Blalock v. U.S.

• Decision Date: 18 May 1988
• Docket Number: No. 87-8020,87-8020
• Citation: 844 F.2d 1546
• Parties: C.W. BLALOCK, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1546

844 F.2d 1546

C.W. BLALOCK, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 87-8020.

United States Court of Appeals,

Eleventh Circuit.

May 18, 1988.

Gary P. Bunch, P.C., Carrollton, Ga., for plaintiff-appellant.

J. Michael Faulkner, Asst. U.S. Atty., Augusta, Ga., for defendant-appellee.

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

Before TJOFLAT, Circuit Judge ^*, and ROETTGER ^**, District judge.

PER CURIAM:

Appellant is the target of a federal grand jury investigation in the Southern District of Georgia. He claims that the assistant United States Attorney in charge of the investigation and the Federal Bureau of Investigation (FBI) agents who are participating in it are denying him due process of law by the manner in which they are performing their duties. He also claims that they have disclosed grand jury materials to unauthorized persons in violation of Fed.R.Crim.P. 6(e)(2). ¹ To protect his rights under the due process clause and Rule 6(e)(2), appellant applied to the district court for an order permanently enjoining the grand jury's investigation of him. After entertaining the response of the assistant United States Attorney and affidavits submitted by appellant, the district court rejected his application. We affirm. ²

I.

The grand jury is investigating allegations that bid rigging, fraud, and various other federal crimes have occurred in the construction of the Georgia Power Company's Vogtle nuclear power plant. Appellant is a target of the investigation. ³ Most of the evidence heard by the grand jury thus far has been gathered by FBI agents. On occasion, these agents have collaborated with Georgia Power Company investigators who are looking into the allegations on behalf of the power company.

Appellant wants the grand jury's investigation brought to a halt for several reasons: (1) the investigation, which began in April 1985, has taken too long; (2) the prosecutor is using the grand jury's subpoena power to bring witnesses to his office so that he can conduct his own private investigation of appellant; (3) the prosecutor and an FBI agent involved in the grand jury investigation have commented that they are going to "break [appellant] or run him out of business"; (4) the prosecutor told a potential grand jury witness that appellant might harm her; ⁴ and (5) the prosecutor and several FBI agents have disclosed grand jury materials to unauthorized persons.

To support his application for injunctive relief in the district court, appellant presented two affidavits. The first affidavit came from a person who heard the prosecutor state that he intended to "break [appellant] or run him out of business." The second affidavit was from a person interviewed first by power company investigators and then by the FBI. The affiant stated that the latter asked him questions similar to those put to him by the power company investigators. Appellant requested that the court hold an evidentiary hearing so that he could present live testimony in addition to these affidavits.

The prosecutor, responding to appellant's application for injunctive relief, argued that an evidentiary hearing was unnecessary. Assuming, for sake of argument, the truth of appellant's allegations, the prosecutor contended that appellant was not entitled to injunctive relief because he has an adequate remedy at law: if indicted, appellant can move the court to dismiss the indictment.

Following its receipt of the prosecutor's response, the court heard argument of counsel on appellant's request for injunctive relief. Appellant again urged the court to hold an evidentiary hearing and proffered the testimony of the witnesses who purportedly would appear. His proffers restated the factual allegations of impropriety made earlier.

After considering appellant's proffers and the prosecutor's response, the court declared a recess so that it could examine the transcripts of the grand jury proceedings, which the prosecutor had filed in camera. When the argument resumed, the court denied appellant's application for injunctive relief. The court stated that reading the transcripts of the grand jury's proceedings convinced it that the grand jury had been conducting itself in an orderly fashion and there appeared to be no reason to abort its investigation. As for appellant's claim that the prosecutor and the FBI had behaved improperly, the court noted that appellant had an adequate remedy at law, which he could pursue if indicted.

The court also noted that the behavior of the assistant United States Attorney and the FBI agents involved in the case had always been exemplary; it therefore doubted the truth of appellant's allegations of impropriety. Following this comment, appellant moved the court to recuse itself from further participation in the matter. His motion was denied.

Appellant now appeals. He asks us to vacate the district court's ruling and to remand the case for an evidentiary hearing before a different district judge, arguing that the judge who handled the matter should have recused himself. He also asks us to declare that his allegations of prosecutorial misconduct state a claim for injunctive relief. We decline both requests.

II.

Appellant claims that both the due process clause of the fifth amendment and Fed.R.Crim.P. 6(e)(2) give the target of a grand jury investigation the right to injunctive relief to remedy the sort of governmental misconduct he has alleged here. We first address his claim under the due process clause.

A.

Appellant's due process claim proceeds on two assumptions: first, that a target of a federal grand jury investigation has a constitutional right to be indicted by a grand jury proceeding untainted by the kind of conduct purportedly engaged in by the prosecutor and the FBI in this case; and second, that injunctive relief is available to preclude the grand jury from returning a tainted indictment.

We need not decide whether a target has the due process right appellant asserts. All that we need to say is that appellant is not entitled to an injunction because he has an adequate remedy at law.

It is settled law that "courts of equity should not act ... when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). Equity always has been hesitant to act if its remedy would disrupt an ongoing grand jury investigation. See, e.g., United States v. Calandra, 414 U.S. 338, 349-50, 94 S.Ct. 613, 620-21, 38 L.Ed.2d 561 (1974); Cobbledick v. United States, 309 U.S. 323, 327-28, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940); Blair v. United States, 250 U.S. 273, 280-82, 39 S.Ct. 468, 470-71, 63 L.Ed. 979 (1919). In the few situations in which equity has intervened--principally in cases involving challenges to the validity of a grand jury subpoena--relief has been granted only where there is no adequate remedy at law. ⁵ In the present case, appellant has an adequate legal remedy in the form of a motion to dismiss his indictment, if one is handed down.

B.

Appellant interprets Rule 6(e)(2) to require a district court to grant a target of a grand jury investigation equitable relief whenever matters occurring before the grand jury have been improperly disclosed and further disclosures are likely. According to appellant, the district court should have enjoined the grand jury's investigation because both the prosecutor and the FBI have improperly disclosed matters that have taken place before that body. First, he contends that the FBI has revealed grand jury material to investigators employed by Georgia Power by questioning potential grand jury witnesses in the presence of such investigators; he further contends that the agents had to disclose grand jury information to question these witnesses effectively. Second, he alleges that in one instance the agents and power company investigators questioned a potential witness separately, but asked similar questions; he argues that such conduct suggests that the FBI has disclosed the direction taken by the grand jury investigation. Third, he contends that the prosecutor told one of appellant's competitors that the grand jury was likely to indict him soon, thus revealing "matters occurring before the grand jury."

Appellant cites In re Grand Jury Investigation (Lance), 610 F.2d 202 (5th Cir.1980), ⁶ as authority for his contention that, on these facts, Rule 6(e)(2) gives him the right to enjoin the grand jury proceedings. In Lance, the Fifth Circuit, ignoring the question whether a target of a grand jury investigation has the right to bring an action under the Rule to enjoin the unauthorized disclosure of grand jury matters, held that a target has the right to ask the district court to require anyone wrongfully disclosing grand jury matters to show cause why he should not be held in civil contempt and sanctioned. See id.; see also United States v. Eisenberg, 711 F.2d 959 (11th Cir.1983) (remanding for determination whether contempt was warranted). In reaching this holding, the Lance court necessarily answered in the affirmative the question it chose to ignore--whether Rule 6(e)(2) gives a target a right of action for injunctive relief against the members of the grand jury and the prosecutors assisting them in their investigation. We make this statement because there is no such thing as an independent cause of action for civil contempt; civil contempt is a device used to coerce compliance with an in personam order of the court which has been entered in a pending case. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Gompers v. Buck's Stove & Range Co. 221 U.S. 418, 441-42, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911). Thus, in holding that a target may seek civil contempt sanctions for a violation of Rule 6(e)(2), Lance stands for the...