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In re Making Available to Attorney General of the

May 22, 1963

IN THE MATTER OF MAKING AVAILABLE TO THE ATTORNEY GENERAL OF THE STATE OF INDIANA CERTAIN TESTIMONY BEFORE THE UNITED STATES GRAND JURY, NORTHERN DISTRICT OF INDIANA, OF VARIOUS WITNESSES IN AN INVESTIGATION RELATING TO METRO HOLOVACHKA. APPEAL OF PATRICK BRENNAN.


Author: Duffy

Before DUFFY, SCHNACKENBERG and CASTLE, Circuit Judges.

DUFFY, Circuit Judge.

The Attorney General of the State of Indiana sought an order from the United States District Court for the Northern District of Indiana, making available to the Attorney General and the Disciplinary Commission of the Indiana Supreme Court, the testimony of Patrick Brennan who appeared before a federal Grand Jury in Hammond, Indiana, on February 7, 1962. Brennan, an attorney, was given leave to intervene, and filed a motion to dismiss the petition.

The District Court denied the motion to dismiss and ordered the Grand Jury minutes, insofar as they pertained to the appearance of Patrick Brennan, be disclosed and removed from the secrecy of the Grand Jury proceeding and be made available for use in the disbarment proceedings of one Metro Holovachka.

The petition of the Attorney General was not verified. It was not accompanied by any affidavit or other supporting documents. The petition recited that Patrick Brennan and one John Solmos had "reportedly testified" before the Grand Jury "concerning a $5,000.00 bribe or fix allegedly made to Metro Holovachka" while the latter was a prosecuting attorney for the State of Indiana. The petition further alleged that a disbarment petition had been initiated against Holovachka, that the Supreme Court had ordered that depositions be taken concerning the charge, and that the Grand Jury transcript was required to enable the Attorney General "to prepare for said judicial proceedings and to properly investigate said matter and evaluate the oral testimony of certain witnesses. * * *"

Rule 6(e) of the Federal Rules of Criminal Procedure provides the measure of authority by which the traditional secrecy of grand jury evidence may, under limited circumstances, be broken.

Rule 6(e) provides, in pertinent part: "(e) Secrecy of Proceedings and Disclosure. 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. * *"

The first sentence of Rule 6(e) refers to attorneys for the government. This means attorneys for the United States Government. In re Grand Jury Proceedings, 3 Cir., 309 F.2d 440, 443. Rule 54 (c) of Federal Rules of Criminal Procedure specifically defines this phrase to mean "the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, an authorized assistant of a United States Attorney."

Two District Courts have specifically held the term includes only attorneys for the United States Government and not the attorneys for any county or state government. United States of America v. Downey, S.D.Ill., 195 F.Supp. 581, 584; United States v. Crolich, S.D.Ala., 101 F.Supp. 782, 784. We hold that the Attorney General of the State of Indiana and his assistants do not qualify under Rule 6(e) as "attorneys for the government."

In United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 986, 2 L. Ed. 2d 1077, the Supreme Court stated: "The grand jury as a public institution serving the community might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow."

This Court, in the case of In re April 1956 Term Grand Jury, 7 Cir., 239 F.2d 263, in an opinion written by Judge Schnackenberg, had occasion to consider in considerable detail the function of a grand jury and its place in our judicial system. We there stated, 239 F.2d at page 269: "While the grand jury is, in a sense, a part of our court system, when exercising its traditional functions it possesses an independence which is unique. * * *" We also stated at page 271: "In this country, as in England of old, the grand jury acts in secret. * * * Grand jury proceedings are traditionally secret. * * * From earliest times it has been the policy of the law to shield the proceedings of grand juries from public scrutiny. * * *"

In the April 1956 Grand Jury case, various documents and records were obtained by means of grand jury subpoenas. In our opinion we said, 239 F.2d at page 271: "With the consent of the grand jury this material has been turned over to treasury agents, who, with their assistants, have been examining it. If these efforts are directed toward the procuring of evidence for civil proceedings now or hereafter pending against petitioners, and that purpose is accomplished, then the secrecy of the grand jury has been breached. We find nothing in the history of the grand jury to justify the perversion of its functions or machinery by third persons for the purposes of a civil proceeding. * * * With the grand jury came its time-honored policy of secrecy. The idea that information obtained from the perusal of material in the possession of a grand jury may be used for the purpose of a civil proceeding is in direct conflict with the policy of secrecy of grand jury proceedings."

In the case at bar, the District Court ordered federal grand jury testimony disclosed in a civil proceeding that was not pending in any federal court. Again, as we said in our opinion hereinbefore cited, 239 F.2d at page 271: "The application of secrecy to its proceedings is a safeguard for the grand jury itself, because it tends to prevent it from being used as an instrument for explorations in aid of civil proceedings."

In United States v. Procter & Gamble Co. (1958), 356 U.S. 677, at page 682, 78 S. Ct. 983 at 986, 2 L. Ed. 2d 1077, the Court said: "This, 'indispensable secrecy of grand jury proceedings,' United States v. Johnson, supra, at 513,*fn1 [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 ...


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