United States v. Young

Decision Date08 May 1980
Docket NumberNo. TY-79-33-CR.,TY-79-33-CR.
Citation494 F. Supp. 57
PartiesUNITED STATES of America v. John Marcus YOUNG.
CourtU.S. District Court — Eastern District of Texas

John H. Hannah, Jr., U. S. Atty., Jeff Baynham, Asst. U. S. Atty., Tyler, Tex., for plaintiff.

Warren Burnett, Odessa, Tex., William H. Kugle, Jr., Athens, Tex., for defendant.

ORDER

JUSTICE, Chief Judge.

John Marcus Young, M.D., waived his right to indictment and entered a guilty plea to each count of a three-count information filed against him by the United States of America. The information charged Dr. Young with the one count of violating 21 U.S.C. § 841(a)(1), in that he knowingly, intentionally, and unlawfully dispensed a schedule two narcotic controlled substance for other than a legitimate medical purpose. The information further charged Dr. Young with two counts of violating 21 U.S.C. § 844(a), in that he knowingly, intentionally, and unlawfully possessed a schedule two narcotic controlled substance not obtained or possessed pursuant to a valid prescription or for a legitimate medical purpose. Dr. Young received a prison sentence on January 4, 1980, and is presently incarcerated. On January 28, 1980, the United States requested, pursuant to Federal Rule of Criminal Procedure 6(e)(3)(C)(i), judicial authorization to disclose to the Texas State Board of Medical Examiners the transcripted testimony of nine witnesses who testified before a grand jury which investigated Dr. Young. The issue now before the court is whether to permit such disclosure.1

I DISCLOSURE WOULD NOT BE PRELIMINARILY TO OR IN CONNECTION WITH A JUDICIAL PROCEEDING

Federal Rule of Criminal Procedure 6(e)(3)(C)(i) permits disclosure of matters occurring before a grand jury "when so directed by a court preliminarily to or in connection with a judicial proceeding." Although the Government can point to no pending judicial proceeding in which the requested transcripts might be used, it argues that the judicial proceeding requirement of Rule 6 is satisfied because Dr. Young is authorized by statute to appeal judicially2 a Board decision to cancel, revoke, or suspend his license.3 It has not been shown, however, that the Board has even scheduled a hearing to determine whether or not to take adverse action against Dr. Young. Regardless, merely demonstrating that Dr. Young has a right to appeal a possible adverse Board decision if a hearing is held does not satisfy the judicial proceeding requirement of Rule 6.

"Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding . . . ." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979) (emphasis supplied). Cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed. 1129 (1940) (compromise of grand jury secrecy permissible "where the ends of justice require it"); In re Biaggi, 478 F.2d 489, 492 (2d Cir. 1973) (must balance interest in grand jury secrecy with goal of just result in a judicial proceeding); In re Grand Jury Proceedings, 483 F.Supp. 422, 424 (E.D.Pa.1979) ("The court must balance the great interest in grand jury secrecy against the goal of a just result in a possible state judicial proceeding."). The Government has failed to identify any manner in which the requested transcripts could be used to avoid injustice in a judicial proceeding. Disclosure of grand jury materials preliminarily to or in connection with a judicial proceeding has been perceived to be in the interest of justice in situations where such materials are needed (1) to refresh the recollection of a witness who will testify at trial or (2) to impeach witnesses or test their credibility at trial. See, e. g., Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979); Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958); State v. United States Steel Corp., 546 F.2d 626, 631 (5th Cir. 1977); Allis-Chalmers Manufacturing Co. v. City of Fort Pierce, 323 F.2d 233, 241 (5th Cir. 1963) ("While the secrecy of grand jury proceedings is to be preserved against wholesale revelation, the needs of justice may require that limited portions of grand jury testimony be made available in particular instances to show inconsistencies and to refresh recollection.").4 Neither the Government nor the Board had made the court aware of such needs.

Focusing on Dr. Young's right judicially to appeal adverse action by the Board, the government cites several cases in support of the proposition that it is the connection between the proceeding in which the grand jury material is used and a future judicial proceeding which determines whether the "preliminarily to or in connection with a judicial proceeding" requirement has been met. See Special February 1971 Grand Jury v. Conlisk, 490 F.2d 894 (7th Cir. 1973); Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir. 1958); United States v. Salanitro, 437 F.Supp. 240 (D.Neb.1977), aff'd sub nom., In the Matter of Disclosure of Testimony Before the Grand Jury, 580 F.2d 281 (8th Cir. 1978); In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F.Supp. 1219 (D.D.C.1974). In light of Douglas Oil, it appears incorrect to focus on the relationship between proceedings rather than to focus on the actual use of grand jury material which is released. Application of Rule 6 should not become a game in which parties secure release of grand jury material for use in a non-judicial proceeding merely by showing some relationship between a non-judicial proceeding and a future judicial proceeding. The phrase "preliminarily to or in connection with a judicial proceeding" should, at the least, mean that requested grand jury material will be used in preparation for a judicial proceeding that is more than a remote potentiality.5 Even if the Board planned to hold an administrative hearing, therefore, this fact alone would not justify production of the requested transcripts in the absence of showing that production is sought to prevent injustice in a judicial proceeding.

It is, moreover, plain that the Board intends to use the requested transcripts for investigative purposes, not to prevent injustice in a judicial proceeding. The body of the Board's letter to the United States Attorney states:

As you may know, the Texas State Board of Medical Examiners is currently conducting an investigation with regard to possible violations of the Medical Practice Act by one of its licensees, John Young, M.D., of Athens, Texas. In this regard, please furnish to this Board all transcripts and statements, probation reports, copies of prescriptions that were utilized in your investigation, the grand jury transcript and taped records which might be helpful to this agency in completing its investigation.
If you have any questions regarding this request, please do not hesitate to contact me. On behalf of the Board, may I express to you our appreciation for your cooperation.

It is doubtful that the Board could more explicitly have requested the transcripts for investigative purposes. Disclosure of grand jury transcripts for such purposes has been condemned.

The Federal Trade Commission does not seek the grand jury evidence for use in any judicial proceedings; it seeks a private disclosure in aid of an administrative investigation into possible violations of the cease and desist orders.
There is no judicial proceeding now pending and it is possible that none may result from the investigation. The function of the Commission is to ascertain whether there is reason to believe that one or more of the corporations is liable to a penalty, and if it is so ascertained, to certify the facts to the Attorney General. The exclusive authority to enforce the statutory provision is vested in the Attorney General. The investigation undertaken by the Commission is preliminary to and in connection with the ex parte administrative proceeding contemplated by the statute; it is not preliminary to or in connection with a judicial proceeding within the intendment of the rule.

In re Grand Jury Proceedings, 309 F.2d 440, 443-44 (3d Cir. 1962) (citation omitted).

The grand jury is not an investigative tool at the disposal of the SEC or any other government agency, and the grand jury process may not be abused by allowing its work-product to be funnelled to other government agencies which happen to have an interest in a subject which a grand jury has examined.

In re Grand Jury Investigation, 414 F.Supp. 74, 76 (S.D.N.Y.1976).6 See City of Philadelphia v. Westinghouse Electric Corp., 210 F.Supp. 486, 490 (E.D.Pa.1962) ("Grand Jury transcript should never be opened solely for discovery purposes.") Cf. United States v. Stanford, 589 F.2d 285, 292 (7th Cir. 1978) (grand jury investigation satisfies Rule 6's judicial proceeding requirement).

II. THERE IS NO COMPELLING NECESSITY REQUIRING DISCLOSURE

Even if the judicial proceeding requirement were met in this case, disclosure is inappropriate because the government has made an insufficient showing of need for the disclosure of the requested transcripts. The extent of the need that must be shown to justify disclosure of grand jury materials has been variously stated. It has been held that the requesting party must show that "the need for disclosure is greater than the need for continued secrecy." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979). It has also been held that the "indispensable secrecy of grand jury proceedings . . . must not be broken except where there is compelling necessity. There are instances when that need will outweigh the countervailing policy. But they...

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    ...not to assist in preparation or conduct of a judicial proceeding. disclosure under (C)(i) is not permitted. See United States v. Young. 494 F. Supp. 57, 60-61 (ED Tex. 1980). ‘ (Emphasis in original; fn. ref. omitted.) 4. ‘Second, because the government takes an active part in the activitie......
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