*1 regulations call for disagree. We America, possible ar- of four
step-wise consideration UNITED STATES strin- the most Plaintiff-Appellee, beginning with rangements, most lenient. progressing gent and arrange- more lenient Each Id. Butler, BURKE, Terry Michael Russell a de- considered after only be ments need Chester, Joyce Terrance W. cannot meet borrower termination Honchell, Frederick Michael William previous, of one of requirements Perez, Evans, Defendants-Ap George The FmHA stringent, requirement. more pellants. repay the Austin could that Ms. determined two-year period, in a amount moratorium No. 86-8407. that she fell which meant Rl-16-Enc. Appeals, Court of requirement for stringent the most Eleventh Circuit. 1951.313(e)(i) 7 C.F.R.
repayment. § Therefore, require- (1983). there was no 7, 1988. Oct. any of the consider that the FmHA arrangements. less-stringent
V. OTHER ISSUES consider Ms. Austin’s need not contentions, argue not as she did
maining trial. Fed.R.Civ.P. 46.
them at See the district court judgment of
AFFIRMED. moratorium, County during accrued originally scheduled for maximum term, much interest legal Supervisor loan can be reamortized will determine how then plus legal term of the loan borrower to for maximum to enable the must be canceled time the
period moratorium exceed during authorized in repay the time the loan effect, years the the number of was in less (e)(l)(iii) paragraph section. outstanding. supple- State loan has been complete Supervisor Section II of County will procedures establishing policies and ments indicating the amount FmHA 451-23 Form extending the term will be issued for will be de- Such canceled. amount interest the Of- be obtained from loan or advice will determining balance from the owed ducted (OCG) case-by- on a General Counsel fice of repayment schedule. a new pay for title must The borrower case basis. (v) letter will be advised The borrower legal needed assure services clearance action, taken, action reasons priority is re- lien Government’s schedule, that, if the repayment the new tained. agree the action tak- does not borrower (iv) is made that If the determination en, may appeal the action borrower payments make scheduled borrower cannot of this Subpart Part 1900 provided B of para- under the terms on the balance owed chapter. (e)(l)(iii) cancel- graph this section without 1951.313(e) (1983). § 7 C.F.R. part all of the interest lation of *2 CLARK, JOHNSON Before *, EATON Senior Judges, and Circuit Judge. PER CURIAM: district from appeal This is the indict- to dismiss denial are before appellants ment.1 Butler, Terrance Burke, Terry Russell Honc- Frederick Joyce Chester, Perez. George hell, Evans Michael ground appeal appellants All I. the Sixth violated delay pretrial the Unit- the Constitution Amendment (18 act “speedy trial” or the ed trial 3161) speedy issue]. [the U.S.C. § deni- appeal from Greeson’s Joyce II. the indictment dismiss of her al govern- that “the ground on the is based non- evidentiary and improper made her immunized use of evidentiary having testi- following her testimony” jury use-immu- jury before fied immu- Greeson 6003 [the U.S.C. nity. 18 § nity issue]. Chester, Honc- Appellants III. ground appeal hell mis- governmental flagrant there investigative and during the conduct proceed the case stages of Atlanta, (court-ap- Ga. Quirk, Joseph P. undermine indictment upon & Greeson only), for Greeson for
pointed Alternatively, judiciary. integrity Honchell. Butler, Burke for remanded the case have they seek Fla., Evans. Miami, they for Dean, ground Denis hearing on further rights Fifth Amendment denied Fla., Perez. Miami, for Orta, A. Miguel by a indicted having been Tenn., Knoxville, for Moncier, Herbert impartial. fair Chester. pleas, guilty entered appellants All P. Atty., William Cowan, U.S. Stephen S. now issues appeal right to serving the Ga., for U.S. Atlanta, Gaffney, sentenced been have All court. this pending on bond currently free are all appeal.2 this disposition be further will not and it merit * without to be Judge it discussed. Eaton, U.S. District Senior Joe Honorable Florida, sitting the Southern case, designation. arrested defendants All of either have Lamar T. deceased save Chester, also "conditionally") have (some Terrance appellants, guilty One of pleaded improper- Apparently one convicted. "the issue that been tried raises (Jose regarding indictment in the named information defendants him ly withheld However, arrested. Galan) never co-conspirators, informants has witnesses, including M. "sole says brief in its participated and/or who witnessed others con- tried Elliott remaining defendant crimes.” commission sentenced." later July, victed we find because a footnote relegate issue judge, “Gree- recited As Issue Trial I.Speedy in- testimony provided little relevant son’s record, careful review After a _” testimo- of her The extent formation thorough well- judge entered previously to confirm ny was trial speedy denying *3 reasoned inde- agents from government by obtained motions. immigra- including certain pendent sources record, we the Following review our tion forms. denial the the district uphold immun- “non-evidentiary use of her toAs in expressed the reasons motion contends testimony” position, Greeson ized opinion, memorandum judge’s the district her prosecute chose government the that affirm (N.D.Ga.1986),we 1574 F.Supp. 673 she that believed government the because judge’s determination. the district immun- giving when herself perjured had find jury. testimony to the Immunity Issue ized II.Joyce Greeson’s district contention, to the presented that hearing,3 a evidentiary Following uphold and we merit court, without to be report to the Magistrate’s States in his denial Greeson’s judge district the Greeson’s that recommended judge trial “non-evidentiary use” motion.5 de immunity issue be raising the testimony Following review nied. Misconduct III.Governmental magistrate’s at the submitted and evidence facts the same testimony and evidence from This case arises hearing and the the jury, appeal is from indicting grand this indictment and presented re States order as United adopted judge district same district Cir.1988). (11th Gree- and denied Elliott, 554 recommendation 849 F.2d port and v. distinct case are II this I in motion. son’s Issues III case. Issue Elliott issues from re the material Following our review Misconduct—is case—Governmental in this con judge4 and by the district viewed case. Elliott 2 in the Issue identical district out set of law clusions prior to filed has opinion been that Since order, uphold we judge’s Elliott are bound opinion, we this has government that the conclusion judge’s appellants holding. The panel’s prepon establishing, by a met its burden make Perez Honchell evidence evidence, that all derance Elliott: as did arguments us three same jury was indicting grand to the presented presented fabricat government (1) that the in wholly sources legitimate from derived to the prejudicial documents highly ed testimo immunized dependent of Greeson’s attorneys (2) grand jury; indicting previous ny given before sub the court’s abused affirmative its has met as to under an extent to such poena power Supreme by the prescribed duty as (3) judiciary; integrity of the 441, mine 92 States, 406 U.S. Kastigar v. United 6(e), Fed.R. flagrant Rule there were (1972). 212 32 L.Ed.2d S.Ct. Hampton, 775 upon Relying hearing testimony compelling 3. The most Cir.1985), that it asserts Greeson 1479 was submitted F.2d have received which we Tony cooperation of presumed magistrate in camera. be government to the must Joyce com- Greeson's derived Chester court as obtained 4. The material testimony. pelled Supple- Order August 1987 of its result raised point never That Record. burden government had the Though the court. issue," "immunity it was court, proof Greeson’s she with filed Greeson’s brief 5. In posi- possible every anticipate required compelled give point she was raises mov- Tony to the available target might grand jury have against issue in gave raised the testimony enabled have she first must Greeson and that Chester ant. against burden bring placed Chester case have government to in order manner some bargain plea that issue. consequently government on struck a upon the proof who against testify Gree- agreed to prosecutor and son.
1495 to ensure that grand jury gross resulted Crim.P., violations duplicate in not burdened with jurors are secrecy rule. abuses power subpoena The court’s formation. 2 of the El adopt Issue we Consequently, however, by the United not, used may 556- F.2d 849 opinion verbatim. liott its own part of Attorney’s office as “[Chester, Gree substituted haveWe v. Di investigative process. United the name where son, Perez]” Honchell Cir.1976), (3d cert. 985 Gilio, F.2d 538 appears. “Elliott” S.Ct. denied, U.S. “[Chester, necessarily (1977). Courts L.Ed.2d fa- the Government argue] that regarding role play a limited jury; that documents bricated of the United the role given proceedings *4 court’s attorneys abused Government power inher Attorney and broad States egre- there were and that power; subpoena grand jury. ent 6(e)which Fed.R.Crim.P. violations gious testimony jury grand “A review jury secre- grand abuses resulted an encroach not show does disagree. We rule. cy the court’s by Government Ms. prompting, the Government’s “At court compel power that would subpoena formerly as- accountant Bickerton, public a of this exercise Only interference. Chester, fabricated T. Lamar sociated pro power to supervisory general Court’s those among included to be documents process judicial integrity of tect by Houston a subpoenaed possession her [Chester, afforded relief be some could Atlanta to an presented jury grand point. on this Greeson, Honchell Perez] arranged The fabrication jury. grand exer reason to record, find no we On effort to in their agents Government by Nova Scotia Bank power. that See cise justice suspected obstruction a uncover — U.S. —, 108 S.Ct. States, v. United plan The lawyers. and two Chester (court should (1988) 228 2369, 101 L.Ed.2d doc- failed, fabricated ultimately dismiss power to supervisory its not invoke other along with misplaced were uments misconduct prosecutorial for an indictment magistrate’s documents. genuine miscon where investigation jury grand in a a find- included recommendation port defendant). prejudice not does duct were documents no fabricated ing that mis- probable some reflects “The record jury. grand indicting lawyers. by some Government conduct a finding upon adopted this court however, carefully con- court, finding This of the record. novo review de of violations allegations sidered clearly erroneous. not is concluded secrecy and jury grand Greeson, Honchell “[Chester, did Perez] Honchell [Chester, jury grand court’s the district argue] that to war- prejudice sufficient not establish it was because abused power subpoena The dis- indictment. dismissal rant pretext for aas the Government used had magistrate that the found trict sus to interview purposes investigative Per- [Chester, given pur jury grand solely for not pects, and his dis- within hearing, and was a fair ez] is not individual subpoenaed That a poses. for defendants’ denying cretion jury grand called before ultimately records. jury production aof se violation per a result in does agree. practical As a power. subpoena court’s pur- our for standard controlling “The Attorney is al matter, one: straightforward is a poses attempting leeway in considerably lowed transcripts jury seeking grand Parties investigation. a for prepare the mat- 6(e) must show rule Santucci, F.2d 674 v. States possi- a avoid needed is they seek ter denied, 459 U.S. Cir.1982), cert. (7th 632 proceed- judicial in another injustice (1983). ble 959 74 L.Ed.2d S.Ct. 103 great- for disclosure the need ing, that regularly Attorney must The United secrecy, for continued the need er than appearances prior witnesses interview 1496 only alle- clearly erroneous. to was request is structured particularized approach gation found to Such so needed. only material cover doc- allegation of fabricated even when need was made showing must be found sought uments, the district court transcripts are to which jury whose operations. came before that none its has concluded attempt no Third, made that defendants] Stops North Petrol v.
Douglas Oil Co. request sweeping particularize [their] 211, 222, 99 S.Ct. west, U.S. that, Fourth, toas jury records. omitted). (footnote (1979) 60 L.Ed.2d letters, neither orders the transfer grand jury to obtain effort A defendant’s need nor an ex- particularized showing of showing only succeed with can materials disclosure assist planation of how v. need.” United “particularized 677, 683, establishing government misconduct Co., 356 U.S. Gamble Procter & Fifth, adopt- (1958). grand jury. indicting 983, 987, 2 L.Ed.2d 78 S.Ct. finding, the Houston proceed ing the to disclose The decision investigations the district Atlanta matter ings is a within Benton, 637 same investigation single, joint not a discretion. 1981). Sixth, B Cir. Unit transactions. F.2d individuals *5 by gen not oc- alleged shown violations need majority Particularized of jury materials grand grand that allegation Houston eral in relation curred a mo preparation necessary impact or no are investigation with little jury v. United Thomas to dismiss. See jury investigation. on Atlanta Cir.1979). 656, (8th 658 States, F.2d 597 not shown had Seventh, that defendants] Inc., Eng’g v. Sells Atlanta, also conduct, See or in any Houston that 77 103 S.Ct. 463 U.S. ability to or rights prejudiced had [their] to (rational relationship (1983) 743 L.Ed.2d Order in this case. See amake defense to constitute is insufficient alleged claims 31, 1986. March v. need); particularized Greeson, Honchell and “[Chester, Cir.1985) (11th (un Cole, F.2d showing that the the burden have] satisfy allegations do substantiated particu- only the covered quested materials standard). need particularized Oil, 441 U.S. Douglas need. larized [Chester, that found court “The district Here, court at 1675. 99 S.Ct. failed Greeson, and Honchell Perez] Greeson, Honchell [Chester, found that need. Without particularized show particu- attempt limit made no Perez] Greeson, Honchell [Chester, showing, all request for broad larize [their] jury mate- not entitled Perez are] records, disclosure how or show jury materials require rials, those can we nor governmental establishing in assist [them] Liuzzo, 739 be revealed. indicting misconduct before Cir.1984). The district 541, 545 F.2d clearly erroneous. findings are These clearly is not this issue finding on court’s Honchell Perez] [Chester, and district magistrate erroneous. had these circumstances ‘show must 6(e) Rule extensively the court reviewed peculiar to difficulties certain created case, as evidenced in issues by access be alleviated case, could [Chester, Gree- denying order magistrate’s materials, do- without specific to dismiss son, Perez’] salutary harm to ing disproportionate af- court’s indictment, the district in the secrecy embodied purpose firming order. justify order process in things, the district court “Among other production order prejudice as- First, the serious found: Liuzzo, F.2d at jury documents.’ was undermined serted defendants] not done.” [they This have] appeal- delay and a half before year [their] record the briefs have reviewed Second, that denial. magistrate’s ing the II I and Issues affirm case and in this requisite finding respect With that review. basis on the been shown had not particularized need appellants in this investigation were ta Misconduct— III —Governmental Issue case. on the basis the district affirm we by which opinion, Elliott holding in the 1, 1981, the United States On October are bound. we District in Southern Attorney’s office in judge from a district of Texas obtained AFFIRMED. Dis- order entitled “Order Houston an Jury Records Grand closure Certain Judge, EATON, Senior That 6(e) F.R.Cr.P.” Compliancewith dissenting in part and concurring in the United to authorize purported part: his assist- Attorney in Houston and result in the I concur exception, oneWith entire ants to disclose I dissent opinion. majority reached grand juries existence of all affirmance only in existence previously Houston and Chester, Hone- denial Court’s investigation of ten relating Houston filed on to dismiss Perez’s hell Eisenberg, Tilton (including parties named they were ground constitutional Anthony [Tony] Joseph Lamar Chester rights by Fifth Amendment their denied “others,”) to named officers grand jury that by a having been Investigation, Georgia Bureau impartial. not fair Department of the Florida named officers and, in the words of Law Enforcement ultimately gave investigation Attorneys’ order, “the United States began in in this case indictment rise to the grand juries, offices, personnel, As Texas, Houston, sometime Atlanta, Mia- using in they are agents the de- developed, one of investigation *6 and Jacksonville, Pittsburgh Tampa, mi, case, Lance in this later fendants York.” New the Hous- target of a Eisenberg, became E. subject also the investigation. He later, ton October Two weeks ex- to some and investigation in Miami in the office Attorney’s States the United in Atlanta. office Georgia, tent Northern District to see responsibility primary has the Attor- 1981, United States In June free juries deliberate that Atlanta Georgia, District of Northern ney pressure, ob- of outside from the influence Department Justice of the representatives the North- judge of a district tained enforce- twenty-five law approximately and Georgia the order2 District ern agencies agents from various follows: plan to to formulate met investigations the extensive coordinate Service, DISTRICT STATES Customs THE IN UNITED United States which the DIS- Hous- NORTHERN A FOR THE involved. COURT and FBI were the IRS DI- ATLANTA attorney named OF GEORGIA TRICT United States ton assistant coordina- to be the designated VISION Johnson Tilton activities. investigative tor of the INVESTIGA- JURY GRAND IN RE target in principal became Lamar Chester 81-1) (GJ TION Lamar and Tilton Eisenberg Houston. targets principal later became Chester MOTION in Hous- juries Ultimately, Atlanta. Amer- States the United now Comes testimony on Atlanta1 heard ton and counsel, E. James through its by and ica per- Among the several “cases.” related Attorney and Baker, [name States United Atlan- targets in later became sons who the doc- portion of appears that the 2. It juries in Atlan- at least three 1. There prosecutor for prepared Appropriate investigation. ument in the ta involved the document placed on signature regarding trans- and judge's were obtained orders transfer Northern the motion. within the which constituted fer of Georgia. 4. Attor- omitted], Assistant Georgia, Northern ney for investigations will be The above pursuant this Court involve extensive moves lengthy duration Rules of Criminal neces- testimony. It will be 6(e) Federal evidence to Grand amended, to authorize Procedure, sary that information as investigation during relating Jury 81-1 aforesaid transfer Agent William Special disclosed Tilton Lamar investigations of Law En- Wolfe, Department Florida Eisenberg, Chester, Lance Anthony Alcott, Esquire, forcement, Robert others, federal by a omitted] [name Enforce- of Law Department Florida in this and sworn impaneled Attorneys’ ment, States the United Wolfe, Agent William Special District to the Grand Ju- Offices, personnel, their Enforce- of Law Department Florida being used in ries, special agents Attorneys’ ment, United Jacksonville, Tampa, Miami, Houston, Grand Ju- Offices, personnel, properly York to Pittsburgh, and New being used agents ries, special per- counsel in assist Jacksonville, Tampa, Miami, Houston, her duties. formance support York. In Pittsburgh, and New show motion, the Government 5. that: requests that further The Government secrecy compromise the so duly proceedings aforesaid jury that federal impaneled of Law En- Department The Florida by this subsequent order any investigating has been is and forcement under seal maintained Court be directly connected who are individuals until of this Clerk Office in- above-referenced suspects of the order. further state for violations vestigation submitted, Respectfully including: Title laws federal E. BAKER JAMES 952; Code, Title Section ATTORNEY STATES UNITED Code, Section *7 (signature) omitted] [name ATTORNEY U.S. ASSISTANT 2. Attorneys’ Offices States The United ORDER Jacksonville, Tampa, Houston, Miami, in above has reviewed by and York Pittsburgh and New pursuant and States United quest of the the United agencies through various of Crim- Rules 6(e)of the Federal investigating the are Government amended, grants Procedure, as inal in addition individuals above-referenced motion. above the vari- within persons located other day of Octo- 16th SO ORDERED of federal for violations districts ous ber, 1981. including: Title laws omitted] [name Code, Section DISTRICT STATES UNITED JUDGE jury informa- Thereafter, Atlanta (81-1) has federal au- Jury freely Grand disseminated The McCaskill Johnson, the coordi- documentary evi- in subpoenas for Houston. thorities issued investigation, ex- has been multidistrict which of the nator information dence orders, the transfer for addi- that because plained to the presented pass information, would we got “If we is to be which evidence tional well as people, as appropriate it on sessions future at dol- thousand case, two hundred F.E.L.A., in this else, as D.E.A. anybody miscon- governmental 294), lars, evidence p. 22 at (R. whatever,” Vol. part played Attorney General some on cleared duct.3 all the smoke “when clearly see President to the taped could offer we investigations, these Houston. So not related information they were someone leaked use, whether couldn’t we anything press. aor statement little witness’s one enforce- government law least four At ship off documents, it we’d bunch Atlanta primary including the agents, ment investigate should people appropriate discussions extensive agent,” had “case 295). p. (R. Vol. anything.” it, if concerning press with members govern- his left 1982 Johnson July of In general, it In investigations. law private into went position mem- they met with position agents’ left the Johnson After practice. helpful gain in order press bers office, wrote letter he Attorney’s jour- from the the case about information his elements numerous outlining the said It was they spoke. with whom nalists interplay command coordinated of the mem- one agents that by one states: letter among them. amount a “colossal” press had bers even- Service Revenue Internal ex- included files Hous- Agents seven tually assigned the news- ofOne data. pertinent tremely Cus- one U.S. me and with work ton to “in- case have known said men was Ser- Customs U.S. from the agent toms out.” side and personnel. support vice, along with other Decem- October, November During the U.S. closely with working wereWe inves- gave the Miami, Drug En- media news in ber Attorney’s Office During that Boston, the in treatment. extensive tigations Administration forcement con- Department newspaper articles4 Police series State period Massachusetts in- investigation, State Vineyard, the coordinated cerning the Martha’s Department matters, in appeared Police Attorney’s Office cluding Attorney’s Journal, Office York, Constitution, U.S. Atlanta New in Atlanta At- U.S. Pennsylvania, Post, Pittsburgh, Wash- Chronicle, Houston Houston the U.S. Virginia, Morning West torney’s Herald, Office Dallas Post, Miami ington Georgia Atlanta, the Sentinel, Attorney’s Office News/Sun News, Lauderdale Fort Enforcement, of Law Department Journal. Street Wall Times York New Investigation Talla- Bureau Federal people numbers Undoubtedly, vast Attor- Florida, hassee, State being investi- matters familiar Florida, Lauderdale, in Fort ney’s Office juries. by gated Laud- in Fort Department Police *8 magis- the hearings and State before During other erdale, the numerous and Chester, dismiss, agencies. to Enforcement Law trate Federal repeatedly and Perez Greeson, Honchell United 1982, Assistant an August of In or- 6(e)(3)transfer Rule to access quested of- office the Houston Attorney in giving 6(e)(3)(B)letters ders,5 Rule to the counsel defense of the to one sell fered to concerning the information agent to sell solicitation reported that promptly offeree 3. The jury.” govern- the in and aided government to the The investi- investigation of the matter. ment’s judge on hearing the trial before 5. During the the recommendation, of conviction and trial in the gation resulted report and magistrate’s the States Attor- the Assistant how prosecutor Houston former the judge asked trial the of by disclosure ney. be harmed would government re prosecutor The 6(e) orders. transfer the considered never government Eisenberg, F.2d the sponded that States v. In requiring disclosure genuine issue the Cir.1983), to was a referred there hearing the in the on Later material. publicity," which of the following onslaught of "the publicity as the the court colloquy between govern- aiding the counsel part from in "arose ensued: prosecutor government by a investigating an offer ment the Attorneys for secrecy. persons those court of to the notice written purport- which orders attorney govern- sought the and obtained for designated in the enforce- attorney authority for give the blanket assist ed to to ment laws, (designation every criminal individual of federal disclosed to to be Near jury records. letters) to the United office of in the employed magistrate hearings, the the end of the in the metropolitan areas Attorney in six trial requests. the formally denied particular work of regardless their country denial.6 the upheld judge of the division criminal assignment Chester, appellants judgment, the em- my In whether regardless of office and were clearly Greeson, Honchell in the civil or criminal employed ployee was orders, to the transfer access to to entitled According to the office. of division least, and, to the letters, designation any made orders, could be disclosure jury as indicting grand of minutes in those six “being agent used” special in the sought establish appellants those areas, nature whatever metropolitan by a they were to two as well as assignment, agent’s impartial. not fair that was Department Law the Florida officers mat- dissemination of the scope investi- agency Enforcement, was whose directly juries bore before ters federal state gating “violations claim upon constitutional the Geor- laws,” officers to named The breadth Perez. Investigation.8 gia Bureau October, com- of the vagueness were “transfer orders” time the At the during obtained orders”7 panion “transfer attorney 6(e) required the obtained,9 Rule may investigation stages of early from an order to obtain for law open invitation an provided have jury records to transfer the court the rule agents relax enforcement may have contrib- in 1981 as it existed rule Why world did in the THE COURT: judges’ signing the orders. The uted to camera? be done in have office that upon confidence GOVERNMENT]: reliance prepared THE FOR [ATTORNEY signature for orders is Honor, all the Your signifi- contributing causes. question may think have in camera. submitted —I a, it the orders presentation that it was of the Magistrate felt cance a lack of dispute. extent To the orders demonstrate judges that the matter not a exists, investigation that the concede leadership I from the outset that the secrecy certain- them are between joint orders critical preservation transfer they do is— All ly on grand jury. innocuous face. under- I can't is what That THE COURT: need there that just put out issues Fed.R.Crim.P., stand. You 6(e)(3)(A)(ii), amend- Rule supplied.) (Emphasis (R44-196). not be there. the term show that specifically ed in 1985 necessary to as- personnel “government deemed study record of 6. I am convinced per- government in the attorney sist Judge hearing the District the Magistrate’s attorney’s duty enforce formance report and recommendation personnel aof law" includes criminal federal never were orders” companion "transfer the presented That same state. of a or a subdivision state magis- Judge. The to the District Fed.R.Crim.P., 6(e)(3)(C), year, Rule only states report and recommendation trate’s subdivision of new addition amended 6(e) obtained from orders "Rule permit a court (e)(3)(C)(iv), allows informa- to transmit Houston court in official state or local to a disclosure 6(e) Atlanta obtained to Atlanta *9 attorney enforcing when state law purpose of to Houston” transmit to orders makes the requests and government so Report Recommendation (Magistrate’s crimi- a state showing. of Disclosure requisite were orders” 11-12). companion "transfer The manner, at in such be made must violation nal court until this appellate record part the of not conditions, time, as the such and under 26, August by its of use them obtained may direct. record. supplement the to order 6(e)(3)(C), Fed.R. to Rule amendment A9. the presented to orders recognize that the I7. spe- (e)(3)(C)(iii) to Crim.P., subdivision added by judges. signed the judges indeed by an at- be made to cifically allow disclosure jury grand of for transfer orders fact that The federal to another government torney the for federal jury another grand to one from jury. grand routinely quite entered jury were grand as discussed United need” larized federal to another jury grand from one its majority, and attorney Luizzo, for cited However, the jury.10 grand applies to predecessors make well known authorized the of the content person- disclosure quests for the as to the decision Practically speak- in enforc- proceedings. or her grand jury him necessary to assist nel require- The see transfer juries need never ing, grand laws. criminal ing federal the regard was Their dis- designation in that letters. the rule orders and ment of designated persons as- no secret of those have revealed the names closure the given to be investigation. were to grand jury assistance provide pect of the “pa- provide writing, in order to court in deny course, grant the decision Of of subse- resolution facilitate per trail” or- transfer the district court’s access (Notes improper disclosure. quent claims letters attorney’s designation ders and the Re- Judiciary, Senate of Committee exercise of is to be made Admin. Cong. & 95-354, # U.S.Code port showing nec- discretion, but reasonable Amendment, Ad- 527, 1977, p. News rise to essary to obtain access need 6, Notes, Rule Federal visory Committee as dis- requirement need” “particularized Procedure.) of Criminal Rules its v. Luizzo in United States cussed occurring be- of matters disclosure When predecessors. in fact is not indicting fore an need,” if “particularized speaking of And per- as designated persons to those limited not establish extraordinary record does attorneys for assist the necessary to sons at least for disclosure predicate impartiality government11, I jury, indicting grand the minutes may be affected jury indicting grand will. set of facts foresee no news through the widespread discussions— returned October The indictment or not or otherwise—whether media hearings on evidentiary lengthy 1983. The upon fact. based are discussions August began on various denying access for reason no valid I see report and recom- 1984. The “designa- orders” the “transfer post- years over was made two mendation secrecy obligation tion letters.” judge’s The district indictment. 6(e) to matters applies by Rule imposed recommendation, based report Requests occurring before record before upon the voluminous designa- orders to transfer for access one-half two entered magistrate, was mat- requests to reveal are letters post-indictment. years jury during grand transpired ters which at least for need disclosure requests for disclosure proceedings are appears jury indicting grand minutes docu- minutes, testimony, or jury In secrecy. need for than the greater far mentary evidence. the min- to at least access my judgment, requirement need” “particularized jury was needed indicting utes 6(e)(3)(C):“Disclo- part stems injustice. possible avoid rule of by this prohibited sure otherwise in the inter- justice In the interest occurring before matters secre- maintenance est (ii) permitted when made .... may be also orders, the the transfer disclosure cy, defendant, of a request at the by a court min- letters, at least designation may exist for grounds showing that upon a jury should indicting grand utes indictment because to dismiss a motion considering the undis- allowed have occurring before of matters here. outlined puted facts “particu- showing necessary jury.” government were attorneys ta sought under approval could 10. That and March March preliminarily between 6(e)(3)(C)(i) made —"Disclosure *10 Northern the Court of proceeding.” judicial the with a letters to connection or in Georgia. of per- names Approximately one hundred 11. necessary Atlan- assist the designated as sons 1502 under- would upon indictment proceed the appellants us that tells majority The judiciary.13 of the integrity mine the Perez Greeson, Honchell
Chester, arguments three same the make and re- has answered panel The Miller this issue on misconduct” “governmental appeal on an argument, albeit jected that v. in United did Elliott appeal as Miller. by co-defendant filed Cir.1988), (11th Elliott, F.2d 554 849 Greeson, Chester, Honchell However, argu- the lists majority The is true. that alter- appeal, in this the seek on and Perez present- government “(1) that the as ments for fur- remanded native, case have the doc- prejudicial highly fabricated ed issue, the constitutional hearing on ther (2)that jury; indicting grand uments denied they were argued, that raised abused the attorneys for the having by rights Amendment Fifth their to such power subpoena this was jury which by a been the integrity undermine as to extent issue, impartial, on which fair and flagrant (3) there that judiciary; and demon- must be course, prejudice actual violations 6(e), Fed.R.Crim.P. alternatively raised It is on strated. gross abuses resulted disagree- express I issue constitutional opinion Elliott secrecy Since rule.” majority’s affirmance ment with opinion in majority filed before Chester, denial district court’s arewe bound finds that case, majority to dismiss and Perez’s Honchel is- holding on those panel’s by the Elliott indictment. there. disagreement no I have sues. is My opinion Chester, Gree- position primary The op- fair have a should “govern- Perez on son, Honchell constitutional portunity to establish any one is issue misconduct” mental court, I position before totality or the alleged derelictions three right. them afford is sufficient of the circumstances its inherent exercise court to to cause in- dismissing the power
supervisory in the absence even them against
dictment They prejudice.12 showing of actual aof govern- flagrant
urge that there investigative during the misconduct
mental case jury stages resting on constitutional neither as the Court filed appellants was those brief of The initial McNabb, the su- statutory grounds. Since v. nor Nova Scotia publication of Bank — “the U.S. —, generally referred to power, 101 States, pervisory 108 S.Ct. Court”, Bollivian, has power of the (1988); supervisory v. United States 228 inherent L.Ed.2d Cir.1987); judi- v. (11th of the federal employed all levels F.2d 266 819 Cir.1987); (11th Unit broad O'Keefe, F.2d 314 to cover ciary 825 circumstances extreme Cir.1987). Ricks, F.2d 692 817 States v. judicial range ed actions. super recognized the has Supreme Court power courts' limited time to time From along with applicability, visory power doctrine’s grand jury is relationship in its exercised limitations, all levels important its supervisory inherent the court’s confused Payner, 447 v. judiciary. United federal integrity protect the in order power exercised (1980); 468 L.Ed.2d 65 100 S.Ct. U.S. when surfaces judiciary. confusion 499, 103 S.Ct. Hasting, 461 U.S. v. United States 1974, com- of which governmental misconduct (1983); Scotia Bank Nova L.Ed.2d 96 76 context arises plaint is made U.S. —, — States, S.Ct. 108 v. United often most confusion proceedings. (1988). 101 L.Ed.2d gross alleges miscon- movant when surfaces constitutionally However, presence of the duct Though entity. independent as an established jury. established, very much constitutionally it States, 318 U.S. In McNabb court does law. the common creature Supreme (1943), L.Ed. S.Ct. power over supervisory possess inherent pow- supervisory “general its announced decision, power described as a basis er"