MATTER OF GRAND JURY INVESTIGATION (90-3-2)

• Decision Date: 09 October 1990
• Docket Number: Misc. No. 90-0777.
• Citation: 748 F. Supp. 1188
• Parties: In the Matter of GRAND JURY INVESTIGATION (90-3-2).
• Court: U.S. District Court — Western District of Michigan

748 F. Supp. 1188

In the Matter of GRAND JURY INVESTIGATION (90-3-2).

Misc. No. 90-0777.

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

October 9, 1990.

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Richard A. Rossman, Abraham Singer, Detroit, Mich., for City of Detroit.

Norman L. Lippitt, Birmingham, Mich., for Detroit Police Chief William L. Hart.

Harold Z. Gurewitz, Detroit, Mich., Peter J. Kelley, John R. Minock, Ann Arbor, Mich., for Detroit Mayor, Coleman A. Young.

Stephen J. Markman, U.S. Atty., Alan M. Gershel and Craig A. Weier, Asst. U.S. Attys., Detroit, Mich., for U.S.

AMENDED ORDER

JULIAN ABELE COOK, Jr., Chief Judge.

This matter involves allegations of governmental misconduct that arise from the purported unauthorized disclosure of secret information and materials concerning a federal grand jury investigation in progress in this district. The petitioners¹ contend that unknown federal officials, agents, or attorneys have intentionally released confidential grand jury information to the news media in violation of Federal Rule of Criminal Procedure 6(e)(2) (Rule 6), resulting in a spate of disparaging news stories that disclosed the existence, purpose, and scope of the grand jury investigation.

The matter was initially brought to the attention of this Court on April 25, 1990 when counsel for the petitioners requested an informal conference in chambers to discuss a yet-to-be-filed motion that would address the alleged disclosures. During that conference, which included the Assistant United States Attorney who is in charge of the grand jury investigation, the petitioners asserted their belief in the existence of grand jury leaks, as well as an overriding desire to prevent all future unauthorized disclosures of grand jury information.

During that brief meeting, this Court indicated that it was inclined to preside and assume control over the matter because of the language of Rule 11 of the Local Rules of the United States District Court for the Eastern District of Michigan² and the nature of the allegations, which assail the integrity of the grand jury system in this district. The Court advised the parties that all further proceedings relating to this issue would remain confidential and under seal. Moreover, the Court indicated that it would be favorably disposed to issuing a protective order prior to, or in lieu of, addressing the merits of the City of Detroit's unfiled motion.

On April 26, 1990, the City of Detroit filed a motion for sanctions and for the issuance of a protective order, in which Chief Hart concurred. Subsequently, this Court was informed by the parties that they were in the process of drafting a proposed protective order which, if executed, might temporarily, if not permanently, alleviate their concerns. The parties eventually submitted a proposed protective order, which this Court modified in order to comply with the dictates of Rule 6 and the relevant case authority. On May 3, 1990, this Court approved, signed, and filed the modified protective order. Pursuant to agreement among counsel, the City of Detroit's motion was held in abeyance.³ On May 17, 1990 and following the publication of additional news stories about the grand jury investigation, the City of Detroit filed a "Motion to Enforce Protective Order and Supplemental Motion for Sanctions Under Rule 6(e)." On the same day, the Mayor filed a "Motion for Injunctive Relief, Sanctions, and for Issuance of Protective Order Pursuant to FRCP 6(e)." Chief Hart concurred in both motions.

In their motions, the petitioners collectively request (1) an order under Rule 6 that would prohibit further disclosures of matters occurring before the grand jury to the media by any federal agent and employee who is involved in the investigation; (2) a contempt hearing and the imposition of sanctions against those persons who have violated Rule 6; (3) an order, under the supervisory powers of the Court, which would prohibit any further disclosure of information within the documents relating to the City of Detroit Police Department's Special Operations Imprest Cash Account (the so-called "Secret Service Fund") that were produced pursuant to the grand jury subpoena; (4) an order to show cause why injunctive relief should not be granted and civil contempt sanctions should not be imposed; and (5) such other relief as the Court deems appropriate.

In view of the substantive and numerous allegations within the motions, the government requested, and this Court granted, additional time in which to respond to the motions. On May 31, 1990, the government responded to all the motions in a single pleading, a 78-page response and brief to which it appended the affidavits of government counsel and agents.⁴ On June 18, 1990, the City of Detroit filed its reply brief, and on June 20, 1990, the Mayor filed his reply brief. On July 3, 1990, the government filed a motion for leave to file a supplemental reply brief in which to respond to new allegations that had been raised by the petitioners in their reply briefs.⁵ Under Local Rule 17(l)(2), this Court will not hear oral argument but will decide the matter on the parties' submissions.

I.

A federal grand jury has been impaneled in this district purportedly to investigate (1) the Secret Service Fund, (2) the conduct of a former City of Detroit employee, Kenneth Weiner, in connection with the fund, (3) his relationship to City of Detroit officials, and (4) his involvement with Detroit Technology and Investments, Inc. (DTI), a business that is allegedly owned by the Mayor.⁶ In the course of the investigation, the grand jury has apparently issued subpoenas to several high ranking officials within the City of Detroit government, including the Mayor and Chief Hart. The grand jury also issued several subpoenas duces tecum, which resulted in the production of numerous documents relating to the operation of the fund.

Relying upon numerous newspaper stories, television reports, and affidavits, the petitioners contend that "the government, through unknown agents or employees, has engaged in a pattern and tactic of leaking information to radio, television and newspaper reporters." See City of Detroit's Motion for Sanctions, at 2 (4/26/90); Mayor Young's Motion for Sanctions, at 2 (5/17/90). The petitioners assert that the evidence upon which they rely establishes a prima facie violation of Rule 6.

The government raises several legal and factual defenses in response. It contends that (1) the only remedy for a Rule 6 violation is a criminal contempt action by this Court or the United States Attorney's Office — not an action for civil contempt and injunctive relief; (2) the petitioners lack standing to bring their motions; and (3) the petitioners have failed to make a prima facie showing of a Rule 6 violation. In large part, the government points an accusing finger at officials working within the governmental systems of the City of Detroit and the County of Wayne, contending that those officials have as much access to the sources of information, which was revealed in the media, as federal officials.

II.

The Fifth Amendment to the United States Constitution provides in pertinent part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...." The grand jury concept worked its way to the American colonies from England, where it originated with a public official summoning a group of townspeople to answer questions under oath. The original function of the grand jury was to give knowledge of local criminal violations to a centralized government. Through evolution, the function of protecting the accused by not indicting those whom the government wanted to prosecute was added. See generally The Grand Jury As An Investigatory Body, 74 Harv. L.Rev. 590, 590 (1961).

As recognized under English common law, for the system to function properly, grand jury proceedings must be conducted essentially in a vacuum, free from outside influence and sufficiently enveloped so that grand jury information is not disclosed to the general public. See Blalock v. United States, 844 F.2d 1546, 1555 (11th Cir.1988) (Tjoflat, J., specially concurring, in which Roettger, J., joins). The United States Supreme Court has recognized that this veil of confidentiality protects the interests of the government, the public at large, and the private citizen:

First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.

Douglas Oil Company v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S.Ct. 1667, 1673, 60 L.Ed.2d 156 (1979). Rule 6 codifies this rule of secrecy:

A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.⁷

(emphasis added).

III.

The crucial issue is the extent to which a person or entity who claims a Rule 6 violation is entitled to seek any relief under the rule. The government contends that Rule 6 does not give rise to a...