C.W. Blalock, Jr. v. United States

844 F.2d 1546, 1988 U.S. App. LEXIS 6551, 1988 WL 40215

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 18, 1988
• Docket: 87-8020
• Status: Published

Opinions

PER CURIAM:

Appellant is the target of a federal grand jury investigation in the Southern District of Georgia. He claims that the assistant United States Attorney in charge of the investigation and the Federal Bureau of Investigation (FBI) agents who are participating in it are denying him due process of law by the manner in which they are performing their duties. He also claims that they have disclosed grand jury materials to unauthorized persons in violation of Fed.R. Crim.P. 6(e)(2).¹ To protect his rights under the due process clause and Rule 6(e)(2), appellant applied to the district court for an order permanently enjoining the grand jury’s investigation of him. After entertaining the response of the assistant United States Attorney and affidavits submitted by appellant, the district court rejected his application. We affirm.²

I.

The grand jury is investigating allegations that bid rigging, fraud, and various other federal crimes have occurred in the construction of the Georgia Power Company’s Vogtle nuclear power plant. Appellant is a target of the investigation.³ Most of the evidence heard by the grand jury thus far has been gathered by FBI agents. On occasion, these agents have collaborated with Georgia Power Company investigators who are looking into the allegations on behalf of the power company.

Appellant wants the grand jury’s investigation brought to a halt for several reasons: (1) the investigation, which began in April 1985, has taken too long; (2) the prosecutor is using the grand jury’s subpoena power to bring witnesses to his office so that he can conduct his own private investigation of appellant; (3) the prosecutor and an FBI agent involved in the grand jury investigation have commented that they are going to “break [appellant] or run him out of business”; (4) the prosecutor told a potential grand jury witness that appellant might harm her;⁴ and (5) the prosecutor and several FBI agents have disclosed grand jury materials to unauthorized persons.

To support his application for injunctive relief in the district court, appellant presented two affidavits. The first affidavit came from a person who heard the prosecutor state that he intended to “break [appellant] or run him out of business.” The second affidavit was from a person interviewed first by power company investigators and then by the FBI. The affiant stated that the latter asked him questions similar to those put to him by the power company investigators. Appellant requested that the court hold an evidentiary hearing so that he could present live testimony in addition to these affidavits.

The prosecutor, responding to appellant’s application for injunctive relief, argued that an evidentiary hearing was unnecessary. Assuming, for sake of argument, the truth of appellant’s allegations, the prosecutor contended that appellant was not entitled to injunctive relief because he has an adequate remedy at law: if indicted, appellant can move the court to dismiss the indictment.

Following its receipt of the prosecutor’s response, the court heard argument of counsel on appellant’s request for injunc-tive relief. Appellant again urged the court to hold an evidentiary hearing and proffered the testimony of the witnesses who purportedly would appear. His proffers restated the factual allegations of impropriety made earlier.

After considering appellant’s proffers and the prosecutor’s response, the court declared a recess so that it could examine the transcripts of the grand jury proceedings, which the prosecutor had filed in camera. When the argument resumed, the court denied appellant’s application for in-junctive relief. The court stated that reading the transcripts of the grand jury’s proceedings convinced it that the grand jury had been conducting itself in an orderly fashion and there appeared to be no reason to abort its investigation. As for appellant’s claim that the prosecutor and the FBI had behaved improperly, the court noted that appellant had an adequate remedy at law, which he could pursue if indicted.

The court also noted that the behavior of the assistant United States Attorney and the FBI agents involved in the case had always been exemplary; it therefore doubted the truth of appellant’s allegations of impropriety. Following this comment, appellant moved the court to recuse itself from further participation in the matter. His motion was denied.

Appellant now appeals. He asks us to vacate the district court’s ruling and to remand the case for an evidentiary hearing before a different district judge, arguing that the judge who handled the matter should have recused himself. He also asks us to declare that his allegations of prose-cutorial misconduct state a claim for injunc-tive relief. We decline both requests.

II.

Appellant claims that both the due process clause of the fifth amendment and Fed.R.Crim.P. 6(e)(2) give the target of a grand jury investigation the right to injunc-tive relief to remedy the sort of governmental misconduct he has alleged here. We first address his claim under the due process clause.

A.

Appellant’s due process claim proceeds on two assumptions: first, that a target of a federal grand jury investigation has a constitutional right to be indicted by a grand jury proceeding untainted by the kind of conduct purportedly engaged in by the prosecutor and the FBI in this case; and second, that injunctive relief is available to preclude the grand jury from returning a tainted indictment.

We need not decide whether a target has the due process right appellant asserts. All that we need to say is that appellant is not entitled to an injunction because he has an adequate remedy at law.

It is settled law that “courts of equity should not act ... when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). Equity always has been hesitant to act if its remedy would disrupt an ongoing grand jury investigation. See, e.g., United States v. Calandra, 414 U.S. 338, 349-50, 94 S.Ct. 613, 620-21, 38 L.Ed.2d 561 (1974); Cobbledick v. United States, 309 U.S. 323, 327-28, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940); Blair v. United States, 250 U.S. 273, 280-82, 39 S.Ct. 468, 470-71, 63 L.Ed. 979 (1919). In the few situations in which equity has intervened — principally in cases involving challenges to the validity of a grand jury subpoena — relief has been granted only where there is no adequate remedy at law.⁵ In the present case, appellant has an adequate legal remedy in the form of a motion to dismiss his indictment, if one is handed down.

B.

Appellant interprets Rule 6(e)(2) to require a district court to grant a target of a grand jury investigation equitable relief whenever matters occurring before the grand jury have been improperly disclosed and further disclosures are likely. According to appellant, the district court should have enjoined the grand jury’s investigation because both the prosecutor and the FBI have improperly disclosed matters that have taken place before that body. First, he contends that the FBI has revealed grand jury material to investigators employed by Georgia Power by questioning potential grand jury witnesses in the presence of such investigators; he further contends that the agents had to disclose grand jury information to question these witnesses effectively. Second, he alleges that in one instance the agents and power company investigators questioned a potential witness separately, but asked similar questions; he argues that such conduct suggests that the FBI has disclosed the direction taken by the grand jury investigation. Third, he contends that the prosecutor told one of appellant’s competitors that the grand jury was likely to indict him soon, thus revealing “matters occurring before the grand jury.”

Appellant cites In re Grand Jury Investigation (Lance), 610 F.2d 202 (5th Cir.1980),⁶ as authority for his contention that, on these facts, Rule 6(e)(2) gives him the right to enjoin the grand jury proceedings. In Lance, the Fifth Circuit, ignoring the question whether a target of a grand jury investigation has the right to bring an action under the Rule to enjoin the unauthorized disclosure of grand jury matters, held that a target has the right to ask the district court to require anyone wrongfully disclosing grand jury matters to show cause why he should not be held in civil contempt and sanctioned. See id.; see also United States v. Eisenberg, 711 F.2d 959 (11th Cir.1983) (remanding for determination whether contempt was warranted). In reaching this holding, the Lance court necessarily answered in the affirmative the question it chose to ignore — whether Rule 6(e)(2) gives a target a right of action for injunctive relief against the members of the grand jury and the prosecutors assisting them in their investigation. We make this statement because there is no such thing as an independent cause of action for civil contempt; civil contempt is a device used to coerce compliance with an in personam order of the court which has been entered in a pending case. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 441-42, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911). Thus, in holding that a target may seek civil contempt sanctions for a violation of Rule 6(e)(2), Lance stands for the proposition that a target may bring suit for injunctive relief against the individuals subject to Rule 6(e)(2) and may invoke the district court’s contempt power to coerce compliance with any injunctive order the court grants.

Because Lance is binding, we must determine whether appellant has made out a case for injunctive relief against the prosecutor or any of the FBI agents. We do so notwithstanding that appellant has filed no suit against these individuals in the district court.⁷

Lance holds that if a grand jury target proffers evidence that government agents have improperly disclosed grand jury information in violation of Rule 6(e)(2), the district court must hold an evidentiary hearing to determine the truth of the proffer and the need for relief. Lance, 610 F.2d at 220-21. The first step in a Rule 6(e)(2) proceeding is, of course, to determine whether the target’s proffer of evidence demonstrates a violation of the Rule. Typically, the target proffers affidavits or news articles suggesting that grand jury matters have been disclosed improperly. See, e.g., Lance, 610 F.2d at 216-18; Eisenberg, 711 F.2d at 961. If the target’s proffer fails to establish a prima facie case, the court must dismiss the target’s Rule 6(e)(2) case without an evidentiary hearing. See United States v. Navarro-Ordas, 770 F.2d 959, 968 (11th Cir.1985), cert denied, 475 U.S. 1016, 106 S.Ct. 1200, 89 L.Ed.2d 313 (1986). In determining whether a prima facie case has been made, the court must consider a number of factors, including (1) whether there is “a clear indication that the [disclosure involved] ‘matters occurring before the grand jury,’ ” Lance, 610 F.2d at 216; (2) whether it appears that the disclosure was made by a person subject to Rule 6(e)(2)’s requirement of secrecy, id. at 217; (3) whether the relief requested will interfere with the grand jury proceedings, id. at 219; and (4) whether the government has sufficiently rebutted the target’s showing. Id.

Turning to appellant’s allegation that the FBI agents violated Rule 6(e)(2), we first note that appellant sought no injunctive relief against any of the agents; rather, he sought an order enjoining the grand jury’s investigation. Assuming, for sake of argument, however, that appellant applied for relief against the agents, we observe that the agents could not have violated Rule 6(e)(2) merely by allowing the Georgia Power investigators to be present during the questioning of potential grand jury witnesses. Rule 6(e)(2) only protects information revealing what has occurred, or will occur, inside the grand jury room. Lance, 610 F.2d at 216-17. The Rule does not protect from disclosure information obtained from a source other than the grand jury, even if the same information is later presented to the grand jury. Id.; see also Anaya v. United States, 815 F.2d 1373, 1380 (10th Cir.1987).

To have violated Rule 6(e)(2), and thus to warrant the invocation of the district court's equity powers, the agents must have disclosed to the Georgia Power investigators information revealing what had transpired, or will transpire, before the grand jury. We do not find any indication that this occurred. That the agents and the power company investigators asked a potential witness similar questions in separate interviews does not, standing alone, establish that the agents revealed grand jury matters. Nor do we accept appellant’s speculative allegation that the FBI’s interrogation of potential witnesses in the presence of Georgia Power investigators necessarily revealed “matters occurring before the grand jury.” We simply have no reason to believe that the agents did not keep confidential any grand jury matters of which they were aware. Accordingly, appellant fails to make out a prima facie Rule 6(e)(2) violation by the FBI agents.

With respect to appellant’s allegation that the prosecutor told one of appellant’s competitors that the grand jury was likely to indict him soon, we note that the decision whether to indict appellant is a “matter ... before the grand jury” and thus falls within the proscription of Rule 6(e)(2). See Lance, 610 F.2d at 217. Appellant substantiated his allegation with a proffer of evidence; he represented that a witness, whom he identified, would testify that the prosecutor made the statement. The prosecutor countered appellant’s allegation with his own affidavit, in which he denied the disclosure. Faced with a swearing match, the district court refused to grant appellant the relief he was requesting, an injunction terminating the grand jury’s investigation.

As noted, appellant did not seek an order enjoining the prosecutor. We will assume, however, that he asked for such relief and that an evidentiary hearing would have established the truth of the testimony he proffered. Nonetheless, an injunction against the prosecutor could not issue; appellant failed to establish one of the prerequisites to injunctive relief — that further injury was likely to occur.

III.

Finally, appellant contends that the district judge should have recused himself because his favorable relationship with the prosecutor and the FBI agents destroyed his impartiality. The applicable statutory provision states that “[a]ny ... judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a) (1982).⁸ We have held that this statute provides an objective standard, that is, “whether a reasonable person knowing all the facts would conclude that the judge’s impartiality might reasonably be questioned.” United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir.1986).

In the present case, we believe that the district judge’s comments were extraneous and therefore irrelevant to his ruling. As stated above, the court found that even if governmental misconduct occurred as appellant had alleged, he was not entitled to injunctive relief. In other words, the judge assumed that the prosecutor and the FBI agents had engaged in the alleged misconduct, but nonetheless concluded that no injunction should issue. Once the judge made that assumption, his professional respect for them was no longer a factor affecting his decision on the merits. Thus, the judge properly denied appellant’s motion for recusal.

AFFIRMED.

1 .Rule 6(e)(2) provides:

A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.

XJnder paragraph (3)(A)(ii), grand jury matters may be disclosed to "such government personnel ... as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law." If disclosure is made to such government personnel, the FBI agents, for example, the persons to whom the information is disclosed are themselves subject to Rule 6(e)(2)’s secrecy requirement.

2 . Because this is an appeal from the denial of an injunction, we have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) (1982).

3 . The record does not disclose appellant’s role in the construction of the power plant or whether other persons are being investigated by the grand jury.

4 . The record does not disclose whether the prosecutor's alleged statements were intended to coerce the witness into testifying, or whether they were made to coerce her into not testifying.

5 . As one commentator notes:

The scope of judicial review is narrowest while there is an ongoing grand jury investigation. The courts’ concern for grand jury secrecy and for the grand jury’s law enforcement function is generally greatest during the investigative phase of grand jury proceedings. Premature disclosure while an investigation is pending may frustrate the investigation by allowing the persons under investigation to escape, to suborn perjury, or to bribe or intimidate potential witnesses or members of the grand jury. Premature disclosure may also damage the reputations of persons the grand jury’s final investigation may exonerate. These concerns are reflected in the traditional rules that severely limit the scope of judicial review during an ongoing grand jury investigation, such as the rule that witnesses may not challenge the grand jury’s jurisdiction. Some forms of judicial review are, however, available during the investigative phase of grand jury proceedings. A witness subpoenaed to testify or produce evidence before the grand jury may obtain judicial review by seeking to quash the subpoena, or by refusing to answer specific questions, which will ordinarily precipitate a contempt proceeding. Under some circumstances third parties may also intervene and seek to quash a subpoena or assert a testimonial privilege.

S. Beale & W. Bryson, Grand Jury Law & Practice § 10:18 (1986) (footnotes omitted).

6 . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

7 . Because Lance holds, in effect, that a target may bring suit for injunctive relief against the individuals subject to Rule 6(e)(2), the target must commence his injunctive action with a formal complaint. See Fed.R.Civ.P. 3. In the present case, appellant simply filed a motion in the district court, asking that court to issue an order barring further proceedings by the grand jury, without filing a complaint.

8 . Section 455(b) mandates disqualification in other situations, none of which is applicable to this case.