IN RE GRAND JURY JANUARY, 1969

• Decision Date: 22 June 1970
• Docket Number: Misc. No. 713.
• Citation: 315 F. Supp. 662
• Parties: In re Presentment of Special GRAND JURY Impaneled JANUARY, 1969. Petitions of John DOE et al., to Suppress and Expunge.
• Court: U.S. District Court — District of Maryland

315 F. Supp. 662

In re Presentment of Special GRAND JURY Impaneled JANUARY, 1969.

Petitions of John DOE et al., to Suppress and Expunge.

Misc. No. 713.

United States District Court, D. Maryland.

June 22, 1970.

George Beall, U. S. Atty., Paul R. Kramer, Dep. U. S. Atty., Baltimore, Md., and Michael Abbell, Attorney, Department of Justice, Washington, D. C., for the Government.

Paul R. Connolly, Harold Ungar and Williams & Connolly, Washington, D. C., William L. Marbury, John Martin Jones, Jr., George A. Nilson and Piper & Marbury, Norman P. Ramsey, Thomas J. S. Waxter, Jr., and Semmes, Bowen & Semmes, Baltimore, Md., and William G. Hundley and Hundley & Peloquin, Washington, D. C., for petitioners.

Melvin J. Sykes, Baltimore, Md., amicus curiae by appointment of the Court.

THOMSEN, Chief Judge^*.

A Special Grand Jury impaneled by Judge Kaufman of this Court in January 1969 has been investigating certain matters brought to its attention by the United States Attorney then in office, Stephen H. Sachs, and has returned a number of indictments not relevant here.

For many months newspapers and other media in Baltimore and Washington have reported that the Grand Jury was investigating the activities of various persons in connection with the claims of Baltimore Contractors, Inc., arising out of the construction by that company of the Rayburn Garage in Washington, D. C., for the United States.

The media have also suggested that various persons holding public office were involved, and some of those persons have issued public statements denying their involvement. Others have remained silent. They should not be criticized or suspected of wrongdoing because they have not answered anonymous suggestions.

On May 28, 1970, in open court, the Deputy Foreman of the Grand Jury¹ read to the Court from a paper captioned "Presentment", which stated that in the course of the investigation conducted by the Grand Jury, they had heard from a great many witnesses and reviewed many documents which had been presented to them for consideration, and that the Grand Jury was prepared to return an indictment charging certain defendants with violations of the laws of the United States in this district. He said that the United States Attorney, Stephen H. Sachs, concurred, but that Mr. Sachs had advised him that the Attorney General had so far refused to authorize him to sign an indictment the Grand Jury believed to be appropriate.

The Deputy Foreman said the Grand Jury had been advised that in the absence of the signature of the United States Attorney or of some other attorney acting on behalf of the United States, the indictment they were prepared to return would be of no effect. He further said that in view of the foregoing, and pursuant to a secret vote conducted by the Grand Jury, the results of which were sealed in an attached envelope, the Grand Jury was now exercising what they claimed to be their power to return a presentment to this Court, based on the investigation they had conducted during their term, and requested that formal charges identical or substantially similar to the draft indictment they were presenting to the Court be drawn and signed by appropriate officials of the Department of Justice.

The Deputy Foreman then delivered to the Court two sealed envelopes, one containing a form of a proposed indictment not signed by either the Deputy Foreman or the United States Attorney, and one containing a certification of the number of Grand Jurors who voted for the Presentment.

United States Attorney Sachs then stated that he confirmed the statements as to his views and the refusal of the Department of Justice up to that time to authorize his signature.

The Court had been told the day before by the United States Attorney that the Grand Jury intended to make a presentment.² The Court had made a necessarily brief examination of the law, including a careful reading of the four opinions in United States v. Cox, 342 F. 2d 167 (5 Cir. 1965). Those opinions state divergent views on many of the questions raised.

The Court made the following reply to the Grand Jury: "I know of no clear binding authority as to whether this presentment should be made public or should be kept secret. There are arguments in favor of making it public and arguments in favor of keeping it secret. Therefore, I am delivering it to the Clerk to keep the sealed presentment in his safe for the time being, at least. I instruct Mr. Sachs to send a copy of the presentment with the exception of the sealed vote to the Attorney General. The Court suggests to the Attorney General that after giving it consideration he make through his representatives whatever response to the Grand Jury he deems appropriate. In any event, the Court instructs the Attorney General to inform the Court within one week from today whether the Department of Justice wishes the Court to keep the presentment secret or to make it public. After hearing from the Department and considering all relevant factors, the Court will decide whether the presentment should be made public or kept secret. In the meantime, members of the Grand Jury, as you know from your long service here, you should not divulge the contents of the presentment or anything in connection therewith to anyone unless and until you are told by the Court that you may do so."

Several weeks before May 28, Mr. Sachs had announced that he was resigning as United States Attorney, effective May 30, to resume private practice. On June 1 the Judges of this Court unanimously appointed George Beall to be United States Attorney for this District, pursuant to 28 U.S.Code sec. 546. On June 3 the Government, by the United States Attorney and Michael Abbell, Attorney, Department of Justice, who had aided the United States Attorney in the investigation, moved that the Court's decision with respect to the unsealing of the presentment be postponed until June 17, in order to afford the new United States Attorney sufficient opportunity to review the matter and to afford the Department of Justice an opportunity to continue its own review, so that a prompt determination could be made upon the receipt of Mr. Beall's recommendation.

The Government also stated that it was desirable that any decision reached by the United States Attorney and the Department of Justice be discussed with the Grand Jury prior to the Court's rendering its decision on the unsealing of the Presentment; and because the Grand Jury was not scheduled to convene until June 10, the Government requested that the Court postpone its decision until at least that date.

However, for the reasons stated above, the Government took the position that merely postponing the decision on the unsealing of the presentment until June 10 would not afford an adequate opportunity to reach a determination as to the manner in which it wished to proceed, and therefore requested the Court to defer the next meeting of the Grand Jury until June 17, 1970, and to postpone its decision on the unsealing of the presentment until after that meeting.

The Court agreed that the decision on the unsealing of the presentment should be postponed until June 17, but did not agree that the meeting of the Grand Jury be postponed, stating: "It seems highly desirable that Mr. Beall, the new United States Attorney for this District, who has not yet met with that Grand Jury, meet with them on June 10 and hear their views before making his final recommendation to the Attorney General".

Mr. Beall met with the Special Grand Jury on June 10. Toward the end of that meeting the Deputy Foreman and Mr. Beall left the jury room, came to the Court in camera and told the Court that the Grand Jury wished to find and return an indictment, whether or not it was signed by the United States Attorney. Acting upon the authority of a majority of the judges in United States v. Cox, supra,³ the Court advised the Deputy Foreman in the presence of the United States Attorney that the United States Attorney was permitted and perhaps required to prepare a proposed indictment, as requested by the Grand Jury, but that the Court could not require him to sign it, and that the effect of an "indictment" not signed by an attorney for the Government was not clear.

On June 15, after their counsel had told the Court on June 12 that they intended to do so, John Doe, Richard Roe and Peter Poe filed a Petition in this Court under Rule 47, F.R.Crim.P., stating that they had reason to believe that each had been the subject of investigation by the Special Grand Jury of this District impaneled in January 1969, and that each is prominently mentioned by his correct name in a certain paper delivered sealed to this Court under date of May 28, 1970, and asking the Court "for an order suppressing from public disclosure and expunging from the records of this Court that certain report entitled `Presentment', and its attachments, Exhibits A and B, made on May 28, 1970 by Warren Taylor, Deputy Foreman of the Special Grand Jury of January 1969", for reasons which were more fully developed in an attached memorandum in support of the Petition.⁴

One of the attorneys who signed the Petition asked the Court whether the hearing on the Petition and any further proceedings in connection with the matter could be held in camera rather than in open court. The Court refused to commit itself so broadly at that time, but assured counsel that no action disclosing the names of any petitioners charged or mentioned in the indictment would be made public until such persons had an opportunity to seek a writ of prohibition from the United States Court of Appeals for the Fourth Circuit and agreed to discuss further with counsel whether particular sessions or parts thereof should be held in camera or in open court.

On June 12 the Court asked Melvin J. Sykes, a highly respected member of the Bar of this Court, to advise the Court on the legal questions which had been raised and which might be raised...