United States v. Phillip Ray Jeter

MERRITT, Circuit Judge,

dissenting.

Neither the federal theft statute, 18 U.S.C. § 641 , nor the obstruction of justice statute, 18 U.S.C. § 1503 , should be interpreted as criminalizing the misuse or misappropriation of secret grand jury testimony or other similar confidential judicial information. Neither statute expressly makes the appropriation of such information a crime. Improper conduct respecting grand jury and other confidential judicial information should be punished, as it traditionally has been, by civil and criminal contempt proceedings.

The proper functioning of our grand jury system does depend upon the secrecy of grand jury proceedings, Douglas Oil Co. v. Petro Stops Northwest, 441 U.S. 211, 218-19 , 99 S.Ct. 1667, 1672 , 60 L.Ed.2d 156 (1979), but the policy of secrecy has historically been enforced by the courts through the use of the contempt power. See Note, The Grand Jury as an Investigatory Body, 74 Harv.L.Rev. 590, 600-01 (1961). Misappropriation of secret grand jury records or transcripts violates Federal Rules of Criminal Procedure 6(e)(1), (4) and (6) which require that the records of federal grand jury proceedings be kept secret, in the custody or control of the government or under seal. A person violating this rule may be punished for contempt under 18 U.S.C. § 401 (3), which gives the court the power to punish contempts in violation of a “court rule or order.” The procedure in such a contempt proceeding is that prescribed by Fed.Rule Crim.Pro. 42(b): disposition upon oral notice by the judge in open court on application of the court or the U.S. Attorney with adequate time allowed for the preparation of the defense and a reasonable statement of the factual basis and nature of the proceeding.

The virtue of utilizing the contempt power is that it can be narrowly focused on a specific violation of Rule 6(e), the misappropriation and disclosure of secret records, can be exercised in accordance with the procedural safeguards provided by Rule 42(b), and, consistent with , the court’s role in controlling and safeguarding the grand jury proceeding, need not be exercised at all if the court concludes in its discretion *684 that the violation of secrecy had no harmful effect on the grand jury investigation.

The court’s rejection of this traditional approach to the problem of unauthorized disclosure of grand jury records raises serious First Amendment problems. Section 641, the theft statute, contains no standard for determining when a person is to be held criminally liable as one who “converts to his use or the use of another, or without authority, sells, conveys, or disposes of any ... thing of value of the United States.” See United States v. Troung Dinh Hung, 629 F.2d 908, 924-25 (4th Cir.1980), cert. denied, 454 U.S. 1144 , 102 S.Ct. 1004 , 71 L.Ed.2d 296 (1982); United States v. Hubbard, 474 F.Supp. 64, 80 (D.D.C.1979). Under the court’s interpretation, the statute could be used to punish any disclosure or misappropriation of information made “without authority” even though Rule 6(e) specifically provides that “[n]o obligation of secrecy may be imposed on any person except in accordance with this rule,” and the Advisory Committee Note on Rule 6(e) states that “the rule does not impose any obligation of secrecy on witnesses.”

The only reasoned support for the majority’s construction of the theft statute is United States v. Girard, 601 F.2d 69, 71 (2d Cir.1979), 1 which rejected a First Amendment overbreadth challenge to section 641 because Drug Enforcement Agency rules and regulations forbade disclosure of computerized informant lists and delineated the conduct proscribed by the theft statute. The government’s argument that criminalizing misuse of government information under the theft statute, which itself contains no limiting standard and which has been interpreted to criminalize a broad, open-ended range of wrongful takings, well beyond the confines of the common law, Morissette v. United States, 342 U.S. 246 , 266 n. 28, 271, 72 S.Ct. 240, 254 , 96 L.Ed. 288 (1952), cannot be upheld against vagueness and overbreadth merely because the misappropriation of some particular kinds of government information is clearly prohibited by some other statute or rule. See Nimmer, National Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case, 26 Stan.L.Rev. 311, 322 (1974) (suggesting that if unauthorized dissemination of government information constitutes “conversion” under section 641 then that section is overbroad and is as violative of the First Amendment as the numerous parade ordinances struck down as overbroad because they lacked standards to guide officials in granting parade permits).

In reaching the conclusion that the misappropriation of government grand jury information is also punishable under the obstruction of justice statute, section 1503, the court relies exclusively on United States v. Howard, 569 F.2d 1331 (5th Cir.), cert. denied sub nom. Ritter v. United States, 439 U.S. 834 , 99 S.Ct. 116 , 58 L.Ed.2d 130 (1978). The court in Howard construed the omnibus clause of section 1503 punishing “whoever ... corruptly or by threats of force, or by threatening letter of communication, influences, obstructs, or impedes, or endeavors to influence, obstruct or impede, the due administration of justice” as covering the sale of grand jury transcripts. It mistakenly found that this broad reading of the statute was “confirmed” by legislative history showing that section 1503 was intended to cover con-tempts occurring outside the presence of the court, while only contempts occurring within the court’s presence were intended to be punished under the contempt statute, section 401. The court then reasoned as follows:

In its current form, section 401 proscribes disobedience or resistance to a *685 court rule, such as Rule 6(e), which requires grand jury proceedings to be secret. Since Howard and Ritter defied Rule 6(e) by selling transcripts, they committed a contempt as defined by section 401, (citation omitted) ... and since their contempt was perpetrated out of court, it falls within the prohibitions of section 1503.

569 F.2d at 1336 .

This syllogism rests on a mistaken reading of Nye v. United States, 313 U.S. 33 , 61 S.Ct. 810 , 85 L.Ed. 1172 (1941), which set out the history of the Act of March 2, 1831 ( 4 Stat. 487 ), the statute creating the contempt and obstruction statutes in language virtually identical to the current versions. It was conceded in Nye that the 1831 Act was passed to curtail the summary contempt powers of federal courts. Nye held that the 1831 Act limited the contempt powers of federal courts by precluding summary punishment of contempts consisting of misbehavior obstructing justice unless the behavior took place in the physical proximity of the court. 313 U.S. at 48-49 , 61 S.Ct. at 815-16 . It did not speak to or curtail the nonsummary power of courts to punish contempts after notice and a hearing, and it did not rule, contrary to the Howard court’s theory, that the creation of the obstruction statute divested the courts of the power to punish all con-tempts occurring outside the actual presence of the court and left only the alternative of prosecution under the obstruction statute.

Instead, if obstructive behavior occurs within the proximity of the court, it may be punished under 18 U.S.C. § 401 (1), under nonsummary notice and hearing procedures of Rule 42(b), see, e.g., Higgins v. United States, 160 F.2d 223 (D.C.Cir.1946), cert. denied, 331 U.S. 840 , 67 S.Ct. 1511 , 91 L.Ed. 1851 (1947) (an attempt to influence a juror in the corridor of the courthouse was punishable as contempt), and, as both Friedman, 445 F.2d at 1078, and Howard, 569 F.2d at 1336 , recognized, misappropriation of secret grand jury records and transcripts is a contempt violating the secrecy requirement of Rule 6(e), which as a violation of a court rule is punishable as a contempt even though occurring outside the presence of the court, provided the procedures of Rule 42(b) are followed. See 3 C. Wright, Federal Practice and Procedure, § 703, at 819 (1982); Note, Procedures for Trying Contempts in the Federal Courts, 73 Harv.L.Rev. 353 (1959). There is therefore no necessity for punishing misappropriation of grand jury information under the obstruction statute lest it escape punishment altogether.

In addition, construing the theft and obstruction statutes to criminalize misappropriation of grand jury information violates the sound and firmly established principle that federal substantive criminal statutes should be construed in a limited manner, unless Congress plainly states an intention that the statute be liberally construed, as in the RICO statute discussed in Justice Blackmun’s opinion for the Court in Rus-sello v. United States, 464 U.S. 16 , 104 S.Ct. 296, 302 , 78 L.Ed.2d 17 (1983). The two reasons for this principle of limited construction are the requirement of clear public notice of criminal laws and respect for limitations on jurisdiction which contributes to the systematization of law and to individual liberty.

The danger of neglecting the principle of limited construction is plain: under the Court’s view, the improper release of all confidential judicial information — including judicial opinions, votes and panel assignments — would constitute theft of government property and an obstruction of justice. The Court establishes no limiting principle. A lawyer or newspaper reporter would apparently go to jail if she finds out by stealth in advance what panel of the Sixth Circuit will hear a case or when an opinion will be released or what it will hold. The law clerks and secretaries of judges would be subject to criminal prosecution for telling tales out of school.

For the foregoing reasons these problems should continue to be handled by the courts under the contempt power, and the *686 language of the statutes in question should not be inflated to include them.

. United States v. Friedman, 445 F.2d 1076 (9th Cir.), cert. denied sub nom. Jacobs v. United States, 404 U.S. 958 , 92 S.Ct. 326 , 30 L.Ed.2d 275 (1971), affirmed a conviction under both the contempt statute and the theft statute for a conspiracy to obtain secret grand jury recorded testimony. As noted above, the contempt conviction, for violating Rule 6(e) by possessing and disclosing unreleased grand jury recorded testimony, was the proper means of punishment; in any event, the court's opinion in Friedman simply does not discuss the issue of whether the misappropriation of grand jury information should be punished under the theft statute.