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In re Special Grand Jury 89-2

United States District Court, D. Colorado
Mar 12, 2004
Miscellaneous Action No. 96-Y-203 (D. Colo. Mar. 12, 2004)

Opinion

Miscellaneous Action No. 96-Y-203

March 12, 2004


ORDER ON SEALED PETITIONS


Special Grand Jury 89-2 was impaneled by then Chief Judge Sherman G. Finesilver, pursuant to 18 U.S.C. § 3331 on August 1, 1989, to investigate allegations of environmental crimes at Rocky Flats Nuclear Weapons Plant in Jefferson County, Colorado. The 23 members of the Special Grand Jury convened for nearly three years, examined thousands of documents and heard testimony from more than 100 witnesses. The Special Grand Jury was discharged without the return of any indictments. They submitted proposed indictments to Chief Judge Finesilver but they were of no validity because the United States Attorney refused to sign them. The Special Grand Jury also submitted a report of findings which was not released to the public. Ultimately, an edited version of the report was issued and Rockwell International Corporation entered into a plea agreement whereby Rockwell pleaded guilty to crimes charged in an Information and was fined.

In 1992, the Rocky Mountain News and KUSA-TV, Inc., filed motions for release of grand jury documents and the Special Grand Jury's unedited report. Those motions were denied by Chief Judge Finesilver in an opinion published as In Re Grand Jury Proceedings, Special Grand Jury 89-2, at 813 F. Supp. 1451 (D.Colo. 1992).

James S. Stone filed a qui tam complaint in July, 1989, alleging that Rockwell violated the False Claims Act, resulting in protracted litigation. The government joined in that action. The history of that litigation is set out in U.S., ex rel Stone v. Rockwell International Corp. 282 F.3d 787 (10th Cir. 2002).

On August 1, 1996, almost all of those who served as members of the Special Grand Jury filed a petition seeking permission to release information and freedom to speak publicly about their experience as grand jurors and their perceptions of the conduct of government employees and Department of Justice lawyers. An in camera hearing was held on March 21, 1997, with the then United States Attorney, counsel for the petitioners, and counsel for Rockwell. The petitioners, through counsel, had made a proffer of information of concern to them. The court determined to proceed by permitting petitioners to testify at an exparte, in camera hearing before a Magistrate Judge.

That procedure was followed because the court was concerned with the need to identify with some particularity the factual and legal questions that may be within its jurisdiction, recognizing its limited authority over grand jury proceedings.

During the preparation for trial of the Stone v. Rockwell case, the court ordered the release of transcripts of testimony of witnesses who appeared before the Special Grand jury and who were scheduled to appear at the Stone jury trial. That order was appealed to the Tenth Circuit Court of Appeals which reversed it. In re Special Grand Jury 89-2, 143 F.3d 565 (10th Cir. 1998). The appellate court ruled that this court failed to comply with the particularity requirements inherent in Fed.R.Crim.P. 6(e)(3)(C)(I), United States v. Proctor Gamble Co., 356 U.S. 677 (1958). Specifically, the appellate court rejected this court's procedure for redacting and releasing transcripts through the cooperation of the United States Attorney and gave this court the following direction:

To prevent unnecessary disclosure, the district court must conduct an in camera review of the requested transcripts and determine what portions, if any, meet the claimed need. See Lucas, 725 F.2d at 1106. It is the court's obligation "to make an in camera examination of the pertinent portions of the grand jury transcript" and structure the order properly. Sobotka, 623 F.2d at 768.
While we recognize the workload district court judges are faced with, this in camera procedure is necessary due to the paramount concern of all courts for the sanctity and secrecy of grand jury proceedings. In undertaking this inquiry the district court should not determine what is useful to the litigants but rather should focus on the question of whether particularized need has been shown for each item to be released. See Dennis [v. United States], 384 U.S. [855], 874-75, 86 S.Ct. 1840, 1856-52, 16 L.Ed.2d 973 [(1966)].
Lucas, 725 F.2d at 1109.

In declining to review the transcripts, the district court abused its discretion. As a consequence, there was a potential for the release of a broad range of grand jury information without the requisite showing of need. The entry of a protective order restricting access to the transcripts does not cure this deficiency.

Much information about Rockwell's operations at Rocky Flats was disclosed in the Stone jury trial evidence and witnesses who testified included some who had given previous testimony before the Special Grand Jury.

After the dormancy of this matter was recognized by the court as a result of a letter of inquiry from one of the petitioners, this court on April 22, 2003, ordered the filing under seal of statements specifying the relief sought by the petitioners, particularly identifying whether they seek release of grand jury transcripts and whether their proposed statements or publications involved their recollections of the testimony of witnesses, the conduct of counsel appearing before the grand jury and opinions concerning the outcome of the grand jury proceeding. Those statements of proposed relief and suggested procedures were filed under seal, and the government responded. In that response, government counsel emphasized that the petitioners did not demonstrate the "particularized need" required for this court to authorize disclosures under Rule 6(e). Counsel for all but one of the petitioners suggested a procedure to unseal these proceedings, with possible redaction, review the grand jury transcripts and "grand jury report" for possible release in redacted form and then make findings as to the allegations of the petitioners and refer to appropriate agencies for further investigation of possible criminal and unethical conduct.

The other petitioner, a lawyer, separately represented by counsel, asks for permission to disclose to third parties his knowledge of claimed unethical and potentially criminal acts. More specifically, he seeks permission to inform the Attorney Regulation Counsel of the Colorado Supreme Court, the Inspector General for the Department of Justice, the Federal Bureau of Investigation and other regulatory and prosecutorial officials of his perceptions of the conduct of those involved in the Special Grand jury proceedings. He also requests permission to publish the original grand jury report in its entirety.

The government objects to disclosure of the unredacted and unedited report on the ground that the matter has been adjudicated and determined in Chief Judge Finesilver's opinion in 1992, cited above.

In considering these requests, the court has been further instructed by the views of the Tenth Circuit Court of Appeals in the opinion deciding the constitutionality of Colorado's grand jury secrecy rules in Hoffinan-Pugh v. Keenan, 338 F.3d 1136 (10th Cir. 2003). There, another judge of this court had ruled that the application of those rules to prohibit a witness in a murder investigation from writing a book about her experience, including testifying before a grand jury, was a violation of the rights of the witness under the First Amendment through the Fourteenth Amendment, based on the Supreme Court opinion in Butterworth v. Smith, 494 U.S. 624 (1990). There, the Court invalidated a Florida statute to the extent that it prohibited a grand jury witness from disclosing his own testimony after the term of the grand jury ended. The Tenth Circuit in Hoffman-Pugh read Butterworth narrowly, saying that the unconstitutional prohibition in Florida included the information the witness possessed before giving his testimony in the grand jury investigation and held that the Colorado rule may prohibit the witness from disclosing her grand jury testimony because the murder investigation was ongoing.

The significance of these cases is that the petitions now before this court and the procedures suggested do not enable this court to go forward to adjudicate and balance the competing interests of grand jury secrecy and the interests of the petitioners in public disclosure. It is fundamental to the jurisdiction of this court that questions presented to it must be in the form of a case or controversy under Article HI of the United States Constitution. While the Tenth Circuit Court of Appeals recognized in Hoffman-Pugh that the plaintiff there might seek relief from the court having supervisory authority over the state grand jury and the petitioners are essentially seeking that type of relief here, the ultimate result would be nothing more than an advisory opinion of general conclusions and insufficient particularity to protect the petitioners from possible sanctions in criminal or civil proceedings.

The concerns that these petitioners have expressed are serious and substantial. They relate to the power of the government to compel citizens of this country to devote their time and energy to participate in an investigation conducted by attorneys for the Department of Justice and then to compel those citizens to be silent. Such concerns raise questions as to whether Rule 6(e) is an appropriate public policy and whether the government employees involved in this matter, have conducted themselves in an appropriate manner. Those are issues which are within the authority and responsibility of the United States Congress.

Upon the foregoing, it is

ORDERED that the petitioners' request for relief are denied.


Summaries of

In re Special Grand Jury 89-2

United States District Court, D. Colorado
Mar 12, 2004
Miscellaneous Action No. 96-Y-203 (D. Colo. Mar. 12, 2004)
Case details for

In re Special Grand Jury 89-2

Case Details

Full title:In re Special Grand Jury 89-2

Court:United States District Court, D. Colorado

Date published: Mar 12, 2004

Citations

Miscellaneous Action No. 96-Y-203 (D. Colo. Mar. 12, 2004)