Petition — Litman v. United States
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81-1027
Office - Supreme Court, U.S.
FILED
DEC 2 (981
ALEXANDER L. STEVAS.
No. 81- onde
In THE
Supreme Court of the Wnited States
October Term, 1981
S. DAVID LITMAN and IRVING M. PORTNOY,
Petitioners,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION For Writ OF CERTIORARI
To Tue UNitep STATES COURT
Or APPEALS For THE THIRD CIRCUIT
Davip J. ARMSTRONG
DICKIE, McCAMEY & CHILCOTE
3180 U.S. Steel Building
Pittsburgh, Pennsylvania 15219
(412) 281-7272
Counsel for Petitioner,
S. Davip LITMAN
HAROLD GONDELMAN
GONDELMAN, BAXTER, MANSMANN
& McVERRY
718 Fifth Avenue
Pittsburgh, Pennsylvania 15219
(412) 765-2500
Counsel for Petitioner,
IRVING M. PoRTNOY
Financial Press Corporation, Pittsburgh
QUESTION PRESENTED FOR REVIEW
Is an order denying a motion to dismiss an indictment on the
ground that the defendant's Fifth Amendment Indictment
Clause right has been violated an appealable order under 28
U.S.C. §1291?
TABLE OF CONTENTS
_Page
QUESTION PRESENTED FOR REVIEW............ l
Sy PET cccvoccccescesceccccececcecceces 2
FOE ciccccccssccccccccccccccccccccccces 3
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ....ccccccccccccccccecs 3
STATEMENT OF THE CASE un nccccccccccccccccces 4
REASONS FOR GRANTING THE WRIT............ 8
APPENDICES:
Appendix A: Opinion of the United States
Court of Appeals for the Third Circuit,
PRIN Dy, GHEE Soc scccnccccccccecess A-| to A-7
Appendix B: Order of the United States
Court of Appeals Denying Petition for
Rehearing, October 28, 1981 ............eeeeeees B-1
Appendix C: Judgment Order of the
United States Court of Appeals for the
Third Circuit, September 28, 1981 .............. C-1
Appendix D: Findings and Opinion of
the United States District Court for the
Western District of Pennsylvania,
PEF TT OTT TTT TTT TTT Te D-1 to D-31
Appendix E: Order of the United States
District Court for the Western District of
Pennsylvania, March 16, 1981 .................. E-1|
TABLE OF AUTHORITIES
Abney v. United States, 431 U.S. 651, =
£ Le, SEPT TTT TTT 16, 17, 20, 21
Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272 (1977) ..11
Cobbledick v. United States, 309 U.S. 323,
SBOGS, GOD. Ge. SED CIGD cc cccccccccccccccccccccs 15
Cohen v. Beneficial Industrial Loan Corp.,
Be , Btn GP is Gee Ge Ce co cccccccccccecess 16
Coolidge v. New Hampshire, 403 U.S. 443,
es ee i, SIN cn cedesenesdcodeseueneess 13
DiBella v. United States, 309 U.S. 121,
BS ED hb.ccedodocoscdscsescceecsecesse 15
Douglas Oil Co. of California v. Petrol Stops
Northwest, 441 U.S. 211, 99 S. Ct. 1667 (1979) ....... 11
Estes v. State of Texas, 381 U.S. 532,
ee EE 6 pcccecdsccesececesescedee 14, 22
Ex Parte Bain, 121 U.S. 1, 7 S. Ct. 781 (1887) ............ 19
Helstoski v. Meanor, 442 U.S. 500, 99 S. Ct.
PEON db cdendapeonesavcesepeesevocess 17, 20, 21
In re Murchison, 349 U.S. 133, 134, 75 S. Ct.
ED opncncudeccccetcascsesccceesece 13, 14
In re November 1979 Grand Jury (Velsicol Chemical
Corp.), 616 F.2d 1021 (7th Cir. 1980)......... 17, 19, 20
Rideau v. State of Louisiana, 373 U.S. 723,
Be ys Es ME Ss cccccoscccccescesccescese 14
Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993 (1979) ...... 11
Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507 (1966). .14
Stack v. Boyle, 342 U.S. 1,72 S. Ct. 1 (I9S1)..........4.. 15
Stirone v. United States, 361 U.S. 212,
CE, CE I: 6ctccacesaseesceoseoencssn 10
Tumey v. Ohio, 273 U.S. 510, 523, 47 S. Ct.
SU EE GED ee bbddcenersaccccessccesccceccecees 13
Turner v. State of Louisiana, 379 U.S. 466,
Ps Gy SED Keérnccccvescescecesccescoseses 13
United States v. Bearden, 659 F.2d 590 (Sth Cir. 1981)..... 11
United States v. Bendis, 657 F.2d 1025 (9th Cir. 1981) ..... 22
United States v. Brizendine, 659 F.2d 215 (D.C. Cir. 1981) .23
United States v. Burt, 619 F.2d 831 (9th Cir. 1980) . 20, 21, 22
United States v. Calandra, 414 U.S. 338, 342-43,
Dy a SE oS Geevedcesessowenveesosscseses 7)
United States v. Cusmano, 659 F.2d 714, 717
et cd cedidaneeedeeteesedeseéeens ll
United States v. Dionisio, 410 U.S. 1, 17, 93
ih PO ccncbeoseceseoesseseauscoeseceees 10
United States v. Garner, 632 F.2d 758 (9th Cir. 1980).. 21, 22
United States v. Gold, 470 F. Supp. 1336 (N.D. Ill. 1979) ..19
United States v. Gregory, 656 F.2d 1132 (Sth Cir. 1981)... .23
United States v. Griffin, 617 F.2d 1342 (9th Cir.
1980), cert. denied, 101 S. Ct. 167 (1980)...... 20, 21, 22
United States v. Levine, 658 F.2d 113 (3rd Cir. 1981)...... 23
United States v. Linton, 655 F.2d 930 (9th Cir. 1980)...... 22
United States v. McDonald, 435 U.S. 850,
rh a, CE co ccupecseseddeneses 16, 17, 20, 21
United States v. Sears, Roebuck and Company,
ee ee ee GE, Sc oe ccccccesecseccccceces 22
United States v. Shaw, 655 F.2d 168 (9th Cir. 1981) ....... 22
United States v. Tager, 506 F. Supp. 707, 726
(D. Kan. 1979), aff'd, 638 F.2d 167 (10th Cir. 1980) ...12
United States v. Wilson, 639 F.2d 500 9th Cir. 1981) ...... 22
United States v. Yellow Freight Systems, Inc.,
637 F.2d 1248 (9th Cir. 1980), cert. denied,
50 U.S.L.W. 3245 (Oct. 5, 1981) ....... 17, 18, 19, 20, 23
Ward v. Monroeville, 409 U.S. 57, 62, 93 S. Ct.
Sh UE BSCS ERadscccceeesceconessbeonscceeses 12
Wilson v. Jago, 558 F.2d 330, 334 (6th Cir. 1977) ......... 11
Wood v. Georgia, 370 U.S. 375, 82 S. Ci.
PPT ee ae ebecseosoncens 10
SECONDARY AUTHORITY
9 Wm. Moore, Moore's Federal Practice 4110.07,
GG SE db Geucnecerereéccccescsoneeesce 15
2
No. $1-
In THE
Supreme Court of the Wnited States
October Term, 1981
S. DAVID LITMAN and IRVING M. PORTNOY,
Petitioners,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION For WRiT OF CERTIORARI
To Tue UNITED STATES COURT
Or APPEALS For THE THIRD CIRCUIT
Petitioners, S. David Litman and Irving M. Portnoy,
respectfully pray that a Writ of Certiorari issue to review the
Judgment entered September 28, 1981, and the Opinion of the
United States Court of Appeals for the Third Circuit filed in
this proceeding on September 28, 1981, which affirmed an
Order of the United States District Court for the Western
District of Pennsylvania entered on March 16, 1981 denying a
metion to dismiss an indictment.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Third Circuit (Gibbons and Hunter, C.J. and Gerry, D.J.) is
not yet reported and is reproduced as Appendix A to this
petition (A-1 through A-6). The order of the Court of Appeals
denying a petition for rehearing is not reported and appears as
Appendix B to this petition. The judgment order of the Court
ef Appeals is also unreported and appears as Appendix C to
this petition.
3
The opinion of the United States District Court for the
Western District of Pennsylvania (Weber, Chief Judge) in
support of denial of defendants’ motion to dismiss the indict-
ment is unreported and appears as Appendix D to this petition.
The order of the District Court denying the motion to dismiss
is unreported and appears as Appendix E to this petition.
JURISDICTION
On March 16, 1981, the United States District Court
denied a motion to dismiss an indictment returned against
petitioners by a grand jury. Petitioners appealed that order to
the United States Court of Appeals for the Third Circuit
pursuant to 28 U.S.C. §1291.
On September 28, 1981, the Court of Appeals dismissed
the appeal as taken from an interlocutory order.
A petition for rehearing was timely filed and denied on
October 28, 1981.
This Court has jurisdiction to review the order of the
Court of Appeals pursuant to 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment to the United States Constitution
provides:
No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indict-
ment 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....
Section 1291 of Title 28, United States Code, provides:
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
4
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 Supreme Court.
STATEMENT OF THE CASE
(a) The Indictment
Petitioners S. David Litman and Irving M. Portnoy were
indicted by a grand jury in the United States District Court for
the Western District of Pennsylvania on February 3, 1981 and
charged with conspiracy and multiple counts of mail fraud said
to have arisen from an alleged scheme to defraud insurance
companies.
The indictment charges that petitioners combined with
physicians to furnish false or inflated medical bills to insurance
carriers in connection with personal injury damage claims.
(b) The Motion to Dismiss and Findings
Petitioners filed a motion to dismiss the indictment and
alleged that serious prosecutorial misconduct had occurred,
including repeated breaches of grand jury secrecy in violation
of Federal Rule of Criminal Procedure 6(e) arising from the
grand jury's having appointed as an “agent” an employee of a
private corporation, the “Insurance Crime Prevention Insti-
tute,” or “I.C.P.I.”, organized by various casualty insurance
carriers for the purpose of prosecuting insurance fraud.
The District Court held hearings on petitioners’ motion to
dismiss. On March 16, 1981, the District Court (Weber, Chief
Judge) issued its Findings and Opinion which concluded that
“there have been repeated and continued violations of the
provision of Federal Rule of Criminal Procedure 6(e)(2)
from. ..August |, 1977 until the return of the indictment. . .”
App. at D-10. These violations all arose from the pervasive
involvement of Daniel B. Saccani, the I.C.P.I. employee, in the
grand jury investigation over a period of more than three years.
5
The District Court found that Mr. Saccani became
involved in the grand jury investigation in mid-1977. He met
regularly with United States Postal Inspectors and with
members of the United States Attorney’s Office to discuss
progress of the investigation and reported events on a daily
basis to his employers, including the expected dates of grand
jury presentments, issuance of subpoenas by the grand jury,
and summaries of meetings with the prosecutors.
On January 6, 1978, Mr. Saccani appeared before a then
sitting grand jury, was sworn, identified himself as an employee
of the I.C.P.1, explained the function of his employer, and was
appointed by the grand jury as its “agent” for the purpose of
assisting prosecutors in the investigation.
Mr. Saccani was intimately associated with the grand jury
investigation. He accompanied Postal Inspectors on their
interviews of potential grand jury witnesses. He had access to
memoranda of interviews with potential witness. He served
subpoenas duces tecum on grand jury witnesses. He had access
to all documents subpoenaed by the grand jury. Acting on
instructions from the U.S. Attorney’s Office, he stationed him-
self outside the grand jury room, met grand jury witnesses as
they arrived pursuant to subpoena, and reviewed their testi-
mony with them prior to their appearing before the grand jury.
He then introduced the grand jury witnesses to an Assistant
U.S. Attorney, who conducted the examination inside the
grand jury room.!
Although after being appointed “agent” of the grand jury
Mr. Saccani was never physically present within the grand jury
room and although he testified that he never was provided with
'The District Court made no finding that Mr. Saccani met grand jury
witnesses outside the grand jury room and prepared them to testify. The
record created by the District Court establishes that this occurred and the
Government does not contend to the contrary.
6
a transcript of the testimony of any grand jury witness, he
admitted that “I pretty much knew what they were going to say
before they went in. . .,” and he testified that he learned subse-
quent to their appearances that their testimony had been in
agreement with their pre-testimony interviews.
Mr. Saccani was permitted to review a letter draft) bya
U.S. Postal Inspector and sent to the U.S. Attorney’s Uffice.
That letter recited evidence developed in the case, including
grand jury testimony.
On September 22, 1980, Saccani attended a meeting with
the U.S. Attorney and Postal Inspectors called for the purpose
of deciding whether to seek an indictment in this case. Saccani
at that meeting doubtless heard discussions of the grand jury
testimony of certain witnesses.
Sometime after 1e meeting of September 22, 1980, the
U.S. Attorney first questioned the propriety of Mr. Saccani’s
involvement in the investigation. The U.S. Attorney was
informed by an assistant that Saccani’s involvement had been
“pretty extensive and he had been there for a long time.” This
question of the legality of Saccani’s involvement was prompted
by the filing of the United States Court of Appeals’ decision in
United States v. Tager, 638 F.2d 167 (10th Cir. 1980), which
held the disclosure of grand jury materials to an Insurance
Crime Prevention Institute employee was illegal.
On November 15, 1980, the U.S. Attorney wrote a
“Report of Loss, Compromise or Suspected Compromise” to
the Assistant Attorney General for Administration of the
Department of Justice and reported that “(t}here are any
number of possible 6(e) problems arising out of the lawyer-
doctor Insurance Mail Fraud Investigations.” He recited that
the investigator’s presence at pre-grand jury debriefings made
the investigator “aware of the full extent of [a witness's] testi-
mony without reference to the grand jury transcript.”
7
Although Saccani had undertaken on January 6, 1978,
when appointed an “agent” of the grand jury, not to disclose
grand jury information, he in fact followed a regular practice of
keeping I.C.P.I. apprised of the progress of the lawyer-doctor
investigation. He relayed to his employer the names of poten-
tial grand jury witnesses, the fact of issuance of subpoenas,
summaries of meetings with Postal Inspectors and members of
the U.S. Attorney’s Office, and the intentions of the U.S.
Attorney with respect to seeking indictments from the grand
jury. On one occasion (April, 1980), he forwarded to his super-
ior at I.C.P.1. a chart in which he detailed the lawyer-doctor
investigation, marked in red the cases in which convictions had
been obtained, and stated: “We look forward to the day when
all the blocks on the chart appear in red.”
Saccani’s breaches of grand jury secrecy were under-
standable in that he possessed a complete misunderstanding of
the historical function of the grand jury in American law. He
thought the grand jury existed only to preserve the testimony
of witnesses who appeared before it:
A. Yes, it wasn’t a grand jury investigating David Lit-
man. It was the postal inspectors investigating David
Litman.
Q. It wasn’t the grand jury investigating him?
A. No, it was the postal investigators.
Q. What did you perceive as the function of the grand
jury in the investigation?
A. The grand jury function would have been to preserve
the evidence.
Q. Preserve the evidence?
A. Right.
Q. So the witness would just run there to say under
oath...
A
What they had already toid us originally in the mem-
orandums of interview.
Notwithstanding all of the above, the District Court, find-
ing that petitioners had suffered “no prejudice,” denied the
motion to dismiss.
(c) Appeal to the Third Circuit
Petitioners filed a joint appeal to the United States Court
of Appeals for the Third Circuit pursuant to 28 U.S.C. §1291.
The Government filed a motion to dismiss for lack of jurisdic-
tion. A motions panel deferred decision on the Government's
motion to dismiss until argument on the merits.
On September 28, 1981, a panel of the Third Circuit
(Gibbons and Hunter, C.J. and Gerry, D.J.) filed an opinion
and entered a judgment dismissing the joint appeal for lack of
jurisdiction.
A timely-filed petition for rehearing was denied. Petition-
ers subsequently obtained from the Third Circuit a stay of
issuance of its formal mandate until December 4, 1981 to
enable petitioners to file this Petition for Writ of Certiorari.
REASONS FOR GRANTING THE WRIT
(a) The Constitutional Right Asserted
The panel of the United States Court of Appeals for the
Third Circuit wrote that “[a]ppellants tacitly admit that they
can point to no established privilege protecting them from
facing trial....” App. at A-S. Petitioners point, however, to
the Fifth Amendment of the U.S. Constitution, which provides
in relevant part:
No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indict-
ment of a Grand Jury...
Implicit in the holding below is the principle that petitioners’
Fifth Amendment Indictment Clause rights were not violated
9
where the United States Attorney caused an employee of the
victim or victims of an alleged crime under investigation to be
appointed an “agent” of the grand jury and thereafter permit-
ted that victims’ employee to become totally emeshed in the
investigation to the point of having access to all documents
subpoenaed, of meeting grand jury witnesses outside the grand
jury room prior to their testifying, and of meeting with the
United States Attorney, his staff, and federal officials to dis-
cuss whether or not indictment should be sought.
While admittedly there appears to be no reported case in
which a victims’ representative, with approval of the prosecu-
tor, so thoroughly penetrated a grand jury investigation, peti-
tioners assert that such conduct implicates Fifth Amendment
Indictment Clause-protected values sufficiently to support
pretrial review.
Historically and in practice, the grand jury has stood as a
bulwark of freedom, protecting citizens against arbitrary and
oppressive prosecutions. The historic role of the grand jury was
discussed by Mr. Justice Powell in United States v. Calandra,
414 U.S. 338, 342-43, 94 S. Ct. 613 (1974):
The institution of the grand jury is deeply rooted in
Anglo-American history. In England, the grand jury
served for centuries both as a body of accusers sworn to
discover and present for trial persons suspected of crimi-
nal wrongdoing and as a protector of citizens against
arbitrary and oppressive governmental action. In this
country the Founders thought the grand jury so essential
to basic liberties that that provided in the Fifth Amend-
ment that federal prosecution for serious crimes can only
be instituted by “a presentment or indictment of a Grand
Jury.” Cf. Costello v. United States, 350 U.S. 359, 361-
362, 76 S. Ct. 406, 100 L.Ed. 397 (1956). The grand jury's
historic functions survive to this day. Its responsibilities
continue to include both the determination whether there
is probable cause to believe a crime has been committed
10
and the protection of citizens against unfounded criminal
prosecutions. Branzburg v. Hayes, 408 U.S. 665, 686-687,
92 S. Ct. 2646, 2658-2659, 33 L.Ed. 2d 626 (1972).
Writing for this Court in Wood v. Georgia, 370 U.S. 375,828.
Ct. 1364, 1373 (1962), former Chief Justice Warren empha-
sized the grand jury’s role in securing protection against vindic-
tive prosecution:
Historically, this body has been regarded as a primary
security to the innocent against hasty, malicious, and
oppressive persecution; it serves the invaluable function in
our society of standing between the accuser, and the
accused, whether the latter be an individual, minority
group, or other, to determine whether a charge is founded
upon reason or was dictated by an intimidating power or
by malice and personal ill will. (Emphasis supplied.)
In Uniied States v. Dionisio, 410 U.S. 1, 17, 93 S. Ct. 773
(1973), Mr. Justice Stewart referred to the grand jury as “a
protective bulwark standing solidly between the ordinary citi-
zen and an overzealous prosecutor.”
Although the United States Court of Appeals for the
Third Circuit altogether failed to respond to petitioners’ argu-
ment that their Fifth Amendment Indictment Clause rights
had been infringed by the flagrantly unlawful conduct revealed
by the evidence before the District Court, this Court has never
in the past regarded the Fifth Amendment Indictment Clause
to be devoid of substance.
This Court, for example, has always enforced the com-
mand of the Fifth Amendment by preventing the prosecutor or
the trial court from materially amending the charging terms of
an indictment. In Stirone v. United States, 361 U.S. 212, 274,
80 S. Ct. 270, 4 L.Ed.2d 252 (1960), this Court, following Ex
Parte Bain, 121 U.S. 1, 7S. Ct. 781, 30 L.Ed. 849 (1887), wrote
as follows:
The very purpose of the requirement that a man be
indicted by a grand jury is to limit his jeopardy to offenses
charged by a group of his fellow citizens acting indepen-
dently of either prosecuting attorney or judge. Thus the
basic protection the grand jury was designed to afford is
defeated by a device or method which subjects the defen-
dant to prosecution...which the grand jury did not
charge.
See also United States v. Cusmano, 659 F.2d 714,717 (6th Cir.
1981) (“[T]}here is a per se rule prohibiting judicial amendments
to the terms of an indictment”); Wilson v. Jago, 558 F.2d 330,
334 (6th Cir. 1977).
Similarly, this Court has been sensitive to claims of racial
discrimination in selection of the grand jurors. In Castaneda v.
Partida, 430 U.S. 482, 97 S. Ct. 1272 (1977), this Court
affirmed issuance of habeas corpus in favor of a defendant
indicted by an illegally-constituted grand jury. See also Rose v.
Mitchell, 443 U.S. 545, 99 S. Ct. 2993 (1979) (indictment
dismissal proper remedy where defendant indicted by grand
jury chosen in racially discriminatory manner). Congress, in
implementing the Fifth Amendment Indictment Clause guar-
antee, has made selection of the grand jurors subject to the Jury
Selection and Service Act of 1968, 28 U.S.C. §1861 et seq., and
has made indictments returned by grand juries constituted in
violation of that statute subject to dismissal. See United States
v. Bearden, 659 F.2d 590 (Sth Cir. 1981). All of these decisions
and statutes give content to the Fifth Amendment Indictment
Clause guarantee.
This Court, in promulgating Federal Rule of Criminal
Procedure 6(e) (“The Grand Jury. Recording and Disclosure
of Proceedings”), was obviously seeking to protect the grand
jurors from impermissible outside influence. In Douglas Oil
Co. of California v. Petrol Stops Northwest, 441 U.S. 211,99
S. Ct. 1667 (1979), this Court wrote:
12
We consistently have recognized that the proper function-
ing of our grand jury system depends upon the secrecy of
grand jury proceedings. See, e.g., United States v. Procter
& Gamble, 356 U.S. 677, 78 S. Ct. 983, 2 L.Ed.2d 1077
(1958). In particular, we have noted several distinct inter-
ests served by safeguarding the confidentiality of grand
jury proceedings....There also would be the risk that
[private individuals] would try to influence individual
grand jurors. ... For all of these reasons, courts have been
reluctant to lift unnecessarily the veil of secrecy from the
grand jury.
99 S. Ct. at 1672-1673.
In the single prior recorded case in which an I.C.P.1. agent
succeeded in infiltrating an ongoing grand jury investigation as
part of the scope of his private employment, a United States
District Court soundly condemned the intrusion as unautho-
rized and in violation of F.R.Crim.P. 6(e):
This Court is further concerned with the obvious
implication of this apparently new policy of the Depart-
ment of Justice. Permitting the victim of a crime, or his
agent, to participate in, coordinate and potentially directa
grand jury investigation into that crime raises serious
problems. The policy could significantly impair the inde-
pendence and impartiality required of the grand jury in
the performance of its function.
United States v. Tager, 506
F. Supp. 707, 726 (D Kan.
1979). aff'd, 638 F.2d 167
(10th Cir. 1980).
This Court has always been sensitive to the constitutional
requirement that critical steps in the criminal process be taken
by a neutral and detached individual or body. See, e.g., Ward
v. Monroeville, 409 U.S. 57, 62, 93 S. Ct. 80, 84 (1972) (peti-
tioner denied right to neutral and detached judge where a
major portion of town’s income came from penalties imposed
13
by town’s mayor sitting as judge); Coolidge v. New Hampshire,
403 U.S. 443, 449, 91 S. Ct. 2022 (1971) (invalidating warrant
executed by active participant in the investigation, not a “neu-
tral and detached magistrate”); Jn re Murchison, 349 U.S. 133,
134, 75 S. Ct. 623, 624 (1955) (“The due process requirement of
an impartial tribunal [is violated] where the same judge presid-
ing at the contempt hearing had also served as the ‘one man
grand jury’ [in the secret hearings] out of which the contempt
charges arose”); Tumey v. Ohio, 273 U.S. 510, 523, 47 S. Ct.
437, 441 (1927) (invalidating fine for illegal possession of intox-
icating liquor where mayor received a share of such fines). The
Coolidge decision makes it clear that the requirement of inde-
pendence and impartiality is not limited to trial situations, but
extends through all preliminary proceedings where a neutral
decision is mandated, even to the issuance of an initial warrant.
The District Court, while having found “repeated and
continued violations of the provisions of Federal Rule of Crim-
inal Procedure 6(e) (2),” App. at D-10, nevertheless found that
there was “no evidence of prejudice. . . arising through disclo-
sure of any matters occurring before the grand jury.” /d.
This Court has on a number of occasions dealt with the
question of “prejudice” and the presence of impermissible
external influences on the operation of the judicial system. In
Turner v. State of Louisiana, 379 U.S. 466, 85 S. Ct. 546 (1965),
two key witnesses at trial were also deputy sheriffs who
doubled as jury shepherds during the trial. Although the depu-
ties swore that they had not talked to the jurors about the case,
this Court nevertheless held that relief was constitutionally
required:
[E]ven if it could be assumed that the deputies never did
discuss the case directly with any members of the jury, it
would be blinking reality not to recognize the extreme
prejudice inherent in this continual association.
379 U.S. at 473 (emphasis supplied.)
14
Similary, in Estes v. State of Texas, 381 U.S. 532,858. Ct. 1628
(1965), this Court set aside a conviction without requiring a
showing of prejudice:
It is true that in most cases involving claims of due process
deprivations we require a showing of identificable preju-
dice to the accused. Nevertheless, at times a procedure
employed by the Siate involves such a probability that
prejudice will result that it is deemed inherently lacking in
due process.
381 U.S. at 543-544.
See also Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507
(1966); In re Murchison, 349 U.S. 133, 136,75 S. Ct. 623 (1955)
(“{O]ur system of law has always endeavored to prevent even
the probability of unfairness”); Rideau v. State of Louisiana,
373 U.S. 723, 726, 83 S. Ct. 1417 (1963).
It is beyond argument that the prospect of the I.C.P.1.
agent, who informed his superiors that he looked forward to
the day when all subjects of the investigation would be con-
victed, huddling with subpoenaed grand jury witnesses outside
the grand jury room, having access to all documents of the
grand jury investigation, and being privy to conversations with
the prosecutors at which grand jury materials were freely dis-
cussed, presents “such a probability that prejudice will result
that it is deemed inherently lacking in due process.” Estes v.
State of Texas, supra.
The failure of the Third Circuit to have recognized and
remedied the Fifth Amendment Indictment Clause violation
presented by this case, therefore, is probably itself not in
accord with the prior decisions of this Court which give sub-
stantive content to the Fifth Amendment and prevent external
influences from infecting the judicial process.
The question presented to this Court for its review, how-
ever, is not whether in fact petitioners’ Fifth Amendment
Indictment Clause rights have been violated on the circumstan-
15
ces revealed in the District Court. The question is whether the
Third Circuit had the jurisdiction to make that determination
on a pretrial appeal. Petitioners will now turn to that question
and demonstrate that it merits review by this Court.
(b) The Jurisdictional Issue Presented for Review
Petitioners recognize that the power of the United States
Court of Appeals to review an order of the District Court by
appeal as of right derives from Congress under 28 U.S.C.
§ 1291:
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 of the Virgin Islands, except where
direct review may be had in the Supreme Court.
Petitioners further recognize that “[f]inality as a condition of
review is an historic characteristic of federal appellate proce-
dure,” Cobbledick v. United States, 309 U.S. 323, 324-25, 60S.
Ct. 540 (1940). The requirement o* “finality” is not, however,
inexorable. As Professor Moore notes, “Sound as the final
judgment rule may be as a rule of general application, it will
work injustice if inexorably applied, and in truth it is subject to
many qualifications and exceptions.” 9 Wm. Moore, Moore's
Federal Practice ¥ 110.07, at 109 (2d ed. 1980).
Prior to 1977, the “finality” doctrine was applied with
special rigor in criminal cases. See DiBella v. United States,
309 U.S. 121, 82 S. Ct. 654 (1962). Only one federal case at that
time permitted appeal from an order which was not “final” in
the sense of terminating a federal criminal action. Stack v.
Boyle, 342 U.S. 1, 72 S. Ct. 1 (1951) (upholding appellate
jurisdiction to review order denying application for reduction
in bail).
16
In Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034
(1977), this Court, however, applied the “collateral order”
doctrine of Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541, 69 S. Ct. 1221 (1949), and held that an order denying
a motion to dismiss an indictment on Double Jeopardy
grounds was appealable as a “final decision” of the district
court. In the Cohen case, this Court had held that the statute,
28 U.S.C. §1291, was to be given a “practical rather than a
technical construction,” 69 S. Ct. at 1226, and then had set
forth three criteria for the appealability of “collateral orders”
which clearly lack the normally requisite finality: first, the
decision below must have fully disposed of the question raised;
second, the decision must be other than a “step toward final
disposition on the merits” but rather must be “completely
collateral” to the merits of the case proper, id. at 1226; and
third, the decision below must have involved an important
right which would be “lost, probably irreparably” if review had
to await final judgment. /d.
Applying the Cohen “collateral order” criteria in Abney,
this Court unanimously agreed that a Double Jeopardy claim
made and rejected before trial was immediately reviewable by
appeal. This Court emphasized that the constitutional guaran-
tee against Double Jeopardy was in part a guarantee against
being tried the second time and that a reservation of review of
that question until after trial would fail to vindicate the consti-
tutional right.
This Court has on two occasions considered the applica-
bility of the “collateral order” doctrine in criminal appeals. In
United States v. McDonald, 435 U.S. 850, 98 S. Ct. 1547
(1978), this Court held that an order denying a motion to
dismiss an indictment on Sixth Amendment “speedy trail”
grounds was not appealable. The McDonald Court distin-
guished Abney by observing that denial of the motion was not
a “complete, formal and, in the trial court, final rejection” of
defendants’ claim, 98 S. Ct. at 1551, because the resolution of a
17
speedy trial claim “necessitates a careful assessment of the
particular facts of the case” and that this is best done “only
after the relevant facts have been developed at trial.” 98 S. Ct.
at 1551. Similarly, the decision below was not completely
collateral to the merits of the case proper, since the extent to
which delay had prejudiced the defendant was “intertwined”
with the facts and evidence at trial. Finally, the constitutional
rights in Mc Donald was not a right not to be tried, but rather a
right against pretrial delay. Permitting the trial to occur before
reviewing the speedy trial question would not, therefore, leave
the constitutional right unvindicated.
In Helstoski v. Meanor, 442 U.S. 500, 99 S. Ct. 2445
(1979), this Court held that an order denying a motion to
dismiss founded on the Speech and Debate Clause was appeal-
able. One purpose of the Speech and Debate Clause, this Court
observed, was to protect members of Congress not only from
trial “but from the burden of defending themselves,” and fail-
ure to provide immediate review would cause a substantial
portion of the constitutional guarantee to be irrevocably lost.
Application by the Courts of Appeals of the Abney-
Helstoski-McDonald line of decisions to orders denying
motions to dismiss based on preindictment defects has pro-
duced considerable confusion and lack of agreement which this
Court should now act to resolve.
The two most nearly on point decisions are United States
v. Yellow Freight Systems, Inc., 637 F.2d 1248 (9th Cir. 1980),
cert. denied, 50 U.S.L.W. 3245 (Oct. 5, 1981), and Jn re
November 1979 Grand Jury (Velsicol Chemical Corp.), 616
F.2d 1021 (7th Cir. 1980).
In the first, United States v. Yellow Freight Systems, Inc.,
637 F.2d 1248 (9th Cir. 1980), cert. denied, 50 U.S.L.W. 3245
(Oct. 5, 1981), the defendant-corporations had been charged in
informations (and not by indictment) with violation of the
Elkins Act, 49 U.S.C. §41(1) (unlawful rate concessions). In a
motion to dismiss, the defendants argued that they had been
charged with an “infamous crime” which, under the Fifth
Amendment, required a grand jury indictment. The district
court denied the motion.
On appeal, the Ninth Circuit had little difficulty in holding
that under the “collateral order” doctrine the question of
whether defendants’ right to be prosecuted only by grand jury
indictment had been violated was immediately reviewable,
notwithstanding the lact of “finality”:
Yellow Freight and Duncan Ceramics contend that
they have been charged with an infamous crime for which
they may not, under the indictment clause of the Fifth
Amendment, be “held to answer” except upon grand jury
indictment. This claim meets all three of the standards for
immediate appealability. Denia! of defendants’ motion
completely and finally determined their claim in the trial
court. Allowing the trial to progress so that facts may
develop will not facilitate consideration of their claim. Cf.
United States v. McDonald, 435 U.S. 850, 98 S. Ct. 1547,
56 L.Ed.2d 18 (1978) (no immediate appeal of denial of
speedy trail claim under Sixth Amendment because deter-
mination of merits of claim depends on circumstances
surrounding trial.) Second, the entitlement of Yellow
Freight and Duncan Ceramics to an indictment before
prosecution is wholly collateral to and independent of the
issue of their guilt on the underlying charges. Finally, the
claim involves a right that would be irretrievably lost if the
defendants were forced to stand trial before appeal. One
purpose of the indictment clause is to shield defendants
from unwarranted prosecutions for serious crimes. Wood
v. Georgia, 370 U.S. 375, 390 82 S. Ct. 1364, 1373, 8
L.Ed.2d 569 (1962); Stirone v. United States, 361 U.S.
212, 218 & n.3, 80 S. Ct. 270, 273 & n.3, 4 L.Ed.2d 252
19
(1960); Gaither v. United States, 413 F.2d 1061, 1066
(D.C. Cir. 1969); United States v. Cox, 342 F.2d 167, 170
(Sth Cir.), cert. denied, 381 U.S. 935, 85 S. Ct. 1767, 14
L.Ed.2d 700 (1965); see also United States v. Basurto, 497
F.2d 781, 785 (9th Cir. 1974). Like the contentions held
immediately appealable in Abney and Griffin, therefore,
this claim “involves a right to be free from prosecution
itself, rather than merely to be free from subsequent con-
viction.” Griffin, 617 F.2d at 1345; see Abney, 431 U.S. at
660-62, 97 S. Ct. at 2040-41. We therefore deny the motion
to dismiss with respect to this claim.
637 F.2d at 1251.
The Yellow Freight Systems case, which petitioners sug-
gest is correctly decided, stands for the proposition that the
Fifth Amendment Indictment Clause right to be indicted by a
grand jury for “infamous crimes” is the kind of specific guaran-
tee which, like the Speech and Debate Clause or the Double
Jeopardy Clause, cannot be vindicated if appellate review is
reserved until after trial. As such, it is contrary to the holding of
the Third Circuit in this case.
In In re November 1979 Grand Jury (Velsicol Chemical
Corp.) case of the Seventh Circuit is similar. A grand jury in
1977 returned an indictment against Velsicol and certain offic-
ers charging various offenses. The defendants moved to dis-
miss and, in an evidentiary hearing, demonstrated that there
had been numerous instances of prosecutorial abuses involving
the grand jury investigation. The District Court granted the
motion to dismiss. United States v. Gold, 470 F. Supp. 1336
(N.D. Ill. 1979) (Leighton, J.). Velsicol then, at a later time,
moved for an order to terminate a renewed investigation by a
different grand jury looking into the same matters. The Sev-
enth Circuit rejected the Government’s argument that the
order below denying the motion was unappealable:
20
In response to an inquiry of this Court, the Govern-
ment argued initially that the instant appeals are from
non-final orders and should be dismissed for lack of juris-
diction. Although as a general matter appeals from orders
regarding ongoing grand jury proceedings are not favo-
red...the Supreme Court has adopted a flexible view of
finality that takes into account of exceptional circumstan-
ces. [Citation omitted.] This case falls within the excep-
tional category.
*- * * %
Appealability now is warranted because Velsicol’s argu-
ments raise the prospect of a virtually unique kind of
injury arguably not remediable by a future review.
616 F.2d at 1024-1025.
Next after Yellow Freight Systems, Inc. and Velisicol
Chemical Corp. (which involve claims of violation of the Fifth
Amendment grand jury indictment right), petitioners suggest
that the most relevant decisions are United States v. Griffin,
617 F.2d 1342 (9th Cir. 1980), cert. denied, 101 S. Ct. 167
(1980), and United States v. Burt, 619 F.2d 831 (9th Cir. 1980).
In Griffin, the Ninth Circuit, applying the Abney-
Mc Donald— Helstoski reasoning, found that an order denying
a motion to dismiss was appealable where the ground
advanced for dismissal was the Fifth Amendment Due Process
right to be free from vindictive prosecution. The Ninth Circuit
observed that denial of the vindictive prosecution claims in the
trial court was a complete and final determination, that the
question was wholly collateral to the merits of the prosecution
itself, and that the right to be free from vindictive prosecution
“would be irreparably lost if appellate review had to await the
final outcome at trial.” 617 F.2d at 1346.
The similarity between appellants’ substantive claim—to
be free from prosecution begun by a grand jury indictment
21
where the grand jury had appointed as its “agent” a wholly
private party who was a paid representative of the victims of
the alleged crime—and the claim in Griffin and Burt is undeni-
able.
This is not to say that all defects or irregularities in grand
jury proceedings leading to an indictment entitle the defendant
to an interlocutory appeal from denial of a motion to dismiss.
For example, in United States v. Garner, 632 F.2d 758 (9th Cir.
1980), the defendant contended in a motion to dismiss that he
had been indicted by a grand jury which had not heard all the
evidence firsthand. After reviewing at length this Court’s crimi-
nal “collateral order” decisions (Abney, McDonald, Hel-
stoski), the Ninth Circuit agreed that “(t]he right to an
indictment by a grand jury is, therefore, intended to insure that
one is not ‘held to answer’ for an infamous crime unless an
independent body standing between the prosecutor determines
that the accused shall be required to do so.” 632 F.2d at 765.
The Ninth Circuit in Garner, however, declined to hold that all
allegations of grand jury irregularities amounted to Fifth
Amendment violations:
Our conclusion is premised primarily upon prag-
matic considerations. The “collateral order” exception
should be narrowly construed so that the exception does
not swallow the finality rule. Although one may dispute
the wisdom of the finality rule, Congress has determined
that, in most instances, a “final decision” is a predicate to
the exercise of federal appellate jurisdiction.
To hold the order here in question appealable would
open the possibility for a pretrial appeal in nearly every
criminal case. A claim like the one appellant is making—
that the evidence before the grand jury was not adequate
and competent, i.e. that it was hearsay evidence—would
be available in nearly every instance.
632 F.2d at 666.
22
There are a number of decisions of the Courts of Appeals
which, like Garner in the Ninth Circuit, stand for the proposi-
tion that preindictment irregularities of a less than constitu-
tional dimension are not appealable pretrial. See, e.g., United
States v. Sears, Roebuck and Company, 647 F.2d 902 (9th Cir.
1981) (preindictment delay and estoppel not appealable under
Abney reasoning); United States v. Linton, 655 F.2d 930 (9th
Cir.1980) (prosecutorial misconduct and alleged perjury
before grand jury not appealable pretrial); United States v.
Bendis, 657 F.2d 1025 (9th Cir.1981). All of these cases involve
the assertion of pretrial irregularities of less than constitutional
dimension.
The infiltration into an ongoing grand jury investigation
of any employee of the victims of the alleged crime under
investigation, as occurred here, “involves such a probability
that prejudice will result that it is deemed inherently lacking in
due process.” Estes v. State of Texas, supra, 381 U.S. at
542-543. The magnitude of the breach of secrecy presented by
this case takes it out of the realm of “preindictment irregulari-
ties” such as were involved in the foregoing cases and elevates
this case to the level of a Fifth Amendment constitutional
violation.
On the question whether prosecutorial vindictiveness can
be reviewed pretrial under 28 U.S.C. §1291 the cases are in
hopeless conflict. The Ninth Circuit has repeatedly held that
such preindictment or preinformation vindictiveness by the
prosecutor violates the commands of the Due Process Clause
of the Fifth Amendment and is reviewable pretrial as a matter
of right. See, e.g., United States v. Griffin, 617 F.2d 1342 (9th
Cir.1980), cert. denied, 101 S. Ct. 167 (1980); United States v.
Burt, 619 F.2d 831 (9th Cir.1980); United States v. Shaw, 655
F.2d 168 (9th Cir.1981); United States v. Wilson, 639 F.2d 500
(9th Cir. 1981).
23
The District of Columbia Circuit and the Fifth Circuit,
however, categorically disagree with the above decisions. In
United States v. Brizendine, 659 F.2d 215 (D.C. Cir.1981), the
court held (per J. Skeliy Wright, C.J.) that prosecutorial vin-
dictiveness could not be appealed pretrial as a matter of right
under 28 U.S.C. §1291 and stated that “[w]e are not bound by
the Ninth Circuit's approach to interlocutory appeals. We find
its reasoning to be unpersuasive....” Similary, in United
States v. Gregory, 656 F.2d 1132 (Sth Cir.1981), the Fifth
Circuit expressly refused to follow Griffin in the Ninth Circuit
and held that claims of prosecutorial vindictiveness were not
appealable pretrial.
The Third Circuit in a decision filed shortly before the
panel decision in the present case, United States v. Levine, 658
F.2d 113 (3rd Cir.1981), accurately distinguished the Ninth
Circuit’s Yellow Freight Systems case from decisions which
dealt with claims of vindictive prosecution:
Distinguishable from the decisions focusing on prosecu-
torial vindictiveness is United States v. Yellow Freight
Systems, Inc., 637 F.2d 1248, 1250-51 (9th Cir. 1980),
which held that denial of a claim alleging prosecution of
an “infamous crime” by information in violation of the
indictment clause of the Fifth Amendment created an
immediately appealable order. There the claim had consti-
tutional dimensions. And like the bail allegations in Stack
[v. Boyle], an infringement of the right to indictment bya
grand jury could only be vindicated prior to trial.
658 F.2d at 126 (emphasis supplied).
The right which petitioners assert in this case is
explicitly created by the Fifth Amendment’s Indictment
Clause and, as the Ninth Circuit in Yellow Freight Sys-
tems, Inc. held and as the Third Circuit in Levine agreed,
that constitutional right is on a par with the Double
Jeopardy Clause also found in the Fifth Amendment and
the Speech and Debate Clausc: all are of a nature such as
24
to be “lost, probably irreparably” if not vindicated by
pretrial review.
As the discussion above indicates, there is considerable
conflict among the decisions of the various Courts of Appeals
which have considered the appealability of preindictment
defects in the institution of criminal prosecutions. This Court
should exercise its power, grant certiorari in this case, and act
to resolve that conflict.
Respectfully submitted,
Davip J. ARMSTRONG
DICKIE, McCAMEY & CHILCOTE
3180 U.S. Steel Building
Pittsburgh, PA 15219
(412) 281-7272
Counsel for Petitioner,
S. Davip LITMAN
HAROLD GONDELMAN
GONDELMAN, BAXTER, MANSMANN
& McVERRY
718 Fifth Avenue
Pittsburgh, PA 15219
(412) 765-2500
Counsel for Petitioner,
IRVING M. PorTNoy
25
CERTIFICATE OF SERVICE
I, David J. Armstrong, a member of the Bar of the
Supreme Court of the United States, hereby certify that pursu-
ant to Rule 33.2(a) of the Rules of the Supreme Court of the
United States I have served the foregoing Petition for Writ of
Certiorari on counsel for Respondent by depositing the same
in the United States mail, postage prepaid, on December 2,
1981, addressed to:
Thomas A. Daley, Esq.
Asst. U.S. Attorney
Chief Criminal Division
633 U.S. Courthouse & Post Office
Pittsburgh, PA 15219
DAVID J. ARMSTRONG
A-l
United States Court of Appeals
For THE THIRD CIRCUIT
No. 81-1444
UNITED STATES OF AMERICA
Vv
S. DAVID LITMAN, ESQUIRE
IRVING M. PORTNOY, ESQUIRE
Appellants
(D.C. Crim. No. 81-00016)
On APPEAL FROM THE UNITED STATES District Court
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Argued: September 15, 1981
Before: GipBpons and HuNTER, Circuit Judges
and Gerry, District Judge*
(Opinion Filed: September 28, 1981)
HAROLD GONDELMAN, Esq. (Argued)
GONDELMAN, BAXTER, MANSMANN
& McVERRY
718 Fifth Avenue
Pittsburgh, PA 15219
Attorneys for Irving M. Portnoy
Davip J. ARMSTRONG, Esq. (Argued)
DICKIE McCAMEY & CHILCOTE
3180 U.S. Steel Building
Pittsburgh, PA 15219
* Hon. John F. Gerry, United States District Judge for the District of New
Jersey, sitting by designation.
APPENDIX A
A-2
DANIEL H. SHAPIRA, Esq.
RosertT L. Potter, Esa.
JerF L. Lewin, Esq.
TITUS MARCUS & SHAPIRA
624 Oliver Building
Pittsburgh, PA 15222
Attorneys for S. David Litman
Tuomas A. DALEY
Assistant U.S. Attorney
Chief-Criminal Division
Davip M. CurRY
Assistant U.S. Attorney
Pau J. Brysu (Argued)
Assistant U.S. Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
GiBBons, Circuit Judge.
S. David Litman and Irving M. Portnoy, attorneys in
Pittsburgh, appeal from the denial of their motion of dismiss
an indictment charging them with conspiracy and eighteen
substantive counts arising out of an alleged scheme to defraud
insurance companies. The indictment charges that appellants
combined with doctors to furnish false and inflated medical
bills to the insurance carriers in support of personal injury
damage claims. Appellants contend that the participation in
the grand jury proceeding of Daniel M. Saccani, a private
investigator hired by a consortium of insurance companies,
resulted in gross violations of Federal Rule of Criminal Proce-
dure 6(e)(2), and warranted dismissal of the indictment. We
A-3
hold that the district cc urt’s refusal to grant their motion is not
an appealable order.'
Since 1977, postal inspectors and the United States Attor-
ney in the Western District of Pennsylvania have pursued an
investigation of mail fraud by combinations of lawyers and
doctors against casualty insurance companies. The investiga-
tion focused particularly on the practice of submitting false
and inflated medical reports and bills to the insurance compa-
nies by lawyers on behalf of clients referred to cooperating
doctors. Throughout the investigations of appellants and of
other Pittsburgh-area attorneys and doctors, Daniel M. Sac-
cani, a private investigator employed by the Insurance Crime
Prevention Institute, a nonprofit corporation organized by 350
casualty insurance carriers, assisted postal investigators and
the United States Attorney for the Western District of Pennsyl-
vania. He was appointed an “agent” of the grand jury for the
purpose of aiding in its investigation of mail fraud. Saccani
helped obtain documents, assisted at witness interviews, and
on occasion overheard discussions between members of the
United States Attorney’s staff and a postal inspector concern-
ing grand jury material.
In October 1977, grand jury subpoenas duces tecum were
issued to five Pittsburgh law firms, including the one with
which appellants are associated. An indictment against appel-
lants was returned on February 3, 1981. On February 23, 24,
25, and on March 2 and 3, 1981, the district court held in
camera evidentiary hearings on the alleged Rule 6(e)(2) viola-
tions resulting from Saccani’s participation in the grand jury
investigations. The district court, in an opinion and order
‘Appellants also petitioned for a writ of mandamus or prohibition
directing the district court to dismiss the indictment. A separate panel of
this court denied the petition. Litman and Portnoy v. Weber, No. 81-1526
(3d Cir. April 23, 1981).
A4
dated March 16, 1981, concluded that repeated and continuous
violations of Rule 6(e)(2) had occurred, but that dismissal of
the indictment was not an appropriate remedy. The district
judge found that the violations of grand jury secrecy emanating
from Saccani’s cooperation did not result in any prejudice to
the appellants.
II.
Denial of a motion to dismiss an indictment is a collateral
order which may not be appealed unless the order has conclu-
sively determined the claim, has resolved an issue completely
separate from the merits of the action, and would be effectively
unreviewable on appeal from a final judgment because the
right at issue would be irreparably lost were the case to proceed
to trial. Helstoski v. Meanor, 442 U.S. 500 (1979), Abney v.
United States, 432 U.S. 651 (1977); Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541 (1949); United States v. Levine, No.
80-2648 (3d Cir. Aug. 17, 1981). The Supreme Court has
identified only two instances in which denial of a motion to
dismiss an indictment is immediately appealable. In Abney,
supra, the Court held a pretrial order rejecting defendant's
double jeopardy claim satisfied the three prerequisites to
appealability of a collateral order. In Helstoski, supra, the
Court held a claim invoking the constitutional Speech and
Debate Clause privilege met the requirements of collateral
finality. Cf. United States v. Mac Donald, 435 U.S. 850 (1978)
(denial of a motion to dismiss indictment on speedy trial
grounds held nonappealable).
As this circuit recently noted in United States v. Levine,
supra, the Abney-Helstoski exceptions to the final judgment
rule derive from the nature of the right asserted: in both cases,
defendants invoked a constitutional privilege not to be tried.
Post conviction relief would in fact afford no relief, for the
rights at stake protected not only against conviction, but
against facing trial at all. Appellants in this case can invoke no
A-5
right not to be tried. Hence, whether or not the order rejecting
their motion to dismiss the indictment represents a complete
and final disposition of appellants’ Rule 6(e)(2) claim which
trial on the merits would not develop further, appellants fail to
satisfy the third element of the collateral finality rule as applied
in criminal cases.
Appellants tacitly admit that they can point to no estab-
lished privilege protecting them from facing trial, but request
that we follow the Ninth Circuit in adding to the Supreme
Court’s short list of collateral order exceptions a rule permit-
ting immediate appealability where there has been extreme
prosecutorial misconduct. See United States v. Griffin, 617
F.2d 1342 (9th Cir. 1980); United States v. Burt, 619 F.2d 831
(9th Cir. 1980). But see, United States v. Brizendine, No.
81-1196 (D.C. Cir. July 17, 1981) (holding that a claim of
selective prosecution may be adequately remedied at post-
conviction stage).
While this argument is very attractive, it is foreclosed to us
in this case by virtue of a separate panel of this court’s rejection
of the merits of appellants’ claim of prosecutorial misconduct
in their petition for a writ of mandamus. Litman and Portnoy
v. Weber, No. 81-1526 (3d Cir. April 23, 1981). See also In re
Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1039 (3d
Cir. 1980) (dictum) (suggesting denial of pretrial evidentiary
hearing on prosecutorial misconduct is nonappealable because
post conviction relief may remedy putative denial of right to
impartial grand jury, but holding that the pretrial order did not
conclusively determine the issue).
Thus, while we do not hold that denial of a motion to
dismiss an indictment on grounds of gross prosecutorial mis-
conduct may never be immediately appealable, the prior dispo-
sition of appellants’ petition for mandamus renders it
A-6
inappropriate for us to consider the merits of appellants’ the-
ory. Because the district court’s order is not collaterally final
under the Supreme Court’s Abney-Helstoski decisions, we
hold appellants’ claim is not appealable at this time.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
B-1
United States Court of Appeals
For THE THIRD CIRCUIT
No. 81-1444
UNITED STATES OF AMERICA
v.
S. DAVID LITMAN, ESQUIRE
IRVING M. PORTNOY, ESQUIRE
Apvellants
(D.C. Crim. No. 81-00016)
Sur Petition For Rehearing
Present: SEITZ, Chief Judge, ADAMS, GIBBONS, HUN-
TER, GARTH, HIGGINBOTHAM and SLOV-
ITER, Circuit Judges, and GERRY, District Judge*
The petition for rehearing filed by
Appellants
in the above entitled case having been submitted to the judges
who participated in the decision of this court and to all the
other available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges of the
circuit in regular active service not having voted for rehearing
by the court in banc, the petition for rehearing is denied.
By the Court,
Dated: October 28, 1981 ” Judge
*Honorable John F. Gerry, United States District Judge for the District
of New Jersey on panel denial only.
APPENDIX B
C-1
United States Court of Appeals
For Tue THIRD CIRCUIT
No. 81-1444
UNITED STATES OF AMERICA
vs.
S. DAVID LITMAN, ESQUIRE
IRVING M. PORTNOY, ESQUIRE,
Appellants
(D.C. Criminal No. 81-00016)
On APPEAL FROM THE UNITED STATES District Court
For THE WESTERN District OF PENNSYLVANIA
Present: GIBBONS and HUNTER, Circuit Judges and
GERRY, District Judge*
JUDGMENT
This cause came on to be heard on the record from the
United States District Court for the Western District of Penn-
sylvania and was argued by counsel on September 15, 1981.
On consideration whereof, it is now here ordered and
adjudged by this Court that the within appeal be, and the same
is hereby dismissed for want of an appealable order in accor-
dance with the opinion of this Court.
ATTEST:
M. ELIZABETH FERGUSON
Chief Deputy Clerk
September 28, 1981
*Honorable John F. Gerry, United States District Judge for the District
of New Jersey, sitting by designation.
APPENDIX C
D-1
IN THE
UNITED STATES DISTRICT COURT
For THE WESTERN District Or PENNSYLVANIA
UNITED STATES OF AMERICA
Vv.
S. DAVID LITMAN, Criminal No. 81-16
ESQUIRE
IRVING M. PORTNOY,
ESQUIRE
FINDINGS AND OPINION
WEBER, C.J.
For several years in this District an ongoing investigation
has been conducted by the Inspectors of the Postal Service on
the general subject of mail fraud directed at casualty insurance
companies by combinations of lawyers and medical doctors,
and their intermediaries. Beginning in 1977 this investigation
centered on the practice of false and inflated medical reports
and medical bills in support of personal injury claims submit-
ted to casualty insurance carriers by lawyers on behalf of
clients who had been referred to the cooperating doctors.
As a result of the investigation successive grand juries had
returned indictments for mail fraud against a number of law-
yers and medica! doctors based on these practices and several
lawyers and medical doctors have been convicted after trial or
upon pleas of guilty to these charges.
The phase of this investigation pertinent to the indictment
of the present defendants began with grand jury subpoenas
duces tecum issued in October 1977 to five law firms in Pitts-
burgh, including the firm in which the two present defendants
are associated.
APPENDIX D
D-2
The principal thrust of Defendant’s attack on this indict-
ment arises from the participation of Daniel Saccani in the
investigation.
Daniel Saccani is an employee of the Insurance Crime
Prevention Institute (ICPI) assigned to its Pittsburgh area
office. The ICPI is a non-profit corporation organized by the
casualty insurance industry, having a membership of about 350
companies or groups of companies but serving the industry at
large. Its mission is to investigate and detect fraud against
insurance companies. He is a graduate of the University of
West Virginia, has held various positions in the field of crimi-
nal investigations and specialized training in insurance investi-
gation. He carries an identifying credential of the ICPI which
designates him as a “special agent.” He has access to the claim
files of insurance companies, both members of ICPI and non-
members. He also has access to the central files of the “Cleve-
land Index Bureau” and the “Property Loss Insurance
Register”, which are central indexes of the insurance industry
listing claimants and attorneys for claimants.
Saccani cooperated with the Postal Inspectors in many
ways throughout these investigations in ways similar to his
activities in the present case. On January 6, 1978 he was taken
before a grand jury then considering related cases by an Assis-
tant United States Attorney where he explained the purpose of
the ICPI, and his function in the investigation. He was then
sworn in before the grand jury as an “agent” of the grand jury,
and he swore to maintain the secrecy of its proceedings. He
continued thereafter to assist the Postal Inspectors in the inves-
tigation of these matters, principally by serving as a liaison
between them and the various insurance companies, identify-
ing and locating pertinent files, checking names through the
Cleveland Index, assisting at witness interviews, and otherwise
making his expertise and his industry connection available to
the investigating officers.
D-3
This matter was first brought before this member of the
Court on January 30, 1981, when a Motion to Quash Grand
Jury Subpoena Duces Tecum was presented on behalf of the
law firm of defendants, and a Motion to Disband the Grand
Jury or in the Alternative to Seal the Indictment was presented
by counsel on behalf of defendant S. David Litman. The return
of the subpoena was stayed and a hearing was set for Monday,
February 2, 1981 on both motions, to be held in camera
because of the ongoing grand jury proceedings, the allegations
of breach of grand jury secrecy, and the allegation of prosecu-
torial misconduct. The United States filed a reply and both
parties filed briefs over the weekend and the hearing began at
8:20 A.M., Monday, February 3, 1981. The Court was
informed that an appointment had been made with an Assis-
tant Attorney General of the United States for a conference
between counsel for S. David Litman and the Assistant United
States Attorney for that afternoon in Washington.
The court informed counsel that it would continue to hear
matters in camera related to the alleged breaches of grand jury
secrecy, that it would consider further in camera proceedings
with relation to other charges of prosecutorial misconduct, and
recessed the meeting until Tuesday, February 3, i981 at 8:30
A.M., on the return of counsel from Washington.
On February 3, 1981, being informed that the Attorney
General would take no action because the matter was now
before a judge of the District Court, the court proceeded. On
the presentation of an adequate Schofield affidavit by the
Assistant United States Attorney the court denied the motion
to quash the subpoena duces tecum. The court refused to
disband the grand jury but instead ordered that any indictment
be sealed and that further proceedings relating to grand jury
matters would be held in camera.
Related cases involving other lawyers and medical doctors
were investigated and prosecuted in 1978, 1979 and 1980, but
D4
the investigation of the present defendants began in 1980, and
the grand jury which heard the evidence and returned the
indictment against these two defendants was empaneled on
May 23, 1980.
On February 3, 1981, the grand jury returned an indict-
ment charging S. David Litman, Esq., and Irving M. Portnoy,
Esq., with conspiring with others known to the grand jury to
refer clients of the law firm to three medical doctors for treat-
ment and evaluation of accidental injuries. It charged that
these three doctors would furnish false and inflated medical
bills and reporis which misrepresented the nature and extent of
medical treatment they allegedly furnished the clients, and the
defendants would furnish these reports to various insurance
carriers in support of personal injury damage claims. The three
doctors would then receive portions of the proceeds of the
settIment claims received by the law firm. Each of these medi-
cal doctors have entered pleas of guilty to similar charges in
cases involving other attorneys and have cooperated with the
government in the investigation of the present matter. In the
execution of the scheme it is charged that matter would be
transmitted and caused to be transmitted by the United States
Postal System. In addition to the conspiracy count, 18 substan-
tive counts are alleged.
Upon its return the indictment was sealed and Defendant
S. David Litman’s counsel presented a new and improved
Motion to Dismiss Indictment, to Suppress Evidence and for
Other Appropriate Sanctions. Counsel for the other Defen-
dant, Irving M. Portnoy, filed a motion to join in Defendant
Litman’s motion, and attended all hearings but did not partici-
pate. He reserved the right to file other pretrial motions on his
behalf after the disposition of the pending motions.
Evidentiary hearings were held in camera on February 23,
24, 25, March 2 and 3, 1981. The Court attempted to and was
partially successful in restricting these hearings to the subject
D-5
matter of the allegations of violations of Federal Rule of
Criminal Procedure 6(e), which it considered appropriate for
in camera consideration. However, in the course of the
extended testimony some matters touching on other grounds
advanced by defendant for dismissal were raised. The Court
heard testimony of Postal Inspector Siano, who was the Postal
Service Inspector in charge of this case; Daniel B. Saccani, the
Insurance Crimes Prevention Institute “special agent” whose
activities form the principal basis of the charge of violation of
grand jury secrecy made here; Dr. Norbert F. Dobrowolski,
one of the physicians involved in the alleged conspiracy; Unit-
ed States Attorney Robert J. Cindrich; Stephen B. Shiffrin,
Esq., Assistant Director and General Counsel of the Insurance
Crime Prevention Institute; and Richard Baldwin, Senior
Regional Manager of the Insurance Crime Prevention Insti-
tute. Numerous other witnesses subpoenaed by the Defendant
were not heard because the Court determined that their testi-
mony would not be relevant to the issue of violation of grand
jury secrecy, or was merely cumulative. A large volume of
exhibits was introduced, much of which consisted of files of
daily reports of activities, charts and schedules.
FINDING OF FACT
1. In 1977 Postal Service Inspectors in Pittsburgh were
engaged in the investigation of schemes involving fraud on
insurance companies by the presentation of false and
inflated damage claims by lawyers and medical doctors in
which the mails were used.
2. Daniel B. Saccani was at that time and since an employee
of the Insurance Crime Prevention Institute, a nonprofit
association of the casualty insurance industry having its
purpose the assistance of law enforcement agencies in the
investigation of fraud involving insurance claims. He car-
ried identifying credentials as a “special agent” of the
ICPI.
10.
D-6
Daniel B. Saccani was not at any relevant time an
employee of the Federal Government.
Daniel B. Saccani, by virtue of his employment, has access
to the claim files of casualty insurance companies, both
members of the ICPI and non-members. Saccani also has
access to certain industry records and indices known as
the “Cleveland Index Bureau” and the “Property Insur-
ance Loss Register” which maintains indexes of claimants
and attorneys against all insurance companies.
Between mid-1977 and January 1981, Saccani was
requested to and did assist inspectors of the United States
Postal Service in Pittsburgh, Pa. in the investigation of
mail fraud involving insurance claims.
Saccani was aware that the United States Attorney had
subpoenaed for the grand jury the records of five law
offices, including that of the defendants herein, Litman,
Litman, Harris & Specter (the Litman law firm).
The records of the Litman law firm consisting of medical
reports and checks paid to medical doctors obtained by
grand jury subpoena were seen by Saccani in the course of
the investigation from and after November 1977.
On January 6, 1978, Saccani appeared before a then sit-
ting grand jury investigating insurance fraud through the
mails, was sworn, identified himself as an employee of the
Insurance Crime Prevention Institute, explained the func-
tion of the ICPI, and was appointed by the grand jury asa
“agent” of the grand jury for the purpose of assisting
postal inspectors in the investigation of mai! fraud arising
from schemes to defraud insurance companies.
Saccani was instructed about the secret nature of the
grand jury proceedings.
The grand jury which appointed Saccani as its agent was
not the one which returned the present indictment against
S. David Litman and Irving M. Portnoy.
12.
13.
14.
15.
D-7
Thereafter for a period of over three years Saccani worked
together with Postal Inspectors, supplying materials from
his own resources, such as insurance industry indexes and
claim files, and reviewing material subpoenaed by the
grand jury, identifying potential witnesses, and sometimes
accompanying Postal Inspectors in their initial interviews,
having access to memoranda of initial interviews of poten-
tial witnesses, serving subpoenas duces tecum on wit-
nesses to appear before the grand jury in earlier cases
involving other defendants involved in related investiga-
tions as well as in the case involved in the present indict-
ment.
Saccani aided the Postal Inspectors and the Assistant
United States Attorneys in identifying files of particular
insurance companies, which would be useful in the investi-
gation, locating the files, and furnishing information to
the Assistant United States Attorney necessary to prepare
the duces tecum subpoenas for the insurance companies
for the production of the specific claim files secured.
Saccani had access to the insurance company claim files
after they were subpoenaed by the grand jury and utilized
this opportunity to find and identify documents for the
Postal Inspectors, which would be relevant and useful in
further investigation.
On September 18, 1980, Postal Inspector Siano com-
pleted a “Summary of Evidence” which recited evidence
secured by interviews of witnesses, from the debriefings of
certain witnesses who agreed to cooperate after their pleas
of gu‘lty to similar charges, and from grand jury testimony
of certain witnesses (although it is not clear whether all of
this testimony was given before the grand jury which
returned this indictment or a prior grand jury). Saccani
was permitted to review a copy of this letter.
On September 22, 1980, a meeting was held between
United States Attorney Cindrich, Assistant United States
16.
17.
19.
D-8
Attorney Curry who conducted these grand jury proceed-
ings, and Postal Inspector Siano, to discuss the develop-
ment of this case. The meeting was held in the Postal
Inspector’s Office where the documentary material was
maintained. From time to time Saccani was present at this
meeting and Saccani very likely overheard discussions of
the grand jury testimony of certain of the witnesses.
Sometime after the meeting of September 22, 1980, Unit-
ed States Attorney Cindrich discussed with First Asst.
U.S. Attorney Johnson and Assistant U.S. Attorney
Curry the involvement of Saccani with the ongoing grand
jury proceeding and was informed by Curry that Saccani’s
involvement had been “pretty extensive and he had been
there for a long time. ”
On November 14, 1980, United States Attorney Cindrich
wrote a “Report of Loss, Compromise or Suspected Com-
promise” to the Assistant Attorney General for Adminis-
tration of Justice, pursuant to D.O.J. Order 2000.4 in
which he reported that there are any number of possible
6(e) problems arising out of the lawyer-doctor Insurance
Mail Fraud Investigations. He recited that the ICPI inves-
tigator’s presence at extensive pre-grand jury debriefing
made the investigator aware of the full extent of testimony
without reference to the grand jury transcript. A copy of
the letter was delivered to the undersigned as Chief Judge
and was held in his file under seal.
In November and December 1980, Saccani continued to
assist Postal Inspectors but after receipt of the opinion in
United States v.Tager, (10th Cir. October 20, 1980) in
mid-November 1980 he was no longer given access to new
grand jury materials received.
During the course of the imvestigation documents subpoe-
naed by the grand jury, particularly medical bills and
reports, were showr to client/ patients of the Litman firm
and the cooperating doctors, to insurance adjusters, to
21.
24.
25.
D-9
employees of the doctors, to attorneys representing insur-
ance companies, defendants in related actions, and to
prospective witnesses, outside the presence of the grand
jury.
From 1977 until the present Saccani reported to his super-
iors on a daily basis giving a summary of his activities,
including his work on related cases and the present case,
noting expected times of grand jury presentments, issu-
ance of subpoenas, summaries of meetings with Postal
Inspectors and members of the United States Attorney’s
staff.
Saccani was never present in the grand jury room except
in the capacity of a sworn witness.
Saccani never saw nor read any transcript of testimony
before the grand jury.
Saccani never disclosed any information concerning the
investigation, whether it pertained to grand jury matters
or to genera! matters concerned with the investigation of
this or other related cases, except for the brief activity
reports to his superior in the ICPI. No disclosure of any
kind was made to the insurance companies involved.
No media publicity of any kind appeared revealing the
existence of the specific grand jury investigation or any
grand jury investigation.
The existence of a postal service investigation into the
general subject of lawyer-doctor insurance fraud was
known to a large number of persons including client-
patients of the law firms, employees of doctors, insurance
claim adjusters, other lawyers who were indicted, doctors
who were investigated and/or indicted, and lawyers
representing such parties. Indictments pleas and trials of
several doctors, lawyers and intermediaries on related and
similar charges have been going on for the past several
years in this court, and the doctors named in this indict-
ment as participating have been involved in the trials of
D-10
other lawyers and have themselves entered pleas of guilty
to similar offenses in other cases.
26. The members of the Litman law firm were all aware of the
investigation, the interviews of their clients, the doctors
and their employees, runners employed by the law firm,
and associates and employees of the firm. The firm and
individual members of the firm under investigation were
represented by outside counsel, and outside counsel for
the Litman firm had secured a commitment from the
United States Attorney by May of 1980 that the United
States Attorney would proceed to a presentment to the
grand jury expeditiously or discontinue the investigation,
and that subpoenas would be issued in the least obtrusive
manner. A new grand jury was empaneled and began
hearing testimony on the Litman firm’s activities on May
23, 1980, and on September 22, 1980 the United States
Attorney decided to proceed to a presentment against
members of the Litman firm.
27. There is no evidence of prejudice to any individual arising
through disclosure of any matters occurring before the
grand jury.
CONCLUSIONS
I conclude that there have been repeated and continued
violations of the provision of Federal Rule of Criminal Proce-
dure 6(e)(2) from and after its effective date of August |, 1977
until the return of the indictment, which concerned the pro-
ceedings of several grand juries sitting in this District since that
time which considered allegations of mail fraud by combina-
tions of lawyers and medical doctors and their associates in
presenting false and fraudulent medical reports and bills for
services to insurance companies in support of claims made.
Because of the related nature of these cases and the appearance
of the same doctors in several of the related cases it is impossi-
ble to segregate the grand jury testimony between the cases, but
D-11
it is certain that some of the violations occurred with relation to
the grand jury empaneled May 23, 1980 which returned the
instant indictment against the present defendant.
Unlike pregnancy, the violation of rule 6&(e)(2) is a matter
of degree. There is no evidence here of a violation of the first
degree, the direct disclosurc of the actual testimony of a witness
appearing before the grand jury or the invasion of the grand
jury premises by an unauthorized person during the presenta-
tion of testimony.
The actual second degree violations are of a hearsay
nature, the disclosure of the nature or content of a witnesses’
testimony by a person. “thorized to have access to a person not
so authorized, either direet!,;, orally, or in writing, or in cir-
cumstances where it can be overheard.
There is a third degree of alleged violation which we will
classify as “arguable” violations which consist of the inspection
of documents subpoenaed before a grand jury by an unautho-
rized person. In many instances in this case this inspection was
made by a person who otherwise would have access to this
material by virtue of his occupation. In a sense it is his own
business records that he has examined albeit they have been
produced under grand jury subpoena.
A fourth degree of alleged violations which we also class-
ify as “arguab: ” consist of the presence of the non-government
employee at interviews of potential witnesses during the inves-
tigative phase of these cases before any grand jury testimony
was taken. In these instances the witness was shown a docu-
ment (usually a medical bill) procured by the use of a grand
jury subpoena. It is in these extenuated circumstances that the
connection with “matters occurring before the grand jury” are
argued.
For the purpose of our determination of the violation of
rule 6(e)(2) we will assume that all these degrees are violations
D-12
of Rule 6(e)(2), but for the purpose of determining the motion
to dismiss we will consider the degree, extent, nature and
circumstances of the violation.
THE DISCLOSURE OF GRAND JURY DOCUMENTS
I use the term “arguably” by design because I do not find
the cases in agreement that grand jury documents are not
necessarily and always prohibited from disclosure by Rule 6(e).
A number of cases have held that documents subpoenaed
before the grand jury sought for their own “intrinsic value” and
not to discover what has gone on in grand jury proceedings are
not protected by the secrecy provisions of Rule 6(e):
United States v. Interstate Dress Carriers
280 F.2d 52 (2d Cir. 1960)
United States v. Stanford
589 F.2d 285 (7 Cir. 1978)
cert. den. 440 U.S. 983
Capitol Indem. Corp. v. First Minnesota Const. Co.
405 F.2d 929 (D.C. Mass 1975)
United States v. Saks & Co.
426 F. Supp. 812 (S.D.N.Y. 1976)
In Davis v. Roneney, 55 F.R.D. 337 (E.D. Pa. 1972) where the
information soughi was contained in 23,000 file binders, each
relating to an individuai mortgage transaction, the court found
“that the file binders existed as an entity apart from the grand
jury, that the information contained in them did not reflect
upon and was not inextricably intertwined with the delibera-
tion or work of the grand jury, and that disclosure of them
could be accompanied without suggesting some specific act,
thought, or focus of the grand jury.” See, 50 ALR Fed. 675, at
683; See also, United States v. Weinstein, 511 F.2d 622 (2d Cir.
1975) cert. den. 422 U.S. 1204.
A large amount of the documentary material which was
subpoenaed by the grand jury consisted of claim files of various
D-13
insurance companies which the ICPI agent was able to identify
and locate for the postal inspectors, and for which he supplied
the necessary information as to the location and custody for
the purpose of subpoena. These files were always available to
him in his capacity as agent for the ICPI, both from member
insurance companies and from nonmember companies which
always cooperated. The ICPI agent reviewed these files in his
capacity of an expert to identify for the postal inspectors the
documents evidencing fraudulent claims, medical bills, doctors
reports and the like. The ICP! agent developed criteria to aid in
identifying fraudulent claims. Together with the postal investi-
gator, documents from these files, primarily medical bills, were
shown to the patient/clients of the doctor/lawyer teams
involved.
In order to accept the argument...that Rule 6(e)
applies to forbid disclosure of the requested documents it
would be necessary to conclude that the Rule prevents
disclosure for any purpose. We cannot so conclude, how-
ever, because the policy of secrecy is not absolute. United
States v. Stanford, 589 F.2d 285, 291 (7th Cir. 1978), cert.
denied 440 U.S. 983 (1979). Rule 6(e) shields solely “mat-
ters occurring before the grand jury.” It is designed to
protect from disclosure only the essence of what takes
place in the grand jury room in order to protect the
freedom and integrity of the deliberative process. See, e.g.
United States v. Proctor & Gamble, 356 U.S. 677, 681
(1958; United States v. Rose, 215 F.2d 617, 628-629 (3d
Cir. 1954). The Rule is not intended “to foreclose from all
future revelation to proper authorities the same informa-
tion or documents which were presented to the grand
jury.” United States v. Interstate Dress Carriers, Inc., 280
F.2d 52, 54 (2d Cir. 1960). The mere fact that a particular
document is reviewed by a grand jury does not convert it
into a “matter occurring before a grand jury” within the
meaning of 6(e). Documents such as the business records
sought by the Commission here are created for purposes
D-14
independent of grand jury investigations, and such docu-
ments have many legitimate uses unrelated to the sub-
stance of the grand jury proceedings. See, United States v.
Stanford, supra, at 291.
In re: Grand Jury Investigation New Jersey State Com-
mission of Investigations, 630 F.2d 996 (3d Cir. 1980), the
matter was returned to the district court to evaluate whether
disclosure would reveal “matters occurring before”, or the
control of grand jury proceeding.
In United States v. RMI Co., 599 F.2d 1183 (3d Cir. 1979),
where the district court Sad denied disclosure of documents
subpoenaed from a party not indicted, the Court of Appeals
noted that a third party producing documents to a grand jury
ought to be able to rely on the secrecy requirement to prevent
the disclosure of its material to others, but nevertheless
remanded the matter to the district court to review the merits of
the third party's objection to disclosure.
In United States v. Armco Steel, 458 F. Supp. 784(W.D.
Mo. 1978), the court refused disclosure of witness interviews
and memoranda prepared by the Department of Justice for a
grand jury in a criminal anti-trust proceeding, where the
defendant entered a plea of nollo contendere, to government
attorneys seeking their disclosure in a government civil anti-
trust suit against the same defendant because the memoranda
summarized what had happened before the grand jury.
When we consider a rule we must consider the reason for
the rule. We older lawyers who had to read Cicero before we
went to college say “cessante ratione legis, cessat et ipsa lex.”
For more benighted later generations, Judge Aldisert adopts a
free translation from Karl Llewellyn: “The rule follows where
its reason leads; where the reason stops, there stops the rule.”
See, United States v. Criden, 633 F.2d 346, 356 (fn. 6) (3d Cir.
1980).
D-15
The most recent statement of the reasons for the rule of
secrecy of grand jury proceedings.
Rule 6(e) of the Federal Rules of Criminal Procedure
prohibits disclosure of matters occurring before the grand
jury except when it is directed by the court, is made to the
attorneys for the government for use in the performance
of their duties, or is made to government personnel
deemed necessary to assist an attorney for the government
in performance of his duty to enforce federal criminal law.
The rule is designed to protect grand jury secrecy and was
adopted to implement the traditional reasons for cloaking
grand jury proceedings: (1) to prevent the accused from
escaping and from tampering with witnesses; (2) to protect
the reputation of an accused who is not indicted; (3) to
encourage witnesses to appear and speak freely; and (4) to
encourage jurors to engage in uninhibited investigation
and deliberation. See Pittsburgh Plate Glass Co. v. United
States, 1959, 360 U.S. 395, 405, 79 S.Ct. 1237, 1244, 4
L.Ed. 2d 1323, 1330 (Brennan, J. dissenting); United
States v. Proctor & Gamble Co., 1958, 356 U.S. 677, 681
n. 6, 78 S.Ct. 983, 986, 2 L.Ed. 2d 1077.
United States v. Malatesta, 583 F.2d 748, 752 (Sth
Cir. 1978).
See also United States v. Rose, 215 F.2d 617, 628 (3d Cir.
1954).
That court has elaborated on one reason: that a third
party originally furnished the documents in reliance on the
secrecy provisions of Rule 6(e), and thus the policies behind
Rule 6(e) secrecy are broken by the disclosure to some other
party outside the boundaries of Rule 6(e). United States v.
RMI Co., supra. That reason does not apply to the content of
insurance company files in the present case where it is the party
producing the document to whom disclosure was made.
D-16
DISCLOSURE OF GRAND JURY DOCUMENTS
TO PROSPECTIVE WITNESSES
It is argued here and we have so found that documents
subpoenaed by the grand jury were shown to prospective wit-
nesses (irrespective of their examination by Saccani). The doc-
uments shown generally encompass medical reports or bills for
medical services submitted by the doctors through the lawyers
to insurance companies. There is no evidence that anyune was
shown anything other than his own purported bill or report. In
United States v. Stanford, cit. supra, a similar situation was
revealed involving welfare applications:
The disclosures challenged here revealed nothing about
the grand jury investigation, and the disclosures were
made only to persons legitimately connected with the
documents. The documents revealed to the defendants
were not described by the agents during the interviews as
grand jury documents. Each defendant was shown only
his or her own employment file, his or her own welfare
applications, and his or her own endorsement on the
warrants. For these reasons, the disclosure falls outside
the scope of Rule 6(e). Because the documents shown were
not otherwise sheltered from the defendant’s inspection by
any form of privilege, cf. United States v. Weinstein, 511
F.2d 622, at 627; In Re Grand Jury Investigation, 210 F.
Supp. 904 (S.D.N.Y. 1962), the defendants challenge to
these disclosures must fail. 589 F.2d at 291.
We come to the same conclusions here in considering the
motion to dismiss.
THE ALLEGATION OF MEDIA DISCLOSURE
On the evening of December 5, 1978, Charles Bosworth,
an investigative reporter for KDKA-TV 2, presented two
reports dealing with personal and business relationships of
Roslyn Litman, wife of defendant S. David Litman and a
D-17
member of the Litman firm.' At the time of these reports Mrs.
Litman was a candidate for appointment to the federal bench.
In his reports Bosworth alluded to the fact that “someone in the
Litman firm is a top suspect in a massive insurance fraud case.”
In addition Bosworth noted that, although David and Roslyn
Litman were also considered as suspects in this case, they were
not the targets of the investigation. This is the only media
disclosure naming an member of the Litman firm brought to
our attention in the extensive hearings on this matter.
The defendant now moves to dismiss the present indict-
ment on the grounds that these news reports constituted viola-
tions of Rule 6(e) and prejudiced community attitudes toward
the Litmans. In support of this motion the defendant alleges
that two United States officials, Assistant U.S. Attorney Tho-
mas Crawford and Postal Inspector Jack Grochot, disclosed
grand jury information to Bosworth and that this grand jury
information formed the basis of the December 5, 1978 news-
cast. '
'In the 6 p.m. broadcast Bosworth said:
“But there are more serious problems developing within the Litman
law firm. One member of the firm is a top suspect in a massive insurance
fraud case. Lawyers and doctors allegedly conspired to cheat insurance
compenies on medical claims.
While neither Roslyn nor David are targets at this time, one other
person who is a target is Dr. M.A. Rosenbloom. Dr. Rosenbloom is
related to the Litman’s through marriage, keeps his office in a building
put up by Eugene Litman (Roslyn Litman’s brother-in-law), lives in a
condominium developed by Eugene Litman, and has been a business
associate of Eugene Litman and other members of the family.”
In the 11 p.m. broadcast Bosworth said:
“Then there's this: Someone in the Litman law firm is a top suspect
in a massive insurance fraud case. And two of the doctors involved in the
case are connected to the Litman family through marriage, business, or
both. | have further learned that Mr. or Mrs. Litman may also be
suspects, although they are not targets of the investigation at this time.”
D-18
We have concluded, however, on the basis of the evidence
already obtained through examination of transcripts of the
broadcasts and the in camera proceedings that the defendant
has not established a prima facie case of improper disclosure in
violation of Rule 6(e). Accerdingly we will deny the defen-
dant’s motion to dismiss to the extent that that motion rests on
alleged disclosures to the media.
It is clear that “(a) criminal defendant who seeks to obtain
dismissal of an indictment ... bears a heavy burden in
attempting to justify such relief.” In re Grand Jury Investiga-
tion (Bert Lance). 610 F.2d 202, 219 (Sth Cir. 1980); see also
United States v. Criden, 633 F.2d 346, 354 (3d Cir. 1980). In
cases where the movant seeks dismissal of an indictment
because of alleged disclosures by the government to the media
that “heavy burden” requires, ata minimum (1) “a clear indica-
tion that the media reports disclose information about ‘matters
occurring before the grand jury’”, Lance, supra, at 216; and (2)
proof that the “article or articles: . .indicate the source of the
information revealed to be one of those proscribed by Rule
6(e)”, i.e. a grand juror, interpreter, stenographer, a typist who
transcribes testimony, an attorney for the Government or any
other person to whom disclosure is made in accordance with
Rule 6(e). Lance, supra, at 217.
In this case we feel that the defendant's proof is fatally
deficient on both of these elements. For example, the record
developed in the in camera hearing in no way clearly indicates
that the Bosworth broadcasts were based on grand jury infor-
mation. Quite the contrary, review of the full transcripts of
those broadcasts reveals that no reference to any grand jury
investigation, or even to the existence of a grand jury, was ever
made. In fact the grand jury which eventually indicted the
defendants was not even in existence at the time of the Bos-
worth reports.
D-19
Nor does Bosworth’s use of the words “investigation” and
“target” lead to the conclusion that grand jury information has
been disclosed. At the time of the Bosworth report the Postal
Service was conducting an extensive investigation into the area
of Doctor/Lawyer insurance fraud. This investigation was
distinct from any specific grand jury proceeding and was not
enshrouded with the same strict secrecy that surrounds the
grand jury. See generally In re Search Warrant Second Floor
Bedroom, 489 F. Supp. 207, 211 (D.R.1. 1980) (distinguishes
grand jury investigation from other governmental investiga-
tions or purpose of Rule 6(e)).
Therefore, general knowledge of this investigation was
properly in the public domain. Any reference to “targets” of
“investigations” could easily refer to these postal inspector
interviews where a law enforcement agent must inform a party
if he is a “target” of an investigation and give him a Miranda
warning.
Finally, even if Bosworth’s reports did refer to a grand
jury investigation, we would not find this disclosure to be
violative of Rule 6(e). When read in their entirety, these reports
do little more than announce the existence of an investigation
into insurance fraud involving the Litman firm. In our view,
mere disclosure of the existence of a grand jury investigation
does not constitute a “matter occurring before the grand jury.”
Accordingly we conclude that the defendant’s proof on this
initial issue is wholly deficient.
However, even if we assumed that Bosworth’s report was
based on grand jury information we would still deny the
defendant's motion because he has not shown that this infor-
mation was obtained from one of proscribed sources under
Rule 6(e). The testimony at the in camera hearing revealed the
following facts: Neither Assistant U.S, Attorney Crawford nor
Postal Inspector Grochot was in any way involved in the grand
jury investigation of the Litman firm. All of the government
D-20
officials who were called at this in camera hearing denied
making any disclosure of grand jury information to either
Bosworth or Crawford and Grochot. A large number of wit-
nesses were called before the grand jury. These witnesses, who
included doctors, employees of doctors, clients, attorneys, and
employees of attorneys, would have all been privy to matters
occurring before the grand jury. None of these witnesses would
be barred from disclosing grand jury information. See Jn re
Investigation Before April 1975 Grand Jury. 531 F.2d 600
(D.C. Cir. 1976).
In essence then the evidence adduced in these in camera
proceedings reveals that Crawford and Grochot, the alleged
sources of grand jury material, were in no way involved with
the Litman grand jury investigation. It further reveals that
none of the government officials involved in the investigation
disclosed any grand jury material to Bosworth. Finally, it
demonstrates that a large number of grand jury witnesses,
witnesses who were not barred from making any disclosure,
had access to matters occurring before the grand jury. On this
record, we cannot conclude that the defendant has met his
heavy burden of proof as to the source of the alleged disclosure.
In an effort to buttress its position on this point defendant
offered, at this in camera hearing, to present hearsay testimony
to the effect that Bosworth had revealed knowledge of the
ongoing investigation by postal authorities of a mail fraud case
on August 17, 1978. There was no mention in that offer of the
source. (See T. p. 764). This offer adds little to the defendant’s
case. We note that even an allegation by a reporter that his
information was obtained from a “government source” is
insufficient to establish a violation of Rule 6(e). See e.g. Special
April 1977 Grand Jury, 587 F.2d 889, 892-93 (7th Cir. 1978),
(“[N]ews reporters, as all the world knows, invariably attribute
the information they receive to ‘confidential’ sources and in
connection with stories of this nature, to unnamed sources
D-21
‘close to investigation’”). United States v. Mitchell, 372 F.
Supp. 1239(S.D. N.Y. 1973) (media reference to “sources close
to the investigation” held inadequate to establish that govern-
ment officials disclosed material); United States v. Archer, 355
F.Supp. 981 (S.D. N.Y. 1972), rev ‘don other grounds 486 F.2d
620 (2d Cir. 1973) (media reference to “informed sources” held
inadequate); United States v. Kahaner, 204 F. Supp. 921 (S.D.
N.Y. 1962), aff'd 317 F.2d 459 (2d Cir. 1963) (media reference
to “official” source held inadequate); United States v. Sweig,
316 F. Supp. 1198 (S.D. N.Y. 1970), aff'd 441 F.2d 114 (2d Cir.
1971). But this case is even weaker. The defendant asks us to
infer a “government source” solely from the fact that the
reporter knew of an ongoing investigation. Without some
more particularized showing by the defendant, this unsup-
ported hearsay statement does not demonstrate any improper
disclosure of grand jury material by government officials.
Finally, we note that the defendant invited this court to
conduct further in camera proceedings on the alleged Craw-
ford/Grochot disclosures and had subpoenaed witnesses for
this purpose. We decline this invitation. Six days of in camera
testimony have already been taken on this matter. In this
testimony the facts surrounding the involvement of Crawford
and Chochot in the Litman grand jury investigations were fully
developed. At the end of these hearings the defendant’s proof
of media disclosures by government officials was found to be
totally deficient. Given these facts we feel that no further
inquiry into this matter would be useful or necessary. See, e.g.
In re Special Report April 1977 Grand Jury, supra (dismissal
of 6(e) motion without a hearing held proper); United States v.
Archer, supra (motion to dismiss indictment denied without an
evidentiary hearing); United States v. Sweig, supra (Motion to
dismiss indictment denied without an evidentiary hearing).
D-22
THE DISCLOSURES TO SACCANI
The disclosures to Saccani form the essential part of
defendant's case. Assuming ve/ non that a great many of these
were violations of Rule 6(e)(2) we must consider factors in
mitigation in deciding upon the sanction. Saccani had know-
ledge of and access to a vast body of evidentiary material
essential to this investigation. He was the employee of an
organization whose specific purpose was to aid prosecutors in
the discovery and prosecution of insurance fraud investiga-
tions. He not only knew where to locate the files among the
hundreds of insurance companies involved, but he knew what
materials in those files were relevant to the investigation. He
had access to records and indexes maintained by the insurance
industry identifying claimants and lawyers. He knew the busi-
ness far better than any of the Postal Inspectors.
The need of expert assistance to the prosecuting United
States Attorney has been recognized. In United States v. Stan-
ford, supra, the government supplied documents secured by
grand jury subpoenas to state employees for their analysis by
computer experts and accounts.
In an extremely complex investigation like this one, the
United States Attorney requires the assistance of experts.
Here the expertise came from the F.B.1., another Justice
Department Agency under the same control as the United
States Attorney. When the grand jury takes precaution to
preserve secrecy as it did here by swearing the F.B.I.
personnel as agents and cautioning them on the need for
secrecy, we see no reason to put an additional barrier
between the grand jury and the evidence by interpreting
Rule 6(e) to require a disclosure order.
United States v. Stanford, supra, p. 292. In In Re Perlin,
589 F.2d 260 (7th Cir. 1978) the need for specialized knowledge
in the field of commodity futures trading justified the use of an
outside agency in reviewing the grand jury materials. See Com-
D-23
ment, Administrative Agency Lawyers’ Presence in the Grand
Jury Room, 128 U.Pa. Law Review 159 for a discussion of the
problem.
While we cannot find any specific authority in the statutes
or rules for making one an “agent of the grand jury”, the
practice has been given wide judicial recognition as an element
of protection of grand jury secrecy. It was done here, and there
is no evidence that Saccani misused or abused the disclosures
made to him, There was no publicity, media or otherwise,
traced to him. The information furnished to him and his use of
it was all necessary to accomplish the purpose of the investiga-
tion.
Throughout this proceeding defendant has emphasized
the holding of the United States v. Tager, F.2d
(10th Cir., Oct. 20, 1980, Case No. 79-1691). That case
is very similar to the facts of the instant case in that disclosures
were also made to an ICPI agent. The disclosures apparently
were more far reaching because the ICPI agent was allowed to
read actual grand jury transcripts. The case merely held, con-
trary to the ruling of the lower court, that the disclosures
violated Rule 6(e). The Court did not purport to define in any
detail which specific disclosures constituted “matters occurring
before the grand jury” nor did it suggest in any way, that these
6(e) disclosures required dismissal of the indictment. The
Court of Appeals remanded the case to the District Court for
further consideration of these issues.
DISMISSAL OF INDICTMENT
The sanction provided by Rule 6(e)(2) is: “A knowing
violation of Rule 6 may be punished as a contempt of court.” In
an exhaustive search of cases involving Rule 6 violations we
have never found one where a pretrial dismissal was ordered
for a violation of Rule 6 unattended by other egregious prosec-
utorial misconduct, nor have we found any where dismissal or
D-24
a new trial was ordered on a post-trial motion raising the same
grounds. Many of these cases have involved widespread, fre-
quent and continuous media disclosures of grand jury matters
directly attributable to the prosecutors. We have attempted to
classify these cases as follows:
(i) Cases dealing with Rule 6(e) violations involving wide-
spread media reports based on information unlawfully dis-
closed by government attorneys where pretrial dismissal was
sought:
United States v. Kahaner, 204 F. Supp. 921
(S.D. N.Y. 1962), aff'd 317 F.2d 459
24 Cir. 1963), cert den. 375 U.S. 835.
Motion denied. The news articles did not disclose access
to grand jury matters.
United States v. Archer, 355 F. Supp. 981
(S.D. N.Y. 1972)
Motion denied. There was no proof of government disclo-
sure of grand jury material and no showing of prejudice to
the defendant.
United States v. Mitchell, 372 F. Supp. 1239
(S.D. N.Y. 1973)
Motion denied. The news articles do not identify with
particularity a grand jury source.
(ii) Cases involving pretrial attack on indictment for 6(e)
violations with no media publicity:
United States v. Dondich, 460 F. Supp. 849
(N.D. Cal. 1970)
Motion to dismiss indictment because of Rule 6(e) viola-
tions when SEC lawyer who conducted civil case partici-
pated in grand jury proceedings. Denied. No prejudice
found and no basis for judicial intervention in prosecutor-
ial process.
D-25
United States v. Weingartner, 485 F. Supp. 1167
(D. N.J. 1979)
Motion to Dismiss Indictment et al., alleging Rule 6(e)
violations in that unauthorized persons listened to tape
recording played before the grand jury. Denied. No 6(e)
violation found.
(iii) Cases dealing with Rule 6(e)(2) violations involving
media disclosures where the movant seeks some other pretrial
sanction:
In Re Grand Jury Subpoena on Pedro Ardulata
432 F. Supp. 583 (S.D. N.Y. 1977);
434 F. Supp. 325
Motion to quash grand jury subpoena because of wide-
spread media disclosure by government. Motion denied,
because proper remedy was contempt proceeding.
In Re Grand Jury Investigation (Lance)
610 F.2d 202 (Sth Cir. 1980)
Motion for Contempt Proceedings because of widespread
media publicity attributable to government sources.
Remanded to District Court for evidentiary hearings.
In Re Special April 1977 Grand Jury
587 F.2d 889 (7th Cir. 1978).
Motion to terminate grand jury because of excessive
media publicity. Denied because of faiiure to show with
particularity that publicity came from improper Rule 6(e)
disclosure.
(iv) Cases involving Motions for Post Trial Relief (New
Trial or Dismissal) where Rule 6(e) violations were alleged:
United States v. Bazzano
520 F.2d 1120 (3d Cir. 1977)
Motion to Dismiss or grant New Trial where grand jury
testimony of witness was disclosed to other witness before
trial. Denied. No prejudice to defendant shown.
D-26
United States v. Maletesta
583 F.2d 748 (Sth Cir. 1978) aff'd en banc,
590 F.2d 1379 (Sth Cir. 1979)
Motion to Dismiss or grant New Trial where prior grand
jury testimony was read to new grand jury. Denied. Rule
6(e) violation did not justify dismissal or new trial. The
sanction is a contempt citation.
United States v. Stanford
589 F.2d 285 (7th Cir. 1978)
Motion for Dismissal or grant of New Trial because of
extensive government disclosures of grand jury docu-
ments to state employees for investigation of welfare fund.
Motion denied.
United States v. Concrete Products
425 F.2d 1241 (Sth Cir. 1973)
Motion to dismiss because witness was supplied with
grand jury exhibits before his grand jury testimony.
Denied. The violation does not justify dismissal; contempt
is the proper sanction.
United States v. Thomas
593 F.2d 615 (Sth Cir. 1979)
Motion to Dismiss because of grand jury disclosures to
IRS and Dept. of Agriculture. Denied. This was not a
Rule 6(e) violation but even if it were, no prejudice to
defendant is shown and contempt is the appropriate sanc-
tion.
United Sates v. Hoffa
399 F.2d 20 (6th Cir. 1965)
Motion to Dismiss Indictment because of improper dis-
closures of grand jury minutes to other government
agents. Denied. This is no Rule 6(e) violation and even if it
were it is not prejudicial and the only sanction is con-
tempt.
D-27
United States v. Birdman
602 F.2d 547 (3d Cir. 1979)
Motion to Dismiss Indictment because of appearance of a
government attorney before the grand jury both as a
witness and as a prosecuting attorney, although he was
not an employee of the Department of Justice. Denied. No
showing of actual prejudice and dismissal is not the proper
sanction.
United States v. Stone
633 F.2d 1272 (9th Cir. 1979)
Motion to Dismiss Indictment. Testimony of one grand
jury read to another grand jury. Denied. This was a viola-
tion of Rule 6(e) but does not warrant dismissal! of indict-
ment. Contempt is the proper sanction.
United States v. Schiavo
325 F.Supp. 475 (E.D. Pa. 1974)
Motion for New Trial based on disclosure of grand jury
proceedings. Denied. Even if there was improper disclo-
sure the remedy should not be a new trial but to punish the
offending party in a contempt proceeding.
(v) Cases Granting Dismissal:
United States v. Treadway
445 F. Supp. 959 (N.D. Tex. 1978)
‘retrial Motion to Dismiss. Granted. A 6(d) violation
found where government attorney testified as a witness
and remained before grand jury as a prosecuting witness.
United States v. Carcaise
442 F. Supp. 1209 (M.D. Fla. 1978)
Pretrial Motion to Dismiss. Granted because of impropri-
ety of prosecutors in reading summaries of depositions
before grand jury. The court stated that allegations of
allowing investigators and accountants access to grand
jury materials, and the reading of prior grand jury testi-
mony to another grand jury were Rule 6(e) violations but
would not justify dismissal.
D-28
United States v. Gold
470 F. Supp. 1136 (N.D. Ill. 1979).
Pretrial Motion to Dismiss. Granted. While there were
Rule 6(e) violations on disclosures, there was also a 6(d)
violation because of the dual role of prosecutor and wit-
ness, and other prosecutorial misconduct.
(vi) Other Rule 6(e) Cases:
In Re Paul Perlin
589 F.2d 266 (7th Cir. 1978).
A showing of real conflict of interest which prejudiced the
party complaining must be made, where an agent of
another government bureau interested in the civil aspect
of the case is given access to grand jury materials. None
were shown here and the Court held a recalcitrant grand
jury witness in contempt for failure to testify.
In Re Search Warrant for Second Floor Bedroom
489 F. Supp. 207 (D.R.1. 1980)
Motion to unseal affidavit for search warrant sealed to
protect grant jury materials. Warrant ordered unsealed
because affidavit only contained information from inves-
tigative memos of witnesses prior to their grand jury
testimony. This is not material covered by 6(e). “Reading
Rule 6(e) to cover government investigation that may lead
to grand jury probe would raise a host of questions about
the scope of such secrecy, questions which Rule 6(e) does
not purport to answer.” (p. 211).
In conclusion, the overwhelming weight of authority
denies the remedy of dismissal on the basis of violation of Rule
6(e). Most cases point to the sanction provided by the Rule
itself, many cases refer to the lack of evidence of prejudice to
the defendant.
A criminal defendant who seeks to obtain dismissal of an
indictment, a person subpoenaed to testify before a grand
jury who requests the court to quash the subpoena, or the
target of an ongoing grand jury investigation who seeks to
D-29
have the grand jury dismissed, bears a heavy burden...
Punishment for the contempt of court is the sanction
specifically authorized by Rule 6(e)(1) for violation of its
provisions, and a contempt sanction will generally pro-
vide an adequate remedy for such violation.
In Re Grand Jury Investigation (Bert Lance),
cit. supra p. 219.
However, to attempt to serve a public interest in the purity
of the grand jury proceeding, by the per se sanction of
dismissing indictments, is to disserve another public inter-
est by frustrating prosecution of criminals.
United States v. Birdman
602 F.2d 547 (3d Cir. 1979).
In sum, viewing the various grand jury contentions collec-
tively, and to some considerable extent individually, our
acceptance of them could substantially nullify, particu-
larly in a case of any complexity, one of the basic purposes
of this body, that of thorough knowledgeable investiga-
tion of the matters before it. This group of lay persons
should not be locked into a position which lacks full
comprehension of the factual situations as to which they
are inquiring. Being of the opinion that the secrecy
requirements have not dictated this result here, we decline
to do so by judicial gloss.
United States v. Stanford
cit. supra, p. 293
We find no reason to support dismissal here.
THE MOTION TO STRIKE SURPLUSAGE
Defendant Litman has also filed a motion to strike certain
language in the indictment as surplusage under Rule 7(d). A
motion to strike surplusage will be granted only where it is
clear that the allegations are not relevant to the crime charged,
and are inflammatory and prejudicial. United States v.
DiPaima, 461 F. Supp. 778 (S.D.N.Y. 1978); United States v.
Brighton Building & Maintenance Company, 435 F. Supp. 222
(N.D. Ill. E.D. 1977).
D-30
Defendant claims that reference to payments “to persons
other than attorneys who referred personal injury cases” (para.
6, page 2 of indictment), “to investigators, persons who
referred cases to Litman, Litman, Harris & Spector and oth-
ers” (para. 14, page 3) and all of para. i3, page 5 of the
indictment which refers to payments to “others” should be
stricken. Defendant claims these references charge no offense,
have no relationship to the conspiracy alleged, and serve no
purpose exceri that of inflaming public sentiment.
These statements, however, refer to allegations that fees
were split with others who participated in the alleged conspi-
racy. The evidence shows that some of the alleged runners were
witnesses before the grand jury. Their activities were an itite-
gral part of the conspiracy and are relevant to the charges made
in the indictment.
Defendant also moves to strike many of the paragraphs in
the indictment which refer to alleged transactions which are
time barred. However, reference to other transactions may be
highly relevant to the government's case to estabiish a pattern
and conspiracy. These allegations are an irtegral part of the
criminal activity charged and any resulting prejudice is specul-
ative and is outweighted by the relevance to the government’s
case. United States v. Krasnoff, 480 F. Supp. 723, 730
(S.D.N.Y. 1979).
Therefore, defendant Litman’s motion to strike surplus-
age will be denied.
OTHER MOTIONS
Finally, in support of his motion to dismiss this indict-
ment, the defendant presents an extensive list of alleged prosec-
utorial abuses. Specifically the defendant alleges the following
abuses by the United States Attorneys’s Office: improper pre-
indictment delay; selective prosecution of the defendant on the
basis of his religion and age; failure by the prosecutor to
present material exculpatory evidence to the grand jury; intim-
D-31
idation of grand jury witnesses; efforts to interfere with com-
munication between witnesses and the defendant; and
introduction of prejudical material to the grand jury. The
defendant further argues that he is entitled to a full in camera
hearing on all of these allegations. See, Gannett v. Di Pasquale,
443 U.S. 368 (1979).
We disagree. The charges made by the defendant range
from serious to frivolous. To the extent that we have already
received in camera testimony on some of these allegations, we
have found them to be largely unsupported. To examine them
further would require extensive in camera proceedings, pro-
ceedings which would amount to a virtual trial of the govern-
ment’s conduct over the five years of this investigation.
Ganneit v. DiPasquale clearly did not contemplate affording
criminal defendants the opportunity to conduct such wide
ranging in camera inquiries See, Gannett, supra, at 382-84.
Furthermore, some of these can be best handled at trial
such as intimidation of witnesses, interference with witnesses,
and the like. Prejudicial pre-indictment delay can usally only
be determined at trial. Exculpatory material can be produced
before trial. Counsel for the co-defendant had indicated his
desire to pursue any pre-trial motions in the ordinary manner.
Rather than engaging in the extended in camera proceed-
ings urged by the defendant, we feel that justice would be better
served by denying these motions at this time and proceeding
with the trial of this case. The denial of these motions would be
without prejudice to their renewal prior to trial in a properly
supported pretrial motion. Moreover, upon a showing of par-
_ ticularized need, the court would consider requests for addi-
tional in camera inquiries into specific allegations of
prosecutorial abuse.
This procedure, we feel, would best serve to accommodate
the interests of the defendant in avoiding prejudical publicity
with the legitimate public interest in the administration of
criminal justice.
An appropriate order will issue.
E-]
IN THE
UNITED STATES DISTRICT COURT
For THE WESTERN District Or PENNSYLVANIA
UNITED STATES OF
AMERICA
v. } Criminal No. 81-16
S. DAVID LITMAN,
ESQUIRE
IRVING M. PORTNOY,
ESQUIRE
ORDER
AND NOW this 16th day of March, 1981, the Motions of
Defendants to Dismiss are DENIED in accordance with the
findings set forth in the Opinion of this date.
All proceedings under this motion, inlcuding the Opinion
and Order, shall remain SEALED until further Order of
Court, or until the swearing in of a jury in this case.
The indictment shall be UNSEALED on March 20, 1981,
at 12 noon, unless an Order of Stay is issued by the Court of
A Is.
open /s/ GERALD J. WEBER
GERALD J. WEBER
Chief United States District Judge
cc: David M. Curry, Assistant United
States Attorney
David J. Armstrong, Esq.
Harold Gondelman, Esq.
APPENDIX E
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.