on August 17. On August 22, the OI C asked the district court for an order to compel the production of document s by the appellants. Meanwhile, the appellants mo ved for reconsideration of the district court's August 17 order and again asked the court to quash th e subpoenas. On August 24, the district court den ied the renewed request to quash the subpoenas and granted the OIC's motion compelling the production of documents. The appellants were ordered to co mply with the subpoenas by August 31.

As of August 31, the appellants had still not complied with th e subpoenas. In its September 8 order holding the appellants in contempt, the district court al lowed them until September 15 to purge themselves of their con tempt. As of that date, fines of $1,000 per day against th e indivi duals and $5,000 per day against the bank were to accrue. Th e appell ants immediately appealed the September 8 order alleging that th e district court erred in refusing to quash the subpoenas.

The appel lants moved for, but were denied, a stay of the imposition of cont empt sanctions pending appeal. Hill P.A., Branscum, and Perr y Count y 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 is sued an order requiring Hill and BranscumP.A. (the contemnors) to pay into the court registry the sum of $77,000, representing the contempt fines which had accrued through Decembe r 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 th e 6 

### contemnors be required to pay the accrued fines into the cour t re gistry, Independent Counsel Starr implied that such complianc e would not moot this appeal. Similarly, a November 16 letter from As sistant Independent Counsel Timothy Mayopoulos stated that th e appellants could comply with both the subpoenas and the sanctions without mooting this appeal.
-4- indicati on in the record that the contempt order against these tw o contemnors has been purged. Appellants appeal t he 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 s ubpoenas at issue renders this appeal moot. We hold that it does not.

The a ppellants argue that the OIC should be estopped from arguin g mootness due to prior representations by the OIC that their complianc e 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 an y representations to the contrary by the OIC would not alter that outcome.

Th e "existence of a live case or controversy is a constitutiona l prerequisite to the jurisdiction of the federal courts." In re Grand Jury Sub poenas Dated December 7 and 8 , 40 F.3d 1096, 1099 (10th Cir. 1994 ) (citation omitted) (holding appeal of district c ourt's denial of motion to quash subpoena was not moot due to compliance with subpoena because th e court retained the authority to order improperly obtained material s return ed or destroyed), cert. denied , 115 S. Ct. 1957 (1995)

. Conseq uently, federal courts have no authority to render decisions upo n moot

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

### rule, i.e., that a contemnor's compliance with a grand jur y subpoe na moots his ability to appeal the correctness of tha t subpoena. However, the United States Supreme Court's decision in Chu rch of Scientology of California v. United States altered th e general rule. 506 U.S. at 13. Moreover, even if this court i s incorr ect in applying Church of Scientology to these facts, th e error is harmless because on the merits, we find that the act o f th e OIC in seeking these subpoenas was within the scope of it s prosecutorial jurisdiction. See United States v. Tucker , No. 95- 3268, slip op. (8th Cir. Mar. 15, 1996).
-5- 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 render ing of relief alleviates the harm complained of, the questio n 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 OI C contends such an event has occurred and that this appeal has become moot becau se the requested documents have now been turned over to the gran d jury. "In Church of Scientology , however, the Supreme Court rejected a

7 similar a rgument, holding that the mere compliance with a summons . .

. does not moot an appeal." In re Grand Jury Subp oenas Dated December 7 and 8 , 40 F.3d at 1100 (citing Church of Scientology , 506 U.S. at 13).

In Ch urch of Scientology , the IRS issued a summons requesting th e production of two audio tapes of conversations between Church officials an d their attorneys. 506 U.S. at 10. At the time t he summons was issued, the tapes were being held by the clerk of court pursuant to court order

. Although the Church i mmediately appealed the issuance of the summons, the clerk pro duced the tapes while the appeal was pending. Arguing fo r dismissal, the IRS claimed the compliance with the summons had rendered th e appeal moot. The

### A s one court stated, "We merely point out that there is a 8 

### possib ility of equitable relief. It is only if there is no suc h 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 partia l relief in no way implies that we find the appellants' arguments on the merits compelling. In fact, we do not. The appella nts also argue that this case is not moot because 9 

### it meets the "capable of repet ition, 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 no t moot, we need not address this argument.
-6- United States Supreme Court, however, held that a court's ability to rende r partial relief, the potential return of items wr ongly obtained through the summons, prevented the controversy from becoming moot. Therefore, althoug h it was incapable of providing full relief to the Church, the Court noted that it co uld "effectuate a partial remedy" by ordering the return o r destruction of the tapes. Id. at 13.

As in Church of Scientology , we could effectuate a partial remed y under these circumsta nces. For example, we could find that the subpoenas were improperly issue d and that the appellants' privacy interest in their documents "plainly would be benefitted by an order requiring" the return or destruction of tho se documents. Reich v. National Eng'g & Contracting Co. , 13 F.3d 93, 98 (4th Cir. 1993) (compliance with order directin g production of documents did not render appeal fr om that order moot because persons forced to produce documents retained pri vacy interest in disclosed informatio n). See also Church of Scientology , 506 U.S. at 13. As a
resu lt, it is not "impossible" for us to grant "any effectual relie f wh atever" in this case. Church of Scientology , 506 U.S. at 12

. 8 Therefore, th e case is not moot. We now turn to the merits of thi s 9 appeal.

### -7- B. The Merits

The appellants argue that, for various reasons, the OIC lacke d authority to seek the issuance of the subpoenas in question. Appellants claim the OIC was without such power because: (1) the Attorney Genera l improperly referred the campaign contribution matters to the OIC as matter s "related" to the OIC's prosecutorial jurisdiction; (2) the Attorney Genera l failed to conduct the necessary recusal determination prior to referring these matters to the OIC; (3) the grant of prosecutorial jurisdiction to the O IC violates the Appointments Clause and Article III of the Unite d States Constitution; (4) the passage of Public Law 103-270 did not validl y reauthorize the appointment of Independent Counsels; (5) the oaths given to Independent Counse l Starr and Assistant Independent Counsel Mayopoulos
were invalid; and (6) the subpoenas violate the appellants' right o f freedom of association under the First Amendment.

Issues one and two are precluded by another Whitewater case, decided concurrently with thi s appeal. See United States v. Tucker , No. 95-3268, slip o p. at 5-11 (8th Cir. Mar. 15, 1996) (holding that the Attorne y General's referral decisions under the Independent Counsel law ar e
non reviewable). 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 t he campaign contribution allegations peculiar to this case ar e unques tionably related to both the OIC's original jurisdiction and an y additional referrals by the Attorney General. In sum, if Tucker passes th e relatedness test, then this case even more clearly passes muster in that
re gard. Further discussion of issues one and two is, therefore , unnecessary. Also, a s noted in the Tucker opinion, issue three was fully disposed o f in Morrison v. Olson

. Tucker , slip op. at 6 n.3 (citin g Morrison v. Olson , 487 U.S. 654 (1988)).

### F urther evidence of this intent is found in the reports o f 10 

### the Senate and the House of Representatives regarding th e Indepe ndent Counsel Reauthorization Act of 1994. See , e.g. , S
. Rep. No. 101, 103d Cong., 1st Sess. (1993); H.R. Rep. No. 22 4, 103d Cong., 1st Sess. (1993).

Appellants also argue that such reenactment violated th e 11 

### separation of powers doctrine. The appellants argue that the 1987 Act's sunset provision, which permitted the discretionar y cont inuance of ongoing Independent Counsel actions, delegated a purely legislative function (determining the duration o f legislation) to an executive branch office (the OIC). Becaus e there is no allegation that any of the Independent Counsel s involv ed in this grand jury investigation were "carryovers" fro m the 1987 Act, we need not address this argument.
-8- Issue four concerns the reenactment of the Independent Counse l Reauthorization Act of 1987 (1987 Act). As we observed in Tucker , the 198 7 Act was reenacted in June 1994. Tucker , slip op. at 3. To accomplis h this, C ongress passed Public Law 103-270. This enactment amended th e sunset provision (28 U.S.C. § 599) of the 1987 Act by substituting the yea r 1994 for the year 1987, thereby providing for th e 1987 Act to run for five years from 1994 instead of from 1987. Notwithstanding appellants ' argume nts to the contrary, this was a valid renewal of the 1987 Act

. Initially, we note that the intent of Congress c ontrols the meaning of its
wor ds. 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 speakin g, "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 t o reenact the 1987 Act. Consequently, we find 10 that the 1987 Act was validly reenacted by Congress in June 1994. 11

Appellant s also argue Starr failed to take the required oath o f offic e. As a result of this alleged failure, the appellants challeng e Starr's authority to prosecute, administer the oath to

### Section 3332 provides: 12



### An officer, within 30 days after the effective date o f his appointment, shall file with the oath of offic e required by section 3331 of th is title an affidavit that neithe r he nor anyone acting in his behalf has given , transferred, promised, or paid any consideration for or in t he expectation or hope of receiving assistance i n securing the appointment. 5 U.S.C. § 3332.
-9- his assistant Mayopoulos, and consequently, Mayopoulos's authority t o prosecute. On August 9, 1994, Starr took the oath of office as required by 5 U.S.C. section 3 331. 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
con dition precedent to Starr taking office, however, this delay did no t af fect Starr's prosecutorial authority during the interim. Althoug h Congress can impose conditions on an appointee which must be satisfie d before that appointee takes office, the affidavit requirement found in 5 U.S.C. section 3332 is not such a condition prec edent. In support of this conclus ion, we need only refer to the language of section 3332. Tha t 12 language requires that the affidavit be filed "within 30 days after th e effective date of [the] appointment." 5 U.S.C. § 3332 (emphasis added). The use of the word "after" expressly negates th e claim that the filing of the affidavit is a co ndition precedent to Starr's execution of his duties

as Independent Counsel. Thus, Starr's execution of section 3331's oat h permitted him to admi nister 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 violat e 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 Firs t 13 

### Amendment rarely offers protec tion from a duty to testify before a grand jury. United States v. Weinberg , 439 F.2d 743, 748 (9 th Cir. 1971); see also Branzburg v. Hayes , 408 U.S. 665, 682 (1972 ) ("[c]itizens generally are not constitutionally immune from grand jury subpoenas").
-10- family members. Assuming, arguendo, that the appellants could show a n infrin gement of their freedom of association, that showing would no t 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 suf ficient nexus between the information sought and the subject matter of its investigation. In re Faltico , 561 F.2d 109, 111 (8t h Cir. 1977). We agree with the district court's finding that the OIC met its burden in this case. Therefore, the First Ame ndment challenge to the 13 subpoenas fails. See In re Grand Jury Proceeding , 842 F.2d 1229, 123 6 (11th Cir. 1988); Glass v. Heyd , 457 F.2d 562, 5 64-65 (5th Cir. 1972). We have considered the remainder of appellants' arg uments and find them to be without merit.

III. CONCLUSION
Having fo und that appellants' compliance with the subpoenas here at issue did not moot their appeal, we nonetheless find that the distric t court correctly refused to quash the subpoenas. Accordingly, we affirm.

A true copy.

Attest:

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