United States v. Battisti

• Decision Date: 25 October 1973
• Docket Number: No. 73-1177.,73-1177.
• Citation: 486 F.2d 961
• Parties: UNITED STATES of America, Petitioner, v. Honorable Frank J. BATTISTI, Chief Judge, United States District Court for the Northern District of Ohio, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

486 F.2d 961 (1973)

UNITED STATES of America, Petitioner, v. Honorable Frank J. BATTISTI, Chief Judge, United States District Court for the Northern District of Ohio, Respondent.

No. 73-1177.

United States Court of Appeals, Sixth Circuit.

October 25, 1973.

Frederick M. Coleman, U. S. Atty., N. D. Ohio, Cleveland, Ohio, Henry E. Petersen, Asst. Atty. Gen., Crim. Div., Dept. of Justice, Washington, D. C., for petitioner.

Niki Z. Schwartz, Gold, Rotatori, Messerman & Hanna, Cleveland, Ohio, for respondent.

Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.

HARRY PHILLIPS, Chief Judge.

By petition for writ of mandamus or prohibition, the Department of Justice asks this Court to direct the District Court to vacate two orders: (1) requiring the recording of all grand jury testimony; and (2) directing, in a certain criminal case,¹ that the Government produce, for the inspection of defense counsel, the names and addresses of all persons whom the Government intends to call as witnesses at the hearing or trial, and all known records of prior criminal convictions of prospective witnesses, when such records have come to the attention of the Government in the ordinary course of preparation for trial. The latter order provides:

"The failure of the Government to comply with this order will result in the exclusion of the testimony of the witness or witnesses to which the information pertains."

1) Background

Effective January 15, 1973, new local criminal rules were adopted by the United States District Court for the Northern District of Ohio. Among these rules were the following:

"Rule 3(c) An official reporter shall attend and record all testimony of witnesses appearing before every Grand Jury. Such record shall be filed with the Clerk of Courts and transcribed and released to the Court upon order or to the United States Attorney upon request and payment of the appropriate fees to the official reporter.

* * * * * *

"Rule 15(a) Within ten (10) days after arraignment, the United States Attorney and defendant\'s attorney shall confer; and, upon request, the Government shall disclose to counsel for the defendant the following material and information within its possession or control:

* * * * * *

"3. The names and addresses of all persons whom the Government intends to call as witnesses at the hearing or trial, together with their relevant written or recorded statements. Names and addresses of witnesses shall not be subject to disclosure if the prosecuting attorney certifies that to do so may subject the witness or others to physical or substantial economic harm or coercion.

* * * * * *

"6. Any record of prior criminal convictions of persons whom the Government intends to call as witnesses at the hearing or trial."

On February 26, 1973, the Government filed in this court a "Petition for A Writ of Mandamus or Prohibition" against the United States District Court for the Northern District of Ohio and each of its judges individually, challenging the validity of certain of these rules, including those quoted above. On March 7, 1973, the District Court repealed the challenged rules.

On February 28, 1973, Honorable Frank J. Battisti, Chief Judge of the District, entered an order in his capacity as Chief Judge, requiring the recording of all grand jury testimony. This order is as follows:

"No Grand Jury Session, at which testimony of witnesses is to be received, may be held in the absence of an official reporter, who shall attend and record all such testimony before the Grand Jury. Should any Grand Jury Session, at which the testimony of witnesses is to be received, be convened without an official reporter, the Clerk of Courts is hereby ordered to recall all grand jury members from the grand jury room and dismiss them from that day\'s jury service. Should the United States Attorney, or his designate, inform the Clerk that a Grand Jury Session at which testimony of witnesses is to be received, is not to be recorded by an official reporter, the Clerk of Courts is hereby restrained from calling that panel for service on that day.

"IT IS SO ORDERED."

On March 8, in the case cited in footnote 1, Judge Battisti ordered the Government to show cause why it should not produce certain materials. The language of this order was taken directly from the challenged local Rule 15(a) (quoted above), which had been repealed the preceding day.

On March 29, 1973, the Government filed a "Supplement To Petition for a Writ of Mandamus or Prohibition," asking that the action proceed against Judge Battisti. This petition challenges the validity of the order of February 28 requiring the recording of all grand jury testimony, and the order of March 8 requiring discovery.

On April 13, 1973, this court entered an order denying the application for writs of mandamus or prohibition on the ground that these extraordinary writs may not be substituted for an appeal. This order recited that the court will consider the validity of the orders complained of when presented in a proper case on appeal. On May 3, 1973, the Government filed a petition for rehearing, asserting: (1) that there will be no appropriate case in which to contest by appeal the power of the Chief District Judge to forbid the United States to hold Grand Jury Sessions without a court reporter; and (2) that mandamus is the only proper remedy to contest the discovery order in the Moceri case.

This court thereupon granted reconsideration. The issues raised by the Government's petition now are before us for decision.

2) Reporting of Grand Jury Proceedings

This court, as well as a majority of the other circuits, recognizes that the recordation of grand jury testimony, although not required by the Constitution or by statute, is the better practice.

In United States v. Hensley, 374 F.2d 341, 352 (6th Cir. 1967), the rule in this Circuit was stated as follows:

"Appellants claim constitutional infringement by the fact that no record was made of grand jury minutes and hence the testimony was not available to them. They are able to cite no law in support of this contention. We agree with the Second Circuit that having a stenographer present to transcribe the testimony given before the grand jury would be better procedure, but that such a transcript is not a constitutional requirement. United States v. Cianchetti, 315 F.2d 584 (C. A. 2, 1963). We also read Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), and Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1955), generally to the contrary of appellants\' contention."

8 J. Moore, Federal Practice, § 6.022(d), at 6-17, 19 (2d ed. 1965) states that "there is no requirement that testimony before the grand jury must be recorded verbatim, although this is acknowledged to be the better practice."

Among the decisions supporting the above-quoted view of this court are: United States v. King, 478 F.2d 494, 507 (9th Cir. 1973); United States v. Aloisio, 440 F.2d 705 (7th Cir.), cert. denied, 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed. 2d 51 (1971); Schlinsky v. United States, 379 F.2d 735, 740 (1st Cir. 1967); United States v. Cianchetti, 315 F.2d 584 (2d Cir. 1963); United States v. Messitte, 324 F.Supp. 334 (S.D.N.Y. 1971); United States v. Gramolini, 301 F.Supp. 39 (D.R.I.1969); In re Russo, 53 F.R.D. 564 (C.D.Cal.1971).

In United States v. Aloisio, supra, the Court of Appeals for the Seventh Circuit said:

"While we agree that the preservation of grand jury testimony is the wise practice, we are presently unwilling to bind the various district courts of this Circuit to such a practice.

Rather, we will rely upon the individual district courts to exercise their local rule-making powers in this area pending any amendment to Rule 6(e) of the Federal Rules of Criminal Procedure." 440 F.2d at 708.

In a footnote the court commended the United States District Court for the Northern District of Illinois for adopting a local rule requiring the recording of all testimony before a grand jury, in the following language:

"Commendably, the United States District Court for the Northern District of Illinois has already adopted an appropriate rule to that effect:

Local Rule 1.04(c). Official Reporter to Attend Sessions of the Grand Jury. An Official Reporter of this Court shall attend and record all testimony of witnesses appearing before every Grand Jury. Such record shall be filed with the Clerk of the Court and transcribed and released to the Court upon order or to the United States Attorney upon request and payment of the appropriate fees to the Official Reporter.

See United States v. Gramolini, 301 F.Supp. 39 (D.R.I.1969), for a perceptive study of this problem." 440 F.2d at 708, n. 2.

In United States v. King, supra, 478 F.2d at 508, the Court of Appeals for the Ninth Circuit said:

"We repeat our previous warnings, however: the Government is courting disaster when it fails to record grand jury proceedings, and the judges should exercise their discretion to require such recording."

In United States v. Gramolini, supra, 301 F.Supp. at 42, the court said:

"However, the United States Attorney is hereby on notice that every indictment handed down subsequent to the effective date of this decision is vulnerable if grand jury proceedings in obtaining those indictments are not transcribed or otherwise equally effectively recorded."

Rule 6(d), Fed.R.Crim.P., provides that "for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session."

The American Bar Association's Special Committee on Federal Rules of Practice has recommended that Rule 6 be amended so as to require that a court reporter transcribe the minutes of all proceedings of a grand jury that are accusatorial in nature. 38 F.R.D. 106.

In Dennis v. United States, 384 U.S. 855, 869-870, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), the Supreme Court reaffirmed the power of a District Court ...