Petition — Associated Milk Producers, Inc. v. United States

Supreme Court brief1978

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Supreme Court of the United States

Ocropner Term 1977

No 77-1531

ASSOCIATED MILK PRODUCERS, INC.

V. UNITED STATES, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Sipney Harris

Daviv B. GoLpston

Arent, Fox, Kintrner, PLorkin

& Kann

1815 H Street, N.W.

Washington, D.C. 20006

(202) 857-6046

Attorneys for Petitioner,

Associated Milk Producers, Inc.

Passes of Breow 6. Aname Puwriwe, Inc, Wasnoveren, D. 0.

}

CONTENTS

Page

es eee ehaeenaenwanene 1

ee eek oe Se dae eee 2

THE QUESTIONS PRESENTED .......0: sce eeeeeeeeene 2

TD ciccdentebvececkedkeedueate ve kas 3

PeamAEe GH GH GAG occ cc cccccccccccceccccccces 3

Reasons ron GRANTING THE WRIT .........0.00000008 9

OR i ale ee ee ay 9

2. The Decision Below Contravenes This Court's

Rule of Practical Finality for Determining

Appealability Under 28 U.S.C, §1291 (1970).. 11

38. The Substantial Conflicts Between the De-

cision Below and Decisions by Other Circuit

Courts of Appeals Requires Supreme Court

Review of the Issues Presented ............ 16

ET Ree AS Ee ge Age dene NE wee Er 20

Aprenpix 1: Decision and Judgment of the United

States Court of Appeals for the Fifth Cireuit... la

Aprenpix 2: Orders of the United States District

Court for the Western District of Texas ....... 20a

Arvpenvix 3: Excerpts from the District Court

MPTTTTTTTTTIT TELL TTL TTT TTT 25a

TABLE OF AUTHORITIES

Cases:

Abney v. United States, —— U.S. ——, 97 8S. Ct.

DT Uieelites cus thbekndhdoskésauitengs 10, 13

Brown Shoe Co. v. United States, 370 U.S. 294 (1962) 13

Carroll v. United States, 354 U.S. 394 (1957) ....... 17

ii Table of Authorities Continued

Page

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

en CREED 0.0 0bb000s000600605060n08005000 600 10, 11

Cobbledick v. United States, 309 U.S, 323, 329

DD <sc\dnednbntcaspean¥ddacsevebessaares 14,18

Deckert v. Independence Shares Corp., 311 U.S, 282

SED << dcuendhens Adee bdeeee ein uke ose 19

DiBella v. United States, 369 U.S, 121 (1962) ....... 17

Kisen v. Carlisle & Jacquelin, 417 U.S, 156 (1974) . 13

Gibson v, United States, 403 F.2d 166 (1968) ...... ‘1S, 18

Gillespie v. United States Steel sag 379 U.S, 148

DEY eciunctasdedcsssukacenistkask thas s tks 10, 12

a v. United States, 369 F.2d 166 (9th Cir,

ED ‘nut, Cunsaadte nach dadan het aaeeses o44A9

In re Esteile, 516 F.2d 480 (5th Cir, 1975), cert. de-

GEOG, GES Sale GD CUSED cocnccocsccesccccsesse

In the Matter of Grand Jury Investigation of the

Banana Industry, 214 F. Supp. } (D. Md,

DY di caundea ie bedded satus dab eaanens es 11,15

Jones v. Superintendent, Virginia State Farm, 460

F.2d 150 (4th Cir, 1972), cert. denied, 410 U.S.

2 Pree re ae ee 19

Kris Petroleum, Ltd, v. Stoddard, 221 F.2d 801 (9th

Se SE GR een seu e ele ia dee pede 6obks 19

Natta v. Zletz, 379 F.2d 615 (7th Cir, 1967) ........ 19

Ochsner v. Millis, 382 F.2d 618 (6th Cir, 1967) ...... 19

Perlman vy. United States, 247 U.S. 7 (1918) ........ 14

Petrol Stops Northwest v. United States, 1978-1

Trade Cas. 9 61,935 (9th Cir, 1978) ........... 11,15

Pittsburgh Plate Glass Co. v. United States, 360 U.S.

2 RS KP Sree 10

Reisman v. Caplin, 375 U.S, 440 (1964) .........05, 18

a Gas Co, v. Oklahoma, 334 U.S. 62 “

Roach v. Churchman, 457 F.2d 1101 (8th Cir, 1972).. 19

Roberts v. United States District Court for the North-

ern District of California, 339 U.S, 844 (1950)... 13

Selinger v. Bigler, 377 F.2d 542 (9th Cir.), cert. de-

ce hE FT Ra ere 17

Sheehan v. or 513 F.2d 895 (1st Cir.), cert. de-

— © 4g Gf fF tse 19

Soenny Mobil Oil Co. A, United States, 275 F.2d 227

th Cir, 1 2 (icieed deddecededtésaaenveseus 16

Stack FS § 13

—— A

Table of Authorities Continued iii

Page

State of Illinois v. Kittay 552 F.2d 768, (7th Cir.),

cert, denied, 46 U.S.L oD ee 15,17

Swift & Co, Packers v Compania Colombiana del

Caribe, 339 U.S. 684 (Seas 14

vue Btates v. Alexander, 428 F.2d 1169 (8th Cir, -

United States v, Byoir, 147 F.2d 336 (5 i . 1945)... 18

United States v. Calandra, 414 U.S, er 10

United States v. Dionisio, 410 U.S. 1 (1978) ........ 10

United States v. Doe, 455 F.2d 1270 det Clr. 1972).. 16

United States v. Fields, 425 F.2d 883 (3d Cir. 1970).. 17

United States v. Johnson, 319 U.S, 503 (1948) ...... 10

United States v. Procter & Gamble Co., 356 U.S. 677

Dt) sadetasereccudesdudinssdbnedbenee ce 10, 11

United States v. Ryan, 402 U.S. 530 (1971) ........ 17

me” we . Williams, 459 F.2d 909 (6th Cir. ,

PEER EP Pe Ee eee Ee Oe PEEP Tee eT eT ee 1

VonderAhe v. Howland, 508 F.2d 364 (9th Cir. 1974) 17

STaTures:

SD WEA. SERGE) CIBTR) ccccccccccccccccccccccce 2

PE ED onc cc ccnnuvsccncvesdove 2, 3, 9, 13

REGULATIONS:

BB Cole GSQLTOG) CIGTT) ..ncccccccccccccccccces 4

28 C.F.R. $$0.40(a), 0.43 (1976) .......ccceceeeees 4

ee sd. ccveusecwececes 4

GD Ped.Mem, GEEGO (1GTE) on ccccccccccccccccccccccs 4

Federal Rules of Appellate Procedure: Rule 41(b)... 2

Federal Rules of Civil Procedure: Rule 24(a) (2). .3, 8, 19

Federal Rules of Criminal Procedure: Rule 6(e).. 5, 8, 15

MISCELLANEOUS!

J. Moore, B. Ward & J. Lucas, Moore’s Federal

i ree 18

~ -

ee ee

IN THE

Supreme Court of the United States

OctToBER TERM 1977

No.

In Re: 1975-2 Granp Jury INVESTIGATION OF

AssociATED MiLkK Propucers, Inc.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Associated Milk Producers, Ine. (hereafter

“AMPI”) petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth

Circuit dismissing AMPI’s appeal in this case is in-

cluded herein as Appendix 1 and has not yet been

officially reported. The district court’s orders from

which this appeal was taken are included herein as

Appendix 2 and have not been officially reported.

JURISDICTION

The opinion of the Court of Appeals for the Fifth

Circuit dismissing AMPI’s appeal in this case was

issued on February 6, 1978. A timely Petition for

Rehearing and Suggestion for Rehearing En Bane

was denied on March 3, 1978. On March 21, 1978

the Court of Appeals stayed the issuance of the man-

date, pursuant to Rule 41(b) of the Federal Rules

of Appellate Procedure, until April 20, 1978. On

April 18, 1978 the mandate was further stayed until

April 26, 1978.

The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1) (1970).

THE QUESTIONS PRESENTED

Whether an order refusing to expunge a grand jury

transcript and return all documents is appealable as

a final order under 28 U.S.C. 61291 (1970) after

the grand jury investigation has terminated without

the return of an indictment and under circumstances

where no fvither government investigation or prosecu-

tion is pending or contemplated.

Whether an order transferring information col-

lected in a grand jury investigation to another juris-

diction in another Circuit for use in a totally inde-

pendent private proceeding is appealable as a final

order under 28 U.S.C. §1291 (1970).

Where the initiation of the grand jury investiga-

tion was unauthorized, where the prosecution was im-

properly selective, where there was misconduct by

the government prosecutors, and where the target of

the investigation sought to enjoin it at its inception,

whether the finality requirement of 28 U.S.C. §1291

(1970) can be used to permanently deny the target

relief that will place it in the same position in which

it would have been if the investigation had not been

commenced, or permitted to go forward.

Whether an order granting intervention under Fed-

eral Rule of Civil Procedure 24(a)(2) is appealable

at the conclusion of the proceeding.

STATUTE INVOLVED

28 U.S.C. § 1291 (1970) provides as follows:

The courts of appeals shall have jurisdiction of

appeals from all final decisions of the district

courts of the United States, the United States

District Court for the District of the Canal Zone,

the District Court of Guam, and the District Court

ot the Virgin Islands, except where a direct re-

view may be had in the Supreme Court.

STATEMENT OF THE CASE

At issue in this case are the appealability of four

orders issued by Chief Judge Spears of the United

States District Court for the Western District of

Texas relating to a federal grand jury investigation

of AMPI. The grand jury investigation commenced

approximately in early February 1975; the Grand

Jury was discharged on August 6, 1976—after exhaus-

tion of almost the full 18 months of its life—without

the return of any indictment. In fact, the grand jury

was not permitted to deliberate about whether an in-

dictment would be returned since the United States

refused to present any indictment. When the grand

jury investigation was terminated, there were no re-

lated government suits or investigations pending or

contemplated. Further, the government stated that it

had no further interest in the documents produced in

response to grand jury subpoenas.

From the outset of the grand jury investigation,

AMPI contended that the prosecutors, who were not

regular United States Attorneys, did not have proper

authority to conduct the investigation. Their authority

purported to seem not from the Attorney General, but

only from the Assistant Attorney General of the Anti-

trist Division, although that Assistant Attorney Gen-

eral had not been delegated authority to authorize or

conduct grand jury investigations outside of the anti-

trust and trade regulation field. The grand jury in-

vestigation related to obstruction of justice and sim-

ilar matters. At that time, the only delegation of

authority permitting the Assistant Attorney General

in charge of the Antitrust Division to designate at-

torneys to conduct grand jury investigations per-

tained to cases brought to enforce the laws relating

to competition and consumer protection, see 28 C.F.R.

§§ 0.40(a), 0.43 (1976); 39 Fed. Reg. 25487 (1974).’

AMPI also contended that the investigation was im-

proper in that never before in the history of more

than 100 years of the contempt and obstruction of

justice statutes had a prosecution been initiated in-

volving discovery in a civil case, and that for this

and other reasons, the investigation had been initiated

and was being carried out for impermissible motives

constituting a misuse of the grand jury process.

The grand jury investigation was under the super-

vision of Chief Judge Spears of the Western District

of Texas. Upon receipt of the first subpoena, at the

*On November 18, 1975, long after the initiation of the grand

jury investigation in this case, Antitrust Division attorneys were

authorized to present evidence to grand juries in certain types of

obstruction of justice investigations. 28 C.F.R. § 0.179(a) (1977),

40 Fed. Reg. 53390 (1975).

commencement of the investigation, AMPI sought to

enjoin the grand jury investigation on the grounds

that the prosecutors were unauthorized and had im-

properly selected AMPI for prosecution. On February

19, 1975, Chief Judge Spears denied AMPI’s motions

and ordered that the subpoena be enforced. On May

6, 1975, Chief Judge Spears denied AMPI’s motion

for reconsideration of its motion to stay the grand

jury proceedings.

On August 6, 1976 when the grand jury was dis-

charged without the Government having presented it

with the opportunity to return an indictment, the in-

vestigation of alleged obstruction of justice was termi-

nated, and the Government disavowed any further

interest in the documents which AMPI had produced

pursuant to grand jury subpoenas. On the day of its

discharge, the grand jury made three requests of

Chief Judge Spears, including a request that AMPI’s

business files and records received by the grand jury

‘‘be made available to other courts pursuant to an

appropriate Rule 6(e) motion.” On the same day,

Judge Spears acted on these requests, and the request

that AMPI records be made available to other courts

was not granted.’ At this point in time—August 6,

1976, when the grand jury was discharged, when there

was no pending or contemplated government prosecu-

tion or investigation of AMPI, and when the gov-

ernment had no further interest in the grand jury

documents—the prior orders of February 19 and May

6, 1975, became final and appealable. Such orders had

* The Grand Jury’s letter to Chief Judge Spears of August 6,

1975 and Chief Judge Spears’ Order of the same day are reprinted

in Appendix 3.

6 7

denied AMPI’s request to enjoin the grand jury in-

vestigation. On appeal from these orders, in order to

place AMPI in the same position as if the grand

jury investigation had not commenced, or had not been

permitted to go forward, AMPI sought return of its

documents and expungement of the grand jury record.

Approximately three weeks after the grand jury

investigation was terminated, on August 25, 1976,

attorneys for the Antitrust Division initiated an in-

dependent, ex parte proceeding in the Western Dis-

trict of Texas in which the Government sought, con-

ti wy to the grand jury’s own request, to have all of

the grand jury transcripts, documents and other ma-

teriais transferred to Chief Judge Oliver of the West-

ern District of Missouri for the acknowledged purpose

of aiding the plaintiffs in private antitrust suits pend-

ing before Judge Oliver to which AMPI is a defend-

ant.’ Without giving AMPI notice and an opportunity

to be heard, Chief Judge Spears granted the Govern-

ment’s request and directed that the grand jury sub-

poenas, transcripts and documents ‘“‘be disclosed to the

United States District Court for the Western District

of Missouri for such use in pending proceedings as that

Court deems appropriate.’’ The Government attorneys

also took it upon themselves to send Chief Judge

Oliver an unsolicited letter which informed him of

Chief Judge Spears’ order and inaccurately stated

that Chief Judge Spears had “[d]etermined that these

matters may be material to proceedings pending be-

fore your court.”

*The Government’s ‘‘Statement with Respect to the Recom-

mendations of the 75-2 Grand Jury That Grand Jury Transcripts

and Documents Be Made Available to Other Courts,’’ which initi-

ated the independent transfer proceeding, is reprinted in Ap-

pendix 3.

det renting Saree Bee we 6

;

AMPI found out about these ex parte proceedings

through a report in a newspaper of general circulation

and thereafter filed motions requesting reconsidera-

tion of the transfer order, return of AMPI’s docu-

ments and expungement of the grand jury transcript.

Pursuant to these motions, Chief Judge Spears stayed

transfer of any grand jury materials and ordered a

hearing on October 1, 1976 concerning their disposi-

tion.

At the October 1, 1976 hearing, Chief Judge Spears

explicitly found that the requisite showing of a par-

ticularized and compelling need for the production of

the grand jury materials had not been made.‘ Never-

theless, on that same day, Chief Judge Spears ordered

that an inventory of the grand jury materials be

transferred to Chief Judge Oliver of the Western

District of Missouri and provided that upon a certifi-

cation of compelling need by Chief Judge Oliver, the

Clerk for the Western District of Texas would for-

ward the requested grand jury materials. The appeal-

ability of this order, which finally determined the

only issue pending in the Western District of Texas

by ordering the disclosure of the secret grand jury

materials to Judge Oliver, is one of the issues pre-

sented by this petition.

* See ‘‘Order Modifying Order of August 25, 197&’’ reprinted

in Appendix 2; RI. 155, reprinted in Appendix 3 (“# have seen

no indication that there is anything in those [grand jury] files

that would be material or relevant. I have seen nothing that would

indicate that it couldn’t have been, if it hadn’t already been, dis-

closed otherwise through the discovery procedures, nor have I seen

anything showing a particularized or compelling need for any par-

ticular document or any particular transcript. There is no indica-

tion that I have been able to find in the record that any witness

testified contrary to what he tesified to before the grand jury. ...’’).

a ae Sener enn

At this same October 1, 1976 hearing, the National

Farmers’ Organization (“NFO”), a counterclaim plain-

tiff against AMPI1 in the private antitrust litigation

pending in the Western District of Missouri, sought

to intervene as of right in the transfer proceeding

pursuant to Fed. R. Civ. P. 24(a)(2), and attached

to its motion a Rule 6(e) motion which had first been

filed in the Western District of Missouri. AMPI op-

posed this motion on the grounds that NFO had

established neither that it had an interest in the pro-

ceeding cognizable under Rule 24(a)(2) nor that its

alleged interest was not being adequately represented

by the Government. On November 4, 1976, Chief

Judge Spears issued an order granting NFO’s motion

to intervene. This is the last order from which AMPI

has appealed. It is final since the only act left in

the Western District of Texas, upon Chief Judge

Oliver’s certification, is the ministerial act of sending

the grand jury materials to the Western District of

Missouri.

On October 8, 1976, AMPIT filed a timely Notice of

Appeal which was amended on October 18 and No-

vember 22, 1976, to include appeal of all four orders

in issue. On November 5, 1976, Chief Judge Spears

denied AMPI’s motion for a stay pending appeal;

however, on November 28, 1976, the United States

Court of Appeals for the Fifth Circuit granted a

stay.’

* By the time the Court of Appeals granted a stay pending ap-

peal, what purported to be the inventory provided for in Judge

Spears’ October 1, 1976 Order was transferred to the Western

District of Missouri, It appears that what was transferred had

been at least in part prepared by Antitrust Division attorneys,

contrary to the Order of Judge Spears which provides that the

Clerk of Court prepare the inventory, What was sent to the West-

ern District of Missouri contains marginal notes and comments

which may have involved a breach of grand jury secrecy. See

a Als

On February 6, 1978, the United States Court of

Appeals for the Fifth Circuit issued its opinion hold-

ing that the four orders which AMPI had appealed

were not final orders appealable pursuant to 28 U.S.C,

§ 1291 (1970), and therefore dismissed the appeal.

AMPT filed a timely Petition for Rehearing and Sug-

gestion for Rehearing En Bane which was denied on

March 3, 1978.

REASONS FOR GRANTING THE WRIT

1. Introduction

This case presents the important but unsettled issues

of (1) whether orders denying relief from alleged

unauthorized and improper conduct of a federal grand

jury investigation are appealable as final decisions

under 28 U.S.C. § 1291 (1970) after the termination

of the grand jury investigation where no indictment

or government investigation is pending; and (2)

whether orders transferring secret grand jury mater-

ials to another district for use in unrelated private

litigation are appealable as final decisions under 28

U.S.C, § 1291 (1970) after all proceedings in the

transferor district have been completed, save the min-

isterial act of the clerk actually transferring the secret

materials, The decision below, holding that such orders

are not appealable, is a clear departure from this

Court’s ‘‘practical finality” approach to the final judg-

‘‘AMPI's Motion to Determine Compliance with the Court's Order

of October 1, 1976 and For Appropriate Relief,’’ Supporting

Memorandum, and Affidavit of Sidney Harris, Esq., RI, 245-56,

reprinted in Appendix 3. When AMPI discovered these facts it

requested an evidentiary hearing before Judge Spears to deter-

mine whether his Order had been complied with, and whether gov-

ernment attorneys had breached grand jury secrecy. Judge Spears

stayed all proceedings pending the resolution of the appeals which

had by that time been noticed.

ment rule first enunciated in Cohen v. Beneficial In-

dustrial Loan Corp., 337 U.S. 541, 545-47 (1949), and

expanded upon in Gillespie v. United States Steel

Corp., 379 U.S. 148, 152-54 (1964), and Abney v.

United States, —— U.S. , 97 8. Ct, 2034, 2039-42

(1977), since the Fifth Circuit’s decision has the prac-

tical effect of forever denying AMPI an opportunity

to obtain meaningful review of these orders. More-

over, the Fifth Cireuit’s decision is in direct conflict

with numerous decisions of other United States Courts

of Appeals, and with a prior Fifth Cireuit decision,

which apparently still stands as precedent.

At stake in this case are the continued vitality of

two of the most fundamental principles of our Amer-

ican legal system—the grand jury institution as a

check on prosecutorial overzealousness * and the sec-

recy of grand jury proceedings.’ If the decision of

the Fifth Cireuit is not reviewed by this Court, AMPI

will be forever denied an opportunity to obtain mean-

ingful review of and relief from the orders in issue,

Since the grand jury investigation took place in

the Western District of Texas under the supervision

of Chief Judge Spears, the Western District of Mis-

souri and the Eighth Circuit can not give AMPI ef-

fective relief. Those Courts can not order return of

AMPI’s documents or order expungement of the

grand jury record. If AMPT is right in its contentions

of lack of authorization and improper motivation

* See, ¢.g., United States v. Calandra, 414 U.S, 338, 343 (1974);

United States v. Dionisio, 410 U.S. 1, 17 (1973).

" See, ¢.g., Pittsburgh Plate Glass Co, v, United States, 360 U.S.

395, 399-400 (1959) ; United States v. Procter & Gamble Co,, 356

U.S. 677, 681-82 (1958); United States v. Johnson, 319 U.S. 503,

513 (1943).

ee aes ee

then the relief requested is merited since one of the

important policies behind grand jury secrecy is the

avoidance of public disclosure of normally confidential

information, See Petrol Stops Northwest v. United

States, 1978-1 Trade Cas. 161,935, at 73,955 (9th Cir.

1978). Once the grand jury materials have been trans-

ferred to Chief Judge Oliver, it will be impossible

to return AMPI to the same position it would have

been if the allegedly unauthorized and improperly

motivated grand jury investigation had not taken

place, or had not been permitted to go forward, since

disclosure of these materials to Chief Judge Oliver

constitutes an irreparable breach of grand jury se-

erecy. See In the Matter of Grand Jury Investigation

of the Banana Industry, 214 F. Supp. 856, 859 (D.

Md. 1963). This would be unconscionable in view of

the explicit finding by Chief Judge Spears, who is

responsible for safeguarding the secrecy of these grand

jury materials, that no showing of particularized or

compelling need for these materials has been made.

See United States v. Procter & Gamble Co., 356 U.S.

677, 681-82 (1958).

For these reasons it is of vital importance that the

writ be granted so that this Court may review the

decision below.

2. The Decision Below Contravenes This Court's Rule of Practical

ae nny Sane ae CN On

The decision below flies in the face of the practical

finality approach to the final judgment rule developed

by this Court in a number of decisions. In Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 546

(1949), this Court, declaring that the final judgment

rule was to be given “a practical rather than a tech-

nieal construction,” held that an order denying the

defendant’s motion to require the plaintiff to post

security for the costs of litigation pursuant to a state

statute was immediately appealable because to deny

appeal at that time would foreclose any effective

means of later appellate review and would result in

a permanent loss of the important right being asserted

by the defendant.

In Gillespie v. United States Steel Corp., 379 U.S.

148, 152-54 (1964), this Court expanded the Cohen

practical finality rule to permit an immediate appeal

from the District Court’s dismissal of claims under

a state wrongful death statute by a deceased seaman’s

mother, brother and sisters, and under the federal

Jones Act by the brother and sisters, even though the

District Court order left standing the mother’s Jones

Act claim. While the District Court’s order was thus

clearly not the final decision in the proceeding and

would not have irreparably denied the brother and

sisters an opportunity to seek relief, this Court ap-

plied a balancing test—weighing ‘‘the inconvenience

and costs of piecemeal review on the one hand and

the danger of denying justice by delay on the other” —

and held that the probable delay of several years in

determining the brother and sisters’ claims would

work an injustice which outweighed the costs of piece-

meal review. Applying such a balancing test to the

facts of the instant case mandates appealability since

Chief Judge Spears’ orders relate to the grand jury

and transfer proceedings, both of which now have

been completed, and since the important rights as-

serted by AMPI will be forever lost if an appeal is

not allowed at this time. The Fifth Circuit admitted

that this case was ‘‘one of those cases falling within

‘the twilight zone of finality’,” Opinion at 2023, but

failed to heed the clear mandate of Gillespie that such

“twilight zone” cases are to be decided in favor of

appealability. 337 U.S. at 542.

This Court’s most recent decision regarding the

final judgment rule, Abney v. United States, —— U.S.

———, 97 8. Ct. 2034 (1977), was totally ignored by

the Fifth Cireuit. In Abney, this Court held that a

pretrial order denying a motion to dismiss an indict-

ment on double jeopardy grounds is a final decision

for the purposes of 28 U.S.C. § 1291 (1970). The

Court recognized that the defendant would be able to

obtain complete review of his double jeopardy asser-

tion on appeal from a conviction, but held that this

would be inadequate since the holding of a second

trial in itself would deprive the defendant of rights

which the double jeopardy clause was intended to

protect, making later review inadequate. Review in

the instant case is even more compelling than it was

in Abney since the double jeopardy ruling could

have been reviewed after conviction whereas neither

Chief Judge Oliver nor the U.S. Court of Appeals

for the Eighth Cireuit will have authority to grant

AMPI’s requested relief.

On numerous other occasions this Court has applied

the teachings of these cases and not allowed the final

judgment rule to be applied so as to prevent a party

from obtaining any meaningful review of an order.

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171-72

(1974); Brown Shoe Co. v. United States, 370 U.S.

294, 306, 309 (1962); Stack v. Boyle, 342 U.S. 1, 6

(1951); Roberts v. United States District Court for

the Northern District of California, 339 U.S. 844

(1950) ; Swift & Co. Packers v. Compania Colombiana

del Caribe, 339 U.S. 684, 688-89 (1950)." In Perlman

v. United States, 247 U.S. 7, 12-13 (1918), the denial

of a motion to restrain the United States Attorney

from taking possession of the petitioner’s documents

which were under the control of a court clerk and

presenting them to a grand jury investigating the

petitioner was held appealable in recognition of the

fact that possible review of the issues presented by

the motion in connection with future proceedings

against the petitioner would not provide an effective

remedy,

Since the Fifth Circuit paid no heed to these de-

cisions, AMPI will be forever denied an opportunity

to obtain meaningful review of the orders in issue un-

less this Court reviews the decision below. AMPT has

challenged the alleged unauthorized and improper use

of the grand jury from the outset of the investigation.

Once the grand jury materials are transferred to the

Western District of Missouri it will be impossible

to return AMPI to the same position it would have

been in if the investigation had not taken place. Thus,

even if the Fifth Cireuit’s assertion that AMPI may

raise these issues before Chief Judge Oliver was cor-

rect, which it is not, this Court’s rule of practical

finality mandates review of these issues at this time.

* See also Republic Natural Gas Co, v. Oklahoma, 334 U.S, 62, 68

(1948) (an order is appealable where the ‘‘controversy had pro-

ceeded to a point where the losing party would be irreparably in-

jured if review were unavailing’’); Cobbledick v, United States,

309 U.S, 323, 329 (1940) (‘'Due regard for efficiency in litigation

must not be carried so far as to deny all opportunity for the appeal

contemplated by the statutes’).

The assertion that Judge Oliver can review these

issues is unquestionably wrong since the responsi-

bility for supervision over a grand jury resides in the

district where the grand jury sits. See, e.g., State of

Illinois v. Sarbaugh, 552 F.2d 768, 772-73 (7th Cir.),

cert. denied, 46 U.S.L.W. 3238 (1977); Gibson v.

United States, 403 F.2d 166, 167-68 (D.C. Cir. 1968).

Likewise, in respect to the transfer order, the respon-

sibility for safeguarding the secrecy of the grand jury

materials resides with Judge Spears. See State of

Illinois v. Sarbaugh, 552 F.2d 768, 772-73 (7th Cir.),

cert. dented, 46 U.S.L.W. 3238 (1977). The Western

District of Texas is best situated to evaluate the need

for continuing secrecy of the grand jury materials

and is probably the only court with jurisdiction under

Fed. R. Crim. P. 6(e). See Petrol Stops Northwest v.

United States, 1978-1 Trade Cas. 161,935, at 73,957

n.4 (9th Cir. 1978). Transfer to Judge Oliver will

constitute an irreparable breach of grand jury secrecy

without the requisite showing of a particularized or

compelling need for these materials. See In the Matter

of Grand Jury Investigation of the Banana Industry,

214 F. Supp. 856, 859 (D.Md. 1963).

Since the responsibility for deciding the issues

raised by AMPI resides in the District Court for the

Western District of Texas, since only that court can

grant AMPI adequate relief from the improprieties

alleged, and since that court has made a final deter-

mination on all the issues raised, the challenged orders

are clearly appealable under this Court’s construction

of the final judgment rule. The decision below is such

a striking departure from this Court’s holdings, and

the harm to AMPI will be so great if the decision

below is allowed to stand, that the writ should be

granted.

3. The Substantial Conflicts Between the Decision Below and

Decisions by Other Circuit Courts of Appeals Requires

Supreme Court Review of the Issues Presented.

The conflicts between the decision below and hold-

ings by other Courts of Appeals are so numerous and

so serious that there is a compelling need for review

by this Court.

The Fifth Circuit’s holding that the orders denying

AMPI’s requested relief from the alleged unauthor-

ized and improper use of the grand jury investigation

are not appealable lacks all logic since the grand

jury investigation has been terminated with no prose-

cution being brought or contemplated, and it is in con-

flict with numerous decisions by other Circuit Courts

of Appeals. The First Circuit, in United States v.

Doe, 455 F.2d 1270, 1273-74 (1st Cir. 1972), held that

the denial of a protective order against alleged misuse

of a grand jury, for the purpose of collecting evidence

to be used in a proceeding in another district, was

appealable since there would not be an effective op-

portunity for the petitioner to obtain review of his

claim of grand jury misuse in the other proceeding.

In the instant case there are no pending Government

proceedings in which AMPI may raise its claims.

Since AMPI is now seeking the return of its docu-

ments and expungement of the grand jury record—the

only remedy which will place AMPI in the same posi-

tion as if the allegedly unauthorized and improperly

motivated grand jury investigation had never taken

place—the Fifth Circuit decision is also in direct con-

flict with Socony Mobil Oil Co. v. United States, 275

F.2d 227, 229 (7th Cir. 1960), in which the Seventh

Circuit held that an order denying a motion for the

return of documents supplied pursuant to a grand

stint ae ear ta ns ti tht ei Willa sal SE

jury subpoena would be appealable if the order was

in a proceeding independent of any pending criminal

action resulting from the grand jury investigation.

Clearly there is no pending criminal action resulting

from the grand jury investigation.

Closely analagous are the numerous decisions by

this Court as well as various Circuit Courts of Ap-

peals holding that the denial of a motion for the

return of seized property and suppression of records

is immediately appealable when the suppression pro-

ceeding is independent of other proceedings. See, e.g.,

United States v. Ryan, 402 U.S. 530, 533 (1971);

DiBella v. United States, 369 U.S. 121, 131-32 (1962) ;

Carroll v. United States, 354 U.S. 394, 403-04 (1957) ;

VonderAhe v. Howland, 508 F.2d 364, 368 (9th Cir.

1974); United States v. Williams, 459 F.2d 909, 910

(6th Cir. 1972); United States v. Alexander, 428 F.2d

1169, 1171 (8th Cir. 1970); United States v. Fields,

425 F.2d 883, 886 (3d Cir. 1970); Selinger v. Bigler,

377 F.2d 542 (9th Cir.), cert. denied, 389 U.S. 904

(1967) ; Goodman v. United States, 369 F.2d 166, 167-

68 (9th Cir. 1966).

The Fifth Circuit’s decision that the transfer order

is not appealable at this time is in direct conflict with

decisions by at least two other Circuits. The Seventh

Circuit in State of Illinois v. Sarbaugh, 552 F.2d 768,

773-74 (7th Cir.), cert. denied, 46 U.S.L.W. 3238

(1977), held an order denying a motion for produc-

tion of grand jury materials but transferring them to

another district for possible use in private antitrust

litigation to be appealable, in a factual situation

virtually identical to that in the instant case. The

Fifth Circuit’s decision is also in direct conflict with

the District of Columbia Circuit’s holding in Gibson

v. United States, 403 F.2d 166, 167 (D.C. Cir. 1968),

that the denial of a motion for access to grand jury

testimony for use in a case pending before another

court was an appealable order since it disposed of all

proceedings in the court having control over the grand

jury transcript. Surprisingly, the decision below is

also in direct conflict with an earlier Fifth Circuit

decision which that court apparently continues to

consider valid. In United States v. Byoir, 147 F.2d

336 (5th Cir. 1945), that court held that an order

granting access to grand jury transcripts and docu-

ments for use in a proceeding in another district was

appealable, notwithstanding proceedings pending in

two districts.’

Since the Government’s sole purpose in initiating

the transfer proceeding was to effect a disclosure of

the grand jury materials to the private plaintiffs in

the proceeding now pending in the Western District

of Missouri, the transfer proceeding is closely analo-

gous to an independent discovery proceeding.” Orders

granting or denying discovery in such proceedings

have been repeatedly held appealable. See, e.g., Rets-

man v. Caplin, 375 U.S. 440, 449 (1964) ; Cobbledick

®In the decision below, the Fifth Circuit incorrectly distin-

guished Byoir, Opinion at 2025 n.11, but in no way indicated that

Byoir did not continue to have precedential effect in the Fifth

Circuit.

1°** When the [grand jury] minutes are sought for use in other

proceedings the Rule 6(e) motion is usually regarded as an inde-

pendent proceeding for discovery, with the result that an order

granting or denying access is appealable.’’ 9 J. Moore, B. Ward

& J. Lucas, Moore’s Federal Practice J 110.13 [11], at 193 (1975)

(citing, inter alia, Byoir and Gibson, and Sarbaugh in the Supple-

ment).

v. United States, 309 U.S. 323, 329-30 (1940); Shee-

han v. Doyle, 513 F.2d 895, 898 (1st Cir.), cert. dented,

423 U.S. 874 (1975); Jones v. Superintendent, Vir-

gina State Farm, 460 F.2d 150, 152 (4th Cir. 1972),

cert. denied, 410 U.S. 944 (1973); Ochsner v. Millis,

382 F.2d 618 (6th Cir. 1967) ; Natta v. Zletz, 379 F.2d

615, 618 (7th Cir. 1967). The Fifth Circuit’s decision

that the transfer order is not appealable is in conflict

with these and numerous similar holdings.

The issue of whether an order granting interven-

tion pursuant to Rule 24(a)(2) of the Federal Rules

of Civil Procedure is appealable at the conclusion of

the proceeding has apparently never been directly

confronted by this Court or the Circuit Courts of

Appeals, probably due to the obviousness of the an-

swer. However, decisions by this Court and various

Courts of Appeals holding that such orders are not

appealable in the midst of the proceedings clearly

indicate that intervention orders may be appealed

when all proceedings before the trial court have been

completed. See Deckert v. Independence Shares Corp.,

311 U.S. 282, 290-91 (1940); In re Estelle, 516 F.2d

480, 484 (5th Cir. 1975), cert. denied, 426 U.S. 925

(1976); Roach v. Churchman, 457 F.2d 1101, 1105

(8th Cir. 1972); Kris Petroleum, Ltd. v. Stoddard,

221 F.2d 801, 802 (9th Cir. 1955). The Fifth Circuit’s

decision that an order granting intervention is not

appealable after all proceedings in the trial court

have been completed is in conflict with those decisions

and lacks all indicia of fairness or logic.

CONCLUSION

The conflicts between the decision below and the

holdings of this Court and other Courts of Appeals

are sO numerous and serious, and the underlying

issues—alleged unauthorized and improper use of the

grand jury process, and an unjustifiable breach of

grand jury secrecy—are so important, there is a vital

need for review of the Fifth Cirecuit’s decision by this

Court. The writ should therefore be granted.

Respectfully submitted,

SrpNEY Harris

Davip B. GoLpsTton

ARENT, Fox, KINTNER, PLOTKIN

& KAHN

1815 H Street, N.W.

Washington, D.C. 20006

(202) 857-6046

Attorneys for Petitioner,

Associated Milk Producers, Inc.

APPENDIX

APPENDIX 1

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

In re 1975-2 Granp Jury INveEsTIGATION oF

Associatep Mick Propvucers, Inc.

Appeal of Associarep Mri_x Propucers, Inc.

No. 76-4094.

Decision and Judgment of the United States

Court of Appeals for the Fifth Circuit

Feb. 6, 1978.

Appeal from the United States District Court for the

Western District of Texas.

Before Arnswortn, Simpson and Moroan, Circuit Judges.

Ainsworth, Circuit Judge:

Associated Milk Producers, Inc. (‘‘AMPI’’) appeals

from four orders by Chief Judge Adrian A. Spears of the

United States District Court for the Western District of

Texas. In the first order, issued February 19, 1975, the dis-

trict court denied AMPI’s motions to stay grand jury pro-

ceedings brought against it by the Government and to

quash or modify a grand jury subpoena arising out of those

proceedings. The court also denied AMPI’s motions for an

evidentiary hearing and for an in camera inspection of cer-

tain government documents.' In the second order, issued

' The order of February 19 stated :

The Court having received three motions by Associated Milk

Producers, Inc. (‘‘AMPI’’), in connection with a grand jury

May 6, 1975, the district court denied reconsideration of

the motion to stay the grand jury proceedings.’ In the

third order, issued October 1, 1976, the district court pur-

suant to Fed.R.Crim.P. 6(e), directed that an inventory

of the materials compiled during the grand jury proceed-

ings be sent to the United States District Court for the

Western District of Missouri so that it could determine if

a ‘‘compelling need’’ existed for the materials in related

litigation before that court and, if so, request their trans-

subpoena served upon it on February 10, 1975, in the above

proceeding, namely;

1, Motion to Modify Subpoena ;

2. Application for Jn Camera Inspection ; and

3. Motion to Stay Grand Jury Proceedings; and the Court

being fully advised in the premises,

Ir Is Heresy Orperep that:

1, The motions by AMPI are denied ;

2. The subpoena is Ordered enforced and AMPI is directed

to make its return thereto forthwith; and

8. Government and AMPI counsel are directed to confer forth-

with to accomplish AMPI's return expeditiously with a mini-

mum of inconvenience to movant AMPI.

* The order of May 6 stated:

On this the 6th day of May, 1975, the Court having fully

considered movant Associated Milk Producers, Inc.'s motion

for reconsideration of its motion to stay grand jury proceed-

ings, and having received memoranda and heard argument

from both movant and the United States,

It Is Heresy Orperep THat:

The motion for reconsideration of AMPI's motion to stay

grand jury proceedings be Denrep, and the special attorneys

for the Government be permitted to appear and conduct fur-

ther grand jury proceedings in this cause.

Entered this the 6th day of May, 1975, at San Antonio,

Texas.

fer.’ In the fourth order, issued November 4, 1976, the dis-

trict court, pursuant to Fed.R.Civ.P. 24(a)(2), granted the

motion of The National Farmers’ Organization, Inc. to

* The order of October 1 stated:

On this the Ist day of October, 1976, Associated Milk Pro-

ducers, Inc. (AMPI) having moved that the Court reconsider

its order to transfer the grand jury subpoenas, transcripts,

and documents in the above captioned matter, and the Court

having received motions and memoranda, and heard arguments

on this date, not only from movant, but also from The National

Farmers’ Organization (NFO) and the United States; and it

appearing that no party to this action has shown a compelling

need for disclosure of all or any particular portion of said

grand jury materials; and it further appearing that said ma-

terials are exceedingly voluminous, filling no less than 55 large

file boxes and one metal filing cabinet; and it further appear-

ing that the indiscriminate trausfer of all of said materials to

the Western District of Missouri would be impractical, bur-

densome and premature, especially in view of the failure of

any party to demonstrate a particularized or compelling need

for disclosure, it is, therefore,

Orperep that this Court's August 25, 1976 Order be modi-

fied in the following respects :

(1) The Clerk of this Court is directed to promptly send

to Judge John W. Oliver, as transferee judge, an inventory

of the grand jury subpoenas, transcripts, and the documents

for his in camera inspection.

(2) In the event the transferee judge finds at any time that

there is a compelling need for all or any part of the grand

jury subpoenas, transcripts and documents, and certifies that

the transfer thereof is warranted, the Clerk shall forthwith

transfer the requested material to the transferee judge.

(3) Nothing set forth in this order, or stated in open court

on this date, should be construed as any finding by this Court

with respect to the relevancy or materiality of, or the need for,

the said grand jury materials; it being the intention of this

Court that all such matters shall be solely addressed to, and

determined by, the transferee judge.

(4) The Court shall reserve decision on NFO's motion to

intervene until AMPI has been afforded a period of ten (10)

intervene as of right in these proceedings relating to trans-

fer of the grand jury materials.‘

I, Tur Facts

The genesis of this lengthy and bitterly contested dispute

between the Government and AMPI lies in an extensive

government investigation of alleged monopolization in the

milk industry This investigation prompted the United

States on February 1, 1972 to file a civil antitrust action

against AMPI in the United States District Court for the

Western District of Texas, Chief Judge Spears presiding.

The Government charged AMPI with violations of Sections

1 and 2 of the Sherman Act, 15 U.S.C. §§1 and 2, and

sought injunctive relief. Fifteen private treble damage

antitrust suits were also filed against AMPI in various

federal courts during 1971 and 1972. The Judicial Panel on

Multidistrict Litigation, pursuant to 28 U.S.C. § 1407, trans-

ferred the private suits for pretrial proceedings to Chief

Judge John W. Oliver of the United States District Court

days from this date to respond thereto, and NFO has been

allowed five (5) days thereafter in which to reply to said

response.

(5) All provisions of this Court’s order of February 21,

1975, except as they may be in conflict with this order, shall

remain in full force and effect, subject to further orders of

this Court,

Entered this the Ist day of October, 1976, at San Antonio,

Texas.

* The order of November 4 stated :

On this the 4th day of November, 1976, the National Farmers’

Organization (NFO) having moved the Court for permission to

intervene in this proceeding and the Associated Milk Pro-

ducers, Inc. (AMP1) having opposed said motion; and it ap-

pearing that NFO should be permitted to intervene under Rule

24(a), Federal Rules of Civil Procedure, it is, therefore,

Orperep that NFO's motion to intervene be Granren.

Entered this the 4th day of November, 1976.

for the Western District of Missouri. The cases were desig-

nated JPML Docket No. 83, sometimes referred to by the

Government as the Midwest Milk Monopolization Litiga-

tion. On February 20, 1974, Chief Judge Spears transferred

the Government’s suit against AMPI to Chief Judge Oliver

to coordinate discovery with that in JPML Docket No, 83.

The Government’s suit was not consolidated with the pri-

vate actions, however.

In January of 1974 the plaintiffs (one of whom was The

National Farmers’ Organization, Inc.) in two of the private

suits moved pursuant to Fed.R.Civ.P. 37(b), which per-

tains to failure to comply with a discovery order, for sanc-

tions against AMPI for allegedly frustrating discovery by

refusing to produce material documents. The United States

chose not to file a similar Rule 37(b) motion, electing in-

stead to participate only in civil discovery relating to the

private plaintiffs’ motions, which are still pending before

Chief Judge Oliver. On August 13, 1974, the United States

and AMPI filed a proposed consent decree in the Govern-

ment’s suit. Chief Judge Oliver approved the decree on

April 30, 1975. See United States v. Associated Milk Pro-

ducers, Inc., W.D.Mo., 1975, 394 F.Supp. 9, aff’d, 8 Cir.,

534 F.2d 113, cert. denied sub nom., 429 U.S. 940, 97 S.Ct.

855, 50 L.Ed.2d 309 (1976). This settlement notwithstand-

ing, attorneys from the Antitrust Division of the United

States Department of Justice initiated the instant grand

jury investigation of AMPI on February 10, 1975 in the

United States District Court for the Western District of

Texas. Chief Judge Spears supervised the grand jury. The

Government directed its investigation to alleged obstruc-

tion of justice by AMPI in the discovery stages of the

various civil antitrust suits. The Government served AMPI

with a subpoena duces tecum, directing it to appear before

the grand jury and produce thirteen different categories of

documents. AMPI countered by filing motions to quash or

modify the subpoena and to stay the grand jury investiga-

tion, as well as motions for an evidentiary hearing and an

in camera inspection of documents purporting to grant

authority to the Antitrust Division attorneys to conduct

the grand jury investigation. Chief Judge Spears denied

the motions on February 19, 1975 and denied reconsidera-

tion of the motion to stay on May 6, 1975.

The grand jury was discharged on August 6, 1976. It did

not return an indictment. However, in a letter to the dis-

trict court, it recommended that the court retain custody

of the transcripts of the grand jury proceedings and those

personal records of individuals, such as tax returns and

calendars, received by the grand jury. It recommended

further that the business files and records of AMPI re-

ceived by the gand jury ‘‘be made available to other

courts pursuant to an appropriate Rule 6(e) motion.’”

The Government filed a statement indicating it had ‘‘no

objection to the entry of such order as the Court deems

appropriate to make the grand jury subpoenas, trans-

scripts and documents available to Chief Judge Oliver for

such use as he deems appropriate in connection with the

{private plaintiffs’) Rule 37 motions and the trial of the

JPML 83 cases.’’ Accordingly, the district court on August

25, 1976 ordered that the ‘‘grand jury subpoenas, tran-

scripts and documents ... be disclosed to the United States

District Court for the Western District of Missouri for

* Fed. R.Crim.P. 6(e) provides in relevant part:

Secrecy of Proceedings and Disclosure, Disclosure of mat-

ters occurring before the grand jury other than its delibera-

tions and the vote of any juror may be made to the attorneys

for the government for use in the performance of their duties.

Otherwise a juror, attorney, interpreter, stenographer, opera-

tor of a recording device, or any typist who transcribes re-

corded testimony may disclose matters occurring before the

grand jury only when so directed by the court preliminarily

to or in connection with a judicial proceeding or when per-

mitted by the court at the request of the defendant upon a

showing that grounds may exist for a motion to dismiag the

indictment because of matters occurring before the grand jury.

such use in pending proceedings as that Court deems ap-

propriate.’” AMPI moved the court to reconsider and it

did. On October 1, 1976, Chief Judge Spears modified his

order of August 25 and directed the clerk to send Chief

Judge Oliver only an inventory of the grand jury materials

for his in camera inspection and to forward to him any

materials for which he found a ‘‘compelling need.’’ The

district court stayed its order, however, pending this ap-

peal. Meanwhile, The National Farmers’ Organization,

Inec., one of the private plaintiffs in JPML Docket No. 83,

moved the district court to intervene as of right in this

controversy pursuant to Fed.R.Civ.P. 24(a)(2).*° The dis-

trict court granted its motion on November 4, 1976.

On appeal AMPI raises numerous objections to the dis-

trict court’s orders of February 19, May 6, October 1, and

November 11. AMPI contends that the district court erred

in issuing its first two orders because the Department of

Justice initiated the grand jury investigation in bad faith

‘for improper purposes’’ and because the Assistant Attor-

ney General in charge of the Antitrust Division was with-

out authority to appoint attorneys to conduct a grand jury

investigation relating to obstruction of justice allegations.

With respect to the third order, AMPI contends that Chief

Judge Spears committed numerous procedural and sub-

stantive errors of law in transferring an inventory of the

grand jury materials to Chief Judge Oliver.’ Finally,

* Rule 24(a)(2) provides: |

Intervention of Right. Upon timely application anyone sh.!

be permitted to intervene in an action: ... (2) when the ap-

plicant claims an interest relating to the property or trans-

action which is the subject of the action and he is so situated

that the disposition of the action may as a practical matter

impair or impede his ability to protect that interest, unless

the applicant’s interest is adequately represented by existing

parties.

* As relief from these three alleged erroneous orders, AMPI re-

quests that we rc mand the case to the district court with directions

AMPI contends that the fourth order was erroneous be-

cause The National Farmers’ Organization, ‘ne. is not a

proper candidate for intervention under Fed.R.Civ.P.24

(a) (2).

II. Tae Question or APPEALABILITY

We first consider whether AMPI’s appeal is properly

before this Court in light of the final judgment requirement

of 28 U.S.C. § 1291. Section 1291 provides:

The courts of appeals shall have jurisdiction of ap-

peals from all final decisions of the district courts of

the United States, the United States District Court

for the District of the Canal Zone, the District Court

of Guam, and the District Court of the Virgin Islands,

except where a direct review may be had in the Su-

preme Court.

The final judgment rule has been a part of federal ap-

pellate review since the First Judiciary Act, which limited

appellate review to ‘‘final judgments and decrees.’’ Act

of Sept. 24, 1789, §§ 21, 22, 25, 1 Stat. 73, 83-85. But for one

temporary exception,’ finality continued to be a prerequi-

site to appealability until Congress passed the Evarts Act

in 1891, which provided for review of interlocutory orders

‘‘granting or continuing’’ injunctions. Act of March 3,

to return AMPI’s subpoenaed documents and to expunge the other

grand jury materials. Alternatively, AMPI requests that we re-

mand with directions to hold an evidentiary hearing and an in

camera inspection to allow AMPI to show the Government’s alleged

misuse of the grand jury and the alleged absence of prosecutorial

authority by the Antitrust Division attorneys.

* In 1875 Congres gave the Supreme Court appellate jurisdiction

over orders of the federal circuit courts of appeals dismissing ac-

tions or remanding them to state courts for want of jurisdiction-ere——_

for jurisdiction improperly or collusively effected. Act of March 3,

1875, § 5, 18 Stat. 470, 472. Congress repealed this grant in 1887.

Act of March 3, 1887, § 6, 24 Stat. 552, 555.

1891, §7, 26 Stat. 826, 828. From that initial grant has

evolved 28 U.S.C. § 1292, presently the principal statutory

authority for appeals from interlocutory orders.’ None-

theless, the final judgment requirement continues in 28

U.S.C. $1291 as the dominant rule of federal appellate

practice. Justice Frankfurter articulated this fact in Cob-

bledick v. United States, 309 U.S. 323, 324-25, 60 S.Ct. 540,

541, 84 L.Ed. 783 (1940) :

Finality as a condition of review is an historic

characteristic of federal appellate procedure. It was

written into the first Judiciary Act and has been de-

parted from only when observance of it would prac-

tically defeat the right to any review at all. Since the

right to a judgment from more than one court is a

matter of grace and not a necessary ingredient of

justice, Congress from the very beginning has, by for-

bidding piecemeal disposition on appeal of what for

practical purposes is a single controversy, set itself

against enfeebling judicial administration. Thereby is

avoided the obstruction to just claims that would come

from permitting the harassment and cost of a succes-

sion of separate appeals from the various rulings to

which a litigation may give rise from its initiation to

entry of judgment. To be effective, judicial administra-

tion must not be leaden-footed. Its momentum would

be arrested by permitting separate review of the com-

ponent elements in a unified cause.

° To be appealable a district court order must be final or it must

fall into one of those specific classes of appealable interlocutory

orders provided for in 28 U.S.C. § 1292. The final judgment rule

is also subject to statutory exceptions that permit appeals as of

right from certain interlocutory orders. See, e. g., 11 U.S.C. § 47

(authorizing appeals in ‘‘proceedings in bankruptcy’’) ; 18 U.S.C.

§ 1404 and 3731 (authorizing interlocutory appeals by the Govern-

ment from pretrial orders suppressing evidence). Additionally, the

All Writs Statute, 28 U.S.C. § 1651, can serve as a vehicle for

obtaining review in appropriate cases of normally nonappealable

interlocutory orders.

10a

See, e. g., Di Bella v. United States, 369 U.S. 121, 126, 82

S.Ct. 654, 658, 7 L.Ed.2d 614 (1962); Diamond Shamrock

Ou & Gas Corp. v. Comm’r of Rev., 8 Cir., 1970, 422 F.2d

532, 534; J. Moore, B. Ward & J. Lucas, 9 Moore’s Federal

Practice {110.06 at 105-07 (1975); Redish, The Pragmatic

Approach to Appealability in the Federal Courts, 75 Colum.

L.Rev, 89 (1975); Note, The Finality and Appealability of

Interlocutory Orders—A Structural Reform Toward Re-

definition, 7 Suffolk U.L.Rev. 1037, 1039 (1973). See also

Baltimore Contractors, Inc. v, Bodinger, 348 U.S. 176,

180-82, 75 S.Ct. 249, 252-53, 99 L.Ed. 233 (1955).

Predictably, the determination of what constitutes a final

judgment has been no easy task. Justice Black once stated

that ‘‘final’’ in the context of appealability is an ‘‘abstruse

and infinitely uncertain term.’’ Will v. United States, 389

U.S. 90, 108, 88 S.Ct. 269, 280, 19 L.Ed.2d 305 (1967) (Black,

J., concurring). See McGourkey v. Toledo & Ohio Central

Railway Co., 146 U.S. 536, 544-45, 13 S.Ct. 170, 172, 36 L.Ed.

1079 (1892). Three Supreme Court decisions in particular,

however, provide a framework in which to contend with the

problem of defining ‘‘final judgment.’’

In Cobbledick v. United States, supra, the Court held that

a district court order denying motions to quash subpoenas

duces tecum directing three witnesses to appear before the

grand jury was not an appealable final judgment. The

Court established a stringent standard of finality, one that

seemingly encompassed an entire case including collateral

parties and issues. Regarding finality as ‘‘the means for

achieving a healthy legal system,’’ Justice Frankfurter,

writing for a unanimous Court, stated that ‘‘[n]either a

party nor a non-party witness will be allowed to take to the

upper court a ruling where the result of review will be ‘to

halt in the orderly progress of a cause and consider inci-

dentally a question which has happened to cross the path

of such litigation. ...’’’ 309 U.S. at 326, 60 S.Ct. at 541-42,

quoting Segurola v. United States, 275 U.S. 106, 112, 48

S.Ct. 77, 79, 72 L.Ed. 186 (1927).

lla

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541,

69 S.Ct. 1221, 93 L.Ed. 1528 (1949), created an exception

to the finality standard of Cobbledick. In Cohen the district

court refused to apply a state statute requiring the plain-

tiff in a stockholder’s derivative action to make a security

deposit as a condition of proceeding with the suit.’® The

Court found this to be an appealable final judgment. First,

however, Justice Jackson articulated the Court’s continued

support of the final judgment rule:

The effect of [28 U.S.C. § 1291] is to disallow appeal

from any decision which is tentative, informal or in-

complete. Appeal gives the upper court a power of

review, not one of intervention. So long as the matter

remains open, unfinished or inconclusive, there may

be no intrusion by appeal.

Nor does the statute permit appeals, even from

fully consummated decisions, where they are but steps

towards final judgment in which they will merge. The

purpose is to combine in one review all stages of the

proceeding that effectively may be reviewed and cor-

rected if and when final judgment results.

337 U.S. at 546, 69 S.Ct. at 1225. In this case the district

court order was held to be appealable because it fell

in that small class which finally determine claims of

right separable from, and collateral to, rights asserted

in the action, too important to be denied review and

too independent of the cause itself to require that

appellate consideration be deferred until the whole

case is adjudicated.

1° The purpose of the statute was to make a plaintiff liable for

all expenses and attorneys’ fees of the corporate defendants if the

plaintiff failed to make good his or her complaint and to entitle

the defendants to indemnity before the suit could go forward.

12a

337 U.S. at 546, 69 S.Ct. at 1225-26. Moreover, the district

court order presented ‘‘a serious and unsettled question,’’

337 U.S. at 547, 69 S.Ct. at 1226, which, if reviewed upon

final disposition of the merits of the case, would work a

serious hardship on the plaintiff:

When that time comes, it will be too late effectively to

review the present order and the rights conferred by

the statute, if it is applicable, will have been lost,

probably irreparably.

337 U.S. at 546, 69 S.Ct. at 1225. Finally, as if concerned

that its deceptively simple finality test might become a

mere talisman, the Court emphasized that, as in Cohen,

section 1291 is to be given a ‘‘practical rather than a tech-

nical construction.’’ 337 U.S. at 546, 69 S.Ct. at 1226, citing

Cobbledick v. United States, supra, 309 U.S. at 328, 60

S.Ct. at 542, United States v. River Rouge Improve-

ment Co., 269 U.S. 411, 414, 46 S.Ct. 144, 145, 70 L.Ed. 339

(1926), Bank of Columbia v. Sweeney, 26 U.S. (1 Pet.)

567, 569, 7 L.Ed. 265 (1828).

This ‘‘practical’’ approach to finality was the touchstone

of the Court’s most recent definitive statement on the final

judgment rule. In Gillespie v. United States Steel Corp.,

379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), the Court

carved out another exception to the rule in holding to be

final a district court order providing that the Jones Act

supplied the exclusive remedy in plaintiff’s wrongful death

action. Justice Black stated:

[A] decision ‘‘final’’ within the meaning of § 1291 does

not necessarily mean the last order possible to be made

in a case.... And our cases long have recognized that

whether a ruling is ‘‘final’’ within the. meaning of

§1291 is frequently so close a question that decision

of that issue either way can be supported with equally

forceful arguments, and that it is impossible to devise

13a

a formula to resolve all marginal cases coming within

what might well be called the ‘‘twilight zone’’ of fi-

nality. Because of this difficulty this Court has held

that the requirement of finality is to be given a ‘‘prac-

tical rather than a technical construction.’’

379 U.S. at 152, 85 S.Ct. at 311, citing Cohen v. Beneficial

Industrial Loan Corp., supra, 337 U.S. at 545, 546, 69 S.Ct.

at 1225, 1226. The Court emphasized further that ‘‘in de-

ciding the question of finality the most important compet-

ing considerations are ‘the inconvenience and costs of

piecemeal review on the one hand the the danger of denying

justice by delay on the other.’’’ 379 U.S. at 152-53, 85

S.Ct. at 311, quoting Dickinson v. Petroleum Conversion

Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299

(1950). In this marginal case of finality, the scales tipped in

favor of review and against the usual result of nonappeal-

ability only because the questions presented were ‘‘ ‘fun-

damental to the further conduct of the case.’ ’’ 379 U.S. at

153, 85 S.Ct. at 311, quoting United States v. General Motors

Corp., 323 U.S. 373, 377, 65 S.Ct. 357, 359, 89 L.Ed. 311

(1945).

Using the framework provided by Cobbledick, Cohen,

and Gillespie as our benchmark, we find that the district

court orders of February 19, May 6, and October 1 are not

final within the meaning of 28 U.S.C. § 1291. Accordingly,

the appeal of these orders must be dismissed. This is, to be

sure, one of those cases falling within ‘‘the ‘twilight zone’

of finality.’’ However, the decisions of the Supreme Court

and the lower courts’ applications of those decisions indi-

cate to us that the final judgment rule is still to be con-

strued narrowly. Like most rules, it is subject to exceptions,

as Cohen and Gillespie demonstrate. The flexibility pro-

vided by these exceptions is a necessary ingredient of just

decisions. See, e.g., Litton Systems, Inc. v. Southwestern

Bell Telephone Co., 5 Cir., 1976, 539 F.2d 418, 425-26. But

l4a

if the rule is not to be emasculated, its exceptions must be

carefully drawn and sparingly applied.

The district court’s orders of February 19 and May 6

denying AMPI’s motions to quash or modify the grand

jury subpoena and to stay the grand jury investigation

pending an evidentiary hearing and an in camera inspec-

tion, though ‘‘fully consummated decisions,”’ are ‘‘but steps

toward final judgment.’’ The orders address questions which

still remain ‘‘open, unfinished [and] inconclusive.’’ Cohen v.

Beneficial Industrial Loan Corp., supra, 337 U.S. at 546, 69

S.Ct. at 1225. The issues raised by AMPI, which are inex-

tricably linked to the pending private treble damage anti-

trust actions known as JPML Docket No. 83, have not

yet been finally resolved by the district courts involved in

this matter. It is true, of course, that Chief Judge Spears

has ruled with respect to AMPI’s contentions. But Chief

Judge Oliver has not. Should disclosure of the grand jury

materials be authorized in the JPML Docket No. 83 pre-

trial proceedings, AMPI will have yet another opportunity

to raise its contentions before Chief Judge Oliver. With

such an effective mode of review still available to AMPI,

and therefore such a significant distance in the road toward

final judgment yet untravelled, this Court is reluctant to

intervene now, particularly in light of the importance of

AMPI’s contentions in litigation pending in another more

interested circuit. Cf. Kerotest Manufacturing Co. v. C-O-

Two Fire Equipment Co., 342 U.S. 180, 72 S.Ct. 219, 96

L.Ed. 200 (1952).

Additionally, in arguing that we should hear its appeal,

AMPT has not demonstrated that later review will prejudice

any of its rights, irreparably or otherwise. See Barfield v.

Weinberger, 5 Cir., 1973, 485 F.2d 696; 21 Turtle Creek

Square, Ltd. v. New York State Teachers’ Retirement Sys-

tem, 5 Cir., 1968, 404 F.2d 31, 33. See generally United

States v. Wood, 5 Cir., 1961, 295 F.2d 772, 777-78, cert. de-

nied, 369 U.S. 850, 82 S.Ct. 933, 8 L.Ed.2d 9 (1962). Unlike

15a

the plaintiff in Cohen, it has failed to show satisfactorily

that its appeal falls within ‘‘that small class which finally

determine claims of right separable from, and collateral to,

rights asserted in the action, too important to be denied

review and too independent of the cause itself to require

appellate consideration be deferred until the whole case is

adjudicated.’’ Cohen v. Beneficial Industrial Loan Corp.,

supra, 337 U.S. at 546, 69 S.Ct. at 1225-26. See, e. g., Blackie

v. Barrack, 9 Cir., 1975, 524 F.2d 891, 895-900, cert. denied,

429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976) ; Barfield v.

Weinberger, supra; Weight Watchers of Philadelphia, Inc.

v. Weight Watchers International, Inc., 2 Cir., 1972, 455

F.2d 770; 21 Turtle Creek Square, Ltd. v. New York State

Teachers’ Retirement System, supra. See generally Eisen

v. Carlisle & Jacquelin, 417 U.S. 156, 169-72, 94 S.Ct. 2140,

2148-50, 40 L.Ed.2d 732 (1974); Litton Systems, Inc. v.

Southwestern Bell Telephone Co., supra, 539 F.2d at 425-

27; Diaz v. Southern Drilling Corp., 5 Cir., 427 F.2d 1118,

1122-23, cert. denied sub nom., 400 U.S. 878, 91 S.Ct. 118, 27

L.Ed.2d 115 (1970). Similarly, unlike the plaintiff in Gilles-

pie, AMPI has failed to demonstrate that the questions

presented by its appeal of these orders, even from a ‘‘prac-

tical’? perspective, are ‘‘ ‘fundamental to the further con-

duct of the case,’ ’’ or, even from the same pragmatic per-

spective, that ‘‘the danger of denying justice by delay”’ in

this case outweighs ‘‘the inconvenience and costs of piece-

meal review.’’ Gillespie v. United States Steel Corp., supra,

379 U.S. at 152-53, 85 S.Ct. at 311. See, e. g., Kohn v. Royall,

Koegel & Wells, 2 Cir., 1974, 496 F.2d 1094; New England

Power Co. v. Asiatic Petroleum Corp., 1 Cir., 1972, 456 F.2d

183; Clark v. Kraftco Corp., 2 Cir., 1971, 447 F.2d 933. See

generally Hines v. D’ Artois, 5 Cir., 1976, 531 F.2d 726, 730 ;

Jetco Electronics Industries, Inc. v. Gardiner, 5 Cir., 1973,

473 F.2d 1228, 1231; Fox v. City of West Palm Beach, 5

Cir., 1967, 383 F.2d 189, 193-94.

The order of October 1 is not appealable at this time for

many of the same reasons. In the October 1 order, Chief

l6a

Judge Spears, pursuant to Fed.R.Civ.P. 6(e), directed that

the clerk of court send an inventory of the grand jury ma-

terials to Chief Judge Oliver for his in camera inspection.

Then,

[iJn the event the transferee judge [Chief Judge

_ Oliver] finds at any time that there is a compelling need

for all or any part of the said grand jury subpoenas,

transcripts and documents, and certifies that the trans-

fer thereof is warranted, the Clerk shall forthwith

transfer the requested material to the transferee judge.

Chief Judge Spears was careful to indicate in his order

that he was not passing on the question of disclosure of the

grand jury materials:

Nothing set forth in this order, or stated in open

court on this date, should be construed as any finding

by this Court with respect to the relevancy or material-

ity of, or the need for, the said grand jury materials,

it being the intention of this Court that all such mat-

ters shall be solely addressed to, and determined by,

the transferee judge.

It is thus apparent that the district court order of October

1 was no more than a decision to permit Chief Judge Oliver

to decide whether the materials should be disclosed in

JPML Docket No. 83. This is precisely the type of ‘‘tenta-

tive, informal [and] incomplete’’ interlocutory decision

that Congress in passing section 1291 intended to preclude

from immediate review. Cohen v. Beneficial Industrial Loan

Corp., supra, 337 U.S. at 546, 69 S.Ct. at 1225. See Eisen v.

Carlisle & Jacquelin, supra, 417 U.S. at 171, 94 S.Ct. at

2149. It is not now apparent whether any, all, or none of

the grand jury materials at issue in this case will be dis-

closed in JPML Docket No. 83. No one has yet been ag-

grieved and no one will become aggrieved until Chief J udge

17a

Oliver acts. Until then there is no appealable final order.”

Additionally, as in the case of its appeal from the Febru-

ary 19 and May 6 orders, AMPI has failed to demonstrate

satisfactorily how its position comes within the ambit of

Cohen and Gillespie. See the cases cited on page 2024

supra. Accordingly, review is not proper at this time.

Finally, we reach the question of whether the order of

November 4, which granted the motion of The National

Farmers’ Organization, Inc. to intervene as of right pur-

suant to Fed.R.Civ.P. 24(a)(2), is appealable. It is well

settled that ‘‘{a]n order allowing intervention is interloc-

utory and may not be appealed immediately.’’ In re Estelle,

5 Cir., 1975, 516 F.2d 480, 484, cert. denied, 426 U.S. 925, 96

S.Ct. 2637, 44 L.Ed.2d 380 (1976). We therefore cannot en-

tertain the appeal of this order.

Accordingly, AMPI’s appeal of the district court orders

of February 19, May 6, Ocotber 1, and November 4 is dis-

missed.

DIsMISSED.

11 AMPI relies on recently decided State of Illinois v. Sarbaugh,

7 Cir., 1977, 552 F.2d 768, as support for its position that the Oc-

tober 1 order is appealable. Sarbaugh is remarkably similar to this

case on its facts and issues with one critical exception. The order

held appealable by the Seventh Cireuit in that case was an order

‘holding that the requisite particularized showing of compelling

necessity had not been made.’’ 552 F.2d at 771. In this case Chief

Judge Oliver has not yet even had the opportunity to reach the

question of compelling need. For the same reason, In re Biaggt, 2

Cir., 1973, 478 F.2d 489, Gibson v. United States, 1968, 131 US.

App.D.C. 148, 403 F.2d 166, and United States v. Byoir, 5 Cir.,

1945, 147 F.2d 336, are also inapposite to this case.

18a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

(Caption Omitted in Printing)

Before Arnswortu, Simpson and Morean, Circuit Judges.

Judgment

This cause came on to be heard on the transcript of the

record from the United States District Court for the West-

ern District of Texas, and was argued by counsel;

On Consiperation Wueneor, It is now here ordered and

adjudged by this Court that the appeal in the above styled

and numbered cause be, and the same is hereby, dismissed;

It is further ordered that appellant pay to appellees, the

costs on appeal to be taxed by the Clerk cf this Court.

February 6, 1978

IssuzeD as MANDATE:

19a

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

March 3, 1978

EDWARD W. WADSWORTH

CLERK

To Au Parties Listep BELow:

No. 76-4094—In re: 1975-2 Grand Jury Investigation of

Associate Milk Producers, Inc.

Associatep MiLK Propucers, Inc.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing,* and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition( ) for rehearing

en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for is-

suance and stay of the mandate.

Very truly yours,

Epwarp W. Wapswokrtsa, Clerk

/s/ By Brenva M. Havucx

Deputy Clerk

*on behalf of appellant, Associated Milk Producers, Inc.,

bmh

20a

APPENDIX 2

Orders of the United States District Court for the

Western District of Texas

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Criminal Action No. SA75CR32

In re: Fesruary 1975 Granp Jury INVESTIGATION

Order

(Filed February 19, 1975)

The Court having received three motions by Associated

Milk Producers, Inc. (‘‘AMPI’’), in connection with a

grand jury subpoena served upon it on February 10, 1975,

in the above proceeding, namely:

1. Motion to Modify Subpoena;

2. Application for In Camera Inspection; and

3. Motion to Stay Grand Jury Proceedings; and the

Court being fully advised in the premises,

Ir Is Heresy Orperep that:

1. The motions by AMPI are denied;

2. The subpoena is Ordered enforced and AMPI is di-

rected to make its return thereto forthwith; and

3. Government and AMPI counsel are directed to confer

forthwith to accomplish AMPI’s return expeditiously

with a minimum of inconvenience to movant AMPI.

OrpekeD this 19th day of February 1975, at San Antonio,

Texas.

/8/ Appian A. Spears

United States District Judge

2la

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

(Caption Omitted in Printing)

Order

(Filed May 6, 1975)

On this the 6th day of May, 1975, the Court having fully

considered movant Associated Milk Producers, Inc.’s mo-

tion for reconsideration of its motion to stay grand jury

proceedings, and having received memoranda and heard

argument from both movant and the United Staes,

Ir Is Heresy Orperep Tat:

The motion for reconsideration of AMPI’s motion to

stay grand jury proceedings be Denrep, and the special at-

torneys for the Government be permitted to appear and

conduct further grand jury proceedings in this cause.

Entered this the 6th day of May, 1975, at San Antonio,

Texas.

/s/ Appian A. Spears

Adrian A. Spears

United States District Judge

22a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

(Caption Omitted in Printing)

Order Modifying Order of August 25, 1976

(filed October 1, 1976)

On this the lst day of October, 1976, Associated Milk

Producers, Inc. (AMPI) having moved that the Court

reconsider its order to transfer the grand jury subpoenas,

transcripts, and documents in the above captioned matter;

and the Court having received motions and memoranda,

and heard arguments on this date, not only from movant,

but also from ‘(he National Farmers’ Organization (NFO)

and the United States; and it appearing that no party

to this action has shown a compelling need for disclosure

of all or any particular portion of said grand jury ma-

terials; and it further appearing that said materials are

exceedingly voluminous, filing no less than 55 large file

boxes and one metal filing cabinet; and it further appear-

ing that the indiscriminate transfer of all of said materials

to the Western District of Missouri would be impractical,

burdensome and premature, especially in view of the fail-

ure of any party to demonstrate a particularized or com-

pelling need for disclosure; it is, therefore,

OrpereD that this Court’s August 25, 1976 Order be

modified in the following respects:

(1) The Clerk of this Court is directed to promptly

send to Judge John W. Oliver, as transferee judge, an

inventory of the grand jury subpoenas, transcripts, and

documents for his in camera inspection.

(2) In the event the transferee judge finds at any time

that there is a compelling need for all or any part of the

said grand jury subpoenas, transcripts and documents,

23a

and certifies that the transfer thereof is warranted, the

Clerk shall forthwith transfer the requested material to

the transferee judge.

(3) Nothing set forth in this order, or stated in open

court on this date, should be construed as any finding

by this Court with respect to the relevancy or materiality

of, or the need for, the said grand jury materials; it being

the intention of this Court that all such matters shall be

solely addressed to, and determined by, the transferee

judge.

(4) The Court shall reserve decision on NFO’s motion

to intervene until AMPI has been afforded a period of

ten (10) days from this date to respond thereto, and NFO

has been allowed five (5) days thereafter in which to repty

to said response.

(5) All provisions of this Court’s order of February

21, 1975, except as they may be in conflict with this order,

shall remain in full force and effect, subject to further

orders of this Court.

Entered this the 1st day of October, 1976, at San An-

tonio, Texas.

/s/ Aprian A, SPEARS

Adrian A. Spears

United States District Judge

24a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

(Caption Omitted in Printing)

Order

(filed November 4, 1976)

On this the 4th day of November, 1976, the National

Farmers’ Organization (NFO) having moved the Court

for permission to intervene in this proceeding and the

Associated Milk Producers, Inc. (AMPI) having opposed

said motion; and it appearing that NFO should be per-

mitted to intervene under Rule 24(a), Federal Rules of

Civil Procedure, it is, therefore,

25a

APPENDIX 3

Excerpis from the District Court Record

Grand Jury Recommendations for Disposition of

Transcripts, Files and Records (RI. 1)

UNITED STATES DEPARTMENT OF JUSTICE

Unitep States ATTORNEY

WESTERN DISTRICT OF TEXAS

655 E. DURANGO BLVD.

HEMISFAIR PLAZA

SAN ANTONIO, TExas 78206

OrpEerED that NFO’s motion to intervene be GraNnTED.

Entered this the 4th day of November, 1976.

/s/ Aprian A, Spears

Adrian A. Spears

United States District Judge

August 6, 1976

Honorable Adrian A. Spears

Chief Judge

United States District Court

Western District of Texas

San Antonio, Texas

Re: Transcripts, Files and Records of

Associated Milk Producers, Inc.

Investigation Before the 75-2 Grand Jury

Dear Judge Spears:

Recommendations of the 75-2 Grand Jury to you regard-

ing the above-referenced investigation are:

1. That the transcripts developed by this Grand Jury

in this investigation be retained in the custody of

the Court,

2. That the personal records of individuals, such as

IRS tax returns and calendars, received by the

Grand Jury in this investigation be retained in the

custody of the Court.

26a

3. That the business files and records of Associated

Milk Producers, Ine. received by the Grand Jury be

made available to other courts pursuant to an ap- -—————— |

propriate Rule 6(e) motion.

Respectfully submitted,

/3/ Cuartes E, KimMe.yi

Charles E. Kimmel]

Foreman, 75-2 Grand Jury

27a

Order of Chief Judge Spears Partially Granting

Grand Jury's Request (RI. 2)

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

In RE THE 75-2 Granp JuRY

Order

(Filed August 6, 1975)

The Court having considered the request of the Grand

Jury, filed by letter on August 6, 1976,

It is hereby Orperep that the Clerk of the Court retain

custody of all files and records obtained in the subject in-

vestigation consistent with Requests Number 1 and 2 of

the Grand Jury’s letter dated August 6, 1976, a copy of

which is attached hereto and made a part of this Order.

Entered this 6th day of August, 1976.

/s/ Aprian A, Spears

Adrian A. Spears

United States District Judge

28a

Government's Statement Initiating Transfer Proceeding (RI. 4-7)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

(Caption Omitted in Printing)

The Government's Statement with Respect to the

Recommendations of the 75-2 Grand Jury That Grand Jury

Transcripts and Documenis Be Made Available to Other Courts

(Filed August 25, 1976)

The United States by its attorneys, John C. Danielson,

Richard A. Ringhofer, Diane C. Lotko-Baker, Jeffrey D.

Lewin, and John L. Gale states as follows:

1. On or about February 1, 1972 the United States of

America filed a civil antitrust complaint in this Court

entitled United States v. Associated Milk Producers, Inc.,

which was docketed by the Clerk of this Court as SA 72

CA 49.

2. During 1972, there were pending in the District

Courts of the United States sixteen or more civil antitrust

cases against AMPI in which discovery had begun or was

to begin under the Federal Rules of Civil Procedure.

3. Pursuant to orders of Judge D. W. Suttle, dated March

21, 1972, May 31, 1972, June 30, 1972, and July 25, 1972,

discovery in United States v. Associated Milk Producers,

Inc. was begun. Discovery was subsequently coordinated

with certain antitrust cases then pending elsewhere in

United States courts in the United States District Court

for the Western District of Missouri under the Judicial

Panel on Multidistrict Litigation in its docket JPML 83

entitled ‘‘Midwest Milk Monopolization Litigation’? and

was assigned to Judge John W. Oliver.

29a

4. On or about July 20, 1972 Judges Suttle and Oliver

ordered all the plaintiffs in the coordinated discovery to

exchange documents and information with each other in

the preparation of these cases for trial.

5. On or about January 25, 1974 some of the plaintiffs

in the private suits filed motions for sanctious under Fed.

R. Civ.P. 37 for AMPI’s asserted failure to comply with

discovery orders and failure to produce documents ma-

terial to the JPML 83 cases. Those motions and cases are

still pending, but the United States is not party to them.

6. On or about April 30, i975 the Government’s case

was settled by consent decree and on or about May 19,

1976 the Kighth Cireuit Court of Appeals denied appeals

by some of the plaintiffs in the private cases opposing the

settlement of the Government case.

7. On or about February 11, 1975 the United States

commenced a grand jury investigation in the Western

District of Texas of possible violations of 18 U.S.C. § 1503

and of other federal criminal statutes in connection with

the activities and conduct of Associated Milk Producers,

Ine,, and its employees, officers, agents and attorneys

during discovery in the JPML 83 cases. The grand jury

investigation consisted of the taking of testimony and the

subpoenaing of documents.

8. On or about August 6, 1976 the grand jury was dis-

charged and no indictment was returned. At that time

Charles E. Kimmell, Foreman 75-2 grand jury, submitted

the following recommendations to Chief Judge Adrian A.

Spears:

Recommendations of the 75-2 Grand Jury to you regard-

ing the above-referenced investigation are:

1. That the transcripts developed by this Grand Jury

in this investigation be retained in the custody of the

Court.

30a

2. That the personal records of individuals, such as

IRS tax returns and calendars, received by the

Grand Jury in this investigation be retained in the

custody of the Court.

3. That the business files and records of Associated

Milk Producers, Inc. received by the Grand Jury be

made available to other courts pursuant to an ap-

propriate Rule 6(e) motion.

9. On or about August 6, 1976 Chief Judge Adrian A.

Spears ordered that the Clerk of the Court retain custody

of all files and records consistent with 75-2 Grand Jury

Request Number 1 and 2.

10. The grand jury transcripts are now located in the

United States Attorney’s office in San Antonio, and the

documents are impounded in the custody of this Court’s

clerk in San Antonio. —

11, Some documents in the Clerk’s custody and the

transcript of testimony taken by the grand jury may be

material to the JPML 83 cases presently proceeding to

trial in the United States District Court for the Western

District of Missouri.

In view of the foregoing facts the United States, by its

attorneys, states to the Court that the United States has

no objection to the entry of such order as the Court deems

appropriate to make the grand jury subpoenas, transcripts

and documents available to Chief Judge Oliver for such

use as he deems appropriate in connection with the afore-

said Rule 37 motions and the trial of the JPML 83 cases.

3la

Respectfully submitted,

/s/ Joun C. DANIELSON /s/ Diane C. LorKo-Baker

John C. Danielson Diane C. Lotko-Baker

/8s/ Jerrrey D, Lewin /s/ Ricuarp A. RiIncHoFER

Jeffrey D. Lewin Richard A. Ringhofer

/s/ Joun L. GaLe

John L. Gale

Attorneys, Department of Justice

Room 2634, Everett M. Dirksen Bldg.

Chicago, Illinois 60604

(312) 353-7528

32a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

(Caption Omitted in Printing)

Addendum to the Government's Statement with Respect to the

Recommendations of the 75-2 Grand Jury That Grand Jury

Transcripts and Documents Be Made Available to Other Courts

(Filed August 25, 1976)

The United States Attorney hereby amends paragraph

10 of The Government’s Statement with Respect to the

Recommendations of the 75-2 Grand Jury that Grand

Jury Transcripts and Documents be made Available to

Other Courts.

Paragraph 10 should be amended to read as follows:

10. The Grand Jury transcripts and documents are im-

pounded in the custody of this Court’s clerk in San

Antonio.

Respectfully submitted,

Joun E. Ciark

United States Attorney

By /s/ Joun M. Pinckney III

John M. Pinckney IIT

Assistant U.S. Attorney

33a

Chief Judge Spears’ Comments During October 1, 1976 Hearing

(RI. 154-156)

Tue Court: But carrying that to its logical conclu-

sion and assuming, as we must, that Judge Oliver knew

there was an on-going grand jury investigation here in

San Antonio, didn’t we get the cart before the horse?

Shouldn’t we have waited for Judge Oliver, who knew the

facts and circumstances about the grand jury investiga-

tion, to request it either through the United States At-

torney there or through the Department of Justice, rather

than dump 54 boxes of materials on him and expect him

to know what it is when he has had no specific request—

and we will get into this a little later—but in examining

the pleadings and the briefs, I have seen no indication

that there is anything in those files that would be material

or relevant. I have seen nothing that would indicate that

it couldn’t have been, if it hasn’t already been, disclosed

otherwise through the discovery procedures, nor have I

seen anything showing a particularized or compelling

need for any particular document or any particular tran-

script. There is no indication that I have been able to find

in the record that any witness testified contrary to what

he testified to before the grand jury—it seems to me that

those things that Judge Oliver should in the first instance

have determined and then through an appropriate process

call upon this Court, if he wanted, if he felt that the docu-

ments should be impounded, requesting that they be im-

pounded and then indicating that as the litigation there

progressed he would call upon the Court from time to

time by certification to supply documents to him. Again,

we are talking about something that, while it is relevant

to this proceeding, it really doesn’t get down to the basic

proposition as I stated it to Mr. Klein originally, and that

is, what I should do about it now.

34a

Here are 54 boxes of papers and they are rather volumi-

nous. I think one time I got a glimpse of them in the

Clerk’s room where they were set aside when AMPI

brought them all in. I haven’t seen them yet myself but

I just know what the Clerk has said about them and what

good, what purpose possibly could be served now by send-

ing all that material to him? Why couldn’t the same pur-

pose be served by keeping the records here in San An-

tonio and perhaps supplying Judge Oliver with an in-

ventory of what is here and a list of the transcripts that

are here and then, if as and when somebody shows a

particularized or compelling need for that document or

that transcript or that subpoena, then a certification could

be made and we could send him whatever is needed rather

than sending the whole bundle.

35a

Materials Relating to the Transfer of the Grand Jury Inventory

to the Western District of Missouri (RI. 245-56)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Civil Action No. SA-76-CA-249

In RE 1975-2 Granp Jury INVESTIGATION OF

AssoctaTeD Mitk Propucers, Inc.

AMPI's Motion to Determine Compliance with the Court’s Order

of October 1, 1976 and for Appropriate Relief

Movant, Associated Milk Producers, Inc. (AMPI), by

and through its attorneys, respectfully moves this Court

to inquire and/or conduct an evidentiary hearing to deter-

mine whether the Order issued on October 1, 1976 is being

properly implemented, The reasons for this motion are

fully set forth in the attached Supporting Memorandum.

AMPI requests this Court to order appropriate relief,

including return of the purported inventory, as more

fully set forth in the Supporting Memorandum.

Respectfully submitted,

/s/ Stoney Harris

Sidney Harris

/s/ Frep Kiem

Fred Klein

Arent, Fox, Kintner, Pirotxin & Kann

1815 H Street, N.W.

Washington, D.C. 20006

(202) 857-6000

/s/ Craic L. Austin

Craig L. Austin

711 Navarro, Suite 727

San Antonio, Texas 78205

(512) 222-2331

Attorneys for Associated

Milk Producers, Inc.

Dated: November 29, 1976

36a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

(Caption Omitted in Printing)

Memorandum in Support of AMPI’s Motion to Determine

Compliance with the Court’s Order of October 1, 1976 and for

Appropriate Relief

(Filed December 1, 1976)

FactuaL BackGRouND

On October 1, 1976, this Court ordered that: ‘‘The

Clerk of this Court is directed to promptly send to Judge

John W. Oliver, as transferee judge, an inventory of the

grand jury subpoenas, transcripts, and documents for his

in camera inspection.’’ It has come to the attention of

counsel for AMPI that the above-quoted provision of this

Court’s October 1, 1976 Order may have been improperly

complied with. For the reasons stated below, this Court

should recall from Judge Oliver, the transferee judge,

the alleged inventory which the Clerk of this Court has

stated was sent to him on or about October 6, 1976, to

inquire, or conduct an evidentiary hearing to determine

whether said document is in compliance with paragraph 1

of this Court’s October 1, 1976 Order and expunge any

non-complying matter.* Furthermore, in view of the fact

that counsel for AMPI, during the October 1, 1976 oral

argument which led to the issuance of the Court’s Order

of October 1, 1976, requested a stay of any order provid-

ing for transfer of documents, and in view of the fact

that the United States Court of Appeals on November

22, 1976, issued a stay of this Court’s Order of October 1,

1976, pending AMPI’s appeal, this Court should not re-

transmit said document to Judge Oliver, but should hold it

pending the outcome of AMPI’s appeal.

* United States v. Briggs, 514 F.2d 794, 806-807 (5th Cir. 1975).

37a

During a recent pretrial conference before Judge John

W. Oliver on November 15 and 16, 1976, in the case of

Alexander et al. v. NFO v. AMPI, the court afforded

AMPI counsel a brief look at that portion of the alleged

document inventory sent to Judge Oliver by the Clerk of

this Court which purports to list the documents that

AMPI produced before the grand jury, as well as the

opportunity to examine other items on the subject in the

court’s file. The alleged document inventory apparently

had not been sent to Judge Oliver with any indication

that it was to be held in camera.* Moreover, the list con-

tained many asterisks on certain of the documents with

an explanation that the asterisked documents have been

previously produced in JPML No. 83. In addition, it ap-

peared that the list contained han¢written editorial com-

ments concerning certain documents. (Exhibit A)

The Court’s file also contained correspondence between

Judge Oliver and Mrs. Munford, the Clerk of this Court,

relating to the transmission of information pursuant to

paragraph 1 of the Court’s October 1, 1976 Order which

does not appear in the docket of this case. It appeared

from the brief examination of this correspondence that

the so called inventory had been prepared by Mr. Daniel-

son, the former special attorney in charge of the now

terminated grand jury investigation of AMPI in this

district, rather than by the Clerk of this Court. Also it

appeared in a letter from Mrs. Munford to Judge Oliver

that Mr. Danielson was in the process of preparing a

summary of each of the documents on the inventory and

that such summary would be transmitted to Judge Oliver

as soon as it was received by Mrs. Munford. Jd.

* AMPI counsel informed Judge Oliver’s law clerk that pursuant

to the terms of this Court’s Order, the alleged inventory was sup-

posed to be held in camera and according to AMPI counsel’s in-

formation, this list was then placed in an in camera status.

38a

The placing of asterisks next to certain documents and

indicating that said documents have previously been pro-

duced in JPML No. 83 together with certain handwritten

comments apparently relating to the status or location of

documents during discovery in the private antitrust cases

is most unusual. The source of such information could not

be the Clerk of this Court who has no knowledge of the

subject matter of these documents. It most certainly would

have to be the former special attorney, Mr. Danielson, or

a member of his staff, who were involved in the grand

jury investigation. The Court did not provide that Mr.

Danielson or his staff were to participate in any way in

the preparation of the inventory to be sent to Judge

Oliver* and it would further seem to be the most gross

violation of the Court’s Order for editorial comments

about any or all of the documents to be included in such

an inventory. The impression given to Judge Oliver would

naturally be that those documents which were not accom-

panied by an asterisk were not produced in discovery in

the antitrust cases before him, when they should have

been.**

* This Court did not even permit Mr. Danielson to segregate the

grand jury materials when he specifically requested permission to

do so. Trans. 10/1/76 Hearing, at 56-58.

** It appears to AMPI counsel, after only the most brief look at

the so-called inventory, that certain documents which were in fact

produced in JPML No. 83 were not accompanied by an asterisk on

the inventory listing. Mr. Danielson was only involved in the anti-

trust case of United States v. AMPI at the tail end of the litiga-

tion, and he was unfamiliar with the discovery which had gone on

earlier; nor was he familiar with the discovery in the private anti-

trust cases in JPML No. 83 which preceded discovery in United

States v. AMPI. This is even more applicable to Mr. Danielson’s

staff, most of whom were not involved to any extent in the anti-

trust cases. Therefore, apart from the impropriety of the purported

inventory, its accuracy is highly questionable.

39a

A similar tactic was used with AMPI counsel. Mr,

Danielson sent to AMPI counsel a document purporting

to be that portion of the inventory related to the docu-

ments which AMPI had produced to the grand jury. This

also contained certain handwritten asterisks appearing to

designate those documents which were produced by AMPI

in JPML No. 83. (See Exhibit B) Mr. Danielson’s letter

gives the impression that attached to it was the ‘‘inven-

tory’’ which was called for by paragraph 1 of this Court’s

Order of October 1, 1976. In fact, the purported ‘‘inven-

tory’’ listed no documents, but merely contained a list of

box numbers. (See Exhibit B, p. 2) The effect was to lull

AMPI counsel into the false impression that the ‘‘inven-

tory’’ attached to the October 6, 1976 letter was in fact

the inventory that was being sent to Judge Oliver, when

in fact this was not the case.

Further, in his October 6, 1976 letter, Mr. Danielson

stated that he had added an asterisk only on AMPI’s list

to ‘‘those documents which have previously been pro-

duced by AMPI in JPML No. 83.’’* In the October 18th

letter, AMPI counsel complained that the natural impres-

sion of Mr. Danielson’s comments concerning the asterisks

would be to lead counsel for plaintiffs in the private anti-

trust cases to believe that certain documents which should

have been produced by AMPI during discovery in the

antitrust case were not produced, and indeed a copy of

Mr. Danielson’s October 6, 1976 letter (without enclo-

sures) was sent to Mr. Green, counsel for NFO.** Pre-

* Upon receipt of this letter, AMPI counsel returned the aster-

isked list to Mr. Danielson with its letter of October 18, 1976, a

copy of which was previously sent to this Court.

** One searches the October Ist Order in vain for any justifica-

tion for sending a copy of this letter to Mr. Green. Indeed, NFO

had not even been made a party to this action when Mr. Danielson’s

letter was sent.

40a

dictably, counsel for several plaintiffs in the JPML No.

83 antitrust cases have drawn the same conclusion from

Mr. Danielson’s letter and have requested from AMPI

counsel the documents produced to the grand jury, but

not produced during discovery in the antitrust cases.

(See, e.g., Exhibits C and D)

After receipt of his October 6, 1976 letter, counsel for

AMPI phoned Mr. Danielson for an explanation. Mr.

Danielson stated that the asterisked documents only meant

that, to his knowledge, such documents in fact hac been

produced during discovery in JPML No. 83, and that the

lack of an asterisk on a document did not necessarily

mean that the document had not been or should have been

produced therein.

A person must be responsible for the natural implica-

tions of his statements. The failure of Mr. Danielson to

fully explain the meaning of his asterisks to counsel for

parties adverse to AMPI, to this Court, or to Judge

Oliver, when the fa:iure to fully explain leads to an im-

plication very injurious to AMPI, is inexcusable. This is

particularly true when such comments are made by a

person who occupies so responsible and sensitive a posi-

tion, who has just concluded a grand jury investigation

directed at AMPI relating to alleged obstruction of jus-

tice, and who must comply with the strict admonitions

placed upon such special counsel by his oath of office. It is

well-established that grand jury secrecy can be breached

indirectly by disclosure of some facts, as well as directly

through disclosure of the actual documents, See United

States v. Hughes, 429 F.2d 1293 (10th Cir. 1970); Appli-

cation of State of California, 195 F.Supp. 37, 40 (E.D.Pa.

1961); United States v. Stein, 18 F.R.D. 17, 19 (S.D.N.Y.

4la

1955).* A determination should be made by this Court as

to the reasons for and consequences of such conduct.

AMPI requested a stay of any order issued by this

Court on October 1, 1976. Trans. 10/1/76 Hearing, at 16.

Subsequently, on October 7, 1976, AMPI filed a notice of

appeal and an application for a stay pending appeal from

paragraph one of the October Ist order only to learn that

the inventory had already been transferred the previous

day. Yet, after denying AMPI’s application for stay pend-

ing appeal, this Court did grant an interim stay of ten

days to enable AMPI to seek appellate review of the stay

application. In the interest of justice and to preserve the

jurisdiction of the United States Court of Appeals for the

Fifth Cireuit to award complete relief to AMPI on its

appeal, it would have been more appropriate to grant a

ten-day stay on October 1st to prevent the clerk from

immediately transferring the inventory, thus providing

AMPI with an effective opportunity to obtain an appellate

court determination of its stay application. On November

22, 1976 the Fifth Circuit granted AMPI’s motion for a

stay pending appeal, Therefore, to fully effectuate the

intent of the Fifth Circuit in granting the stay, this Court

should seek return of the inventory transferred to Judge

Oliver which may have been prematurely supplied and hold

it in camera pending the outcome of the appeal.*

*On August 27, 1976 Mr. Danielson sent a letter to Judge

Oliver notifying him of this Court’s August 6, 1976 transfer order

wherein he stated that this Court ‘‘determined that these matters

may be material to proceedings pending before your Court.’’ ( Ex-

hibit E) At the October Ist hearing it was noted that such action

may have resulted in a breach of grand jury secrecy. Trans.

10/1/76 Hearing, at 31-32.

* As the attached affidavit (Exhibit A) shows, the asterisks and

editorial comments were handwritten, whereas the inventory list

was typed. It is not known whether this Court has in its possession

a copy of the precise ‘‘inventory’’ document which is now in the

possession of Judge Oliver. In any event, this Court should re-

42a

The National Farmers’ Organization (NFO) should not

participate in any evidentiary hearing to determine

whether there has been compliance with paragraph one of

this Court’s order. The purpose of allowing NFO to inter-

vene was to enable it to protect whatever interest it may

have in the grand jury material by argument amicus

curiae, and by participating in appellate proceedings.” It

was certainly not the intent of this Court to grant NFO

access to the material, particularly after finding that no

showing had been made which demonstrated a need for

it. Trans. 10/1/76 Hearing, at 25. If NFO was to obtain

access to these documents it was to be through Judge

Oliver’s court. The evidentiary hearing will necessarily

involve examination of the inventory transmitted to Judge

Oliver which was ordered to be conducted on an im camera

basis. If NFO is allowed to participate in this hearing,

the grant of intervention may result in a breach of grand

jury secrecy and thereby subvert the proceedings and

moot AMPI’s appeal.

Conditions and limitations on intervention under F.R.

Civ. P. 24(a) have been imposed when necessary to pre-

serve the integrity of the main proceeding. As the Advisory

Committee Note to the 1966 Amendment to Rule 24(a)

states: ‘‘An intervention of right under the amended rule

may be subject to appropriate conditions or restrictions

responsive among other things to requirements of efficient

conduct of the proceedings.’’ 39 F.R.D. 109, 111. See also

quest Judge Oliver to return the ‘‘inventory’’ document to it, in

aid of its inquiry or evidentiary hearing to determine whether

paragraph 1 of the Order of October 1, 1976 has been properly

carried out. In a recent pretrial conference in the private anti-

trust cases in the Western District of Missouri, Judge Oliver indi-

cated that as a matter of ‘‘comity’’ he would act in accordance

with the request of the Western District of Texas. (Exhibit A)

* AMPI has appealed from this Court’s order allowing NFO to

intervene.

43a

McDonald v. E. J. Lavino Co., 430 F.2d 1065, 1073 n.7

(Sth Cir. 1970). Cf. Pepsico v. FTC, 472 F.2d 179 (2d Cir.

1972), cert. denied, 414 U.S. 876 (1973) ; Smuck v. Hobson,

408 F.2d 175, 180 (D.C. Cir. 1969); Shapiro, ‘‘Some

Thoughts on Intervention Before Courts, Agencies, and

Arbitrators,’’ 81 Harv. L. Rev. 721, 752-756 (1968). Since

the proceedings will be undermined if NFO gains access

to the material ordered to be held in camera, NFO should

not participate in the evidentiary hearing. If, however,

NFO does participate in such hearing, procedures should

be utilized which will preserve the secrecy of the grand

jury material.

If the Court finds that its order has been violated it

should take all necessary and appropriate relief to protect

and promote the integrity of its mandates. See, e.g., In re

Dellinger, 502 F.2d 813 (7th Cir. 1974); In re Niblack,

476 F.2d (D.C. Cir.), cert. denied, 414 U.S. 909 (1973);

United States v. Greyhound Corp., 363 F.Supp. 525 (N.D.

Ill. 1973), supplemented, 370 F.Supp. 881 (N.D. Ill), aff’d,

508 F.2d 529 (7th Cir. 1974).

Rewvier REQUESTED

(1) This Court should inquire into the manner in which

paragraph one of the October 1, 1976 Order has been im-

plemented to determine if that Order has been violated,

and, if necessary, conduct an evidentiary hearing on such

issue in which the National Farmers’ Organization should

not be permitted to participate.

(2) In aid of the inquiry or hearing, this Court should

request that Judge Oliver return what purports to be the

inventory which he has received from the Clerk of this

Court, and this Court should expunge any comments,

asterisks or any other editorialization,

(3) This Court should not return the expunged inven-

tory to Judge Oliver but should hold it in camera pending

the outcome of AMPI’s appeal.

dda

(4) This Court should examine any correspondence be-

tween the Clerk of this Court and Judge Oliver to deter-

mine whether it is relevant to the issue of compliance with

the order in question, or to AMPI’s appeal in this case.

If it is, it should be filed as of record in this case unless

such filing would result in a breach of grand jury secrecy,

in which ease it should be held in camera.

(5) This Court should take any further action which it

feels is appropriate to insure continued compliance with

the October 1, 1976 Order and to protect the integrity of

its future mandates.

Respectfully submitted,

/s/ Swney Harris

Sidney Harris

/s/ Frep KLEIn

Fred Klein

ARENT, Fox, Kintner, PLotxin & Kann

1815 H Street, N.W.

Washington, D.C. 20006

(202) 857-6000

/s/ Craic L. Austin

Craig L, Austin

711 Navarro, Suite 727

San Antonio, Texas 78205

(512) 222-2331

Datep: November 29, 1976

45a

Exuisit A

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

(Caption Omitted in Printing)

Affidavit of Sidney Harris, Esq.

After being deposed and duly sworn, affiant hereby

states as follows:

1, Affiant is an attorney with the firm of Arent, Fox,

Kintner, Plotkin & Kahn in Washington, D.C. and is the

lead attorney of record for Associated Milk Producers,

Inc. (AMPI) in the proceeding styled Alexander et al. v.

The National Farmers’ Organization, Inc., CA No. 19191-1.

2, During the week of November 15, 1976, affiant par-

ticipated actively in pretrial proceedings in Alexander et

al. v. The National Farmers’ Organization, Inc., conducted

by Judge Oliver in the Western District of Missouri.

3. During the course of these pretrial proceedings,

Judge Oliver’s clerk afforded affiant a brief opportunity

to inspect that portion of the inventory sent to Judge

Oliver by the Clerk of this Court which purports to list

documents produced by AMPI to the above described

grand jury, as well as correspondence between Mrs. Mun-

ford, Deputy Clerk of the Western District of Texas and

Judge Oliver.

4. One letter from Mrs. Munford apparently states that

the inventory list had been prepared by Mr. John C.

Danielson. The docket file also indicated that Mr. Daniel-

son was currently preparing a summary of individual

grand jury documents based on their subject matter for

submission to Mrs. Munford, and that she would then

immediately send it to Judge Oliver.

46a

5. The alleged inventory of documents included hand-

written asterisks next to certain document descriptions,

and there appeared also to be handwritten editorial com-

ments next to or under certain documents.

6. These materials were not in an in camera file but

rather existed on the public record, available for anyone

to inspect. Affiant notified Judge Oliver’s law clerk, Mr.

Paul Beck, of the in camera status of the inventory, and

apparently Mr, Beck then placed the inventory in an in

camera status.

7. During the course of this pretrial proceeding Judge

Oliver stated on the record that as a matter of ‘‘comity’’

he would act in conformance with the orders of the West-

ern District of Texas and the United States Court of

Appea!s for the Fifth Circuit in this matter.

Further affiant saith not.

/s/ Stwney Harris

Sidney Harris

(Subscription Omitted in Printing)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.