the Special April 1977 Grand Jury, Matter of

Citation587 F.2d 889
Decision Date08 December 1978
Docket NumberNo. 78-1834,78-1834
PartiesIn the Matter of the SPECIAL APRIL 1977 GRAND JURY. Appeal of William J. SCOTT, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

George B. Collins, Chicago, Ill., for appellant.

James F. Holderman, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before TONE, Circuit Judge, WISDOM, Circuit Judge, * and BAUER, Circuit Judge.

WISDOM, Circuit Judge:

This is an appeal from a denial without prejudice of petitioner-appellant Scott's petition to have a grand jury proceeding terminated. We affirm the district court's order.

I.

William J. Scott, the Attorney General of Illinois, is the subject of an ongoing investigation before the Special April 1977 Grand Jury. In May of 1978 Scott filed a petition in the United States District Court for the Northern District of Illinois, Chief Judge Parsons presiding, seeking to terminate the grand jury proceedings because of alleged improprieties on the part of government personnel connected with the investigation. The petition set forth two claims. The first claim was that material subpoenaed by the grand jury and other information concerning the proceedings had been disclosed or "leaked" to unauthorized persons in violation of Rule 6(e) of the Federal Rules of Criminal Procedure. The petition alleged that employees of the Internal Revenue Service had access to grand jury evidence, and that I.R.S. Special Agent Witkowski had disclosed evidence to Chicago newspaper reporters. Second, Scott alleged that the Assistant United States Attorney had, in effect, withheld from the grand jury evidence favorable to him. The petition charged that numerous persons interviewed by the Government who gave statements favorable to Scott were not brought before the grand jury. The Government responded by filing affidavits of the United States Attorney, two Assistant United States Attorneys, and Special Agent Witkowski denying that they had made unauthorized disclosures and denying that they were the source of information contained in the news media reports. By supplemental response, the Government filed the affidavits of other Internal Revenue Service employees denying that they disseminated grand jury material to unauthorized persons.

This matter arose on the Government's motion to dismiss the petition. The district court found the evidence of the alleged Rule 6(e) violations insufficient to warrant an evidentiary hearing and accordingly dismissed the petition without prejudice. Scott then prosecuted this appeal.

II.

Before proceeding to the merits we must address the Government's contention that the district court's order dismissing Scott's petition was not a final, appealable order within the meaning of 28 U.S.C. § 1291.

Appeals from orders issued in connection with ongoing grand jury proceedings are looked on with disfavor. See generally In re Special March 1974 Grand Jury, 7 Cir. 1976, 541 F.2d 166, 168-69. Orders such as the instant one are not paradigmatic "final judgments". The policies behind the limitation upon appellate jurisdiction contained in 28 U.S.C. § 1291, the final judgment rule, take on added force in this context because of the public interest in safeguarding the grand jury's inquiry from undue interruption. See Cobbledick v. United States, 309 U.S. 323, 327-28, 60 S.Ct. 540, 84 L.Ed. 783 (1940). Accordingly, the courts have held nonappealable: denials of motions to quash subpoenas, E. g., United States v. Ryan, 1971, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85; orders denying a witness's right to counsel, E. g., Directory Services, Inc. v. U. S., 8 Cir. 1965, 353 F.2d 299; and the denial of a motion for an order limiting the use of evidence brought before a grand jury, In re Grand Jury Investigation of Violations, 2 Cir. 1963, 318 F.2d 533, Cert. dismissed, 375 U.S. 802, 84 S.Ct. 25, 11 L.Ed. 37. See generally 15 Wright, Miller & Cooper, Federal Practice and Procedure, § 3918, 639-40 (1976).

Not all actions, however, taken by district courts in connection with grand jury proceedings are deemed nonfinal for appealability purposes. The Supreme Court has held that denials of motions to quash subpoenas, which are generally not appealable, may be reviewed in exceptional circumstances. E. g., United States v. Nixon, 1974, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039; Perlman v. United States, 1918, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950. In Perlman the Court held appealable an order denying the appellant's petition to enjoin the use before a grand jury of certain exhibits that remained in the custody of the court after the appellant had used them as a trial witness in an unrelated patent infringement lawsuit. The order at issue in Perlman, as explained by Justice Brennan in United States v. Ryan, 402 U.S. at 533, 91 S.Ct. at 1582, fell within "the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims . . . ." Thus, despite language in Supreme Court opinions suggesting that the policy against interlocutory appeals has special force in the context of ongoing grand jury investigations, the Supreme Court has adopted, even in this context, a flexible view of finality.

This Court has recognized and applied Perlman, as explained by the Ryan dictum. In In re Special March 1974 Grand Jury, 7 Cir. 1976, 541 F.2d 166, this Court faced the question of the appealability of an order denying Ingram Corporation's request for an evidentiary hearing as to whether the Government had abused the grand jury process by using a grand jury to aid an investigation into alleged civil violations on the part of the corporation. Although the order was held to be nonfinal, the Court did not construct a per se rule against the appealability of orders denying requests for hearings into alleged unauthorized disclosures of grand jury materials. Rather, the Court applied the exceptional circumstances doctrine and held the order nonappealable because the corporation

failed to demonstrate how a denial of review will leave it powerless eventually to correct an injustice on a plenary review after the grand jury has ceased its investigation and the criminal trial has been conducted.

Id. at 170.

We are satisfied that a denial of review at this time would deprive Scott of a meaningful opportunity to air his grievance before an appellate court. Scott's narrow claim is that the district court abused its discretion in dismissing his petition without an evidentiary hearing. His substantive claim concerns his right to be free from the harm to his reputation that would be caused by alleged unauthorized disclosures of grand jury material. In In re Special March 1974 Grand Jury the Court focused on the appellant's substantive claim in applying the Perlman-Ryan test. The appeal did not lie in that case because Ingram's right to have the grand jury's powers not used to aid a civil investigation against it could be vindicated by a motion to exclude improperly obtained evidence in the civil trial, in the event a civil suit was brought. By contrast, Scott will not have further opportunity to correct the harm engendered by the alleged unauthorized disclosures. To be sure, he may raise the issue and renew his request for an evidentiary hearing by post-indictment motion. E. g., United States v. Sweig, 1970, S.D.N.Y., 316 F.Supp. 1148; United States v. Kahaner, 1962, S.D.N.Y., 204 F.Supp. 921. Denials of motions to quash indictments, however, are not appealable. E. g., United States v. Doucet, 5 Cir. 1972, 461 F.2d 1095; People of Guam v. Lefever, 9 Cir. 1972, 454 F.2d 270; United States v. Garber, 2 Cir. 1969, 413 F.2d 284. Nor would Scott have a reasonable opportunity to raise his grievance after trial, should a criminal trial ensue. Importantly, if the grand jury returns...

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