U.S. v. (Under Seal)

Decision Date12 March 1985
Docket NumberNo. 85-1001,85-1001
Citation757 F.2d 600
PartiesUNITED STATES of America, Appellant, v. (UNDER SEAL), Appellee. In re GRAND JURY PROCEEDINGS JOHN DOE # 462.
CourtU.S. Court of Appeals — Fourth Circuit

William G. Otis, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Justin W. Williams and Karen P. Tandy, Asst. U.S. Attys., Alexandria, Va., on brief), for appellant.

John M. Dowd, Washington, D.C. (Terence J. Lynam; Mark D. Nozette; Lisa J. Stark; Heron, Burchette, Ruckert & Rothwell, Washington, D.C., on brief), for appellees.

Before PHILLIPS, ERVIN and WILKINSON, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

Before the court is an appeal by the government from an order of the district court disqualifying an assistant United States Attorney and two federal investigative agents from further participation in the grand jury investigation of the conduct of appellees. Because the controversy has now been mooted by events, we vacate the district court's order and remand to that court with directions to dismiss the proceeding because of mootness.

I

The grand jury investigation began in 1983 with appellees' suspected narcotics, tax, and currency violations as its principal subject. In the spring of 1984 the grand jury caused subpoenas to be served on appellees' attorneys seeking documents in the attorneys' possession. Appellees moved to quash the subpoenas on the ground that the documents were subject to the attorney-client privilege. The district court denied the motion as it affected most of the documents, but granted the motion as to the remaining documents. This court affirmed in part the district court's order, but remanded the case with instructions that several of the documents found to be privileged by the district court be removed from the files or redacted before the government was permitted to have them. United States v. (Under Seal), In re: Grand Jury Proceedings, John Doe # 462, 748 F.2d 871 (4th Cir.1984).

On Friday, November 23, 1984, one week after this court's order issued, Assistant United States Attorney Karen P. Tandy was notified that she could take possession of the nonprivileged and redacted documents. She inquired of the clerk of the district court as to whether the district court had segregated the privileged documents and had redacted those ordered redacted, since the clerk's remarks raised some concern that the judge had not yet done so. Upon being advised that the judge had done what was required, but without waiting for the court to order the documents unsealed, Tandy directed federal investigative agent Timothy Holleran to retrieve the documents.

The district court had not in fact redacted the materials. Tandy initially looked only at a letter from attorney Pittleman to appellees, dated June 16, 1982, then she left the box of documents to Holleran, who reviewed all the documents. Later in the afternoon, Tandy spent approximately an hour examining the documents. She found and segregated a group of files marked "Documents Ruled Privileged by the Fourth Circuit and/or to be Redacted." She also saw a set of papers prefaced by a cover letter from attorney Andrew Lipps. She skimmed the cover letter and fanned through the documents. These documents as well as the Pittleman letter, were then returned to the district court. The remainder of the documents were retained, and some, including the Pittleman letter, were introduced to a separate grand jury on November 27.

It was not until November 27 that Ms. Tandy's secretary compared numbers stamped on the documents obtained by Tandy to those on the list of privileged and nonprivileged documents prepared by the district court to see if any privileged documents remained in the box brought from the district court. Fourteen additional documents that had been ruled privileged by the district court were thereupon discovered and returned to the district court.

On November 28, Tandy and Assistant United States Attorney Joseph Aronica met with the district judge and informed him that privileged documents had been reviewed. When appellee's counsel was informed, a search was begun for the copies of the Pittleman letter, which the government had not yet realized was privileged. Seven copies were returned to the district court on December 3, 1984, and an eighth copy was returned on December 14.

On December 28, 1984, the district court heard evidence, found facts essentially as above summarized, and made the following conclusion:

From the foregoing the court concludes that the remedy suggested by the United States, namely, no further use by the government of the privileged documents and their return to counsel for the [appellees], will not adequately maintain the integrity of the confidential attorney-client privilege, and cannot insure that those who have viewed the documents will not, even subconsciously, be affected by knowledge gained thereby in pursuing the investigation of the [appellees]. The court further concludes that the only adequate appropriate remedy is disqualification of the Assistant United States Attorney and two agents from further participation in the investigation.

The court then entered the following order:

1. Assistant United States Attorney Karen P. Tandy, United States Customs Special Agent Tim Holleran, and Internal Revenue Service Special Agent James Meckley are disqualified and prohibited from directly or indirectly participating in the investigation now being conducted by Grand Jury 83-2, or any subsequent grand jury investigation of [appellees], in furtherance of which the subpoenas, which were quashed in part by this court's order of June 8, 1984 and by the decision of the United States Court of Appeals for the Fourth Circuit (Nos. 84-1508, 1628, November 26, 1984), were issued. They are further enjoined from directly or indirectly revealing the contents of the privileged documents to any other person.

2. Assistant United States Attorney Karen P. Tandy shall forthwith file with the court under seal the notes or questions prepared by Special Agent Meckley and which she testified are still in her file.

3. Inquiry shall be made of Special Agent Holleran to determine whether he has any notes made as a result of his viewing of the documents which the said decisions of this court and the Court of Appeals has ruled are privileged. If any such notes exist they should be filed with the court under seal forthwith.

The government noted an appeal from this order and on January 2, 1985, filed a motion in this court to stay the order or, alternatively, to issue a writ of mandamus directing the district court to lift its order. On January 2, 1985, Judge Wilkinson of this court granted a stay until a three-member panel could act upon the stay motion. By order of January 18, 1985, a panel of this court extended Judge Wilkinson's stay order pending review of the disqualification order by appeal or mandamus and ordered the appeal expedited for hearing on February 1, 1985. Before the expedited appeal came on for hearing, the grand jury, with Ms. Tandy fully participating in its proceedings, returned an indictment against appellee on January 9, 1985.

II

The government, as appellant, has suggested that the case has become moot by reason of a change of circumstances while the expedited appeal was pending. 1 Specifically it is pointed out that the grand jury proceedings, as they affected the appellees, have now terminated with the return of indictments and that this makes it now impossible for the court to give any effective relief for the specific violation of rights that the district court's order was designed to remedy. We agree, though with admitted discomfort that by this means the government shall have been able to violate both court decrees and adjudicated rights without any accountability in this proceeding. 2

Passing the possibly difficult conceptual question of whether the appeal has been mooted in constitutional case or controversy terms, we conclude that, in any...

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