McKeever v. Barr, 17-5149

• Decision Date: 05 April 2019
• Docket Number: No. 17-5149,17-5149
• Citation: 920 F.3d 842
• Parties: Stuart A. MCKEEVER, Appellant v. William P. BARR, Attorney General, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

920 F.3d 842

Stuart A. MCKEEVER, Appellant

v.William P. BARR, Attorney General, Appellee

No. 17-5149

United States Court of Appeals, District of Columbia Circuit.

Argued September 21, 2018

Decided April 5, 2019

Graham E. Phillips, appointed by the court, argued the cause for appellant as amicus curiae in support of appellant. With him on the briefs were Roman Martinez and Nathanael D.S.R. Porembka, appointed by the court.

Stuart A. McKeever, pro se, was on the brief for appellant.

Amir C. Tayrani was on the brief for amicus curiae Legal Scholars in support of appellant.

Brad Hinshelwood, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief was Jessie K. Liu, U.S. Attorney, and Michael S. Raab and Mark R. Freeman, Attorneys. Elizabeth J. Shapiro, Attorney, entered an appearance.

Before: Srinivasan and Katsas, Circuit Judges, and GINSBURG, Senior Circuit Judge.

Dissenting opinion filed by Circuit Judge Srinivasan.

Ginsburg, Senior Circuit Judge:

Historian Stuart A. McKeever appeals an order of the district court denying his petition to release grand jury records from the 1957 indictment of a former agent of the Federal Bureau of Investigation, which McKeever sought in the course of his research for a book he is writing. The district court, lacking positive authority, asserted it has inherent authority to disclose historically significant grand jury matters but denied McKeever’s request as overbroad. On appeal, the Government argues the district court does not have the inherent authority it claims but rather is limited to the exceptions to grand jury secrecy listed in Federal Rule of Criminal Procedure 6(e).

We agree with the Government. Accordingly, we affirm the order of the district court denying McKeever’s petition for the release of grand jury matters.

I. Background

In 1956 Columbia University Professor Jesús de Galíndez Suárez disappeared from New York City. News media at the time believed Galíndez, a critic of the regime of Dominican Republic dictator Rafael Trujillo, was kidnapped and flown to the Dominican Republic and there murdered by Trujillo’s agents. Witness Tells of Galindez Pilot’s Death , N.Y. TIMES (Apr. 6, 1964); Dwight D. Eisenhower, The President’s News Conference of April 25, 1956, in Public Papers of the Presidents of the United States 440–41 (1956). To this day, the details of Galíndez’s disappearance remain a mystery.

Stuart McKeever has been researching and writing about the disappearance of Professor Galíndez since 1980. In 2013 McKeever petitioned the district court for the "release of grand jury records in the Frank case," referring to the 1957 investigation and indictment of John Joseph Frank, a former FBI agent and CIA lawyer who later worked for Trujillo, and who McKeever believed was behind Galíndez’s disappearance. The grand jury indicted Frank for charges related to his failure to register as a foreign agent pursuant to the Foreign Agents Registration Act of 1938 but never indicted him for any involvement in Galíndez’s murder. See Frank v. United States , 262 F.2d 695, 696 (D.C. Cir. 1958).

The district court asserted it has "inherent supervisory authority" to disclose grand jury matters that are historically significant, but nevertheless denied McKeever’s request after applying the multifactor test set out In re Craig , 131 F.3d 99, 106 (2d Cir. 1997). Although several of the nine non-exhaustive factors favored disclosure, the district court read McKeever’s petition as seeking release of all the grand jury "testimony and records in the Frank case," which it held was overbroad. McKeever duly appealed.¹

We review de novo the district court’s assertion of inherent authority to disclose what we assume are historically significant grand jury matters. Cf. United States v. Doe , 934 F.2d 353, 356 (D.C. Cir. 1991). Because we hold the district court has no such authority, we need not determine whether it abused its discretion in denying McKeever’s petition as overbroad.²

II. Analysis

The Supreme Court has long maintained that "the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." Douglas Oil Co. v. Petrol Stops Northwest , 441 U.S. 211, 218, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). That secrecy safeguards vital interests in (1) preserving the willingness and candor of witnesses called before the grand jury; (2) not alerting the target of an investigation who might otherwise flee or interfere with the grand jury; and (3) preserving the rights of a suspect who might later be exonerated. Id. at 219, 99 S.Ct. 1667. To protect these important interests,

[b]oth the Congress and [the Supreme] Court have consistently stood ready to defend [grand jury secrecy] against unwarranted intrusion. In the absence of a clear indication in a statute or Rule, we must always be reluctant to conclude that a breach of this secrecy has been authorized.

United States v. Sells Engineering , Inc ., 463 U.S. 418, 425, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983).

As we have said before, Federal Rule of Criminal Procedure 6(e)"makes quite clear that disclosure of matters occurring before the grand jury is the exception and not the rule" and "sets forth in precise terms to whom, under what circumstances and on what conditions grand jury information may be disclosed." Fund of Constitutional Gov’t v. Nat’l Archives & Records Serv. , 656 F.2d 856, 868 (D.C. Cir. 1981). The full text of Rule 6(e) is reproduced in the Appendix. Of particular relevance here, Rule 6(e)(2)(B) sets out the general rule of grand jury secrecy and provides a list of "persons" who "must not disclose a matter occurring before the grand jury" "[u]nless these rules provide otherwise." Rule 6(e)(3) then sets forth a detailed list of "exceptions" to grand jury secrecy, including in subparagraph (E) five circumstances in which a "court may authorize disclosure ... of a grand-jury matter." As McKeever does not claim his request comes within any exception, the question before us is whether the list of exceptions is exhaustive, as the Government argues.

We agree with the Government’s understanding of the Rule. Rule 6(e)(2)(B) instructs that persons bound by grand jury secrecy must not make any disclosures about grand jury matters "[u]nless these rules provide otherwise." The only rule to "provide otherwise" is Rule 6(e)(3). Rules 6(e)(2) and (3) together explicitly require secrecy in all other circumstances. See Andrus v. Glover Constr. Co. , 446 U.S. 608, 616-17, 100 S.Ct. 1905, 64 L.Ed.2d 548 (1980) ("Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent").

That the list of enumerated exceptions is so specific bolsters our conclusion. For example, the first of the five discretionary exceptions in Rule 6(e)(3)(E) permits the court to authorize disclosure of a grand jury matter "preliminarily to or in connection with a judicial proceeding." Rule 6(e)(3)(E)(i). The second exception allows for disclosure "at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Rule 6(e)(3)(E)(ii). The other three exceptions provide that a court may authorize disclosure to certain non-federal officials "at the request of the government" to aid in the enforcement of a criminal law, Rule 6(e)(3)(E)(iii)-(v) ; those provisions implicitly bar the court from releasing materials to aid in enforcement of civil law. Each of the exceptions can clearly be seen, therefore, as the product of a carefully considered policy judgment by the Supreme Court in its rulemaking capacity, and by the Congress, which in 1977 directly enacted Rule 6(e) in substantially its present form. See Fund for Constitutional Gov’t , 656 F.2d at 867. In interpreting what is now Rule 6(e)(3)(E)(i), for example, the Supreme Court stressed that the exception "reflects a judgment that not every beneficial purpose, or even every valid governmental purpose, is an appropriate reason for breaching grand jury secrecy." United States v. Baggot , 463 U.S. 476, 480, 103 S.Ct. 3164, 77 L.Ed.2d 785 (1983).

As the Government emphasizes, McKeever points to nothing in Rule 6(e)(3) that suggests a district court has authority to order disclosure of grand jury matter outside the enumerated exceptions. The list of exceptions in Rule 6(e)(3) does not lead with the term "including," nor does it have a residual exception. Cf., e.g. , FED. R. CIV. P. 60(b) (permitting the court to relieve a party from a final judgment or order for five listed reasons as well as "any other reason that justifies relief").

The contrary reading proposed by McKeever – which would allow the district court to create such new exceptions as it thinks make good public policy – would render the detailed list of exceptions merely precatory and impermissibly enable the court to "circumvent" or "disregard" a Federal Rule of Criminal Procedure. Carlisle v. United States , 517 U.S. 416, 426, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) ; see also Dietz v. Bouldin , ––– U.S. ––––, 136 S.Ct. 1885, 1888, 195 L.Ed.2d 161 (2016) (The exercise of an inherent power "cannot be contrary to any express grant of, or limitation on, the district court’s power contained in a rule or statute").

In an effort to limit the natural consequences of his proposal, McKeever explains that the district court should be allowed to fashion new exceptions to grand jury secrecy only if they are "so different from the types of disclosures addressed by Rule 6(e)(3)(E) that no negative inference can be drawn." Amicus Reply Br. 14-16. That reasoning, however, ignores the likelihood that disclosures "so different" from the ones explicitly permitted by the rule are so far removed from permissible purposes of disclosure that the drafters saw no need even to mention them.

Our understanding that deviations from the detailed...