U.S. v. West, 81-2335

• Decision Date: 12 February 1982
• Docket Number: No. 81-2335,81-2335
• Citation: 672 F.2d 796
• Parties: 10 Fed. R. Evid. Serv. 709 UNITED STATES of America, Petitioner, v. Honorable Lee R. WEST, United States District Judge for the Western District of Oklahoma, Respondent, Jack Holland Anthony, Real Party in Interest.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 796

672 F.2d 796

10 Fed. R. Evid. Serv. 709

UNITED STATES of America, Petitioner, v. Honorable Lee R. WEST, United States District Judge for the

Western District of Oklahoma, Respondent,

Jack Holland Anthony, Real Party in Interest.

No. 81-2335.

United States Court of Appeals, Tenth Circuit.

Feb. 12, 1982.

John F. Depue, Atty., Dept. of Justice, Washington, D. C., for petitioner.

Michael E. Tigar of Tigar, Buffone & Doyle, Washington, D. C., for Jack Holland Anthony.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

In this petition the Government seeks a writ of mandamus directing respondent, the Honorable Lee R. West, to vacate an order granting discovery of Office of Professional Responsibility files (hereinafter referred to as OPR files). The order granting discovery of the files was made in response to a motion for discovery in aid of a motion for new trial on the basis of newly discovered evidence in the underlying case of United States v. Anthony, D.C. No. CR-80-35-W.

The facts of the Anthony case are set forth in Anthony v. United States v. Sisney, 667 F.2d 870 (10th Cir., 1981) and need not be repeated here. The OPR files in issue concern an investigation undertaken by the Office of Professional Responsibility, Department of Justice, in response to a complaint filed by Dr. Kay Delaporte. Dr. Delaporte was a character witness on behalf of the defendant in the Anthony trial. Following the trial Dr. Delaporte filed a complaint with the Office of Professional Responsibility alleging, inter alia, that: her ex-husband Chris Delaporte improperly influenced United States Attorney Larry Patton to prosecute Anthony for the purpose of harassment; Assistant United States Attorney Susie Pritchett improperly disclosed information concerning the grand jury investigation of the Bakouras Foundation; and FBI agents were abusive in serving subpoenas on personnel at the Bakouras Foundation.

In conjunction with his motion for new trial, Anthony sought production of the OPR files. The trial court issued an order directing the Government to produce the files for in camera inspection by the court. After the Court's in camera review of the files, a hearing on Anthony's new trial motion was held. At the hearing the court determined that the defense should be allowed access to the OPR files for the limited purpose of argument on the new trial motion. Subsequently, the court issued an order directing the Government to disclose the OPR files to Anthony. The order permitted the Department of Justice to object to disclosure within ten days. Thereafter, an assistant United States attorney objected to disclosure on the grounds of privilege. Inasmuch as the claim of privilege was not asserted by the agency head, the court rejected the claim and once again ordered disclosure.

On the day the OPR files were to be turned over to Anthony, a formal claim of privilege by the United States Attorney General and a motion for reconsideration were filed. In response, the court issued an order wherein it recognized the Government's claim of privilege but nevertheless ordered disclosure finding that the defendant's interest in the files outweighed the Government's interest in confidentiality. The court also found that the "interest of justice" required that all of the files be disclosed to Anthony rather than selected portions thereof.

On application of the Government, the trial court's order directing disclosure was stayed by this court pending review of the petition for writ of mandamus.

I.

Our first concern is directed to the jurisdiction of this court. Inasmuch as discovery orders are interlocutory orders not subject to review by appeal, our jurisdiction must rest upon the All Writs Act, 28 U.S.C. § 1651(a). We have held that review by mandamus of discovery orders involving allegedly privileged matters is appropriate when, "(1) disclosure of the allegedly privileged or confidential information renders impossible any meaningful appellate review of the claim of privilege or confidentiality; and (2) the disclosure involves questions of substantial importance to the administration of justice." United States v. Winner, 641 F.2d 825, 830 (10th Cir. 1981) quoting from Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949 (8th Cir. 1979), cert. denied, 441 U.S. 907, 99 S.Ct. 1997, 60 L.Ed.2d 376 (1979).

The fact that the trial court's order limited disclosure of the OPR files for purposes of argument on the motion for new trial, does not lessen the burden on the privilege. Whether disclosure is limited to a motion or granted in the course of the trial, the privilege is still rendered worthless. Any subsequent review, even after limited disclosure, would be for naught, because the damage would already be accomplished. Thus, appellate review of the claim would be meaningless.

We also hold that disclosure of the OPR files involves "questions of substantial importance to the administration of justice." In our view, this case presents questions as to the extreme limits of relevancy and the permissible scope of a criminal trial. The case involves a privilege asserted by high level public officials and involves the internal checks of a separate branch of government. Therefore, we hold that this case presents the appropriate criteria for review by mandamus. See United States v. Winner, supra.

II.

We now turn to the merits of the petition. In order to obtain a writ of mandamus, the petitioning party must show that no other adequate relief is available and that his right to the writ is clear and indisputable. Kerr v. United States District Ct. for N.D. of Cal., 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). The right to the writ is clear and indisputable when the petitioner can show a judicial usurpation of power or a clear abuse of discretion. Bankers Life & Casualty Company v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106 (1953), Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), United States v. Winner, supra.

Generally, the trial court has wide discretion concerning discovery matters. However, the concepts of relevancy and materiality necessarily place some limitations on the court's discretion. When executive privilege is involved, the trial court's discretion should be guided by a balancing test. Denver Policemen's Assoc. v. Lichtenstein, 660 F.2d 432 (10th Cir. 1981). In light of the broad discretion allowed the trial court and the strict standards of review governing mandamus, we deemed it necessary to review the in camera materials to ensure that our decision is based on the record as a whole. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980).

As noted above, this case centers around the issue of relevancy. In his motion for discovery, Anthony contended that the OPR files were relevant to his motion for new trial in that matters in the files would help establish his defense, i.e. that he lacked the specific intent necessary to commit the crime; that materials in the files would lend support to Dr. Delaporte's credibility which in turn would boost Anthony's credibility; and that the OPR files would establish governmental misconduct. After in camera review the trial court determined that the files were relevant because they, "might support the Defendant's argument, namely: that governmental misconduct by several employees did occur; that information that was exculpatory was withheld from Defendant; and that the court had been affirmatively misled and deceived by the then U.S. Attorney, Larry Patton." (Order of Court, October 6, 1981).

While the OPR files may be relevant to the allegations of governmental misconduct, we hold that they are not relevant in relation to Anthony's defense. We recognize that we are not here reviewing the motion for new trial; even so, our review of the discovery order and its relevance to the motion for new trial necessarily entails some discussion...