Bradley v. Fairfax, 80-1129

Citation634 F.2d 1126
Decision Date26 November 1980
Docket NumberNo. 80-1129,80-1129
PartiesJames Harvey BRADLEY, Jr. a/k/a Junior Bradley, Appellant, v. Emmett FAIRFAX, U.S. Marshal, Richard T. Mulcrone, U.S. Parole Commissioner, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Robert Beaird, Kansas City, Mo., for appellant.

Ronald S. Reed, Jr., U. S. Atty., W. D. Mo., Kansas City, Mo., William E. Zleit, Atty., U. S. Dept. of Justice, Washington, D. C., for appellees.

Before HENLEY and McMILLIAN, Circuit Judges, and ROY, * District Judge.

McMILLIAN, Circuit Judge.

Appellant James Harvey Bradley, Jr. appeals from a judgment entered by the district court 1 denying his amended petition for writ of habeas corpus. The effect of this judgment is to uphold the decision of the United States Parole Commission (Commission or Parole Commission) revoking appellant's parole. For the reasons discussed below, we affirm the judgment of the district court.

On May 19, 1975, appellant was released on parole after serving approximately seven years of a fifteen-year aggregate term of imprisonment for federal offenses including post office burglary, conspiracy, receiving stolen property, introduction of contraband into a United States penitentiary, and bribery. One of the conditions of his parole was that he not associate with persons who have a criminal record without permission from his parole officer.

Two years later, on June 27, 1979, a Western District of Missouri federal grand jury indicted appellant on ten counts, charging him with violations of 18 U.S.C. §§ 922(h) (receipt of firearms by a felon), 924(b) (causing interstate transportation of a firearm with intent to commit a felony) and 1962(c) (RICO-armed robbery). On August 16, 1979, after a jury trial, appellant was acquitted on all counts.

During the month before appellant's acquittal, United States Attorney William Zleit, who prosecuted the criminal case against appellant, became involved in the revocation of appellant's parole. On July 19, 1979, Zleit, by ex parte motion to federal district court, 2 obtained an order authorizing disclosure of grand jury testimony to the United States Parole Commission. The grand jury materials were subsequently submitted to the Commission and were followed by a July 18, 1979, letter from probation officer Kenneth Cope, in which Cope reported appellant's indictment for various federal crimes. 3 Upon receipt of these materials, the Parole Commission issued a parole violation warrant charging prohibited association with six known criminals, which resulted in appellant's prompt arrest. Appellant thereupon filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the circumstances which led to the Parole Commission's actions.

Over the next month, a number of negotiations not relevant here took place regarding appellant's release from custody prior to his trial on federal charges. Appellant was ultimately released until a combined preliminary interview and final parole revocation hearing was held. On September 13, 1979, approximately a month after his acquittal on criminal charges, appellant appeared at the parole revocation hearing with counsel. Zleit, the federal prosecutor, was present at the invitation of the Parole Commission. Evidence introduced at the hearing included letters written by appellant, telephone company records, investigative reports, criminal arrest and conviction records, a transcript of appellant's August 15, 1979, trial testimony, and the grand jury transcripts which are objected to on this appeal. At the conclusion of the hearing, the hearing officer advised that he would recommend revocation of parole on the grounds of appellant's extensive and continuous unauthorized association with known criminals.

Administrative appeals followed, with the result that finally, on February 5, 1980, the full Commission entered its decision affirming the previous decision of the National Parole Commissioners that appellant's parole should be revoked.

By memorandum and order entered February 12, 1980, Chief Judge Oliver denied appellant's amended petition for writ of habeas corpus on the merits. The present appeal is taken from that order pursuant to 28 U.S.C. § 1291.

For reversal appellant argues that (1) he is entitled to habeas corpus relief because grand jury transcripts were released to the United States Parole Commission in violation of Fed.R.Crim.P. 6(e), and (2) the district court erred in declining to rule that he was prejudiced by the presence of government counsel at his parole revocation hearing.

Appellant's parole status constitutes a sufficient restraint on his liberty to place him "in custody" for purposes of 28 U.S.C. § 2241. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Steinberg v. Police Court, 610 F.2d 449, 453 (6th Cir. 1979); Martineau v. Perrin, 601 F.2d 1201, 1204 (1st Cir. 1979). We find in the disclosure of grand jury testimony, however, no basis for habeas corpus relief pursuant to 28 U.S.C. § 2241, 4 concluding that the disclosure which occurred in the facts of this case was harmless error.

The government first argues that disclosure was proper pursuant to Fed.R.Crim.P. 6(e)(3)(C)(i), which allows disclosure of grand jury materials "preliminary to or in connection with a judicial proceeding." 5 This Circuit and others have on occasion read the phrase "judicial proceeding" expansively:

(T)he term "judicial proceeding" includes any proceeding determinable by a court, having for its object the compliance of any person, subject to judicial control, with standards imposed upon his conduct in the public interest, even though such compliance is enforced without the procedure applicable to the punishment of crime.

In the Matter of Disclosure of Testimony Before the Grand Jury, 580 F.2d 281, 285 (8th Cir. 1978) (approving release of materials to City of Omaha, the Council for Discipline of the Nebraska State Bar Association, and Nebraska Commission on Judicial Qualifications), citing Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir. 1958) (transcript of grand jury testimony turned over to grievance committee of New York Bar Association); cf. In re Grand Jury Proceedings, 309 F.2d 440, 443-44 (3d Cir. 1962) (disclosure not allowed to Federal Trade Commission investigation where a judicial proceeding may not necessarily result from the investigation and where the witnesses who appeared before the grand jury, and the documents produced, are available to the investigating commission and subject to administrative subpoena). The Seventh Circuit has specifically found that proceedings which will be subject to judicial review can be viewed as proceedings "preliminary to ... judicial proceeding(s)" within the meaning of Fed.R.Crim.P. 6(e). In re Special February 1971 Grand Jury, 490 F.2d 894, 897 (7th Cir. 1963) (Chicago police board hearing, which would be subject to judicial review, was preliminary to a judicial proceeding).

This authority, however, is not directly concerned with parole revocation hearings and does not, except by analogy, authorize disclosure in the present case. Applying the language of Rule 6 and decisional authority to the particular facts before us, the decisive question is whether the parole revocation hearing was itself a judicial proceeding or, alternatively, whether it was a proceeding "preliminary to" a judicial proceeding.

It is clear that revocation hearings are not judicial proceedings per se. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1971) (revocation is not part of a criminal prosecution). Accordingly, disclosure under Rule 6(e)(3)(C)(i) can only rest on the attenuated reasoning that a parole revocation hearing is "preliminary to" a judicial proceeding in the sense that the parole revocation procedure is subject to collateral attack in the courts for abuse of discretion or lack of due process. Morrissey v. Brewer, supra, 408 U.S. 471, 92 S.Ct. 2593; United States v. Reed, 573 F.2d 1020 (8th Cir. 1978); Creech v. United States Board of Parole, 538 F.2d 205 (8th Cir. 1976); Cleveland v. Ciccone, 517 F.2d 1082 (8th Cir. 1975); United States ex rel. Carioscia v. Meisner, 331 F.Supp. 635 (N.D. Ill. 1971); cf. Wright v. Settle, 293 F.2d 317 (8th Cir. 1961) (habeas corpus petition does not provide opportunity to produce evidence regarding violation of conditions of release).

We are reluctant to approve disclosure under such an expansive reading of Fed.R.Crim.P. 6. Such a reading of the Rule invites indiscriminate disclosure of grand jury materials to a wide variety of agencies whose decisions are subject to judicial review. 6

Moreover, it is well established that parties seeking disclosure must show "particularized need," i. e.,

that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979); see also United States v. Proctor & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958) (private party seeking to obtain grand jury transcripts must make a showing of need with particularity so that "the secrecy of the proceedings (may be) lifted discretely and limitedly."); Thomas v. United States, 597 F.2d 656, 658 (8th Cir. 1979); United States v. Edelson, 581 F.2d 1290 (8th Cir. 1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1216, 59 L.Ed.2d 456 (1979); Wisconsin v. Schaffer, 565 F.2d 961 (7th Cir. 1977); United States v. Knight, 547 F.2d 75 (8th Cir. 1976); Texas v. United States Steel Corp., 546 F.2d 626 (5th Cir.), cert. denied, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977); Bast v. United States, 542 F.2d 893 (4th Cir. 1976). 7 Here, there is nothing in the record to show...

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  • United States v. Baggot
    • United States
    • U.S. Supreme Court
    • June 30, 1983
    ...civil actions or riminal prosecutions might qualify as judicial proceedings under (C)(i). See generally, e.g., Bradley v. Fairfax, 634 F.2d 1126, 1129 (CA8 1980); In re June 20, 1977 Concurrent Grand Jury Investigation (J. Ray McDermott & Co.), 622 F.2d 166, 170-171 (CA5 1980); Special Febr......
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    ...S.Ct. 237, 239, 92 L.Ed. 180 (1948); United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961) (Friendly, C. J.) 9 Bradley v. Fairfax, 634 F.2d 1126, 1133 (8th Cir. 1980) (conduct that is not criminal may still violate parole conditions); Pihakis v. Thomas, 470 F.Supp. 721, 722 (S.D.N.Y. 19......
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    ...commission to abide by statutory time limit for review of detainers was not done in bad faith to warrant habeas relief); Bradley v. Fairfax, 634 F.2d 1126 (8th Cir.1980) (holding that disclosure of grand jury materials to parole commission was harmless error); Northington v. U.S. Parole Com......
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