United States v. Doe, 72-1021.

• Decision Date: 11 February 1972
• Docket Number: No. 72-1021.,72-1021.
• Parties: UNITED STATES of America, v. John DOE. In the Matter of Grand Jury Proceeding: Application of Daniel ELLSBERG for Protective Order.
• Court: U.S. Court of Appeals — First Circuit

455 F.2d 1270 (1972)

UNITED STATES of America, v. John DOE.

In the Matter of Grand Jury Proceeding: Application of Daniel ELLSBERG for Protective Order.

No. 72-1021.

United States Court of Appeals, First Circuit.

Heard January 18, 1972 on Motion for Stay.

Heard January 21, 1972 on Motion for Stay and Motion to Dismiss.

Decided February 11, 1972.

COPYRIGHT MATERIAL OMITTED

Charles R. Nesson, Cambridge. Mass., for appellant upon application for stay.

Richard J. Barry, Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., David R. Nissen and Warren P. Reese, Asst. U. S. Attys., were on motion to dismiss and memorandum in opposition to stay, for appellee.

Before McENTEE and COFFIN, Circuit Judges.^*

COFFIN, Circuit Judge.

Daniel Ellsberg, a defendant in a pending criminal prosecution initiated by an indictment in the Central District of California, seeks a protective order barring a grand jury sitting in the District of Massachusetts (Boston) from gathering evidence which would be relevant to his trial in California. The district court denied the motion, basing its decision on the prosecution's representation "that its purpose in calling witnesses in Boston is not to obtain testimony or other evidence tending to prove the charge or charges in California but to determine whether any offense or offenses against the United States may have been committed within the District of Massachusetts." Movant now asks for a stay of the denial pending appeal.

The California indictment charges Ellsberg with unlawful possession of classified government documents (18 U.S.C. § 793(e)) and with unlawful conversion of such documents to his own use (18 U.S.C. § 641). In addition, Ellsberg, Anthony Russo and "others unknown" are charged with entering into a conspiracy with two other named but unindicted co-conspirators "to defraud the United States . . . by defeating its lawful governmental function of controlling the dissemination of classified Government studies", more specifically, by receiving the Pentagon Papers, copying them, and communicating them to unauthorized persons. Trial is scheduled to commence in from six to ten weeks.

The protective order which movant seeks would bar the prosecution from asking any witness subpoenaed to testify before the Boston grand jury questions bearing on the charge that he, Ellsberg, had conspired to communicate the Pentagon Papers to unauthorized persons, as broadly charged in the California indictment. The request is based on movant's assertion that use of the powerful and essentially unreviewable grand jury process in Boston to aid preparation of the government's case in California would subvert the protections accorded a defendant by the Federal Rules of Criminal Procedure and would consequently jeopardize his right to a fair trial on the pending charges. Although movant's argument, so put, contains due process elements, he appeals principally for an exercise of this court's general supervisory powers.

Although the attorneys for the government—the same three being responsible for both the presentation before the Boston grand jury and the California trial jury—have stated that the principal purpose of the Boston proceedings is to ascertain whether offenses against the United States, other than those already charged in the California indictment, have been committed and have expressly disavowed any intent to utilize the Boston grand jury "to extract testimony for use . . . in Los Angeles", they candidly admit that the investigation here may turn up some evidence relevant to the California proceedings. As long as such evidence remains a necessary—though usable—byproduct of the Boston investigation and is not allowed to disturb the focus of that investigation, however, the government contends that such evidence is properly usable in the California trial. It also believes that the Boston grand jury is not foreclosed from inquiring into events in Boston which "suggest other aspects" of the conspiracy alleged in the California indictment or "separate conspiracies involving Daniel Ellsberg as a central figure".

As to the present appeal, the government challenges on jurisdictional grounds our power to issue a stay, arguing that the district court's denial of the motion for a protective order was not a final determination of movant's rights under 28 U.S.C. § 1291, citing Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); and In re Grand Jury Investigation of Violations (General Motors), 318 F.2d 533 (2d Cir.), cert. dismissed, 375 U.S. 802, 84 S.Ct. 25, 11 L.Ed.2d 37 (1963). In the usual case in which the grand jury investigation and any subsequent trial are likely to be confined to a single jurisdiction, we would be inclined to agree with the government's contention. Our problem here is especially vexing, however, because we are not so sure that any other forum exists for a final testing or full review of movant's claim. Nor, the government admits, is it, suggesting only that all would not be lost were we to decline jurisdiction now since the Massachusetts District Court could, if necessary, exercise its continuing supervisory power and would retain its power to discipline the individual government attorneys in the event a breach of trust were later brought to our attention.

In several significant respects, the present case differs from those cited to us by the government. Cobbledick dealt with a grand jury witness who could assure himself of a final decision by provoking a contempt citation. Di Bella concerned a pre-indictment movant for suppression of evidence who could have his day in court by moving to suppress at his own criminal trial. In re Grand Jury Investigation of Violations involved a factual situation much closer to the present case. But although the Second Circuit refused to disturb the district court ruling being appealed there it had considerable difficulty pointing out where the party seeking to quash grand jury subpoenas allegedly being used to produce evidence for a criminal prosecution against it, General Motors, could get real protection in the event it would ultimately prove an abuse of the grand jury process. 318 F.2d at 538.¹

The nature of movant's claim is a large and compendious one. The rule, as accurately stated by Professor Moore, does not differ markedly from the general position staked out by the government : "It is improper to use the grand jury for the purpose of preparing an already pending indictment for trial. But the courts have generally held that where another purpose is predominant, the fact that the government may derive incidental benefit from a grand jury proceeding does not preclude its use." The classic case, In re National Window Glass Workers, 287 F. 219 (N.D.Ohio 1922), dealt with a grand jury subpoenaing the same witnesses and documents as had a prior grand jury which issued an indictment, where the court's compelled conclusion was that the "dominating, if not the only, object" was to prepare for trial of the earlier indictment. Id. at 227. In another case, the Supreme Court refused to interfere with government use of a grand jury transcript in the preparation of a civil suit, even though no indictment was returned, in the absence of a finding that the grand jury had been used as a short cut or that criminal procedure had been subverted. United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). In United States v. Dardi, 330 F.2d 316, 336 (2d Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964), the test was thus stated: "It is improper to utilize a Grand Jury for the sole or dominating purpose of preparing an already pending indictment for trial."

Movant's claim of taint, therefore, would be the expansive one that the Boston grand jury, as a whole, had, as its sole or dominating purpose, preparation for trial of the California criminal prosecution. This claim could be tested only by a comprehensive viewing of the entire Boston grand jury minutes. But Rule 6(e) of the Federal Rules of Criminal Procedure gives movant no right to disclosure, except upon a showing of grounds for dismissal of the indictment. Moreover, the 1970 amendments to the Jencks Act, 18 U.S.C. § 3500, make clear that a defendant has no right to compel pre-trial disclosure of grand jury minutes. 1970 U.S.Code Cong. and Admin.News, at p. 4017. And, we cannot envisage the California District Court, even in camera, reviewing months of testimony. Accordingly, either on the principle of Cohen v. Beneficial Ind. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), or Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), we are inclined to feel that the denial of the motion for a protective order under the circumstances has such finality as to confer appellate jurisdiction.²

But the same problem of immensity of claim that inclines us to take appellate jurisdiction also poses the most serious problem in structuring an intervention in such a way as to respect the independent role of the grand jury while at the same time giving absolute protection to movant. We cannot, for example, subscribe to the protective order requested and attempt to bar the grand jury from inquiring of a witness whether movant communicated the Pentagon Papers to an unauthorized person. In the first place, such a transaction could be a separate crime committed in Massachusetts, implicating additional prospective defendants, as well as being germane to the California trial. In the second place, we give credence to the government attorneys when they say that they do not know in advance what testimony will be forthcoming from a witness. And, finally, we recognize the futility both of barring questions which might occur to the jurors themselves and of policing the questions which could be put. This...