Petition of Craig, In re

• Decision Date: 15 December 1997
• Docket Number: D,No. 1645,1645
• Citation: 131 F.3d 99
• Parties: 154 A.L.R. Fed. 807 In re Petition of Bruce CRAIG for Order Directing Release of Grand Jury Minutes. Bruce CRAIG, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 96-6264.
• Court: U.S. Court of Appeals — Second Circuit

Page 99

131 F.3d 99

154 A.L.R. Fed. 807

In re Petition of Bruce CRAIG for Order Directing Release of

Grand Jury Minutes.

Bruce CRAIG, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 1645, Docket 96-6264.

United States Court of Appeals, Second Circuit.

Argued June 6, 1997.

Decided Dec. 15, 1997.

Lucinda A. Sikes, Public Citizen Litigation Group, Washington, DC (David C. Vladeck, of counsel) (Debra L. Raskin, Vladeck, Waldman, Elias & Englehard, P.C., New York City, of counsel), for Petitioner-Appellant.

Mary Jo White, United States Attorney, Southern District of New York City (Jennifer L. Borum, John M. McEnany, Assistant United States Attorneys, of counsel), for Respondent-Appellee.

(Mark H. Lynch, Christopher N. Sipes, Covington & Burling, Washington, DC, for amici curiae supporting Petitioner-Appellant The American Historical Association, The Organization of American Historians, The National Council on Public History, and The Society of American Archivists.)

Before: KEARSE and CALABRESI, Circuit Judges, and MUNSON, ^* District Judge.

CALABRESI, Circuit Judge:

Bruce Craig appeals from an order of the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge) denying his petition to unseal the seventy-nine page transcript of the 1948 grand jury testimony of Harry Dexter White. Although the district court recognized that disclosure of grand jury materials under circumstances other than those specifically enumerated in Federal Rule of Criminal Procedure 6(e)(3) is sometimes permissible, it nonetheless denied Craig's petition. The court held that Craig did not, at this time, present grounds that were sufficiently exceptional to justify overcoming the strong presumption of grand jury secrecy. Because we cannot say that the court's nuanced decision constituted an abuse of discretion, we affirm its order.

I. Background

Craig, a doctoral candidate at American University, is writing his dissertation on Harry Dexter White, a former Assistant Secretary of the Treasury who was accused of having been a communist spy. In 1948, White appeared before a special grand jury to answer charges against him. He was not then indicted, and a few months later, just days after appearing in front of the House Un-American Activities Committee, where he emphatically and publicly denounced the allegations, he died.

According to Craig, subsequent to White's death, new evidence has been found demonstrating that White had, in fact, provided information to the American Communist Party ("ACP"), and that this information ended up in Soviet hands. It is unknown, however: (a) what White thought would be done by the ACP with the information; (b) whether the information he furnished was confidential; and (c) what his reasons for disclosing the data to the ACP were. Craig maintains that he has reviewed all publicly available sources on the allegations against White. And he asserts that the transcript of the grand jury testimony is the only document that might reveal White's perspective on these charges. For these reasons, Craig contends that the release of the transcript is essential to his research and that, given the historical impact on domestic politics in the 1950s of the charges made against White and others, such release is strongly in the public's interest.

In his petition to the district court, Craig conceded that none of the exceptions to the rule of grand jury secrecy enumerated in Federal Rule of Criminal Procedure 6(e)(3) applied to his petition. He nevertheless requested that the district court use its "inherent supervisory authority" over grand juries to release the transcript because of the public interest in the document. The district court noted that while disclosure of grand jury testimony is permissible outside of the boundaries of Rule 6(e), such disclosure has only been permitted in "exceptional circumstances." The court, both at oral argument and in its opinion, discussed a number of factors that were relevant to whether disclosure should be granted; among these were the government's opposition to Craig's motion, and the fact that there had been no previous disclosure of the grand jury material requested. After comparing his petition to similar "historical interest" grand jury disclosure cases, the court concluded that Craig's petition did not present sufficiently extraordinary circumstances to justify the release of the secret grand jury material. See In re Petition of Craig, 942 F.Supp. 881, 882-83 (S.D.N.Y.1996).

Craig argues on appeal that the district court abused its discretion by imposing a requirement of "extraordinary circumstances," and should have considered only whether the public (and his) interest in the grand jury records outweighs the reasons for maintaining the rule of grand jury secrecy. The government, instead, devotes much of its response to asserting that the district court had no authority even to consider departing from the confines of Rule 6(e). In the alternative, the government contends that if the court did have the authority, it soundly exercised its discretion in denying Craig's petition and that it was not compelled to make its decision in the manner advocated by Craig. In this respect, the government maintains that "mere historical interest" should never be sufficient to permit the disclosure of grand jury transcripts.

II. Discussion

A. The District Court's Authority to Order Disclosure Outside of Rule 6(e)(3)

There is a tradition in the United States, a tradition that is "older than our Nation itself," that proceedings before a grand jury shall generally remain secret. In re Biaggi, 478 F.2d 489, 491 (2d Cir.1973) (quoting Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959)). This tradition is codified in Federal Rule of Criminal Procedure 6(e). See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 n. 9, 99 S.Ct. 1667, 1672-73 n. 9, 60 L.Ed.2d 156 (1979). The rule of secrecy has been justified by the important ways in which it is said to contribute to the success of grand juries and to the protection of those who appear before them. Its purposes include:

"(1) [t]o prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt."

United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 985-86 n. 6, 2 L.Ed.2d 1077 (1958) (quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954)). ¹

The rule of secrecy, however, is not without exceptions. Those exceptions have developed historically alongside the secrecy tradition and, more recently, in the practice of the federal courts. They also are codified in Rule 6(e)(3). See In re Hastings, 735 F.2d 1261, 1268-69 (11th Cir.1984). By this rule, district courts, as part of their supervisory authority over the grand juries that they have empaneled, are explicitly given the discretion to determine whether, if one or more of the listed exceptions to grand jury secrecy apply, disclosure of records is appropriate. See Douglas Oil, 441 U.S. at 225-26, 99 S.Ct. at 1675-76; see also Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959) ("[T]he federal trial courts as well as the Courts of Appeals have been nearly unanimous in regarding disclosure as committed to the discretion of the trial judge. Our cases announce the same principle, and Rule 6(e) is but declaratory of it.") (footnotes omitted).

Although, by delimiting the exceptions to grand jury secrecy, Rule 6(e)(3) governs almost all requests for the release of grand jury records, this court has recognized that there are certain "special circumstances" in which release of grand jury records is appropriate even outside of the boundaries of the rule. See In re Biaggi, 478 F.2d at 494 (supplemental opinion). This conclusion is consistent with the origins of Rule 6(e), which reflects rather than creates the relationship between federal courts and grand juries. See Pittsburgh Plate Glass Co., 360 U.S. at 399, 79 S.Ct. at 1240; In re Hastings, 735 F.2d at 1268-69 (citing Notes of Advisory Committee on Rules, following Fed.R.Crim.P. (discussing the origins of amendments to Rule 6 in the practice of federal courts)). ²

By arguing that the district court did not have the authority to go beyond the six exceptions of Rule 6(e)(3), the government suggests that we should overrule--or at least sharply limit the scope of--our controlling Biaggi precedent. We decline to do so, and endorse the powerful holding of Chief Judge Friendly that while there is a long "tradition" of grand jury secrecy, it "is not," however, "absolute." In re Biaggi, 478 F.2d at 492. Furthermore, we repeat his recognition that permitting departures from Rule 6(e) is fully consonant with the role of the supervising court and will not unravel the foundations of secrecy upon which the grand jury is premised. "Our decision [to affirm release of grand jury minutes beyond Rule 6] should therefore not be taken as demanding, or even authorizing, public disclosure of a witness' grand jury testimony in every case where he seeks this and the Government consents. It rests on the exercise of a sound discretion under the special circumstances of [each] case." Id. at 494 ...