# In Re April 1977 Grand Jury Subpoenas. General Motors Corporation v. United States

> Court of Appeals for the Sixth Circuit · September 7, 1978 · 584 F.2d 1366

URL: https://www.frixlaw.com/law-library/cases/9465185

## Case

- **Full name:** In Re APRIL 1977 GRAND JURY SUBPOENAS. GENERAL MOTORS CORPORATION, Appellant, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** September 7, 1978
- **Citations:** 584 F.2d 1366; 42 A.F.T.R.2d (RIA) 5947; 1978 U.S. App. LEXIS 9182
- **Precedential status:** Published
- **Opinion:** Concurrence by Edwards
- **Judges:** Celebrezze, Edwards, En-Gel, Lively, Merritt, Phillips, Weick
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9465185

## How later opinions describe it (automated extraction)

- noting "[t]here is no inherent conflict of interest in the appointment of a federal attorney assigned to the Internal Revenue Service to assist in or conduct a criminal tax investigation through grand jury proceedings”
- rejecting Sec. 1292(b) review of denial of motion to disqualify attorney for conflict of interest
- rejecting § 1292(b) review of denial of motion to disqualify attorney for conflict of interest

## Opinion text

EDWARDS, Circuit Judge,
with whom LIVELY, Circuit Judge, joins, concurring. I join Judge Merritt’s opinion dismissing this appeal.
This court has reviewed the record of the grand jury proceedings which was fully developed in the District Court. I conclude after that review that we should now dismiss the appeal for which a panel (of which I was a member) granted leave under 28 U.S.C. § 1292 (b) (1970). This decision represents a judgment that, on the .facts developed, we lack appellate jurisdiction of the case and, hence, as my colleagues in the majority conclude, response to the argument on the merits advanced in the dissent would not be called for.
I feel, however, that if in fact a prosecu-torial conflict of interest constituting abuse of the grand jury process were shown in the record below, this court could properly consider the case under the all writs statute, 28 U.S.C. § 1651 (1970), as a petition for writ of mandamus. See Schlagenhauf v. Holder, 379 U.S. 104, 109-12 , 85 S.Ct. 234 , 13 L.Ed.2d 152 (1964); LaBuy v. Howes Leather Co., 352 U.S. 249, 259-60 , 77 S.Ct. 309 , 1 L.Ed.2d 290 (1957); United States v. United States District Court, 407 U.S. 297 , 301 n. 3, 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972); Comment, The Appealability of Orders Denying Motions for Disqualification of Counsel in the Federal Courts, 45 U.Chi.L.Rev. 450, 476-80 (1978). See also Will v. Calvert Fire Ins. Co.,- U.S. -, 98 S.Ct. 2552 , 57 L.Ed.2d 504 (1978). Thus, I not only join the opinion of the court in dismissing the appeal, but also consider and reject mandamus as inappropriate on the facts shown in this record.
There is no inherent conflict of interest in the appointment of a federal attorney assigned to the Internal Revenue Service to assist in or conduct a criminal tax investigation through grand jury proceedings. Further, the record made in the District Court shows no abuse of the grand jury process.
The interest of the United States in collection of income taxes is represented both by statutorily authorized civil tax collection proceedings, see 26 U.S.C. §§ 7401-7408 (1976) and (in appropriate cases) criminal fraud prosecutions, see id. §§ 7201-7216. These functions are not in conflict and, on the contrary, the latter supplements the former. In a very recent case this principle has been recognized by the Supreme Court. United States v. LaSalle National Bank, -U.S.-,---n. 12, 98 S.Ct. 2357 , 57 L.Ed.2d 221 (1978). On this point the LaSalle Court appears to be unanimous. See id. at-& n.2, 98 S.Ct. 2369 (Stewart, J., dissenting).
Congress has specifically authorized the appointment by the Attorney General of special assistants to “conduct any kind of legal proceeding, .... including grand jury proceedings . . . .” 28 U.S.C. § 515 (1970). This statute requires that each such special assistant “shall take the oath required by law” of assistants to the Attorney General. This was done.
As found by the panel majority in this case (prior to this en banc hearing):
Nothing precluding such an appointment is found in the Federal Rules of Criminal Procedure. Rule 6(d) of Fed.R. Crim.P. provides that “attorneys for the government” may be present during grand jury sessions. Rule 54(c) defines attorneys for the government as including “the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, an authorized assistant of a United States Attorney . . . .” In re April 1977 Grand Jury Subpoenas, 573 F.2d 936, 941 (6th Cir. 1978) (panel opinion).
Thus this record shows that Special Assistant United States Attorney General Pi-liaris has been properly designated to perform his grand jury assignment. There are no findings before this court to indicate *1372 that he has done anything except demonstrate a zealous interest in collecting federal taxes for a single client — the United States. This clearly has not increased his popularity with the taxpayer, but it does not reflect any lack of legal ethics.
The possible abuse of petitioner General Motors’ interests which might arguably develop from the instant investigation can result only if there proves to be no probable cause for grand jury criminal indictment and there is proof that the government in bad faith undertook to employ a grand jury purely for purposes of civil tax investigation. See United States v. Procter & Gamble Co., 356 U.S. 677, 683-84 , 78 S.Ct. 983 , 2 L.Ed.2d 1077 (1958). Here the District Judge found that there had been no such proof. 1 There is nothing to indicate that his finding is clearly erroneous.
Further, the District Judge granted General Motors’ motion for a protective order specifically guarding against such abuse. 2
General Motors has a complete remedy in objecting to any evidence being submitted in any subsequent civil tax case which was derived from bad faith employment of the grand jury and in appeal from any judgment rendered against it. The District Court and this court would be particularly alert to such a showing.
In short, we should deny mandamus because this record demonstrates no “exceptional condition,” no “clear abuse of judicial discretion” or failure to exercise jurisdiction on the part of the District Judge and no denial of appellate review. Schlagenhauf v. Holder, supra; LaBuy v. Howes Leather Co., supra; United States v. United States District Court, supra.
We note that the Fourth Circuit has just decided a case which is in very close agreement with this opinion. In re Grand Jury Subpoenas, April, 1978, 581 F.2d 1103 (4th Cir. 1978).
The overriding consideration in the present proceeding is, as the majority opinion holds, that grand jury proceedings (the primary criminal investigative tool available to the United States) not be subject to piecemeal appeals and inordinate delays. Cobbledick v. United States, 309 U.S. 323 , 60 S.Ct. 540 , 84 L.Ed. 783 (1940).
*1373 It would be particularly inappropriate if in this and other cases, the target of a grand jury investigation could delay pursuit of crime while it disputed the Attorney General’s choice of the lawyer he deemed best fitted to carry on the government’s investigation.
Judge Lively has authorized me to say that he joins this concurring opinion.
. The District Judge found:
Whatever the motivation there is no evidence that the Justice Department in this case plans or intends to use the grand jury subpoenas to gather evidence not relating to its criminal investigation.
. The District Judge’s oral opinion said:
Specifically the Court determines that attorneys for the government may not disclose matters occurring before the grand jury to agency personnel except for technical assistance and then only as specifically authorized by the Court.
The District Judge’s protective order provided:
This protective order applies with respect to the grand jury investigation of General Motors Corporation and others referred to in the pleadings and briefs in the above-entitled matter.
Except as authorized by this order or as authorized by other written orders of the Court, Attorneys for the Government shall not disclose matters occurring before the grand jury to persons other than jurors, interpreters, stenographers, operators of recording devices, typists, and other attorneys for the government.
The Court is concerned with substance, not form. Applications for specific authorization, the procedure with respect thereto and the Court’s action thereon, shall be in a manner substantially consistent with the Court’s oral opinion of June 28, 1977.
Attorneys for the Government shall not disclose matters occurring before the grand jury, or summaries thereof, to Internal Revenue Service personnel for the purpose of seeking advice or recommendations with respect to seeking indictments; and if Attorneys for the Government shall apply to the Court for an order authorizing disclosure to persons who are or have been employed by Internal Revenue Service, it shall be an implied representation that Attorneys for the Government will not seek or receive advice or recommendations from such persons with respect to what indictments, if any, to seek, and Attorneys for the Government shall not seek or receive advice or recommendations with respect thereto from such persons.
Attorneys for the Government are hereby authorized to make limited disclosure, as necessary, to persons for scientific analysis, advice, or opinion provided that such persons are not and have not been employed by Internal Revenue Service.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9465185. Public record. Not legal advice.