United States v. William Wayne Nix, Jr., Ralph D. Osborne v. United States

347 would have been suppressed, and the out that, sonable probability” lawyer had his come of the trial would have been different moved suppress, the evidence would have had suppressed. the evidence been Kimmel suppressed. been He had the burden of Morrison, 365, man v. 375, 477 U.S. 106 proving prejudice. Strickland, 466 U.S. at 2574, 2582, 91 L.Ed.2d 305 He 693, 104 S.Ct. at 2067. concedes, must,- as he proba there was AFFIRMED. special ble cause and exigency justifying a warrantless search of his mag rectum. The

istrate found that the search was constitu

tionally permissible, and a sup motion

press would have been denied.

Lowry claims that the evidence would have suppressed

been per because the search was

formed in an unconstitutional manner. See Wolfish, 520, Bell v. 559, 441 U.S. 99 S.Ct. UNITED America, STATES of Plaintiff, 1861, 1884, (1979); 60 L.Ed.2d 447 Vaughan Ricketts, (9th v. 736, 859 F.2d 739-41 Cir. v. 1988).2 But he cannot establish a “reason Wayne William NIX, Jr., Defendant. probability” able that a motion suppress would have been successful had lawyer his Ralph OSBORNE, D. Petitioner- Kimmelman, filed one. 375, 477 U.S. at 106 Appellant, S.Ct. at 2582. There no prob “reasonable v. ability” Lowry would have acquit been lawyer ted had his moved to be suppress, UNITED America, STATES of cause magistrate found, as the the search Respondent-Appellee. was apparently constitutionally permissible, No. 92-50705. prisoners the other lost their substantially similar suppression motions, and the denials United States Appeals, Court of upheld were appeal. on See State v. Bloom Ninth Circuit. er, 276, 156 592, Ariz. 751 P.2d (App. 594 1987); Palmer, v. 315, State 156 Argued Ariz. 8, Oct. Submitted 1993. 975, P.2d (App.1987). April 8, Decided 1994. prisoners The also lost their section 1983 suit. Vaughan Ricketts, v. 950 F.2d 1464 (9th Cir.1991). ground Lowry which prisoners

and the other suit, lost their civil

qualified immunity, compel not does the con- they

clusion that would have suppression lost

motions in their criminal they cases. But

did. though Even Vaughan open left

logical possibility that the search could be though

unreasonable even prison guards

were immune from liability it, civil never- Lowry

theless failed to demonstrate “rea- discovery exception inevitable exclu- search which he claims was If unconstitutional. sionary briefed, has not rule - been so we do not argument right, his his then conclusion is Lowiy argues reach it. prison guards that the wrong inevitably which would have —evidence subjected should and him to the discomfort sup- discovered lawful means cannot be indignity searches, of the digital rectal be- pressed discovery because manner of they cause going x-ray were anyway, him Williams, Nix unconstitutional. v. 467 U.S. could find x-ray out from they all could learn digital from the rectal search and But more. (1984); Ramirez-Sandoval, United States v. they that means would have found the contra- (9th Cir.1989). F.2d band in his rectum digital even without Jr., & Coughlan, Semmer Coughlan,

R.J. CA, petitioner-appel- Diego, Lipman, San lant. Burns, Atty., Die- San

Larry Asst. U.S. A. CA, respondent-appellee. go, NELSON, REINHARDT, T.G. Before: KAUFMAN,* District Judges, and Circuit Judge. NELSON; Judge by T.G.

Opinion Judge Reinhardt. by Concurrence NELSON, Judge: Circuit T.G. OVERVIEW (Osborne) appeals two dis- Ralph Osborne permitted disclo- orders which trict court plain- transcripts to the sure of he was a case in which separate civil tiffs in a the dis- He contends cross-defendant. granted an erred because trict court in violation request for disclosure 6(e). notice agree that Fed.R.Crim.P. We given before should have Therefore, we vacate disclosed. were district instructions remand with remedy. develop an HISTORY PROCEDURAL FACTS AND filed and others Ruscitti Salvatore Superior Court suit class action and oth- Empire Motors against California Empire Osborne, a former owner ers. Motors, a cross-defendant named as was later, was Ruscitti months the case. Some empan- A was federal murdered. testimony from a number and heard eled including Osborne. people, Nix, stepson, several Osborne’s Will charges aris- on federal indicted others were Three defendants the murder. ing from court, the case guilty federal pleaded * designation. Kaufman, sitting by Senior Frank A. Honorable Maryland, Judge District States District was dismissed as to remaining defen- Motors have access to the materials. A dants in prosecutions. favor of state hearing was held on Coughlan’s motion on (AUSA) Assistant United Attorney States day, same attended counsel for all who had prosecution handled the federal parties in the state case. Counsel for the cross-designated Deputy as a District Attor- United States did not An attend. order was ney prosecute to the case. Nix was entered on October 7 which modified both convicted of murder and the other defen- by providing disclosure orders “the Grand pleaded guilty. dants Jury transcripts may possessed or re- only by viewed counsel 1992, parties for the August, in the lawyers one of the the Empire case, Motors plaintiffs may and in be used Empire the for no Motors case wrote to purpose Burns, other than Larry impeach the AUSA who witness had handled testifying at case, deposition requested the Nix and trial in the the and/or release Empire Motors grand jury the case.” transcripts of sixteen witness- es. Bums filed a request with the district appeals Osborne the September 21 disclo- court, attaching the plaintiffs’ letter from the sure and order the modify- October 7 order lawyer, stating and believed, that he but did ing both disclosure orders. know, not that some or all of the defendants

in Empire litigation the Motors had been DISCUSSION given grand access to the jury by materials I. The Motion to Dismiss presented Nix. The was to the dis- The Government has moved to dis 21, court September trict and on appeal miss the on 1992, ground that settle the district court issued the order as ment of Empire requested, case Motors has ren without notice to parties the other appeal dered this moot. Empire class action Motors case. Empire settlement of the litigation Motors days later, About ten the AUSA received a has accepted by been Court, Superior call from Coughlan, R.J. Osborne’s lawyer in Empire and so the case Motors has indeed Empire litigation. Coughlan Motors said However, been settled. there were a num he grand had learned that jury materials ber of class members opted who out of the had plaintiffs’ counsel, been released to and settlement, leaving thus open potential Burns to asked make an identical application litigation arising further from the same for release of the Cough- same materials to facts Empire that led to the litiga Motors so, lan.1 Bums did and on October tion. permitting order was entered Coughlan materials to disclosure order Septem- as coun- entered Osborne, sel for and to ber 21 any another firm did not contain as coun- restrictions on its sel Empire for the use. We do not Motors defendants. know Both what use was made of September 21 potential and materials or order what October 6 for use still order were exists. captions described or- “permitting grand ders disclosure of A case is moot if “the issues are longer no materials pursuant state officials live or legally cognizable lack a 6(e)(3)(C)(i),” F.R.Crim.P. although each of interest in the outcome.” Sample v. John body them also disclosed in the of the order son, 1335, (9th 771 Cir.1985), F.2d 1338 cert. the disclosure towas counsel in the denied, 475 U.S.

Empire Motors case. question “The then is On October Coughlan filed an ex parte practices whether to which [Osborne] application for modification September object[s] of the capable are repetition as to require order to mate- [him].” at may Id. 1339. Osborne be sub rials be placed returned and ject a document injury same as a result of actions depository and that all Empire to the which may opted be filed out those Coughlan told Bums that he had copies. reviewed not make lawyer, in the of Nix's office did but not be re- secrecy could acknowledged that by Os- raised The issues

the settlement. not moot stored, appeal by dis- held that moot but rendered borne still relating because there action future class issues because missal litigation and for further Id. at 1188. For potential exists the addressed. needed to be The district appeal reasons, further disclosure. we hold that the same potential to address parties need not moot. prevention materials recovery of the use. future Procedure 6 Criminal II. Federal situation similar somewhat faced a We gov- Procedure Investigation No. Rule Criminal Jury Federal In re Grand nom., Cir.1981), sub procedures. (9th jury empaneling erns F.2d 1184 aff'd Inc., Eng’g, U.S. of v. Sells regulates disclosure States specifically Rule jury.” 77 L.Ed.2d grand occurring before the “matters jury grand case, target aof the In that shall be those matters provides that It court’s re the district appealed investigation comes within the disclosure disclosed unless to the United jury materials grand of lease general exceptions to the of the stated one ap On proceedings. civil possible for States secrecy.2 rule of appeal the argued that peal, the Government (cid:127) 6(e) deals with dis- of Rule part first already had material the was moot because or attorneys for the United States closures the Division of to the Civil been released (Rule states and subdivisions of states Id. at 1187-88. We Justice. Department of obligation of persons of their advised such 6(e), part: has provides in 2. Fed.R.Crim.P. secrecy this rule. under Proceedings. Recording and Disclosure of by (C) prohibited this otherwise Disclosure grand occurring the before juror, rule of grand matters Secrecy. (2) A of Rule General may be made— operator of a also stenographer, an interpreter, a an (i) preliminarily device, by a court typist transcribes re- so directed when recording a judicial proceed- attorney govern- for the with a testimony, to or in connection an corded ment, is made any person ing; to whom disclosure or (3)(A)(ii) request this subdivision (ii) by paragraph permitted of a at court the under when occurring defendant, before the showing matters upon not disclose that shall grand jury, a the of provided except for in as otherwise may to dismiss grounds exist for a motion may secrecy be obligation No occurring these rules. matters because of the indictment person except in accordance any imposed on jury; grand before the knowing of Rulé violation A this rule. with may (iii) by an attor- disclosure made the is when contempt of court. as a punished be ney government to another federal for the (3) Exceptions. grand jury; or by prohibited this (A)Disclosure otherwise (iv) by at the permitted a court when grand jury, occurring the before rule of matters upon government, a attorney the for of an any vote of the deliberations and other than its may a disclose showing such matters that may to— grand juror, be made law, appro- to an of state criminal violation government for use (i) attorney for the an priate of a state subdivision a official or attorney's duty; and performance of such the enforcing purpose such law. (including (ii) personnel government such of matters occur- court orders disclosure If the state) as of a subdivision personnel a state or jury, ring the disclosure shall before the attorney by necessary are deemed time, manner, and under at such made in such attorney gov- for the assist an government to may direct. as the court such conditions attorney's performance of such ernment in duty pursuant (D) petition sub- A for disclosure law. federal criminal to enforce (e)(3)(C)(i) in the district shall be filed division are dis- person whom matters (B)Any Unless the convened. where the (A)(ii) para- subparagraph of this closed under may be when hearing parte, which is ex it grand jury material that graph not utilize shall petitioner government, petitioner is the assisting the attor- any purpose other than upon petition notice shall serve written performance government in the ney for the (ii) (i) government, attorney for the attorney's duty federal crimi- to enforce such proceeding judicial if attorney shall for the An nal law. proceed- such a sought connection with court, is before promptly provide the district (iii) persons court ing, such other and impaneled whose the' which was per- afford those may court disclosed, direct. The shall with the names been so material has appear opportunity to and a sons reasonable disclosure has persons to whom attorney be heard. made, certify that the shall 6(e)(3)(A) (B)). 6(e)(3)(C) upon Rule allows private party ance rests seeking situations, including in other disclosure. by at issue “when so one here: directed at at 1674-75. preliminarily or in with a connection interpretation urged Osborne (D) judicial proceeding.” Subsection re- deterring would have the effect of the Gov- notice situa- quires to affected acting ernment from private party for a as an hearing parte, “unless the is ex tion which accommodation, since it would never do so on may petitioner govern- be when parte an ex basis. prevent Several reasons ment.” accepting us from interpretation. such an First, words of do not limit the The United contends States that Rule parte petitions ex of the Government to situ- hearings permits parte ex when the Govern- ations in which the United States the real petitioner, is the Gov- ment because the Second, party in interest. the comment to case, petitioner was the ernment 6(e) contemplates that the Government Os- ex disclosure should be affirmed. petition could file as an accommodation: when borne contends that the Government private party, acts behalf of a it must provides only rule hearing [T]he party requirements meet “may” petitioner be when the is subject to, including the government. would be notice to the This allows the court to parties. adverse upon decide that matter the based circum- particular of the stances case. For exam- jury secrecy grand proceedings of “is ple, parte proceeding an ex is much less integral part justice sys an of our criminal likely to be the if Douglas Stops tem.” Co. v. Oil Petrol to, petitioner acts as as an accommodation Northwest, 211, 218, 9, 441 U.S. n. 99 S.Ct. e.g., agency. a state 9, In n. 60 L.Ed.2d 166 6, Advisory Fed.R.Crim.P. Notes of Commit- the earlier cases of States v. Procter United Rules, (emphasis tee on 1983 Amendment Co., 677, 983, Gamble 2 & 356 U.S. supplied); Bruce, see also United States v. (1958), Dennis v. United (9th 552, Cir.1992) (using 976 F.2d advi- States, sory rules); interpret committee notes to (1966), Supreme L.Ed.2d 973 the es Court Prieto-Villa, United States v. 910 F.2d determining the for tablished standard when (9th Cir.1990) (same). 606-07 While the ex- secrecy grand proceedings the could ample agency hypothetical a state the uses as be broken. The summarized stan Court the accommodated, party being we do not believe grand jury transcripts dard disclosure of Advisory thereby the Committee stated a Douglas in Oil: private parties view that could not likewise seeking transcripts Parties un- be accommodated. der Rule must show that the material Finally, policy, as matter of it is not neces- they seek is to possible needed avoid a sary interpose proceed- to such a barrier to injustice judicial proceeding, in another ing parte ex those instances rare when greater need for disclosure is than both the Government district and the court secrecy, the need for continued and that necessary ex is believe an to disclosure only their is structured cover protect by grand of the one interests served material so — For in needed consider- jury secrecy. ing grand jury the effects of disclosure on proceedings, not proper reading the courts must consider believe the We only upon permits particu- immediate effects States to United seek grand jury, possible grand jury lar also effect but release of materials on behalf of upon ju- others, functioning including private If litigants. future it does so, appropriate only showing ries. ... [Disclosure it must make the same as the litigant required in those cases where the need for it out- would if make weighs public secrecy petition directly interest with the filed the court. addition, demonstrating give that the burden of bal- must United States seeking placed their return to be in a central specific it makes a unless required notice only lawyers to the depository to make the disclosure available showing need of the showing Empire be sufficient case. His parte. parties shall Motors ex then, now, court make an position informed it is permit the district was as necessity of notice to oth- decision about should not have been released into materials public ers. domain. these circum- Under stances, judicial estoppel is the doctrine of interpretation re This inapplicable.3 all affected but the quires notice to cases, In those when most unusual cases. Remedy IV. States, the by the district approached if can determine transcripts to the were released After interest, appropri public in the and enter plaintiffs, portions of them Empire Motors case, this is not ate order. Because in the apparently placed state court were without notice of the documents release us, argument At oral counsel record. before improper. unable to tell us how were transcripts many copies of had been Estoppel III. Judicial faced or who had them. Osborne is made States contends that Os The United possibility future with the materials borne’s review copies persons in the hands of unknown lawyer, as well the fact the office of Nix’s of, do know not them- or do consider with that Osborne obtained by, order selves bound the district court’s Empire used procedure the same possession limiting the and use of the tran- estops plaintiffs, him from now chal Motors Therefore, necessary scripts. it is to consid- lenging parte release of the materials. the ex remedy possibility. er to Re- a address by the States set out The cases cited copies may adequately turn of the known judicial estoppel, sometimes doctrine Further, may problem. be address preclusion to as the doctrine also referred preclude necessary to or limit the use of the explained-in As we positions. of inconsistent any in transcripts proceedings future which (9th Cir.1990), Rolfs, v. 893 F.2d 1033 Russell may brought by plaintiffs those class be — denied, -, cert. opted of the out settlement. (1991), “is the doctrine event, any court is in the the district party changing its prevent invoked a from to remedy to position best determine what judicial proceed position the course of over prevent appropriate to future available ings changes positional when have such materials. judicial process.” Id. impact adverse on the recognize may there no While we that be (internal omitted). quotations at 1037 any already remedy for harm enforceable transcripts Coughlan When reviewed caused, are preventing we concerned with lawyer, Nix’s he the office of any may harm further that occur from future 6(e). Any violating Rule conditions himself grand jury transcripts. use In re of the See on the of the materials to Nix’s law- release Jury Investigation No. Grand lawyer. run yer to that would 1188. F.2d at suggested any that has not Government by Coughlan’s appealed from are violated re- The disclosure orders conditions were REMANDED, instruc- Coughlan view. did not discover release VACATED with hearing his to hold a after notice to all of the materials to adversaries until tions deposition. of all day persons, He then asked affected and order return Osborne’s copies transcripts other Burns to materials available of the or take such make same time, may necessary prevent filed a be to future to him. At the same he action as motion use challenging transcripts. the materials and unauthorized release Thus, 6(e). Similarly, reject unclean we “unclean did not viólate Rule Government’s Coughlan argument. apply. hands" It is re- true hands doctrine does not However, so, doing viewed he the documents. REINHARDT, Judge, concurring: Circuit agency. What majority fails to equally note is significant, however. I concur in the majority’s holding that the releasing grand district court erred in First, it is notable that there only are plaintiffs’ counsel in the Em- 6(e) points three where Rule explicitly pro- pire litigation pursuant Motors parte to an ex government vides that a attorney may aid in petition from the Assistant United States release of jury materials as an however, Attorney. disagree, I with the ma- accommodation for party: another subsection jority’s statement may that there be “unusual (e)(3)(A)(ii), (e)(3)(C)(iii), subsection and sub- cases” which it would be (e)(3)(C)(iv). section The first subsection government employ parte pro- ex pertains to government disclosure to person- 6(e)(3)(D) permitted by cedure Rule be- nel, including personnel “of state or subdi- private party. half of a Under a proper state,” vision a pertains the second reading of Rule and its accompanying disclosure to another federal jury, and comments, it is clear parte proceed- that ex again pertains third per- disclosure to ings only permissible are govern- when the sonnel “of state or subdivision of a state.” ment is the real party or interest when the Thus, only parties provided non-federal government acts on behalf of a state or sub- are state provision is no —there division thereof. for disclosure to private parties. makes a basic division between Second,. the majority’s quotation of the disclosures at government the behest of the comment begins mid-sentence. and those private at the parties. behest of phrase omitted majority explains government Where the seeks the disclosure why proceedings might appropri- of information it do so at can an ex ate when the petitioner, is the hearing. When a party seeks opposed petitioners. to other It notes that information, same provides precise- the Rule “internal regulations limit further disclosure ly opposite. There must be no- written of information disclosed government.” to the tice to interested and a reasonable Advisory Fed.R.Crim.P. Notes of Commit- opportunity appear for them to and be heard. Rules, tee on 1983Amendment. As this case By allowing government to act exemplifies, there safeguards are no such for agent private parties and obtain disclo- private disclosed to party. materials a See parte, sure their benefit majority (“Osborne majority opinion supra is faced undoes the clear division the Rule establishes with the possibility of future disclosure of governmental between private and parties’ copies in the hands of persons”). unknown rights and interests in proceed- disclosure Although the comment indicates that ex ings, permits private and parties to circum- might disclosure appropriate less safeguards the basic vent clearly, so estab- agency when a involved, state is the fact that lished the Rule. might ever be majority’s interpretation of Rule of the fact parties, indicative that state unlike entirely based on one subsection of the private parties, can generally be assumed and one sentence from the relevant limiting internal controls future disclo- majority comment. The notes that the ex sure. parte proceedings described subsection short,

(e)(3)(D), though although Rule limited to its com- instances when government ment explicitly anticipate petitioner, government is the are accom- explicitly limited to modation “of a gov- instances when state or subdivision of a petitions ernment “e.g., agency” on its own behalf. does state” — —nowhere majority also notes provide the Rule comment dis- peti- (e)(3)(D) cussing subsection anticipates tion for ex behalf of a government acting as an accommodation party. By stretching be- —Inc., U.S. —, Fantasy, Fogerty v. limits, majority’s reasonable

yond its L.Ed.2d 455 important to undermine opinion serves secrecy.1 by grand protected interests America, STATES UNITED INC.,

FANTASY, Plaintiff- Plaintiff-Appellee, Counterdefendant- Appellee, v.

v. NAPIER, Defendant- Vince Albert Appellant. FOGERTY, Defendant- John C. Counterclaimant-Appellant. No. 93-10586. Plaintiff-Appellee, INC., FANTASY, Appeals, Court United States Ninth Circuit.

v. April 1994 *. Submitted Defendant, FOGERTY, John C. April Decided Records, Inc.; Interna WEA Bros. Warner Communications, tional, Inc.; Warner Inc.; Manufacturing,

Inc.; WEA Defendants-Appel Corporation,

WEA

lants. 89-15118, 88-

Nos. and 89-15120. Appeals, Court States Circuit.

Ninth 11, 1994.

April NOONAN, BOOCHEVER,

Before:

O’SCANNLAIN, Judges. Circuit to the district remanded case is

This with proceedings consistent

for further Court, Supreme

opinion of the United States * Inc., unanimously this case suitable panel finds See, Engineering, e.g., Sells States v. Fed.R.App.P. argument. oral decision without deny Accordingly, 34(a); we 9th Cir.R. 34-4. argument. Napier's for oral

Case Details

Case Name: United States v. William Wayne Nix, Jr., Ralph D. Osborne v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 8, 1994

Citation: 21 F.3d 347

Docket Number: 92-50705

Court Abbreviation: 9th Cir.