In re Special Grand Jury 89-2
| Decision Date | 15 June 2006 |
| Docket Number | No. 04-1193.,No. 04-1215.,04-1193.,04-1215. |
| Citation | 450 F.3d 1159 |
| Parties | In re SPECIAL GRAND JURY 89-2, Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jonathan Turley, George Washington Law School, Washington, D.C., and Kenneth E. Peck, Bushell & Peck, Denver, CO, (Bette K. Bushell, Bushell & Peck, Denver, CO, with him on the brief) for the Appellants.
Jerry N. Jones, Assistant United States Attorney (William J. Leone, Acting United States Attorney, with him on the brief), Denver, CO, for the Appellee.
Before MURPHY, EBEL, and HARTZ, Circuit Judges.
Federal Rule of Criminal Procedure 6(e) prohibits grand jurors, court reporters, government attorneys, and others from disclosing "a matter occurring before the grand jury." The rule contains several exceptions authorizing disclosure to certain government attorneys and other government officials in specified circumstances, and permitting a court to authorize disclosure in other limited circumstances. Appellants were members of a federal grand jury empaneled in 1989 to investigate possible environmental crimes at the Rocky Flats Nuclear Weapons Plant (Rocky Flats) in Colorado. They were discharged on March 24, 1992, on the eve of a plea agreement between the United States Attorney and Rockwell International Corporation (Rockwell), the operator of the facility under contract with the Department of Energy (DOE) from 1975 through 1989. At that time the grand jury submitted to the district court a report of its findings. In January 1993 the district court publicly released a heavily redacted version of the report.
On August 1, 1996, almost all the members of the grand jury filed with the district court a petition requesting that the secrecy obligation imposed on them by Rule 6(e) be lifted so that they could give an "accurate account" of certain matters that had occurred before the grand jury. Aplt.App. at 8. Later they added requests to release a less redacted version of the report, along with portions of the grand jury transcript and certain sealed filings from this case. They contend that some of this material is not governed by Rule 6(e); that some can be released under the exceptions in Rule 6(e); and that insofar as Rule 6(e) does not authorize disclosure of other material, the district court has inherent power to do so. One of the grand jurors, Appellant Kenneth Peck, has also separately filed a similar petition. The district court denied both petitions, believing that it lacked jurisdiction because the petitions sought only an advisory opinion and therefore did not present a Case or Controversy under Article III of the United States Constitution. Appellants filed two notices of appeal, one by Appellant Peck and one by the others. We have jurisdiction under 28 U.S.C. § 1291.
On appeal the government contends that Appellants' notices of appeal were untimely because they did not meet the 10-day deadline for appeals in criminal cases, and that the district court lacked jurisdiction because the petitions sought an advisory opinion and Appellants lacked standing. We disagree, holding that the notices of appeal satisfied the time limits for appeals in civil cases and that the district court had jurisdiction. We therefore reverse and remand for further proceedings, providing some guidance to the district court regarding the scope of Rule 6(e).
Rocky Flats is owned by the United States. It produced components for nuclear weapons until it was shut down more than 10 years ago. From June 30, 1975, through 1989 it was operated by Rockwell. In 1987 the FBI began investigating possible environmental crimes occurring at Rocky Flats, and on August 1, 1989, the United States District Court for the District of Colorado empaneled Special Grand Jury 89-2 for further investigation. The grand jury met for more than two and one-half years, examined hundreds of boxes of evidence, and heard testimony from more than 100 witnesses. Plea negotiations between prosecutors and Rockwell began in 1990 and culminated in an agreement on March 26, 1992, two days after the grand jury was formally discharged. Rockwell pleaded guilty to five felonies and five misdemeanors and agreed to pay a fine of $18.5 million. The plea agreement was accepted by the district court on June 1, 1992.
At the end of its service on March 24, 1992, the grand jury submitted to the district court a report of its findings; draft indictments purporting to charge current and former Rockwell and DOE employees with crimes; and documents, designated as "presentments," that alleged wrongdoing without any formal charges. See In re Grand Jury Proceedings, 813 F.Supp. 1451, 1456 (D.Colo.1992). The United States Attorney refused to sign the indictments. On September 25, 1992, the supervising court issued an order prohibiting the report from being released to the public. See id.
A newspaper and a television station then filed a petition with the district court seeking release of the report, draft indictments, and presentments. The court denied much of the petition. It rejected the request for the draft indictments, noting that grand juries cannot initiate a prosecution or issue an indictment without the signature and approval of a United States Attorney. Id. at 1461-62. The request for the "presentments" was likewise denied because presentments are "considered obsolete in the federal system" and are "no longer included by statute as a charging document." Id. at 1462 (internal citations omitted).
As for the report, the district court acknowledged that grand juries may issue reports, see 18 U.S.C. § 3333, but it refused to release in full the report prepared by this grand jury, saying:
The Court explained to the Special Grand Jury the detailed requirements of how to submit a report for public view. The Grand Jury held in its hands a unique opportunity to enlighten a community entitled to know of the successes and failures of its government, in this case, the operation of Rocky Flats. Accordingly, we must be clear on this point: it was possible for the special grand jury to draft an acceptable report, a report which the Court could, in good conscience, release to public view. It is with great regret that the Court has watched the Special Grand Jury fall short of the objectives of its empaneling. The Grand Jury submitted documents that failed the legal requirements for release.
Id. at 1459.1 The court added, however, that "it may be that portions of the Report may legitimately be disclosed in order to enlighten the community on matters dealing with health, safety, and environmental concerns." In re Grand Jury Proceedings, 813 F.Supp. at 1468. It therefore ordered the government to produce a redacted copy of the report for in camera review for possible release. Id.
The court rejected some of the government's proposed redactions, but did redact "passages of legal argumentation and unsubstantiated, inappropriate charges against nongovernmental entities" as well as "material highly critical of identifiable individuals, forays into recommendations on national nuclear facilities policy, charges against entities beyond the scope of the Grand Jury's inquiry, conclusions without any factual bases whatsoever, and discussions of policy or activities outside the Grand Jury's charged jurisdiction . . . ." Aplt.App. at 247 n. 4 (Order Re Release of Grand Jury Docs. at 4, Jan. 26, 1993). The court ordered release of the redacted report. No grand juror was a party to any of these proceedings.
On August 1, 1996, eighteen members of the grand jury (Appellants) filed a petition with the district court "seeking permission to release information and freedom to speak publicly about their experience as grand jurors and their perceptions of the conduct of government employees and Department of Justice lawyers." App. A at 17 (Order on Sealed Pets. at 2, March 12, 2004). An open hearing on the petition was held on November 26, 1996. One of Appellants' attorneys, Jonathan Turley, was instructed to file a proffer detailing the occurrences before the grand jury that Appellants wished to discuss publicly. The proffer was filed under seal in February 1997.
The matter was then referred to a magistrate judge to conduct a "non-adjudicatory hearing at which time sworn testimony will be given by former members of Grand Jury 89-2 relating to conduct or events which they allege have occurred." Aplt. App. Vol. 2 at 257. The district court ordered that the proceeding be closed, advising that this testimony was subject to the secrecy requirements of Rule 6(e). Testimony was taken from several of the grand jurors and sealed transcripts were delivered to the district court.
On September 24, 1997, the district court granted a motion relieving Mr. Turley and co-counsel Joan Manley from representation of Appellant Kenneth Peck. Bette K. Bushell continued to represent Appellant Peck but withdrew as counsel for the other 17 Appellants. (We will refer to the 17 Appellants still represented by Mr. Turley and Ms. Manley as "the Turley Appellants.") On September 26, in a sealed motion, Mr. Turley requested release to the parties of the transcripts of the grand jurors' testimony. On October 15 the district court ordered that the transcripts of the sealed hearing be released to the United States Attorney, as well as to Ms. Bushell and Mr. Turley, subject to the secrecy requirements of Rule 6(e), "for the limited purpose of pursuing this matter before this court and for no other purpose." Id. at 269. On December 30, 1997, Mr. Peck submitted a "Memorandum Concerning Proposed Procedure for Litigating the Issues." Aplee. Supp.App. Vol. B at 396. The district court did not act on the memorandum. Nothing further occurred in the case for more than five years.
On April 22, 2003, in response to a letter from one of the grand jurors, the district court issued an order directing that "respecti...
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