United States v. Tager

Decision Date22 June 1979
Docket NumberNo. 78-20052-01,78-20052-01
Citation506 F. Supp. 707
PartiesUNITED STATES of America, Plaintiff, v. Ariel Henry TAGER, Defendant.
CourtU.S. District Court — District of Kansas

COPYRIGHT MATERIAL OMITTED

James P. Buchele, U. S. Atty., Kansas City, Kan., Michael DeFeo, U. S. Dept. of Justice, Kansas City, Mo., for plaintiff.

James R. Wyrsch, Koenigsford, Kusnetsky & Wyrsch, Kansas City, Mo., for defendant.

MEMORANDUM OPINION AND ORDERS

THEIS, Chief Judge.

This matter comes before the Court on numerous pretrial motions filed by defendant Tager. Oral argument and a two day evidentiary hearing were held on these motions on the defendant's request. Thereafter the parties submitted additional evidence requested by the Court. Grand jury materials were assembled and presented to this Court for review on several of these motions. Parties have since submitted numerous and lengthy supplemental briefs on their principal contentions. This matter is now ready for resolution.

Defendant's two primary motions request a dismissal of the indictment and suppression of certain documentary evidence claimed to be the product of illegal searches. The former motion challenges numerous aspects of the grand jury procedure utilized herein and alleges a variety of abuses that defendant claims should warrant a dismissal of the indictment. The latter motion challenges the sufficiency of the affidavit supporting the issuance of the warrant, the scope and nature of two alleged searches, and also raises various alleged privileges regarding the materials seized pursuant to the warrant. Defendant's other motions are treated in a separate order.

Defendant charges numerous instances of grand jury abuse by Special Strike Force Attorneys for the Department of Justice. This Court shall primarily deal with defendant's claim that government lawyers impermissibly breached the grand jury's secrecy when they disclosed grand jury materials to an agent of the insurance companies who allegedly are the victims of defendant's conduct. The government contends that disclosure was made in conformity with an order lawfully entered by a judge in this judicial district pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure. Defendant challenges the authority of the court under Rule 6(e) to issue the order obtained by the government.

1. THE ISSUE UNDER RULE 6(e) OF THE F.R.Cr.P.

The law in this area is largely untested, certainly unsettled, and unclear in many respects. This Court, however, is inclined to agree with defendant that no authority exists for the grand jury disclosure admitted herein. This Court believes that properly interpreted, Rule 6(e) neither authorizes nor permits a court to order the disclosure here obtained by the government. Another federal judge in this district, however, has impliedly held otherwise. Although that decision is not necessarily binding on this Court, it is the policy of the judges in this district to defer to the judgment of their colleagues who have initially ruled on a given question of law. That deference is even more appropriate where, as here, the law on the point is unsettled. This Court will therefore defer to the earlier ruling on this matter as the law of this judicial district until the Court of Appeals for this Circuit instructs otherwise. This Court does so, however, only with great reservation. A brief summary of the facts is appropriate.

A federal grand jury sitting in Topeka, Kansas, returned on April 27, 1978, a twelve-count indictment against defendant Tager and others, charging one count of conspiracy to obtain money through fraudulent means, and eleven substantive counts of mail fraud, all in violation of 18 U.S.C. §§ 1341, 371. The substance of the indictment alleges a broad scheme by certain individuals — among them several lawyers such as defendant here — to defraud insurance companies through submission of false personal injury claims. All of Tager's codefendants have entered pleas of guilty to some of the counts against them and have been sentenced by this Court.

The parties here agree that the instant investigation developed from the independent efforts of the Insurance Crime Prevention Institute (hereinafter "ICPI"), an insurance investigative unit designed to aid in law enforcement and prosecutorial action against perpetrators of insurance fraud. The ICPI is a non-profit organization funded by approximately 325 insurance companies. Mr. Ed House, a paid employee of ICPI and a retired police detective, initially undertook the investigation of various insurance claims whose veracity was suspect. House examined insurance company files and documents, conducted preliminary interviews, and upon his determination that fraud did or might exist, turned over his findings to the United States Postal Inspection Service. The grand jury investigation followed.

The initial grand jury investigation into this matter began before a Kansas City, Kansas grand jury. When the government learned of information that could jeopardize the integrity of the investigation before that body, the investigation was transferred to a different grand jury sitting in Topeka, Kansas. Without a court order, government lawyers during the investigation gave House access to subpoenaed insurance files to obtain his assistance in preparing the case before the grand jury. House aided the government attorneys in selecting certain files as targets for subpoenas. He frequently accompanied the officer who served the subpoenas to retrieve the documents. House's other participation consisted primarily of assisting the Strike Force attorneys in their review of insurance files, explaining and interpreting specialized documentation used by different insurance companies, and answering government questions regarding insurance practices in general. House testified that he had previously seen each subpoenaed grand jury file during his ICPI investigation. Under ICPI procedure, House additionally had access to copies of any of these files and others from the member insurance companies.

On March 2, 1978, the government attorneys submitted a motion and proposed order to my distinguished fellow jurist, Judge Rogers, in Topeka, Kansas, that authorized disclosure of grand jury testimony and materials to House "as deemed necessary by attorneys for the government to assist in the presentation of matters pertaining to this investigation to the grand jury."1 Evidently pursuant to this order, House continued to aid the government attorneys. He assisted in interviewing witnesses subpoenaed before the grand jury. House was also permitted to review testimony of witnesses before the grand jury. Except for one brief occasion when he acted as a courier and delivered documents to the grand jury, House did not himself appear in the grand jury room with the government attorneys. Nevertheless, it is safe to characterize House's association with the ongoing grand jury investigation as substantial and continuous. House apparently played an integral part in the preparation and organization of the appropriate material for presentation to the grand jury. Defendant contends that the disclosure to House, both before and after the order entered March 2, was improper and in violation of Rule 6(e). After extensive research and while denying the relief requested, this Court agrees defendant's position may be soundly based.

Rule 6(e), Federal Rules of Criminal Procedure, sets forth the grand jury secrecy rule as presently employed.2 Subsection (1) states the general rule that secrecy is required and that a knowing violation thereof may be punished as a contempt of court. Subsection (2) "provides for three, and only three, exceptions" to the secrecy rule. In re Biaggi, 478 F.2d 489, 492 (2d Cir. 1973) (Friendly, C. J.). A court may permit a disclosure at a defendant's request upon a showing that grounds may exist to dismiss the indictment. This is manifestly not involved here in the disclosure to House. Subsection (2)(A) permits disclosure of matters occurring before the grand jury to "an attorney for the government" and to "such government personnel as are deemed necessary" to assist that attorney in the performance of his or her duty to enforce federal criminal law. The last exception, subsection (2)(C)(i), permits disclosure upon order of the Court "preliminarily to or in connection with a judicial proceeding." The government has here sought to justify its disclosure to House solely under this last provision, subsection (2)(C)(i).

The crucial issue in this matter concerns the breadth of disclosure permitted under subsection (2)(C). This Court must decide whether the government may augment the disclosure authorized under subsection (2)(A) by utilizing the exception found in (2)(C) to obtain disclosure to persons assisting in the grand jury presentation who do not come within the former subsection. Only one other district court has expressly commented on this narrow issue, and only one Court of Appeals has approached this issue. The case law is hardly conclusive.

The government here sought the expert interpretative aid of a non-attorney to assist in the presentation of material before the grand jury. This was precisely the situation wherein disclosure was contemplated under subsection (2)(A). The necessity for this disclosure caused Congress to amend Rule 6(e) in 1977 expressly to provide for this very type of disclosure within that subsection of the rule. Yet, as the government here apparently concedes, Congress did not see fit to provide for disclosure within that subsection to persons like House — non-government personnel whose expertise the government attorneys desired for assistance before the grand jury.

Both the committee that drafted the new subsection (2)(A) and the Congress that enacted it considered and rejected the use of non-government personnel as expert assistants to a government attorney participating in the grand jury investigation. The Court must conclude that...

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5 cases
  • Sealed Motion, In re
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 21, 1989
    ...quasi judicial powers."); Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248 (1954) (same as the City of Greensboro ). United States v. Tager, 506 F.Supp. 707, 719 (D.C.Kan.1979) also itemizes the broadening expanse of causes where disclosure of grand jury testimony is being granted. In re Minko......
  • In re Judiciary
    • United States
    • U.S. District Court — District of Columbia
    • October 25, 2019
    ...Committee considering impeachment" was made preliminarily to or in connection with a judicial proceeding (quoting United States v. Tager , 506 F. Supp. 707, 719 (D. Kan. 1979) ).Forty-five years ago, Chief Judge John Joseph Sirica ordered that the Watergate grand jury's report on the Presid......
  • United States v. Anderson, Crim. No. CR83010
    • United States
    • U.S. District Court — District of Wyoming
    • October 20, 1983
    ...of rule 6(e) that requires a new trial. United States v. Tager, 638 F.2d 167 (10th Cir.1980). The district court opinion in Tager, 506 F.Supp. 707 (D.C.Kan.1979), which the Tenth Circuit endorsed, confined the meaning of "government personnel," for purposes of rule 6(e), to members of gover......
  • In re Grand Jury Proceedings
    • United States
    • U.S. District Court — District of Massachusetts
    • August 7, 2001
    ...Id. at 480, 103 S.Ct. 3164. 11. For a thorough discussion of the history of the 1977 amendments to Rule 6(e), see United States v. Tager, 506 F.Supp. 707, 713-17 (D.Kan.1979), rev'd, 638 F.2d 167 (10th Cir. 12. Although the proposed amendments would have taken effect on August 1, 1976, Cong......
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