Grand Jury Investigation, In re

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Before THORNBERRY, CHARLES CLARK and KRAVITCH; CHARLES CLARK; KRAVITCH
• Citation: Grand Jury Investigation, In re, 610 F.2d 202 (5th Cir. 1980)
• Decision Date: 08 January 1980
• Docket Number: No. 79-1978,79-1978
• Parties: In re GRAND JURY INVESTIGATION. T. Bertram LANCE, Petitioner-Appellant, v. The UNITED STATES DEPARTMENT OF JUSTICE and the United States Attorney's Officefor the Northern District of Georgia, Respondents-Appellees.

Page 202

610 F.2d 202

In re GRAND JURY INVESTIGATION T. Bertram LANCE, Petitioner-Appellant, v. The UNITED STATES DEPARTMENT OF JUSTICE and the United States Attorney's Officefor the Northern District of Georgia, Respondents-Appellees.

No. 79-1978.

United States Court of Appeals Fifth Circuit.

Jan. 8, 1980.

Powell, Goldstein, Frazer & Murphy, Gary G. Grindler, Nickolas P. Chilivis, Atlanta, Ga., for petitioner-appellant.

Louis M. Fischer, Appellate Section, Crim. Div., U. S. Dept. of Justice, Washington, D. C., for respondents-appellees.

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

Before THORNBERRY, CHARLES CLARK and KRAVITCH, Circuit Judges.

CHARLES CLARK, Circuit Judge:

T. Bertram Lance appeals from an order of the district court denying his motion for sanctions in which he alleged that Justice Department attorneys and grand jurors had violated F.R.Crim.P. 6(e) by disclosing information about matters occurring before a federal grand jury. The district court ruled that Lance's initial showing failed to establish a prima facie a violation of Rule 6(e) and dismissed the motion without holding an evidentiary hearing. Because the evidence of newspaper articles and television reports, which discussed the actions of the grand jury and the scope of its inquiry and which attributed the information to Justice Department sources, made a sufficient prima facie showing of a violation of Rule 6(e) to require an evidentiary hearing on his motion, we reverse and remand.

I. Factual Setting

In late 1977, a federal grand jury in the Northern District of Georgia began examining various practices engaged in by the banking community of northern Georgia. The Justice Department's decision to initiate the grand jury inquiry resulted from investigations by the Justice Department, other government agencies, and Congressional committees into the activities of Lance, a former Director of the Budget and confidant of the President, while he was associated with the National Bank of Georgia. The grand jury did not limit its investigation to Lance's activities; yet he was clearly the primary focus of its proceedings.

The progress of the grand jury investigation was closely followed by the news media, and in November, 1978, Lance filed a motion requesting the district court to prohibit all extrajudicial publicity by the attorneys participating in the grand jury inquiry; to require all motions, briefs, appeals, orders, and other papers involved in the grand jury proceedings to be filed In camera and under seal; and to instruct the grand jurors to disregard any news media accounts of the investigation. Lance asserted that the extensive publicity surrounding the grand jury's investigation had exposed him to ridicule, humiliation, and embarrassment and had detrimentally affected the impartiality of the grand jury. As examples of the prejudicial publicity which he sought to have prohibited, Lance presented seven newspaper articles, which are described in the margin. ¹

In response to Lance's motion seeking to end this publicity, the district court conducted a hearing in chambers on November 29, 1978. At this hearing, the district judge disclosed that at a social gathering several people had informed him that two grand jury members were repeating the testimony of a grand jury witness. The court granted Lance's request, which was not opposed by the Justice Department, that all papers concerning the grand jury investigation be filed In camera and under seal. The court also ordered the Justice Department attorneys to admonish the members of the grand jury, on a daily basis if necessary, not to disclose any information concerning their proceedings and suggested that the attorneys also instruct the grand jurors that they should consider only the evidence presented before them in determining whether sufficient probable cause existed for the return of an indictment. The court then requested the Justice Department attorneys to report to it the reaction of the grand jurors to the admonitions. The court also ordered the attorneys to inform Justice Department officials in Washington that it wished the disclosures to cease and would take further steps to enforce the dictates of Rule 6(e) if necessary. The attorneys were to report to the court in fifteen days: to whom they spoke in the Justice Department, the substance of their communication to the Washington officials, and the response of those officials. The court did not rule upon Lance's request that it order the grand jurors not to read any newspaper articles or listen to any news media reports about the investigation, believing that it did not have the authority to enter such an order.

This first effort to curtail the publicity surrounding the grand jury's investigation met with limited success. Following the publication of additional news articles revealing that Lance had declined to testify before the grand jury and describing Lance's efforts to prohibit the disclosure by the Justice Department of information about the grand jury proceedings, Lance's attorney on January 4, 1979, sent to the district court for In camera consideration a letter expressing his client's concern about the continued disclosure of grand jury information and requesting that an In camera conference with the Justice Department attorneys be held to discuss the resolution of the publicity problem. Together with the letter, Lance's attorney enclosed an unfiled motion. In the motion, Lance made three requests. The first asked that the court order all government attorneys associated with the grand jury to show cause why the court should not sanction them for disclosing (i) Lance's decision not to testify before the grand jury and (ii) the occurrence and results of the prior In camera hearing of November 9, 1978. The second asked that the court examine each of the grand jurors In camera to determine whether any grand juror had violated the secrecy requirements of Rule 6(e) and should be sanctioned. Finally, he asked the district court (i) to admonish the grand jurors about their duty to determine probable cause on an impartial basis and to maintain the secrecy of their proceedings, (ii) to instruct the grand jury not to read newspaper articles or listen to other media accounts about the investigation, and (iii) to require that all the remaining proceedings before the grand jury be fully transcribed. In addition to describing Lance's earlier efforts to have the disclosures of information about the grand jury proceedings halted, his motion cited four articles which had appeared in numerous newspapers and, in substance, had been reported on radio and television. The articles allegedly revealed information about the grand jury proceedings and described Lance's prior efforts to halt the leak of such information, including the nature of the In camera proceeding before the district court in November, 1978. They are noted below. ² In response to Lance's letter, the parties met for a second In camera hearing before the district court on January 22, 1979. As an initial matter, the court dismissed as moot the motion filed by Lance seeking to require that the grand jury proceedings be recorded after being assured by the government attorneys that the proceedings were being recorded and that they were attempting in good faith to make all their statements on the record. With regard to Lance's charges that further disclosures of grand jury material had occurred, the district court stated that it did not consider the reports about Lance's decision not to appear before the grand jury to violate Rule 6(e). The court did, however, regard Attorney General Bell's statements about the prior hearing as a violation of the court's order that the proceedings be held In camera. The Justice Department attorneys stated that they had not released any information about the grand jury proceedings to anyone who was not involved in the investigation. The court reiterated its intent to enforce the provisions of Rule 6(e) and suggested that the Justice Department attorneys again inform their superiors that they should maintain the confidentiality of the material presented to the grand jury and should not disclose any information about the two In camera proceedings.

These last efforts by Lance to halt the publicity surrounding the grand jury inquiry were successful until late March, 1979, at which time interest in the grand jury probe was again spurred by the appointment by the Attorney General of a "special counsel" to direct the investigation of loans made by the National Bank of Georgia, while Lance was its president, to the peanut warehouse business operated by President Carter's family. Following the appearance of a series of articles announcing the appointment of the special counsel and reporting that the Justice Department would seek an indictment of Lance shortly Lance filed the motion for sanctions which is the basis of this appeal.

In his motion for sanctions, Lance alleged that the disclosures contained in the numerous news media reports about the grand jury investigation violated Rule 6(e) and sought three forms of relief: first, that all persons associated with the Department of Justice or the United States Attorney's Office for the Northern District of Georgia who had any involvement with the grand jury probe be ordered to show cause why contempt sanctions should not be imposed for the disclosures by the Justice Department of confidential grand jury matters; second, that the court examine each member of the grand jury In camera to ascertain whether any juror had violated the obligation of secrecy imposed by Rule 6(e); third, that the court impose any sanctions which might be warranted, including an order dismissing the grand jury and barring the Justice Department from prosecuting him as a result of this investigation. In support of this request for relief, Lance presented to the court four new...