Grand Jury Proceedings, In re

• Citation: 632 F.2d 1033
• Decision Date: 21 August 1980
• Docket Number: 80-1419 and 80-1456,No. 80-1419 and N,Nos. 80-1364,No. 80-1418,80-1418,80-1365,80-1419 and N,s. 80-1364
• Parties: In re GRAND JURY PROCEEDINGS. Appeal of Intervenor, Louis C. JOHANSON, inAppeal of UNITED STATES of America, ino. 80-1456. UNITED STATES ex rel., L.C.J., Petitioner, v. Honorable Donald W. VanARTSDALEN.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1033

632 F.2d 1033

In re GRAND JURY PROCEEDINGS.

Appeal of Intervenor, Louis C. JOHANSON, in No. 80-1418.

Appeal of UNITED STATES of America, in No. 80-1419 and No. 80-1456.

UNITED STATES ex rel., L.C.J., Petitioner, v. Honorable Donald W. VanARTSDALEN.

Nos. 80-1364, 80-1365, 80-1418, 80-1419 and 80-1456.

United States Court of Appeals, Third Circuit.

Argued June 11, 1980.

Decided Aug. 21, 1980.

John Rogers Carroll, Carroll, Creamer, Carroll & Duffy, Philadelphia, Pa., for appellant in Nos. 80-1364 and 80-1418; appellee in Nos. 80-1419 and 80-1456 and petitioner in No. 80-1365.

Bonnie Brigance Leadbetter, Asst. U. S. Atty., Philadelphia, Pa., argued for appellee in Nos. 80-1364 and 80-1418 and appellant in Nos. 80-1419 and 80-1456 and respondent in No. 80-1365.

Before HUNTER, WEIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

This appeal arises from the multidistrict undercover investigation (Abscam) conducted by the Justice Department and the Federal Bureau of Investigation into alleged corrupt activities of government officials. Prior to the initiation of a Grand Jury investigation into the alleged corrupt practices of Louis C. Johanson, ¹ he was publicly named as a target of the Abscam investigation. This public disclosure was made contrary to Justice Department regulations requiring confidentiality of pending criminal investigations, ² and further violated the local rules of court for the Eastern District of Pennsylvania, ³ and the A.B.A. Canons of Professional Ethics. ⁴ In this appeal Johanson seeks review of a denial of his motion for an evidentiary hearing for the purpose of securing the identities of the persons who divulged the information. Alternatively he has filed a petition for mandamus to require the district court to grant the evidentiary hearing.

The government in its appeal seeks review of a district court order partially quashing a subpoena duces tecum on fifth amendment grounds. For reasons set forth in the discussion that follows, the orders of the district court will be affirmed.

I.

Press accounts identified Louis C. Johanson as a target of the pending Abscam investigation. Quoting government sources, the press reported that he had been videotaped on two occasions, July 26, 1979 and January 18, 1980, and that the latter videotape depicted him receiving a sum of money from government undercover agents posing as businessmen. Although the press did not disclose its sources, it attributed the information to federal employees.

In the course of grand jury proceedings, Johanson moved for a protective order including an evidentiary hearing to identify the federal employees who released the confidential information pertaining to the criminal investigation. ⁵ Johanson alleged that he sought their identities to enable him to move for their disqualification from participating in grand jury proceedings on the theory that their participation would taint the proceedings in violation of his fifth amendment right to an impartial grand jury. ⁶ On March 3, 1980 the district court entered an order denying Johanson's motion for permission to investigate the identities of the persons responsible for the unauthorized disclosures. Johanson appeals the denial and alternatively seeks mandamus to compel the district court to grant the requested hearing to investigate and identify the source of the leaks.

On February 2, 1980 Johanson met with agents of the Federal Bureau of Investigation and described particular documents which might be of evidentiary value to the Abscam investigation. Johanson, an attorney and Philadelphia City Councilman, entered into discussions through his original counsel regarding turning these documents over to the F.B.I. Subsequently he retained new counsel who sent a letter to the prosecutor, dated February 6, 1980, itemizing the documents Johanson had placed in his possession for purposes of professional advice and informing the prosecutor of Johanson's refusal to transfer the documents to aid the investigation. The grand jury then subpoenaed Johanson's counsel to produce the documents itemized in the February 6 letter. ⁷ Counsel moved to quash the subpoena on grounds of the attorney-client privilege and Johanson's fifth amendment privilege. ⁸ Johanson was permitted to intervene in the motion to quash by the district court and he therefore has standing here to defend the district court decision quashing a portion of the subpoena. In orders dated March 17, and March 28, 1980, the motions to quash were partially granted. The district court quashed the portions of the subpoena requiring production of Johanson's pocket-size appointment books for the years 1979 and 1980 which Johanson kept on his person. The district court reasoned that the appointment books were Johanson's personal papers, that submission would constitute authentication, a testimonial act, and that matter in the appointment book would tend to incriminate him. For these reasons the district court concluded that the grand jury could not compel production because to do so would violate Johanson's fifth amendment right to be free from self-incrimination. The government here appeals the orders denying production of Johanson's two appointment books.

Johanson has requested that this court stay the grand jury proceedings to prevent his being indicted before resolution of the issues presented by this appeal. We have refused to interrupt the grand jury's investigation or to delay its decision as to whether or not criminal proceedings should be instituted against Johanson. "The grand jury's investigative powers must be broad if its public responsibility is adequately to be discharged." United States v. Calandra, 414 U.S. 338, 344, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1973). See In re Grand Jury Proceedings, (U.S. Steel), 525 F.2d 151 (3d Cir. 1975) (vacating an order that stayed grand jury proceedings). On May 22, 1980, the grand jury returned an indictment against Louis C. Johanson.

II.

We turn to the question whether the district court abused its discretion in denying an investigation into the source of the unauthorized disclosures. The district court order was entered while the grand jury investigated Johanson's activities. As an initial matter we must determine whether this is an appealable order which we have the power to review. The question is whether a preindictment order denying a motion for an evidentiary hearing is an order which is immediately appealable as a collateral order under Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949).

Johanson has founded his claim of appealability on the general rule of this court which permits appeals from orders denying disqualification of counsel. See, e. g., Ackerly v. Red Barn Systems, Inc., 551 F.2d 539 (3d Cir. 1977); Kroungold v. Triester, 521 F.2d 763 (3d Cir. 1975). Cf. In re Fine Paper, 617 F.2d 22 (3d Cir. 1980). Although he characterizes the order as one denying disqualification of the prosecutor from participating in grand jury proceedings, such characterization is premature, if not inaccurate. The motion Johanson made requested a discovery device in the form of an evidentiary hearing to learn who disclosed the confidential information. His request was denied by the district court. No motion to disqualify has been made. Therefore no motion to disqualify has been denied. The appealability rule governing disqualification of counsel cannot serve as the jurisdictional prerequisite here.

Appeals before a final judgment terminating the criminal proceedings in the district court are strongly disfavored. ⁹ For an order to be appealable before a final judgment, it must meet the requirements of the collateral order doctrine. These requirements, originally formulated in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-1226, 93 L.Ed.2d 1528 (1949), ¹⁰ have recently been restated by the Supreme Court in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978): the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.

The order of the district court, denying the evidentiary hearing, does not satisfy two of the three criteria for immediate appealability. Although it is collateral to the issue of Johanson's innocence or guilt, it is capable of effective review after final judgment, and therefore no irreparable harm will result by delayed review. Moreover, it does not conclusively determine the disputed question.

Johanson moved for the evidentiary hearing to learn who had divulged information to the news media in order to have them disqualified from participating in grand jury proceedings. He did this in order to protect his fifth amendment guarantee of indictment by an impartial grand jury. But flawed grand jury proceedings can be effectively reviewed by this court and remedied after a conviction has been entered and all criminal proceedings have been terminated in the district court. E. g., Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1955) (Post conviction review of sufficiency of the basis for grand jury's issuance of indictment). Because delayed appellate review will not irreparably deny Johanson his right to an impartial grand jury (his conviction could be reversed if at a later stage we conclude the grand jury was tainted), the order is not reviewable immediately as a collateral order. Cf. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (permitting jurisdiction over a pretrial denial of a motion to dismiss indictment on double jeopardy grounds because of the guarantee that a defendant not be twice put in jeopardy, i. e., not twice placed on trial).

Furthermore, the issue whether Johanson should have the opportunity to learn who...