ANTHONY S. PITCH, Plaintiff - Appellee, versus UNITED STATES OF AMERICA, Defendant - Appellant.
No. 17-15016
United States Court of Appeals for the Eleventh Circuit
February 11, 2019
D.C. Docket No. 5:14-mc-00002-MTT. [PUBLISH]
Before WILSON and JORDAN, Circuit Judges, and GRAHAM, District Judge.
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Appeal from the United States District Court for the Middle District of Georgia
(February 11, 2019)
Before WILSON and JORDAN, Circuit Judges, and GRAHAM,* District
WILSON, Circuit Judge:
In 1946, a crowd of people in Walton County, Georgia gathered as two African American couples were dragged from a car and shot multiple times.1 Many consider this event, known as the Moore‘s Ford Lynching, to be the last mass lynching in American history. Racial tensions in Georgia were high. African American citizens were allowed to vote in a Georgia Democratic Party primary for the first time that year.2 The murders occurred shortly after the primary and immediately garnered national media attention. National outrage, including condemnation from then Special Counsel to the NAACP Thurgood Marshall, ultimately led President Harry Truman to order an FBI investigation. In late 1946, a district court judge in Georgia convened a grand jury. But after sixteen days of witness testimony, no one was ever charged. The case remains unsolved.
Over seven decades later, Anthony Pitch, an author and historian, petitioned the Middle District of Georgia for an order unsealing the grand jury transcripts. The district court granted his request. The government now appeals, arguing the district court abused its discretion in unsealing the transcripts. After careful review and with the benefit of oral argument, we affirm.
I. Factual and Procedural Background
Anthony Pitch wrote a book about the Moore‘s Ford Lynching. In 2014, while researching the event for the book, Pitch petitioned the Middle District of Georgia to unseal the federal grand jury records related to the incident. Initially, the district court denied the petition without prejudice because Pitch did not present evidence that the records even existed. Three years later, Pitch renewed his petition, arguing that his investigation revealed that the records were at the National Archives in Washington, D.C. The district court ordered the government to produce the records for in camera inspection. The government filed the transcripts under seal. And against the objections of the government, the district court ordered the transcripts be unsealed. To do so, the district court relied on its inherent authority under In re Petition to Inspect & Copy Grand Jury Materials (Hastings), 735 F.2d 1261 (11th Cir. 1984).
On appeal, the government argues first, that the district court lacked inherent authority to disclose the transcripts, and second, even assuming the district court had inherent authority, the court exceeded that authority by permitting disclosure based solely on the historical significance of the Moore‘s Ford Lynching. Because we are bound by our decision in Hastings, we affirm. See Kondrat‘yev v. City of Pensacola, Fla., 903 F.3d 1169, 1174 (11th Cir. 2018) (per curiam) (“[O]ur precedent—in particular, our precedent about precedent—is clear: ‘[W]e are not at liberty to disregard binding case law that is . . . closely on point and has been only weakened, rather than directly overruled, by the Supreme Court.‘” (quoting Fla. League of Prof‘l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996))).
II. Power of District Courts to Disclose Grand Jury Records
The government argues that the district court erred in invoking its inherent
A. Statutory Authority to Disclose Grand Jury Records
Grand jury secrecy is “an integral part of our criminal justice system.” Blalock v. United States, 844 F.2d 1546, 1555 (11th Cir. 1988) (per curiam). Even after an investigation has ended, grand jury proceedings generally remain secret. “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.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 986 (1958).
B. Inherent Authority to Disclose Grand Jury Records
We have recognized that district courts retain “inherent power beyond the literal wording of Rule 6(e)” to disclose grand jury material not otherwise covered by the exceptions. Hastings, 735 F.2d at 1268.3 “[T]he exceptions permitting disclosure
“This is not to say [Rule 6(e)] is not normally controlling. It is.” Hastings, 735 F.2d at 1268. Petitioners and district courts cannot rely on inherent authority to circumvent a plainly applicable and unambiguous enumerated
III. The District Court‘s Exercise of Discretion in the Present Case
We must now decide whether the facts presented here constitute “exceptional circumstances” that allow a district court to employ its inherent authority to disclose grand jury records outside the confines of
A. The “Exceptional Circumstances” Test
“[W]hile district courts have inherent authority to act outside Rule 6(e)(3), any inherent disclosure authority is exceedingly narrow . . . .” Aisenberg, 358 F.3d at 1347. “[C]ourts are not empowered to act outside Rule 6(e) in other than exceptional circumstances consonant with the rule‘s policy and spirit.” Hastings, 735 F.2d at 1269. Exceptional circumstances exist when the need for disclosure outweighs the public interest in continued secrecy. Id. at 1272, 1275; see also Douglas Oil, 441 U.S. at 223, 99 S. Ct. at 1675 (“[T]he court‘s duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and standards announced by this Court.“).
On one side of the scale is the well-established public interest in secrecy of grand jury records. Nondisclosure of grand jury records “prevent[s] the escape of those whose indictment may be contemplated,” ensures “the utmost freedom to the grand jury in its deliberations,” prevents “tampering with the witnesses who may testify before the grand jury,” encourages “free and untrammeled disclosures by persons who have information” about the commission of crimes, and protects the “innocent accused who is exonerated” from public disclosure that he had been under investigation. United States v. Procter & Gamble Co., 356 U.S. 677, 682 n.6, 78 S. Ct. 983, 986 n.6 (1958). Given the importance of grand jury secrecy, the burden on the petitioner is high.
The weight on the other side of the scale—the need for disclosure—requires a fact intensive analysis that depends on the competing interests in a particular case. In Hastings, for example, we held that “the petition of a judicial investigating committee is the kind of request which, in proper circumstances, can trigger a district court‘s inherent power to release grand jury minutes.” Hastings, 735 F.2d at 1269. In Hastings, we stated that “courts must adhere to Rule 6(e) in ‘garden variety’ petitions for grand jury disclosure,” recognizing that the Rule “would be rendered meaningless if departures were freely sanctioned.” Id. We emphasized there, as we do here, that “courts are not empowered to act outside Rule 6(e) in other than exceptional circumstances.” Id. (emphasis added). In Hastings, it was “highly significant that the grand jury materials in question were sought . . . pursuant to express statutory authority” of the judicial investigating committee. Id. at 1269–70. The court also considered that “a matter of great societal importance“—namely, “the important public interest in the integrity and independence of the judiciary“—was implicated. Id. Finally, while no enumerated
B. The Exception for Matters of Exceptional Historical Significance
Under the proper circumstances, grand jury records on a matter of exceptional historical significance may trigger a district court‘s inherent authority to disclose them. Our sister circuits have developed a multi-factor inquiry for applying the balancing test set forth in Hastings to the disclosure of historically significant grand jury records.5 In In re Petition of Craig, the Second Circuit outlined a “non-exhaustive list of factors that a trial court
(i) the identity of the party seeking disclosure; (ii) whether the defendant to the grand jury proceeding or the government opposes the disclosure; (iii) why disclosure is being sought in the particular case; (iv) what specific information is being sought for disclosure; (v) how long ago the grand jury proceedings took place; (vi) the current status of the principals of the grand jury proceedings and that of their families; (vii) the extent to which the desired material—either permissibly or impermissibly—has been previously made public; (viii) whether witnesses to the grand jury proceedings who might be affected by disclosure are still alive; and (ix) the
additional need for maintaining secrecy in the particular case in question.
131 F.3d 99, 106 (2d Cir. 1997). But “there is no talismanic formula or rigid set of prerequisites,” and the specific circumstances of a case may lead to additional relevant factors. Id.
The first two Craig factors ask us to consider the interests of the parties: the petitioner, the government, and the defendant in the grand jury proceeding. First, the petitioner, Pitch, is an accomplished author and historian. He has published many historical works, including a book about the Moore‘s Ford Lynching. As we discussed, while not dispositive, the government has a significant and well established interest in grand jury secrecy that will always weigh against disclosure. See Procter & Gamble, 356 U.S. at 682 n.6, 78 S. Ct. at 986 n.6. Finally, no defendant in the Moore‘s Ford grand jury proceeding has objected to disclosure. See Craig, 131 F.3d at 106 (“And if a third-party stranger wishes to obtain release of data about secret meetings over the objection of the defendant, who, perhaps, was never indicted by the grand jury, then the trial judge should be extremely hesitant to grant release of the grand jury material.“).
The third, fourth, and seventh Craig factors concern the historical importance of the information being sought. Pitch seeks disclosure for a legitimate, scholarly purpose: to research, write, and educate the public about a significant event in the civil rights movement. Cf. Globe Newspaper Co. v. Sup. Ct. for Norfolk Cty., 457 U.S. 596, 604, 102 S. Ct. 2613, 2619 (1982) (discussing the constitutional right of the public to access records from criminal trials and reasoning that this right “serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government” by protecting “the free discussion of governmental affairs“); In re Petition of Kutler, 800 F. Supp. 2d 42, 48 (D.D.C. 2011) (reasoning that “[t]he disclosure of President Nixon‘s grand jury testimony would likely enhance the existing historical record, foster further scholarly discussion, and improve the public‘s understanding of a significant historical event.“).
Historical importance is objective. It must be distinguished from “journalistic intrigue, public curiosity, or even a subjective importance to family and friends.” Craig, 131 F.3d at 105 n.8. The Moore‘s Ford Lynching is clearly an event of exceptional historical significance. Compared to the journalist or the family member of a victim that seeks access to the details of a salacious unsolved crime, the Moore‘s Ford Lynching is historically significant because it is closely tied to the national civil rights movement. Many consider it to be the last mass lynching in American history. There has been, and continues to be, national media attention and widespread public interest in the murders. According to Pitch,
Despite considerable public interest, the details are sparse. Even with a crowd of witnesses, no one was prosecuted and no public proceedings were held.6 For this reason, Pitch sought disclosure of the entire transcript from the grand jury proceedings. As the district court did here, courts should give any party opposing disclosure the opportunity to object to specific portions of the records. The district court should engage in the same balancing test to determine whether, and how much, those portions should be redacted or omitted. See Douglas Oil, 441 U.S. at 223, 99 S. Ct. at 1675 (“And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material . . . .“); Hastings, 735 F.2d at 1274–75 (approving the district court‘s “protective conditions“).
The interest in continued secrecy is also undercut if details in the records have been publicized. See Craig, 131 F.3d at 107; cf. In re North, 16 F.3d 1234, 1244–45 (D.C. Cir. 1994) (noting that widespread media release might undercut interest in secrecy to point where
this factor weighs against disclosure. There is no indication that any portion of the grand jury records has been made public, permissibly or not.
Finally, the passage of time will often be the touchstone of our inquiry. Even if other factors weigh strongly in favor of disclosure, an insufficient passage of time since the grand jury proceedings took place is fatal to the petitioner‘s request for disclosure. “[T]he passage of time erodes many of the justifications for continued secrecy.” Craig, 131 F.3d at 107. The sufficiency of the passage of time must be viewed in light of the policy underlying grand jury secrecy: to protect the important truth-seeking function of grand juries.7 As a result, the passage of time generally must be long enough that the principal parties to the investigation—the suspects and witnesses—and their immediate family members have likely died, and that there is no reasonable probability that the government would make arrests based on the disclosed information. See id.
Pitch requested the Moore‘s Ford grand jury transcripts seventy-one years after the grand jury proceeding took place.8 No one has been charged, no one is currently under active investigation, and the principal parties to the investigation were adults at the time of the grand jury proceeding. Under these circumstances,
seventy years is at or near the bounds of sufficient passage of time. There is no indication that any witnesses, suspects, or their immediate family members are alive to be intimidated, persecuted, or arrested. Like the
Balancing these competing interests, the district court did not err in holding that the interest in disclosure outweighed the interest in continued secrecy.
IV. Conclusion
“We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings,” but “a court called upon to determine whether grand jury transcripts should be released necessarily is infused with substantial discretion.” Douglas Oil, 441 U.S. at 218, 99 S. Ct. at 1672. Given our binding decision in Hastings, and the truly “exceptional circumstances” presented by the Moore‘s Ford Lynching, we cannot say that the district court abused its substantial discretion in ordering the release of the grand jury transcripts. The judgment of the district court is affirmed.
AFFIRMED.
JORDAN, Circuit Judge, concurring:
Three decades ago, we held that a federal court has inherent authority to order the disclosure of grand jury materials in situations not covered by the exceptions to secrecy set forth in
Nevertheless, I join the court‘s opinion. Given our decision in Hastings, I do not see how we can say that the district court abused its discretion in relying on its inherent authority. In addition, I do not believe there is a persuasive basis to distinguish between the disclosure of grand jury materials for use by a judicial investigating committee (what was at issue in Hastings) and the disclosure of grand jury materials to discover the facts surrounding an event of exceptional historical significance (what is at issue here).
* * * * *
If we are going to deny disclosure here, we need to overrule Hastings, rather than attempt to distinguish it. My initial view, following oral argument, was that we should consider convening en banc to revisit Hastings. Upon further reflection, however, I have come to a different conclusion, and I‘d like to explain why.
First, Hastings does not stand alone. Other federal courts have likewise invoked inherent authority to permit disclosure of grand jury materials in circumstances not covered by
No federal court, as far as I can tell, has come to a contrary conclusion in a published opinion. The Eighth Circuit has said that “courts will not order disclosure [of grand jury materials] absent a recognized exception to
Second, whatever the initial reasons for keeping grand jury matters secret, compare George Edwards, Jr., The Grand Jury 116 (1906) [Legal Classics Library ed. 2003] (suggesting that the “original purpose [of grand jury secrecy] was that no offender should escape“), with Mark Kadish, Behind the Locked Doors of an American Grand Jury: Its History, its Secrecy, and its Process, 24 Fl. St. U. L. Rev. 1, 14 (1996) (explaining that the reasons for grand jury secrecy were varied, and included preventing the flight of suspected criminals, finding out whether witnesses were biased, and ensuring freedom from judicial oversight), in the United States grand jury secrecy was not always seen as an absolute. In cases decided before the enactment of the Federal Rules of Criminal Procedure, some federal courts—including the Supreme Court—held (or at least said) that secrecy is not required after an indictment is returned and the accused is in custody. “[A]fter the grand jury‘s functions are ended, disclosure is wholly proper where the ends of justice require it.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234 (1940). Accord Metzler v. United States, 64 F.2d 203, 206 (9th Cir. 1933); Atwell v. United States, 162 F. 97, 99-100 (4th Cir. 1908); In re Grand Jury Proceedings, 4 F. Supp. 283, 284-85 (E.D. Pa. 1933).
If
Third, a survey of the relevant cases indicates that federal courts have been able to apply the test set forth in In re Craig, 131 F.3d at 106, without too much difficulty in determining which matters of exceptional historical significance warrant the disclosure of grand jury materials. See, e.g., In re Application to Unseal Dockets, 308 F. Supp. 3d 314, 326-35 (D.D.C. 2018); In re Nichter, 949 F. Supp. 2d 205, 212–14 (D.D.C. 2013). These courts have explained
Fourth, and perhaps most importantly, a recent attempt to amend
In 2011, Attorney General Eric Holder recommended that
disclosure, and that disclosure would not impede any pending government investigation or prosecution. See id. at 8-9.
The Judicial Conference’s Advisory Committee on Criminal Rules, then chaired by Second Circuit Judge Reena Raggi, reported in 2012 to the Committee on Rules of Practice and Procedure that it believed that the DOJ’s proposed amendment to
What happened (or, more accurately, did not happen) in 2012 is not, of course, dispositive. But it is instructive. If those charged with considering amendments to the
* * * * *
With these thoughts, I join the court’s opinion.
Office of the Attorney General
Washington, D. C. 20530
October 18, 2011
The Honorable Reena Raggi, Chair
Advisory Committee on the Criminal Rules
704S United States Courthouse
225 Cadman Plaza East
Brooklyn, New York 11201-1818
Dear Judge Raggi:
The Department of Justice recommends an amendment to
Although most other categories of historically significant federal records, including classified records, eventually become part of the public historical record of our Nation,
The difficulty is that, as the Supreme Court has made clear, federal courts have no inherent authority to develop rules that circumvent or conflict with the
The Honorable Reena Raggi
Page 2
A. Background
(E) The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter:
(i) preliminarily to or in connection with a judicial proceeding;
(ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury; . . .
Neither of these provisions—nor any other provision of law—authorizes a third party to obtain access to grand-jury material merely because it is historically significant. The first exception (“preliminarily to or in connection with a judicial proceeding“) cannot support a free-standing petition to release historical grand-jury records. “[O]bviously the permission to disclose for use in connection with ‘a judicial proceeding’ does not encompass a proceeding instituted solely for the purpose of accomplishing disclosure.” In re Biaggi, 478 F.2d 489, 492 (2d Cir. 1973) (Friendly, J.). Rather, disclosure under
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unconnected to any otherwise pending judicial proceeding, without a particularized showing of need, and based solely on the records’ historical significance, is outside the contemplation of
Nonetheless, some courts have exercised what they have described as their inherent authority to release historically significant grand-jury material. These courts have held that “special circumstances” may justify disclosure of grand-jury materials even when none of
Embracing this approach, district courts in several circuits have granted petitions for access to grand-jury materials of historical importance. See, e.g., In re Petition of Kutler, No. 10-547, 2011 WL 3211516 (D.D.C. July 29, 2011) (granting petition for access to grand-jury testimony by President Nixon); In re Tabac, No. 3:08-mc-0243, 2009 WL 5213717 (M.D. Tenn. Apr. 14, 2009) (same, grand-jury records concerning the jury-tampering indictment of Jimmy Hoffa); In re Petition of National Security Archive, No. 1:08-cv-6599, Docket entry No. 3 (S.D.N.Y. Aug. 26, 2008) (same, espionage indictment of Julius and Ethel Rosenberg); In re American Historical Ass‘n, 49 F. Supp. 2d 274 (S.D.N.Y. 1999) (same, espionage investigation of Alger Hiss). Following the Second Circuit’s reasoning in In re Craig, these decisions have all relied on a notion of inherent authority to approve the release of grand-jury records that
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granted a petition filed by historian Stanley Kutler and various historical organizations for access to the transcript of President Nixon’s 1975 testimony before the Watergate special grand jury and certain related files of the Watergate Special Prosecution Force. The petitioners conceded that no provision of
Although historians have an understandable desire for access, many decades after the investigations have closed, to grand-jury records concerning the Watergate investigation, the espionage trial of the Rosenbergs, and similar matters of enduring historical resonance—provided that interests in personal privacy and governmental functions are taken into account and appropriately weighed—the Supreme Court has specifically rejected the proposition that a district court has inherent authority to create exceptions to the rules of criminal procedure adopted by the Court in its rulemaking capacity. “Whatever the scope of [a court’s] ‘inherent power,’ * * * it does not include the power to develop rules that circumvent or conflict with the Federal Rules of Criminal Procedure.” Carlisle v. United States, 517 U.S. 416, 426 (1996); see also Bank of Nova Scotia v. United States, 487 U.S. 250, 254-255 (1988); Johnson v. United States, 520 U.S. 461, 466 (1997) (refusing to “creat[e] out of whole cloth * * * an exception to”
Indeed, federal courts do not typically regulate the conduct of a grand jury, which is “an institution separate from the courts, over whose functioning the courts do not preside.” United States v. Williams, 504 U.S. 36, 47 (1992). “Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office.” Ibid. Consequently, “any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is a very limited one, not remotely comparable to the power they maintain over their own
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proceedings.” Id. at 50. The notion that a court possesses “inherent supervisory authority to order the release of grand jury materials,” Kutler, 2011 WL 3211516, at *5, is therefore not only inconsistent with the prescriptive force of
Notably, Judge Friendly’s 1973 decision in In re Biaggi, the wellspring of the “special circumstances” doctrine, predates the Supreme Court’s decisions in Carlisle, Bank of Nova Scotia, and Williams. So, too, does the Eleventh Circuit’s decision in Hastings. See note 1, supra. Indeed, In re Biaggi also predates Congress’s direct enactment of
In sum, the Second Circuit’s basic insight in In re Craig—that in long-closed cases of enduring historical significance, the public’s interest in access to the primary-source records of our national history may on occasion “overwhelm any continued need for secrecy,” 131 F.3d at 105—seems fundamentally correct. Although the justifications for grand-jury secrecy “are not eliminated merely because the grand jury has ended its activities,” Douglas Oil, 441 U.S. at 222, neither do those interests remain paramount for all time. But the present state of the doctrine, in which individual district courts entertain motions for disclosure under their inherent authority and subject to their unbounded discretion, is untenable under governing Supreme Court precedent. It is also harmful to the fundamental principle that
B. Description of Proposed Amendment
The Department of Justice therefore proposes amending
The Honorable Reena Raggi
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Our proposal limits the release of grand-jury records to those determined to have permanent historical value under
The current treatment of grand-jury records helps illuminate this proposal. Much grand-jury material is deemed to be of no particular historical value. After the relevant cases are closed and a suitable period has passed, these materials are destroyed pursuant to record schedules approved by NARA. Grand-jury materials of continuing interest or value to the Department of Justice are stored for a period of time. Of these materials, some are ultimately transferred to the Archives’ custody on the basis that they have been “determined by the Archivist of the United States to have sufficient historical or other value to warrant their continued preservation by the United States Government.”
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Under the proposed rule, courts would have authority to consider requests for the disclosure of grand-jury records of great historical significance after they have been transferred to the permanent custody of the Archives. No request could be entertained until the records have been in existence for 30 years. The 30-year benchmark corresponds to the statutory time after which the Archivist may direct that agencies transfer historically significant records to his custody. See note 3, supra. Those two limitations ensure that (1) the grand-jury records might have some value to historians and (2) sufficient time has passed both to gauge their historical significance and to create a reasonable possibility that privacy interests have faded to a degree that disclosure might be warranted, with or without redactions.
But even within that universe of records, grand-jury secrecy interests still have presumptive force, and the grant of a disclosure order under
(i) the identity of the party seeking disclosure; (ii) whether the defendant to the grand jury proceeding or the government opposes the disclosure; (iii) why disclosure is being sought in the particular case; (iv) what specific information is being sought for disclosure; (v) how long ago the grand jury proceedings took place; (vi) the current status of the principals of the grand jury proceedings and that of their families; (vii) the extent to which the desired material—either permissibly or impermissibly—has been previously made public; (viii) whether witnesses to the grand jury proceedings who might be affected by disclosure are still alive; and (ix) the additional need for maintaining secrecy in the particular case in question.
In re Craig, 131 F.3d at 106. The proposed rule authorizing disclosure of grand-jury material does not spell out these factors, which are better left to elaboration in the Advisory Committee Notes and then to development in the case law. But it does require the district court to make appropriate findings, before authorizing disclosure, to determine that the records have “exceptional historical importance” above and beyond their possession in the custody of the Archivist; to confirm that they have been in existence for at least 30 years; to ensure that the legitimate interests of any living witnesses or investigative targets whose interests might be
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prejudiced through disclosure are not prejudiced; and to confirm that no impairment of ongoing law enforcement activities would result. The rule also allows the court to impose reasonable conditions, such as redaction, to protect ongoing privacy or other interests.
Our proposal provides that an order granting or denying a petition for the release of historically significant grand-jury material is a final decision subject to appeal under
After 75 years, the interests supporting grand-jury secrecy and the potential for impinging upon legitimate privacy interests of living persons have virtually entirely faded. That is generally true for government records that are highly protected against routine disclosure. For example, most classified records in the custody of the Archivist that have not previously been declassified become automatically declassified after 75 years.4 Thus, we propose that
C. Language of Proposed Amendment
Our proposed amendment includes three parts.
1. We propose to define the term “archival grand-jury records” by adding a new
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(j) “Archival Grand-jury Records” Defined. For purposes of this Rule, “archival grand-jury records” means records from grand-jury proceedings, including recordings, transcripts, and exhibits, where the relevant case files have been determined to have permanent historical or other value warranting their continued preservation under Title 44, United States Code.
2. We propose the following addition to
(E) The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter:
. . . .
(vi) on the petition of any interested person if, after notice to the government and an opportunity for a hearing, the district court finds on the record by a preponderance of the evidence that:
(a) the petition seeks only archival grand-jury records;
(b) the records have exceptional historical importance;
(c) at least 30 years have passed since the relevant case files associated with the grand-jury records have been closed;
(d) no living person would be materially prejudiced by disclosure, or that any prejudice could be avoided through redactions or such other reasonable steps as the court may direct;
(e) disclosure would not impede any pending government investigation or prosecution; and
(f) no other reason exists why the public interest requires continued secrecy.
An order granting or denying a petition under this paragraph is a final decision for purposes of Section 1291, Title 28.
3. Finally, we propose to make the following addition to
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The “require . . . to withhold from the public” formulation tracks the terms of FOIA Exemption 3,
(2) Secrecy.
. . . .
(C) Nothing in this Rule shall require the Archivist of the United States to withhold from the public archival grand-jury records more than 75 years after the relevant case files associated with the grand-jury records have been closed.
* * *
We believe this proposal warrants timely and thorough consideration by the Advisory Committee, as it will eliminate the prevailing uncertainty over the authority of district courts to deviate from the scope of
We look forward to discussing this with you and the Committee.
Sincerely,
Eric H. Holder, Jr.
Attorney General
cc: Professor Sara Sun Beale, Reporter
Professor Nancy J. King, Reporter
COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
Meeting of June 11-12, 2012
Washington, D.C.
Minutes
TABLE OF CONTENTS
| Attendance......................................................................................... | 1 |
| Introductory Remarks........................................................................... | 3 |
| Report of the Administrative Office................................................... | 3 |
| Approval of the Minutes of the Last Meeting............................... | 4 |
| Reports of the Advisory Committees: | |
| Appellate Rules....................................................................... | 4 |
| Bankruptcy Rules.................................................................. | 8 |
| Civil Rules............................................................................... | 26 |
| Criminal Rules........................................................................ | 40 |
| Evidence Rules....................................................................... | 45 |
| Report of the E-Filing Subcommittee............................................... | 47 |
| Assessment of the Judiciary’s Strategic Plan.................................. | 48 |
| Next Committee Meeting.................................................................... | 48 |
ATTENDANCE
The mid-year meeting of the Judicial Conference Committee on Rules of Practice and Procedure was held in Washington, D.C., on Monday and Tuesday, June 11 and 12, 2012. The following members were present:
Judge Mark R. Kravitz, Chair
Dean C. Colson, Esquire
Roy T. Englert, Jr., Esquire
Gregory G. Garre, Esquire
Judge Neil M. Gorsuch
Judge Marilyn L. Huff
Chief Justice Wallace B. Jefferson
Dean David F. Levi
Judge Patrick J. Schiltz
Judge James A. Teilborg
Larry D. Thompson, Esquire
Judge Richard C. Wesley
Judge Diane P. Wood
June 2012 Standing Committee - Minutes
Page 2
Deputy Attorney General James M. Cole was unable to attend. The Department of Justice was represented throughout the meeting by Elizabeth J. Shapiro, Esquire, and at various points by Kathleen A. Felton, Esquire; H. Thomas Byron III, Esquire; Jonathan J. Wroblewski, Esquire; Ted Hirt, Esquire; and J. Christopher Kohn, Esquire.
Judge Jeremy D. Fogel, Director of the Federal Judicial Center, participated in the meeting, as did the committee’s consultants—Professor Geoffrey C. Hazard, Jr.; Professor R. Joseph Kimble; and Joseph F. Spaniol, Jr., Esquire.
Providing support to the committee were:
| Professor Daniel R. Coquillette | The committee’s reporter |
| Peter G. McCabe | The committee’s secretary |
| Jonathan C. Rose | Chief, Rules Committee Support Office |
| Benjamin J. Robinson | Deputy Chief, Rules Committee Support Office |
| Julie Wilson | Attorney, Rules Committee Support Office |
| Andrea L. Kuperman | Rules law clerk to Judge Kravitz |
| Joe Cecil | Research Division, Federal Judicial Center |
Also attending were Administrative Office attorneys James H. Wannamaker III, Bridget M. Healy, and Holly T. Sellers, and the judiciary’s Supreme Court fellows.
Representing the advisory committees were:
Advisory Committee on Appellate Rules—
Judge Jeffrey S. Sutton, Chair
Professor Catherine T. Struve, Reporter
Advisory Committee on Bankruptcy Rules—
Judge Eugene R. Wedoff, Chair
Professor S. Elizabeth Gibson, Reporter
Professor Troy A. McKenzie, Associate Reporter
Advisory Committee on Civil Rules—
Judge David G. Campbell, Chair
Professor Edward H. Cooper, Reporter
Professor Richard L. Marcus, Associate Reporter
Advisory Committee on Criminal Rules—
Judge Reena Raggi, Chair
Professor Sara Sun Beale, Reporter
Advisory Committee on Evidence Rules—
Judge Sidney A. Fitzwater, Chair
Professor Daniel J. Capra, Reporter
June 2012 Standing Committee - Minutes
Page 44
FED. R. CRIM. P. 6(e)
Judge Raggi reported that the advisory committee had received a letter from the Attorney General in October 2011 recommending that
The Department of Justice, however, questioned whether that inherent authority existed in light of
She noted that a subcommittee, chaired by Judge John F. Keenan, had examined the proposal and consulted with several very knowledgeable people on the matter. In addition, the advisory committee reporters prepared a research memorandum on the history of
The full advisory committee concurred in the recommendation and concluded that in the rare cases where disclosure of historic materials had been sought, the district judges acted reasonably in referring to their inherent authority. Therefore, there is no need for a rule on the subject.
Judge Raggi added that she had received a letter from the Archivist of the United States strongly supporting the Department of Justice proposal. She spoke with him at length about the matter and explained that it would be a radical change to go from a presumption of absolute secrecy, which is how grand juries have always operated, to a presumption that grand jury materials should be presumed open after a certain number of years. A change of that magnitude, she said, would have to be accomplished through legislation, rather than a rule change. She noted that the archivist has a natural, institutional inclination towards eventually releasing historical archived documents and might consider supporting a legislative change.
GRAHAM, District Judge, dissenting:
The court creates an exception to the rule of grand jury secrecy, doing so on the assertion that the rationale for secrecy erodes over time. The exception appears to be limited to matters fitting two main criteria: enough time has elapsed for the
I disagree with the majority on several fronts. I believe that judges should not be so bold as to grant themselves the authority to decide that the historical significance exception should exist and what the criteria should be. I agree with the dissent of Judge Sykes in Carlson v. United States, 837 F.3d 753, 767 (7th Cir. 2016) (Sykes, J., dissenting), and would hold that
The court relies on Hastings to sanction a broader exercise of judicial power than the decision’s narrow holding supports. Hastings permitted an exception to grand jury secrecy for a judicial investigating committee. It found the situation to be “closely akin” to the
But even if a district court has inherent authority to order disclosure outside of
Because “secrecy of the grand jury is sacrosanct,” United States v. Phillips, 843 F.2d 438, 441 (11th Cir. 1988), and because disclosure of grand jury material
is prohibited “except in the limited circumstances provided for in
Disclosure of grand jury records should not be permitted without an exacting review which gives due weight to the privacy and reputational interests at stake. It is troubling that the court has authorized disclosure of the records without examining their contents.1 It is troubling too that the government has elected not to contest the proposition that there is no interest to be served in continued secrecy.
That an event has exceptional historical significance cuts both ways. With the principal parties having passed away and the investigation gone cold, one might conclude the matter is stale and the need for
A member of the Committee and a granddaughter of one the victims attended oral argument in this appeal. Community members organize an annual reenactment in honor of the victims. They still search for justice.
The vitality of the community’s continued interest raises possible repercussions for the living descendants and relatives of those individuals whom the grand jury records will identify as being suspects, witnesses and grand jurors. The modern public rightly views the lynching and failure to indict as a horrific injustice, and many perceive it to have been the work of the Ku Klux Klan. Would knowing that grand jury records could someday be disclosed and affect the standing of a child or grandchild in the community deter a grand jury witness from fully telling the truth? Could the conduct of a witness or grand juror involved in an event that is viewed at the time as momentous or sensational be influenced by a concern for their own legacy among future generations?
I would hold that the reputational interests protected by
Accordingly, I dissent and would reverse the district court’s order. At a minimum this court should provide protections to limit the harm its newly-created exception to grand jury secrecy could cause. The court should, for example, instruct the district court on remand to examine the grand jury records, with the assistance of the government, and to protect discernible reputational interests by taking measures such as redacting names and other identifying information.
Notes
When it appears to the Archivist to be in the public interest, he may—
(1) accept for deposit with the National Archives of the United States the records of a Federal agency, the Congress, the Architect of the Capitol, or the Supreme Court determined by the Archivist of the United States to have sufficient historical or other value to warrant their continued preservation by the United States Government; [and]
(2) direct and effect the transfer to the National Archives of the United States of records of a Federal agency that have been in existence for more than thirty years and determined by the Archivist of the United States to have sufficient historical or other value to warrant their continued preservation by the United States Government, unless the head of the agency which has custody of them certifies in writing to the Archivist that they must be retained in his custody for use in the conduct of the regular current business of the agency[.]
Exec. Order No. 13,526, § 3.3(h)(3), 3 C.F.R. 310 (2010). For additional information on the automatic declassification process, see http://www.justice.gov/open/declassification-faq.html.Records exempted from automatic declassification under this paragraph shall be automatically declassified on December 31 of a year that is no more than 75 years from the date of origin unless an agency head, within 5 years of that date, proposes to exempt specific information from declassification at 75 years and the proposal is formally approved by the Panel.