Barry v. U.S.
| Decision Date | 27 January 1989 |
| Docket Number | No. 87-5268,87-5268 |
| Citation | 865 F.2d 1317 |
| Parties | Marion S. BARRY, Jr., Mayor of the District of Columbia, Appellant v. UNITED STATES of America, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 87-01692).
Herbert O. Reid, Sr., for appellant.
Bradley L. Kelly, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellees. Joseph E. diGenova, U.S. Atty., * Royce C. Lamberth, * Michael J. Ryan and Stuart H. Newberger, Asst. U.S. Attys., also entered appearances for appellees.
Before EDWARDS, BUCKLEY and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
This is an appeal from a judgment of the District Court dismissing a suit by the Mayor of the District of Columbia, Marion S. Barry, Jr., ("appellant" or "Mayor Barry") against the Attorney General of the United States, the United States Attorney for the District of Columbia, and other federal officials ("appellees"). In his suit, Mayor Barry claims that the appellees violated Federal Rule of Criminal Procedure 6(e)(2) ("Rule 6(e)(2)") 1 in disclosing matters occurring before the grand jury; he seeks both equitable relief and contempt sanctions for the alleged violations. In dismissing the suit, the District Court ruled that the appellant "failed to carry his burden to establish a prima facie case of prosecutorial misconduct based on violations of Rule 6(e)." Mayor Barry appeals from this judgment.
We agree with the District Court that the cause of action stated in appellant's Complaint is civil, not criminal, and that it arises solely under Rule 6(e)(2). However, we reject the trial court's conclusion that the appellant failed to establish a prima facie case under Rule 6(e)(2). Accordingly, we remand the case to the District Court for an appropriate show cause hearing.
On June 19, 1987, Marion S. Barry, Jr., Mayor of the District of Columbia, brought this action for equitable relief and contempt sanctions against the Attorney General of the United States, the United States Attorney for the District of Columbia, and other federal officials, alleging that they unlawfully disclosed matters occurring before the federal grand jury that was investigating allegations of corruption in the District of Columbia Government. In his Complaint, Mayor Barry charged the appellees with prosecutorial vindictiveness and misconduct in leaking grand jury information to the press; he also claimed that appellees' actions were intended to cause him irreparable harm, and that appellees had illegally interfered with his occupation and performance of duties as Mayor.
In support of his claim that the appellees had unlawfully disclosed grand jury secrets, Mayor Barry submitted newspaper and television reports allegedly pertaining to the grand jury investigation, letters from the appellant's counsel to the Attorney General complaining of official leaks, a press release issued by the United States Attorney, and appellant's own affidavit alleging that leaks to the press were impairing his ability to perform his official duties. As relief for the alleged violations, Mayor Barry sought an order from the trial court directing the appellees to show cause at an evidentiary hearing whether contempt sanctions should be imposed, preventing further disclosures in violation of Rule 6(e)(2), requiring the United States Attorney to submit affidavits in good faith to support any further applications for grand jury subpoenas, and directing the United States Attorney to disclose to the public all information acquired to date pursuant to the grand jury process. 2
The appellees moved to dismiss the Complaint and, in the alternative, for summary judgment. The appellees contended that the appellant was not entitled to any relief that might interfere with the ongoing proceedings of a grand jury. Furthermore, while acknowledging that a cause of action could be maintained under Rule 6(e)(2), appellees argued that Mayor Barry had failed to establish a prima facie case in support of such an action.
The District Court found that, "while [Mayor Barry] ha[d] framed his request as a civil complaint, it is in fact a motion seeking civil sanctions for alleged violations of [Rule] 6(e)." Marion S. Barry v. United States of America, No. 87-1692, slip op. at 2 (D.D.C. July 24, 1987), reprinted in Appendix for Appellant ("A.") 18. The court reached this conclusion based on "[t]he substance of the Complaint, the relief sought and the absence of any other claimed jurisdictional basis." Id. Relying on Rule 6(e), the court then reviewed the allegations of the Complaint in light of the news excerpts and documents filed by Mayor Barry, and held that Mayor Barry "ha[d] failed to carry his burden to establish a prima facie case of prosecutorial misconduct based on violations of Rule 6(e)." Slip op. at 14, A. 31. The District Court dismissed the Complaint.
The instant appeal followed. Mayor Barry moved for summary reversal of the District Court's decision. The appellees moved for summary affirmance. On March 10, 1988, this court denied both parties' motions and ordered full briefing of the issues raised in this case.
Mayor Barry offers a series of news articles, dating from 1984 through 1987, which he suggests demonstrate a pattern of Government leaks of grand jury matters to the press. The District Court found that one of these articles, Werner, Mayor of Washington is Subject of Perjury Inquiry by Grand Jury, N.Y. Times, Aug. 29, 1984, at Al, col. 3, did indeed indicate that "law-enforcement officials familiar with [Mayor Barry's] testimony" disclosed details about the Mayor's statements to the grand jury about his alleged cocaine use. See slip op. at 8-9, A. 24-25. The article describes that a federal grand jury was looking into drug use among city employees and had questioned Mayor Barry about his possible involvement in the situation. The article states that federal law enforcement officials indicated that the Mayor had denied being a cocaine user and having obtained cocaine from a former city employee, Karen K. Johnson. In addition, the article also says that the officials indicated the direction in which the grand jury investigation was heading. See N.Y. Times, A16, col. 4.
Mayor Barry also offers an August 10, 1984, Washington Post article as evidence of improper Government leaks to the press. See Pichirallo & Kamen, Ex-City Worker is Jailed After Refusing to Testify, Washington Post, Aug. 10, 1984, at A1, col. 4. The article describes how Karen K. Johnson, a D.C. Government employee convicted of selling cocaine, refused to testify to a grand jury that was investigating D.C. Government corruption. A "knowledgeable law enforcement official" is cited in the article as saying "that it is highly unusual for a defendant in Johnson's position to refuse to answer questions." Id. at A11, col. 2. The article further reports that Mayor Barry had testified before the grand jury and had denied receiving cocaine from Johnson. See id. at A11, col. 3; see also Davis & Sellers, Karen Johnson Jailed for Contempt, Loses Job, Washington Times, Aug. 10, 1984, at A1, col. 2 (indicating that Government officials would continue a narcotics investigation despite Johnson's refusal to testify to grand jury).
Some of the other articles offered by Mayor Barry either do not explicitly mention "law enforcement officials" in connection with information disclosed about the grand jury proceedings, or they mention law enforcement officials only in connection with "investigations" underway that were not explicitly linked to the grand jury proceedings. In a May 23, 1987, Washington Post article, for example, a person is identified as having testified in grand jury proceedings regarding Government contracting practices, but the article refers to no federal sources as having provided that information. The U.S. Attorney is quoted as indicating that a long-running secret probe of federal and local contracts was continuing, triggered by allegations by local business people that "an attempt had been made to extort from them payoffs to middlemen, and possibly to government officials" in exchange for "two multimillion-dollar contracts the [business people were] attempting to acquire lawfully." Lewis, FBI Probes D.C. Contracting, Washington Post, May 23, 1987, at A1, col. 4 (quoting then-U.S. Attorney Joseph E. diGenova). However, information attributed to the U.S. Attorney is not tied to any of the matters occurring before the grand jury.
Similarly, a May 27, 1987, Washington Post article describes how federal prosecutors were investigating allegations of payoffs to Johnson for not testifying in grand jury proceedings regarding D.C. Government corruption. The investigation, however, is not characterized as revealing matters occurring before the grand jury. See Lewis, Drug Seller, Contractor Ties Alleged, Washington Post, May 27, 1987, at A1, col. 4. Moreover, in other articles that seem to disclose matters occurring before grand juries investigating Government corruption, only "sources," not "Government sources" are listed as providing such information. See, e.g., LaFraniere, FBI 'Consulting Firm' Formed for D.C. 'Sting', Washington Post, May 24, 1987, at A1, col. 4.
In short, the record contains a broad mix of news reports, some of which indicate that law enforcement officials may have disclosed matters occurring before the grand jury, some of which suggest the same but are unclear, and some of which discuss claims of alleged Government corruption unrelated to grand jury proceedings. The District Court found that at least one of these...
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