Matter of Electronic Surveillance

• Citation: 596 F. Supp. 991
• Decision Date: 01 November 1984
• Docket Number: Misc. No. 84-819.
• Parties: In the Matter of ELECTRONIC SURVEILLANCE.
• Court: U.S. District Court — Western District of Michigan

596 F. Supp. 991

In the Matter of ELECTRONIC SURVEILLANCE.

Misc. No. 84-819.

United States District Court, E.D. Michigan, S.D.

November 1, 1984.

COPYRIGHT MATERIAL OMITTED

Martin Crandall, Asst. U.S. Atty., Detroit, Mich., Michael Schwartz, Atty. Grievance Com'n, State Bar of Michigan, Lansing, Mich., for petitioner.

Philip Colista, N.C. Deday LaRene, Detroit, Mich., for respondent.

MEMORANDUM OPINION

RALPH M. FREEMAN, Senior District Judge.

This matter is before the court on the motion of the Grievance Administrator of the Michigan Attorney Grievance Commission for disclosure, pursuant to 18 U.S.C. § 2517, of information gleaned from Title III electronic surveillance which allegedly incriminates certain members of the State Bar of Michigan. Although no federal or state criminal charges are pending against the attorneys involved, the Grievance Administrator believes that the information sought may lead to State Bar disciplinary proceedings against the attorneys. Neither the Grievance Administrator nor the court knows the identity of the attorneys involved or the precise nature of the allegedly incriminating information. The few facts which are known to the court will be discussed as they become relevant during the course of this opinion.

All parties agree that the Grievance Administrator's motion raises issues of first impression. The court must first determine whether disclosure to the Grievance Administrator by the Department of Justice Strike Force is authorized by the federal wiretap statute.¹ Second, the court must decide if the information sought constitutes matters occurring before a grand jury protected by the general rule of grand jury secrecy.² If so, the third issue before the court is whether disclosure is permissible under the exception to the general rule of secrecy relied upon by the Grievance Administrator.³ If not, the court must decide if disclosure is warranted by the "inherent power" doctrine recently recognized by the Eleventh Circuit.⁴

I. Title III

Electronic surveillance is governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968.⁵ All electronic surveillance not explicitly provided for in the Act is effectively prohibited.⁶ The federal statutory scheme "has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized."⁷

Section 2517 of Title 18, U.S.C., authorizes disclosure and use of intercepted wire and oral communications under certain specified circumstances.⁸ The Grievance Administrator relies upon subsection (1) of section 2517, which states:

Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.⁹

This subsection only authorizes disclosure to an "investigative or law enforcement officer," which is defined under Title III to mean

any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.¹⁰

This definition, therefore, raises the issue of whether the Grievance Administrator is "empowered by law to conduct investigations ... for offenses enumerated in this chapter...."¹¹

Michigan General Court Rule 957.1 states that "the Attorney Grievance Commission is the prosecution arm of the Supreme Court for discharge of its constitutional responsibility to supervise and discipline Michigan attorneys."¹² The Grievance Administrator is appointed by the Attorney Grievance Commission¹³ and has the power and duty to "investigate alleged misconduct of attorneys, including serving a request for investigation in his own name."¹⁴ Misconduct is defined to include "conduct that violates a criminal law of a state or of the United States."¹⁵ The Grievance Administrator clearly seems to be an officer empowered to investigate the offenses enumerated in 18 U.S.C. § 2516 when those offenses are committed by members of the State Bar of Michigan. Under the disciplinary system established in Michigan, the Grievance Administrator's receipt and use of the electronic surveillance information would be appropriate to the proper performance of his official duties.¹⁶

This conclusion is in accord with Title III's broad purpose of encouraging cooperation between federal and state officers.¹⁷ This broad view is reflected in the Ninth Circuit's decision in United States v. Hall, which held that section 2517(1) authorized disclosure to state officers of information gleaned from electronic surveillance even though the state officers were prohibited by state law from engaging in electronic surveillance.¹⁸ Although the Grievance Administrator seeks the information for disciplinary purposes rather than criminal prosecution, this is not a case where the conduct sought to be investigated in not also alleged to be criminal conduct for which electronic surveillance is authorized by section 2516.¹⁹ The conduct sought to be investigated is alleged to be criminal conduct enumerated in section 2516. The court holds, therefore, that disclosure of the electronic surveillance information to the Grievance Administrator is authorized by 18 U.S.C. § 2517(1).

II. Rule 6(e) — Grand Jury Secrecy

A. Matters Occurring Before the Grand Jury

The general rule of grand jury secrecy applies to "matters occurring before the grand jury."²⁰ The information sought in the present motion is the fruit of an investigation commenced by the Justice Department Strike Force in approximately January 1982. Grand jury subpoenas were issued to obtain some technical data to allow the FBI to conduct the electronic surveillance. Electronic surveillance began on January 29, 1982, for a thirty day period. A second electronic surveillance order was issued February 25, 1982, for a thirty day period. The first electronic surveillance was in Saginaw and Flushing. The second surveillance occurred in Ann Arbor. During the course of the surveillance, the FBI shared the fruits of the electronic surveillance with state law enforcement officers. The investigation continued into 1983 and several indictments issued, all of which went to litigation.

The electronic surveillance resulted in approximately 400 or 500 hours of intercepted conversations. A small portion of this material was played to a grand jury when the government sought indictments. The Grievance Administrator is seeking disclosure of approximately two hours of surveillance materials which were not played to any grand jury. That surveillance material consists of conversations between respondents and others.

The attorney for the United States argues that the fact that some technical information necessary to the surveillance was obtained by way of grand jury subpoena and the fact that a small portion of the intercepted communications was played to a grand jury do not make the whole 400 or 500 hours of surveillance constitute "matters occurring before a grand jury." The attorney for the government stated that the portions of the surveillance which were played to the grand jury became public when played at subsequent trials.

The scope of grand jury secrecy is broader than a literal reading of Rule 6(e) would imply. It can be said that Rule 6(e) applies to anything which may reveal what happened in the grand jury room.²¹ If the information sought does not reveal anything about the grand jury proceedings, secrecy is unnecessary.²² The mere fact that certain evidence is reviewed by a grand jury does not convert it into a "matter occurring before the grand jury" within the meaning of Rule 6(e).²³ The party objecting to production has the burden of proving that the policy of grand jury secrecy would be jeopardized so as to bring the request for production within the scope of Rule 6(e).²⁴

There are five reasons for the policy of grand jury secrecy:

(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witness who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.²⁵

The first three reasons for secrecy do not apply where, as in this case, the grand jury has completed its investigation, and the fifth reason does not apply where the grand jury has returned an indictment.²⁶ Continued secrecy after the conclusion of the investigation, however, protects the reputations of the innocent, safeguards witnesses from possible retaliation, and encourages persons to testify fully and freely before future grand juries.²⁷

The court concludes that disclosure of the materials sought here will not implicate the reasons for secrecy which exist after the grand jury's investigation is ended. Disclosure of the electronic surveillance material to the Grievance Administrator will not disclose the identity of witnesses who testified before the grand jury. Even if the identities of the witnesses were disclosed to the Grievance Administrator, such...