United States Court of Appeals

For the First Circuit

No. 13-2498

IN RE: GRAND JURY PROCEEDINGS

ON APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Howard, Circuit Judge,

Souter*, Associate Justice,

and Stahl, Circuit Judge.

William P. Devereaux, with whom James W. Ryan, Matthew C.

Reeber, Misty G. Delgado and Pannone Lopes Devereaux & West LLC

were on brief, for appellant

Donald C. Lockhart, Assistant United States Attorney, with

whom Peter F. Neronha, United States Attorney, was on brief, for

appellee.

February 20, 2014

*

 Hon. David H. Souter, Associate Justice (Ret.) of the

Supreme Court of the United States, sitting by designation.
HOWARD, Circuit Judge. A venerable legal Latinism, lex

non cogit ad impossibilia, teaches that the law does not compel the

impossible. Guided by that august adage, we hold that a subpoena

duces tecum compelling the production of documents to a now-defunct

grand jury cannot be enforced by civil contempt sanctions before a

successor grand jury, and we accordingly vacate the district

court's order holding the appellant in civil contempt. We reject,

however, the appellant's additional contentions that tribal

sovereign immunity shielded it from subpoena and that the subpoena

was unreasonably broad in scope.

I.

Because this case is under seal, we provide only a

cursory rehearsal of the facts. On October 2, 2012, appellant

Narragansett Indian Tribal Historic Preservation Office ("NITHPO")

was served with a subpoena duces tecum issued by a grand jury in

the District of Rhode Island the previous month.1

 The subpoena

directed the custodian of NITHPO's records to appear before the

grand jury with a series of documents on the morning of October 24,

2012. During the course of ensuing negotiations with NITHPO as to

the scope of the subpoena, the government repeatedly extended the

return date for the subpoena. When these negotiations proved

1 Another subpoena duces tecum, not at issue on this appeal,

was served on the Narragansett Indian Tribe. The Tribe and NITHPO

proceeded jointly in resisting their respective subpoenas until

September 2013, at which point the Tribe complied with the district

court's order compelling production of the subpoenaed records. 

2
fruitless, the government ultimately set a return date of February

27, 2013. On the last day before that deadline, NITHPO informed

the government that it would not produce the subpoenaed records

before the grand jury, asserting inter alia that tribal sovereign

immunity shielded it from the grand jury's subpoena power. 

The sitting grand jury was subsequently discharged, and

a new grand jury was empanelled in its place on April 16, 2013. On

May 9, the government moved to compel NITHPO's compliance with the

2012 subpoena, representing in its motion that although the

subpoena had been issued by a previous grand jury, the

investigation had been transferred to the newly-empanelled grand

jury. NITHPO objected to the government's motion and moved to

quash the subpoena on grounds of tribal sovereign immunity and

unreasonableness. 

On August 2, the district court entered an order granting

the government's motion to compel and, except for some narrowing of

the scope of the subpoena, denying NITHPO's motion to quash. The

court ordered NITHPO to "comply with the October 24, 2012 grand

jury subpoenas . . . at a mutually agreed upon date and time within

30 days."2 After NITHPO's custodian of records failed to appear on

the agreed-upon date, September 18, the government moved for a

court order requiring NITHPO to show cause why it should not be

2

 NITHPO filed a motion for reconsideration of this order,

which the district court denied on September 16.

3
held in civil contempt for its noncompliance. The district court

issued a show cause order on October 22, and after a contempt

hearing the following month, adjudged NITHPO in civil contempt and

imposed a fine of $500 per day of noncompliance beginning on

December 4. This appeal followed.

II.

NITHPO raises three primary arguments on appeal,

contending that 1) the underlying subpoena was no longer

enforceable following the discharge of the issuing grand jury in

April 2013; 2) NITHPO enjoyed tribal sovereign immunity from the

grand jury's subpoena power; and 3) the subpoena was unreasonably

broad in scope under Fed. R. Crim. P. 17(c)(2). We address each

argument in turn, reviewing de novo the district court's legal

determinations as to enforceability and sovereign immunity, see

Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 15 (1st Cir. 1991), and

reviewing for abuse of discretion the district court's decision as

to reasonableness under Rule 17(c)(2), see United States v.

LaRouche Campaign, 841 F.2d 1176, 1179 (1st Cir. 1988). 

A. Enforceability

In response to the district court's show cause order,

NITHPO contended unsuccessfully that the district court could not

enforce a subpoena issued by a defunct grand jury. NITHPO raises

the same argument in this appeal, averring that civil contempt

sanctions for noncompliance with a subpoena cannot be imposed

4
beyond the life of the grand jury under whose aegis the subpoena

was issued. The government in turn suggests that civil contempt

sanctions are keyed to the life of the grand jury for which the

contempt order was issued -- here, the grand jury empanelled on

April 16, 2013. The parties' arguments rest on divergent

interpretations of the applicable statute and caselaw, to which we

presently turn.

We have described the federal courts' contempt power as

"one of the most potent weapons in the judicial armamentarium." 

Project B.A.S.I.C., 947 F.2d at 16. Although that authority was

not codified until 1970, civil contempt sanctions "have been

employed against recalcitrant grand jury witnesses since the

earliest days of the federal courts." Douglas C. Berman, Note,

Coercive Contempt and the Federal Grand Jury, 79 Colum. L. Rev.

735, 735, 740 (1979); see also, e.g., Gompers v. Buck's Stove &

Range Co., 221 U.S. 418, 442 (1911). Unlike criminal contempt

sanctions, "incarceration for civil contempt is not for the purpose

of punishing recalcitrant respondents but rather is the modern

'persuasive' tool that is used in substitution of the barbaric

placing of stones on the subject's chest, which was formerly used

to literally press the recipient into submission." United

States v. Marquardo, 149 F.3d 36, 39 (1st Cir. 1998). An

imprisoned civil contemnor is therefore said to "carr[y] the keys

of his prison in his own pocket." Gompers, 221 U.S. at 442

5
(internal quotation marks omitted). In keeping with this coercive

function, courts have long recognized that civil contempt sanctions

are necessarily limited to the period in which the contemnor can

unlock the figurative prison door by purging himself of contempt. 

See, e.g., Shillitani v. United States, 384 U.S. 364, 371-72

(1966); Marquardo, 149 F.3d at 39-40; In re Grand Jury Proceedings

(Caucus Distribs., Inc.), 871 F.2d 156, 161-62 (1st Cir. 1989);

United States v. Levine, 288 F.2d 272, 274 (2d Cir. 1961); Loubriel

v. United States, 9 F.2d 807, 809 (2d Cir. 1926) (L. Hand, J.);

United States v. Collins, 146 F. 553, 554 (D. Or. 1906). 

In Shillitani, involving two consolidated cases in which

the district courts ordered recalcitrant grand jury witnesses

imprisoned until they purged their contumacy or until two years had

passed, the Supreme Court held that the two-year period of

confinement was inappropriate to the extent that it exceeded the

term of the sitting grand jury. As the Court explained,

the justification for coercive imprisonment as

applied to civil contempt depends upon the

ability of the contemnor to comply with the

court's order. Where the grand jury has been

finally discharged, a contumacious witness can

no longer be confined since he then has no

further opportunity to purge himself of

contempt. Accordingly, the contempt orders

. . . were improper insofar as they imposed

sentences that extended beyond the cessation

of the grand jury's inquiry into petitioners'

activities. Having sought to deal only with

civil contempt, the District Courts lacked

authority to imprison petitioners for a period

longer than the term of the grand jury. . . .

Once the grand jury ceases to function, the

6
rationale for civil contempt vanishes, and the

contemnor has to be released.

384 U.S. at 371-72 (citation and footnote omitted). Shillitani

did, however, leave open the possibility of reiterative contempt

sanctions before successive grand juries: the Court explained in a

footnote that although any given period of confinement for civil

contempt could not last beyond the term of the sitting grand jury,

"sentences of imprisonment may be continued or reimposed if the

witnesses adhere to their refusal to testify before a successor

grand jury." Id. at 371 n.8. 

Four years after the Supreme Court's decision in

Shillitani, Congress enacted Title III of the Organized Crime

Control Act, Pub. L. No. 91-452, 84 Stat. 922, 932 (1970) (codified

at 28 U.S.C. § 1826), in an endeavor to "codify present civil

contempt practice with respect to recalcitrant witnesses in federal

grand jury and court proceedings," H.R. Rep. No. 91-1549, at 4008

(1970).3 Section 1826(a) provides:

Whenever a witness in any proceeding before or

ancillary to any court or grand jury of the

United States refuses without just cause shown

to comply with an order of the court to

testify or provide other information,

including any book, paper, document, record,

3

 Representative Poff, a House sponsor of the legislation,

stressed its consistency with the traditional limitations on civil

contempt recognized in Shillitani: "[U]pon the termination of the

proceedings at which the witness was ordered to testify, the

witness is entitled to his release because he could no longer obey

the court's order if he wished to do so." 116 Cong. Rec. 35291

(1970). 

7
recording or other material, the court, upon

such refusal, or when such refusal is duly

brought to its attention, may summarily order

his confinement at a suitable place until such

time as the witness is willing to give such

testimony or provide such information. No

period of such confinement shall exceed the

life of–-

(1) the court proceeding, or

(2) the term of the grand jury, 

including extensions,

before which such refusal to comply with the

court order occurred, but in no event shall

such confinement exceed eighteen months.

The parties dispute the significance of both Shillitani

and § 1826(a) in this case. Their sharpest dissensus, however,

concerns the import of our holding in Caucus Distributors, in which

we relied on both Shillitani and § 1826(a) to hold that civil

contempt fines could not extend "beyond the life of the original

grand jury" and into the term of a successor grand jury. 871 F.2d

at 161. Our holding rested on Shillitani's conclusion that the

justification for coercive civil contempt vanishes when the

contemnor can no longer purge himself:

Perhaps our most significant difficulty

lies in contemplating how, when witnesses have

been subpoenaed, as here, both 'to appear

. . . to testify' and to bring documents to a

specific grand jury and that jury has been

discharged, a court would handle attempts to

purge. . . . [A] court would be placed in the

anomalous position of determining whether the

response of a witness in supplying or failing

to supply documents facilitated or frustrated

the work of a grand jury that no longer

existed. . . . Particularly since it would be

relatively simple -- and clear cut -- for a

successor grand jury to reimpose coercive

8
sanctions, we prefer not to enter this

thicket.

Id. at 162. 

The government suggests that Caucus Distributors is

distinguishable from this case in that both the underlying subpoena

and the subsequent contempt order were issued during the term of

the first grand jury. In its estimation, the "original" grand jury

contemplated in Caucus Distributors is the one before which the

subpoena was enforced via contempt sanctions (here, the stillempanelled second grand jury); NITHPO, by contrast, implies that

Caucus Distributors instead focused on the grand jury under whose

auspices the underlying subpoena was issued in the first place

(here, the defunct first grand jury).

We find Caucus Distributors inconclusive on this point. 

Moreover, although the government highlights the language of

§ 1826(a) limiting confinement to "the term of the grand jury . . .

before which such refusal to comply with the court order occurred,"

we conclude that § 1826(a) also does not address the precise

question presented in this case. The issue before us is not the

proper duration of the contempt order imposed during the second

grand jury's term, but rather whether that contempt order, based on

NITHPO's failure to comply with a previous grand jury's subpoena,

was properly issued at all.

The government's position is not without some support in

the caselaw. Confronted with a case similar to this one, in which

9
an initial grand jury issued a subpoena duces tecum and the

district court granted the government's motion to compel compliance

during the term of a successor grand jury, the D.C. Circuit

distinguished our holding in Caucus Distributors and held that the

first grand jury's subpoena could be enforced during the term of

the successor grand jury. In re Sealed Case, 223 F.3d 775, 778

(D.C. Cir. 2000). In the D.C. Circuit's view, because the

successor grand jury had "indisputably carried the investigation

forward," the concerns that we had stated in Caucus Distributors

about determining "when an investigation has ceased" were not

implicated. Id. (citing Caucus Distribs., 871 F.2d at 161)

(internal quotation marks omitted).

The D.C. Circuit, like the government on this appeal,

also pointed to our observation in Caucus Distributors that "a

subpoena issued by one grand jury may be used to obtain evidence

for a second grand jury." Caucus Distribs., 871 F.2d at 160

(citing In re Grand Jury Proceedings (Sutton), 658 F.2d 782, 783

(10th Cir. 1981) (upholding a district court order commanding

delivery of documents subpoenaed by an expired grand jury)). That

isolated sentence, however, cannot bear the weight placed upon it. 

Because the government in Caucus Distributors did not move to

compel compliance before the second grand jury, we did not have

occasion, as we do now, to determine the enforceability of the

first grand jury's subpoena before a successor grand jury. Indeed,

10
we cited Sutton for this proposition only in describing the

underpinning of the government's unsuccessful argument in Caucus

Distributors. As an "observation[] . . . not essential to the

determination of the legal questions then before the court," this

statement is therefore non-binding dicta. Arcam Pharm. Corp. v.

Faría, 513 F.3d 1, 3 (1st Cir. 2007) (internal quotation marks

omitted); see also Dedham Water Co., Inc. v. Cumberland Farms

Dairy, Inc., 972 F.2d 453, 459 (1st Cir. 1992).4

To the extent that Sutton and Sealed Case approve the use

of the contempt power in the circumstances now before us, we

disagree with those decisions. Such a rule, allowing the

imposition of contempt sanctions even where a contemnor is unable

to purge himself of contumacy before the subpoenaing grand jury,

would vitiate the coercive rationale for civil contempt. The

4 The government also points to cases in which we have held

that the government can transfer materials presented before one

grand jury to a successor grand jury. See, e.g., In re United

States, 441 F.3d 44, 63 (1st Cir. 2006); United States v. Contenti,

735 F.2d 628, 631 n.1 (1st Cir. 1984). These cases are not germane

to the question presented here, however, as they address whether

evidence already obtained by the first grand jury is transferable

to the second grand jury, not whether the second grand jury can

obtain new evidence by enforcing its predecessor's subpoena.

We also find distinguishable the Fifth Circuit's decision in

United States v. Stevens, 510 F.2d 1101, 1106 (5th Cir. 1975). 

Although Stevens upheld a civil contempt order based on the

appellant's noncompliance with a previous grand jury's subpoena,

the first grand jury's subpoena had expressly ordered the appellant

to testify before the second grand jury after its empanelment. 

Stevens therefore addressed the distinct question of whether the

first grand jury was authorized to order the appellant's

"appearance before a grand jury not yet empanelled." Id. at 1104.

11
second grand jury may have taken up the investigation, but the

subpoena was issued in the name of, and ordered the production of

records before, the first grand jury at a specified date and time. 

As Judge Hand stated in Loubriel, NITHPO's "duty [to testify] . . .

was measured by the subpoena, the only process under which [NITHPO]

could be required to appear and to testify at all." 9 F.2d at 809. 

That subpoena "did not require [NITHPO's] attendance before any

other than the [October 2012] grand jury." Id.; see also In re

Grand Jury, August, 1965 (McClintock Merchantile Co.), 360 F.2d

917, 918 (7th Cir. 1966) (finding "no basis for anxiety that the

respondent can be required to appear . . . before some other grand

jury" under a subpoena "direct[ing] attendance on a certain day, at

a certain hour, before the August term, 1965 of the grand jury"). 

It follows as a matter of logic that NITHPO could only comply with

the subpoena so long as the issuing grand jury was in existence. 

In this case, the subpoenaing grand jury was dead to

begin with.5 It had expired even before the government moved to

compel compliance with its subpoena. The district court's order

granting the motion to compel therefore ran afoul of the maxim "lex

non cogit ad impossibilia" -- literally, "[t]he law does not compel

to impossible ends,"6 Black's Law Dictionary 1844 (9th ed. 2009). 

5

 Cf. Charles Dickens, A Christmas Carol (1843).

6

 This principle is discussed more thoroughly in Herbert

Broom, A Selection of Legal Maxims 237-46 (6th ed. 1884). It is

perhaps most familiarly embodied in the common-law contractual

12
See Collins, 146 F. at 554. NITHPO could not produce documents

before a grand jury that no longer existed, and therefore "could,

of course, be no longer compelled to discharge a duty which had

ended." Loubriel, 9 F.2d at 809; see also In re Grand Jury

Proceedings, Thursday Special Grand Jury Sept. Term, 1991, 33 F.3d

342, 347 (4th Cir. 1994) ("The subpoenas issued by the September

Term 1991 grand jury . . . clearly do not have force as a result of

the expiration of that grand jury."); accord In re Special

Investigation No. 195, 454 A.2d 843, 846 (Md. 1983) ("The grand

jury was dead. There was no one to whom the subpoena was

returnable. . . . It thus was impossible to enforce the

subpoena."). 

The impossibility of compliance in turn left NITHPO

unable to purge itself of contempt. The proverbial key in NITHPO's

pocket fit a lock that no longer existed. Cf. Gompers, 221 U.S. at

442. We accordingly take guidance from Shillitani's dictate that

civil contempt sanctions are inappropriate when a contemnor "has no

further opportunity to purge himself of contempt." 384 U.S. at

doctrine of impossibility, which excuses a party's contractual

performance "[w]here the means of performance have been nullified,

making performance objectively impossible." 30 Williston on

Contracts § 77:25 (4th ed. 2013); see also, e.g., Taylor v.

Caldwell, 122 E.R. 309, 314 (K.B. 1863) ("The principle seems to us

to be that, in contracts in which the performance depends on the

continued existence of a given person or thing, a condition is

implied that the impossibility of performance arising from the

perishing of the person or thing shall excuse the performance.");

The Tornado, 108 U.S. 342, 351 (1883) (applying rule of Taylor).

13
371. Because it was impossible for NITHPO to purge itself of

contempt, the contempt order served no coercive purpose and was

therefore improperly entered. See Loubriel, 9 F.2d at 809

(following discharge of the subpoenaing grand jury, appellant

"could not be lawfully detained thereafter, merely to compel

compliance with the subpoena"); Sara Sun Beale et al., Grand Jury

Law and Practice § 11:17 (2d. ed. 2013) ("[T]he witness's

confinement cannot last longer than the session of the grand jury

before which the witness was subpoenaed, because the termination of

the grand jury's session ends the witness's ability to comply with

the court's order, and thus ends the possible coercive effect of

the civil contempt sanction."); see also Levine, 288 F.2d at 274.

In parting, we note that the government has argued that

this conclusion would establish "an arbitrary and formalistic rule

requiring reissuance of subpoenas upon each transfer between grand

juries," which "merely creates a trap for the unwary prosecutor and

an incentive for would-be contemnors to engage in delaying tactics,

as happened here." Of concern to us, however, is that the

government's proposed alternative -- allowing reiterative civil

contempt sanctions before future grand juries based on

noncompliance with an old subpoena -- would render the grand jury

subpoena process all but meaningless. Particularly since we and

other courts have long recognized that a prosecutor may simply

"obtain subpoenas issued in blank by the court, fill in the blanks,

14
and have the witnesses served without consulting the grand jury,"

In re Melvin, 546 F.2d 1, 5 (1st Cir. 1976) -- a point that the

government itself stresses on this appeal -- we see no great

administrative difficulty in requiring, as a precondition to the

use of coercive contempt power, the issuance of a new subpoena for

each new grand jury. If the current grand jury or a successor

desires information from a recalcitrant NITHPO, the government need

do no more than obtain a new, enforceable subpoena. That is a

small price to pay for access to "one of the most potent weapons in

the judicial armamentarium." Project B.A.S.I.C., 947 F.2d at 16.

B. Tribal Sovereign Immunity

Although our holding that the expired grand jury's

subpoena was unenforceable would ordinarily render NITHPO's

remaining challenges moot, this case falls within the "capable of

repetition yet evading review" exception to the mootness doctrine. 

As formulated by the Supreme Court, the exception applies where

"(1) the challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration, and (2) there

was a reasonable expectation that the same complaining party would

be subjected to the same action again." Weinstein v. Bradford, 423

U.S. 147, 149 (1975); see also, e.g., ACLU of Mass. v. U.S.

Conference of Catholic Bishops, 705 F.3d 44, 57 (1st Cir. 2013). 

Both criteria are satisfied here. First, the current grand jury is

continuing its predecessor's investigation and, in light of our

15
holding today, can reasonably be expected to issue a new subpoena

to NITHPO. Second, according to the government's brief, the

current grand jury is presently set to expire in April 2014,

leaving too short a period of time to fully litigate a new

subpoena's validity. See Thursday Special Grand Jury Sept. Term,

1991, 33 F.3d at 347 (finding an expired grand jury's subpoenas

unenforceable, but holding that appellants' objections to the

subpoenas' validity were capable of repetition yet evading review);

see also In re Sealed Case, 877 F.2d 976, 981 n.6 (D.C. Cir. 1989). 

We therefore turn to NITHPO's argument that, as a branch of the

Narragansett Indian Tribe, it was immune to subpoena.

Proceeding on the assumption that NITHPO is an arm of the

Narragansett Indian Tribe whose sovereign immunity is coextensive

with that of the tribe (a premise that the government does not

dispute on appeal), the district court nevertheless determined that

tribal sovereign immunity did not operate as a bar to the grand

jury's subpoena power. On appeal, NITHPO assigns error to that

conclusion, arguing that the subpoena "constitute[d] a

nonpermissible intrusion into the internal affairs of a federally

recognized tribe, and thus, [that] its enforcement would violate

tribal sovereign immunity."

The Supreme Court has described Indian tribes as "unique

aggregations possessing attributes of sovereignty over both their

members and their territory," Montana v. United States, 450 U.S.

16
544, 563 (1981) (internal quotation marks omitted), including

sovereign immunity from suit, see Kiowa Tribe of Okla. v. Mfg.

Techs., Inc., 523 U.S. 751, 754 (1998). Nevertheless, the Court

has been "careful to note that, through their original

incorporation into the United States as well as through specific

treaties and statutes, the Indian tribes have lost many of the

attributes of sovereignty." Montana, 450 U.S. at 563; see also

Washington v. Confederated Tribes of Colville Indian Reservation,

447 U.S. 134, 154 (1980) ("[T]ribal sovereignty is dependent on,

and subordinate to, [] the Federal Government . . . ."); United

States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512 (1940) ("It is

as though the immunity which was [the tribes'] as sovereigns passed

to the United States for their benefit, as their tribal properties

did."). 

Other circuits have accordingly recognized the United

States as a superior sovereign from whose suits the tribes enjoy no

sovereign immunity, see, e.g., Miccosukee Tribe of Indians of Fla.

v. United States, 698 F.3d 1326, 1331 (11th Cir. 2012); Reich v.

Mashantucket Sand & Gravel, 95 F.3d 174, 182 (2d Cir. 1996);

Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459 (9th Cir.

1994); United States v. Red Lake Band of Chippewa Indians, 827 F.2d

380, 382-83 (8th Cir. 1987); United States v. Yakima Tribal Court,

806 F.2d 853, 861 (9th Cir. 1986); United States v. White Mountain

Apache Tribe, 784 F.2d 917, 920 (9th Cir. 1986), even where

17
Congress has not specifically abrogated the tribes' immunity, see

EEOC v. Peabody W. Coal Co., 400 F.3d 774, 781 (9th Cir. 2005). 

Even assuming arguendo that the enforcement of a subpoena

represents a "suit" against a tribe for purposes of sovereign

immunity (a premise that the government contests), we find no

reason to depart from this bedrock principle, and accordingly

conclude that tribal sovereign immunity provides no refuge from the

subpoena power of a federal grand jury.

For the sake of completeness, we further note that, even

if the tribes did originally enjoy sovereign immunity from federal

grand jury process, Congress has abrogated that immunity through

the enactment of federal criminal statutes extending to Indian

country "the general laws of the United States as to the punishment

of offenses committed in any place within the sole and exclusive

jurisdiction of the United States." 18 U.S.C. § 1152; see also id.

§ 1153 (establishing federal jurisdiction over major crimes

committed in Indian country). That grant of criminal jurisdiction

necessarily entails the authorization of investigative and

enforcement mechanisms such as the grand jury subpoena power. See

In re Long Visitor, 523 F.2d 443, 446-47 (8th Cir. 1975) ("[T]he

extension by Congress of federal jurisdiction to crimes committed

on Indian reservations inherently includes every aspect of federal

criminal procedure applicable to the prosecution of such crimes.");

United States v. Boggs, 493 F. Supp. 1050, 1054 (D. Mont. 1980)

18
(stating that tribal sovereign immunity from grand jury process

would render Indian criminal statutes "almost universally

unenforceable"); cf. Narragansett Indian Tribe v. Rhode Island, 449

F.3d 16, 22, 26-27 (1st Cir. 2006) (en banc) (holding that the

Narragansett Tribe waived its sovereign immunity from the execution

of a state search warrant by entering into a land claims settlement

providing that "all laws of the State of Rhode Island shall be in

full force and effect on the settlement lands").

C. Reasonableness 

NITHPO lastly argues that the district court should have

quashed the subpoena as unreasonably broad and burdensome. Fed. R.

Crim. P. 17(c)(2) authorizes a district court to quash or modify a

subpoena "if compliance would be unreasonable or oppressive." A

subpoena is presumed to be reasonable, and the recipient bears the

burden of establishing its unreasonableness. United States v. R.

Enters., Inc., 498 U.S. 292, 301 (1991). 

As modified by the district court, the subpoena duces

tecum seeks fifteen categories of documents spanning a five-year

period, including, inter alia, contracts and correspondence between

NITHPO and government entities, payroll records and documents

concerning NITHPO employees and contractors, and meeting minutes. 

Citing United States v. Gurule, 437 F.2d 239, 241 (10th Cir. 1970),

for the threefold proposition that "(1) the subpoena may command

only the production of things relevant to the investigation being

19
pursued; (2) specification of things to be produced must be made

with reasonable particularity; and (3) production of records

covering only a reasonable time may be required," NITHPO avers that

the subpoena duces tecum is deficient under the latter two prongs,

neither specifying the documents to be produced with "reasonable

particularity" nor "covering only a reasonable time." 

District courts might indeed reach divergent conclusions

as to the reasonableness of this subpoena, but that is not the

standard of review on appeal. Reviewing only for abuse of

discretion, see LaRouche Campaign, 841 F.2d at 1179, we think that

the denial of NITHPO's Rule 17(c)(2) motion fell within the wide

bourn of the district court's discretion.7 NITHPO ultimately does

little more than enumerate the categories of requested documents

and generally protest "[t]he sheer amount of time and resources

that would be required to comply" with the subpoena duces tecum. 

But all subpoenas demand some amount of time and resources from

their recipients, and absent a more specific explanation of how the

burden in this case is unreasonable, we decline to disturb the

district court's judgment. Cf. In re Grand Jury Proceedings, 115

7 Given the standard of review, the two appellate cases on

which NITHPO relies, United States v. Wencke, 604 F.2d 607, 612

(9th Cir. 1979), and Margoles v. United States, 402 F.2d 450, 451-

52 (7th Cir. 1968), are crucially distinguishable in that they

merely held that quashing a subpoena was within the district

court's discretion. That alone does not compel the converse

conclusion that the refusal to quash would have been an abuse of

discretion.

20
F.3d 1240, 1244 (5th Cir. 1997) (holding that subpoena recipients

failed to establish unreasonableness by "[s]imply citing the types

of information sought by the government").

As a last effort, NITHPO also reintroduces its tribal

sovereign immunity argument in new garb, suggesting that "[w]hat

constitutes an unreasonable intrusion into the workings of an

entity is certainly different . . . when that entity is a sovereign

nation that has recognized protections from interference with

internal tribal matters." We decline NITHPO's invitation to graft

sovereign immunity considerations onto Rule 17(c)(2), and in any

event, this assertion lacks force in light of our conclusion in

section B supra.

III.

For the foregoing reasons, we conclude that the subpoena

duces tecum was unenforceable after the expiration of the issuing

grand jury. We therefore vacate the district court's order holding

NITHPO in civil contempt. In the event a subpoena similar in scope

is subsequently issued and NITHPO again challenges its validity,

our holdings on tribal sovereign immunity and reasonableness of the

subpoena shall apply to any such proceeding.

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