In re Grand Jury of Southern Dist. of Alabama, Crim. No. 80-00024-B.

• Decision Date: 30 May 1980
• Docket Number: Crim. No. 80-00024-B.
• Citation: 508 F. Supp. 1210
• Parties: In re GRAND JURY OF the SOUTHERN DISTRICT OF ALABAMA.
• Court: U.S. District Court — Southern District of Alabama

508 F. Supp. 1210

In re GRAND JURY OF the SOUTHERN DISTRICT OF ALABAMA.

Crim. No. 80-00024-B.

United States District Court, S. D. Alabama, S. D.

May 30, 1980.

William A. Kimbrough, Jr., U. S. Atty., Ginny S. Granade, Asst. U. S. Atty., Mobile, Ala., for plaintiff.

James F. Holderman, Sonnenschein, Carlin, Nath & Rosenthal, Darrell McGowen, McDermott, Will & Emery, Chicago, Ill., Alton R. Brown, Jr., Mobile, Ala., for defendants.

MEMORANDUM OF DECISION

HAND, District Judge.

On April 15, 1980, the grand jury, sitting in the Southern District of Alabama, indicted E. A. Gregory, Vonna Jo Gregory, and three others for bank fraud. The indictment consisted of twelve separate counts. United States v. E. A. Gregory et al., 508 F.Supp. 1218 (S.D.Ala.1980). After considering various arguments by the defendants attacking the sufficiency of the indictment, the Court held that the indictment contained fatal defects; on May 27, 1980 it dismissed the indictment as against all of the defendants.

On May 29, 1980 the Gregorys filed a motion to stay and terminate all grand jury proceedings in the Southern District of Alabama insofar as those proceedings related to or dealt with the Gregorys. As grounds for their motion, the Gregorys cited: 1) abusive prosecutorial conduct violative of the secrecy requirement of Fed.R.Crim.P. 6(e); 2) prejudicial publicity in the Southern District which was allegedly "designed to inflame the public and the grand jurors against the Gregorys,"; and 3) violations of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1867. For the reasons set forth below the Court denies the motion to stay and terminate the grand jury proceedings.

I. Jurisdiction

Federal courts are not common law courts of general jurisdiction. Limited by the case-and-controversy requirement of article III of the Constitution¹ and the further requirement that Congress must provide, in the usual case, a statutory grant of jurisdiction,² the first inquiry which the Court must address is the precise basis upon which its jurisdiction rests.

"The grand jury has been variously viewed as an arm of the court, as an instrumentality of the people, and as an adjunct of the judiciary but with power to act, within certain bounds, independently of the traditional branches of government." United States v. Briggs, 514 F.2d 794, 806 (5th Cir. 1975). (footnotes omitted).³ No express act of Congress specifically provides that federal courts shall maintain supervision over a sitting grand jury.⁴ The general rule is, however, that, whatever the source of the power, "the powers of the grand jury are not unlimited and are subject to the supervision of a judge ...." Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972); e. g., United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974) ("judicial supervision" limits grand jury's power in light of common law and the Constitution). So, for the purposes of this motion, a motion in which the district court is asked to exercise its supervisory authority, the Court need not inquire into the specialized motions which help to form the case-or-controversy requirement: ripeness⁵ and standing.⁶ But cf. United States v. Briggs, 514 F.2d 794 (5th Cir. 1975) (When named as unindicted coconspirators in a federal indictment, before the propriety of grand jury action may be challenged the requirements of article III must be met by those bringing challenge.).⁷

II. Prosecutorial Conduct and Rule 6(e)

A. The Allegations

Having resolved certain threshold issues, the Court turns to the merits of the motion. Several newspaper reports which reported the May 27th dismissal of the Gregorys' indictment either quote the U. S. Attorney, William A. Kimbrough, or acknowledge him as being the source of information regarding the future intentions of the government with respect to the Gregorys. The petitioners argue that these news reports evidence a breach of the grand jury secrecy. Fed.R. Crim.P. 6(e). They contend that the purpose of "such widespread media-mongering by the chief federal prosecutor of this District," Petitioners' Brief at 2, is "to inflame and prejudice the public and the grand jury against the Gregorys." Id. Petitioners urge the Court to stay further grand jury proceedings related to the Gregorys until the Court determines, at a hearing on the matter, the scope of the "prosecutor's prejudicial actions and the motivation behind those actions." Id. at 1221.

B. A Prima Facie Case

The Fifth Circuit, in a case of first impression, has recently examined the issue of when a person alleging a violation of Rule 6(e) based upon news media reports has established a prima facie case and the appropriate remedy where a violation is made out. In In re Grand Jury Investigation, 610 F.2d 202 (5th Cir. 1980), the court noted two general classes of remedies for a Rule 6(e) violation. The first class of remedies include dismissal of the indictment, quashing a subpoena, and dismissal of the grand jury.

A criminal defendant who seeks to obtain dismissal of an indictment, a person subpoenaed to testify before the grand jury who requests the court to quash the subpoena, or the target of an ongoing grand jury investigation who seeks to have the grand jury dismissed bears a heavy burden in attempting to justify such relief.

Id. at 219 (emphasis added; footnote omitted). The second class of remedies include contempts;⁸ a prima facie case to secure a hearing on whether to impose contempt sanctions does not require "as strong a showing" as is need in the first class of remedies. Id.

The remedy which the petitioners seek for the alleged Rule 6(e) violation is dismissal of the grand jury. Such a remedy, if granted, would be a serious interference with the grand jury process. The petitioners have, in the opinion of the Court, failed to carry their "heavy burden in attempting to justify such relief." 610 F.2d at 219. Even if the Court takes as true the allegations of the petitioners that the U. S. Attorney was the source of the information contained in the published newspaper articles,⁹ and further assuming that the disclosures are covered by Rule 6(e), the Court holds that the petitioners have failed to carry the heavy burden necessary to warrant the type of extreme interference with the grand jury process requested by the petitioners. Even at the stage in a criminal proceeding where courts occasionally intervene and bar further prosecution by dismissing an indictment because it is technically defective or violative of due process. see, e. g., p. 1214 infra (discussing due process and prosecutorial vindictiveness), "it does not appear that any indictment has thus far been dismissed on the ground" that it was "induced by prejudicial publicity". 8 Moore's Federal Practice ¶ 6.034, at 6-61 (2d ed. 1979); United States v. Tallant, 407 F.Supp. 878 (N.D.Ga. 1975); United States v. Mitchell, 372 F.Supp. 1239 (S.D.N.Y.), appeal dismissed sub nom., Stans v. Gagliardi, 485 F.2d 1290 (2d Cir. 1973); United States v. Archer, 355 F.Supp. 981 (S.D.N.Y.1972), rev'd on other grounds, 486 F.2d 670 (2d Cir. 1973); United States v. Sweig, 316 F.Supp. 1148 (S.D. N.Y.), aff'd, 441 F.2d 114 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1970); United States v. Kahaner, 204 F.Supp. 921 (S.D.N.Y.1962), aff'd, 317 F.2d 459 (2d Cir.), cert. denied sub nom., Corallo v. United States, 375 U.S. 835, 84 S.Ct. 62, 11 L.Ed.2d 65 (1963) and Keogh v. United States, 375 U.S. 836, 84 S.Ct. 73, 11 L.Ed.2d 65 (1963). This Court will not bar a potential investigation by the grand jury on the basis of pre-indictment publicity when the settled law is that pre-indictment publicity is an inadequate grounds upon which to base the dismissal of an otherwise properly returned indictment. Were the Court to grant the petitioners' motion on the basis of the factual grounds alleged the public's interest in the fair administration of criminal justice would be dealt a severe blow.

C. A Constitutional Violation?

As already noted, the contention of the petitioners that the Court should stay or dismiss grand jury proceedings as they may relate to the Gregorys does not withstand analysis under general principles of federal common law. Likewise, neither do constitutional safeguards afford the relief which the petitioners seek.

The unarticulated thrust of the petitioners' motion is to have this Court enjoin the U. S. Attorney from pursuing whatever plans, if any, which he may have for prosecuting the Gregorys. This approach is seriously defective. Whatever collateral attacks an indictment may be subject to after it is returned, it is the exclusive authority and absolute discretion of the U. S. Attorney to decide whether to prosecute a case. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). "As an incident of the constitutional separation of powers, ... the courts are not free to interfere with the free exercise of the discretionary powers of the attorneys of the United States over criminal prosecutions." United States v. Cox, 342 F.2d 167, 171 (5th Cir.) (en banc), cert. denied sub nom., Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). Only in those rare situations where the decision to prosecute is so abusive of prosecutorial discretion as to encroach on constitutionally protected due process rights will the judiciary intervene. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (prosecutorial vindictiveness may amount to a due process violation where reindictment charged more serious crimes); Jackson v. Walker, 585 F.2d 139 (5th Cir. 1978) (prosecutorial vindictiveness); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977) (prosecutorial vindictiveness). But the prosecutor is never enjoined by the courts from exercising his discretion to present evidence to the grand jury prior to indictment. Prior to indictment, the grand jury...