Grand Jury Investigation, In re, Nos. 94-3241

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before BEAM, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MURPHY; DIANA E. MURPHY; Department
• Citation: 55 F.3d 350
• Docket Number: Nos. 94-3241
• Decision Date: 05 May 1995
• Parties: In re GRAND JURY INVESTIGATION. STATE OF MISSOURI, Plaintiff-Appellee, v. W.E.R., Defendant-Appellant. STATE OF MISSOURI, Plaintiff-Appellee, v. R & R, Defendant-Appellant. STATE OF MISSOURI, Plaintiff-Appellee, v. S.K.R., Defendant-Appellant. to 94-3243.

Page 350

55 F.3d 350 In re GRAND JURY INVESTIGATION.
STATE OF MISSOURI, Plaintiff-Appellee,
v.
W.E.R., Defendant-Appellant.
STATE OF MISSOURI, Plaintiff-Appellee,
v.
R & R, Defendant-Appellant.
STATE OF MISSOURI, Plaintiff-Appellee,
v.
S.K.R., Defendant-Appellant. Nos. 94-3241 to 94-3243. United States Court of Appeals,
Eighth Circuit. Submitted March 15, 1995.
Decided May 5, 1995.

Page 352

Appellant W.E.R. in No. 94-3241, pro se.

Susan Kreher Roach, Chesterfield, MO, for appellant R & R in No. 94-3242 and S.K.R. in No. 94-3243.

John R. Munich, Jefferson City, MO, for appellee.

Before BEAM, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MURPHY, Circuit Judge.

Page 353

DIANA E. MURPHY, Circuit Judge.

These appeals arise from an order of the district court ¹ granting a petition of the State of Missouri for access to certain material related to a grand jury investigation in the Western District of Missouri. The state petitioned under Federal Rule of Criminal Procedure 6(e)(3)(C)(i) for access to various documents and government agents to assist it in pursuing a civil action it brought in the Eastern District of Missouri. Appellants W.E.R., S.K.R., and R & R are defendants in the civil case, and they intervened in the district court to oppose the petition and to move for its dismissal. We affirm.

Grand jury materials are protected under the law, and their disclosure generally is not allowed, Fed.R.Crim.P. 6(e)(2), but certain exceptions exist. The district court found that disclosure here was appropriate as being "preliminarily to or in connection with a judicial proceeding." Fed.R.Crim.P. 6(e)(3)(C)(i).

In the pending civil case the state seeks to recover funds that were misappropriated from the Second Injury Fund, a state-administered worker's compensation fund. The state's complaint names thirteen defendants, including appellants, and has six claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961 et seq., and eleven claims under state law. One of the state law claims alleges that W.E.R. fraudulently transferred misappropriated funds to S.K.R., his wife. The state also claims that S.K.R. is liable to the state under partnership principles because she and W.E.R. allegedly practiced law together. The state claimed in its petition for access that the requested materials would aid in its determination of the liability of each of the civil defendants.

The materials sought are from a grand jury investigation which ended in August 1993 and which focused on a scheme in which supporters of the state attorney general received excessive settlement payments from the Second Injury Fund in return for contributions to his campaign. W.E.R. approached potential donors and arranged for payments to them. The attorney general waived indictment and pleaded guilty to an information, although he denied involvement in the fund scheme. W.E.R. and several other participants pleaded guilty to charges arising from the scheme.

The petition of the state specifically requested access to the following:

1. Any correspondence to or from the attorney general, W.E.R., and one other convicted participant regarding the Second Injury Fund or contributions to the state attorney general. This category also specifically includes memoranda authored by a number of other individuals, including S.K.R.

2. Interview notes, summaries, and affidavits, with the exception of notes or summaries regarding witness testimony before the grand jury.

3. Notes, summaries, and charts regarding settlement payments made from the Second Injury Fund and contributions to the state attorney general, and the interrelationship between the two.

4. Records, lists, computer files, and reports regarding contributions to the state attorney general.

5. Reports of statistical information or actual case files obtained from the Missouri Division of Worker's Compensation, which administers the Second Injury Fund.

6. Access to the government agents who assisted in the grand jury investigation on condition that they not be asked about actual testimony before the grand jury.

The district court found that at least some of the materials requested by the state were "matters occurring before the grand jury" within the meaning of Rule 6(e)(2), but that they could be disclosed under Rule 6(e)(3)(C)(i).

The purpose of Rule 6(e)(2) is to protect the inner workings of the grand jury.

Page 354

The more a document reveals about that work, the greater the protection it receives under the rule. See In re Grand Jury Proceedings Relative to Perl, 838 F.2d 304, 306-07 (8th Cir.1988). The materials sought by the state vary in their nature. For example, the letters written by participants in the scheme were generated independently of the grand jury and therefore reveal little about its investigation other than that they were available to the grand jury which may have considered them; they are entitled to diminished protection under the rule. Id. at 307. Charts and summaries may reveal somewhat more about what the grand jury considered, but they were prepared by government attorneys or agents and were not the work product of the grand jury. The state is not requesting grand jury minutes or witness transcripts, which are entitled to the greatest protection under Rule 6(e). Id. at 306. The requested materials therefore fall along a spectrum and warrant different levels of protection, but none reveal much about the grand jury's inner workings.

A reduced showing of particularized need is required for documents which are entitled to lesser protection under the rule. Perl, 838 F.2d at 307. This requires a showing that the material is necessary to avoid "a possible injustice in another proceeding," that "the need for disclosure is greater than the need for continued secrecy," and that the disclosure request is tailored to include only necessary materials. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979). The decision to allow disclosure is entrusted to the substantial discretion of the district court, which must weigh the circumstances of each case. The district court will be reversed only if it has abused that discretion. Id. at 223, 99 S.Ct. at 1675.

Appellants argue that the state's showing of particularized need was inadequate and that the district court abused its discretion in allowing disclosure. They first contend that no injustice will result in the civil case if the information is not disclosed, claiming that the district court incorrectly relied on cost savings as a rationale for disclosure. Cost savings can be a valid consideration, however. See United States v. John Doe, Inc., 481 U.S. 102, 115-16, 107 S.Ct. 1656, 1664, 95 L.Ed.2d 94 (1987). The district court also found that the materials are needed for the development of the civil case. The record indicates that access to the materials could aid substantially in the state's preparation of its case, not only saving time and money but also allowing more thorough discovery. ² For example, the state contends that the grand jury is in possession of the only copies of some documents. One of the prosecutors who assisted in the grand jury investigation also testified by declaration that the requested materials would be beneficial to the state. This combination of factors is sufficient to show that disclosure is necessary to avoid possible injustice. See Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1674.

The second requirement of the Douglas Oil test is that the need for access must outweigh the interest in...