National Dairy Products Corporation v. United States

• Decision Date: 21 November 1967
• Docket Number: No. 18737.,18737.
• Citation: 384 F.2d 457
• Parties: NATIONAL DAIRY PRODUCTS CORPORATION, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

384 F.2d 457 (1967)

NATIONAL DAIRY PRODUCTS CORPORATION, Appellant, v. UNITED STATES of America, Appellee.

No. 18737.

United States Court of Appeals Eighth Circuit.

October 27, 1967.

Rehearing Denied November 21, 1967.

John T. Chadwell, Chadwell, Keck, Kayser, Ruggles & McLaren, Chicago, Ill., of Chadwell, Keck, Kayser, Ruggles & McLaren, for appellant, Richard W. McLaren, Chicago, Ill., and Martin J. Purcell, Morrison, Hecker, Cozad & Morrison, Kansas City, Mo., on the brief.

Howard E. Shapiro, Atty., Dept. of Justice, Washington, D. C., for appellee, Lawrence G. Meyer and Raymond P. Hernacki, Dept. of Justice, Washington, D. C., on the brief.

Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.

MATTHES, Circuit Judge.

National Dairy Products Corporation (National) was convicted on seven counts of an indictment charging a conspiracy to fix prices and eliminate competition in the sale of milk in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and on six counts charging price discrimination in violation of Section 3 of the Robinson-Patman Act, 15 U.S.C. § 13(a). We affirmed the judgment of conviction. National Dairy Products Corporation v. United States, 350 F.2d 321 (8th Cir. 1965).

On the first appeal National contended that the district court had committed prejudicial error in denying defense counsel the right to inspect selected portions of the grand jury testimony utilized by the prosecution for refreshing the recollection of certain government witnesses. Considering the posture of the law at that time we found no error in the denial. 350 F.2d at 330-333. On June 20, 1966 the Supreme Court granted National's petition for certiorari, vacated the judgment of this Court and remanded the case to the district court "for further consideration in light of Dennis v. United States," 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), decided on the same date. National Dairy Products Corp. v. United States, 384 U.S. 883, 86 S.Ct. 1913, 16 L. Ed.2d 995 (1966).

Upon remand, after consideration of briefs and oral argument, the district court denied National's motion for a new trial and reentered its judgment. The court's lengthy and exhaustive opinion is reported at 262 F.Supp. 447 (W.D.Mo. 1967).

National has appealed. Basically it contends that under the teachings of Dennis the district court erred in failing to grant a new trial on all counts. We reverse as to counts eleven, twelve and thirteen and affirm the judgment as to the remaining counts.

Inasmuch as the procedure adopted and utilized at the trial in connection with the use of the grand jury testimony has been fully discussed in opinions of the district court¹ and our prior opinion, we limit our discussion of that procedure to the bare essentials.

It stands undisputed that the government's use of the grand jury testimony was limited to the attempted refreshment of seven government witnesses in connection with the so-called Kansas City charges. (Counts eleven, twelve and thirteen).² The refreshment procedure formulated by the district court was tacitly agreed to by counsel for National. They did, however, move repeatedly and unsuccessfully to inspect those portions of the grand jury transcript utilized by the government, and all other portions relating to the same subject matter. 350 F.2d at 330.

In considering and denying National's motion for a new trial upon remand, the district court concluded on the basis of its interpretation of Dennis that National had failed to demonstrate a "particularized need" for its use of the grand jury testimony.³ The district court obviously premised its conclusion on the dissimilarity between this case and the five circumstances present in Dennis which the Supreme Court held constituted a showing of particularized need "substantially beyond the minimum required by Rule 6(e) and the prior decisions of this Court." 384 U.S. at 872-873, 86 S. Ct. at 1850.

We believe the district court misinterpreted the standard established by Dennis, which is applicable to this case.

Unlike the situation in this case, the prosecution in Dennis did not utilize the grand jury transcript at trial. The defense, however, moved for the production of the grand jury testimony of certain prosecution witnesses for impeachment purposes. The motions were denied on the ground that no "particularized need" had been shown. The Court of Appeals found no reversible error. 346 F.2d 10 (10th Cir. 1965).

In a unanimous opinion as to this issue the Supreme Court reversed and remanded, and held that the defendants were entitled to examine the grand jury transcript relating to the trial testimony of four government witnesses.

Speaking for the Court Mr. Justice Fortas pointed out that the Supreme Court has on several occasions recognized the "`long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts.' United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 2 L.Ed.2d 1077, and * * * has ruled that, when disclosure is permitted, it is to be done `discretely and limitedly.' Id. at 683, 78 S. Ct. at 987." 384 U.S. at 869, 86 S.Ct. at 1848. He emphasized, however, the fact that the Supreme Court "has confirmed the trial court's power under Rule 6(e) of the Federal Rules of Criminal Procedure to direct disclosure of grand jury testimony `preliminarily to or in connection with a judicial proceeding.'" Id., at 869-870, 86 S.Ct. at 1849.

Of greater significance to our case is the Court's statement based on United States v. Procter & Gamble Co., supra at 356 U.S. 683, 78 S.Ct. 983, that "`problems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility * * *' are `cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly.'" Id., 384 U.S. at 870, 86 S.Ct. at 1849. Emphasis added. The Court also observed that the developments in the area of disclosure of grand jury minutes were entirely consistent with the realization that disclosure, rather than suppression of relevant legal materials, normally promotes the proper administration of criminal justice. Of added significance, we feel, is the fact that the Court cited the Jencks Act, 18 U.S.C. § 3500, as indicative of the trend towards liberal disclosure. Id., at 870-871, 86 S.Ct. 1840.

We refrain from a prolonged discussion of other significant pronouncements of the Court in Dennis. Manifestly the Supreme Court has substantially liberalized the standards to be applied in determining whether disclosure is required. In relaxing these requirements, we are led to believe that in a case where, as here, the government is permitted at trial to use the grand jury transcript, the discretionary power of the district court to limit disclosure is restricted.⁴

We interpret Dennis as enunciating the proposition that where the district court permits the government to use the grand jury transcript to refresh the recollection of certain government witnesses, a showing of particularized need has been made, and upon request the trial judge must grant the defense counsel the right to inspect that portion of the transcript used and other portions relating to the same subject matter.

In our view the Supreme Court in Dennis considered the circumstances of that case for the purpose of demonstrating that a defendant may show that a particularized need exists for disclosure even though the transcript had not been used at trial or inspected by the trial judge in camera.

Post-Dennis decisions lend support to our views. In United States v. Youngblood, 379 F.2d 365 (2d Cir. 1967), the grand jury transcript had not been utilized by the government. The district court had refused to grant defense counsel the right to inspect the grand jury testimony of a key government witness. The Second Circuit held that tested by the criteria laid down in Dennis Youngblood's showing of particularized need was substantially weaker than that made by the defendants in Dennis. Under these circumstances the refusal of the trial court to order disclosure did not constitute error. That Court nevertheless recognized the propriety and fairness of allowing the disclosure of the grand jury testimony of key prosecution witnesses, and consequently directed that at trials commencing after its judgment in Youngblood had been entered, the district courts of that Circuit at the request of the defendant should order the disclosure of the grand jury testimony of those witnesses who testified at his trial without requiring a showing of any particularized need.

Cargill v. United States, 381 F.2d 849 (10th Cir. 1967), presented the question whether defense counsel were entitled upon motion to inspect the grand jury testimony of a key government witness where that testimony was not used by the government at the trial.

The Tenth Circuit interpreted the Dennis opinion as abrogating the substance while retaining the form of the particularized need requirement. It adopted a course of wide open disclosure, subject to a protective order, whenever the defense makes a specific request for a transcript of the witnesses' grand jury testimony to be used in his cross-examination or for one of the other purposes mentioned in Dennis. In reversing Cargill's conviction the court stated inter alia:

"The Court in Dennis retains the requirement that `particularized need\' be shown in order that the secrecy may be lifted, but holds in effect that such need is shown when the defense states that it wishes to use the transcript for the purpose of impeaching a witness, to refresh his recollection, or to test his credibility. Thus the Court as far as cross-examination is concerned has removed most, if not all, of the substance from the particularized need requirement, although it has retained the term. Under this opinion, it appears that the defense is entitled to the grand jury transcript of the

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