Petition — DiLapi v. Irving
Supreme Court brief1979
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09-5161
IN THE
eae
Supreme Court, U. &
FILED
9T9
t
Supreme Court of the United sees Ce
OCTOBER TERM, 1979
No. 79-
Antony D1 Lari, Ropert Rao, Sipney LieBerMan,
BengAMIN LapMER, STEPHEN Kinaston, Davin
BereGner and Interstate Dress Carriers, Inc.,
Petitioners,
—against—
Joun S. Irvine, General Counsel,
National Labor Relations Board,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Martin Lonpon
Ronatp W. MEIsTER
345 Park Avenue
New York, New York 10022
(212) 644-8000
Attorneys for Petitioners
Of Counsel
Davw Dunn
Pav, Weiss, Rirxinp, WHarton & Garrison
TABLE OF CONTENTS
TEE DAS Se RE AS
a re re ee eee
eC Fae sks PEN CR KE Eas On Oe hens e
eo ee a Gh us ee anata
ee eres re ee re
(1)
(2)
(3)
May the judicial branch of government employ
its contempt power, sua sponte, to overturn an
executive branch decision that the government’s
interest in confidentiality of evidence outweighs
its interest in prosecuting a criminal case? ....
Should this Court’s decision in Jencks v. United
States, 353 U.S. 657, 672 (1957), that “a criminal
action must be dismissed when the Government,
on the ground of privilege, elects not to comply
with an order to produce”, be overruled? ......
Where a trial court in a criminal case finds that
documents in the government’s possession re-
late directly to issues at the heart of the indict-
ment, and are material to adequate preparation
of the defense, and therefore orders those docu-
ments disclosed to defendants; and an appellate
court finds the trial court did not abuse its dis-
cretion; may the appellate court, consistent with
defendants’ Sixth Amendment rights to confron-
tation and to the effective assistance of counsel,
prohibit defense counsel from showing the docu-
ments to, or discussing them .with, defendants?
li
PAGE
Constitutional Provisions Involved ............... 4
en Gir “WN a or Oe ae 4
Reasons for Granting the Writ ................... 7
I. The Indictment Must Be Dismissed for the Gov-
ernment’s Suppression of Material Evidence ... 7
II. Prohibiting Disclosure to Defendants Violates
Their Sixth Amendment Rights to Confrontation
and to the Effective Assistance of Counsel .... i)
A. The Court of Appeals Improperly Substi-
tuted Its Discretion for That of the Trial
tS RIT STyS MRGe.2d oe OBER gE DP OI SDMA cots ge 9
B. Right to Confrontation .............0c000. 10
C. Effective Assistance of Counsel ........... 11
EEE Ra aR ley Men, RT Fant Ee 13
PON Fg ards ee Ee ee here Ue la
APPENDIX B rN SBS Led a sehen nh on atin! Mag TO) 22a
NI He shiva bio hore aa her EES ae REE aia 32a
ili
TABLE OF AUTHORITIES
Cases
PAGE
Escobedo v. Illinois, 378 U.S. 478 (1964) .......... 12
Faretta v. California, 422 U.S. 806 (1975) ......... 12
Geders v. United States, 425 U.S. 80 (1976) ....... 12
Harvey Aluminum v. NLRB, 335 F.2d 749 (9th Cir.
TOUR. hk ties hater RE ee Ss eee Hy)
Jencks v. United States, 353 U.S. 657 (1957) ...... 2,3, 4,7
Nirby v. United States, 174 U.S. 47 (1899) ......... 10
Mattox v. United States, 156 U.S. 237 (1895) ...... 10
McMann vy. Richardson, 397 U.S. 759 (1970) ...... 12
Roviaro v. United States, 353 U.S. 53 (1957) ...... 7,8
United States v. Andolschek, 142 F.2d 503 (2d Cir.
pt ne eer apne LENORE Sere ME ES or ok RMS Tee 2,8
United States v. Beekman, 155 F.2d 580 (2d Cir.
i) aI Permartnr yeep mage, ome Herr tape ct iye 8
United States v. Benfield, 593 F.2d 815 (8th Cir.
ck, SRA ey Ar alesse SU LIU peat ee Ay oy geo Ramp 2,10, 11
United States v. Bryant, 439 F.2d 642 (D.C. Cir.
TORE See ieee eee eRe ks vate eee ein )
United States v. Caldwell, 543 F.2d 1333 (D.C. Cir.
1974), cert. denied, 423 U.S. 1087 (1976) ......... 9
United States v. Coplon, 185 F.2d 629 (2d Cir. 1950) 7
United States v. Grayson, 166 F.2d 863 (2d Cir. 1948) 7-8
United States v. Nizon, 418 U.S. 683 (1974) ........ 9-10
iv
PAGE
United States v. Plattner, 330 F.2d 271 (2d Cir. 1964) 12
United States v. Reynolds, 345 U.S. 1 (1953) ........ 8
United States v. Wade, 388 U.S. 218 (1967) ........ 12
Other Authority
Rule 16, Federal Rules of Criminal Procedure ...... )
IN THE
Supreme Court of the United States
October Term, 1979
No. 79-
Antuony D1 Lap, Rosert Rao, Sipney LirperMan,
BrenJAMIN LapMER, STEPHEN Kincston, Davip
Beroner and Interstate Dress Carrigrs, INc.,
Petitioners,
—against—
Joun S. Irvine, General Counsel,
National Labor Relations Board,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Preliminary Statement
This case raises urgent questions about the separation of
powers; about a defendant’s Sixth Amendment rights to
confrontation and to the effective assistance of counsel; and
about the existence of a new governmental privilege. The
decision of the court below sanctions actions by the judicial
branch of government to review and overrule executive
branch decisions to forego prosecution in favor of maintain-
ing confidentiality of documents. Moreover, the court below
created a new privilege, and called into question the con-
tinuing validity of this Court’s landmark decision in Jencks
v. United States. Finally, the decision conflicts directly with
a decision of another court of appeals.
This case centers on the government’s refusal to provide
defendants with evidence material to their defense in a
criminal ease. The United States District Court for the
Kastern District of New York directed the National Labor
Relations Board (“NLRB”) to produce that evidence in
response to two subpoenas. The NLRB, claiming the docu-
ments sought were privileged, refused a direct court order
to produce, whereupon defendants moved to dismiss the
indictment. In an effort to sustain the indictment and
compel the government to proceed with the prosecution,
the District Court sua sponte held the NLRB’s General
Counsel in criminal and civil contempt of court.
The United States Court of Appeals for the Second
Circuit agreed that the subpoenaed evidence was material
to the defense, and held the District Court did not abuse
its discretion in requiring production. Nevertheless, the
Court of Appeals, ignoring this Court’s decision in Jencks
v. United States, 353 U.S. 657 (1957), and its own unbroken
line of authority since United States v. Andolschek, 142
F.2d 503 (2d Cir. 1944) (L. Hand, J.), declined even to
address the question of dismissal. Instead, it created a
new governmental privilege for the documents—documents
the District Court had found to lie “at the heart of
the instant indictment”—and forbad their disclosure to
the defendants themselves. That restriction deprives de-
fendants of their Sixth Amendment rights to confrontation
and effective assistance of counsel, and conflicts squarely
with the recent decision of the United States Court of
Appeals for the Eighth Cireuit in United States v. Benfield,
593 F.2d 815 (Sth Cir. 1979).
Defendants petition this Court to apply its ruling in
Jencks that “a criminal action must be dismissed when the
Government, on the ground of privilege, elects not to comply
with an order to produce.” 353 U.S. at 672. We also ask
this Court to declare that the Court of Appeals’ refusal to
permit defendants to confront the evidence and witnesses
against them violates the Sixth Amendment.
Opinions Below
The opinion of the Court of Appeals*® is not yet officially
reported. It has been reported at 85 Lab. Cas. [CCH]
7 11,221 and 101 L.R.R.M. [BNA] 2093 (1979), and is an-
nexed as Appendix A to this petition. The opinion of the
United States District Court for the Eastern District of
New York** is not officially reported, but is reported at 100
L.R.R.M. [BNA] 2601 (1979). It is annexed as Appendix B
to this petition.
Juviniliction
The Court of Appeals entered judgment on April 12, 1979.
On June 12, on defendants’ application, it stayed its man-
date to permit filing of this petition. The jurisdiction of this
Court is invoked pursuant to 28 U.S.C. ¢ 1254(1).
Questions Presented
1. May the judicial branch of government employ
its contempt power, sua sponte, to overturn an execu-
tive branch decision that the government’s interest in
confidentiality of evidence outweighs its interest in
prosecuting a criminal case? |
* Per Henry F. Werker, U.S.D.J., sitting by designation.
** Per Henry Bramwell, U.S.D.J.
2. Should this Court’s decision in Jencks v. United
States, 353 U.S. 657, 672 (1957), that “a criminal action
must be dismissed when the Government, on the ground
of privilege, elects not to comply with an order to
produce”, be overruled?
3. Where a trial court in a criminal case finds that
documents in the government’s possession relate di-
rectly to issues at the heart of the indictment, and are
material to adequate preparation of the defense, and
therefore orders those documents disclosed to defen-
dants; and an appellate court finds the trial court did
not abuse its discretion, may the appellate court, con-
sistent with defendants’ Sixth Amendment rights to
confrontation and the effective assistance of counsel,
prohibit defense counsel from showing the documents
to, or discussing them with, defendants?
Constitutional Provisions Involved
This case involves the Fifth and Sixth Amendments to
the Constitution of the United States. The text of those
amendments is annexed as Appendix C to this petition.
Statement of the Case
Defendants were indicted on September 6, 1978, in the
United States District Court for the Eastern District of
New York, on charges of conspiring and endeavoring to
obstruct a proceeding before the NLRB.
From October to December, 1978, petitioner Interstate
Dress Carriers, Inc. (“IDC”) filed three separate discovery
motions and (at the District Court’s direction) made several
informal requests of the government for specific materials
relating to the NLRB proceeding. The government met each
request with evasion or silence.
On December 22, after IDC’s third discovery motion, the
District Court directed the prosecutor to inquire specifically
of the NLRB and one of his own witnesses whether they had
the documents demanded and, if they did, to make them
available to IDC.
On December 27, the prosecutor wrote to the Court and
admitted that “both Mr. Eason [his witness] and the NLRB
have the records.” However, the government refused to
obey the Court’s order that the records be produced. In-
stead, for the first time, three months after IDC’s first
discovery motion, the government claimed the records were
privileged.
IDC then obtained and served on two NLRB officials trial
subpoenas duces tecum seeking the same and related ma-
terials. Those subpoenas were returnable on the first day
of trial, January 3, 1979. On that day, the government moved
to quash the two subpoenas served on the NLRB officials.
On January 8, the District Court found that the materials
sought by IDC “relate directly” to the NLRB proceeding
“which lies at the heart of the instant indictment”, and that
they “are material to adequate preparation of IDC’s de-
fense.” The court ordered those documents produced to
defendants immediately and without restriction.
The government attempted to appeal the disclosure order
that same day. The following morning the United States
Court of Appeals for the Second Circuit dismissed the
appeal and denied mandamus in an opinion holding: “Judge
Bramwell did not abuse his discretion in finding that the
materials sought here may be important in the preparation
of the defense.”*
* The Court of Appeals’ order, though not its opinion, is reported
at 595 F.2d 1209 (2d Cir. 1979).
The district court attempted to resume the trial that same
afternoon. Nevertheless, the government announced its re-
fusal to comply with the production order. Defendants
thereupon moved to dismiss the indictment.
On January 11, John S. Irving, General Counsel to the
NLRB, appeared in the District Court and took possession
of some of the subpoenaed material. The District Court
issued a direct order that he produce the documents. He
refused. The court, on its own motion, thereupon held him
in contempt. As a result, the trial has been suspended since
January 12.°
The NLRB again appealed. On April 12, the Court of
Appeals issued its decision, affirming in part and modifying
in part the decision of the District Court.
The Court of Appeals upheld the District Court’s order
requiring production of the subpoenaed documents, holding :
“(T]he District Court did not abuse its discretion
in finding ‘that the documents subpoenaed bear on
the transaction underlying the instant indictment and
are material to preparation of IDC’s defense... .’”
(Slip op. at 2174-75).
Nevertheless, the court placed extraordinary limits on the
disclosure of the subpoenaed documents. It prohibited de-
fense counsel from showing the subpoenaed materials to
their clients or revealing their contents to them.** The
Court of Appeals failed to address defendants’ contention
* The following day, the prosecutor revealed that a portion of the
subpoenaed materials had, in fact, been in his possession since before
the indictment. Even then, he did not make that material available,
and he has not done so to this day.
** In view of its modifications of the disclosure order, the Court of
Appeals affirmed the civil contempt sanctions against the NLRB’s
general counsel, but vacated the criminal contempt sanction.
that the appropriate remedy for the government’s failure to
produce material evidence was dismissal of the indictment,
not sanctions compelling disclosure.
Reasons for Granting the Writ
I
The Indictment Must Be Dismissed for the Govern-
ment’s Suppression of Material Evidence.
The determination of whether to continue a prosecution,
or preserve the secrecy of material sought by the defense,
is for the government to make, and not for the courts to
review. This Court clearly enunciated that rule in Jencks
v. United States, 353 U.S. 657, 672 (1957), saying:
“We hold that a criminal action must be dismissed
when the Government, on the ground of privilege,
elects not to comply with an order to produce, for the
accused’s inspection and for admission in evidence,
relevant statements or reports in its possession of
government witnesses touching the subject matter
of their testimony at the trial. Accord, Roviaro vy.
United States, 353 U.S. 53, 60-61. The burden is the
Government’s, not to be shifted to the trial judge, to
decide whether the public prejudice of allowing the
crime to go unpunished is greater than that attendant
upon the possible disclosure of state secrets and
other confidential information in the Government's
possession.”
The courts have repeatedly held that criminal trials may
not proceed when the governnient refuses to produce evi-
dence in its possession that is material to the defense. Sec
United States v. Coplon, 185 F.2d 629, 638 (2d Cir. 1950)
(L. Hand, J.); United States vy. Grayson, 166 F.2d 863, 870
(2d Cir. 1948) (L. Hand, J.); United States v. Beekman,
155 F.2d 580 (2d Cir. 1946) (Frank, J.); United States v.
Andolschek, 142 F.2d 503 (2d Cir. 1944). See also, Roviaro
v. United States, 353 U.S. 53 (1957).
The District Court and Court of Appeals agreed that the
documents defendants seek lie “at the heart of the instant
indictment” and are material to adequate preparation of
a defense. IDC persistently sought this material from its
very first discovery motion until after the opening of trial
‘three months later.
The constitutional requirement in these circumstances is
unambiguous: when the government refuses to produce
material evidence, the criminal charge must be dismissed.
This Court summarized the rule in its decision in United
States v. Reynolds, 345 U.S. 1, 12 (1953):
“The rationale of the criminal cases is that, since the
Government which prosecutes an accused also has a
duty to see that justice is done, it is unconscionable
to allow it to undertake prosecution and then invoke
its governmental privileges to deprive the accused
of anything which might be material to his defense.”
The line of authority for this proposition dates from the
decision of Judge Learned Hand in United States v. An-
dolschek, 142 F.2d 503 (2d Cir. 1944). That case, like this
one, was “a criminal prosecution, founded upon those very
dealings to which the documents [sought by defendants]
relate.” 142 F.2d at 506. Judge Hand wrote for the court
the words that have since become the classic statement of
the rule:
“The government must choose; either it must leave
the transactions in the obseurity from which a trial
will draw them, or it must expose them fully.” 7d.
9
Once the trial court here found the documents improperly
withheld by the government were material to [DC’s defense,
the appropriate remedy was dismissal of the indictment.*
Prohibiting Disclosure to Defendants Violates Their
Sixth Amendment Rights to Confrontation and to the
Effective Assistance of Counsel.
A. The Court of Appeals Improperly Substituted
Its Discretion for That of the Trial Court
The Court of Appeals affirmed IDC’s right to demand
production of documents that “bear on the transaction
underlying the instant indictment and are material to ade-
quate preparation of IDC’s defense.” (Slip op. at 2174-75).
It further recognized that “the trial court’s decision is not
to be disturbed on appeal unless it can be shown that it
acted arbitrarily and abused its discretion or that its finding
was without support in the record.” (Slip op. at 2174). It
then specifically held the District Court did not abuse its
discretion in requiring full disclosure.
Nevertheless, the Court of Appeals substituted its dis-
cretion for that of the trial court, and severely restricted
the order entered by the trial court after careful considera-
tion of the alternatives. This substitution of judgment
violates the Court of Appeals’ own citation of United States
* The Court of Appeals’ failure to consider IDC’s prolonged efforts
to obtain the subpoenaed material caused it to gloss over the propriety
of sanctions directed not only at the NLRB, but at the prosecution as
well. The duty of disclosure under Rule 16 of the Federal Rules of
Criminal Procedure ‘affects not only the prosecutor, but the Govern-
ment as a whole, including its investigative agencies.” United States
v. Bryant, 439 F.2d 642, 650 (D.C. Cir. 1971). United States v.
Caldwell, 543 F.2d 1333, 1352 n. 91 (D.C. Cir. 1974), cert. denied,
423 U.S. 1087 (1976). Accord, Harvey Aluminum v. NLRB, 335
F.2d 749, 754 (9th Cir. 1964).
10
v. Nixon, 418 U.S. 683, 702 (1974), which emphasized the
“great deference . . . to be accorded the District Court’s
decision as to the scope of a subpoena or disclosure order.”
(Shp op. at 2178 n. 9). Further, the Court of Appeals
restricted disclosure despite holding that “the considera-
tions supporting disclosure in the case at bar are even
stronger than those in Nizon....” (Slip op. at 2178). The
record in this case amply demonstrates that the trial court,
over a period of four days, carefully considered and then
rejected alternatives to full disclosure—including the one
ultimately chosen by the Court of Appeals.
Further, in substituting its discretion for that of the
trial court, the Court of Appeals gave undue weight to the
NLRB’s “generalized interest in confidentiality”, United
States v. Nixon, 418 U.S. at 713. The court’s construction
of a new governmental “privilege” flies in the face of this
Court’s caution in Nixon that “the very integrity of the
judicial system and publie confidence in the system depend
on full disclosure of all the facts.” 418 U.S. at 709.
B. Right to Confrontation
The Sixth Amendment right to confront witnesses has
long meant “seeing the witness face to face.” Mattox v.
United States, 156 U.S. 237, 244 (1895). Kirby v. United
States, 174 U.S. 47 (1899).
The Second Circuit’s decision rejecting defendants’ right
personally to examine this evidence, conflicts directly with
au recent decision of the United States Court of Appeals
for the Kighth Circuit that reemphasized a defendant’s right
to face-to-face confrontation. In United States v. Benfield,
593 F.2d 815 (8th Cir. 1979), the Eighth Circuit held:
“(T]he confrontation clause contemplates the active
participation of the accused at all stages of the trial,
including the face-to-face meeting with the witness at
trial or, at the minimum, in a deposition allowing the
LL
accused to face the witness, assist his counsel, and
participate in the questioning through his counsel.”
593 F.2d at 821,
In Benfield, the defendant in a kidnapping case was ex-
cluded from a deposition of the complaining witness, be-
cause the witness feared intimidation. Although the de-
fendant was permitted to view the examination on a tele-
vision monitor, and to halt questioning and summon his
counsel at any time, the Court of Appeals found a violation
of his right to confrontation. Confrontation, it held, means
more than confrontation by counsel alone:
“Most believe that in some undefined but real way
recollection, veracity, and communication are influ-
enced by face-to-face challenge. This feature is a
part of the sixth amendment right additional to the
right of cold, logical cross-examination by one’s
counsel.” 593 F.2d at 821.
Here the violation of defendants’ rights goes even further.
‘The Court of Appeals recognized defendants’ right to ex-
amine witnesses concerning the subpoenaed documents. But
it not only forbad defendants to attend the interviews of
those witnesses against them, it even prohibited defendants’
knowing their identities. Moreover, the witnesses will know
their statements will go unchallenged by the only one able
to challenge them—their employer, IDC. Defendants will
thus be deprived of the vital test of confrontation on “recol-
lection, veracity and communication.” The defendants them-
selves must be permitted access to this prosecution evidence,
which the District Court found, and the Court of Appeals
affirmed, lies at the }.-art of this indictment.
C. Effective Assistance of Counsel
In addition to denying the defendants their constitutional
right to confront the evidence against them, the Court of
Appeals’ restrictions on disclosure of material evidence
seriously impairs defendants’ ability to use that evidence
effectively. It therefore deprives them of an opportunity
to participate in their own defense and renders counsel
incapable of providing effective assistance.
This Court has recognized that the right to the assistance
of counsel was not intended to limit in any way a defendant’s
right to conduct or participate in his own defense. Faretta
v. California, 422 U.S. 806, 816 (1975); see also, United
States v. Plattner, 330 F.2d 271, 274 (2d Cir, 1964). And,
since “the right to counsel is the right to the effective as-
sistance of counsel”, McMann yv. Richardson, 397 U.S, 759,
771 un. 14 (1970), that right includes the right to consult with
counsel at all important stages of the defense. See, e.g.,
Geders v. United States, 425 U.S. 80 (1976); United States
v. Wade, 388 U.S. 218 (1967); Bscobedo vy. Illinois, 378 U.S.
478 (1964).
The Court of Appeals recognized defendants’ legitimate
interest in examining the genuineness and validity of the
documents subpoenaed by IDC. (Slip op, at 2174). Simul-
taneously, however, the court prohibited the defendants
from participating in the use of that evidence,
Defendants are entitled to effective examination of the
evidence against them. They must be permitted to call upon
what they know about that evidence—not just what their
counsel know. The vindication of defendants’ right to the
effective assistance of counsel requires that they be per-
mitted to utilize all information available in preparing their
defenses.
13
Conclusion
The petition for a writ of certiorari should be granted to
determine the permissible extent of judicial interference in
executive decisions affecting prosecution; the continued
vitality of Jencks; the existence of a new governmental
privilege; and the extent to which defendants in criminal
cases may be denied the right to confront the witnesses and
evidence against them.
Respectfully submitted,
Martin LONDON
Ronatp W. MeisTeR
345 Park Avenue
- New York, New York 10022
(212) 644-8000
Attorneys for Interstate Dress
Carriers, Inc. and, for purposes
of this petition, all other
petitioners
Of Counsel
Devin Dunn
Paut, Weiss, Rirkinp, Wuarron & Garrison
July 11, 1979
APPENDIX A
UNITED STATES COURT OF APPEALS
Kor THE Seconp Cincurr
Nos. 740-741, August Term, 1978.
(Argued February 7, 1979 Decided April 12, 1979.)
Docket Nos, 79-1017, 1018
4
¥
In re Joun S. Irvine, General Counsel, National Labor
Relations Board, a Witness Under Subpoena to Produce
Documents,
Appellant,
Unirep States or America,
Plaintiff,
—against—
Antuony DiLari, Roperr Rao, Stoney Linserman, Ben-
JAMIN LAapMER, Sterpnen Kinaston, Daviy Benanen, and
Interstate Dress Carriers, Ine.,
Defendants-A ppellees.
Before:
Mansrieip and Timpens, Circuit Judges, and
Werkenr, District Judge.*
&
¥
Henny F. Werker, District Judge:
John S. Irving, General Counsel of the National Labor
Relations Board, appeals from two orders of the United
* Honorable Henry F. Werker, District Judge of the Southern Dis-
trict of New York, sitting by designation.
2a
Appendix A
States District Court for the Eastern District of New York
(Bramwell, J.), entered on January 12, 1979, adjudicating
Irving to be in contempt of court. The first order imposes a
$10,000 fine. The second fines Irving an additional $1,000
per day until he complies with the court’s order. A stay
pending appeal was granted.
The events leading up to these orders of contempt are
as follows. On April 5, 1978, Loeal 20408, United Ware-
house, Industrial and Affiliate Trades Employees Union,
filed a representation petition with the Newark Regional -
Office of the NLRB (the “Board”) seeking recognition as
collective bargaining agent for certain employees of G.S.
Supply Associates, Inc. and G.S. Temporary Service, Ine.
employed at a terminal of Interstate Dress Carriers, Ine.
(“IDC”) in Jersey City, New Jersey. This petition was
later amended to include additional IDC employees at
terminals in Jersey City and New York.
On September 6, 1978, a criminal indictment was re-
turned in the Eastern District of New York charging nine
defendants, ineluding IDC and Local 102, International
Ladies Garment Workers Union, with conspiracy and ob-
struction of an administrative proceeding in violation of
18 U.S.C. §§ 2, 3871 and 1505, Ineluded in the charges were
alleged efforts to bribe and induce Matthew Eason, presi-
dent of Local 20408, into withdrawing his petition, threats
of physical harm and economic injury against Eason, and
threats of loss of employment against the employees of
IDC, G.S. Supply and G.S. Temporary Service. After a
series of efforts by Local 102 and IDC to obtain production
of certain “authorization cards” (i.e., membership appli-
cations executed by employees as a showing of interest in
* having Local 20408 represent them), IDC, on December
29, 1978, served two subpoenas on Board personnel direct-
3a
Appendia A
ing them to produce at the criminal trial on January 3,
1979 all “authorization cards or applications for member-
ship in Loeal 20408” and “other writings” concerning a
“showing of interest” by employees in Loeal 20408. On
January 3, the Board and the prosecution moved to quash
on the ground that the ecards were privileged.
The district court, on January 8, 1979, denied the motion
to quash and ordered the Board to turn the cards over to
the defendants. The Board appealed to this court, which,
on January 9, 1979, entered an order dismissing the appeal
and denying the Board’s application for mandamus. United
States v. DiLapi, No. 79-1003 (Jan. 9, 1979). John Irving,
General Counsel of the Board and custodian of the cards,
nonetheless refused to disclose, and IDC moved for dismis-
sal of the indictment. This motion remains pending in the
district court. Irving was held in contempt by Judge Bram-
well on January 12, 1979 by two orders, one imposing a
flat fine of $10,000, and the second imposing fines of $1,000
per day until he complies. Both orders are now stayed
pending the Board’s instant appeal from the orders of con-
tempt. Both Local 102 and the United States Attorney
for the Eastern District of New York have filed amicus
briefs. The record indicates that if the contempt orders
are upheld here, the Board will relinquish the ecards.
1. Appellate Jurisdiction
We are met at the threshold with IDC’s argument that
neither of the two contempt orders issued below are “final”
orders within the meaning of 28 U.S.C. § 1291, and there-
fore neither are within this court’s appellate jurisdiction.
Invoking the well-established rule that orders of civil con-
tempt against parties to pending proceedings are not ap-
pealable, see Fox v. Capital Co., 299 U.S. 105, 107 (1936) ;
da
Appendiz A
International Business Machines Corp. v. United States,
493 F.2d 112, 117-19 (2d Cir. 1973), cert. denied, 416 U.S.
995 (1974); 15 C. Wright & A. Miller, Federal Practice &
Procedure § 3917 (1976), IDC argues first that both the
orders below were orders of civil contempt, and second
that the General Counsel to the Board, as part of the gov-
ernment, is “party” to the criminal proceedings below.'
With respect to the first order of contempt, imposing a
flat fine of $10,000, we conclude that it is an order of erimi-
nal contempt and therefore immediately appealable as a
final order. See Union Tool Co. v. Wilson, 259 U.S. 107,
111 (1922); International Business Machines Corp. v.
United States, 493 F.2d at 114. The chief characteristic
of civil contempt is that its purpose is to compel obedience
to an order of the court to enforce the rights of the other
party to the action. Nye v. United States, 313 U.S. 33, 42
(1941); McCrone v. United States, 307 U.S. 61, 64 (1939);
International Business Machines Corp. v. United States,
493 F.2d at 115. Consistent with this remedial purpose, the
sanction imposed is generally made contingent on compli-
' IDC also argues that, even assuming one of the contempt orders
is criminal, neither is final because its motion to dismiss the indictment
is still pending before the district court, which therefore has not yet
finished imposing “sanctions” for the government’s refusal to produce
the cards. While it is true that a contempt order is not final until
sanctions have been imposed, see C. Wright & A. Miller, supra, § 3817
at 617, it seems to us that the pendency of a motion to dismiss a
criminal indictment based on the prosecution's failure to disclose is
unrelated to the contempt sanctions here, which are clearly limited to
the fines set forth in the orders below. Should dismissal ultimately
become proper, it would not be a sanction stemming from contempt,
but rather the vindication of a criminal defendant's right to discovery
of evidence material to his defense. See United States v. Andolschek,
142 F.2d 503 (2d Cir. 1944). Even assuming dismissal were deemed
a “sanction” of sorts, it would be a sanction running against the
prosecution rather than the General Counsel, who is, of course, the
contemnor here.
da
Appendiz A
ance. Shillitani v. United States, 384 U.S. 364, 370 (1966) ;
Penfield Co. v. SEC, 330 U.S. 585, 590 (1947); Gompers
v. Buck's Stove & Range Co., 221 U.S. 418, 442 (1911).
This is often accomplished by a purgation provision,
whereby a civil contemnor may purge himself of contempt
at any time by compliance. See generally C. Wright &
A, Miller, supra, § 2960. The purpose of an order of erimi-
nal contempt, on the other hand, is punitive. It is imposed
to vindieate the court’s authority. Nye v. United States,
313 U.S. at 43; see generally Dobbs, Contempt of Court:
A Survey, 56 Cornell L. Rev. 183, 235-39 (1971). Aecord-
ingly, compliance with the court’s command will not: lift
the sanction. In responding to a single contemptuous act,
a court may well impose both criminal and civil sanctions—
wishing to vindicate its authority and to compel compli-
anee. Id, at 236-37.
This is what the district court intended here. In his first
order, imposing on Irving a flat fine of $10,000 for “wilful”
contempt, Judge Bramwell captioned his order in a erimi-
nal contempt format, followed the language of Fed. R.
Crim. P. 42(a), and made no provision for purgation. The
fine was punitive, levied regardless of subsequent compli-
ance. We find that this order held Irving in criminal
contempt and is therefore immediately appealable.
We also find that the second order, which imposes a
continuing fine of $1,000 per day and contains a provision
for purgation, has coercion as its primary purpose and
constitutes an order in civil contempt. Therefore, to de-
termine whether this order is immediately appealable, it
is necessary to consider whether Irving, as General Coun-
sel to the Board, is a “party” to the criminal proceeding
below.
Ga
Appendiaz A
IDC, viewing the “government” as a monolith, argues in
effect that the government (i.¢., the Justice Department)
is prosecuting the criminal action below, and therefore,
the government (i.e., the General Counsel to the Board)
is “party” to the action. Refining this argument somewhat,
IDC cites authority indicating that the duty of disclosure
in criminal cases affects not only the prosecutor but the
government as a whole. See United States v. Caldwell, 543
F.2d 1338, 1352 n.91 (D.C. Cir. 1974), cert. denied, 423
U.S. 1087 (1976); United States v. Bryant, 439 F.2d 642,
650 (D.C. Cir. 1971); United States v. Grayson, 166 F.2d
863, 870 (2d Cir. 1948). See also Harvey Aluminum (Inc.)
v. NLRB, 335 F.2d 749, 754 (9th Cir. 1964). Assuming
this to be so, however, it has only marginal bearing on the
question of whether the General Counsel of the Board is
a “party” to a criminal proceeding for the purposes of
determining whether an immediate appeal can be taken
from an order of civil contempt. The Supreme Court, in
Cobbledick v. United States, 309 U.S. 323 (1940), while
holding that a non-party witness could not appeal a denial
of a motion to quash a grand jury subpoena, noted in
dictum that appeal would become available if the non-
party were to be held in contempt for noncompliance, The
Court stated as the rationale for this rule the following:
At that point the witness’ situation becomes so severed
from the main proceeding as to permit an appeal. To
be sure, this too may involve an interruption of the
trial or of the investigation. But not to allow this in-
terruption would forever preclude review of the wit-
ness’ claim, for his alternatives are to abandon the
claim or languish in jail.
309 U.S. at 328. See also Alexander v. United States, 201
U.S. 117, 121-22 (1905) (dictum); Menton v. Walling, 139
7a
Appendix A
F.2d 608, 610 (9th Cir. 1943), cert. denied, 321 U.S. 798
(1944) (since non-parties have no appeal from a final
judgment, they have no right of review unless they can
appeal independently); accord, David v. Hooker, Ltd., 560
¥’.2d 412, 417 (9th Cir. 1977). See generally 9 J. Moore,
Federal Practice J 110.13[4], at 167 (2d ed. 1975). There-
fore, it is significant, as the Board argues, that the General
Counsel has no control over a criminal prosecution brought
by the Justice Department nor any right of appeal from a
final decision.2, Furthermore, the Board is not subject to
direet control by the Executive Branch, but rather is an
independent regulatory agency created by statute, see 29
U.S.C. § 153(a), and the General Counsel has certain au-
thority independent of the Board. 29 U.S.C. § 153(d). We
conclude that the General Counsel is not a “party” to the
criminal proceeding here and, therefore, can bring the in-
stant appeal from the civil contempt order below.’
2. Effect of this Court’s January 9, 1979 Decision
Yet another preliminary issue stands between us and
the merits of this case. As noted above, the Board, on
January 9, 1979, appealed the district court’s denial of
its motion to quash and also petitioned for mandamus.
2 This case is therefore quite different from our recent decision in
In re Attorney General of the United States, No. 78-6114 (2d Cir.
March 19, 1979), where we held that the Attorney General, who was
named in his official capacity as a party defendant, was a “party” to
the action and therefore barred from appeal. Slip op. at 1797.
® Moreover, since both orders arise from the same conduct and raise
the same issues, general policies favoring judicial economy and the
avoidance of inconsistent results dictate that the civil order be re-
viewed at the same time. See United States v. Martin Linen Supply
Co., 485 F.2d 1143, 1148-49 (5th Cir. 1973), cert. denied, 415 U.S.
915 (1974).
_ 8a
Appendix A
This court, United States v. DiLapi, No. 79-1003 (Jan. 9,
1979), held that denial of a motion to quash is not appeal-
able under 28 U.S.C, § 1291 and that the district court
did not clearly exceed its powers so as to warrant man-
damus. The court also noted that “Judge Bramwell did
not abuse his discretion in finding that the material sought
here may be important to preparation of the defense.”
IDC now urges that this determination is dispositive here.
We believe that this court’s January 9 findings, made
in connection with its refusal to grant a government peti-
tion for mandamus to block issuance of a subpoena by
a district court during a pending criminal proceeding, do
not necessarily imply that contempt sanctions subsequently
imposed by the district court for noncompliance were
proper. Standards for the issuance of mandamus are strict,
see In re Attorney Generai of the United States, No.
78-6114, slip op. at 1799-8000 (2d Cir. March 19, 1979);
National Super Spuds, Inc. v. New York Mercantile Ex-
change, No. 78-3041, slip op. at 1025-27 (2d Cir. Jan. 17,
1979); American Express Warehousing, Ltd. v. Trans-
america Insurance Co., 380 F.2d 277, 283 (2d Cir. 1967),
and this is particularly so in connection with efforts by
the government to obtain interlocutory review of orders
in criminal eases. Traditionally, the writ has been used
only “to confine an inferior court to a lawful exercise of
its prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so,” Roche v. Evaporated
Milk Association, 319 U.S. 21, 26 (1943), and to avoid a
judicial “usurpation of power.” De Beers Consolidated
Mines, Ltd. v. United States, 325 U.S. 212, 217 (1945).
The party seeking mandamus has “the burden of showing
that its right to issuance of the writ is ‘clear and indis-
putable.’” Will v. Calvert Fire Insurance Co., 437 U.S.
Ya
Appendiz A
G55, 662 (1978) (plurality opinion); Bankers Life & Cas-
ualty Co. v. Holland, 346 U.S. 379, 384 (1953). Although
these traditionally narrow limits on issuance of the writ
have been recently somewhat expanded in certain cases,
see, e.g., La Buy v. Howes Leather Co., 352 U.S, 249
(1957) (authorizing “supervisory” mandamus); Schlagen-
hauf v. Holder, 379 U.S. 104 (1964) (mandamus to
settle “novel and important” questions); see generally
Note, Supervisory and Advisory Mandamus under the
All Writs Act, 86 Harv. L. Rev. 595 (1973), special con-
siderations which arise when the underlying proceeding
is a criminal prosecution make careful limitations on man-
damus particularly appropriate. See Will v. United States,
389 U.S. 90, 96-98 (1967); United States v. Weinstem, 511
F.2d 622, 626 (2d Cir.), cert. denied, 422 U.S. 1042 (1975) ;
Stans v. Gagliardi, 485 F.2d 1290, 1292 (2d Cir. 1973);
United States v. DiStefano, 464 F.2d 845, 850 (2d Cir.
1972).
In Will v. United States, 389 U.S. 90 (1967), a district
judge, confronted with a refusal by the prosecution in a
criminal case to furnish certain information sought by
defendants in a bill of particulars and ordered by the
court to be produced, indicated his intention to dismiss
the indictment. The court of appeals issued a writ of
mandamus directing the district judge to vacate his pro-
duction order. The Supreme Court reversed, After noting
that the judicial caution traditionally associated with man-
damus must be heightened in criminal cases due to con-
cerns regarding double jeopardy, speedy trial, and narrow
statutory limitations on prosecutorial appeal, Will v.
United States, 389 U.S. at 96-98, the Court found that
since the district court had neither exceeded its power
nor engaged in any calculated and repeated disregard of
10a
Appendix A
the rules governing federal criminal trials,‘ id. at 100, the
court of appeals had erred in issuing mandamus. The
Court made amply clear that the mere fact that a district
judge’s order may be erroneous does not make issuance
of mandamus appropriate. A lower court has “power” to
make mistakes.
Courts faced with petitions for the peremptory writs
must be careful lest they suffer themselves to be mis-
led by labels such as “abuse of diseretion” and “want
of power” into interlocutory review of nonappealable
orders on the mere ground that they may be erroneous.
“Certainly Congress knew that some interlocutory
orders might be erroneous when it chose to make them
nonreviewable.”
Id. at 98 n.6 (citations omitted). See also United States
v. DiStefano, 464 F.2d at 850; Stans v. Gagliardi, 485 F.2d
at 1292 (both per Friendly, J.).
We conclude that once this court found in its January 9
ruling that the district court had not exceeded its power,
there was, absent some showing of “a calculated and re-
peated disregard of governing rules,” see United States
v. DiStefano, 464 F.2d at 850, nothing left to decide. Since
the reeord here is devoid of such a showing, we find that
the language regarding “abuse of discretion,” in the con-
text of a decision on a mandamus petition, while entitled
to some consideration, was dictum. Accordingly, the ques-
‘ This latter finding was accompanied by the observation, 389 U.S.
at 100 n.10, that those cases involving the use of mandamus to “‘police
procedural rules” (i.¢., those cases expanding the availability of man-
damus for “supervisory” purposes) were civil cases and indicated that
the rule might not apply in criminal cases. Since the record in Will
supported no systematic or deliberate noncompliance with procedural
rules, the Court left the question open. See Note, supra, 86 Harv. L..
Rev. at 622-28.
lla
Appendiz A
tion of whether Judge Bramwell properly exercised his
discretion in issuing the contempt orders disputed here
remains to be decided.
3. The Motion to Quash
Rule 17(¢) of the Federal Rules of Criminal Procedure
provides that a subpoena duces tecum may be quashed or
modified if production of the documentary evidence sought
would be “unreasonable or oppressive.” The party seeking
production has the burden of showing that production
would not be “unreasonable or oppressive” by establishing :
(1) that the documents are evidentiary and relevant;
(2) that they are not otherwise procurable reasonably
in advance of trial by exercise of due diligence; (3)
that the party cannot properly prepare for trial with-
out such production and inspection in advance of trial
and that the failure to obtain such inspection may tend
unreasonably to delay the trial; and (4) that the appli-
cation is made in good faith and is not intended as a
general “fishing expedition.”
United States v. Nixon, 418 U.S. 683, 699-700 (1974) (foot-
note omitted), citing United States v. Tozia, 13 F.R.D. 335,
338 (S.D.N.Y. 1952) (Weinfeld, J.). Because this four-
tiered test is composed of factual issues that must be re-
solved by the trial court, the decision to quash or modify
a subpoena duces tecum must be left to the trial judge’s
sound discretion. United States v. Nixon, 418 U.S. at 702;
United States v. Berrios, 501 F.2d 1207, 1212 (2d Cir.
1974). Accordingly, the trial court’s decision is not to be
disturbed on appeal unless it can be shown that it acted
arbitrarily and abused its discretion or that its finding
was without support in the record. United States v. Nixon,
2a
Appendia A
418 US. at 702; United States v. Berrios, 501 F.2d at 1212.
On the record before us, it cannot be said that the dis-
trict court abused its discretion or acted without support
in ordering production of the authorization cards. If the
ecards are in faet forged or otherwise fraudulent, they
may provide the defendants with a basis for asserting an
entrapment defense, Additionally, the defendants could
certainly utilize the ecards in attempting to impeach
KMason’s credibility. Thus, the distriet court did not abuse
its diseretion in finding “that the documents subpoenaed
bear on the transaction underlying the instant indictment
and are material to adequate preparation of IDC’s de-
fense ... .” We conclude that the requirements of Rule
17(c) were satisfied.
The United States and the Board, however, assert a
claim of privilege and contend that the district court did
not properly take into account the privileged nature of
the authorization ecards, The United States and the Board
are correct to the extent that authorization ecards are in-
deed privileged material exempt from discovery during
Board proceedings ® and from disclosure under the Free-
5 The National Labor Relations Act provides that employees have
the right to form labor organizations and to bargain collectively
through representatives of their own choosing free from interference
and coercion from either employers or unions. 29 U.S.C. §§ 157,
158(a), (b). Consequently, the Act requires representation elections
to be held by secret ballot. 29 U.S.C. § 159(e) (1). To ensure that
secrecy is maintained, the Board has traditionally restricted discovery
in labor relations proceedings. See generally Lyman Printing & Fin-
ishing Co., 183 NLRB 1084, App. A at 1055-56 (1970), and cases
therein cited. This policy has generally been upheld by the courts.
E..q., Title Guar. Co. v. NLRB, 534 F.2d 484, 487 (2d Cir.), cert.
denied, 429 U.S. 834 (1976); NLRB v. Interboro Contractors, Inc.,
432 F.2d 854, 858 (2d Cir. 1970), cert. denied, 402 U.S. 915 (1971) ;
Electromece Design & Dev. Co. v. NLRB, 409 F.2d 631, 635 (9th Cir.
(footnote continued on following page)
13a
Appendia A
dom of Information Aet (“FOTIA”), 5 U.S.C. §552.° The
Board’s long-standing policy of maintaining the confi-
dentiality of authorization cards and the courts’ exempting
of the cards from FOLA disclosure are based on the fear
of reprisals and the “chilling effect” whieh would result
from diselosure to employers or rival unions.’
(footnote continued from preceding page)
1969) ; NLRB v. Vapor Blast Mfg. Co., 287 F.2d 402, 407 (7th Cir.),
cert. denied, 308 U.S. 823 (1961). .
It should also be noted that the rules and regulations of the- Board
prohibit Board employees from producing “any files, documents, re-
ports, memoranda, or records of the Board or of the general counsel,
whether in response to a subpoena duces tecum or otherwise, without
the written consent of the Board or the chairman of the Board if the
document is in Washington, D.C., and in control of the Board; or of
the general counsel if the document is in a regional office of the agency
or is in Washington, D.C., and in control of the general counsel. . . .”
29 C.FLR. § 102.118(a) (1).
® Pacific Molasses Co. v. NLRB, 577 F.2d 1172 (Sth Cir. 1978)
(FOIA does not compel disclosure of union authorization cards) ;
Committee on Masonic Homes v. NLRB, 556 F.2d 214 (3d Cir.
1977) (union authorization cards are exempt from FOIA disclosure).
This circuit recently held that even the number of authorization cards
submitted during an organizational campaign is exempt from disclosure
under the FOIA. American Airlines, Inc. v. National Mediation Bd.,
588 F.2d 863 (2d Cir. 1978). See also NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214 (1978) (prehearing witness statements are
exempt from FOIA disclosure at least until completion of Board
unfair labor practice proceeding ) ; Title Guar. Co. v. NLRB, 534 F.2d
484 (2d Cir.), cert. denied, 429 U.S. 834 (1976) (prehearing state-
ments of employees and union representatives are exempt from FOIA
disclosure to extent such disclosure would interfere with Board en-
forcement proceedings ).
7 In Pacific Molasses Co. v. NLRB, the Fifth Circuit recognized the
dangers threatened by the disclosure of authorization cards :
| I]t is impossible to minimize the seriousness of the threatened
invasion. We would be naive to disregard the abuse which
could potentially occur if employers and other employees were
armed with this information. The inevitable result of the
(footnote continued on following page)
Ida
Appendia A
In this case, the important public interest in maintaining
the confidentiality of the ecards clashes head on with the
defendants’ fundamental right to due process of law, for
it has been found that the cards are material to the de-
fendants’ defense of the criminal charges asserted against
them. In similar situations, the Supreme Court has en-
gaged in a balancing process, weighing the conflicting
interests involved, See, e.g., United States v. Nixon, 418
U.S. at 707-13 (executive privilege); Roviaro v, United
States, 358 U.S. 53, 61-62 (1957) (informer privilege).”
The distriet court below utilized a balancing analysis and
struck a balance in favor of disclosure. We do not believe
it erred,
In United States v. Nixon, the Supreme Court considered
the interests underlying a presidential claim of executive
privilege against the interest underlying a prosecutorial
(footnote continued from preceding page)
availability of this information would be to chill the right of
employees to express their favorable union sentiments. Such
a chilling effect would undermine the rights guaranteed by
the N.L.R.A., and, for all intents and purposes, would make
meaningless those provisions of the N.L.R.A. which guarantee
secrecy in union elections.
577 F.2d at, 1182. Accord, Committee on Masonic Homes v. NLRB,
556 F.2d at 220-21. See NLRB v. Robbins Tire & Rubber Co., 437
U.S. at 239-40; Title Guar. Co. v. NLIRB, 534 F.2d at 491,
The threat of violence in the instant case has been substantiated by
the affidavit of James D. Harmon, dated January 5, 1979. This sealed
affidavit, which was submitted by the United States, was not con-
sidered by the district court.
“In Roviaro v. United States, the Supreme Court held that the
scope of the informer privilege was to be limited by its underlying
purpose. 353 U.S. at 60. In the instant case, the scope of the privilege
of the authorization cards must be similarly limited to ensuring that
employees who sign authorization cards are free from reprisal and
coercion, Hence, as long as the rights and safety of such employees
can be adequately protected, the strict confidentiality of the hee must
give way to a sufficient showing of need for disclosure.
la
Appendia A
attempt to gather evidence in an ongoing criminal prose-
cution. Although the Court recognized that “great def-
erence” is to be accorded the constitutionally based,
fundamental privilege of presidential communications, it
nevertheless concluded that the exeeutive privilege may be
outweighed by the “legitimate needs of the judicial proc-
ess.” 418 U.S. at 706-07. Where the privilege was asserted
solely on the basis of a “generalized interest in confiden-
tiality,” the Court held that it could not prevail over a
“demonstrated, specific need for evidence in a pending
criminal trial.” Jd. at 713.
The factors in favor of disclosure in the instant case are
at least as strong as those in United States v. Nixon. The
Supreme Court’s observations in that case apply with
equal foree here:
We have elected to employ an adversary system of
criminal justice in which the parties contest all issues
before a court of law. The need to develop all rele-
vant facts in the adversary system is both fundamental
and comprehensive, The ends of criminal justice would
be defeated if judgments were to be founded on a
partial or speculative presentation of the facts. he
very integrity of the judicial system and publie con-
fidence in the system depend on full disclosure of all
the facts, within the framework of the rules of evi-
dence. To ensure that justice is done, it is imperative
to the funetion of courts that compulsory process
be available for the production of evidence needed
either by the prosecution or by the defense.
418 U.S. at 709, Indeed, the considerations supporting dis-
closure in the case at bar are even stronger than those
in Nizon in that the rights of defendants are at stake
Min
Appendia A
rather than the interests of the promecution, See generally
Will vo. United States, 380 ULS, at O6-08,
We thus conclude that the authorization carda cannot
he kept completely confidential Llowever, in view of the
moportant and valid publie interest in maintaining the
confidentiality of authorization cards, and under the ape
cifle circumstances of thin case, we feel that a more limited
order of dinclonure than that inmued by the diatriet court
in warranted, Accordingly, the dintriet court's dinclonure
order in modified ® ax followa; The subpoenaed authorima
tion cards and membership appleations are to be dis
Cloned to the attorneya for the defendants, but they are
not to be dinelowed to the defendants themmelves, The
records are to be produced in bulk rather than individually
loonmure that knowledge of the identities of the employeer
who signed the cards ean be confined to counsel, This eom
promine will enable the defendants’ attorneys to determine
Whether any of the cards were forged or are relevant to
the defense, At the same time, the confidentiality of the
employees will be adequately protected, Should specifle
forgerion be found or should an expleit showing of need
he made, then the distriet court in ith diseretion may order
full cisclowure of the speeifie ecards in question, Tf after
examiniig the cards counsel for defendants wish to inter
view particular employees, they may do so outside the
presence of the defendants and in the presence of the
court or a magistrate so that any interviewed employee
” We acknowledge that great deference is to be accorded the district
court's decision as to the scope of a subpoena or disclosure order
United States v. Nivon, AB US, at 702. However, since we are of
the opinion that the distriet court did not give due recognition to
the importance of maintaining the confidentiality of the authorization
cards, we are modifying the district court's order to provide for
limited disclosure, Cf, In re Attorney General of the United States,
ship op. at 1807-08,
wer
Appendia A
will be protected from intimidating or coercive question.
ing. See generally Note, NLRB Discovery After Robbins:
More Peri for Private Litigants, 47 Vordham LL. Rev. 303,
413-14 (1978).
4. The Contempt Orders
With respect to the civil contempt order, we find that
the district court did not abuse ita diseretion, As we have
already noted, a civil contempt order is remedial and
coercive in nature, and in intended to seeure compliance
with lawful judicial decrees, [Tt is essential that the courts
have the power to compel the appearance of witnesses and
the production of evidence, Shillitant v. United States,
$84 U.S. at 368-70, In order for a civil contempt order
fo issue, there must be clear and convineing proof of a
violation of a court decree. Hart Schaffner & Marx ».
Alexander's Department Stores, Inc., 341 F.2d 101, 102
(2d Cir, 1965) (per curiam); Stringfellow v, Haines, 309
Me2d 910, 912 (2d Cir, 1962), Our review of the reeord
lends ua to conelude that the evidence clearly and con-
vineingly established grounds for a finding of eivil eon-
tempt.
With respect to the criminal contempt order, different
considerations come into play. The purposes of a erim
inal contempt order are to punish wilful disregard of the
authority of the courts and to deter the oceurrenece of
similar derelietions, United States vy. United Mine Work-
ers, 3380 US, 258, 302-03 (1947). Ax the Supreme Court
has noted, “[e]riminal contempt is a crime in the ordinary
sense; it is a violation of the law, a publie wrong... .”
Bloom v, Illinois, 391 U.S. 194, 201 (1968). A conviction
for criminal contempt frequently results in serious pen-
alties and carries the same stigmas as does an ordinary
criminal conviction, 7d, at 201-02, 207-08, See In re Attor-
ney General of the United States, slip op, at 1808; United
In
Appendix A
States v Wendy, S70 Mud 1085, 1080 (2d Cir, HTK), A
judge should resort to eriminal contempt only after he
determines that holding the eontemnor in ermal eoutempt
would be inapproprinte or fruitleasa, Shillitane ov. United
States, (84 US at O71 & oth Thus, in our opinion, the
criminal contempt power ia beet exercmed with reatranit,
To warrant beng held in erimninal contempt,
the contemnor’s eonduet muet constitute misbehavior
Which rises to the level of an obetruetion of and an
imminent threat to the adminiatration of justies, and
iomnteat he aecompaniod by the mfention on the part
of the contemnor fo obstruct, disrupt or interfere with
the administration of justice,
Inve Willams, SOO Fd 949, 960 (2d Cir, 1975) Compliania
nelded), eting inter alia Baton v. City of Tulsa, 415 US,
HOF (INT) (per curiam), and Jn ore Lattle, 404 US, 559
(1972) (per curiam), Tn the Williams ease, we reversed
the «iatriet court's judgment holding the eontemnor in
criminal contempt on the grounda the evidenee failed to
vatabliah beyond a reasonable doubt that the requinite in
tent waa present,
In view of the faet that we have modified Judge Pram
well’a disclosure order, the eriminal contempt order is
vacated and the matter ia remanded to the diatriet court
for reconmderation in light of thie opinion!’ The eivil
"We note that the Hoard might well not have defied the district
court's order had it been modified in the firat instance. Moreover, the
Hoard had no feasible alternative to test ihe propriety of the dis
covery order but to disobey it and be held in contempt. Finally, lev:
jng's refusal to produce the authorization cards was based on Hoard
inatrietione od a well-founded, judicially recognized Hoard policy
of confidentiality. The Hoard did not delay in filing this appeal and all
ecessaty stepa were taken to ensure that this matter would proceed
expeditiously
BUT
Appendix A
contempt order in affirmed insofar ax it relates to the
thatriet court's disclosure order as modified herein.
eocmmenmummneseness @ sam sms
,
Manarinnn, Cireut Judge (Coneurring and Dinsentings) :
leoncur in Judge Werker's carefully considered opinion
except for ite provision that upon remand any interview
of employees by attorneys for the defendants munt be eon
dueted “in the presenee of the eourt or a magiatrate se
that any interviewed employee will be protected from in
Hinidation or coercive queationing” (p. 2170, supra). In my
View thin requirement may have just the opposite effect
from that intended, In addition, sinee many employees are
involved, it could reault in unnecessary warte of jucieiml
renoureen and inconvenience to employeon,
To require employees who may pomubly become withnennes
fo leonve work and proeead to court for interrogation by
defense counsel ina atrange and formal atmoaphere before
nh judicinl official unfamiliar to them may well nerve to
inereane, rather than ease, the apprehension of the em
ployees, as well aa to heighten the chance that their identi
tien will become known to the defendants themmelves, Since
the defendants are already faced with eriminal charges in
the ciatriet court as well aw with unfair labor praetice
charges before the National Labor Relations Board, the
chance that their counsel would attempt to intimidate a
Withemt ina private interview strikes me ae minimal, par
ticularly sinee evidence of intimidation might be adits
ble agnainet the defendants at trinl, See United States v.
Lord, D065 F.2d 8381, 836 2 (2d Cir, L977); United States
rv, Cirdlo, 468 F.2d 1298, 1240 (24 Cir, 1972), cert. denied,
410 U.S. 989 (1073); 2 Wigmore, Evidence 6 278 (3d ed,
1140),
20a
Appendix A
We are not here dealing with the possibility of one or
two interviews Gut with the prospect of interviews of some
1H0 or more employees.’ The employees, moreover, may
prove to be important to the defense not only to determine
whether their signatures were forged (whieh would require
very little questioning) but also to find out whether they
were coerced into signing the ecards by either Matthew
Iason, a convieted felon, or by his alleged henehman Fred
Lawson, who, aeeording to the appellees, has been eonvieted
of a long series of felonies, ineluding assault, rape, forgery,
and possession of a deadly weapon and of nareoties.
The only practical method for determining whether the
employees were subjected to coercion or duress would be
to permit defense counsel to interview each employee who
signed an authorization eard (or at least those who are in
the bargaining unit and whose ecards were not clearly
forged). Waeh of these interviews would take more time
than a mere interrogation to determine the authenticity of
the signature. Sinee defense counsel would not know whieh
employees might have heen the subjeet of eoereion or du-
rese, they would, under the majority's decision, be foreed
fy subpoena a large number of employees to appear in
eourt for questioning, whieh would lead to a substantial
waste of judicial resourees and a greater risk of identifien-
tion by the defendants.
If approached informally at home or at work the average
employee would in my view be much more likely to eco-
operate in answering questions, particularly if he realized
' The exact number of authorization cards submitted hy Local 20408
is unknown, but the NLRB requires signatures of at least 30% of
the employees to accompany any representation petition, and IDC
has some 500 explovees. See Brief for U.S. Attorney at 4; Appendix
at 85-86
2la
Appendia A
that failure to do so would require him to appear pursuant
fo subpoena before a magistrate, than if he were foreed in
the first place to come to court and spend a good deal of
time waiting around to be questioned. In short, there would
he less risk of intimidation, less waste, and less danger of
identifieation or retaliation by the defendants if the wit
nesses were interviewed privately by defense counsel and
brought before the judge or magistrate only if they proved
to he reealeitrant.
| further believe that it should be made elear to the
distriet court that in vacating the eriminal contempt order
and remanding the matter to it for reconsideration we are
not holding that it would be an abuse of diseretion for the
distriet eourt, after full consideration of the reeord in
the light of our modification of its order, to exercise its
power to hold parties in criminal contempt. Sinee we have
substantially modified the district court’s order so as to
preclude aceess to the authorization eards by the defen-
dants personally and the NLRB had no feasible alternative
for testing the original diseovery order, we must give the
distriet court the opportunity to reeonsider its holding
and penalty in the light of our modification and appellant's
decision to comply or not to comply with the order as
modified. See Nilva v. United States, 352 U.S. 385, 396
(1957): Vates v. United States, 356 US. 8638, 366 (1958):
Donovan v. City of Dallas, 377 US. 408, 414 (1964); and
Southern Railway Co, v, Lanham, 403 F.2d 119, 1385 (hth
Cir. 1968),
22a
APPENDIX B
UNITED STATES DISTRICT COURT
Kastrern District or New York
,
ll
Unirep States or AMERICA
—against—
Awntruony Dt Lapt, et al.,
Defendants,
4
-
{UNEDITED TRANSCRIPT OF JANUARY 8, 1979]
Henry Bramwe ., District Judge:
My decision today concerns the Government’s and the
NLRB’s motion to quash two IDC subpoenas served on the
NLRB Regional Direetor, Mr. Hisenberg, and on an NLRB
hearing officer, Ms. Anderson who is investigating the repre-
sentative petition filed by Local 20408. This representation
petition forms the underlying basis for the instant indict-
ment. These subpoenas seek the authorization cards or
applications for membership in Loeal 20408 which were
signed by employees of IDC, GS Supply and GS Temporary
and all other documents concerning employee showing of
interest.
Initially, IDC has urged that the instant motion to quash
is patently frivolous, further evidence of unserupulous con-
duet on the part of the Government and disrespect for this
Court. IDC urges that such conduct mandates dismissal of
the indictment. As the following will show, my examination
of the case law reveals that the Government’s position has
considerable merit and brought to the Court’s attention a
23a
Appendia B
significant and important issue. No evidence of bad faith or
disrespect for the Court is even suggested by the Govern-
ment’s action and a dismissal of the indictment is clearly
not warranted.
Turning to the motion to quash, the Government and the
NLRB position, vigorously contested by IDC, so that the
documents subpoenaed are privileged material and that dis-
closure would have a serious and disruptive influence the
Local 20408 organizational effort and any secret election
that is ordered by the Board. It is contended that dis-
closure of these documents, which are submitted on a eon-
fidential basis, would expose employees to undue pressure
from their employers and would invade the privacy rights
of the employers which is needed for the full and uninhibited
exercise of organizational rights. In short the NLRB
argues that disclosure would invade the organizational pro-
cess and disrupt the delicate area of labor relations.
The NLRB’s position finds considerable support in the
case caw. Of note is the recent Second Cireuit decision in
American Airlines v. National Mediation Board, There, in
u suit brought under the Freedom of Information Act, the
Court held that the number of authorization cards submitted
to the National Mediation Board, the functional equivalent
of the NLRB, was exempt from disclosure under the FOLA,
While the factual setting of the American Airlines case is
distinguishable, the following statement of the Court has
hearing on the instant motion and I quote.
“Here the information sought direetly affects the
status of the union’s efforts to obtain majority sup-
port and ultimate certification. The Board has tradi-
tionally treated this information as confidential, and
the vnien provides it under the express promise of
confidentiality in the regulations...
24a
Appendia B
“It seems apparent that the disclosure of this
information would adversely affect the union’s com-
petitive position vis-a-vis both other unions and the
eniployer itself. Not only does the union supply this
information in reliance upon the promise in the regu-
lations that the Board will keep the information econ-
fidential,... but the information relates to the very
delicate area of labor relations with whieh . .. the
courts should be very hesitant to interfere.”
Thus, the NLRB argues if diselosure of only the number
of ecards would have this disruptive effeet, the more exten-
sive material subpoenaed by IDC certainly would and must
not be diselosed.
While the case law clearly reveals that the documents
subpoenaed by [DC have an aura of privilege surrounding
them, [DC urges that disclosure is mandated in view of its
Sixth Amendment rights to a fair trial, confrontation and
compulsory process. Reeognizing these rights, the Govern-
ment and the NLRB urge non-disclosure, nonetheless on the
ground that these documents are irrelevant to the issues
to be tried in the instant indietment. Moreover, they have
added a constitutional dimension to their argument by not-
ing that employee organizational activity is a fundamental
right under the Supreme Court’s deeision in NLRB y. Jones
@& Laughlin Steel Corp., and is ineluded within the First
Amendment rights of assembly and association. Disclosure
of these privileged, confidential and irrelevant documents,
therefore, would infringe unnecessarily on these constitu-
tional rights.
This position that the subpoenaed documents are irrele-
vant centers on the Government contention that the mere
filing of the representation petition by Loeal 20408 and Mr.
Kason commenced the NLRB proceeding and that any aets
25a
Appendia B
which endeavor to influence, intimidate or impede any wit-
ness in the proceeding before the NLRB brings 18 U.S.C,
Section 1505 into play. Since the filing of the petition initt-
ates the proceeding for purposes of Section 1505, the evi-
dence of employee support for Loeal 20408 is urged as
irrelevant to this eriminal indietment.
That Section 1505 is brought into play by the mere filing
of a representation petition which initiates the NLRB in-
vestigation is amply supported by the case law. For this
conclusion, | direct the parties’ attention to the Seeond
Circuit decision in U.S. vy. Abrams, the Sixth Circuit decision
in UWS. v. Frichtman, the Eight Cireuit decision, in Fice vy.
U.S., the Ninth Cireuit decision, in U.S. v. Virie and the
Tenth Cireuit decision in U.S. v. Browning, Inc. In Rice,
a case also involving interference with the NLRB, the Court
stated and I quote,
“ ‘Proceeding’ is a comprehensive term meaning the
action of proceeding, a particular step or series of
steps, adopted for accomplishing something. This is
the dictionary definition as well as the meaning of the
term in common parlance, Proceedings before a gov-
ernmental department or ageney simply m-an pro-
ceeding in the manner and form preseribed for con-
ducting business before the department or ageney,
including all steps and stages in such an action from
its inception to its conclusion,
“Tn our view, it would be absurd to hold that Con-
gress meant to proscribe interference with the ad-
ministrative process only after a Labor Board pro
ceeding had reached a certain formal stage and let
go unpunished individuals who obstruct earlier pre-
liminary proceedings by frightening witnesses into
withdrawing charges out of fear for their lives. Con-
26a
Appendia B
gress clearly intended to punish any obstruction of
the administrative process by impeding a witness im
any proceeding before a governmental agency, at any
state of the proceedings, be it adjudicative or investi-
ative. Congress did not limit the term ‘proceeding’
as used in Seetion 1505 to only those aets committed
after a formal stage was reached, and we cannot so
limit the term.”
At a point later the Court continued and T quote,
“Governmental agency proceedings frequently em-
brace both investigative and adjudieative proceed
ings. ‘This is referred to by the Supreme Court in
Hannah vy. Larche, The issue here was not present in
Hannah, but it is noted that Chief Justice Warren
referred to both investigative and adjudieative ae-
tions as being ‘proceedings.’ ”
While the Court agrees with this position, | cannot say
that under no circumstances is the material subpoenaed ir-
relevant to the erimes charged in this indietment. As pre-
viously noted, the documents subpoenaed reflect employee
showing of interest with respect to the Loeal 20408 repre.
sentation petition whieh lies at the heart of the instant in-
dietment. The documents thus relate direetly to this
criminal proceeding.
The analysis of Judge Learned Hand in the Second Cireuit
decision of U.S. v. Andolschek is extremely relevant to the
instant motion. There, the trial Judge had excluded certain
documents based upon an IRS regulation which forbade
disclosure, In reversing, the Court stated ‘and I quote,
“None of these cases involved the prosecution of a erime
consisting of the very matters recorded in the suppressed
~
27a
Appendia B
document, or of matters nearly enough akin to make rele-
vant the matters recorded. That appears to us to be a
critical distinetion. While we must accept it as lawful for
a department of the Government to suppress documents,
even when they will help determine controversies between
third persons, we cannot agree that this should inelude their
suppression in a eriminal prosecution, founded upon those
very dealings to which the documents relate, and whose
criminality they will, or may, tend to exculpate. So far as
they direetly touch the criminal dealings, the prosecution
necessarily ends any confidential character the documents
may possess; it must be concluded in the open, and will lay
bare their subject matter. The Government must choose;
either it must leave the transactions in the obseurity from
which a trial will draw them, or it must expose them fully.
Nor does it seem to us possible to draw any line between
documents whose contents bears direetly upon the eriminal
transactions, and those which may be only indireetly rele-
vant. Not only would such a distinction be extremely diffi-
cult to apply in practice, but the same reasons which forbid
suppression in one case forbid it in the other, though no,
perhaps, quite so imperatively. We hold that the regulation
should have been read no to excluse the reports here in
question.”
Similarly, in U.S. v. Reynolds, the Supreme Court stated
and I quote, “The rationale of the criminal cases is that,
since the Government which prosecutes an accused also has
the duty to see that justice is done, it is unconscionable to
allot it to undertake prosecution and then invoke its govern-
mental privileges to deprive the accused of anything which
might be material to his defense.”
Finally, in the Second Cireuit decision of In re Taylor, the
Court, relying on Andolshek and Reynolds, stated and
I quite, “In camera examination of evidence by a Court
28a
Appendiaz B
will no, for example, suffice to sustain a judgment of con-
viction where the Government, because of a claim of
privilege, has failed to disclose to a defendant information
which might be relevant to his defense.”
That the legitimate need of the defendant herein for the
subpoenaed documents can outweigh the Government’s and
the NLRB’s claims of privilege and confidentiality is fur-
ther supported by the Supreme Court decisions invoking
informers and the Supreme Court decisions in Brangburg
v. Hayes and U.S. v. Nixon. In the informant situation, the
Court in Roviaro v, U.S, stated and I quote, “We believe
that no fixed rule with respect to disclosure is justifiable.
The problem is one that calls for protecting the flow of
information against the individual’s right to prepare his
defense. Whether a proper balance renders non-disclosure
erroneous must depend on the particular circumstnee of
each case, taking into consideration the crime charged, the
possible defenses, the possible significance of the informer’s
testimony, and other relevant factors.”
That the informant’s identity is available to a eriminal
defendant when it is critical to his case is further evidenced
by the Supreme Court decisions in MrCray v. Tlinois, Smith
v. Illinois and Alford vy. U.S.
In Branzburg, the Supreme Court rejected the notion that
the First Amendment privilege asserted by mewsman was
paramount to the general obligation of a citizen to appear
before a Grand Jury or at trial and give whatever informa-
tion he possessed even if such information was confidential
in nature,
Moreover, the Court rejected as unavailing the argument
that foreed disclosure of confidential information would
severely restrict the free flow of information and, therefor,
severely hamper a reporter’s ability to obtain information.
29a
Appendix B
The Court stated and I quote, “On the records now before
us, we perceive no basis for holding that the public interest
in law enforcement and in ensuring effective Grand Jury
proceedings is insufficient to override the consequential, but
uncertain, burden on views gathering that is said to result
from insisting that reporters, like other citizens, respond to
relevant questions put to them in the course of a valid
Grand Jury investigation or criminal trial.”
Of further note in this regard are the four in chambers
opinions of Mr. Justice White and Mr. Justice Marshall in
New York Times Co, v. Josealevich. No less can be said
here. The asserted disruptive and chilling effect on em-
ployee organization rights cannot outweigh what the Court
believes to be a legitimate need for the documents sub-
poenaed,
Moreover, should any disruption occur or should any
undue pressure be exerted on the employees of IDE, I do
not believe that the NLRB would be unable to take cor-
rective action. The case law is replete with examples of the
NLRB taking such corrective action.
Finally, in the Nixon case, the Supreme Court permitted
disclosure of Presidential papers in the face of a claim of
executive privilege which was considered to be of consti-
tutional dimensions. The Court noted that the privilege of
withholding relevant evidence is not lightly created or ex-
pansively construed since it is in derogation of the search
for truth. The Court stated and I quite, “The very integrity
of the judicial system and the publie confidence in the system
depend on full disclosure of all the facts, within the frame-
work of the rules of evidence. To ensure that justice is
done, it is imperative to the function of courts that compul-
sory process be available for the production of evidence
needed either by the prosecution or by the defense.”
30a
Appendia B
Later in its opinion, the Supreme Court stated and |
quote, “The allowance of the privilege to withhold evidence
that is demonstrably relevant in a criminal trial would cut
deeply into the guarantee of due process of law and gravely
impair the basie function of the courts. A President’s ac-
knowledged need for confidentiality in the communications
of his office is general in nature, whereas the constitutional
need for the production of relevant evidence in a criminal
proceeding is specific and central to the fair adjustication
of a particular criminal case in the administration of justice.
Without access to specific facts a criminal prosecution may
be totally frustrated. The President’s broad interest in
confidentiality of communications will not be vitiated by
disclosure of a limited number of conversations prelimi-
narily shown to have some bearing on the pending cases.”
No less can be said with respect to the documents sub-
poenaed by IDC,
‘n light of the above and since I find that the documents
subpoenaed bear on the transaction underlying the instant
indictment and are material to adequate preparation of
IDC’s defense, the generalized privilege and interest in
confidentiality asserted by the Government and the NLRB
must give way. Therefore, the motion to quash is denied
and it is ordered that the documents subpoenaed be turned
over to IDC.
1) American Airlines v. National Mediation Board, 588
F. 2d 863 (2d Cir. 1978)
2) U.S. v. Abrams, 427 F. 2d 8 (2d Cir. 1970)
3) U.S. v. Fruehtman, 421 F. 2d 1019 (6th Cir. 1970)
4) Rice v. U.S., 356 F. 2d 709 (8th Cir. 1966)
5) U.S. v. Vixie, 532 F. 2d 1277 (9th Cir. 1976)
3la
Appendix B
6) U.S. v. Browning, Ine., 572 F. 2d 720 (10th Cir, 1978)
7) NLEB v. Jones & Laughlin, 57 S.Ct. 615 (1937)
8) U.S. v. Andolschek, 142 F. 2d 508 (2nd Cir, 1943)
9) U.S. v. Reynolds, 345 U.S. 1 (1953)
10) In re Taylor, 567 F. 2d 1188 (2d Cir. 1977)
11) Branzburg v. Hayes, 92S. Ct. 2646 (1972)
12) U.S. v. Nixon, 94 S. Ct. 2646 (1972)
13) MeCray v. Illinois, 87 8S. Ct. 1056, 1062 (1967)
14) Smith v. Illinois, 88 8S. Ct. 748, 749 (1968)
15) Alford v. U.S., 51S. Ct. 218, 220 (1931)
16) Roviaro v. U.S., 77 8S. Ct. 623, 627-29 (1957)
17) New York Times Co. v. Jasealevich, 98 S. Ct 3058,
98 S. Ct. 3060, 99 S. Ct. 6, 99 S. Ct. 11 (1978)
32a
APPENDIX C
UNITED STATES CONSTITUTION
AmenpMENT V
No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of
War or public danger; nor shall any person be subject for
the same offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be
taken for publie use, without just compensation.
AmenpMent VI
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the State and distriet wherein the crime shall have been
committed, which distriet shall have been previously ascer-
tained by law, and to be informed of the nature and cause
of the aceusation; to be confronted with the witnesses
ayrainst him; to have compulsory process for obtaining wit.
nesses in his favor, and to have the Assistance of Counsel
for his defence.
ne ee
a
—
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.