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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15016 ________________________
D.C. Docket No. 5:14-mc-00002-MTT
ANTHONY S. PITCH,
Plaintiff - Appellee,
versus
UNITED STATES OF AMERICA,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(February 11, 2019)
Before WILSON and JORDAN, Circuit Judges, and GRAHAM, * District Judge.
WILSON, Circuit Judge:
* Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by designation. Case: 17-15016 Date Filed: 02/11/2019 Page: 2 of 40
In 1946, a crowd of people in Walton County, Georgia gathered as two
African American couples were dragged from a car and shot multiple times. 1
Many consider this event, known as the Moore’s Ford Lynching, to be the last
mass lynching in American history. Racial tensions in Georgia were high. African
American citizens were allowed to vote in a Georgia Democratic Party primary for
the first time that year. 2 The murders occurred shortly after the primary and
immediately garnered national media attention. National outrage, including
condemnation from then Special Counsel to the NAACP Thurgood Marshall,
ultimately led President Harry Truman to order an FBI investigation. In late 1946,
a district court judge in Georgia convened a grand jury. But after sixteen days of
witness testimony, no one was ever charged. The case remains unsolved.
Over seven decades later, Anthony Pitch, an author and historian, petitioned
the Middle District of Georgia for an order unsealing the grand jury transcripts.
The district court granted his request. The government now appeals, arguing the
district court abused its discretion in unsealing the transcripts. After careful review
and with the benefit of oral argument, we affirm.
1 There are differing accounts on the number of shots and the number of people present. Estimates suggest that between thirty and one hundred people were present. 2 The Fifth Circuit had recently held that the Georgia Democratic Party’s all-white primary system was unconstitutional. Chapman v. King, 154 F.2d 460 (5th Cir. 1946), cert. denied, 327 U.S. 800, 66 S. Ct. 905 (1946). 2 Case: 17-15016 Date Filed: 02/11/2019 Page: 3 of 40
I. Factual and Procedural Background
Anthony Pitch wrote a book about the Moore’s Ford Lynching. In 2014,
while researching the event for the book, Pitch petitioned the Middle District of
Georgia to unseal the federal grand jury records related to the incident. Initially,
the district court denied the petition without prejudice because Pitch did not
present evidence that the records even existed. Three years later, Pitch renewed his
petition, arguing that his investigation revealed that the records were at the
National Archives in Washington, D.C. The district court ordered the government
to produce the records for in camera inspection. The government filed the
transcripts under seal. And against the objections of the government, the district
court ordered the transcripts be unsealed. To do so, the district court relied on its
inherent authority under In re Petition to Inspect & Copy Grand Jury Materials
(Hastings), 735 F.2d 1261 (11th Cir. 1984).
On appeal, the government argues first, that the district court lacked inherent
authority to disclose the transcripts, and second, even assuming the district court
had inherent authority, the court exceeded that authority by permitting disclosure
based solely on the historical significance of the Moore’s Ford Lynching. Because
we are bound by our decision in Hastings, we affirm. See Kondrat’yev v. City of
Pensacola, Fla., 903 F.3d 1169, 1174 (11th Cir. 2018) (per curiam) (“[O]ur
precedent—in particular, our precedent about precedent—is clear: ‘[W]e are not at
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liberty to disregard binding case law that is . . . closely on point and has been only
weakened, rather than directly overruled, by the Supreme Court.’” (quoting Fla.
League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996))).
II. Power of District Courts to Disclose Grand Jury Records
The government argues that the district court erred in invoking its inherent
authority to disclose the grand jury records. We review a district court’s disclosure
of grand jury transcripts for abuse of discretion. United States v. Aisenberg, 358
F.3d 1327, 1338 (11th Cir. 2004). A court abuses its discretion when it commits
an error of law. United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).
A. Statutory Authority to Disclose Grand Jury Records
Grand jury secrecy is “an integral part of our criminal justice system.”
Blalock v. United States, 844 F.2d 1546, 1555 (11th Cir. 1988) (per curiam). Even
after an investigation has ended, grand jury proceedings generally remain secret.
“The grand jury as a public institution serving the community might suffer if those
testifying today knew that the secrecy of their testimony would be lifted
tomorrow.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct.
983, 986 (1958). Federal Rule of Criminal Procedure 6(e) codifies the general rule
prohibiting the disclosure of grand jury records. Rule 6(e) requires that “[r]ecords,
orders, and subpoenas relating to grand-jury proceedings . . . be kept under seal . . .
4 Case: 17-15016 Date Filed: 02/11/2019 Page: 5 of 40
to prevent the unauthorized disclosure of a matter occurring before a grand jury.”
FED. R. CRIM. P. 6(e)(6).
Rule 6(e) also codifies a list of exceptions to its general rule of secrecy. The
only enumerated exception available to a party other than the government or a
party in the grand jury proceeding is Rule 6(e)(3)(E)(i), which allows a court to
authorize disclosure of grand jury records “preliminarily to or in connection with a
judicial proceeding.” A party invoking this exception must prove that “the
material they seek is needed to avoid a possible injustice in another court
proceeding, that the need for disclosure is greater than the need for continued
secrecy, and that their request is structured to cover only material so needed.”
Douglas Oil Co. of Ca. v. Petrol Stops NW, 441 U.S. 211, 222, 99 S. Ct. 1667,
1674 (1979). Pitch agrees that he cannot benefit from this exception because the
grand jury records he sought were not necessary in “another court proceeding.”
B. Inherent Authority to Disclose Grand Jury Records
We have recognized that district courts retain “inherent power beyond the
literal wording of Rule 6(e)” to disclose grand jury material not otherwise covered
by the exceptions. Hastings, 735 F.2d at 1268.3 “[T]he exceptions permitting
3 The government argues that we are no longer bound by Hastings because the Supreme Court has rejected its reasoning. In Carlisle v. United States, the Supreme Court held that “[w]hatever the scope of [a court’s] ‘inherent power,’ . . . it does not include the power to develop rules that circumvent or conflict with the Federal Rules of Civil Procedure.” 517 U.S. 416, 426, 116 S. Ct. 1460, 1466 (1996) (emphasis added). This passage must be read in context. Carlisle held that a district court cannot directly contradict an applicable and unambiguous Federal Rule of Criminal 5 Case: 17-15016 Date Filed: 02/11/2019 Page: 6 of 40
disclosure were not intended to ossify the law, but rather are subject to
development by the courts in conformance with the Rule’s general rule of
secrecy.” Id. at 1269; accord United States v. Aisenberg, 358 F.3d 1327, 1347
(11th Cir. 2004) (“Although Rule 6(e)(3) enumerates the exceptions to the
traditional rule of grand jury secrecy, the Supreme Court and this Court have
recognized that the district courts have inherent power beyond the literal wording
of Rule 6(e)(3) to disclose grand jury material and that Rule 6(e)(3) is but
declaratory of that authority.”); In re Craig, 131 F.3d 99, 103 (2d Cir. 1997)
(“[P]ermitting departures from Rule 6(e) is fully consonant with the role of the
supervising court and will not unravel the foundations of secrecy upon which the
grand jury is premised.”); Carlson v. United States, 837 F.3d 753, 763 (7th Cir.
2016) (“Rule 6(e) is but declaratory of the long-standing principle that disclosure
of grand jury materials is committed to the discretion of the trial court.”) (internal
quotation marks omitted).
Procedure by invoking its inherent authority. In Carlisle, the Supreme Court held that a district court could not rely on inherent authority to enter a judgment of acquittal after the seven-day time limit prescribed by Rule 29(c) had expired. Id. at 426. The district court there “contradicted the plain language” of the Rule by “effectively annul[ing]” the seven-day time limit prescribed by Congress. Id. We do not read Carlisle to prohibit the exercise of that authority in “exceptional circumstances consonant with the rule’s policy and spirit.” Hastings, 735 F.2d at 1269; cf. United States v. Aisenberg, 358 F.3d 1327 (11th Cir. 2004) (holding that a petitioner cannot circumvent the plain text of an applicable rule or the Douglas Oil test by asserting inherent authority). “[W]e are not at liberty to disregard binding case law that is . . . closely on point and has been only weakened, rather than directly overruled, by the Supreme Court.” Kondrat’yev, 903 F.3d at 1174 (internal quotation marks omitted). We are thus bound by Hastings. 6 Case: 17-15016 Date Filed: 02/11/2019 Page: 7 of 40
“This is not to say [Rule 6(e)] is not normally controlling. It is.” Hastings,
735 F.2d at 1268. Petitioners and district courts cannot rely on inherent authority
to circumvent a plainly applicable and unambiguous enumerated Rule 6(e)
exception. See Aisenberg, 358 F.3d 1327 (declining to allow petitioners to rely on
inherent authority because petitioners’ request was “preliminarily to or in
connection with a judicial proceeding” under the Rule 6(e)(3)(E)(i) exception); cf.
Carlisle v. United States, 517 U.S. 416, 426 (1996) (holding that a district court
could not use inherent authority to extend a plain and unambiguous Rule of
Criminal Procedure that limited district court’s authority to enter a judgment of
acquittal to seven days). The upshot, then, is a district court may only invoke its
inherent authority to disclose grand jury records when an enumerated Rule 6(e)
exception does not directly govern the requested disclosure. 4 Both the government
and Pitch agree that none of the exceptions in Rule 6(e) apply, which allows Pitch
to survive this threshold inquiry.
III. The District Court’s Exercise of Discretion in the Present Case
We must now decide whether the facts presented here constitute
“exceptional circumstances” that allow a district court to employ its inherent
authority to disclose grand jury records outside the confines of Rule 6(e). The
4 This is merely derivative of the “cautionary principle” that courts will not “lightly assume that Congress has intended to depart from established principles such as the scope of a court’s inherent power.” Carlisle, 517 U.S. at 426, 116 S. Ct. at 1466 (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 47, 111 S. Ct. 2123, 2134 (1991)). 7 Case: 17-15016 Date Filed: 02/11/2019 Page: 8 of 40
petitioner has the burden of proving that “exceptional circumstances” exist. See
Hastings, 735 F.2d at 1272–73.
A. The “Exceptional Circumstances” Test
“[W]hile district courts have inherent authority to act outside Rule 6(e)(3),
any inherent disclosure authority is exceedingly narrow . . . .” Aisenberg, 358 F.3d
at 1347. “[C]ourts are not empowered to act outside Rule 6(e) in other than
exceptional circumstances consonant with the rule’s policy and spirit.” Hastings,
735 F.2d at 1269. Exceptional circumstances exist when the need for disclosure
outweighs the public interest in continued secrecy. Id. at 1272, 1275; see also
Douglas Oil, 441 U.S. at 223, 99 S. Ct. at 1275 (“[T]he court’s duty in a case of
this kind is to weigh carefully the competing interests in light of the relevant
circumstances and standards announced by this Court.”).
On one side of the scale is the well-established public interest in secrecy of
grand jury records. Nondisclosure of grand jury records “prevent[s] the escape of
those whose indictment may be contemplated,” ensures “the utmost freedom to the
grand jury in its deliberations,” prevents “tampering with the witnesses who may
testify before the grand jury,” encourages “free and untrammeled disclosures by
persons who have information” about the commission of crimes, and protects the
“innocent accused who is exonerated” from public disclosure that he had been
under investigation. United States v. Procter & Gamble Co., 356 U.S. 677, 682
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n.6, 78 S. Ct. 983, 986 n.6 (1958). Given the importance of grand jury secrecy, the
burden on the petitioner is high.
The weight on the other side of the scale—the need for disclosure—requires
a fact intensive analysis that depends on the competing interests in a particular
case. In Hastings, for example, we held that “the petition of a judicial
investigating committee is the kind of request which, in proper circumstances, can
trigger a district court’s inherent power to release grand jury minutes.” Hastings,
735 F.2d at 1269. In Hastings, we stated that “courts must adhere to Rule 6(e) in
‘garden variety’ petitions for grand jury disclosure,” recognizing that the Rule
“would be rendered meaningless if departures were freely sanctioned.” Id. We
emphasized there, as we do here, that “courts are not empowered to act outside
Rule 6(e) in other than exceptional circumstances.” Id. (emphasis added). In
Hastings, it was “highly significant that the grand jury materials in question were
sought . . . pursuant to express statutory authority” of the judicial investigating
committee. Id. at 1269–70. The court also considered that “a matter of great
societal importance”—namely, “the important public interest in the integrity and
independence of the judiciary”—was implicated. Id. Finally, while no enumerated
Rule 6(e) exception governed the disclosure, the requested disclosure was
analogous to those permitted by the Rule. Id. at 1271–72.
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B. The Exception for Matters of Exceptional Historical Significance
Under the proper circumstances, grand jury records on a matter of
exceptional historical significance may trigger a district court’s inherent authority
to disclose them. Our sister circuits have developed a multi-factor inquiry for
applying the balancing test set forth in Hastings to the disclosure of historically
significant grand jury records.5 In In re Petition of Craig, the Second Circuit
outlined a “non-exhaustive list of factors that a trial court might want to consider
when confronted with these highly discretionary and fact-sensitive” petitions:
(i) the identity of the party seeking disclosure; (ii) whether the defendant to the grand jury proceeding or the government opposes the disclosure; (iii) why disclosure is being sought in the particular case; (iv) what specific information is being sought for disclosure; (v) how long ago the grand jury proceedings took place; (vi) the current status of the principals of the grand jury proceedings and that of their families; (vii) the extent to which the desired material—either permissibly or impermissibly—has been previously made public; (viii) whether witnesses to the grand jury proceedings who might be affected by disclosure are still alive; and (ix) the
5 At the time of this opinion, two circuits have addressed the issue. Both held that district courts have inherent authority to disclose historically significant grand jury records. See In re Petition of Craig, 131 F.3d 99, 106 (2d Cir. 1997); Carlson v. United States, 837 F.3d 753 (7th Cir. 2016). While not specifically addressing disclosure for historical significance, the Eighth Circuit has expressed doubt that district courts have any inherent authority to act outside the enumerated Rule 6(e) exceptions. See United States v. McDougal, 559 F.3d 837, 841 (8th Cir. 2009). Finally, the D.C. Circuit has acknowledged the “general agreement” that district courts have inherent authority to disclose grand jury material. See Haldeman v. Sirica, 501 F.2d 714, 715 (D.C. Cir. 1974). Whether that inherent authority extends to disclosure for historical significance is pending in the D.C. Circuit. See McKeever v. Sessions, No. 17-5149 (D.C. Cir. filed June 14, 2017). 10 Case: 17-15016 Date Filed: 02/11/2019 Page: 11 of 40
additional need for maintaining secrecy in the particular case in question.
131 F.3d 99, 106 (2d Cir. 1997). But “there is no talismanic formula or rigid set of
prerequisites,” and the specific circumstances of a case may lead to additional
relevant factors. Id.
The first two Craig factors ask us to consider the interests of the parties: the
petitioner, the government, and the defendant in the grand jury proceeding. First,
the petitioner, Pitch, is an accomplished author and historian. He has published
many historical works, including a book about the Moore’s Ford Lynching. As we
discussed, while not dispositive, the government has a significant and well-
established interest in grand jury secrecy that will always weigh against disclosure.
See Procter & Gamble, 356 U.S. at 682 n.6, 78 S. Ct. at 986 n.6. Finally, no
defendant in the Moore’s Ford grand jury proceeding has objected to disclosure.
See Craig, 131 F.3d at 106 (“And if a third-party stranger wishes to obtain release
of data about secret meetings over the objection of the defendant, who, perhaps,
was never indicted by the grand jury, then the trial judge should be extremely
hesitant to grant release of the grand jury material.”).
The third, fourth, and seventh Craig factors concern the historical
importance of the information being sought. Pitch seeks disclosure for a
legitimate, scholarly purpose: to research, write, and educate the public about a
significant event in the civil rights movement. Cf. Globe Newspaper Co. v. Sup. 11 Case: 17-15016 Date Filed: 02/11/2019 Page: 12 of 40
Ct. for Norfolk Cty., 457 U.S. 596, 604, 102 S. Ct. 2613, 2619 (1982) (discussing
the constitutional right of the public to access records from criminal trials and
reasoning that this right “serves to ensure that the individual citizen can effectively
participate in and contribute to our republican system of self-government” by
protecting “the free discussion of governmental affairs”); In re Petition of Kutler,
800 F. Supp. 2d 42, 48 (D.D.C. 2011) (reasoning that “[t]he disclosure of President
Nixon’s grand jury testimony would likely enhance the existing historical record,
foster further scholarly discussion, and improve the public’s understanding of a
significant historical event.”).
Historical importance is objective. It must be distinguished from
“journalistic intrigue, public curiosity, or even a subjective importance to family
and friends.” Craig, 131 F.3d at 105 n.8. The Moore’s Ford Lynching is clearly
an event of exceptional historical significance. Compared to the journalist or the
family member of a victim that seeks access to the details of a salacious unsolved
crime, the Moore’s Ford Lynching is historically significant because it is closely
tied to the national civil rights movement. Many consider it to be the last mass
lynching in American history. There has been, and continues to be, national media
attention and widespread public interest in the murders. According to Pitch, the
Moore’s Ford Lynching is credited as a catalyst to the President’s Committee on
Civil Rights, which President Harry Truman created by executive order the same
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week the Moore’s Ford grand jury was convened. See Exec. Order No. 9808, 11
Fed. Reg. 14153 (Dec. 5, 1946). It would be difficult to deny—and the
government does not attempt to do so on appeal—that the Moore’s Ford Lynching
is, objectively, an exceptionally significant event in American history.
Despite considerable public interest, the details are sparse. Even with a
crowd of witnesses, no one was prosecuted and no public proceedings were held.6
For this reason, Pitch sought disclosure of the entire transcript from the grand jury
proceedings. As the district court did here, courts should give any party opposing
disclosure the opportunity to object to specific portions of the records. The district
court should engage in the same balancing test to determine whether, and how
much, those portions should be redacted or omitted. See Douglas Oil, 441 U.S. at
223, 99 S. Ct. at 1675 (“And if disclosure is ordered, the court may include
protective limitations on the use of the disclosed material . . . .”); Hastings, 735
F.2d at 1274–75 (approving the district court’s “protective conditions”).
The interest in continued secrecy is also undercut if details in the records
have been publicized. See Craig, 131 F.3d at 107; cf. In re North, 16 F.3d 1234,
1244–45 (D.C. Cir. 1994) (noting that widespread media release might undercut
interest in secrecy to point where Rule 6(e) would not prohibit disclosure). Here,
6 According to Pitch, the FBI interviewed over 2,700 people and subpoenaed over 100 witnesses to testify in front of the grand jury. 13 Case: 17-15016 Date Filed: 02/11/2019 Page: 14 of 40
this factor weighs against disclosure. There is no indication that any portion of the
grand jury records has been made public, permissibly or not.
Finally, the passage of time will often be the touchstone of our inquiry.
Even if other factors weigh strongly in favor of disclosure, an insufficient passage
of time since the grand jury proceedings took place is fatal to the petitioner’s
request for disclosure. “[T]he passage of time erodes many of the justifications for
continued secrecy.” Craig, 131 F.3d at 107. The sufficiency of the passage of
time must be viewed in light of the policy underlying grand jury secrecy: to protect
the important truth-seeking function of grand juries.7 As a result, the passage of
time generally must be long enough that the principal parties to the investigation—
the suspects and witnesses—and their immediate family members have likely died,
and that there is no reasonable probability that the government would make arrests
based on the disclosed information. See id.
Pitch requested the Moore’s Ford grand jury transcripts seventy-one years
after the grand jury proceeding took place.8 No one has been charged, no one is
currently under active investigation, and the principal parties to the investigation
were adults at the time of the grand jury proceeding. Under these circumstances,
7 See generally United States v. Procter & Gamble Co., 356 U.S. 677, 682 n.6, 78 S. Ct. 983, 986 n.6 (1958). 8 Pitch first requested the records three years earlier, in 2014, which the district court denied. The government appeals from the district court’s grant of Pitch’s second petition, which he filed in 2017. 14 Case: 17-15016 Date Filed: 02/11/2019 Page: 15 of 40
seventy years is at or near the bounds of sufficient passage of time. There is no
indication that any witnesses, suspects, or their immediate family members are
alive to be intimidated, persecuted, or arrested. Like the court in Craig, we also
find it significant that the historical interest in the Moore’s Ford Lynching has
persisted over time. See Craig, 131 F.3d at 107. Although it now seems nearly
impossible that anyone will ever be charged, the investigation has been reopened
many times, and the event has inspired annual reenactments and several books and
articles spanning seven decades.
Balancing these competing interests, the district court did not err in holding
that the interest in disclosure outweighed the interest in continued secrecy.
IV. Conclusion
“We consistently have recognized that the proper functioning of our grand
jury system depends upon the secrecy of grand jury proceedings,” but “a court
called upon to determine whether grand jury transcripts should be released
necessarily is infused with substantial discretion.” Douglas Oil, 441 U.S. at 218,
99 S. Ct. at 1672. Given our binding decision in Hastings, and the truly
“exceptional circumstances” presented by the Moore’s Ford Lynching, we cannot
say that the district court abused its substantial discretion in ordering the release of
the grand jury transcripts. The judgment of the district court is affirmed.
AFFIRMED.
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JORDAN, Circuit Judge, concurring:
Three decades ago, we held that a federal court has inherent authority to
order the disclosure of grand jury materials in situations not covered by the
exceptions to secrecy set forth in Federal Rule of Criminal Procedure 6(e). See In
re Petition to Inspect & Copy Grand Jury Materials (Hastings), 735 F.2d 1261,
1268 (11th Cir. 1984) (setting out an “exceptional circumstances” standard). I
would have decided Hastings differently because allowing the use of inherent
authority to go beyond the exceptions to grand jury secrecy set forth in Rule 6(e)
seems too open-ended to me. See Carlson v. United States, 837 F.3d 753, 767-71
(7th Cir. 2016) (Sykes, J., dissenting).
Nevertheless, I join the court’s opinion. Given our decision in Hastings, I
do not see how we can say that the district court abused its discretion in relying on
its inherent authority. In addition, I do not believe there is a persuasive basis to
distinguish between the disclosure of grand jury materials for use by a judicial
investigating committee (what was at issue in Hastings) and the disclosure of
grand jury materials to discover the facts surrounding an event of exceptional
historical significance (what is at issue here).
*****
If we are going to deny disclosure here, we need to overrule Hastings, rather
than attempt to distinguish it. My initial view, following oral argument, was that
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we should consider convening en banc to revisit Hastings. Upon further reflection,
however, I have come to a different conclusion, and I’d like to explain why.
First, Hastings does not stand alone. Other federal courts have likewise
invoked inherent authority to permit disclosure of grand jury materials in
circumstances not covered by Rule 6(e). See Carlson v. United States, 837 F.3d
753, 763-66 (7th Cir. 2016); In re Grand Jury Proceedings, 417 F.3d 18, 26 (1st
Cir. 2006); In re Craig, 131 F.3d 99, 103 (2d Cir. 1997); In re Petition of Kutler,
800 F. Supp. 2d 42, 48 (D.C. Cir. 2011). Cf. Haldeman v. Sirica, 501 F.2d 714,
715 (D.C. Cir. 1974) (en banc) (denying mandamus relief sought by the
government to prevent the district court from disclosing to the House Judiciary
Committee, post-indictment, a sealed grand jury report and accompanying
evidence, while indicating “general agreement” with the district court’s handling of
the matter). And at least one court has left the door open to the use of inherent
authority for disclosure in dicta. See In re Special Grand Jury 89-2, 450 F.3d
1159, 1178 (10th Cir. 2006).
No federal court, as far as I can tell, has come to a contrary conclusion in a
published opinion. The Eighth Circuit has said that “courts will not order
disclosure [of grand jury materials] absent a recognized exception to Rule 6(e) or a
valid challenge to the original sealing order or its implementation,” United States
v. McDougal, 559 F.3d 837, 840 (8th Cir. 2009), but it was not faced in that case
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with an argument for disclosure under inherent authority for matters of exceptional
historical significance. Given the current array of authority, we would likely be
creating a circuit split by overruling Hastings, and that should not be done lightly.
Second, whatever the initial reasons for keeping grand jury matters secret,
compare George Edwards, Jr., The Grand Jury 116 (1906) [Legal Classics Library
ed. 2003] (suggesting that the “original purpose [of grand jury secrecy] was that no
offender should escape”), with Mark Kadish, Behind the Locked Doors of an
American Grand Jury: Its History, its Secrecy, and its Process, 24 Fl. St. U. L.
Rev. 1, 14 (1996) (explaining that the reasons for grand jury secrecy were varied,
and included preventing the flight of suspected criminals, finding out whether
witnesses were biased, and ensuring freedom from judicial oversight), in the
United States grand jury secrecy was not always seen as an absolute. In cases
decided before the enactment of the Federal Rules of Criminal Procedure, some
federal courts—including the Supreme Court—held (or at least said) that secrecy is
not required after an indictment is returned and the accused is in custody. “[A]fter
the grand jury’s functions are ended, disclosure is wholly proper where the ends of
justice require it.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234
(1940). Accord Metzler v. United States, 64 F.2d 203, 206 (9th Cir. 1933); Atwell
v. United States, 162 F. 97, 99-100 (4th Cir. 1908); In re Grand Jury Proceedings,
4 F. Supp. 283, 284-85 (E.D. Pa. 1933).
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If Rule 6(e) was meant to “continue[ ] the traditional practice of secrecy on
the part of members of the grand jury except when the court permits a disclosure,”
Rule 6(e), 1944 Advisory Committee Notes to Subdivision (e), there is a
reasonable argument that Hastings and its progeny are at least consistent with
historical practice. As we have said: “Although Rule 6(e)(3) enumerates the
exceptions to the traditional rule of grand jury secrecy, the Supreme Court and this
Court have recognized that the district courts have inherent power beyond the
literal wording of Rule 6(e)(3) to disclose grand jury material and that Rule 6(e)(3)
is but declaratory of that authority.” United States v. Aisenberg, 358 F.3d 1327,
1347 (11th Cir. 2004). See also In re Request for Access to Grand Jury Materials,
833 F.2d 1438, 1442 (11th Cir. 1987) (“As the considerations justifying secrecy
become less relevant, the burden of showing the need for disclosure is lessened.”).
Third, a survey of the relevant cases indicates that federal courts have been
able to apply the test set forth in In re Craig, 131 F.3d at 106, without too much
difficulty in determining which matters of exceptional historical significance
warrant the disclosure of grand jury materials. See, e.g., In re Application to
Unseal Dockets, 308 F. Supp. 3d 314, 326-35 (D.D.C. 2018); In re Nichter, 949 F.
Supp. 2d 205, 212–14 (D.D.C. 2013). These courts have explained that
exceptional historical significance, though a necessary element for disclosure, is
itself not enough. Even if a matter or proceeding is historically significant to an
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exceptional degree, a court retains discretion to deny disclosure after balancing the
requisite factors. See, e.g., In re Nichter, 949 F.Supp.2d at 212-14.
Fourth, and perhaps most importantly, a recent attempt to amend Rule 6(e)
to permit the disclosure of grand jury records in cases of exceptional historical
significance proved unsuccessful. The reason why this proposed amendment failed
is insightful, and in my view counsels against revisiting Hastings at this time.
In 2011, Attorney General Eric Holder recommended that Rule 6(e) be
amended to establish procedures for disclosing historically significant grand jury
materials. See Letter from Attorney General Eric Holder to Judge Reena Raggi,
Chair of the Judicial Conference’s Advisory Committee on Criminal Rules, Oct.
18, 2011 (attached). The Department of Justice questioned whether federal courts
had inherent authority to allow such disclosures given what it believed was Rule
6(e)’s clear prohibition of disclosure of grand jury materials absent an express
exception. See id. at 2-5. Attorney General Holder proposed that disclosure of
historically significant grand jury materials be permitted, but only under new
procedures set forth in Rule 6(e) itself. The procedures suggested by the DOJ
would have required anyone seeking disclosure to show, among other things, that
the grand jury records in question have “exceptional” historical significance, that at
least 30 years have passed since the relevant case files associated with the grand
jury records were closed, that no living person would be materially prejudiced by
20 Case: 17-15016 Date Filed: 02/11/2019 Page: 21 of 40
disclosure, and that disclosure would not impede any pending government
investigation or prosecution. See id. at 8-9.
The Judicial Conference’s Advisory Committee on Criminal Rules, then
chaired by Second Circuit Judge Reena Raggi, reported in 2012 to the Committee
on Rules of Practice and Procedure that it believed that the DOJ’s proposed
amendment to Rule 6(e) was unnecessary. See Minutes of Meeting of June 11-12,
2012, Judicial Conference Committee on Rules of Practice and Procedure, at 44
(relevant pages attached). According to Judge Raggi, all members of a
subcommittee of the Advisory Committee on Criminal Rules—with the exception
of the DOJ representative—recommended that the DOJ’s proposed amendment
“not be pursued” because “in the rare cases where disclosure of historic materials
had been sought, the district [courts] acted reasonably in referring to their inherent
authority,” and as a result “there [wa]s no need for a rule on the subject.” Id.
What happened (or, more accurately, did not happen) in 2012 is not, of
course, dispositive. But it is instructive. If those charged with considering
amendments to the Federal Rules of Criminal Procedure believed in 2012 that
federal courts had properly relied on inherent authority to order the disclosure of
historically significant grand jury materials, the case for overruling Hastings is
lessened.
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With these thoughts, I join the court’s opinion.
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GRAHAM, District Judge, dissenting: The court creates an exception to the rule of grand jury secrecy, doing so on
the assertion that the rationale for secrecy erodes over time. The exception appears
to be limited to matters fitting two main criteria: enough time has elapsed for the
parties to the event to have died and enough present-day authority considers the
event to be of exceptional historical significance. The court states that the test for
historical significance is objective but leaves the test open-ended. The court
provides little guidance for the analysis except to say that historical significance
requires more than an interested journalist, curious public or concerned friend or
family member.
I disagree with the majority on several fronts. I believe that judges should
not be so bold as to grant themselves the authority to decide that the historical
significance exception should exist and what the criteria should be. I agree with
the dissent of Judge Sykes in Carlson v. United States, 837 F.3d 753, 767 (7th Cir.
2016) (Sykes, J., dissenting), and would hold that Rule 6(e) of the Federal Rules of
Criminal Procedure limits a district court’s authority to order the disclosure of
grand jury records. Rule 6(e)(3) codifies the policy choices made about which
exceptions should be recognized. Nothing analogous to a historical significance
exception can be found there.
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The court relies on Hastings to sanction a broader exercise of judicial power
than the decision’s narrow holding supports. Hastings permitted an exception to
grand jury secrecy for a judicial investigating committee. It found the situation to
be “closely akin” to the Rule 6(e)(3)(E)(i) exception for judicial proceedings. In re
Petition to Inspect & Copy Grand Jury Materials (Hastings), 735 F.2d 1261, 1272
(11th Cir. 1984). An exception for matters of historical significance bears no
resemblance to an exception which applies “to assist in preparation or conduct of a
judicial proceeding.” United States v. Baggot, 463 U.S. 476, 480, 103 S. Ct. 3164,
3167 (1983).
But even if a district court has inherent authority to order disclosure outside
of Rule 6(e), I do not believe it should be exercised in this case. The rule of grand
jury secrecy serves many interests, including “assur[ing] that persons who are
accused but exonerated by the grand jury will not be held up to public ridicule.”
Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 219, 99 S. Ct. 1667,
1673 (1979). This case presses the matter further, both in time and scope. Do
subsequent generations—the children, grandchildren and beyond—of not only the
suspects but also the grand jury witnesses and grand jurors themselves have
reputational interests that warrant protection?
Because “secrecy of the grand jury is sacrosanct,” United States v. Phillips,
843 F.2d 438, 441 (11th Cir. 1988), and because disclosure of grand jury material
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is prohibited “except in the limited circumstances provided for in Rule 6(e)(3),”
United States v. Aisenberg, 358 F.3d 1327, 1347 (11th Cir. 2004), the rule of
secrecy, as codified in Rule 6(e)(3), has always applied to protect the interests of
subsequent generations.
Disclosure of grand jury records should not be permitted without an exacting
review which gives due weight to the privacy and reputational interests at stake. It
is troubling that the court has authorized disclosure of the records without
examining their contents.1 It is troubling too that the government has elected not
to contest the proposition that there is no interest to be served in continued secrecy.
That an event has exceptional historical significance cuts both ways. With
the principal parties having passed away and the investigation gone cold, one
might conclude the matter is stale and the need for secrecy over. Yet, exceptional
significance suggests a continued interest in, and impact from, the event. The
Moore’s Ford Lynching played a part in the civil rights movement and interest
remains very much alive, particularly among members of the community affected
by the event. The depth of their interest is illustrated by the Moore’s Ford
Memorial Committee, which has advocated for racial justice and held events
memorializing the victims over the past two decades. The Committee has placed
grave markers for the victims and a historical marker near the site of the lynching.
1 The grand jury records were not made a part of the record before the court. 25 Case: 17-15016 Date Filed: 02/11/2019 Page: 39 of 40
A member of the Committee and a granddaughter of one the victims attended oral
argument in this appeal. Community members organize an annual reenactment in
honor of the victims. They still search for justice.
The vitality of the community’s continued interest raises possible
repercussions for the living descendants and relatives of those individuals whom
the grand jury records will identify as being suspects, witnesses and grand jurors.
The modern public rightly views the lynching and failure to indict as a horrific
injustice, and many perceive it to have been the work of the Ku Klux Klan. Would
knowing that grand jury records could someday be disclosed and affect the
standing of a child or grandchild in the community deter a grand jury witness from
fully telling the truth? Could the conduct of a witness or grand juror involved in an
event that is viewed at the time as momentous or sensational be influenced by a
concern for their own legacy among future generations?
I would hold that the reputational interests protected by Rule 6(e) include
those of subsequent generations. I am unable to dismiss the reputational harm that
could occur to a living person if the grand jury transcripts reveal that their parent or
grandparent was a suspect, a witness who equivocated or was uncooperative, a
member of the grand jury which refused to indict, or a person whose name was
identified as a Klan member.
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Accordingly, I dissent and would reverse the district court’s order. At a
minimum this court should provide protections to limit the harm its newly-created
exception to grand jury secrecy could cause. The court should, for example,
instruct the district court on remand to examine the grand jury records, with the
assistance of the government, and to protect discernible reputational interests by
taking measures such as redacting names and other identifying information.