U.S. v. Jeter

• Decision Date: 11 October 1985
• Docket Number: No. 84-5453,84-5453
• Citation: 775 F.2d 670
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Phillip Ray JETER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 670

775 F.2d 670

UNITED STATES of America, Plaintiff-Appellee, v. Phillip Ray JETER, Defendant-Appellant.

No. 84-5453.

United States Court of Appeals Sixth Circuit.

Argued April 18, 1985.

Decided Oct. 11, 1985.

Kepco, Inc., A. George Mason, argued, Director Land & Legal, Kingsport, Tenn., for defendant-appellant.

Louis DeFalaise, U.S. Atty., and Barbara B. Edelman, argued, Lexington, Ky., for plaintiff-appellee.

Before MERRITT and WELLFORD, Circuit Judges, and EDWARDS, Senior Circuit Judge.

WELLFORD, Circuit Judge.

Defendant, Phillip Ray Jeter, appeals from his conviction on two substantive counts and one conspiracy count for illicitly obtaining and participating in the distribution of imprinted carbon sheets used in the typing of secret grand jury documents and proceedings. The three charges against Jeter were contained in an eight-count indictment also charging three other individuals, James Purdy Lambert, Anita Madden, and Marlene Halsey, who were acquitted. Jeter was found guilty of violating 1) the federal larceny statute (stealing of government property), 18 U.S.C. Sec. 641; 2) the federal obstruction of justice statute, 18 U.S.C. Sec. 1503; and 3) conspiring under 18 U.S.C. Sec. 371 to violate these statutes (as well as Federal Rule of Criminal Procedure 6(e) and 18 U.S.C. Sec. 401).

While in jail during the spring of 1983, Jeter apparently gained interest in media coverage of grand jury proceedings in Lexington surrounding reputed drug dealers James P. Lambert and Arnold Kirkpatrick. Jeter wrote a sympathetic letter to co-defendant Madden, an associate of Lambert and Kirkpatrick, who had picketed outside a local television station protesting the unfair coverage about alleged illegal drug activities of her friends.

Jeter returned to Lexington in September 1983 and began to visit the apartment of co-defendant Halsey, a typist for a federal court reporter service. In October 1983, Halsey's employer gave her materials to type involving grand jury testimony from the Lambert investigation, and Halsey gave Jeter carbon papers used in typing these grand jury transcripts. The government introduced evidence at trial that the carbon paper in effect created a third copy of the transcripts which could easily be read and deciphered. The Justice Department was charged and paid $1.75 per original page and 90 cents per copy page for the transcript of grand jury proceedings.

Jeter soon thereafter arranged a meeting with grand jury target Lambert to show him a sample page of the carbon transcripts. Jeter explained that he wanted to get even with the government and thought that the government was also treating Lambert unfairly. Lambert, who knew Jeter only by reputation, refused to trust Jeter until a mutual friend vouched for Jeter. This mutual friend, Edwin Piper (who was not included in the indictment), eventually delivered the carbon transcripts to Lambert. Jeter eventually became a frequent visitor at Lambert's house. The government introduced evidence that Lambert instructed another associate, Rocco Lango, to give three hundred dollars ($300) to Jeter, apparently to cover some of his expenses.

Lambert took the carbon papers to his associate Madden, who was also the subject of discussion in the grand jury testimony. Madden retyped the transcript testimony from the carbon documents and made more copies. They then took copies of the retyped transcripts to grand jury target Kirkpatrick. Lambert also took a copy to his attorney, who insisted that the copies be turned over to the court. Jeter and the others were then indicted and stood trial.

After trial and conviction, the court sentenced Jeter to a term of two years imprisonment each on the conspiracy count (Count 1) and the larceny of government property count (Count 3). The sentences were to be served concurrently. The court suspended sentence on the obstruction of justice count (Count 6) in favor of a five year probationary period after service of his sentence on the other two counts.

In this appeal Jeter makes a number of legal challenges to his three-count conviction. With respect to the conviction for larceny under 18 U.S.C. Sec. 641, Jeter argues alternatively that 1) the carbon paper at issue does not fall within the meaning of government property or "thing of value," and 2) the value of the carbon paper does not exceed the requisite one hundred dollar ($100) minimum required for a felony conviction. Jeter contends in a similar vein that his use of the carbon paper does not fall within the federal obstruction of justice statute (18 U.S.C. Sec. 1503). As to the conspiracy charge, he argues that the government insufficiently identified the illegal object of the conspiracy and also failed to introduce sufficient evidence for a conviction. Finally, Jeter argues that the larceny and obstruction of justice statutes must suffer from unconstitutional vagueness and overbreadth under the First and Fifth Amendments if applied to his breaches of grand jury secrecy.

Appellant Jeter essentially raises the same issues except those pertaining to the conspiracy count. This question is whether his activity falls outside the legitimate scope of the statutory felonies for which he was convicted--18 U.S.C. Sec. 641 (larceny of government property) and 18 U.S.C. Sec. 1503 (obstruction of justice).

He essentially suggests two reasons for believing that these statutes do not reach broadly enough to cover his illicit activity. First, he argues that the secrecy of grand jury proceedings is protected exclusively by the criminal contempt power under Federal Rule of Criminal Procedure 6(e) and that the language of this secrecy rule precludes application of any other statutory framework. Second, he argues that the specific application of 18 U.S.C. Sec. 641 and 18 U.S.C. Sec. 1503 would require statutory constructions of their meaning that would fail due to constitutionally deficient overbreadth and vagueness.

We must emphasize, therefore, the precise nature of the essential question raised by the appellant. The appellant nowhere argues that his own activity is beyond the boundaries of criminal punishment due to protection by the First Amendment. ¹ He nevertheless claims that no constitutionally valid construction of any statute presently covers his activity. According to Jeter, Rule 6(e) is the exclusive means of punishment for grand jury secrecy violations and the rule is not applicable to him.

At issue here are: 1) an indisputably broad-gauged statutory prohibition against interference with the federal system of justice (18 U.S.C. Sec. 1503); 2) a statutory framework that plainly prohibits the taking of any "thing of value" from the government (18 U.S.C. Sec. 641); and 3) a federal rule triggering the criminal contempt power for use as a sanction against the violation of grand jury secrets (Rule 6(e)). We find no reasonable basis for Jeter's argument that his activity deserves First Amendment protection. We seriously consider his argument that either or both of the two specific statutes chosen here in the prosecution and conviction of Jeter do not apply to his activity.

I. WHETHER RULE 6(e) APPLIES TO JETER'S ACTIVITY AND/OR PRECLUDES PUNISHMENT UNDER ANY OTHER STATUTORY RULE.

We first address Jeter's argument that Rule 6(e)(2) of the Federal Rules of Criminal Procedure constitutes "the sole and exclusive means of safeguarding the secrecy of grand jury testimony." Rule 6(e)(2), titled "General Rule of Secrecy" pertaining to federal grand juries, provides:

A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.

(Emphasis added). The above referenced provision, Rule 6(e)(3)(A)(ii), adds another group to the list covered by this secrecy rule. This group, according to Rule 6(e)(3)(A)(ii), is composed of

(ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law.

Rule 6(e)(2) represents the main statutory expression of the common presumption that grand jury proceedings should remain secret. See United States v. Proctor & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 985, 2 L.Ed.2d 1077 (1958); see also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979). By its own terms, however, "Rule 6(e) applies ... only to individuals who are privy to the information contained in a sealed document by virtue of their positions in the criminal justice system." Worrell Newspapers of Indiana, Inc. v. Westhafer, 739 F.2d 1219, 1223 (7th Cir.1984) (emphasis added), aff'd, --- U.S. ----, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985); see also Fund For Constitutional Government v. National Archives, 656 F.2d 856, 870 n. 33 (D.C.Cir.1981); 1 C. Wright, Federal Practice & Procedure Sec. 106, at 146 n. 13 (1982).

Jeter is thus correct in arguing that he is not one of the persons on which Rule 6(e)(2) imposes the responsibility of secrecy. He had no official right to be present or to transcribe grand jury testimony and proceedings. We cannot expand the grand jury secrecy rule beyond the plain language of Rule 6(e)(2) in order to encompass Jeter.

On the other hand, however, the plain language of Rule 6(e)(2) does not support that part of Jeter's contention that this rule somehow forbids punishment of unjustified grand jury disclosures under any other statutory rule. Rule 6(e)(2) states: "No obligation of secrecy may be imposed on any person...