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Carlson v. United States

United States Court of Appeals, Seventh Circuit

September 15, 2016

Elliot Carlson, et al, Petitioners-Appellees,
v.
United States of America, Respondent-Appellant.

          Argued February 18, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 9244 - Ruben Castillo, Chief Judge.

          Before WOOD, Chief Judge, and Kanne and Sykes, Circuit Judges.

          WOOD, Chief Judge.

         During World War II, the U.S. Office of War Information warned the populace that "loose lips sink ships." See The Phrase Finder, http://www.phrases.org.uk/ meanings/237250.html (last visited Sept. 15, 2016). But what if the ships sailed some 70 years before the tongues wag? That is the problem we face in the present case, in which Elliot Carlson, along with a number of scholarly, journalistic, and historic organizations, seeks access to grand-jury materials sealed decades ago. The materials concern an investigation into the Chicago Tribune in 1942 for a story it published revealing that the U.S. military had cracked Japanese codes. The government concedes that there are no interests favoring continued secrecy. It nonetheless resists turning over the materials, on the sweeping ground that Rule 6(e) of the Federal Rules of Criminal Procedure entirely eliminates the district court's common-law supervisory authority over the grand jury. It takes the position that no one (as far as we can tell) has the power to release these documents except for one of the reasons enumerated in Rule 6(e)(3)(E). If that is so, then Carlson and his allies must fail, because his request is outside the scope of Rule 6(e).

         We find nothing in the text of Rule 6(e) (or the criminal rules as a whole) that supports the government's exclusivity theory, and we find much to indicate that it is wrong. In fact, the Rules and their history imply the opposite, which is why every federal court to consider the issue has adopted Carlson's view that a district court's limited inherent power to supervise a grand jury includes the power to unseal grand-jury materials when appropriate. Because the parties agree that this is an appropriate instance (if, in fact, the district court has this power) we affirm the order of the district court.

         I

         The story behind our case is a thrilling one, involving espionage, World War II, and legal wrangling. The year is 1942; the setting, the Pacific Theater. After Pearl Harbor was attacked in December 1941, the shocked U.S. Navy sprang into action. The Japanese military hoped to sink the remainder of the U.S. fleet and was aiming to do so in an attack on Midway Island and the Aleutian Islands, nearly 2, 000 miles away, in June 1942. The Japanese planned to invade the Aleutians with a small detachment so as to lure U.S. ships out of their safe harbors, then attack those ships with a larger force while simultaneously invading and occupying Midway as the U.S. Navy was distracted. See Norman Stone, World War Two 123-24 (2012). Instead, the U.S. Navy forces pulled off a stunning victory, defending Midway and sinking all five carriers that the Japanese had devoted to the operation, as well as some other ships. The victory at Midway was widely seen as a turning point in the Pacific. Id. at 124.

         How did the U.S. Navy know its plan would work? Unbeknownst to Japan, the United States had broken some critical Japanese codes some two years earlier. Anthony Beevor, The Second World War 307 (2012). The U.S. Navy was thus able to figure out beforehand that Japan's attack on the Aleutians was a feint, and Japan's real goal was to overtake Midway and sink U.S. aircraft carriers in the process. Stone, supra, at 123. As the commander-in-chief of the U.S. Pacific Fleet explained in a later report, "[h]ad we lacked early information of the Japanese movement ... the Battle of Midway would have ended far differently." Beevor, supra, at 311.

         This explains why senior U.S. officials were so dismayed when the Chicago Tribune blew their secret. On June 7, 1942, the Chicago Tribune's banner headline announced victory in the Battle of Midway. Right below, the Tribune dropped another bombshell: "Navy Had Word of Jap Plan to Strike at Sea." Stanley Johnston, Chicago Tribune, June 7, 1942, at Al. The article explained that the United States knew that Japan was planning a minor attack on one American base as a distraction from a major attack on another, and this advance notice enabled the Navy to plan its victorious counterattack. The article appeared to be-and as we now know, in fact was- based on a classified Navy communique that alerted naval commanders to the impending attack on Midway Island.

         The article's publication had immediate consequences: President Roosevelt and high-ranking military officials called for a criminal investigation. The Department of Justice complied, empaneling a grand jury and launching an investigation into whether the article's author and other Tribune staff had violated the Espionage Act of 1917. The grand jury heard testimony from an assortment of witnesses, including Tribune personnel, several identified military officers, and three or four unknown officers. Ultimately, the grand jury did not issue any indictments, a decision that the Tribune and other prominent national newspapers hailed as a victory for free speech.

         Fast forward to the present, more than 70 years later. Elliot Carlson is a journalist and historian with a special expertise in naval history. He is the author of Joe Rochefort's War: The Odyssey of the Codebreaker Who Outwitted Yamamoto at Midway, an award-winning book on the commander who broke one of the Japanese codes. Carlson is currently writing a book on the Tribune's Midway article and the ensuing investigation. Carlson and his co-plaintiffs (to whom we refer in the singular as "Carlson" for simplicity's sake) filed a petition in the Northern District of Illinois asking that court to unseal the transcripts of witness testimony before the Tribune grand jury.

         Carlson chose the Northern District of Illinois because it was the court that originally had supervisory jurisdiction over the grand jury in question. He argued that this same court has continuing common-law authority over matters pertaining to that grand jury including any application to unseal grand-jury materials. The convening court, for instance, would have the authority to rule on disclosure pursuant to Federal Rule of Criminal Procedure 6(e). Carlson acknowledged that his request falls outside the scope of the circumstances for releasing grand jury materials enumerated in the Rule. Nonetheless, relying on In re Craig, 131 F.3d 99 (2d Cir. 1997), Carlson argued that the district court has the inherent power to release grand-jury materials in situations not contemplated by Rule 6(e). He concedes that just as other inherent powers of the court should not be exercised lightly, see Dietz v. Bouldin, 136 S.Ct. 1885, 1893 (2016); Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991), this power too is tightly circumscribed. Craig identifies numerous factors that a court should weigh when exercising this limited inherent power.

         Carlson argued that his request satisfied these criteria, and the district court agreed with him. It decided first that it possessed the inherent authority to unseal grand-jury materials in situations outside the scope of Rule 6(e)(3)(E). It considered each point identified by Craig and concluded that disclosure in this case was warranted. It thus ordered that the transcripts be released. The government has appealed (and the order has been stayed pending appeal). The government agrees that if the district court has inherent authority to unseal grand-jury records, then "the transcripts have sufficient historical value to warrant release" under the Craig factors. It argues, however, that Rule 6(e) contains the exclusive list of reasons for which a district court may unseal grand-jury materials, and because historical value is not among them, the court was wrong to grant Carlson's petition.

         II

         Before turning to the merits of the appeal, we must assure ourselves that both the district court and we have jurisdiction over this matter. Because neither Carlson nor any of his fellow petitioner-appellees were parties to the underlying grand jury investigation, we must confirm that at least one of them has standing to bring this claim. See Ezell v. City of Chicago, 651 F.3d 684, 696 n.7 (7th Cir. 2011) ("Where at least one plaintiff has standing, jurisdiction is secure[, ]" citing Vill. Of Arlington Heights v. Metro. Rous. Dev. Corp., 429 U.S. 252, 264 (1977)). And because Carlson does not invoke a Federal Rule of Criminal Procedure as the basis for granting his petition to obtain the records, relying instead on the court's inherent power, we must confirm that we have subject-matter jurisdiction. We solicited supplemental briefs from the parties on these important points.

         A

         1

         As a member of the public, Carlson has standing to assert his claim to the grand-jury transcripts, because they are public records to which the public may seek access, even if that effort is ultimately unsuccessful (perhaps because of sealing, national security concerns, or other reasons). Article III of the Constitution limits the federal courts' power to the adjudication of actual "Cases" and "Controversies." U.S. CONST. Art. III. The doctrine of standing has "developed ... to ensure that federal courts do not exceed" this authority. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). To have standing, a plaintiff "must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). We review each element in turn.

         Carlson's injury-in-fact is the denial of access to government documents that he has a right to seek. A plaintiff suffers an injury-in-fact when she is unable to obtain information that is statutorily subject to public disclosure. Federal Elec. Comm'n v. Akins, 524 U.S. 11, 20-21 (1998); Public Citizen v. Dep't of justice, 491 U.S. 440, 449 (1989). Injury-in-fact can arise from a comparable common-law source. See Spokeo, 136 S.Ct. at 1549; Id. at 1550-53 (Thomas, J., concurring) (explaining that plaintiffs asserting common-law injuries can more easily demonstrate injury-in-fact than others). Carlson needs only a "colorable claim" to a right to access these documents, because "[w]ere we to require more than a colorable claim, we would decide the merits of the case before satisfying ourselves of standing." See Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 900 (7th Cir. 2012); see also Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir. 2009).

         Thus the question becomes whether Carlson has a colorable claim of a right to obtain access to these documents. He does. Carlson argues that grand-jury records are court documents; he argues further that under the circumstances of this case he has a right to review them. Although the grand jury operates according to a "tradition of independence, " United States v. Williams, 504 U.S. 36, 47 (1992), "[t]he Constitution itself makes the grand jury part of the judicial process." Cobbledick v. United States, 309 U.S. 323, 327 (1940); see also Branzburg v. Hayes, 408 U.S. 665, 688 (1972) ("the powers of the grand jury are ... subject to the supervision of a judge"); Levine v. United States, 362 U.S. 610, 617 (1960) (the grand jury is "an arm of the court"); Brown v. United States, 359 U.S. 41, 49 (1959) ("[a] grand jury is clothed with great independence in many areas, but it remains an appendage of the court") overruled on other grounds by Harris v. United States, 382 U.S. 162 (1965); Blair v. United States, 250 U.S. 273, 278 (1919) ("the inquisitorial function of the grand jury ... [is] incident[ to] the judicial power of the United States").

         Because the grand jury is "part of the judicial process, " Cobbledick, 309 U.S. at 327, its "minutes and transcripts" are necessarily "records of the court." United States v. Procter & Gamble Co., 356 U.S. 677, 684-685 (1958) (Whittaker, J., concurring); see also Standley v. Dep't of Justice, 835 F.2d 216, 218 (9th Cir. 1987) ("grand jury materials are records of the district court"); In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 31 (2d Cir. 1981) ("Cuisinarts") (same); United States v. Penrod, 609 F.2d 1092, 1097 (4th Cir. 1979) (same). And because they are records of the court, Carlson has a right to petition for access to them: the public has "a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). The denial at the threshold of the right to petition for access inflicts an injury-in-fact on Carlson. See Akins, 524 U.S. at 20-21; Public Citizen, 491 U.S. at 449. That his petition is not guaranteed to be granted, because a court may find a valid justification for denying him access, in no way destroys his standing to seek the documents. See Nixon, 435 U.S. at 598-99; United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989). To hold otherwise would amount to denying standing to everyone who cannot prevail on the merits, an outcome that fundamentally misunderstands what standing is. See Booker-El, 668 F.3d at 900; Bond, 585 F.3d at 1073.

         For public documents such as these, there is no need for Carlson to show that he has any particular connection to the grand jury proceeding. As we explained in Jessup v. Luther, "[representatives of the press and general public must be given an opportunity to be heard on the question of ... access to documents." 227 F.3d 993, 997 (7th Cir. 2000); see also Corbitt, 879 F.2d at 228-29 (entertaining newspaper's request to see sealed pre-sentence report, and analogizing pre-sentence report to grand jury materials). To hold otherwise would raise First Amendment concerns. Cf. United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982) (recognizing that the "common law right" of public access to court records "supports and furthers many of the same interests which underlie those freedoms protected by the constitution"); Globe Newspaper Co. v. Sup. Ct.for Norfolk Cnty., 457 U.S. 596, 604, 607 (1982) (holding First Amendment guarantees access to criminal trials, and limitations on access are subject to strict scrutiny); Butterworth v. Smith, 494 U.S. 624, 630 (1990) (reiterating, in the context of prohibiting a witness from discussing his testimony, "grand juries are expected to operate within the limits of the First Amendment"). That Carlson is a member of the public is sufficient for him to assert his "general right to inspect and copy ... judicial records." Nixon, 435 U.S. at 597.

         The administrative reality that the physical documents are currently housed in a facility operated by the National Archives and Records Administration (NARA), rather than in a storeroom controlled by the district court, does not change this analysis. NARA is an office of the executive branch; it manages archival documents "to ensure their continued preservation by the United States Government." 44 U.S.C. § 2107(1). The Judiciary uses NARA to store old paper case files. See National Archives, www.archives.gov/research/cat-alog/ (last visited Sept. 15, 2016) (search for court records). Rule 6(e)(1) explains that after the conclusion of a grand-jury investigation, the government's attorneys will "retain control" of grand-jury materials, "[u]nless the court orders otherwise." This indicates that the grand-jury materials are subject to the court's control. The Committee Notes on Rule 6 further make this clear by explaining that the amendment was enacted to "accord with present practice, " but that the Committee "specifically recognized ... that the court in a particular case may have reason to order otherwise." Fed. R. Crim. P. 6(e), Committee Notes 1979. Even when grand-jury materials are in the custody of government attorneys, they "remain the records of the courts, and courts must decide whether they should be made public." Cuisinarts, 655 F.2d at 31.

         Carlson easily satisfies the other two elements of Article III standing. His injury-in-fact is traceable to the respondent's denial of access to the grand-jury materials. That injury would be redressed by a court order granting him the relief he seeks-access to the transcript. Thus, Carlson has standing to seek access to grand jury materials.

         Our decision in Bond v. Utreras is not to the contrary-indeed, it supports this position. 585 F.3d 1061 (7th Cir. 2009). In Bond, we drew a sharp line between civil pre-trial discovery documents that were never filed with the court and documents that were filed with the court. Id. at 1066. We held that "documents filed in court are presumptively open to the public" and explained that this right of access "is derived from ... common-law, " codified by statute, and any "judicially imposed limitations on this right are subject to the First Amendment." Id. at 1073-74 (emphasis added) (citing, inter alia, 28 U.S.C. § 452; Globe Newspaper Co., 457 U.S. at 603-06). We emphasized that although a court may ultimately decide to shield certain documents from the public, the "general right of public access ... is enough to give members of the public standing" to seek them. Id. at 1074. In contrast, there is no statutory, rule-based, common-law, or constitutional right of the public to obtain discovery documents that are never filed with the court (and that is typically the status of the overwhelming majority of the documents exchanged in civil discovery). A non-party thus has no right to intervene to seek them. Id. at 1074-76 (citing SEC v. TheStreet.com, 273 F.3d 222, 233 n.11 (2d Cir. 2001)).

         The grand-jury transcripts that Carlson seeks are not like privately produced civil discovery that never makes it through the courthouse door. They are created under the authority of the grand jury, and they remain at all times under the power of the court. The Supreme Court has said that "[a]t the foundation of our federal government the inquisitorial function of the grand jury and the compulsion of witnesses were recognized as incidents of the judicial power of the United States." Blair, 250 U.S. at 280. A grand jury cannot create any materials without the power of the court being used to empanel the grand jury and issue and enforce its subpoenas. Levine, 362 U.S. at 617. Grand-jury transcripts are produced under "the supervision of" the district court, Branzburg, 408 U.S. at 688, and as a result they represent an exercise of the court's power; they are "filed with the court, " Bond, 585 F.3d at 1073. They constitute a form of judicial papers.

         Because grand-jury transcripts are, in their very nature, judicial documents (just as a transcript of a trial would be), there is no need for them to become part of the judicial proceeding through admission into evidence. Smith v. U.S. Dist. Court for S. Dist. of III, 956 F.2d 647, 650 (7th Cir. 1992) (judicial records to which there is a presumptive right of access include "transcripts of proceedings" and "items not admitted into evidence"). Thus, the presumptive right of access attaches and is sufficient to "give members of the public standing." Bond, 585 F.3d at 1073-74. Carlson asserts a common-law right, and is therefore unlike the journalist in Bond who could point to "no un-filed pre-trial discovery materials. Id. at 1066. And we reiterate that the fact that a rule of criminal procedure or another compelling reason might lead to the denial of Carlson's request in no way affects his standing.

         2

         Our conclusion that the records Carlson is seeking are court records makes it unnecessary for us to reach his alternative arguments: that they are agency records to which he has a statutory right of access under the Freedom of Information Act, 5 U.S.C. § 552, or NARA's enabling statute and implementing regulations, 44 U.S.C. § 2108(a); or that he has an independent common-law right to petition the court for access to them, which gives him an independent basis for standing.

         B

         The next question is whether the district court was authorized to entertain this case. We are satisfied that it was. The court had federal-question jurisdiction under 28 U.S.C. § 1331 because this is an action "arising under the Constitution, laws, or treaties of the United States." Id. That Carlson is relying primarily on federal common law does not change this analysis. See Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850 (1985). Because the case raises a substantial question relating to the scope and meaning of Rule 6(e), federal-question jurisdiction is also proper under Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal.,463 U.S. 1, 28, 103 (1983). See also TurnerlOzanne v. Hy-man/Power, 111 F.3d 1312, 1316 (7th Cir. 1997). Resolving that question requires an examination of the relation between the Federal Rules of Criminal Procedure and a long-standing ...


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