In re Grand Jury Investigation of Banana Industry

• Decision Date: 08 March 1963
• Docket Number: Misc. No. 156.
• Citation: 214 F. Supp. 856
• Parties: In the Matter of GRAND JURY INVESTIGATION OF the BANANA INDUSTRY.
• Court: U.S. District Court — District of Maryland

214 F. Supp. 856

In the Matter of GRAND JURY INVESTIGATION OF the BANANA INDUSTRY.

Misc. No. 156.

United States District Court D. Maryland.

March 8, 1963.

Robert L. Wright, First Asst., Antitrust Div., Dept. of Justice, Andrew J. Kilcarr, Jerome A. Hochberg, Donald J. Williamson and Margaret H. Brass, Attys., Dept. of Justice, Washington, D. C., for United States.

Hugh B. Cox, Washington, D. C., and John Henry Lewin, Baltimore, Md., for United Fruit Co.

THOMSEN, Chief Judge.

A motion filed herein by the Antitrust Division of the Department of Justice (the Division) requires the Court to construe and apply Rule 6(e), F.R.Crim.P., which reads in pertinent part: "Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding * * *. No obligation of secrecy may be imposed upon any person except in accordance with this rule. * * *"

In March, 1961, a Special Grand Jury for the District of Maryland was organized to investigate the banana industry. It called a large number of witnesses, many of them officers and employees of United Fruit Company and its subsidiary and affiliated companies (referred to collectively herein as United Fruit) and issued subpoenas duces tecum calling for the production of thousands of documents. On motion of United Fruit, and after a conference with Division counsel and counsel for United Fruit, this Court entered an amended impounding order on May 23, 1961, directing that documents impounded in the custody of the Division or of the Clerk of this Court be held by them in confidence, as more specifically provided therein, and subject to further order of the Court. Thereafter, at the request of Division counsel and counsel for United Fruit, I examined several hundred documents and gave my opinion whether United Fruit might properly refuse to produce them on the ground of privilege. In the Spring of 1962 the Division decided not to request an indictment in the District of Maryland, but to seek an indictment on the West Coast, and the late Judge Chesnut discharged the Grand Jury on May 11, 1962.

On February 4, 1963, Andrew J. Kilcarr, an attorney in the Division who had participated in the aforesaid investigation, filed a petition herein, referring to the impounding order, reciting that the testimony received by the Grand Jury in this District has been transcribed, and requesting "that leave be granted the said Andrew J. Kilcarr to take as many of said documents and transcripts as be necessary to the Southern District of California and to disclose said documents and portions of said transcripts of Grand Jury proceedings heretofore held in this District to a Federal Grand Jury in the Southern District of California at Los Angeles". In support of the request it is alleged that it would be impractical, repetitious, and unnecessarily expensive to return said documents to the respondents and then subpoena them again and to take such direct testimony again. Pursuant to instructions from this Court, the Division served notice of the petition on counsel for United Fruit.

Following an informal hearing, and subject to the conditions contained in a letter dated February 8, 1963, counsel for United Fruit consented to the entry of an order granting leave to the Division to take the documents to Los Angeles for the purpose of disclosing them or any of them to the Grand Jury convened in the Southern District of California. Such an order was entered herein on February 20, 1963.

Counsel for United Fruit object to the entry of an order which would permit the Division to disclose to the Grand Jury in California such portions as the Division might select of the transcripts of oral testimony given before the Grand Jury in Maryland. They state, however, that they would not object to an order permitting the Division to submit to the Grand Jury in Los Angeles the entire transcript of the testimony of any witness who is now dead, ill or otherwise incapacitated.

It is not necessary to decide whether United Fruit has a legal right to object to the order sought by the Division. Because of the history of the proceedings before the Grand Jury in the District of Maryland and particularly the order of May 23, 1961, this Court requested counsel for United Fruit as well as counsel for the government to give this Court the benefit of their views.¹ Both sides have filed elaborate memoranda, presenting a variety of arguments, but no opinion directly in point has been cited or found.

The Division has the undoubted right to present the same matter to more than one grand jury. United States v. Thompson, 251 U.S. 407, 413-414, 40 S.Ct. 289, 64 L.Ed. 333; Application of Iaconi, D.Mass., 120 F.Supp. 589, 591; United States v. Schack, S.D.N.Y., 165 F.Supp. 371, 376. The Department of Justice has the right to use the transcripts as a source of information and to take them out of this District for that purpose. United States v. United States District Court, 4 Cir., 238 F.2d 713, 721, cert. den. sub nom. Valley Bell Dairy Co. v. United States, 352 U.S. 981, 77 S.Ct. 382, 1 L.Ed.2d 365; In re Petroleum Industry Investigation, E.D.Va., 152 F. Supp. 646. Cf. In re Petition for Disclosure of Evidence, etc., E.D.Va., 184 F. Supp. 38. But it does not follow that the Division has the right to disclose all or any part of the contents of the transcripts to a grand jury in California without the approval of this Court, which has jurisdiction over the grand jury which received the testimony. Herman Schwabe, Inc. v. United Shoe Machinery Corp., D.D.C., 21 F.R.D. 233, 235.

Counsel for United Fruit contend that disclosure to the Grand Jury in California is no different from disclosure to an individual or to a governmental agency other than the ...