Pitch v. United States, 17-15016

• Decision Date: 11 February 2019
• Docket Number: No. 17-15016,17-15016
• Citation: 915 F.3d 704
• Parties: Anthony S. PITCH, Plaintiff - Appellee, v. UNITED STATES of America, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

915 F.3d 704

Anthony S. PITCH, Plaintiff - Appellee,

v.UNITED STATES of America, Defendant - Appellant.

No. 17-15016

United States Court of Appeals, Eleventh Circuit.

February 11, 2019

Joseph J. Bell, Bell Shivas & Fasolo, PC, Rockaway, NJ, for Plaintiff - Appellee.

Bradley Hinshelwood, Mark R. Freeman, U.S. Department of Justice, Civil Division, Appellate Staff, Mark R. Freeman, Michael Raab, U.S. Attorney General's Office, Washington, DC, William Taylor McNeill, U.S. Attorney's Office, U.S. Attorney Service - Middle District of Georgia, U.S. Attorney's Office, Macon, GA, for Defendant - Appellant.

Before WILSON and JORDAN, Circuit Judges, and GRAHAM,^* District Judge.

WILSON, Circuit Judge:

In 1946, a crowd of people in Walton County, Georgia gathered as two African American couples were dragged from a car and shot multiple times.¹ Many consider this event, known as the Moore’s Ford Lynching, to be the last mass lynching in American history. Racial tensions in Georgia were high. African American citizens were allowed to vote in a Georgia Democratic Party primary for the first time that year.² The murders occurred shortly after the primary and immediately garnered national media attention. National outrage, including condemnation from then Special Counsel to the NAACP Thurgood Marshall, ultimately led President Harry Truman to order an FBI investigation. In late 1946, a district court judge in Georgia convened a grand jury. But after sixteen days of witness testimony, no one was ever charged. The case remains unsolved.

Over seven decades later, Anthony Pitch, an author and historian, petitioned the Middle District of Georgia for an order unsealing the grand jury transcripts. The district court granted his request. The government now appeals, arguing the district court abused its discretion in unsealing the transcripts. After careful review and with the benefit of oral argument, we affirm.

I. Factual and Procedural Background

Anthony Pitch wrote a book about the Moore’s Ford Lynching. In 2014, while researching the event for the book, Pitch petitioned the Middle District of Georgia to unseal the federal grand jury records related to the incident. Initially, the district court denied the petition without prejudice because Pitch did not present evidence that the records even existed. Three years later, Pitch renewed his petition, arguing that his investigation revealed that the records were at the National Archives in Washington, D.C. The district court ordered the government to produce the records for in camera inspection. The government filed the transcripts under seal. And against the objections of the government, the district court ordered the transcripts be unsealed. To do so, the district court relied on its inherent authority under In re Petition to Inspect & Copy Grand Jury Materials (Hastings) , 735 F.2d 1261 (11th Cir. 1984).

On appeal, the government argues first, that the district court lacked inherent authority to disclose the transcripts, and second, even assuming the district court had inherent authority, the court exceeded that authority by permitting disclosure based solely on the historical significance of the Moore’s Ford Lynching. Because we are bound by our decision in Hastings , we affirm. See Kondrat’yev v. City of Pensacola, Fla. , 903 F.3d 1169, 1174 (11th Cir. 2018) (per curiam) ("[O]ur precedent—in particular, our precedent about precedent—is clear: ‘[W]e are not at liberty to disregard binding case law that is ... closely on point and has been only weakened, rather than directly overruled, by the Supreme Court.’ " (quoting Fla. League of Prof’l Lobbyists, Inc. v. Meggs , 87 F.3d 457, 462 (11th Cir. 1996) ) ).

II. Power of District Courts to Disclose Grand Jury Records

The government argues that the district court erred in invoking its inherent authority to disclose the grand jury records. We review a district court’s disclosure of grand jury transcripts for abuse of discretion. United States v. Aisenberg , 358 F.3d 1327, 1338 (11th Cir. 2004). A court abuses its discretion when it commits an error of law. United States v. Brown , 332 F.3d 1341, 1343 (11th Cir. 2003).

A. Statutory Authority to Disclose Grand Jury Records

Grand jury secrecy is "an integral part of our criminal justice system." Blalock v. United States , 844 F.2d 1546, 1555 (11th Cir. 1988) (per curiam). Even after an investigation has ended, grand jury proceedings generally remain secret. "The grand jury as a public institution serving the community might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow." United States v. Procter & Gamble Co. , 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). Federal Rule of Criminal Procedure 6(e) codifies the general rule prohibiting the disclosure of grand jury records. Rule 6(e) requires that "[r]ecords, orders, and subpoenas relating to grand-jury proceedings ... be kept under seal ... to prevent the unauthorized disclosure of a matter occurring before a grand jury." FED. R. CRIM. P. 6(e)(6).

Rule 6(e) also codifies a list of exceptions to its general rule of secrecy. The only enumerated exception available to a party other than the government or a party in the grand jury proceeding is Rule 6(e)(3)(E)(i), which allows a court to authorize disclosure of grand jury records "preliminarily to or in connection with a judicial proceeding." A party invoking this exception must prove that "the material they seek is needed to avoid a possible injustice in another court proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed." Douglas Oil Co. of Ca. v. Petrol Stops NW , 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979). Pitch agrees that he cannot benefit from this exception because the grand jury records he sought were not necessary in "another court proceeding."

B. Inherent Authority to Disclose Grand Jury Records

We have recognized that district courts retain "inherent power beyond the literal wording of Rule 6(e)" to disclose grand jury material not otherwise covered by the exceptions. Hastings , 735 F.2d at 1268.³ "[T]he exceptions permitting disclosure were not intended to ossify the law, but rather are subject to development by the courts in conformance with the Rule’s general rule of secrecy." Id. at 1269 ; accord United States v. Aisenberg , 358 F.3d 1327, 1347 (11th Cir. 2004) ("Although Rule 6(e)(3) enumerates the exceptions to the traditional rule of grand jury secrecy, the Supreme Court and this Court have recognized that the district courts have inherent power beyond the literal wording of Rule 6(e)(3) to disclose grand jury material and that Rule 6(e)(3) is but declaratory of that authority."); In re Craig , 131 F.3d 99, 103 (2d Cir. 1997) ("[P]ermitting departures from Rule 6(e) is fully consonant with the role of the supervising court and will not unravel the foundations of secrecy upon which the grand jury is premised."); Carlson v. United States , 837 F.3d 753, 763 (7th Cir. 2016) (" Rule 6(e) is but declaratory of the long-standing principle that disclosure of grand jury materials is committed to the discretion of the trial court.") (internal quotation marks omitted).

"This is not to say [ Rule 6(e) ] is not normally controlling. It is." Hastings , 735 F.2d at 1268. Petitioners and district courts cannot rely on inherent authority to circumvent a plainly applicable and unambiguous enumerated Rule 6(e) exception. See Aisenberg , 358 F.3d 1327 (declining to allow petitioners to rely on inherent authority because petitioners’ request was "preliminarily to or in connection with a judicial proceeding" under the Rule 6(e)(3)(E)(i) exception); cf. Carlisle v. United States , 517 U.S. 416, 426, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (holding that a district court could not use inherent authority to extend a plain and unambiguous Rule of Criminal Procedure that limited district court’s authority to enter a judgment of acquittal to seven days). The upshot, then, is a district court may only invoke its inherent authority to disclose grand jury records when an enumerated Rule 6(e) exception does not directly govern the requested disclosure.⁴ Both the government and Pitch agree that none of the exceptions in Rule 6(e) apply, which allows Pitch to survive this threshold inquiry.

III. The District Court’s Exercise of Discretion in the Present Case

We must now decide whether the facts presented here constitute "exceptional circumstances" that allow a district court to employ its inherent authority to disclose grand jury records outside the confines of Rule 6(e). The petitioner has the burden of proving that "exceptional circumstances" exist. See Hastings , 735 F.2d at 1272–73.

A. The "Exceptional Circumstances" Test

"[W]hile district courts have inherent authority to act outside Rule 6(e)(3), any inherent disclosure authority is exceedingly narrow ...." Aisenberg , 358 F.3d at 1347. "[C]ourts are not empowered to act outside Rule 6(e) in other than exceptional circumstances consonant with the rule’s policy and spirit." Hastings , 735 F.2d at 1269. Exceptional circumstances exist when the need for disclosure outweighs the public interest in continued secrecy.

Id. at 1272, 1275 ; see also Douglas Oil , 441 U.S. at 223, 99 S.Ct. at 1275 ("[T]he court’s duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and standards announced by this Court.").

On one side of the scale is the well-established public interest in secrecy of grand jury records. Nondisclosure of grand jury records "prevent[s] the escape of those whose indictment may be contemplated," ensures "the utmost freedom to the grand jury in its deliberations," prevents "tampering with the witnesses who may testify before the grand jury," encourages "free and untrammeled disclosures by persons who have...