U.S. v. Eisenberg

• Decision Date: 25 July 1983
• Docket Number: Nos. 83-8013,83-8041,s. 83-8013
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Lance E. EISENBERG and T. Lamar Chester, Defendants-Appellees. In re GRAND JURY PROCEEDINGS.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 959

711 F.2d 959

73 A.L.R.Fed. 101

UNITED STATES of America, Plaintiff-Appellant, v. Lance E. EISENBERG and T. Lamar Chester, Defendants-Appellees In re GRAND JURY PROCEEDINGS.

Nos. 83-8013, 83-8041.

United States Court of Appeals Eleventh Circuit.

July 25, 1983.

As Corrected July 26, 1983.

William P. Gaffney, Asst. U.S. Atty., Atlanta, Ga., James J. Graham, Atty., Fraud Section, John F. DePue, Joel M. Gershowitz, Vincent Banbale, Appellate Section, Crim.Div., Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Martin Baach, Washington, D.C., for Eisenberg.

Jeffrey B. Bogart, Atlanta, Ga., for Chester.

Earl J. Silbert, Washington, D.C., Mark J. Kadish, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia and Petition for Writ of Mandamus to the United States District Court for the Northern District of Georgia.

Before RONEY and CLARK, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

CLARK, Circuit Judge:

This case presents the question of what relief is appropriate in response to a prima facie showing that matters occurring before a grand jury were disclosed by a government representative in violation of Fed.R.Crim.P 6(e). ¹ This rule explicitly prohibits such disclosures, except in specified, limited circumstances, in order to protect the secrecy which is critical to the grand jury process.

In addition to preventing adverse pretrial publicity about a person who may be indicted and subsequently tried, secrecy protects the reputation of a person under investigation who is not indicted. The secrecy requirement also encourages reluctant witnesses to testify without fear of reprisals from those against whom testimony is given, prevents tampering with grand jury witnesses in an effort to alter their trial testimony, and permits the grand jury to deliberate free from the influence of publicity. Finally, secrecy prevents disclosures to persons who may be interested in the investigation if the facts are known or might attempt to escape if they have reason to believe certain indictments will issue. See United States v. Procter & Gamble Co., 356 U.S. 677, 681 n. 6, 78 S.Ct. 983, 986 n. 6, 2 L.Ed.2d 1077, 1081 n. 6 (1958), citing United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954).

In this case, appellees Eisenberg and Chester are targets of grand juries in Atlanta and Houston. They filed motions in the federal district courts in Atlanta and Houston, in November of 1982, alleging government violations of Fed.R.Crim.P. 6(e). The Atlanta district court found that the newspaper articles submitted with the original petition and those filed subsequently

reveal[ ] that highly prejudicial information concerning matters occurring before the grand juries has been given to the press, and that the source(s) of this information could only have been government agents or employees. In light of the irreparable harm that petitioners may have already suffered, the Court cannot look favorably on the government's contention that the investigation of these "leaks" is the sole responsibility of the Department of Justice and the Court. Petitioners were entitled to an opportunity to identify the government agents or employees responsible for the egregious violations of Rule 6(e) that have already caused them great harm.

Order of November 30, 1982. The court entered orders granting the following relief:

1) Said petition be filed under seal;

2) Until this Court directs otherwise all matters in connection with Misc. No. 82-1 shall be filed and maintained under seal, with service copies to be sent only to counsel for the government and to counsel for petitioners;

3) Extra-judicial publicity by government attorneys, officers, agents or employees concerning either (a) the grand jury investigation of unlawful offers to sell government information or (b) the grand jury investigations of either Lance Eisenberg or T. Lamar Chester shall cease immediately;

4) The government attorneys conducting the aforesaid investigations shall, at the next session of the said grand juries, instruct the grand jurors that they should disregard any news media or other public accounts of matters relating to their investigations;

5) Counsel for the government shall report to the Court within fifteen (15) days of this Order the following: (a) to whom instructions against extra-judicial publicity were given; (b) the substance of the instructions; and (c) the response of those to whom they were given;

6) Counsel for the government shall identify to counsel for petitioners each government attorney, officer, agent or employee with access to the aforedescribed grand jury matters;

7) Copies of all letters and Orders issued pursuant to Rule 6(e)(3) authorizing access to the aforedescribed grand jury matters shall be produced to counsel for petitioners within five (5) days of the entry of this Order, and copies of all letters and Orders issued after the date of this Order shall also be produced to petitioners within five (5) days of their execution; and

8) The information ordered disclosed to counsel for petitioners in items 6 and 7, and which may be disclosed under item 5, of this Order shall not be disclosed by them to their clients or to any other person; and counsel for petitioners shall take appropriate measures to insure the confidentiality of said information.

Order of November 11, 1982.

Accordingly, the government is hereby ORDERED to submit to this Court and to counsel for petitioners within thirty days of the date of this Order copies of affidavits executed by every government attorney, official, agent, and employee who has had access to or received, directly or indirectly, any information concerning matters occurring before any Atlanta federal grand jury investigation of petitioners, which affidavit shall include the following: (a) the date, time and method of communication for every communication with a news media representative; (b) the identity and affiliation of each news media representative; and (c) the substance, in detail, of each such communication.

Order of November 30, 1982. The Houston court ordered less extensive relief on November 24 and 29, 1982. ²

The district courts in Atlanta and Houston relied on In re Grand Jury Investigation (Lance), 610 F.2d 202 (5th Cir.1980), ³ which is similar to the present case and guides our analysis. One distinguishing factor in Lance is that at the time of that appellate decision, Lance had been indicted. We are not aware of indictments which have issued in the present case. A more significant distinction is that the district court initially held that Lance failed to establish a prima facie showing of a Rule 6(e) violation and dismissed its motion for relief without an evidentiary hearing. On appeal, the court found that Lance had established a prima facie case and remanded the matter for a hearing. Here, the district court held there was a prima facie case of a Rule 6(e) violation and granted the extensive relief quoted above.

The government does not challenge the district court's finding of a prima facie case: that the media reports disclosed information about "matters occurring before the grand jury" and indicated that the sources of the information included attorneys and agents of the government. The government's appeal is limited to challenging the relief ordered which requires the government to furnish information to counsel for Chester and Eisenberg. Specifically, the government objects to paragraphs 6, 7 and 8 of the court's order of November 11, 1982 and to the November 30, 1982 order that the government submit to opposing counsel copies of affidavits executed by government employees. We conclude that the district court erred in requiring the government to disclose such information to counsel for Chester and Eisenberg prior to the issuance of indictments or the close of the grand jury investigation.

First, the district court was premature in finding that "highly prejudicial information concerning matters occurring before the grand juries has been given to the press, and that the source(s) of this information could only have been government agents or employees." Order of November 30, 1982. We believe that the articles in evidence before the district court only made a prima facie case for a Rule 6(e) violation. In Lance, we concluded that the prima facie case precluded denial of Lance's motion for relief without an evidentiary hearing. As Lance held, the presentation of a prima facie case shifts the burden to the government to come forward with evidence to negate the prima facie case. At this time, we set forth the proper steps for a district court presented with such a prima facie case.

A prima facie showing of a Rule 6(e) violation requires the district court to entertain the petition and order the government to take steps to stop any publicity emanating from its employees. This is commendably accomplished by the first four paragraphs of the district court's order of November 11, 1982. Next, the district court should determine whether the government was responsible for the pre-indictment publicity and whether any information disclosed by the government was about "matters occurring before the grand jury." In this case, the government informed the court that it was conducting an investigation of the matters alleged in the motion for relief and requested an opportunity to furnish the information it obtained to the court in camera. The government has never disputed the authority of the court to require the government to report to the court and furnish names and affidavits to the court, as required in the orders.

Regrettably, the district court ordered the participation of counsel for the targets before conducting an in camera review of government's affidavits and other information obtained by their review. Permitting targets' counsel to receive the names of all government employees involved...