On Petition for Rehearing and Suggestion for Rehearing En Banc.
Fairchild, Chief Judge, Swygert, Cummings, Pell, Sprecher, Tone, Bauer, and Wood, Circuit Judges.
Author: Per Curiam; Swygert
A petition for rehearing en banc in the above-entitled cause on the issue of disclosure of the grand jury testimony was granted on February 28, 1978, thereby vacating the decision of the original panel on this issue. United States v. Clavey, 565 F.2d 111 (7th Cir. 1977).
After rehearing en banc, Judges Fairchild, Swygert, Pell and Sprecher voted to reverse; Judges Cummings, Tone, Bauer and Wood voted to affirm. The court being equally divided on the question, the order of the district court on this issue is affirmed without opinion.
As to all other issues, petition for rehearing en banc was denied, and no rehearing en banc was held. Therefore, in all other respects, the opinion of the panel remains unchanged.
The court affirms the rulings of the district court by an equally divided vote and therefore without an opinion. I feel compelled, however, to file a separate statement because of an entirely new argument made at the last minute by Government counsel. The en banc hearing was granted only on the grand jury issue, and briefs by both parties were addressed prior to the argument on rehearing to that issue as framed by the majority of the original panel and the dissent. See United States v. Clavey, 565 F.2d 111 (7th Cir. 1977). The Government, however, chose to orally argue a position which it never before briefed or argued to either the district court or this court.
The Government now argues that even if the defendant was entitled to inspect a copy of his own grand jury testimony, the error in denying him that right was harmless because the defense of recantation was not available to him. For support the Government cites 18 U.S.C. § 1623(d) which provides that the recantation defense is available only "[if] it has not become manifest that such falsity has been or will be exposed." The Government now argues that it was so "manifest" and that therefore the recantation defense was not available to Clavey.
Until the argument on rehearing, the Government consistently maintained that Clavey was not entitled to inspect a copy of his grand jury testimony because he failed to demonstrate a particularized need. It was not until the en banc hearing that the Government argued that the defense was not even available.*fn1 If this issue is so dispositive and crucial as the Government now contends, I cannot understand why it was not argued before the district judge in the first instance or, in any event, before the original panel. Only at the eleventh hour did Government counsel advance its new position without the benefit of briefs and only on short notice to defense counsel. Regardless of the unfortunate posture of this issue at the rehearing argument, I have given the issue great deliberation. And, because I am convinced that the Government's new position is without merit, I believe I should state my reasons.
At argument the Government contended that the phrase "has not become manifest that such falsity has been or will be exposed," means that the falsity must be exposed to the grand jury.*fn2 Even if the phrase is so interpreted, the Government cannot succeed as the facts will demonstrate.
At trial it was shown that Gene March, a private investigator, performed ten lie detector tests in 1972 for the Lake County Sheriff's Office. March was to receive $1,000 for this job. Prior to this performance, however, March and defendant Clavey, then Sheriff of Lake County, Illinois, agreed that March would kickback $200 to Clavey and $200 to Clavey's assistant, Jerome Schuetz. When March submitted his bill in 1973, he gave Clavey a check for $400 in exchange for a check in the amount of $1,000. On the face of the $400 check appeared the notation, "RT Loan." Clavey's defense at trial was that the $400 constituted repayment of a loan.
Prior to his indictment, Clavey appeared before the grand jury on September 18, 1974. Although Clavey denied that he ever received a kickback from March, he did say that he once loaned money to March. When asked about the amount, Clavey replied, "Oh, just a few dollars."
Clavey first retained his attorney on Sunday, November 24, 1974. The next day the attorney wrote the United States Attorney in which he made ...