Petition to Inspect and Copy Grand Jury Materials, In re

• Decision Date: 20 June 1984
• Docket Number: No. 84-5003,84-5003
• Citation: 735 F.2d 1261
• Parties: In re PETITION TO INSPECT AND COPY GRAND JURY MATERIALS. Appeal of Honorable Alcee L. HASTINGS, Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1261

735 F.2d 1261

In re PETITION TO INSPECT AND COPY GRAND JURY MATERIALS.

Appeal of Honorable Alcee L. HASTINGS, Appellant.

No. 84-5003.

United States Court of Appeals,

Eleventh Circuit.

June 20, 1984.

As Amended on Denial of Rehearing Aug. 3, 1984.

Terence J. Anderson, Robert S. Catz, School of Law, University of Miami, Coral Gables, Fla., for appellant Judge Hastings.

John Doar, New York City, G. Stewart Webb, Baltimore, for the appellee Investigating Committee.

Robert I. Richter, Reid H. Weingarted, Public Integrity Section, Criminal Div., Dept. of Justice, Washington, D.C. for appellee United States.

Appeal from the United States District Court for the Southern District of Florida.

Before CAMPBELL ^*, Chief Judge, PELL ^** and KEARSE ^***, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge:

This is an appeal by Judge Alcee Hastings, a district judge for the United States District Court for the Southern District of Florida, from an order of the District Court for the Southern District of Florida (Gordon, J., sitting by designation). The order allows the Investigating Committee of the Judicial Council of theEleventh Circuit (the "Committee"), to inspect the records of a federal grand jury proceeding which had returned a criminal indictment against Judge Hastings leading to his trial and acquittal.

The indictment had charged Judge Hastings with soliciting a bribe in exchange for a judicial decision. The indictment had also charged one William Borders, Jr., with offering the bribe. Each accused was separately tried. Borders was convicted, and his conviction was affirmed on appeal. United States v. Borders, 693 F.2d 1318 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1875, 76 L.Ed.2d 807 (1983). Judge Hastings was then tried; he was acquitted. Less than two months later, two of three district judges belonging to the Judicial Council of theEleventh Circuit (the "Council") filed a complaint with the Council against Judge Hastings asking that he be disciplined pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, Sec. 3(a) (the "Act"). 28 U.S.C. Sec. 372(c). Citing to the same matters for which Judge Hastings had been tried and acquitted, the complaint charged that his conduct, including his trial testimony, demonstrated that he had violated the Code of Judicial Conduct. Complainants asked the Council to make such orders as were necessary "to vindicate the Honor of United States Judges and discipline [Judge Hastings] for his odious behavior," including recommending to the House of Representatives that he be impeached.

Chief Judge Godbold of theEleventh Circuit appointed himself and four other judges (including the circuit judge who had written the court's opinion in Borders's unsuccessful The Committee then filed a petition with the District Court for the Southern District of Florida seeking access to the records of the grand jury that had indicted Judge Hastings. In its petition the Committee alleged that,

appeal) to a special committee to investigate the complaint as provided for in section 372(c)(4) of the Act. ¹

As part of its investigation of the facts and allegations of the complaint filed against Judge Hastings, the Committee has determined that it must examine the record, transcript, minutes and exhibits of the proceedings of the grand jury that indicted Judge Hastings and Mr. Borders.

...

The Committee is required by statute to conduct and maintain its proceedings in confidence. 28 U.S.C. Sec. 372(c)(14). ²

The Justice Department's Public Integrity Section responded in support of the Committee's petition. Judge Hastings filed an answer and affirmative defenses in opposition to the petition, as well as a cross-petition for public disclosure of the grand jury records. A newspaper, The Miami Herald, also petitioned for public release of the records.

At a hearing on the petition, Judge Hastings vigorously opposed any disclosure. He contended that the Committee's petition was in furtherance of a conspiracy to deprive him of his constitutional rights and that it was motivated by a desire to retaliate against him for having exercised his constitutional rights at his criminal trial. He asserted that once acquitted he should not be subjected to a judicial investigation which can only undermine his Article III independence. Further, Judge Hastings argued that the Committee's petition was unlawful under the Act and that the disclosure of the grand jury records was not permitted by Fed.R.Crim.P. 6(e), governing grand jury secrecy.

The district court issued a memorandum opinion rejecting Judge Hastings's arguments and stating that it would grant the Committee access to the grand jury materials but would deny public disclosure. In re [I]t is this Court's duty to balance the need for effective administration of the Congressionally established procedure for judicial self-discipline against the traditional factors favoring the " 'indispensable secrecy of [the] grand jury proceedings.' " [Citations omitted.] A careful evaluation of these competing concerns leads this Court to the inescapable conclusion that the minimal trespass upon the traditional values associated with grand jury confidentiality is significantly outweighed by the need of the Special Committee to examine the grand jury material and expeditiously execute its Congressional duty, thereby furthering the broad purposes of the Act.

                Petition to Inspect Grand Jury Materials, 576 F.Supp. 1275 (D.Fla.1983).  The court asserted that Rule 6(e) did not provide the exclusive basis for releasing grand jury materials.  Rather, the court was of the opinion that it could order disclosure under its inherent power as supervisor of the grand jury if, in the interests of justice, the Committee's need outweighed the important and long-established policy of grand jury secrecy.    See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19, 99 S.Ct. 1667, 1672-1673, 60 L.Ed.2d 156 (1979);  United States v. Procter & Gamble Co., 356 U.S. 677, 681-82, 78 S.Ct. 983, 985-986, 2 L.Ed.2d 1077 (1958).  The district court struck the balance in favor of disclosure
                

576 F.Supp. at 1281.

Recognizing the need to minimize the breach of secrecy, the district court, in its accompanying order, imposed restrictions as to the time and conditions of access. It provided that,

1) access is permitted for a period of ninety days;

2) the records are to be kept in the office of the United States Attorney for the Southern District of Florida;

3) only the five members of the Committee, their counsel, and one secretarial assistant are permitted to view the records;

4) no reproduction is permitted except for single copies of records necessary to supplement the Committee's report, which must be kept under seal except before the Judicial Council;

5) the members of the Committee, their counsel, and the secretarial assistant are ordered to keep all information obtained from the records in strict confidence.

Judge Hastings appealed from allowance of the Committee's petition, though not from the denial of his cross-petition for public disclosure. The Miami Herald filed a notice of appeal which has since been voluntarily dismissed. We have stayed the district court's disclosure order pending resolution of this appeal. ³

I. THE COMMITTEE'S STANDING TO PETITION FOR GRAND JURY MATERIALS

Judge Hastings contends that the Committee was without standing under Article III to bring a proceeding in the district court seeking access to grand jury materials. He argues that absent more explicit congressional authorization the Committee, as an entity of the United States, cannot initiate this petition. United States v. Mattson, 600 F.2d 1295 (9th Cir.1979); United States v. Solomon, 563 F.2d 1121 (4th Cir.1977).

We do not agree. Assuming the standing doctrine enunciated in Mattson and Solomon applies to the Committee's petition, we nonetheless hold that the Committee's statutory duty to "conduct an investigation as extensive as it considers necessary," 28 U.S.C. Sec. 372(c)(5), provides the necessary congressional grant of standing to petition for grand jury records. As the district court said,

A contrary construction of the Act would be wholly inconsistent with its broad purposes--to preserve the integrity of the 576 F.Supp. at 1279 (footnote omitted).

judiciary, to maintain public confidence in the judicial process, to protect the wrongfully accused, and to strengthen judicial independence. The goals are better served by a careful evaluation of the need asserted in the petition, rather than denying the authority of the Committee to initiate the petition in the first instance.

Further evidence that Congress intended the Committee to have standing to petition for records of this type can be found in its conferral of "full subpoena powers" upon the Committee, 28 U.S.C. Sec. 372(c)(9)(A). A subpoena would have been issued by the clerk of the court of appeals, 28 U.S.C. Sec. 332(d)(1), and been subject to enforcement through the contempt power of the court of appeals. See Fed.R.Civ.P. 45(f). Had the Committee subpoenaed the records, however, it would have thrust the court of appeals into the novel role of supervising disclosure of grand jury materials. The Committee instead sought the records through the traditional path of petitioning the district court. This choice was prudent since it permitted the district court to exercise its customary control over grand jury materials. We see no point in erecting barriers to discourage the Committee from following a judicially sound alternative to its statutory subpoena power. At the same time, Congress's express grant of subpoena power is an indication that Congress meant the Committee to have wide-ranging power of its own to secure necessary materials, and that a petition of this nature is not, therefore, outside the ambit of its intended powers.

Judge Hastings further contends that, even if the...