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The opinion
Whitaker, J., concurring: As is frequently true with a difficult case, opinions tend to proliferate. While generally that may be unfortunate, I feel it better serves our judicial responsibility to set forth our views on important and continuing issues as those created by Baggot 1 and Sells. 2 As Judge Wilbur points out, unless and until a majority of this Court is willing to react to Baggot and Sells either generally or in the several situations in which the issue will arise, each of us individually will suffer the added burden of multiple motions without the guidance of the unified voice of this Court.
In my judgment, there is nothing in the particular facts before us which would warrant our treating the grand jury material obtained by respondent under the court orders described in the majority opinion as tainted, whether used by respondent in connection with this statutory notice or in preparation for trial of this case or in the trial itself. And I would be of the same opinion even if these petitioners presented us with a subsequent order of that U.S. District Court which recognized, on the basis of Baggot and Sells, that its earlier orders were improperly issued.
Moreover, I think it important that we emphasize, as Judge Wilbur does, that we are not required to decide, now or at any other time, whether Baggot and Sells should be applied retroactively or prospectively, as to rule 6(e) orders. That is not our province. On the other hand, we do have both the jurisdiction and the responsibility in a case before us to examine the circumstances of a statutory notice and to admit or exclude evidence. Thus, in a proper case, we should be willing to look at all the facts surrounding respondent’s use of grand jury materials, including the presence of a rule 6(e) order, its language, and the adherence by the parties to its strictures. 3
In addition, the majority goes too far in seeming to hold that a statutory notice has such sanctity that we would never go behind it as a result of any misuse or abuse of the grand jury process. See Judge Nims’ concurring opinion. I am not prepared to accept such a blanket rule. While I agree with the result reached by the majority, both the public and this Court would be better served, I suggest, if the Court had simply held that under the stipulated facts, respondent’s use of the grand jury materials in preparing the statutory notice was fully warranted. Not only would there be an obvious implication in such a holding with respect to further proceedings in the case at bar, but the opinion would stand as a useful analogy in similar cases.
Swift, J., agrees with this concurring opinion. United States v. Baggot, 463 U.S. _ (1983).
United States v. Sells Engineering, Inc., 463 U.S_(1983).
See note 1 in Judge Wilbur’s concurring opinion.