Illinois v. Sarbaugh

552 F.2d 768, 23 Fed. R. Serv. 2d 834
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 8, 1977
DocketNo. 76-1690
StatusPublished
Cited by53 cases

This text of 552 F.2d 768 (Illinois v. Sarbaugh) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Illinois v. Sarbaugh, 552 F.2d 768, 23 Fed. R. Serv. 2d 834 (7th Cir. 1977).

Opinion

TONE, Circuit Judge.

This is an appeal from an order of the District Court for the Eastern District of Illinois refusing to permit inspection and copying of grand jury transcripts. Inspection is sought by the State of Illinois, plaintiff in a private treble-damage antitrust action pending in the Southern District of Illinois, for use in connection with that action. Among the defendants in that action arfe nine corporations indicted by the Eastern District grand jury who, during the pendency of the now-concluded criminal action, obtained copies of the transcripts pursuant to Rule 16(a)(1)(A), Fed.R.Crim.P. We decide that those corporations may intervene in the proceeding, that the order denying inspection is appealable, and that the state should have access to the transcripts subject to certain conditions.

The Criminal Case in the Eastern District

The indictment in the Eastern District charged the corporate defendants, highway [771]*771construction contractors, and four of their officers with violating § 1 of the Sherman Act, 15 U.S.C. § 1, by submitting rigged bids to the State of Illinois and allocating among the corporate defendants projects let by the state in connection with the construction of an interstate highway. The Eastern District court’s inspection order directed the Department of Justice to permit the attorneys for each of the corporate defendants to inspect and copy the transcripts of the grand jury testimony of present or former employees of the corporation who had power to bind it with respect to business activity which was the subject of the indictment. Rule 16(a)(1)(A), Fed.R. Crim.P. Disclosure was made pursuant to the order. Subsequently all the defendants entered pleas of nolo contendere, which were accepted, and judgments were entered and sentences were imposed. The grand jury has long since been discharged.

The Civil Case in the Southern District

The state’s treble-damage action in the Southern District was based on the same facts and sought recovery of overcharges resulting from the alleged conspiracy. In addition to the nine companies charged in the Eastern District indictment, five other highway construction companies were named as defendants. The state moved for an order requiring John E. Sarbaugh, Chief of the Antitrust Division’s Midwest Office, to produce for inspection and copying grand jury transcripts which had been disclosed to any defendant in the criminal proceeding in the Eastern District, to any defendant in the civil case, or to any person not an attorney or staff member of the Department of Justice. The state also served a request to produce copies of the transcripts on each of the defendants in the civil case and subsequently sought an order compelling production of the copies. The court denied relief, holding that the transcripts were outside the jurisdiction of that court because they related to a grand jury proceeding in another district. The court added:

“No expression is intended by this Order on the merits of those requests, only on the matter of the jurisdiction of this Court.”

The Proceeding Below

The state then petitioned for the same relief against respondent Sarbaugh in the Eastern District, pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure. His response to the petition raised no objection. The state served notice of this petition on the corporate defendants, and, upon their objections to disclosure, the District Court held a hearing at which the corporate defendants were allowed, without objection, to appear and be heard. The District Court then, in the order appealed from, denied the petition, holding that the requisite particularized showing of compelling necessity had not been made. The court, however, ordered the transcripts transferred to the Southern District so they would be available for disclosure by that court if a sufficient showing of necessity were made during the trial.1

The court also denied a motion by the state for production of documents, in which it sought to inspect all subpoenas and documents in the custody of respondent Sarbaugh which had been collected by the Eastern District grand jury in connection with its highway industry investigation. Respondent Sarbaugh was ordered, however, to return all corporate documents in his possession to the defendants, so those documents would be available for discovery [772]*772by the state.2 The ruling on the motion to produce documents is not challenged on appeal.

The objectors, designating themselves intervenors and appellees, have moved to dismiss the appeal, and the state has moved to strike the appearances of the intervenors. Both motions were ordered taken with the merits.

Consistent with his position before the District Court, respondent Sarbaugh does not oppose the relief sought by the state. Only the intervenors oppose that relief.

1. Intervention3

The state contends that the corporations resisting disclosure of the transcripts should not be considered intervenors because they did not comply with the requirements of Rule 24(c), Fed.R.Civ.P., when they appeared in the District Court. Any right the state may otherwise have had to rely on this failure was lost, however, when it did not object on this ground in the District Court. Cf. Klein v. Nu-Way Shoe Co., 136 F.2d 986, 989 (2d Cir. 1943); see 3B Moore’s Federal Practice ¶ 24.12[1] at 24-504 (1975). In fact, in the District Court the state asserted no objection whatsoever to the intervenors’ appearance. By notifying them of the petition, failing to object to the order inviting them to appear, and never raising any question of their right to appear, the state waived any objection to their intervention.

In any event, we think the objecting defendants were entitled to intervene. The Third Circuit reached the opposite result in a per curiam opinion in United States v. American Oil Co., 456 F.2d 1043, 1044 (1972), framing the issue as one of standing and stating that the criminal proceeding had terminated, “the order to produce was not directed to the defendants,” and “[t]he government’s right in such a situation.is not before us.” This court, however, in In re Special February 1971 Grand Jury v. Conlisk, 490 F.2d 894 (7th Cir. 1973), decided on its merits a challenge to a disclosure order by witnesses before the grand jury who sought to prevent disclosure of their testimony for use in proceedings against them before a board of inquiry of the Chicago Police Department. The policemen were of course not only parties to the board proceeding but, unlike intervenors here, were themselves witnesses before the grand jury.4 Yet, if the Third Circuit’s reasoning had been applied, they would have lacked standing. Similarly, in In re Holovachka, 317 F.2d 834 (7th Cir.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mitchell v. City Of Chicago
N.D. Illinois, 2019
San Juan County, Utah v. United States
503 F.3d 1163 (Tenth Circuit, 2007)
In the Matter Of: United States of America
398 F.3d 615 (Seventh Circuit, 2005)
In Re Special Grand Jury 89-2
143 F.3d 565 (Tenth Circuit, 1998)
Grand Jury 89-2 v.
Tenth Circuit, 1998
Callahan v. A.E v. Inc.
947 F. Supp. 175 (W.D. Pennsylvania, 1996)
In re Catfish Antitrust Litigation
164 F.R.D. 191 (N.D. Mississippi, 1995)
In re Wirebound Boxes Antitrust Litigation
126 F.R.D. 554 (D. Minnesota, 1989)
State v. Arace Bros.
552 A.2d 628 (New Jersey Superior Court App Division, 1989)
In Re Grand Jury Testimony. Appeal of John Doe
832 F.2d 60 (Fifth Circuit, 1987)
Temple University v. Salla Bros., Inc.
656 F. Supp. 97 (E.D. Pennsylvania, 1986)
In Re 1985 Grand Jury Proceedings
785 F.2d 593 (Eighth Circuit, 1986)
In re Final Grand Jury Report Concerning the Torrington Police Department
501 A.2d 377 (Supreme Court of Connecticut, 1985)
United States v. Fischbach & Moore, Inc.
776 F.2d 839 (Ninth Circuit, 1985)
United States v. Fischbach And Moore, Inc.
776 F.2d 839 (Ninth Circuit, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
552 F.2d 768, 23 Fed. R. Serv. 2d 834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/illinois-v-sarbaugh-ca7-1977.