238 F.2d 713 (4th Cir. 1956), 7311, United States v. United States District Court for Southern Dist of W. Va.

Docket Nº:7311.
Citation:238 F.2d 713
Party Name:UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, and the Honorable Ben Moore, Judge of the United States District Court for the Southern District of West Virginia, Respondents.
Case Date:November 13, 1956
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 713

238 F.2d 713 (4th Cir. 1956)

UNITED STATES of America, Petitioner,

v.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, and the Honorable Ben Moore, Judge of the United States District Court for the Southern District of West Virginia, Respondents.

No. 7311.

United States Court of Appeals, Fourth Circuit.

November 13, 1956

Argued Oct. 17, 1956.

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Victor H. Kramer, Trial Attorney, Anti-Trust Division, Department of Justice, Washington, D.C. (Victor R. Hansen, Asst. Atty. Gen., Charles H. Weston, Harry E. Pickering and Ernest L. Folk, III, Attorneys, Department of Justice, Washington, D.C., on brief), in support of petition for writ of mandamus.

Homer A. Holt and Dale G. Casto, Charleston, W.Va. (Kay, Casto & Chaney, Charleston, W. Va., Steptoe & Johnson, Clarksburg, W. Va., Stanley C. Morris, Jackson, Kelly, Holt & O'Farrell, Payne, Minor, Ray, Price & Loeb, Charleston, W. Va., John V. Ray, and John T. Keenan, Charleston, W. Va., on brief), in opposition to petition for writ of mandamus.

Before PARKER, Chief Judge, and SOPER and SOBELOFF, Circuit Judges.

PARKER, Chief Judge.

This is an application by the United States for a writ of mandamus directed to the Judge of the United States District Court for the Southern District of West Virginia. The application relates to action taken by the District Judge in proceedings wherein a grand jury of the District was making investigation to determine whether indictments for violation of the federal anti-trust laws should be returned against persons or corporations engaged in the milk industry in that area. It asks that the judge be directed to vacate an order quashing in part subpoenas duces tecum for the production of documents before the grand jury, an order imposing conditions upon the use by attorneys for the government of transcript of evidence heard before the grand jury and an order forbidding the grand jury to complete the investigation in which it was engaged. The District Judge has written a letter to the presiding judge of this court which has been received by the members of the court and has been ordered filed in the record as his statement in answer to allegations of the application, a complete transcript of the proceedings in the District Court has been filed, and corporations against whom the subpoenas duces tecum were directed have filed petition to be allowed to intervene and file motion for dismissal of the application. They are allowed to intervene and their briefs and oral argument have been given full consideration by the court. The facts are as follows:

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On April 30, 1956, a grand jury, which had theretofore been empaneled in the Southern District of West Virginia and had completed its work for the term, was called back in a special session by the District Judge at the instance of attorneys representing the United States Department of Justice to investigate the local milk industry with a view of determining whether there had been violations of the federal anti-trust laws. The judge charged the grand jury as to its duties in the premises, in the course of which he instructed it as to its relationship with the government attorneys, saying that all that the attorneys were supposed to do was 'to show you what the evidence is by letting you hear it and see it and not arguing to you or recommending to you or trying to persuade you of anything.'

A few days later motion was made by attorneys representing corporations which were being investigated to quash portions of subpoenas duces tecum requiring the production of certain corporate records before the grand jury. The judge granted the motion on the ground that there was no showing before him that the records so subpoenaed were material to the inquiry, but stated that if the grand jury itself, as distinguished from counsel for the government, made the request, a different question would be presented. Following this, the grand jury appeared in court and requested that subpoenas be issued for the production of the records of the corporations being investigated, including minutes of directors' meetings, annual balance sheets, profit and loss statements, records of annual sales, annual reports and documents showing deviations from regular prices. Upon its appearing that the resolution of the grand jury requesting subpoenas for the production of these documents had been prepared by government counsel, the judge denied the request on the ground that no showing of materiality had been made, although one of the grand jurors spoke up and said that the request for the records, so far as he was concerned, was 'based upon things that had been heard by the grand jury'.

Some days later the District Judge notified government counsel that they might not examine other documents which had been produced pursuant to subpoena except in the presence of the grand jury and notified the stenographer taking evidence at the grand jury hearing that transcript thereof was not to be delivered to government counsel. He stated to counsel that they might not have a transcript of the testimony prior to the returning of an indictment. In this connection he said: 'Before indictment I know of no reason why the attorneys should have a copy of the testimony to take away from the grand jury with them any more than they are entitled to have the documents that are brought in under subpoena.' And at another place he said: 'The attorneys for the Government have complete disclosure of everything that's before the grand jury for the purpose of enabling them to perform their duties, and if it is necessary to have a transcript of the evidence for the purpose of drawing an indictment the evidence can be transcribed and the indictment can be drawn in the presence of the grand jury'. On May 25 the court addressed a letter to counsel with regard to the matter in which he said:

'1. I do not agree that the stenographer's notes belong to the prosecuting, or executive arm of the government. The Grand Jury is in the judicial branch of government, and it is highly important to the rights of the individual citizen that the distinction between the powers, duties, and rights of the two coordinate branches of government be maintained. The ultimate right to its record of proceedings resides in the Grand Jury under the supervision and guidance of the Court.

'2. I do agree with you gentlemen that it is proper for you to have from the stenographer a transcript of the evidence for the purpose of carrying out the duties which you

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list on page 5 of your brief, namely: '1) the conduct of a thorough investigation; 2) the preparation of the indictment; and 3) preparation for trial.'

'3. You will be permitted therefore to receive from the stenographer a transcript of the evidence taken down by him, for the purposes mentioned. This means that if indictments are returned by the Grand Jury you will be permitted to retain the transcript insofar as it relates to persons or corporations then under indictment, for use in preparing for trial and prosecuting the cases to a conclusion. However, if no indictments are found by the Grand Jury or if certain persons or corporations under investigation are not indicted, the transcript relating to such persons or corporations as are not indicted will be returned to the Clerk of the Court as custodian thereof for the Grand Jury.

'4. During the use of the transcript by counsel for the government prior to indictment, it shall be kept strictly confidential, and no copies made thereof.

'5. Your receipt of a transcript from the stenographer will constitute your acceptance of the conditions as to its use which are set out above.

'6. My chief reason for holding that the transcript prior to indictment (or with reference to any persons or corporations not indicted) shall remain undisclosed is my belief that if the Grand Jury, after full and fair investigation, decides not to indict a particular person or corporation, it is not in the interest of justice that testimony which reflects on the character of that person or corporation be left in the hands of anyone, including representatives of the executive department of government.'

On May 24, 1956, after the grand jury had been in session a number of weeks, it came into court and requested adjournment to September 10 to permit the stenographer to write up a transcript of the evidence and for government counsel to prepare a digest of the transcript, stating that it would consider further evidence if necessary. The judge denied this request and stated that government counsel would not be allowed to prepare a digest of the evidence that had been heard and read it to the grand jury. On May 29 the grand jury renewed its request for an adjournment, but the court again denied the request and told the grand jury that it had been in session long enough to determine whether or not indictments should be returned and that it should proceed to vote to return or not to return indictments, reiterating that he would not permit government attorneys to digest the evidence for the benefit of the grand jury, saying:

'If the facts are complex, there is nothing that anyone can do about that. The government attorneys are not permitted to make a digest of these facts and tell you 'here are the essential facts and you needn't consider any others' because it is the duty of the grand jury to consider all the evidence. That's why the other day when you requested some time to have the government attorneys make a digest of the evidence I refused to permit that because obviously if the government attorneys made a digest of the evidence, then what they presented to you finally would not be the evidence that you gentlemen heard but it would be their...

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