United States District Court, Southern District of Illinois, S.D
April 14, 1961
UNITED STATES OF AMERICA, PLAINTIFF,
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
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,
"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
The rules were prepared under the following order of the Supreme
Court entered February 13, 1941, which, among other things,
"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
"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
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,
"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
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.  at page
234, 60 S.Ct.  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.
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