United States v. Globe Chemical Co.

• Decision Date: 04 November 1969
• Docket Number: Crim. No. 11428.
• Citation: 311 F. Supp. 535
• Parties: UNITED STATES of America v. The GLOBE CHEMICAL CO., Inc., the Herbert Chemical Company, Foremost-McKesson, Inc., Calvert Chemical Co., Chemicals, Inc.—U. S. A., Joseph B. Engelhardt, Individually, and James R. Harrington, Individually.
• Court: U.S. District Court — Southern District of Ohio

311 F. Supp. 535

UNITED STATES of America v. The GLOBE CHEMICAL CO., Inc., the Herbert Chemical Company, Foremost-McKesson, Inc., Calvert Chemical Co., Chemicals, Inc.—U. S. A., Joseph B. Engelhardt, Individually, and James R. Harrington, Individually.

Crim. No. 11428.

United States District Court, S. D. Ohio, W. D.

February 4, 1969.

On Motion to Dismiss for Undue Preindictment Delay October 10, 1969.

On Motion to Dismiss for Failure to Set Forth Facts Constituting Offense October 28, 1969.

On Motion to Dismiss Indictment October 29, 1969.

On Motion to Dismiss on Grounds of Immunity from Prosecution November 4, 1969.

Edwin M. Zimmerman, Asst. Atty. Gen., Washington, D. C., Baddia J. Rashid, Carl J. Steinhouse; Dwight D. Moore, Joseph J. Calbert, John A. Weedon, Robert A. McNew, Attys., Dept. of Justice, Antitrust Division, Cleveland, Ohio, Robert M. Draper, U. S. Atty., S.D. Ohio, Columbus, Ohio, Thomas R. Smith and Robert A. Steinberg, Asst. U. S. Attys., Cincinnati, Ohio, for plaintiff The United States.

J. Wallace Adair, Howrey, Simon, Baker & Murchison, Washington, D. C., Robert G. Stachler, Taft, Stetinius & Hollister, Cincinnati, Ohio, for defendant The Globe Chemical Co. Inc.

Irving Harris, Cors, Hair & Hartsock, Cincinnati, Ohio, for defendants The Herbert Chemical Co. and James R. Harrington.

Daniel A. Rezneck, Arnold & Porter, Washington, D. C., Powell McHenry, Thomas S. Calder, Lawrence R. Elleman, Dinsmore, Shohl, Coates & Deupree, Cincinnati, Ohio, for defendant Foremost-McKesson, Inc.

Steven F. Williams, Nelson Schwab, Jr., Graydon, Head & Ritchey, Cincinnati, Ohio, for defendant Calvert Chemical Co.

Samuel M. Allen, Strauss, Troy & Ruehlmann, Cincinnati, Ohio, for defendant Chemicals, Inc.—U.S.A.

Murray S. Monroe, L. Clifford Craig, Cincinnati, Ohio, for defendant Joseph B. Engelhardt.

On Motion of Globe Chemical Co., Inc., to Dismiss Indictment October 29, 1969.

MEMORANDUM OF OPINION AND ORDER

PORTER, District Judge.

The defendants have filed what they have denominated a "Motion to Inspect Certain Records and to Examine Certain Witnesses in Connection with the Selection of Grand Juries and Proceedings before Grand Juries and to Set Aside the Order Impounding Documents." This has been thoroughly briefed and was the subject of oral arguments, and this is the memorandum of the Court's decision on the motion.

The defendants have all been arraigned and entered pleas of not guilty. This was without prejudice to their right to move to dismiss the indictment or file other Rule 12 motions within ten (10) days after they received any information which the Court orders the government to make available to them in response to this motion.

In general, the motion may be characterized as a request for broad discovery of how the grand jury was selected, who appeared before it, and what it did. There is no showing of any irregularity in the proceedings of the grand jury, but only a belief that there might have been irregularity or abuse of the grand jury by the government's attorneys in presenting the case to the grand jury which returned this indictment.

There are two grand juries in the picture. One had the case under investigation for eighteen months. No indictment was returned. There is nothing to indicate that there was a refusal to indict, just no indictment. The next grand jury took up the investigation. Where the first grand jury examined a number of documents and twenty-one witnesses over an eighteen-month period, the second one examined six witnesses in approximately eight sessions, over a period of six months, and returned an indictment. The defendants seek to find out whether selected portions of the transcript of the testimony heard by the first grand jury were read to the second grand jury, a practice which came under review in the case of In re Grand Jury Investigation of Banana Industries, 214 F.Supp. 856 (D.Md., 1963).

"An indictment returned by a legally constituted and unbiased grand jury * * * if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1955). Hence the only question can be whether the Fourteenth Amendment, Fed.R.Crim.P. Rules 6 or 16, requires serious consideration of that part of the defendants' motion which seeks discovery of what went on in the grand jury proceedings. On this there is an abundance of authority.

To begin with there are a number of good reasons for the traditional doctrine of grand jury secrecy. These are too well known to need summarization here, and it will suffice to refer to the summary in United States v. Rose, 215 F.2d 617, 628-629 (3 Cir., 1954), and what the Supreme Court said in United States v. Procter & Gamble, 356 U.S. 677, 681-682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1957).

For a history of the grand jury, see Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 100 L.Ed. 397 (1955).

Even a casual reading of these and other authorities is enough to remind us of the importance of the doctrine of secrecy and why the veil of secrecy will not lightly be drawn aside.

Hence, it is not surprising, as pointed out by the government (page 5 of government's memo), there must be a "strong and positive" showing of irregularity before grand jury proceedings will be subjected to discovery and that such a showing is not made on mere allegations based on information and belief. United States v. Brennan, 134 F.Supp. 42, 52-53 (D.Minn., 1955), aff'd 240 F.2d 253 (8 Cir.), cert. den. 353 U.S. 931, 77 S.Ct. 718, 1 L.Ed.2d 723 (1957); United States v. Aman, 13 F.R.D. 430, 431 (N.D.Ill., 1953), aff'd 210 F.2d 344 (7 Cir., 1954); United States v. Brumfield, 85 F.Supp. 696, 705-706 (W.D.La., 1949); see also, United States v. American Medical Association, 26 F.Supp. 429 (D.D.C., 1939). See also, Orfield, Vol. 1, Section 6:126, where it is stated:

"It has been said that inspection will be denied in the absence of a strong and positive showing that an indictment was founded solely on incompetent or illegal evidence, or presented in violation of constitutional rights, or as the result of fraud, corruption or caprice."

The defendants contend (defendants' memorandum, page 5), "It is necessary for counsel to examine the minutes of both grand juries to determine whether such abuse use before the second grand jury of selected portions of the testimony taken before the first grand jury existed." This is far from a "showing of irregularity."

Furthermore, it is the view of this Court that this is not a sufficient showing of a particularized need to justify penetrating the veil of secrecy which surrounds grand jury proceedings. See Vol. 1, Orfield, Criminal Procedure under the Federal Rules, Section 6:128. It is likewise the view of this Court that this is not a sufficient showing to justify an in camera inspection, much less a quasi-in camera inspection (one with counsel present but not taking notes) requested by defense counsel in oral argument.

On this subject of a request to inspect grand jury minutes to support a contention that government attorneys were guilty of misconduct before the grand jury it appears that in the exercise of the sound discretion to which this is addressed, the Court may deny the motion where the affidavits in support of the motion, although uncontradicted, show no impelling reason for the production of grand jury minutes. Orfield, section 6:123, citing Beatrice Foods Co. v. United States, 312 F.2d 29 (8 Cir., 1963), cert. den., 373 U.S. 904, 83 S.Ct. 1289, 10 L.Ed.2d 199.

The defendants would have the Court discount cases which are thirty or forty years old, e. g., Costello, supra. We decline the invitation as to Costello. We also think there are others of the same vintage which have force today. Thus, in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), the Supreme Court refused to quash an indictment returned by a grand jury which heard testimony of a party who related statements made by the defendant under circumstances which made them inadmissible. But see, United States v. Tane, 329 F.2d 848 (2 Cir., 1964), where the opposite result was reached in view of a disclosure by the United States Attorney that the indictment was based almost exclusively on illegally obtained evidence.

And in United States v. American Medical Assn., 26 F.Supp. 429 (D.D.C., 1939) the Court would not dismiss an indictment even in face of averments on information and belief that government attorneys presented irrelevant testimony to the grand jury, advised the grand jury concerning the law, and acted improperly in obtaining the indictment. The Court held the power to go behind an indictment is "justified only where by proper verified pleading a clear and positive showing is made of gross and prejudicial irregularity influencing the grand jury in returning an indictment" (page 431).

And see United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943), where the Court stated in reversing an order dismissing an indictment:

"Were the ruling of the court below allowed to stand, the mere challenge, in effect, of the regularity of a grand jury's proceedings would cast upon the government the affirmative duty of proving such regularity. Nothing could be more destructive of the workings of our grand jury system or more hostile to its historic status" (page 513, 63 S.Ct. page 1238).

And in Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1957), the Court denied a defense request that a hearing be held to determine if a subsequent indicting grand jury used the same testimony produced before a prior grand jury which did not return an indictment.

In the light of the cases, the motion to inspect the grand jury minutes is denied. The Court also declines to make an in camera inspection for the purposes of a Rule 12 motion.

In reaching this result, we have not...