United States v. Orville S. Clavey

SWYGERT, Circuit Judge,

dissenting.

I respectfully dissent upon several grounds. They include the refusal to give the defendant a copy of his own grand jury testimony, the giving of erroneous jury instructions, and the trial judge’s failure to inform counsel of the jury communications and to respond to their questions.

I

The majority holds that the defendant was not entitled to a transcript of his own grand jury testimony because he failed to demonstrate with particularity a compelling necessity for disclosure. This conclusion, I submit, is erroneous for two reasons. First, the district court should not have applied the “particularized need” standard when confronted with a request by a grand jury witness for a copy of his own testimony. I believe that a witness has a prima facie right to a copy of his own testimony in all cases unless the Government can show special overriding reasons for nondisclosure. Second, even using this “particularized need” test, the district court still erred in finding no showing of a particularized need in the circumstances presented in this case.

A

The majority, citing our recent decision in Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir. 1977), holds that a witness is not entitled to his grand jury testimony as a matter of right and that therefore the particularized need standard must be employed. I believe the majority was too quick in its decision, for both reason and equity dictate that there is no justification for imposing secrecy in this instance. Disclosure to a witness of his own testimony will neither limit the effectiveness of the grand jury nor place the protection of witnesses in jeopardy.

The particularized need standard was formulated to deal with a request for the grand jury testimony of another witness. Under this standard, the need for the testimony is weighed against the need for maintaining grand jury secrecy and the need to free witnesses from testifying under apprehension that their testimony may be disclosed. 1 All of the cases in which the Supreme Court has applied the particularized need standard have involved witnesses seeking access to the testimony of other witnesses before the grand jury, see Dennis v. United States, 384 U.S. 855 , 86 S.Ct. 1840 , 16 L.Ed.2d 973 (1966); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 , 79 S.Ct. 1237 , 3 L.Ed.2d 1323 (1959); United States v. Procter & Gamble Co., 356 U.S. 677 , 78 S.Ct. 983 , 2 L.Ed.2d 1077 (1958); see also Sarbaugh, supra, and not a witness seeking a copy of his own testimony. To avoid blindly extending the particularized need standard and preserving secrecy for secrecy’s sake, we must carefully consider whether that standard should be applied in this context.

Rule 6(e) of the Federal Rules of Criminal Procedure imposes no bond of secrecy on a grand jury witness, he is free to disclose all that transpired while he was present. Rule 6(e) purposely excludes witnesses from the general nondisclosure re *121 quirement 2 because “[t]he seal of secrecy on witnesses seems an unnecessary hardship and may lead to injustice if a witness is not permitted to make a disclosure to counsel or to an associate.” Original Advisory Committee Notes to Rule 6(e). Thus, a witness is already allowed to disclose the very information which the defendant here attempted to obtain.

A review of the reasons traditionally advanced for justifying the veil of secrecy upon grand juries shows that none dictates that a witness should be denied a copy of his own testimony. 3 Furnishing a witness with a written transcript of his testimony could no more interfere with the functions of the grand jury than the existing practice of leaving the witness free to disclose orally his testimony to others. 4 The “evil,” if any, is in the witness’ freedom to disclose, not in furnishing him a transcript. As Judge Wy-zanski aptly stated in this regard:

The horse is out of the stable, and all that we are considering is whether to lock the barn door so that the horse may not carry its master’s correct colors. Bast v. United States, 542 F.2d 893, 898-99 (4th Cir. 1976) (dissenting opinion).

*122 Because there are no valid considerations which militate in favor of grand jury secrecy in this case, and because numerous benefits to the witness will inure from disclosure, 5 justice requires that a witness be given access to his own testimony unless the Government affirmatively establishes a substantial reason why it should be withheld.

This conclusion is buttressed by Rule 16(a)(1)(A) which states that a defendant is entitled as a matter of right to a copy of his own testimony before the grand jury. As the Third Circuit stated in United States v. Rose, 215 F.2d 617, 630 (3d Cir. 1954), before the amendment to Rule 16 which makes disclosure mandatory:

Since all the defendant desires is a transcript of his own testimony, the sanctity of that which transpired before the Grand Jury is hardly in question. In addition, such disclosure would not subvert any of the reasons traditionally given for the inviolability of Grand Jury proceedings, (emphasis in original)

If a defendant’s access to his own testimony does not violate the sanctity of grand jury secrecy, it follows a fortiori that a witness seeking his own testimony does not do so. To hold otherwise would be to “exalt the principle of secrecy for secrecy’s sake.” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 407 , 79 S.Ct. 1237, 1245 , 3 L.Ed.2d 1323 (1959) (Brennan, J., dissenting).

The reasons underlying grand jury secrecy are compelling. This secrecy, however, cannot be used as a talisman to ward off further inquiry whether it serves a legitimate function under certain circumstances. As Mr. Justice Brennan again observed:

Grand Jury secrecy is, of course, not an end in itself. Grand Jury secrecy is maintained to serve particular ends. But when secrecy will not serve those ends . secrecy may and should be lifted. Pittsburgh Plate Glass Co., supra at 403, 79 S.Ct. at 1242 .

As secrecy would serve no purpose-in this case, disclosure should have been permitted.

B

Though I believe a discussion whether the defendant demonstrated a particularized need is irrelevant, I am constrained to address this issue because I believe the majority misinterpreted and misapplied that standard.

When the particularized need standard is used, the party seeking disclosure must show a need commensurate with the reasons justifying secrecy. Illinois v. Sar-baugh, 552 F.2d 768, 774 (7th Cir. 1977). Because the level of need diminishes as the reasons for secrecy become less compelling, id., we must first identify those justifications of secrecy which would be undermined by disclosure before we can determine whether the alleged need for disclosure outweighs the policy of secrecy.

Although the majority pays homage to the historic sanctity of grand jury secrecy, it makes no showing how the denial of the defendant’s grand jury testimony serves any of the purposes justifying secrecy. As noted earlier, I believe that no reason justifying grand jury secrecy applies when a witness seeks a copy of his own testimony.

The question, then, is whether, given the absence of reasons justifying secrecy here, *123 the defendant has shown a sufficient level of particularized need to warrant disclosure. In this case, the defendant alleged that he could not recall the substance of his two grand jury appearances because of an illness and a skull fracture that adversely affected his memory. Because he could not remember the substance of his testimony, the defendant claimed that he needed a transcript so that he could seek legal advice as to whether to exercise his right to recant under 18 U.S.C. § 1623 (d). Both of the defendant’s requests were denied, the district court holding that defendant failed “to demonstrate with particularity a ‘compelling necessity’ for disclosure.” The defendant was subsequently indicted and convicted on a count of false swearing. 6

The majority finds it “significant, as did the district court,” that the defendant did not verify his affidavits. I read the record of this case quite differently. The defendant’s second petition was denied not because it was unverified, but because the district judge thought that the defendant had failed to show a particularized need. 7 Nor does the record establish that defendant’s first petition was denied because it was not verified. The record shows that the court requested the defendant to file a “full and complete petition,” and not one which was verified. The issue, then, is limited to determining whether the district court was correct when it held that the defendant failed to show a particularized need. I believe that it was not and that the facts of this case make out a need as compelling as any possible.

I believe that this case is controlled by United States v. Rose, 215 F.2d 617 (3d Cir. 1954). See also United States v. Remington, 191 F.2d 246 (1951), cert. denied, 343 U.S. 907 , 72 S.Ct. 580 , 96 L.Ed. 1325 (1952). In Rose the defendant was convicted of perjuring himself before the grand jury under 18 U.S.C. § 1621 . Before trial, he moved to inspect the grand jury testimony, stating that he was suffering from diabetes and a heart ailment at the time he testified before the grand jury. As a result, he suffered lapses of memory which impaired his attorney’s ability to prepare and conduct his defense effectively. The court, quoting Remington, supra, with approval, stated:

We think inspection before trial should have been allowed. As already stated, the essential issue in perjury is whether the accused’s oath truly spoke his belief; all else is contributory to that issue. . . His memory of what he said is no adequate substitute for the minutes themselves. It is one thing to deny defense access to grand jury minutes which it intends to use for the relatively negative purpose of impeaching a witness; it is quite a different thing to deny an accused access to the minutes of his testimony which may afford him an affirmative defense. 215 F.2d at 629 .

Noting that disclosure would subvert none of the policies justifying secrecy the court held nondisclosure to be reversible error. 8

As in Rose , the defendant here was charged and convicted of perjuring himself before the grand jury. As in Rose , the defendant’s lapse of memory impaired his *124 ability to obtain and to use the assistance of counsel. And finally, as in Rose , the refusal to provide a transcript denied affording the defendant an affirmative defense to the charges of false swearing.

The need for disclosure here is strengthened by the recent enactment of the recantation statute, 18 U.S.C. § 1623 (d). The specific congressional purpose in enacting this legislation was to induce witnesses to give truthful testimony by permitting them to correct false statements without incurring the risk of prosecution for doing so. United States v. Anfield, 539 F.2d 674, 679 (9th Cir. 1976); United States v. Del Toro, 513 F.2d 656, 665 (2d Cir. 1975); United States v. Lardieri, 506 F.2d 319, 322 (3d Cir. 1974). See 1970 U.S.Code Cong. & Admin.News at p. 4007. This congressional purpose is frustrated if witnesses are not able to obtain the assistance of counsel in determining whether to exercise this privilege.

The majority, seeking to minimize the import of its decision, states that the defendant could have reappeared before the grand jury and reviewed his prior testimony. Besides the practical difficulties involved when a witness frequently leaves the grand jury room to communicate with his attorney, this alternative provides no remedy. Without knowing what his client has said, defense counsel is in no position to give legal advice or even determine whether there was anything to recant.

The criminal justice system is not a game of hide and seek. Specifically, the Government should not hide grand jury testimony from the person who gives it. Mr. Justice Sutherland’s admonition over forty years ago is appropriate: “[The] interest [of the United States] in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935). And justice mandates, particularly when none of the justifications for grand jury secrecy are viable, that disclosure here be allowed.

II

In its brief in this court, the Government admits that there was “no testimony and no evidence that any campaign funds were diverted to Clavey’s use.” Yet it argues that the giving of the campaign contribution instruction was harmless error. The majority agrees with the Government and cites United States v. Demopoulos, 506 F.2d 1171 (7th Cir. 1974), cert. denied, 420 U.S. 991 , 95 S.Ct. 1427 , 43 L.Ed.2d 673 (1975), and Long v. United States, 124 U.S.App.D.C. 14 , 360 F.2d 829 (1966), in support of its holding. These cases are distinguishable. In Demopoulos , no objection was made to a clause in a sentence inadvertently included in the instruction. In Long, the Court of Appeals for the District of Columbia commented: “The charge was inappropriate, and apparently inadvertent . . . . In the circumstances this was harmless error; we note that no objection was made on this score at the time.” Id. at 835. In contrast, the giving of the instruction here was not inadvertent — the defendant timely objected on the specific ground that there was no evidence that he had diverted campaign funds to his own use. The trial judge, in overruling the objection, said: “From all the facts and circumstances in the case, in the evidence produced, it is a fair inference to draw. That is up to this jury, not to me.” Significantly, Government counsel kept silent.

This case comes directly within the Supreme Court’s holding in United States v. Breitling, 61 U.S. (20 How.) 252 , 15 L.Ed. 900 (1857). There Mr. Chief Justice Taney wrote:

It is clearly error in a court to charge a jury upon a supposed or conjectural state of facts, of which no evidence has been offered. The instruction presupposes that there is some evidence before the jury which they may think sufficient to establish the facts hypothetically assumed in the opinion of the court; and if there is no evidence which they have a right to consider, then the charge does not aid them in coming to correct conclusions, but its tendency is to embarrass and mis *125 lead them. It may induce them to indulge in conjectures, instead of weighing the testimony. 61 U.S. at 255 , 15 L.Ed. 900 (emphasis added).

The Ninth Circuit in Morris v. United States, 326 F.2d 192 (9th Cir. 1963), after analyzing the evidence, concluded that there was no evidence or reasonable inference to support a challenged instruction and, citing Breitling , reversed the conviction. In the case before us there is no need to analyze the evidence. It is admitted that there was no testimony that any campaign funds were ever diverted to the defendant’s personal use.. Nonetheless, the majority argues that because there was no evidence on that score, “the jury could not have convicted Clavey on the basis of the campaign fund instruction.” With deference, I suggest this is a sophism. If there were evidence to support the instruction, it would not have been error to have given it. But there was no evidence; hence, there was no reason to give it. The argument of the majority would allow the instruction willy-nilly, whether or not there was any supporting evidence. Such a view flies in the face of the reasons stated in Breitling for reversing a judgment because of a jury instruction which has no evidentiary basis.

Ill

After the jury returned its verdict and had been discharged, the trial judge made the following announcement from the bench:

The Court: There were two questions asked of the court last night. At a little after 5:00 o’clock the first question was asked — sent to me by a note from the foreman of the jury to my Deputy United States Marshal James Guidagno — and I have it here in the original handwriting, signed by Mr. Sawyer, the foreman, who was the gentleman that sat here — the question:

“Is it possible to have copies of the instructions to the jury?”

The answer of the court was “no.” I have never let instructions go to the jury because I believe, and always did, and many of the judges agree with me — some of them don’t — I believe it confuses them more than it aids and assists them.

The next question:

“Is it possible to have the judge explain a couple of points about the indictment and counts?”

And the answer to that was “no,” because I will not become a thirteenth juror in this case, and I should not invade the province of the jury, which I did not do. The answer to the question of the jury, carried to them by the deputy United States marshal, was to continue to deliberate.

This morning at about 9:25 another note was addressed to the court. It says:

“The counts in the indictment are related to one another, some more than others. For example, count 2 is related to count 5. In this respect, if we find the defendant guilty on count 2 and/or count 3, must we also find him guilty on count 1?”

And the court’s answer to that question was to continue to deliberate, and then minutes later they came out with a verdict.

The majority acknowledges that the judge erred in not informing counsel of the jury’s communications and in not responding to the questions. Unfortunately the majority holds these errors to be harmless. But they were not harmless.

The Supreme Court in Rogers v. United States, 422 U.S. 35 , 95 S.Ct. 2091 , 45 L.Ed.2d 1 (1975), reiterated the requirement laid down in Shields v. United States, 273 U.S. 583 , 47 S.Ct. 478 , 71 L.Ed. 787 (1927), that counsel be informed of inquiries from the jury such as were made here and be given an opportunity to be heard before the judge responds. In Rogers , Mr. Chief Justice Burger wrote:

As in Shields , the communication from the jury in this case was tantamount to a request for further instructions. However, we need not look solely to our prior decisions for guidance as to the appropriate procedure in such a situation. Federal Rule Crim.Proc. 43 guarantees to a *126 defendant in a criminal trial the right to be present “at every stage of the trial including the impaneling of the jury and the return of the verdict.” Cases interpreting the Rule make it clear, if our decisions prior to the promulgation of the Rule left any doubt, that the jury’s message should have been answered in open court and that petitioner’s counsel should have been given an opportunity to be heard before the trial judge responded. 422 U.S. at 39 , 95 S.Ct. at 2095 .

It is true that the Chief Justice also commented that a violation of Fed.R.Crim.P. 43 may be harmless error in some situations, citing Fed.R.Crim.P. 52(a). However, Rule 52(a) provides that, “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” How can it be said that the substantial rights of the defendant here were not affected by the judge’s not informing counsel of the jury’s communications to him and by his not responding to their inquiries?

The majority strains to construct an apology for the judge’s error, but at best its hindsight effort is speculation and at worst a sophism. For example, the majority speculates that the last two questions asked by the jury “appear” to be related, and that when read together the final question “appears” to be only a specific version of the one asked the night before. The majority then hypothesizes that because the defendant was acquitted on certain (but not all) counts to which the last question related, the judge’s answer, if given, could not have “produced a more favorable result for him.” The majority apparently rules out the possibility of a complete acquittal had the judge taken the steps the majority says he should have taken.

Finally, the majority acknowledges that Government witness March’s financial condition was relevant rebuttal evidence, yet says that the trial judge did not abuse his discretion in refusing its admission. The majority also concedes that the judge should have given the defendant’s motive instruction as proffered, but explains the error away by saying the jury could have interpreted other instructions as supplying the essential missing language.

The doctrine of harmless error does indeed have a place in the review of criminal trials; however, it should not be used to excuse the glaring trial errors that permeate this case. The Supreme Court in Chapman v. California, 386 U.S. 18, 22, 24 , 87 S.Ct. 824, 827 , 17 L.Ed.2d 705 (1967), defined harmless error in constitutional terms:

We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not resulting in the automatic reversal of the conviction.

[W]e hold . . . that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt, (emphasis added)

I believe that errors not of constitutional dimension should also be judged by the same standard. When the errors here are so judged, it is clear that they were far from harmless.

Mr. Justice Clark, while sitting by designation in the Seventh Circuit, once had occasion to comment: “ ‘Harmless Error’ is swarming around the 7th Circuit like bees.” United States v. Jackson, 429 F.2d 1368, 1373 (7th Cir. 1970). Regretful as the situation was that prompted Mr. Justice Clark’s remark, it is even more regretful that “harmless error” has been used in this case to deny the defendant the new trial to which he is entitled.

. Professor Wigmore states that the nondisclosure of a witness’ testimony is a privilege of the witness himself, not of the grand jury panel or of the Government. 8 J. Wigmore, Evidence § 2362, at 736 (McNaughton rev. 1961).

. Fed.R.Crim.P. 6(e) does, however, impose secrecy upon jurors, attorneys, interpreters, stenographers, operators of recording devices, and typists.

. The following five justifications for grand jury secrecy are generally recognized by courts:

(1) To prevent the escape of those whose indictments may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trials of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated. United States v. Procter & Gamble Co., 356 U.S. 677 , 681 n. 6, 78 S.Ct. 983, 986 , 2 L.Ed.2d 1077 (1958), quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954).

The second and fourth justifications for secrecy are clearly inapplicable to a witness who seeks his own testimony. Permitting a witness to disclose his testimony does not interfere with the jurors’ ability to deliberate and vote in secrecy. Nor will disclosure serve to interfere with a witness’ full disclosure before the grand jury. Release to a witness of his own testimony does not cause that witness any apprehension that his testimony will be disclosed if he does not want it disclosed; if anything, the assurance that a witness will receive a copy of his statement might function as a catalyst to his testimony. In re Minkoff, 349 F.Supp. 154, 157 (D.R.I.1972).

Nor do the other reasons apply with any force. The first and third reasons — to prevent escape and the subornation of perjury — are not valid since the witness is already free to disclose all he knows. If a witness chooses to aid the guilty accused, a transcript will not help him more than the freedom he already possesses.

The last justification — to protect the innocent accused who is not indicted — deserves special scrutiny. Again, the witness’ freedom to disclose his own testimony makes production of a written copy no more damaging to the grand jury’s secrecy. Further, the thirty year history of Rule 6(e) and the absence of criticism of that rule indicate that the innocent accused will not suffer if a transcript is made available to witnesses. See In re Russo, 53 F.R.D. 564, 571 (C.D.Calif.1971).

In short, I find no meaningful difference between granting a witness the freedom to disclose under Rule 6(e) and giving him a copy of his testimony.

. In re Grand Jury Witness Subpoenas, 370 F.Supp. 1282 (S.D.Fla.1972), in denying disclosure to a witness, held that one reason for nondisclosure was to protect the witness from his own poor judgment. That court stated that a witness is not always in the best position to determine whether to obtain a transcript since “a witness may not realize the significance of his testimony at the time he seeks disclosure.” Id. at 1285 . The court stated that a witness who obtained disclosure could fall prey to intimidation by those persons being investigated. Such a witness, the court urged, will find it more difficult to deny having given useful testimony.

I find such an argument to be speculative at best and paternalistic at worst. The validity of a rule protecting a person not wanting protection is nonsensical. It may be in the witness’ interest to have a copy of his testimony so that he may assure his associates that he did not violate their trust when he testified about their activities. In any event, the need for witness’ protection can best be evaluated by those who know their interests the best — the witnesses themselves.

. Requiring that a transcript be accessible to a witness has numerous benefits for the witness. A written transcript will insure that the witness’ attorney is provided with an accurate record of the proceedings. It gives the witness and his attorney an opportunity to correct errors in the transcript or inadvertent mistakes in the testimony itself, or, as in the present case, to exercise his right to recant his testimony under 18 U.S.C. § 1623 (d).

Other benefits inure from disclosure. A written transcript would minimize the possibility of a witness publicizing false information regarding grand jury proceedings. It can also be used to illuminate prosecutorial excesses such as witness badgering or improper scope of investigation. See Bursey v. United States, 466 F.2d 1059, 1079-80 (9th Cir. 1972). Further, a transcript gives an immunized witness who testifies to crimes for which he is later indicted a check against tainted evidence; it assures him that his testimony or the fruits thereof will not be used against him under the guise of information obtained from other independent sources. See In re Minkoff, 349 F.Supp. 154, 157 (D.R.I.1972).

. After indictment the defendant did see his testimony. But, by then, the statutory defense of recantation was gone.

. Judge Robson’s Memorandum and Order entered on December 23, 1974 stated:

Accordingly, Clavey’s petition for production of his grand jury transcripts must be denied for failing to demonstrate with particularity a “compelling necessity” for disclosure. Since this conclusion is dispositive of the matter, the court need not reach the remaining issues raised by the Government.

The only time in which Judge Robson even mentioned that the second petition was not verified was in the beginning of the second paragraph of his order when he stated, “In two unverified petitions . . .

. In its brief, the Government cites two cases, United States v. DiSalvo, 251 F.Supp. 740 (S.D.N.Y.1966), and United States v. Kahaner, 203 F.Supp. 78 (S.D.N.Y.1962), in support of its arguments. These cases are factually distinguishable in that they involved prosecutions for crimes other than perjury. More important, the defendants in those cases sought their transcripts in order to “refresh” their memories; they were not needed to raise an affirmative defense as in Rose and Remington , and they were not necessary to assist counsel to decide whether to recant as in this case.