Disclosure of Testimony Before Grand Jury., Matter of
| Citation | 580 F.2d 281 |
| Decision Date | 30 June 1978 |
| Docket Number | No. 78-1084,78-1084 |
| Parties | In the Matter of DISCLOSURE OF TESTIMONY BEFORE the GRAND JURY. Appeal of Anthony S. TROIA. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Martin A. Cannon, Matthews & Canon, P. C., Omaha, Neb., for appellant.
Gary P. Bucchino, City Prosecutor, Omaha, Neb., for City of Omaha, appellee; Richard B. Jones and Herbert M. Fitle, Omaha, Neb., on brief.
Stanley P. Gushard, Lincoln, Neb., for appellee, Nebraska State Bar Association.
C. C. Sheldon, Asst. Atty. Gen., Lincoln, Neb., for appellee, Nebraska Commission on Judicial Qualifications.
Before HEANEY and STEPHENSON, Circuit Judges, and WANGELIN, * District Judge.
Anthony S. Troia appeals from an order of the United States District Court 1 for the District of Nebraska, authorizing the release to the City of Omaha, the Council for Discipline of the Nebraska State Bar Association, and the Nebraska Commission on Judicial Qualifications certain specified pages of appellant Troia's federal grand jury testimony. 2 We affirm.
In March 1975 a federal grand jury which had been investigating gambling activities in Omaha and elsewhere in Nebraska for approximately one year returned an indictment against 18 persons. The indictment charged in substance the operation of an illegal gambling business, 3 the use of wire communication facilities to conduct an illegal gambling business, 4 and conspiracy to obstruct enforcement of the Nebraska and Omaha gambling laws. 5 During the course of the investigation, appellant Troia, a former assistant city prosecutor in Omaha from February 1972 until November 1973, testified before the grand jury pursuant to a grant of "use" immunity. Although as a result of the grand jury's investigation no governmental official or employee was indicted, Count II of the indictment stated that some of the defendants did "conspire * * * with Anthony Troia, an Assistant Prosecutor for the City of Omaha, Nebraska, and with other officials and employees, elected, appointed, and otherwise, of the State of Nebraska and its political subdivisions, to obstruct the enforcement of the criminal laws of the State of Nebraska and its political subdivisions * * * intending thereby to facilitate an illegal gambling business." It was further alleged in Count II of the indictment that as a part of the conspiracy, some of the defendants
corruptly endeavor(ed) to impede, defeat and obstruct the enforcement of the laws of the State of Nebraska and the City of Omaha, by influencing the officials and employees of said State and City, including but not limited to the said Anthony Troia, to refrain from vigorous enforcement against the named defendants of the aforesaid criminal laws of said State and subdivisions, and to provide advance information to the said defendants and their associates concerning any potential enforcement of the aforesaid criminal laws.
On November 19, 1975, appellant Troia asked the district court to expunge from the indictment all references to Troia's name. On March 26, 1976, after considering United States v. Briggs, 514 F.2d 794 (5th Cir. 1975), Judge Schatz found that the grand jury had no authority to name an individual as a coconspirator without naming him as a defendant in the indictment, and accordingly ordered Troia's name stricken from Count II of the indictment.
On September 3, 1976, the City of Omaha asked the district court to order disclosure of that portion of the testimony before the grand jury "which bears upon the alleged misconduct of Omaha City officials, past and present." Later the same month, the Council for Discipline of the Nebraska State Bar Association asked the district court "to order the disclosure of that portion of the Grand Jury evidence in which Anthony S. Troia testified and any other evidence in which Anthony S. Troia is named." On September 27, 1976, the Nebraska Commission on Judicial Qualifications asked the district court to disclose that portion of the grand jury testimony "which pertained(ed) to the conduct of any judge of a court having jurisdiction over violations of the law of the State of Nebraska or the ordinances of the City of Omaha, Nebraska."
A hearing en banc by the district court was held on the applications on September 29, 1976. On April 15, 1977, the district court en banc, in a memorandum of decision, found that the requests of the applicants "are preliminary to or in connection with a judicial proceeding, except to the extent that the City of Omaha asks for information beyond that relating to matters subject to prosecution," and that the three applicants had shown a compelling and particularized need for an in camera examination of the grand jury transcript. The court further stated that having read the entire transcript, which consisted of testimony of more than 100 witnesses, it was persuaded that some limited disclosures were needed to enable the three applicants to make decisions. 6 The court authorized the release to the City of Omaha of "the names and addresses of those persons who gave testimony which could be interpreted as indicating criminal activity by one or more of the city's officers or employees and a general description of the subject matter of the testimony." The court authorized the release to the Council for Discipline of the Nebraska State Bar Association of "the names and addresses of those witnesses who gave testimony which could be interpreted as indicating criminal or professionally unethical activity by one or more lawyers and a general description of the subject matter of the testimony." Finally, the court authorized the release to the Nebraska Commission on Judicial Qualifications of "the names and addresses of the witnesses who gave testimony which could be interpreted as indicating criminal or professionally unethical activity by one or more judges and a general description of the subject matter of the testimony."
In the final two paragraphs of its order dated April 15, 1977, the district court provided as follows:
The contents of the foregoing lists shall be kept as fully confidential as possible by those to whom they are disclosed and shall be used only as a source of information for their own official duties; and
Upon completion of the investigations made possible by this order the statements taken or a summary of them may be delivered to the court for a comparison by the court with testimony given by the same witnesses to the grand jury and for a decision by the court as to whether a disclosure of any further information from or any part of the transcript of the grand jury testimony is necessary.
Following this order, each of the applicants interviewed or attempted to interview the witnesses named on the lists provided to them by the court. Appellant Troia was one of the witnesses interviewed. Subsequently the applicants provided the court with statements taken from each witness and the court compared those statements with the testimony of the witnesses before the grand jury. The court found that "Two of the witnesses refused to make statements, five gave statements which contained material omissions of information given to the grand jury in their testimony, and one furnished a statement substantially at odds with the person's grand jury testimony." Accordingly, the court in an order dated December 12, 1977, authorized the disclosure to the applicants of copies of specified pages from the grand jury transcript which contained testimony either omitted from or significantly at variance with statements made to the applicants, or of persons who refused to give any statement to the applicants. The order enumerated specific persons as representatives of the applicants to whom the copies of the transcript pages would be released. Additionally, the court re-emphasized "That the contents of the foregoing documents and pages of testimony shall be kept as fully confidential as possible by those to whom they are disclosed and shall be used only as a source of information for their own official duties." The order finally provided that each of the persons whose testimony was to be disclosed would be notified of that fact. Each witness would be apprised of the applicant or applicants that would receive his testimony as well as the numbers of the pages of the particular transcript. A 15-day period following the date of the order was set aside to allow each witness, if he so desired, to read at the office of the Clerk of the United States District Court those pages of his testimony which were to be disclosed.
Following the December 12, 1977, order appellant Troia asked the district court to grant a new trial. This motion was denied by the district court on January 20, 1978. Troia appeals from the order of December 12, 1977, and the refusal of the district court to grant him a new trial.
At the outset we note that in the federal courts there is a long established policy which maintains the secrecy of grand jury proceedings. United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). The traditional policy of secrecy rests on a number of interests which have been characterized as follows:
the interest of the government against disclosure of its investigation of crime which may forewarn the intended objects of its inquiry or inhibit future witnesses from speaking freely; the interest of a witness against the disclosure of testimony of others which he has had no opportunity to cross-examine or rebut, or of his own testimony on matters which may be irrelevant or where he may have been subjected to prosecutorial browbeating without the protection of counsel; the similar interests of other persons who may have been unfavorably mentioned by grand jury witnesses or in questions of the prosecutor; protection of witnesses against reprisal; and the interests and protection of the grand jurors themselves.
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