IN RE SEPTEMBER 1971 GRAND JURY

• Decision Date: 01 December 1971
• Docket Number: No. 71-1740.,71-1740.
• Parties: In re SEPTEMBER 1971 GRAND JURY. Richard J. MARA, a/k/a Richard J. Marasovich, Witness-Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

454 F.2d 580 (1971)

In re SEPTEMBER 1971 GRAND JURY.

Richard J. MARA, a/k/a Richard J. Marasovich, Witness-Appellant, v. UNITED STATES of America, Appellee.

No. 71-1740.

United States Court of Appeals, Seventh Circuit.

December 1, 1971.

COPYRIGHT MATERIAL OMITTED

Angelo Ruggiero, Chicago, Ill., for appellant.

William J. Bauer, U. S. Atty., Matthias A. Lydon, Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Jeffrey N. Cole, Asst. U. S. Attys., of counsel.

Before FAIRCHILD, CUMMINGS, and KERNER, Circuit Judges.

CUMMINGS, Circuit Judge.

Pursuant to a grand jury subpoena, petitioner appeared before the September 1971 Grand Jury in the Northern District of Illinois on September 23 and 28, 1971. The Grand Jury was investigating possible violations of the conspiracy provision of the Criminal Code (18 U.S.C. § 371) and of the provision proscribing thefts of interstate shipments (18 U.S.C. § 659). The Government advised petitioner that he was a potential defendant in that investigation. On both occasions, he was directed by the foreman of the Grand Jury to furnish handwriting and printing exemplars to its designated agent, but he refused to do so on constitutional grounds. After considering the Government's petition for a court order directing Mara to furnish such exemplars of his handwriting and printing as the Grand Jury deemed necessary, and after considering in camera an affidavit of FBI Special Agent William L. Buchanan, the district court ordered Mara to furnish the exemplars to the Grand Jury, obviously agreeing with the United States Attorney that this was "essential and necessary" to the Grand Jury's investigation in order to determine whether petitioner was "the author of certain writings." Later that day Mara refused to obey the court's order and was therefore adjudged in contempt and committed to the custody of the United States Marshal for the Northern District of Illinois "until such time as said respondent shall obey said order."

On appeal, petitioner's principal argument is that the order directing him to furnish the exemplars constituted an unreasonable search and seizure within the meaning of the Fourth Amendment.¹ Under our opinion in In re Dionisio, 442 F.2d 276 (7th Cir. 1971) (per curiam),² it is plain that compelling petitioner to furnish exemplars of his handwriting and printing is forbidden by the Fourth Amendment unless the Government has complied with its reasonableness requirement,³ and that the present proceeding is not a premature challenge. Specifically, this appeal raises two issues necessarily generated by Dionisio. The first concerns the procedure the Government must follow in attempting to demonstrate that the proposed seizure of the exemplars is reasonable. The second focuses on the content of the reasonableness showing necessary to obtain the order sought below.

To show reasonableness, the Government submitted the aforementioned affidavit of Agent Buchanan in camera to the district court. The affidavit was then impounded without being shown to petitioner or his counsel. Petitioner challenges the adequacy of this secretive, ex parte procedure as nullifying his Fourth Amendment rights and deficient under the due process clause of the Fifth Amendment.

In our view, to justify the reasonableness of a request to furnish handwriting and printing exemplars to the Grand Jury, the Government must show reasonableness by presenting its affidavit in open court in order that petitioner may contest its sufficiency. Cf. United States v. Roth, 391 F.2d 507 (7th Cir. 1967). This will accord with the traditional preference for adversary proceedings as the superior means for attaining justice under our system of criminal justice. Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176; Dennis v. United States, 384 U.S. 855, 873-875, 86 S.Ct. 1840, 16 L.Ed.2d 973. As the Supreme Court has stated in a related context, "adversary proceedings * * * will substantially reduce the incidence of error by guarding against the possibility that the trial judge, through lack of time or unfamiliarity with the information contained in and suggested by the in camera materials, will be unable to provide the scrutiny which the Fourth Amendment exclusionary rule demands." Alderman v. United States, supra, 394 U.S. at 184, 89 S.Ct. at 972; see also Dennis v. United States, supra, 384 U.S. at 874-875, 86 S.Ct. 1840.

It is true, of course, that arrest or search warrants normally issue from an ex parte proceeding in which a "neutral and detached" magistrate is the only initial buffer between government and citizen. Aguilar v. Texas, 378 U.S. 108, 110-111, 84 S.Ct. 1509, 12 L.Ed.2d 723; Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436. But that procedure provides no analogy for the proper constitutional requisite in the present context. The term "reasonable" as used in the Fourth Amendment, like "due process" in the Fifth, demands a measure of constitutional sufficiency which varies with the situation presented. In the warrant situation, difficulties of locating a suspect or possessor of evidence, the problems of apprehension, the destructibility of evidence, the need for promptness to protect the public against violence and to prevent repetition of criminal conduct necessitate the ex parte nature of the warrant issuance proceeding. However, none of these considerations ordinarily underlies a petition to force compliance with a grand jury request for exemplars. Apart from the argument based on the need for secrecy of grand jury proceedings (discussed infra), the United States has failed to show how disclosure of its affidavit in an adversary hearing would significantly impair the administration of criminal justice. On the contrary, there is a "growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice." Dennis v. United States, supra, 384 U.S. at 870, 86 S.Ct. at 1849; see also United States v. Amabile, 395 F.2d 47, 53 (7th Cir. 1968), certiorari denied, 401 U.S. 924, 91 S.Ct. 869, 27 L.Ed.2d 828.

More important, unlike the warrant situation where the accused will have an opportunity to contest the sufficiency of the warrant on a motion to suppress before he may be tried and imprisoned (Federal Rules of Criminal Procedure 41(e); Giordenello v. United States, 357 U.S. 480, 484, 78 S.Ct. 1245, 2 L.Ed.2d 1503), here failure to allow the witness effectively to oppose the Government's petition has resulted in an indefinite incarceration for an unchallengeable reason. We cannot condone such manifest unfairness.

The Government argues that the hearing on its petition to enforce the grand jury's direction must be ex parte rather than adversary in nature in order to protect the secrecy of grand jury proceedings. By now it should be apparent that "grand jury secrecy" is no magical incantation making everything connected with the grand jury's investigation somehow untouchable. Dennis v. United States, supra, 384 U.S. at 868-873, 86 S.Ct. 1840; United States v. Amabile, supra, 395 F.2d at 53. However, even according the secrecy privilege the broadest justifiable scope, disclosure of the present affidavit would not trench upon its boundaries.

We have examined the affidavit and find that it does not recount proceedings before the grand jury. Rather, it states the results the Government derived from its own investigation and then presented to the grand jury. Thus disclosure here cannot be said to discourage the grand jurors from engaging in uninhibited investigation, full discussion, and conscientious voting. Since he is requesting the disclosure, certainly Mara could not be heard to object that the affidavit might reveal disparaging information about him. Moreover, he has been advised that he is a potential defendant so that the Government cannot convincingly contend that divulging the material in the affidavit would precipitate his flight from prosecution. In any case, the Government is well aware of the means at its disposal to prevent escape.⁴ Finally, the affidavit does not appear to contain information elicited from complainants and witnesses before the grand jury. Where anonymity is necessary to prevent intimidation or preserve sources of information, deletion of the witnesses' identity may be permitted under the proper standards of trustworthiness and reliability. See Jones v. United States, 362 U.S. 257, 271-272, 80 S.Ct. 725, 4 L.Ed.2d 697; Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 11 L.Ed. 2d 887; Aguilar v. Texas, supra, 378 U. S. at 114, 84 S.Ct. 1509; Spinelli v. United States, 393 U.S. 410,...