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UNITED STATES v. DOWNEY

United States District Court, Southern District of Illinois, S.D


April 14, 1961

UNITED STATES OF AMERICA, PLAINTIFF,
v.
WILLIAM W. DOWNEY, DEFENDANT, AND WILLIAM L. GUILD, AS ATTORNEY GENERAL OF ILLINOIS, AND J. WALDO ACKERMAN, AS STATE'S ATTORNEY OF SANGAMON COUNTY, ILLINOIS, INTERVENING PETITIONERS.

The opinion of the court was delivered by: Poos, District Judge.

William L. Guild, as Attorney General of Illinois, and J. Waldo Ackerman as State's Attorney of Sangamon County, Illinois, intervened here and filed a motion for disclosure of Grand Jury proceedings, and in the motion asked for a disclosure pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and in support of the motion, alleged:

(1) That the disclosure is requested for the use in the performance of their duties by the Attorney General of Illinois and the State's Attorney of Sangamon County, Illinois.

(2) That the ends of justice require disclosure.

This motion was filed on September 7, 1960. On November 28, 1960, a supporting affidavit was filed. The affidavit states that J. Waldo Ackerman is the duly elected State's Attorney for Sangamon County, Illinois, and sets out his statutory duties which provide that he is required to commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in any court of record in Sangamon County, Illinois; and that he attend all sessions of the Sangamon County Grand Jury, and present to it evidence of all criminal violations that occur in Sangamon County, Illinois. The affidavit further sets out that it is the duty of the Attorney General under Paragraph 4, Chapter 14, Illinois Revised Statutes:

    "to consult with and advise the several State's
  Attorneys in matters relating to the duties of their
  office;

  and when, in his judgment, the interest of the people
  of the State requires it, he shall attend the trial
  of any party accused of crime, and assist in the
  prosecution. * * *",

and that the purpose of the motion is to review the Grand Jury proceedings and to present any and all such matters revealed to a duly constituted Grand Jury of Sangamon County if it appears from such disclosures that a crime against the people of the State of Illinois has been perpetrated.

William W. Downey, on the hearing of this motion, was represented by counsel, and both the Attorney General and the State's Attorney appeared by their assistants.

Federal Rule of Criminal Procedure 6(e) on which the motion is based, is as follows:

    "Disclosure of matters occurring before the Grand
  Jury other than its deliberations, and the vote of
  any juror may be made to the attorneys for the
  government for use in the performance of their
  duties. Otherwise a juror, attorney, interpreter or
  stenographer may disclose matters occurring before
  the Grand Jury only when so directed by the Court
  preliminarily to, or in connection with a judicial
  proceeding, or when permitted by the Court at the
  request of the defendant upon a showing that grounds
  may exist for a motion to dismiss the indictment
  because of matters occurring before the Grand Jury.
  No obligation of secrecy may be imposed upon any
  person except in accordance with this rule.* * *"

The defendant was indicted in this proceeding for evasion of income taxes for the years 1953, 1954, 1955 and 1956, by an indictment returned March 11, 1960. Later, on September 1, 1960, the defendant pleaded guilty and was sentenced.

Factually it appears from the record that William W. Downey, defendant, was, during the taxable years in question, an employee of the State of Illinois as a Secretary in the Governor's Office. The Attorney General and the State's Attorney concede that he had nothing to do with Illinois State moneys or funds. On the argument of the motion, no facts were stated by these officers that would even tend to show the violation by defendant of any criminal statute or law of Illinois.

It does not appear from the affidavit of J. Waldo Ackerman that he has knowledge of any facts that would warrant him as State's Attorney to make a presentment to a State Grand Jury of violation of any criminal law of Illinois; nor does the court know, or is the court advised of any facts by hearsay or otherwise that would disclose the violation of any criminal statute of Illinois.

The movants take the position that they, since the adoption of Rule 6(e), and as provided under the first sentence of the Rule, are such "attorneys for the government" as entitles them to have the stenographic grand jury transcribed evidence for use in the performance of their duties. They say that since the adoption of the Rule 6(e), with the approval of Congress, there is no longer secrecy of matters occurring before federal grand juries, and that previous rules no longer prevail.

An investigation of this question discloses that the grand jury is provided for under the Fifth Amendment to the Constitution, which provides:

    "No person shall be held to answer for a capital,
  or otherwise infamous crime, unless on a presentment
  or indictment of a Grand Jury * * *."

The grand jury thus referred to in this amendment has to do with indictments for violation of criminal laws of the United States, and not with criminal offenses against the laws of a State. Section 6(e) is a part of the Federal Rules of Criminal Procedure. These rules were provided for by the Act of February 24, 1933, c. 119, 47 Stat. 904, as amended by the Act of June 29, 1940, c. 445, 54 Stat. 688. The amended Act is as follows:

    "The Supreme Court of the United States shall have
  the power to prescribe, from time to time, rules of
  pleading, practice, and procedure with respect to any
  or all proceedings prior to and including verdict, or
  finding of guilty or not guilty by the court if a
  jury has been waived, or plea of guilty, in criminal
  cases in district courts of the United States. * * *

    "Such rules shall not take effect until they have
  been reported to Congress by the Attorney General at
  or after the beginning of a regular session thereof,
  and until after the close of such session, and
  thereafter all laws in conflict therewith shall be of
  no further force and effect." (Act of June 29, 1940,
  c. 445, 54 Stat. 688, U.S.C. Title 18, Sec. 687, now
  Sec. 3771).

The rules were prepared under the following order of the Supreme Court entered February 13, 1941, which, among other things, provided,

"It is ordered:

    "(1) Pursuant to the Act of June 29, 1940, (Public,
  No. 675, 76th Congress), the Court will undertake the
  preparation of rules of pleading, practice, and
  procedure with respect to proceedings prior to and
  including verdict, or findings of guilty or not
  guilty, in criminal cases in the district courts of
  the United States.

    "(2) To assist the Court in this undertaking, the
  Court appoints the following Advisory Committee to
  serve without compensation * * *

    "(3) It shall be the duty of the Advisory
  Committee, subject to the instructions of the Court,
  to prepare and submit to the Court a draft of rules
  as above described. * * *"

Under the above Acts of Congress, and Order of the Court, the rules were prepared, submitted to and approved by the Court, and became effective three months after adjournment of the first regular session of the 79th Congress, as provided in Rule 59, which further provides:

    "They govern all criminal proceedings thereafter
  commenced and so far as just and practicable all
  proceedings then pending."

Rule 1 provides:

    "These rules govern the procedure in the Courts of
  the United States and before United States
  Commissioners in all criminal proceedings, with the
  exceptions stated in Rule 54."

Rule 60 provides:

    "These rules may be known and cited as the Federal
  Rules of Criminal Procedure."

It is apparent from reading these rules above quoted that all proceedings intended or mentioned therein refer to the proceedings in the courts of the United States, and none other. The words in the first sentence of Rule 6(e), "to the attorneys for the government for use in the performance of their duties", clearly are intended to and could only mean attorneys for the United States Government, and not the attorneys of any county or state government. The words of the second sentence, "otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding", clearly are intended to and could only mean in connection with a judicial proceeding in a United States Court.

This exact question was before the court in United States v. Crolich, D.C., 101 F. Supp. 782, where the court said, at page 784:

    "The phrase `preliminarily to, or in connection
  with a judicial proceeding', contemplates a
  proceeding in a District Court which would
  necessitate the disclosure of matters occurring
  before a grand jury impaneled by that court. There is
  no proceeding pending in this court which would
  justify such action * * *."

In this case the motion was that testimony before grand jury concerning illegal
action of election officials be made known to a County Board charged with the duty of appointing election officials.

If this were not true, and if Congress or the United States Supreme Court could make rules for criminal procedure in the State courts, then one would have to disregard the provisions of Article IV, Sec. 4 of the Constitution of the United States, which provides:

    "The United States shall guarantee to every State
  in this Union a Republican Form of Government * * *."

A republican form of government includes the right to have a system of state courts. The rule is aptly stated in 11 Am.Jur., Sec. 174, page 870, as follows:

    "Among the matters which are implied in the Federal
  Constitution, although not expressed therein, is that
  the National Government may not, in the exercise of
  its powers, prevent a state from discharging its
  ordinary functions of government. This corresponds to
  the prohibition that no state can interfere with the
  free and unembarrassed exercise by the Federal
  Government of all powers conferred upon it. In other
  words, the two governments, national and state, are
  each to exercise its powers so as not to interfere
  with the free and full exercise of the powers of the
  other."

This authority cites in support thereof, Education Films Corp. v. Ward,
282 U.S. 379, 51 S.Ct. 170, 75 L.Ed. 400; Carlesi v. People of State of New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843; State of South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110, 50 L.Ed. 261; Metcalf v. Mitchell, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384; and others.

The only power that this court has, whether discretionary or mandatory, comes from the Constitution of the United States, laws enacted by Congress, and the Federal Rules of Criminal Procedure.

It has been pointed out above that the movants are not such officers as are contemplated by the Federal Rule of Criminal Procedure 6(e), because these rules are intended to govern, and only govern, the United States Courts and the Attorneys of the United States in the performance of their duties.

The movants further advance the theory that since the adoption of Rule 6(e) there is no longer secrecy of matters occurring before federal grand juries except as provided in this rule, and that the court has discretionary power to allow the motion. They cite in support of this argument United States v. Byoir, 5 Cir., 147 F.2d 336. It is readily apparent from reading this case that the matter there involved had to do with matters in federal courts and the case is no authority concerning the secrecy of grand jury proceedings in matters outside the jurisdiction of federal courts. There the court had an undoubted legal basis under the Rule to support the exercise of discretion and the finding of the Court of Appeals was, "we find no abuse of discretion", and the Court particularly points out, at page 337,

    "There may be some question as to whether the order
  means that disclosure by the district attorney,
  equally with that by the stenographer, is to wait on
  the ruling of Judge Leibell. We think it should be so
  understood, but to make it plain we modify it to say
  expressly that all disclosures provided in it are to
  be made only if and after Judge Leibell shall hold
  the evidence sought is relevant and admissible
  evidence in the proceeding pending before him."

It is not apparent from a reading of this case that the grand jury evidence was ever disclosed.

The movants take two positions, viz., (1) that secrecy of grand jury proceedings in the federal court system under Rule 6(e) no longer exists, and, (2) by reason of this Rule they are entitled to have the stenographic transcript revealed as a matter of discretionary right, without the affirmative showing of any factual necessity therefor.

In answer to these propositions, the Supreme Court of the United States has ruled contrary to the positions taken by movants. In Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323, the question was whether a district court judge had abused his discretion in refusing to permit defendants charged with conspiracy under the Sherman Act to inspect grand jury minutes under Rule 6(e) covering testimony before that body of an allegedly key government witness. It appeared at the trial, on cross-examination of the witness, that he had testified three times on "the same general subject matter." Thereupon counsel moved for the delivery of the grand jury minutes and stated that "the petitioners had `a right * * * to inspect the Grand Jury record, of the testimony of this witness after he has completed his direct examination' relating to `the same general subject matter' as his trial testimony." The Court in response to this said, 360 U.S. 398, 79 S.Ct. 1240.

    "Petitioners concede as they must that any
  disclosure of grand jury minutes is covered by
  Fed.Rules Crim.Proc. 6(e) promulgated by this Court
  in 1946 after the approval of Congress. In fact, the
  federal trial courts, as well as the Courts of
  Appeals, have been nearly unanimous in regarding
  disclosure as committed to the discretion of the
  trial judge. Our cases announce the same principle
  and Rule 6(e) is but declaratory of it. As recently
  as last term, we characterized cases where grand jury
  minutes are used `to impeach a witness, to refresh
  his recollection, to test his credibility and the
  like' as instances of `particularized need where the
  secrecy of the proceedings is lifted discretely and
  limitedly'. U.S. v. Proctor and Gamble [Co.], 1958,
  356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077.

    "Petitioners argue, however, that the trial judge's
  discretion under Rule 6(e) must be exercised in
  accordance with the rationale of Jencks; namely, upon
  a showing on cross-examination that a trial witness
  testified before the grand jury, and nothing more;
  the defense has a `right' to the delivery to it of
  the witness' grand jury testimony. This conclusion,
  however, runs counter to `a long-established policy'
  of secrecy, United States v. Proctor and Gamble
  [Co.], supra, 356 U.S. at page 681, 78 S.Ct. at page
  986, older than our Nation itself. The reasons
  therefor are manifold, id., 356 U.S. at page 682, 78
  S.Ct. at page 986, and are compelling when viewed in
  the light of the history and modus operandi of the
  grand jury. Its establishment in the Constitution `as
  the sole method for preferring charges in serious
  criminal cases' indeed `shows the high place it
  (holds) as an instrument of justice.' Costello v.
  United States, 1956, 350 U.S. 359, 362, 76 S.Ct. 406,
  408, 100 L.Ed. 397. Ever since this action by the
  Fathers, the American grand jury, like that of
  England, `has convened as a body of laymen, free from
  technical rules, acting in secret, pledged to indict
  no one because of prejudice and to free no one
  because of special favor.' Ibid. Indeed, indictments
  may be returned on hearsay or for that matter, even
  on the knowledge of the grand jurors themselves. Id.
  350 U.S. at pages 362, 363, 76 S.Ct. at pages 408,
  409. To make public any part of its proceedings would
  inevitably detract from its efficacy. Grand jurors
  would not act with that independence required of an
  accusatory and inquisitorial body. Moreover, not only
  would the participation of the jurors be curtailed,
  but testimony would be parsimonious if each witness
  knew that his testimony would soon be in the hands of
  the accused. Especially is this true in antitrust
  proceedings where fear of business reprisal might
  haunt both the grand juror and the witness.

  And this `go slow' sign would continue as
  realistically at the time of trial as theretofore.

    "It does not follow, however, that grand jury
  minutes should never be made available to the
  defense. This Court has long held that there are
  occasions, see United States v. Proctor and Gamble
  [Co.], supra, 356 U.S. at [page] 683, 78 S.Ct. at
  page 985, where the trial judge may in the exercise
  of his discretion order the minutes of a grand jury
  witness produced for use on his cross-examination at
  trial. Certainly `disclosure is wholly proper, where
  the ends of justice require it'. United States v.
  Socony-Vacuum Oil Co., supra, 310 U.S. [150] at page
  234, 60 S.Ct. [811] at page 849 [84 L.Ed. 1129].

    "The burden, however, is on the defense to show
  that `a particularized need' exists for the minutes
  which outweighs the policy of secrecy. We have no
  such showing here."

In an earlier case, United States v. Proctor and Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077, the same rule is announced. The Court said at 356 U.S. 681, 78 S.Ct. at page 986:

    "On the merits we have concluded that `good cause',
  as used in Rule 34, was not established. The
  Government as a litigant is, of course, subject to
  the rules of discovery. At the same time, we start
  with a long-established policy that maintains the
  secrecy of grand jury proceedings in the federal
  courts. See United States v. Johnson, 319 U.S. 503,
  513, 63 S.Ct. 1233, 1238, 87 L.Ed. 1546; Costello v.
  United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408,
  100 L.Ed. 397. The reasons are varied. One is to
  encourage all witnesses to step forward and testify
  freely without fear of retaliation. The witnesses in
  antitrust suits may be employees or even officers of
  potential defendants, or their customers, their
  competitors, their suppliers. The grand jury as a
  public institution might suffer if those testifying
  today knew that the secrecy of their testimony would
  be lifted tomorrow. This `indispensable secrecy of
  grand jury proceedings,' United States v. Johnson,
  supra, 319 U.S. at page 513, 63 S.Ct. at page 1238,
  must not be broken except where there is a compelling
  necessity. There are instances when that need will
  outweigh the countervailing policy. But they must be
  shown with particularity.

    "No such showing was made here. The relevancy and
  usefulness of the testimony sought were, of course,
  sufficiently established. If the grand jury
  transcript were made available, discovery through
  depositions, which might involve delay and
  substantial costs, would be avoided. Yet these
  showings fall short of proof that without the
  transcript a defense would be greatly prejudiced or
  that without reference to it an injustice would be
  done. * * * Only strong public policies weigh against
  disclosure. They were present in Hickman v. Taylor,
  supra [329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451], for
  there the information sought was in the trial notes
  of the opposing lawyer. They are present here because
  of the policy of secrecy of grand jury proceedings.
  We do not reach in this case problems concerning the
  use of the grand jury transcript at the trial to
  impeach a witness, to refresh his recollection, to
  test his credibility, and the like. Those are cases
  of particularized need where the secrecy of the
  proceedings is lifted discretely and limitedly. We
  only hold that no compelling necessity has been shown
  for the wholesale discovery and production of a grand
  jury transcript under Rule 34. We hold that a much
  more particularized, more discrete showing of need is
  necessary to establish `good cause' * * *."

The cases adequately answer the position of movants and show (1) that Federal grand jury proceedings are still covered with secrecy under Rule 6, (e), and (2) that movants are not entitled as a matter of court discretionary right to have the transcript until an adequate showing is made with factual reasons to justify disclosure. This record is void of any showing whatever of either factual, hearsay or even rumor that there has been a criminal violation of the laws of Illinois. If the impelling reason is so strong and is found to be absent in the two foregoing cases where the principals involved were parties to Federal court proceedings, then the necessity for showing an impelling reason is just as strong in so far as parties dehors the record are concerned. In such case as this, the Court does not have even a discretion to exercise. Quite similar is the case of United States v. Weber, 2 Cir., 197 F.2d 237. In this case motion was made at the trial for the grand jury minutes. The Court said:

    "The accompanying affidavit advanced no facts in
  support of the application. In denying the motion the
  district judge stated that in essence it was `a
  fishing expedition.' * * * A mere request to inspect
  the minutes, without any statement of facts
  indicating insufficiency of the evidence, is not
  enough to require the court to inspect the minutes."

See also United States v. Costello, D.C., 119 F. Supp. 159, 160, where the Court said:

    "The affidavit submitted on the present application
  is devoid of any facts to compel the conclusion that
  this is one of these rare cases in which the Court
  should exercise its discretionary power."

United States v. Sugarman, D.C., 139 F. Supp. 878 is to the same effect. The cases from Supreme Court, the Courts of Appeals and the trial courts above cited are all to the effect that unless there is a factual showing made as to the necessity of disclosure, the veil of secrecy of the grand jury transcript should not be lifted in the United States Courts, and absent a showing of any facts whatsoever as in this record, the reason is just as impelling as to parties absent the record as here.

Accordingly, there being no factual basis to support the motion, and under the strength of the authorities above cited, the motion of movants is denied.

19610414

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