474 F.2d 1223 (9th Cir. 1973), 71-3038, United States v. Price

Docket Nº:71-3038, 71-3039.
Citation:474 F.2d 1223
Party Name:UNITED STATES of America, Appellee, v. Trunnell Levett PRICE, and Arnold Lewis Coffey, Appellants.
Case Date:March 05, 1973
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1223

474 F.2d 1223 (9th Cir. 1973)

UNITED STATES of America, Appellee,


Trunnell Levett PRICE, and Arnold Lewis Coffey, Appellants.

Nos. 71-3038, 71-3039.

United States Court of Appeals, Ninth Circuit.

March 5, 1973

Page 1224

William J. Zumwalt (argued), San Diego, Cal., Artie Henderson of Huntington, Byrans, Harper, Henderson, Burney & Newman-Crawford, San Diego, Cal., for appellants.

Robert H. Filsinger, Asst. U. S. Atty. (argued), James W. Meyers, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.

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Before ELY and HUFSTEDLER, Circuit Judges, and WILLIAMS, [*] District Judge.

HUFSTEDLER, Circuit Judge:

Price and Coffey appeal from their convictions for armed robbery of a post office (18 U.S.C. § 2114). Of their many contentions on appeal, only three require discussion: (1) denial of their preindictment motions to compel recordation of grand jury proceedings and of their postindictment motions to disclose the content of grand jury transcripts; (2) denial of Coffey's motion to appear pro se at trial; and (3) error in sentencing them to the "mandatory" term prescribed by 18 U.S.C. § 2114, without revealed consideration of the sentencing alternatives of the youthful offender provisions of 18 U.S.C. §§ 4208(a)(1) and 4209.


After appellants were in custody but before they were indicted, they moved for an order compelling recordation of the anticipated grand jury proceedings. The court observed that recordation was desirable, but it denied the motion on the ground that Rule 6(d) of the Federal Rules of Criminal Procedure did not make transcription mandatory and that the court would not "make the rule" itself. In noting that Rule 6(d) 1 is permissive, the district court followed the language of the Rule and the decisions of our court interpreting it. 2 In denying the motion, however, the district court abdicated the discretion committed to it to order recordation, despite assurances by this court that it has such discretion and that it is obliged to exercise it. 3 As we said in United States v. Thoresen (9th Cir. 1970) 428 F.2d 654, 666:

"[T]he fact that a particular discovery procedure is 'permissive' rather than 'mandatory' does not mean that permission may be arbitrarily denied. Where a defendant, anticipating future grand jury proceedings involving himself, gives notice in advance that he will seek a transcript of the proceedings if an indictment is returned and offers to pay the expense of having a reporter in attendance or shows inability to pay, a sound exercise of discretion would ordinarily call for the granting of a motion that a reporter be in attendance."

We adhere to the principles stated in Thoresen, and we now implement them by holding that the district court must exercise its discretion in passing upon a preindictment motion for recordation of grand jury proceedings and that a district court abuses its discretion in denying the motion of parties situated as were appellants, in absence of a Government showing that it has a legitimate and compelling interest to be served by nonrecordation. The Government cannot meet its burden by resort to the secrecy rubric. Secrecy of grand jury proceedings is not jeopardized by recordation. The making of a record cannot be equated with disclosure of its contents, and disclosure is controlled by other means.

Our holding, in part, is predicated on our recognition in Thoresen that recordation of grand jury proceedings should be routine and nonrecordation should be permissible only in exceptional circumstances. It is also based on our awareness that a less strict rule invites defeat

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of the principles enunciated in Dennis v. United States (1966) 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973.

Dennis held that it was reversible error to deny petitioners' motion for disclosure of certain portions of a grand jury transcript for which the petitioners had shown a particularized need. The Court reasoned that the broadened discovery available to defendants is "entirely consonant with the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice." (384 U.S. at 870, 86 S.Ct. at 1849. See also U. S. Industries, Inc. v. United States District Court (9th Cir. 1965) 345 F.2d 18.)

When Price and...

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