Lead Opinion
This сase is before us on petitioner’s motion to suppress evidence and to shift the burden of proof, treated as a motion to shift the burden of going forward with the evidence, to respondent.
FINDINGS OF FACT
The facts are not materially in dispute. During 1981, a Federal grand jury within the jurisdiction of the U.S. District Court for the Eastern District of New York commenced an investigation into alleged large-scale, multimillion dollar drug trafficking, involving a number of individuals, including Henry Kluger, the husband of petitioner Debra Kluger. In the course of this grand jury investigation, various books, records, and other documents were subpoenaed by, or presented to, the grand jury; additionally, transcripts were made of testimony of witnesses called to testify.
On February 27, 1982, Henry Kluger died, and pending criminal indictment proceedings against , him were therefore terminated. On March 29, 1983, an assistant U.S. attorney, without petitioner’s knowledge, applied to the U.S. District Court for the Eastern District of New York, pursuant to rule 6(e)(C)(3)(i) of the Federal Rules of Criminal Procedure, for an order authorizing "the United States Attorney for the Eastern District of New York to disclose to the Internal Revenue Service the testimony, books, records and other documents subpoenaed and otherwise presented to the Grand Jury in connection with [the investigation of Henry Kluger] for the purpose of determining,, establishing, assessing and collecting the federal civil tax liabilities of HENRY KLUGER and his heirs, and for use in any judicial proceedings related thereto.” The sole ground offered in support of this motion was a statement that Internal Revenue Service agents "have determined that the books, records and other documents and testimony obtained during the Grand Jury’s investigation of this matter are necessary to establish, assess and collect the federal civil tax liabilities of Henry Kluger.” The motion was made ex parte.
Later that same day, March 29, 1983, the Honorable Henry Bramwell, U.S. District Judge, granted the U.S. attorney’s motion under rule 6(e)(3)(C)(i), Fed. R. Crim. P., by order which provided in pertinent part as follows:
the United States Attorney for the Eastern District of New York is hereby authorized to make available to agents of the Internal Revenue Service all books, records and documents subpoenaed by or presented to the Grand Jury pertaining to [Henry Kluger] and the transcripts of testimony presented to the Grand Jury in that connection for purposes of determining, establishing, assessing and collecting the Federal civil tax liability of Henry Kluger and his heirs, and for use in any judicial proceeding related thereto.
No civil litigation was in preparation or pending between the United States, decedent, his estate, or his survivors, on March 29, 1983.
On June 15, 1983, respondent issued a statutory notice of deficiency for 1979 to petitioner, individually and as the surviving wife of Henry Kluger.
Petitioner contends that respondent’s receipt of information produced by the grand jury investigation of Henry Kluger (hereinafter the grand jury materials) was not in compliance with the requirements of rule 6(e), Fed. R. Crim. P., as interpreted by the U.S. Supreme Court in the recent cases of United States v. Baggot,
Respondent does not deny that the statutory notice of deficiency herein was based solely on information culled from the grand jury materials. He denies, however, that his receipt and use of such information was improper in this case and argues that suppression of the materials, and the alleged consequent results argued by petitioner, are therefore unwarranted. In support of this conclusion, respondent points out that the grand jury materials were transmitted to the Internal Revenue Service pursuant to an order of the District Court for the Eastern District of New York which was secured only after full disclosure to the District Court of the purpose for which the materials were sought, and argues that the existence of this District Court order deprives this Court of jurisdiction to even consider petitioner’s suppression motion.
Finally, respondent contends that even if we determine that Baggot and Sells Engineering, Inc., should be retroactively applied, nevertheless suppression of the grand jury materials is appropriate in the context of this case.
I. The Power of This Court To Review the Rule 6(e) Order
A. Jurisdiction
Respondent’s contention that this Court is without authority to consider the ultimate issue presented on this motion, being jurisdictional in nature, must be addressed as a threshold matter. Shelton v. Commissioner,
There is no question that this Court is a court of limited authority and may exercise jurisdiction only to the extent expressly provided by Congress. Sec. 7442; Medeiros v. Commissioner,
In this case, there is no dispute that respondent issued a statutory notice of deficiency in which an underpayment of income tax was determined, or that petitioner timely filed a petition with this Court. We thus have been properly presented with subject matter within our statutorily defined jurisdiсtion
It was early recognized that this Court, like any court having jurisdiction over the subject matter, "must consider all matters necessary to the proper exercise of the jurisdiction.” Fidelity Trust Co. v. Commissioner,
Determining the admissibility of evidence is part of the normal power of any trial court and is essential to the proper discharge of its duties. United States v. 1617 Fourth Avenue, S. W.,
First, as discussed above, determinations regarding the admissibility of evidence in proceedings before this Court are an inherent power incident to this Court’s duty to redetermine proposed income tax deficiencies. The fact that a determination of admissibility of evidence involves an inquiry into the propriety of actions of other courts, or other branches of Government, has never been thought to deprive this or any other Federal court of the authority to exercise that power, and this is true whether or not the ground alleged in favor of suppression is that a Federal court applied improper standards of Federal statutory or constitutional law in issuing a disclosure order or search warrant. See, e.g., Perillo v. Commissioner, supra at 537-541 (where we examined the validity of a Federal District Court order authorizing a wiretap pursuant to 18 U.S.C. sec. 2516(1)(1982)); Nicholas v. Commissioner, supra at 1062-1063 (where we examined the validity of a search warrant issued by a Federal District Court authorizing a search of a taxpayer’s premises); Gordon v. Commissioner,
Respondent on brief relies principally upon language contained in Matter of Grand Jury Proceedings, Miller Brewing Co.,
In Miller Brewing Co., the Court of Appeals for the Seventh Circuit was presented with a questiоn concerning the propriety of certain transfer procedures utilized by a Federal District Court in its consideration of a rule 6(e) motion. Under the procedure adopted by the District Court, the Tax Court would have been required to make a determination ab initio whether to disclose under rule 6(e) certain grand jury materials. The Court of Appeals rejected this procedure in favor of one requiring the District Court, rather than the Tax Court, to make the initial rule 6(e) disclosure determination. In so holding, the court stated (p. 1097) that "it is not at all clear that the [T]ax [CJourt has the power to order disclosure of Federal grand jury materials.” (Emphasis supplied.) We do not dispute the accuracy of this statement. See rule 6(e)(3)(D), Fed. R. Crim. P.; cf. In re State of Illinois Petition to Inspect & Copy Grand Jury Materials,
However, the inquiry here does not involve an ab initio rule 6(e) disclosure determination. Rather, we must solely decide, as a necessary incident to our redetermination of the disputed deficiency before us, the admissibility of evidence acquired under the rule 6(e) order. The Seventh Circuit, itself, acknowledged in Miller Brewing Co (p. 1092 n. 16) that "The applicability of grand jury secrecy and the admissibility of grand jury material as evidence are distinct inquiries” (emphasis supplied) and further recognized (pp. 1097-1098) that "the [TJax [CJourt, in passing upon the admissibility of evidence, has decided questions of Fourth Amendment law and claims of abuse of grand jury process. Ryan v. Commissioner,
Following the dismissal, respondent determined a deficiency in the taxpayer’s income taxes. The taxpayer petitioned this Court, and moved in this Court to suppress all the grand jury materials on the ground of grand jury abuse. This Court considered the motion, and denied it, but stated that the taxpayer could object on an item by item basis with respect to the admissibility of the grand jury materials. The taxpayer appealed. On appeal, the Ninth Circuit held that the taxpayer, having had knowledge of the prior rule 6(e) order at the time it was issued, and having failed to seek to intervene, had waived any right to challenge collaterally the validity of the order. Conforte v. Commissioner, supra. The court stated (
By failing to seek intervention in the district court or petitioning that court for relief from the disclosure order, [the taxpayer] gave up the opportunity to challenge directly the validity of the district court’s order. We hold she cannot do so collaterally before the Tax Court. * * *
The facts in Conforte are fundamentally different than those presented here. In this case, petitioner had no knowledge of the District Court’s rule 6(e) order until after disclosure had been accomplished, and the deficiency notice was issued. She therefore cannot be deemed to have waived any remedy which was available to her which might have prevented the disclosure from occurring. The primary holding of Conforte is therefore without effect in this case.
But respondent points out that, in the course of its opinion, the Ninth Circuit in Conforte stated (p. 594) that "[The
This statement of the Ninth Circuit was dictum and was not necessary to the court’s holding in Conforte. Accordingly, we do not consider ourselves bound by that language. Moreover, with respect, we feel that the statement was not well considered. As discussed supra, the fact that a determination of admissibility of evidence in this Court involves an inquiry into the propriety of actions of other Federal courts has never been thought to deprive this Court of jurisdiction to consider such admissibility. See Perillo v. Commissioner,
B. Other Possible Impediments to Our Review
Of course, our conclusion on this jurisdictional point does not automatically render subject to attack in this Court every discovery or other order issued by a Federal court. In many cases, taxpayers will be bound by prior final orders or judgments under principles of res judicata, waiver, or сollateral estoppel, and will therefore be precluded from contesting the validity of such prior orders or judgments in this Court. However, in this case, the rule 6(e) order of the District Court was issued ex parte, and without petitioner’s knowledge. Under these circumstances, respondent has no basis for invocation of res judicata, waiver, or collateral estoppel. Freuler v. Helvering,
Moreover, if petitioner in this case were asking us to directly review de novo the validity of the District Court’s rule 6(e) order, we might in any event be reluctant to consider suppression arguments based solely upon allegations that the District Court applied improper standards of Federal statutory law in issuing the order, under the jurisprudence as it existed at the time the order was issued. See Estate of Temple v. Commissioner,
The classic statement of the principles of comity, as articulated by the Supreme Court in Mast, Foos & Co. v. Stover Mfg. Co.,
Comity is not a rule of law, but one of practice, convenience, and expediency. It is something more than mere courtesy, which implies only deference to the opinion of others, since it has a substantial value in securing uniformity of decision, and discouraging repeated litigation of the same questions. But its obligation is not imperative. If it were, the indiscreet action of one court might become a precedent, increasing in weight with each successive adjudication, until the whole country was tied down to an unsound principle. Comity persuades; but it does not command. It declares not how a case shall be decided, but how it may with propriety be decided. It recognizes the fact that the primary duty of every court is to dispose of cases according to the law and the facts; in a word, to decide them right. In doing so, the judge is bound to determine them according to his own convictions. If he be clear in those convictions, he should follow them. It is only in cases where, in his own mind, there may be a doubt as to the soundness of his views that comity comes in play and suggests a uniformity of ruling to avoid confusion, until a higher court has settled the law. * * * [Emphasis supplied.]
The resolution of the retroactivity question, at least insofar as it applies to this case, was left unanswered by the Supreme Court, and we must therefore consider this issue for purposes of disposing of the present motion. Such an inquiry, because of its potential impact on the evidentiary and procedural questions in the case before us, is clearly within our province (Romanelli v. Commissioner,
II. Are the Rules of Baggot and Sells To Be Applied Retroactively?
The first question to be decided, then, is whether the Supreme Court’s decisions in Baggot and Sells Engineering, Inc., operate retroactively to invalidate the final order of the District Court, which was issued prior to the announcement by the Supreme Court of its decisions, and which was founded upon rule 6(e)(3)(C)(i), Fed. R. Crim. P. For the reasons that follow, we have concluded that Baggot and Sells Engineering, Inc., do not affect the validity of the rule 6(e) order in this case. We preface our consideration of this issue with an examination of the rule and judicial events leading up to the decisions in Baggot and Sells Engineering, Inc., as well as the holdings therein.
A. The Decisional Background
Rule 6(e)(2) incorporates the general rule that proceedings before a grand jury shall remain secret. The rule, as discussed by the Supreme Court in Baggot and Sells Engineering, Inc., without certain amendments effective as of August 1, 1983, reads as follows:
(e) Recording and Disclosure of Proceedings.
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(2) General Rule of Secrecy. — A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall notdisclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person exceрt in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.
The general rule of secrecy provided by rule 6(e)(2) is subject to certain exceptions provided in rule 6(e)(3). The only exception provided in rule 6(e)(3) which is of relevance in this case is the exception contained in rule 6(e)(3)(C)(i), which provides as follows:
(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made—
(i) when so directed by a court preliminarily to or in connection with a judicial proceeding;
* * * * * * *
If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.
Prior to the Supreme Court’s announcement of its decisions in Baggot and Sells Engineering, Inc., the Government took the position that rule 6(e)(3)(C)(i) authorized judicially supervised disclosure of grand jury materials to the Internal Revenue Service for purposes of use in the audit process, prior to the time a deficiency notice was issued or litigation in respect of any civil tax determination was commenced. The Government also believed that no showing of "particularized need” was necessary prior to the issuance of an order under rule 6(e)(3)(C)(i). See Internal Revenue Manual sec. 4565-1:(4) (9/22/82). Thus, the Government interpreted the "preliminarily to * * * a judicial proceeding” requirement of rule 6(e)(3)(C)(i) as being satisfied at the audit stage of a civil tax investigation, reasoning that "legislative history reflects that * * * Rule 6(e) is not intended to preclude the use of grand jury developed evidence for civil law enforcement purposes.” I.R.M. sec. 4565.1:(4) (9/22/82).
The Government’s interpretation of the requirements of rule 6(e)(3)(C)(i), both with respect to its reading of the "preliminarily to” requirement, and with respect to its belief that no "particularized need” be demonstrated for a successful rule 6(e) motion by the Government, enjoyed initial judicial
as long as the material to which disclosure is sought was obtained in a bona fide, good-faith grand jury proceeding directed toward ultimate criminal prosecution, there is no legitimate end to be served by requiring the government in a later civil action, or in connection with a prospective or existing later civil action, to again assemble and have produced testimony and documentary material which already exists by virtue of having been produced to the grand jury. [Fn. ref. omitted.]
With respect to the showing required for the issuance of an order under rule 6(e)(3)(C)(i) upon the Government’s motion, the court rejected the "particularized need” standard argued by the taxpayers, and stated (p. 751):
a general description of the materials sought to be disclosed should be provided [so that a court could determine whether those materials have] some rational connection with a specific existing or contemplated judicial proceeding as envisioned by * * * [the rule].
These same positions were subsequently adopted by two Circuit Courts of Appeals, and certiorari was denied in one such case by the Supreme Court. See In re Judge Elmo B. Hunter’s Special Grand Jury,
However, other courts which had considered these issues had reached contrary results. Addressing the issue whether the determination of deficiencies by the Internal Revenue Service were "preliminarily to or in connection with a judicial proceeding” within the intendment of rule 6(e)(3)(C)(i), two District Courts in the Sixth Circuit concluded that such a process was purely administrative and therefore did not satisfy the requisites of rule 6(e)(3)(C)(i) for court-ordered disclosure. The Government’s motions under rule 6(e) were accordingly denied. See In re April 1977 Grand Jury Proceedings,
Prior to the respective Courts of Appeals opinions in Baggot and Sells Engineering, Inc., no Court of Appeals had specifically adopted the approach of the two District Courts in the Sixth Circuit in the context of rule 6(e) disclosure motions.
Thus, when the issues, (a) whether a civil tax audit was "preliminarily to a judicial proceeding” within the intendment of rule 6(e)(3)(C)(i), and (b) whether the Government was required to demonstrate "particularized need” for the grand jury material requested prior to the granting of a motion under that rule, were presented to the Seventh Circuit Court of Appeals in Baggot and the Ninth Circuit Court of Appeals in Sells Engineering, Inc., respectively, the state of the law concerning these issues was divided and unsettled among the circuits and lower courts, and, of course, the Supreme Court had not previously undertaken to resolve either of these issues.
In Baggot, a Federal grand jury had been empaneled under the jurisdiction of the District Court for the Northern District of Illinois to investigate certain criminal violations of the Commodities Exchange Act and the Internal Revenue Code, and James E. Baggot ultimately became a target of such investigation and was subpoenaed to appear before the grand jhry. On June 24, 1972, James Baggot pleaded guilty to two misdemeanor violations of the Commodities Exchange Act. Subsequently, the U.S. attorney filed a motion in the District Court under rule 6(e)(3)(C)(i), Fed. R. Crim. P., for a disclosure ordеr relating to materials and transcripts of the grand jury for purposes of use by the Internal Revenue Service in a civil tax audit of James Baggot. The District Court, although holding that a civil tax investigation was not "preliminarily to or in connection with a judicial proceeding,” nevertheless granted disclosure of the grand jury materials pursuant to its "general supervisory powers” over the grand jury. The order was appealed to the Seventh Circuit.
A divided Seventh Circuit Court of Appeals reversed the District Court’s disposition of the rule 6(e) motion. See In re Special February, 1975 Grand Jury (Baggot),
the present Internal Revenue Service civil investigation of Baggot’s possible additional tax liabilities is too embryonic, speculative, and uncertain to firmly say that it is "preliminarily to” a judicial proceeding. [Citation omitted.]
On June 30,1983, the Supreme Court released its opinion in Baggot holding that an Internal Revenue Service civil tax audit is not conducted "preliminarily to or in connection with a judicial proceeding” within the meaning of rule 6(e)(3)(C)(i), and therefore no disclosure of grand jury materials is permitted for such purposes under the rule. The majority in Baggot stated (463 U.S. at_):
the Rule contemplates only uses related fairly directly to some identifiable litigation, pending or anticipated. Thus, it is not enough to show that some litigation may emerge from the matter in which the material is to be used, or even that litigation is factually likely to emerge. The focus is on the actual use to be made of the material. If the primary purpose of disclosure is not to assist in preparation or conduct of a judicial proceeding, disclosure under (C)(i) is not permitted. [Citation omitted; emphasis in original.]
In Sells Engineering, Inc., a grand jury was empaneled to investigate whether Sells Engineering, Inc., and certain of its officers should be prosecuted for an alleged scheme to defraud the Government by underpaying taxes. As the result of the grand jury investigation, the officers ultimately pleaded guilty to one count of conspiracy to defraud and all other charges were dismissed pursuant to plea bargaining.
In the interim, the Civil Division of the Justice Department moved in the District Court for an order releasing the grand jury’s transcripts for purposes of determining whether cause existed to file suit against Sells Engineering, Inc., under the False Claims Act, 31 U.S.C. sec. 231 et seq., for its alleged use of inflated costs in negotiated contracts. This motion was made pursuant to rule 6(e)(3)(A)(i). This subsection of rule 6(e) allows disclosure of grand jury materials as a matter of course, without any court order, to "an attorney for the government for use in the performance of such attorney’s duty.” The District Court granted the Government’s motion, concluding that attorneys in the Civil Division were entitled to disclosure as a matter of right under rule 6(e)(3)(A)(i). Sells Engineering, Inc., appealed.
The Ninth Circuit rejected the holding of the District Court that Civil Division attorneys could obtain access to grand jury materials as a matter of right under rule 6(e)(3)(A)(i), warning that such disclosure would encourage the use of the grand jury
The Government petitioned for certiorari in the Supreme Court, and it was granted.
In its opinion which has more direct relevance to the present case, the Court additionally held that even where the Government is the moving party under rule 6(e)(3)(C)(i), a "strong showing of particularized need for grand jury materials” is required before the release of any grand jury materials will be permitted. United States v. Sells Engineering, Inc.,
if we were to agree with the Government that disclosure is permissible if the grand jury materials are "relevant to matters within the duties of the attorneys for the government,” * * * a (C)(i) court order would be a virtual rubber stamp for the Government’s assertion that it desires disclosure. [463 U.S. at_.]
The Douglas Oil standard is a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy arе greater in some situations than in others. * * * For example, a district court might reasonably consider that disclosure to Justice Department attorneys poses less risk of further leakage or improper use than would disclosure to private parties or the general public. Similarly, we are informed that it is the usual policy of the Justice Department not to seek civil use of grand jury materials until the criminal aspect of the matter is closed. Cf. Douglas Oil,441 U.S. at 222-223 . And "under the particularized need standard, the district court may weigh the public interest, if any, served by disclosure to a governmental body * * *” [Citations omitted.]
Analysis of the Supreme Court’s holdings in Baggot and Sells Engineering, Inc., makes it clear that the rule 6(e) order herein does not satisfy the criteria announced in those cases. The Baggot standard was not satisfied because the order, when issued, was not issued " in connection with or preliminarily to a judicial proceeding,” and respondent has conceded as much in this case. Moreover, it is clear that the District Court did not require the Government to demonstrate "particularized need” for the grand jury materials prior to issuing the order. Accordingly, the Sells Engineering, Inc., standard was not satisfied. The question we must decide is whether Baggot and Sells Engineering, Inc., apply retroactively to invalidate the rule 6(e) order. If so, we must then decide whether the relief sought by petitioner in the present motion is appropriate in the circumstances.
B. The Rules of Retroactivity
Retroactive application of a Supreme Court decision is not compelled, constitutionally or otherwise. Great Northern R. Co. v. Sunburst Oil & Refining Co.,
First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that "we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for "[wjhere a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the 'injustice or hardship’ by a holding of nonretroactivity.” [404 U.S. at 106-107 ; citations omitted.]
Examining Baggot and Sells Engineering, Inc., in light of the above factors,
It is clear that the Supreme Court’s decisions in Baggot and Sells Engineering, Inc., did not overrule prior Supreme Court precedent in deciding the "preliminarily to or in connection with a judicial proceeding” issue or the "particularized need” issue. Both of these issues were issues of first impression in the Court. Nor did these decisions overrule a near-unanimous body of lower-court case law on these issues. Thus, Baggot and Sells Engineering, Inc., are not the types of cases that have been held by the Supreme Court to be "almost automatically nonretroactive.” Solem v. Stumes, supra at_.
Nevertheless, the pertinent holdings in Baggot and Sells Engineering, Inc., did establish new rules. Thus the Court in Baggot stated (463 U.S. at_):
in our previous cases under Rule 6(e), we have not had occasion to address [the "preliminarily to or in connection with a judicial proceeding”] * * * requirement in detail, focusing instead on the requirement that the moving party show particularized need for access to grand jury materials. The two requirements, though related in some ways, are independent prerequisites to (C)(1) disclosure. [Citations and fn. ref. omitted.]
Moreover, although the Court had previously decided in Douglas Oil Co. v. Petrol Stops Northwest, supra, that private parties seeking access to grand jury materials under rule 6(e)(3)(C)(i) must demonstrate "particularized need” for the materials, no such standard had been imposed in Supreme Court cases prior to Sells Engineering, Inc., when the information was sought by the Government for use in a civil tax investigation (United States v. Sells Engineering, Inc., supra at _).
Thus, the inquiry cannot end upon a finding that Baggot and Sells Engineering, Inc., did not overrule clear past Supreme Court or lower court precedent. The issues were clearly ones of first impression in the Supreme Court and we must therefore additionally consider whether the new rules announced in these cases were "clearly foreshadowed” within the intendment of Chevron Oil.
Whether the new rules announced in Baggot and Sells Engineering, Inc., were "clearly foreshadowed” depends upon whether the rulings in those cases were "necessary consequences” of prior Supreme Court rulings. See Solem v. Stumes, supra at .
We think it clear that the rule announced by the Supreme Court in Baggot was not a necessary consequence of any prior Supreme Court decision. Indeed, as indicated above, the Supreme Court in Baggot itself acknowledged that it did not have prior occasion to consider the issue resolved therein. See
Nor do we think that the pertinent holding in Sells Engineering, Inc., was a necessary consequence of prior Supreme Court decisions. It is true that, prior to its decision in Sells Engineering, Inc., and prior to the issuance of the rule 6(e)
Under these circumstances, we do not think that it can be said that the pertinent holding of the Supreme Court in Sells Engineering, Inc., was a necessary consequence to its prior holding in Douglas Oil Co., or other prior holdings dealing exclusively with private movants under rule 6(e). See Dennis v. United States,
Moreover, the protection of grand jury secrecy sought to be achieved by application of the new rules would not be furthered by the result petitioner contends for here. Petitioner argues that the retroactive application of these rules will ultimately serve to invalidate respondent’s prior use of such information in preparing the deficiency notice herein, with all the procedural consequences stemming therefrom. However, respondent’s use of the grand jury materials in preparing the deficiency notice has already occurred, and retroactive application of the new rules, and petitioner’s proposed results, could not serve to restore the grand jury secrecy which has already been lost. See Estate of Temple v. Commissioner, supra at 783. We therefore conclude that retroactive application of the pertinent rules announced in Baggot and Sells Engineering, Inc., would not beneficially affect the accuracy of the trial in this case or substantially further the intended purposes of the new rules.
Finally, it is clear that the complete retroactive application of the new rules announced in Baggot and Sells Engineering, Inc., would have a disruptive effect on the administration of justice. Such a conclusion would render every rule 6(e) order issued prior to Baggot and Sells Engineering, Inc., subject to
We therefore hold that the decisions of the Supreme Court in Baggot and Sells Engineering, Inc., to the extent relevant herein, are not to be applied retroactively to invalidate final rule 6(e) orders under collateral attack in this Court.
Both parties herein appear to agree that a finding of nonretroactivity, in and of itself, disposes of petitioner’s contention that the grand jury materials should be suppressed in these proceedings. The parties are, of course, correct. The underlying ground advanced by petitioner in suрport of her suppression motion is that the judicially created exclusionary rule should operate in this case to require suppression of the grand jury materials. However, imposition of the suppression sanction, under well-established exclusionary rule doctrine, is premised upon, inter alia, a finding that the evidence sought to be suppressed was obtained in violation of a specific coiistitu-tional right (see, e.g., Weeks v. United States,
In this case, therefore, our holding that the Supreme Court’s decisions in Baggot and Sells Engineering, Inc., are not to be applied retroactively means that petitioner’s reliance on the exclusionary rule as the underlying basis of her suppression motion must be rejected. Accordingly, we will deny petitioner’s present motion — to suppress evidence and shift the burden of going forward — on this ground alone. However, recent developments in exclusionary rule law make it clear that, at least under the facts of this case, it wоuld be inappropriate to apply the rule even if we were to assume that the grand jury materials were obtained by respondent illegally.
III. The Exclusionary Rule
The Supreme Court has long recognized that the exclusion of highly probative, albeit illegally obtained evidence, imposes substantial costs on society and is not mandated constitutionally or otherwise. Andresen v. Maryland,
The Supreme Court recently specifically delineated the category of individuals whose behavior the exclusionary rule is intended to affect, and generally limited the scope of the rule, in United States v. Leon,
In Leon, after initiating a drug-trafficking investigation involving surveillance of the defendant’s activities, a police officer prepared an application for a warrant to search three residences and the defendant’s automobiles for numerous items. The warrant application was reviewed by several district attorneys, and was then submitted to a State court judge. After reviewing the application, the State court judge issued the requested warrant, and the ensuing searches. pursuant thereto produced large quantities of drugs and other evidence. The defendants were then indicted for Federal drug offenses and, in a Federal District Court, filed motions to suppress the evidence that was seized pursuant to the warrant. After a hearing on the motions, the District Court granted the motions in part on the ground that the warrant was issued by the State court judge without probable cause. Although the District Court recognized that the warrant application was made by the police officer in good faith, the court held that the evidence should nevertheless be suppressed. The Court of Appeals for the Ninth Circuit affirmed the District Court’s holding. The Supreme Court granted certiorari solely to consider the question whether the exclusionary rule "should be modified so as not to bar the admission of evidence seized in reasonable, good faith reliance on a search warrant that is
In considering this issue, the Supreme Court first recognized that whether the exclusionary sanction is appropriately applied in any given case is a separate issue from whether the rights of the party seeking to invoke the rule were violated. United States v. Leon, supra. The Supreme Court has on many occasions refused to hold that illegally obtained evidence must always be excluded. See, e.g., United States v. Janis, supra; United States v. Calandra, supra; Alderman v. United States,
Against the above backdrop, the Court in Leon went on to consider whether the deterrent purpose of the exclusionary rule would be served by suppression of the evidence under the facts presented. Based upon the Court’s evaluation of the costs and benefits of suppressing reliable evidence seized by officers in reasonable reliance on a warrant issued by a detached and neutral magistrate, the Court concluded that such evidence should be admissible in the prosecution’s case in chief. United States v. Leon, supra at _.
In reaching this conclusion, the Court rejected the notion that the exclusion of evidence could be justified by the effect that such exclusion would potentially have on future behavior of magistrates and judges. The Court stated (468 U.S. at_):
To the extent that proponents of exclusion rely on its behavioral effects on judges and magistrates in these areas, their reliance is misplaced. First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.
Third, and more important, we discern no basis, .and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect upon the issuing judge or magistrate. * * *Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be expected significantly to deter them. Imposition of the exclusionary sanction is not necessary meaningfully to inform judicial officers of their errors, and we cannot conclude that admitting evidence obtained pursuant to a warrant while at the same time declaring that the warrant was somehow defective will in any way reduce judicial officers’ professional incentives to comply with the Fourth Amendment, encourage them to repeat .their mistakes, or lead to the granting of all colorable warrant requests. [Fn. refs, omitted.]
Under these circumstances, the Court found that the purpose underlying the exclusionary rule would not be appreciably served by suppression. The Court rejected the contention that applying the exclusionary rule in such cases might tend to deter enforcement officials from future inadequate warrant requests or at least encourage such officers to more closely scrutinize the form of the warrant and point out suspected judicial errors, finding such contentions "speculative.” United States v. Leon, supra at_. In cases where the acquisition of evidence is preconditioned on an application to a judicial officer, the enforcement authority can do no more than submit the application, exercising reasonable and objective good faith. It then becomes, the Court stated (468 U.S. at_)—
the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirement of the Fourth Amendment. In an ordinary case, the officer cannot be expected to question the mаgistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. * * * Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. [Citation and fn. ref. omitted.]
In light of the above considerations, the Court adopted a "good faith” exception to the exclusionary rule, concluding (468 U.S. at_)—
that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. * * *
In so holding, the Court acknowledged that exclusion may not always be inappropriate in cases where evidence has been obtained pursuant to a court-issued warrant. The ultimate inquiry is whether or not the law enforcement officer has
Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. * * * The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role * * *; in such circumstances, no reasonably well-trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” * * * Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid. * * * [Citations omitted.]
Upon rеview of the Supreme Court’s analysis of the exclusionary rule in Leon, we must conclude that, in the context of this case, petitioner’s requested remedy is unavailable to her. The Supreme Court’s articulation of the "good faith” exception to the rule makes it clear that application of the rule in this case would be inappropriate, whether or not the rule 6(e) order herein was improvidently granted.
As fully discussed above, in determining whether the exclusionary rule is to be applied in a particular case, the proper focus is the effect that application of the rule would have on future conduct of law enforcement officers, not judicial officers. United States v. Leon, 468 U.S. at_. Accordingly, only if exclusion of the grand jury materials in this case would operate as a substantial deterrent to future unlawful conduct by Government attorneys, would such sanction be appropriate.
We have no reason to doubt that the Government attorneys in this case were acting in good faith when they petitioned the District Court for the rule 6(e) order herein. The motion itself fully disclosed the relevant facts when it was presented to the District Court judge for his consideration. Moreover, in light of the state of the law regarding rule 6(e) disclosure determinations at the time the order in this case was issued (discussed fully in subsection II supra), we are unwilling to conclude that the Government officers in this case were dishonest or reckless in preparing the rule 6(e) motion herein, or could have harbored an objectively reasonable belief that the standards under which the rule 6(e) order was issued were not in
The Government’s receipt of the grand jury materials in reliance upon the rule 6(e) order was therefore in good faith and objectively reasonable, and under the analysis adopted by the Supreme Cоurt in United States v. Leon, supra, suppression of the materials in this case would therefore not appreciably serve the deterrent purpose of the exclusionary rule.
Accordingly, even if we had to directly address the issue of the exclusionary rule in this case, we would not apply the sanction here.
An appropriate order will be entered.
Reviewed by the Court.
Notes
Petitioner in her motion appears to request that we shift the burden of persuasion to respondent. However, this Court has never, in any context, invoked such a sanction. The cases cited by petitioner in her brief in support of the present motion make it clear that the most petitioner can hope for in this case is a shift to respondent of the burden of going forward with the evidence (see, e.g., Helvering v. Taylor,
Petitioner’s original motion also requested that summary judgment be rendered in her favor. On brief, in support of her motion, petitioner has conceded that summary judgment is inappropriate at this time, and we treat this concession as an amendment to the present motion.
Certain civil forfeiture proceedings had previously been commenced by the United States against certain amounts held by Henry Kluger at the time of his death, but these proceedings had been settled in January 1983. Probate proceedings relating to the Estate of Henry Kluger were pending before the Circuit Court for Dade County, FL, on Mar. 29,1983, but the Internal Revenue Service had not, at that time, filed a claim in those proceedings for income taxes and did not do so until May 9, 1983.
Petitioner affirmatively raised the issue of the statute of limitations under sec. 6501(a) in her petition, which respondent answered by pleading the 6-year statute оf limitations under sec. 6501(e). Since this issue cannot be decided before a resolution of the substantive issues regarding the amount of deficiency, if any, owed by petitioner, the statute of limitations issue must be deferred for the present.
All statutory references herein are to the Internal Revenue Code of 1954 as in effect in the year in issue, and all Rule references are to the Rules of Practice and Procedure of the U.S. Tax Court, except as otherwise noted.
Petitioner recognizes that respondent’s alleged misuse and abuse of the grand jury process could not operate to invalidate the statutory notice of deficiency. See Graham v. Commissioner,
In present-day terms, this means that this Court is governed by the Federal Rules of Evidence, Pub. L. 93-595, 88 Stat. 1926, effective Jan. 2, 1975.
Although this Court will not generally look behind a statutory notice of deficiency to examine the evidence used or the propriety of respondent’s conduct in determining the deficiency (Scar v. Commissioner,
In Romanelli we specifically considered petitioner’s contention that the Supreme Court’s decision in Marchetti v. United States,
In an unpublished opinion, however, the Fifth Circuit Court of Appeals may have effectively reached a result similar to that of the District Courts in the Sixth Circuit, by summarily affirming a sealed District Court order denying release of grand jury materials sought by the Internal Revenue Service for a civil tax investigation. In re Grand Jury for the Northern District of Alabama (Drummond Coal Co.), docket No. 81-7976 (July 20, 1981). Additionally, other cases involving other administrative agencies had held that certain types of administrative investigations were not "preliminary to or in connection with a judicial proceeding.” See, e.g., In re J. Ray McDermott & Co., Inc.,
The Supreme Court had, however, recently decided that private (i.e., non-Government) litigants requesting rule 6(e) disclosure orders must be required to demonstrate "particularized need” for the grand jury information requested. See Douglas Oil Co. v. Petrol Stops Northwest,
"Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed * * *
"It is clear * * * that disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure. It is equally clear that as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification. * * * In sum, * * * the court’s duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court. And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material * * * [Fn. refs, and citations omitted.]”
Although the decisions in Baggot and Sells Engineering, Inc., interpret the requirements of a Federal Rule of Criminal Procedure, such decisions affect an exclusively civil concern. Accordingly, we apply the standards of retroactivity tailored to civil cases.
It has been suggested in a recent article that a slightly different approach, which was adopted by a majority of the Supreme Court in United States v. Johnson,
"First, our decision today does not affect those cases that would be clearly controlled by our existing retroactivity precedents. Second, because respondent’s case arises on direct review, we need not address the retroactive reach of our Fourth Amendment decisions to those cases that still may raise Fourth Amendment issue on collateral attack. Third, we express no view on the retroactive application of decisions construing any constitutional provision other than the Fourth Amendment. * * * [457 U.S. at 562 ; citation and fn. refs, omitted.]”
These limitations clearly make Johnson inapplicable to this civil case, which is controlled by prior precedent and arises on collateral attack of a final District Court order. The analysis adopted by the Supreme Court in Solem v. Stumes, 465 U.S._(1984), its most recent case considering the retroactivity question in a criminal context, is directly analogous in every relevant respect to that employed in Chevron Oil Co. v. Huson,
At a minimum, a determination of nonretroactivity of a Supreme Court decision means that such decision is not to be applied on collateral attack of a final order. Cf. Solem v. Stumes,
In this regard, we note our disagreement with the analysis adopted in a recent District Court case. See Stein v. United States, an unreported case, docket No. 83-1492 (D. N. J. 1984). In that case, the District Court concluded that Baggot is to be retroactive in effect. The Court premised this conclusion upon its finding that Baggot did not represent a "clear break” with past precedent, or constitute a case of first impression. Accordingly, the Court found the threshold test of Chevron Oil not to be satisfied. However, in reaching its conclusion that Baggot did not constitute a case of first impression, the District Court considered the existence of prior lower court precedent which adopted the analysis ultimately adopted by the Supreme Court in Baggot to be dispositive. Upon this point, we disagree. The threshold inquiry of whether a case is one of first impression is clearly intended to focus on the Supreme Court’s prior precedent (see Solem v. Stumes, 465 U.S. at_), not on the State of lower court decisions.
Although the Supreme Court, earlier in the same term that decided Sells Engineering, Inc., did hold the "particularized need” standard to apply to state attorneys general in Illinois v. Abbott & Associates, Inc.,
We have, throughout the retroactivity discussion herein, relied in part upon the analysis contained in Solem v Stumes, 465 U.S._(1984). In that criminal case, the Supreme Court employed the same three-party retroactivity test whiсh had been adopted in Chevron Oil Co. v. Huson,
For a discussion of this point, see Note, "Retroactivity and the Exclusionary Rule: A Unifying Approach,” 97 Harv. L. Rev. 961, 972 (Feb. 1984).
Petitioner, however, retains the right to object to any preferred evidence at trial on other appropriate grounds. Estate of Temple v. Commissioner,
Concurrence Opinion
concurring: I concur in this case to note the unnecessary exercise in legal analysis engaged in by the majority in parts I and II of the opinion. The crux of this issue is whether evidence consisting of grand jury materials should be suppressed. Clearly, suppression of the evidence is not justified as the majority concludes. The Supreme Court in United States v. Leon, 468 U.S._(1984), and Massachusetts v. Sheppard, 468 U.S._(1984), has now made explicit the narrow confines of the suppression of evidence policy foretold in United States v. Janis,
We have both the power, and the obligation to rule upon the admissibility of evidence in our Court. It is, however, open to question whether we have the power to entertain a collateral attack on an order of another Federal court. Of more importance, it is in this case unnecessary and, therefore, improper to do so. In view of Leon and Sheppard, supra, retroactivity vel non of Baggot
Petitioner’s motion should be denied on the authority of United States v. Leon, supra.
United States v. Baggot,
United States v. Sells Engineering, Inc.
Concurrence Opinion
concurring: In the long view of history, 12 years is a relatively short period of time, but in that short time, there have been significant changes in the construction and application of the exclusionary rule.
Twelve years ago, this Court faced the question of whether to apply the exclusionary rule in the civil cases heard by us. I vigorously objected to the extension of such rule to such cases. Suarez v. Commissioner,
Since that decision, the Supreme Court, in United States v. Janis,
In our democratic society, we must constantly and vigorously maintain the ramparts protecting the rights of individuals secured by the Constitution. However, we must also recognize that one of the most valuable rights of a democratic society is the assurance that the law is being applied fairly and equally to all persons. We must assure the people that the legal system can and will operate to protect their rights and to apply the law equally. When a wrongdoer is allowed to go free because of some technical irregularity on the part of the police, the confidence in the equal application of the law and the legal system is severely shaken. By these modifications in the exclusionary rule, we are redressing the balance between rights of the individuals and of society. I trust that these modifications will not encourage lawless conduct. I am sure
Concurrence Opinion
concurring: I join in parts I and II of the majority opinion. I do not join in part III of the majority opinion. Since part III of the majority opinion does not affect the result (majority opinion, pp. 336, 341), I agree with the result reached by the majority.
Part III of the majority opinion deals with "the exclusionary rule”. In general terms, "the exclusionary rule”
Although evidence is excluded under "the exclusionary rule”, most evidence exclusion problems do not fall within "the exclusionary rule”. For example, exclusion of evidence on account of hearsay (rule 802, Fed. R. Evid.), prejudice (rule 403, Fed. R. Evid.), compromise offers (rule 408, Fed. R. Evid.), the "best evidence rule” (rule 1002, Fed. R. Evid.), or any of a host of other exclusionary rules codified by the Congress in the Federal Rules of Evidence, are not in any way connected with "the exclusionary rule”. Likewise, the question of exclusion of evidence in the instant case is in no way connected with "the exclusionary rule”.
Further, the sine qua non of "the exclusionary rule”— deterrence of Government functionaries from violating a person’s constitutional or statutory rights in the seizing of or searching for property — is not present in the instant case. In the cases cited in part III of the majority opinion, the violation of rights occurred when the Government initially improperly obtained the evidence in question. Subsequent use of the evidence was not itself a part oí* the violation of rights.
The instant case deals with what, seems to me to be an essentially different situation. In the instant case, the Government's obtaining of the information, and its use in the grand jury proceeding, did not violate petitioner’s constitutional or statutory rights.
Rather, the problem in the instant case arises from the use to which respondent apparently has put the obtained information. It is this type of use which drew the disapproval of the Supreme Court in United States v. Baggot,
From the Supreme Court’s recent description of the basic considerations in application of the Fourth Amendment exclusionary rule (see notes 1 & 2 supra), when set off against the Supreme Court’s recent description of the basic considerations in rule 6(e) order cases (see notes 3 & 4 supra), it appears to me the Fourth Amendment exclusionary rule is not relevant to those rule 6(e) ordеr cases where the argued invalidity of the rule 6(e) order depends on the way respondent uses the disclosed information.
In the instant case, under the Baggot standard, respondent might have been able to obtain the disclosed information for a proper use; however, if we were to apply the Baggot standard, then the use that respondent has made of the disclosed information is itself the wrong that is being complained of.
In order to prevent an actual use of information which would violate the Supreme Court’s understanding of the strictures of rule 6(e), Fed. R. Crim. P., as enacted by the Congress,
Accordingly, I concur in the result reached by the majority in the instant case.
The Supreme Court’s opinion in United States v. Leon, 468 U.S._(1984), refers to this as "the Fourth Amendment exclusionary rule”.
In its recent opinion in United States it- Leon,- 468 .U.S.' (1984),the Supreme Court stated . this point aS follows (468 U.S,.at I:
"The Fourth Amendment contains-no-provision ,'expressly precluding, the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure ’worlds] ho new Fourth’ Amendment wrong.’ United States v. Calandra,414 U.S. 338 , 854 (1974).-The. wrong condemned by the Amendment is. "fully accomplished” by the unlawful search or. seizure itself, ibid., and the exclusionary rule is neither intended nór able’to "cure the invasion of the defendant’s rights which he has already súttetei.”'Stone v. Powell, supraf at 540 (White, J., dissenting).' The- rule* thus operates as; ’a judicially created remedy designed' to safeguard Fourth. Amendment rights generally through its deterrent effect, rather timn a personal constitutional right of the person aggrieved.’ United States v. Calandrar supra, at 348.”
The two requirements; though-related-in, some ways, .are independent prerequisites to disclosure. The particularized need test is a criterion of degree; the ’judicial proceeding’ language (CXi) imposes an additional criterion governing the kind of need that must be'shovim. If reflects judgment that not every beneficial purpose, or even every valid governmental purpose, is an appropriate reason for breaching grand jury secrecy. Rather, the Rule contemplates only uses related fairlydirectly to some identifiable litigation, pending or anticipated. Thus, it is not enough to show that some litigation may emerge, from the matter in which the material is to be used, or even that litigation is factually likely to emerge. The focus is on the actual use to be made of the material. If the primary purpose of disclosure is not to assist in preparation or conduct of a judicial proceeding, disclosure under (CXi) is not permitted. See United States v. Young,
"’Second, because the Government takes an active part in the activities of the grand jury, disclosure to government attorneys for civil use poses a significant threat to the integrity of the grand jury itself. If prosecutors in a given case knew that their colleagues would be free to use the materials generated by the grand jury for a civil case, they might be tempted to manipulate the grand jury’s powerful investigative tools to root out additional evidence useful in the civil suit, or even to start or continue a grand jury inquiry where no criminal prosecution seemed likely. Any such use of grand jury proceedings to elicit evidence for use in a civil case is improper per se. Procter & Gamble,
See part III-B of the Supreme Court’s opinion in United States v. Sells Engineering, Inc.,
Concurrence Opinion
concurring: We are here invited to exclude evidence acquired pursuant to a court order issued under standards subsequently determined by the Supreme Court to be improper. The majority declines this invitation on two independent grounds, one of the alternative holdings clearly stating that the exclusionary rule may not be invoked on the facts before us. (Part III of the majority opinion.) I concur solely on the basis of this alternative holding.
The exclusionary rule is principally, if not solely, designed to deter improper behavior by investigative personnel. Nix v. Williams, 467 U.S._(1984); United States v. Janis,
Accordingly, I am completely at a loss to explain why 90 percent of the majority opinion is devoted to a superfluous discussion of our jurisdiction to decide the admissibility of evidence (part 1(A) of the majority opinion); the doctrine of comity and the circumstances under which the doctrine requires us to respect the rulings of other courts (part 1(B) of the majority opinion); the decisional background of most of the important rule 6(e) cases (part 11(A) of the majority opinion); and the rules of retroactivity (part 11(B) of the majority opinion).
The extended discussion of retroactivity is based on a fundamental misunderstanding of the exclusionary rule which, as the majority notes, is "the underlying ground advanced by petitioner in support of her suppression motion.” That misunderstanding is plainly revealed in the majority’s observation that "a finding that the subsequently announced rules [the Baggot and Sells cases] are not to be applied retroactively effectively creates a legal fiction that the evidence in question was not illegally obtained.” (Emphasis added.) Here the majority uses the word "illegally” to suggest that, measured against subsequent enlightenment, the wrong standard was utilized by the District Court in issuing the rule 6(e) order. But this in no way suggests that even assuming Baggot and Sells should be applied retroactively, that the evidence herein was "illegally obtained” (i.e., tainted) for
These various digressions, along with statements made in a concurring opinion, require two brief comments. The first concerns the discussion of comity which implies that in a different posture we might feel compelled to undertake a de novo review of a District Court’s rule 6(e) order. I reject this philosophy for the reasons I expressed in a concurring opinion in Graham v. Commissioner,
The grand jury is peculiarly a creature of the District Court that created it, and hoth hy history and Federal rule, it is closely supervised by that court. The Federal Rules of Criminal Procedure, pursuant to Rule 6(e), specifically allocate responsibility for determining the propriety of using grand jury material for civil purposes to the District Court. Where the District Court supervising a particular grand jury has issued an order permitting the civil use of grand jury materials, that should end the matter for the Tax Court. Our jurisdiction is carefully circumscribed by statute and includes only civil matters; we certainly have no experience with, or responsibility for, grand juries. It is therefore wholly inappropriate for the Tax Court to reexamine the propriety of a District Court order under Rule 6(e), even if that order appeаrs to be inappropriate to us. Since there was a Rule 6(e) order issued in the instant case, that ends the matter for me.
This seems to be the only course of action that recognizes the diverse responsibilities of the Tax Court and U.S. District Courts, particularly the U.S. District Court that has responsibility for a specific grand jury. For these reasons and also to avoid duplicative proceedings, it is imperative that the Tax Court honor a Rule 6(e) order issued by a District Court having specific responsibility for a specific grand jury, even though we may have misgivings about the wisdom of that order.
The second point is to emphasize that the majority properly considered the exclusionary rule as a central issue in this case,
Furthermore, it is clear that courts, commentators, and even governmental agencies consider suppression to be an appropriate remedy where grand jury material is improperly disclosed and used for civil purposes in violation of rule 6(e). See In re Grand Jury Investigation No. 78-184,
Discussing United States v. Leon, 468 U.S._(1984), the majority states that "The Supreme Court's articulation of the 'good faith' exception to the rule makes it clear that application of the rule in this case would be inappropriate, whether or not the
Some reason for excluding relevant evidence must be offered, and the argument here made, the majority tells us, is that the release of the material contrary to the criteria in Baggot and Sells "constituted an abuse of the grand jury process requiring the suppression of all the grand jury material in this