S.E.C. v. Sprecher, s. 767
| Decision Date | 01 March 1979 |
| Docket Number | D,768,Nos. 767,s. 767 |
| Citation | 594 F.2d 317 |
| Parties | Fed. Sec. L. Rep. P 96,791 SECURITIES AND EXCHANGE COMMISSION, Applicant-Appellee, v. Benjamin SPRECHER, Respondent-Appellant. SECURITIES AND EXCHANGE COMMISSION, Applicant-Appellee, v. Edward H. MILLER, Jr., Respondent-Appellant. ockets 79-6009, 79-6010. |
| Court | U.S. Court of Appeals — Second Circuit |
Martin Paul Solomon, New York City, for respondents-appellants.
David Ferber, Solicitor to the Commission, Washington, D. C. (Jacob H. Stillman, Associate Gen. Counsel, John M. Mahoney, Asst. Gen. Counsel, Judy L. Chesser, Atty., Securities and Exchange Commission, Washington, D. C., of counsel), for applicant-appellee.
Before FEINBERG, TIMBERS and MESKILL, Circuit Judges.
These are appeals from two orders of the United States District Court for the Southern District of New York, Robert L. Carter, Judge, requiring appellants Benjamin Sprecher and Edward H. Miller, Jr., to testify before the Securities and Exchange Commission and to produce documents in compliance with investigatory subpoenas issued by that agency. Appellants urge that the district court erred in refusing to order the Commission to permit them to tape record their testimony, to furnish them copies of the official transcripts of their testimony and to allow them to correct the official transcripts. Appellants also contend that the district court was without jurisdiction to enforce the subpoenas.
The Commission's investigation concerns possible violations of the antifraud provisions of the federal securities laws by Commonwealth Western Corporation and others. The Commission issued the subpoenas to appellants in late August 1978. They appeared at the Commission's office as ordered, but refused to testify unless permitted to make tape recordings of their testimony. The Commission would not comply with this request and the examinations were adjourned. In late November 1978, the Commission applied to the district court to enforce the subpoenas, and the court issued orders requiring appellants to appear before it to show cause why they should not be ordered to obey the subpoenas. On December 12, Judge Carter heard oral argument on the applications and entered the orders now under review. These appeals followed.
Regarding appellants' claim that they have a right to copies of the transcripts of their testimony, Section 6(b) of the Administrative Procedure Act (APA), 5 U.S.C. § 555(c), permits the agency to withhold the transcript of a witness' testimony in a nonpublic investigatory proceeding "for good cause." The Commission's rules provide that after testifying, a witness may request a copy of his testimony, and the Commission will furnish a copy of the transcript unless the Commission determines that there is good cause to deny the request. See Securities and Exchange Commission Rules Relating to Investigations, Rule 6, 17 C.F.R. § 203.6. Thus, the agency has not yet determined whether it will attempt to withhold the transcripts of appellants' testimony. Further, it is obviously impractical for the Commission to determine prior to the testimony of a witness whether there will be "good cause" to withhold a copy of the testimony from that witness, and we do not read the APA as requiring such an advance determination. Therefore, appellants' claims that they are entitled to transcripts of their testimony are not ripe.
Appellants' argument that they should be allowed to tape record their testimony must also be rejected. Since a tape recording can be used for the same purposes as a transcript, the right of the agency to withhold a transcript for good cause would be...
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