In Re Grand Jury Proceedings. Appeal of Robert A. Wright, Judge of the Court of Common Pleas of Delaware County, Pennsylvania, 32nd Judicial District

625 F.2d 1106, 1980 U.S. App. LEXIS 15924

• Court: Court of Appeals for the Third Circuit
• Decided: July 8, 1980
• Docket: 79-2805
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM.

Robert A. Wright, a state trial judge, appeals from an order of a federal district judge establishing procedures for disclosure of federal grand jury materials to George Neagle, a defendant in a state criminal trial before the appellant.

I.

During 1979, a federal grand jury in the Eastern District of Pennsylvania was investigating Leonard R. Milano for various criminal activities. After the grand jury investigation had begun, Milano was shot and wounded along with Thomas Manley. Manley died as a result of the wounds, but Milano survived.

Thereafter, George Neagle was charged by the Commonwealth of Pennsylvania with several offenses arising out of the shooting incident involving Milano and Manley. His case was scheduled on the appellant’s docket. Because it appeared that Milano would be a witness at Neagle’s state trial, Neagle made a motion in federal district court for disclosure of certain information the grand jury had on Milano. The motion was served on the state prosecutor and the United States Attorney. It was not served on appellant.

The district court entered an order directing the United States Attorney to compile all grand jury material pertinent to Nea-gle’s request. The United States Attorney was then directed to transport the information to the appellant’s chambers and to consult with him about what evidence would constitute Brady material. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The United States Attorney was to get a recommendation from the appellant as to disclosure and then communicate that recommendation to the district court. At that time, the district court would determine whether Fed.R.Crim.P. 6(e) permitted disclosure. The district court reasoned that this procedure was necessary because it was unfamiliar with the facts surrounding the state proceeding.

Although the appellant was not a party in the district court, he has taken this appeal to challenge the procedure employed by the district court. The appellees are the United States Attorney and Neagle. The state prosecutor is not an appellee.

II.

At the outset, although the parties have not considered the issue, we must determine whether the appellant has standing to appeal the procedures set out in the order. To decide this question, an understanding of exactly what the district court’s order contemplated vis-a-vis the appellant is necessary.

The crucial portions of the order provide:

2. After the United States Attorney has reviewed the evidence . . . , he shall transport all of the evidence pertaining to the requests ... to the chambers of [the appellant], and shall meet with the State Judge at the State Judge’s earliest convenience.

3. The United States Attorney shall consult with the State Judge about the contents of the evidence and shall communicate his views to the State Judge as to what evidence may constitute Brady material, so that the State Judge may make a fully informed determination of what material ought to be produced under Brady, given the facts and circumstances of the case before him.

4. . Although this Court has no knowledge of the proceedings in state court, it will be available at any time to consult directly with the State Judge if the State Judge deems it helpful.

5. Pursuant to [Fed.R.Crim.P.] 6(e)(3)(C), the Court, with the utmost deference, is constrained to Order the State Judge not to divulge to any person the contents of any evidence shown to him unless and until this Court so authorizes, nor to docket this Order in the Court of Common Pleas unless [Neagle’s] application to this Court is already a matter of record in that proceeding.

In another context, the United States Attorney and Neagle argue that the order is not binding on the appellant until he decides to participate in the procedure specified in the order. In effect, this reading of the order, which the appellant conceded at oral argument was a reasonable one, means that unless the appellant actually reviews the material and confers with the United States Attorney, he is not bound by the order. We agree for several reasons.

First, by its terms the order is directed to the United States Attorney, not the appellant. Nowhere does the order expressly command the appellant to take any positive action with respect to the information. The paragraph dealing with secrecy seems to contemplate that appellant may not divulge any grand jury information only if he chooses to confer with the United States Attorney. Second, we have read the opinion of the district court that accompanied the order, and we find no hint that the appellant would be held in contempt for deciding not to examine the information or confer with the United States Attorney.

Finally, given the serious intrusion into state criminal proceedings that would result if we read the order to compel the appellant to examine the evidence and confer with the United States Attorney, we are reluctant to conclude that the district court intended to bind a state judge in such a manner without some clear, manifest indication that this was the import of the order. As the quoted language demonstrates, such is not the case here. Thus while the issue is not entirely free from doubt, we conclude that the order in question does not require the appellant to inspect the information or to confer with the United States Attorney.

Seen in this light, the form of the order resolves the standing issue.¹ Whatever else may be required, one fundamental prerequisite of standing for purposes of article III is that there be “actual or threatened injury as a result of the putatively illegal action [in question].” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). The reason the test includes “threatened injury” is that a person should not have to wait for actual injury to satisfy the dictates of article III. If there is a sufficiently imminent threat of harm, that is enough to satisfy the case or controversy requirement.

The reverse of this proposition is that if there is no real probability the alleged injury will ever occur, the concreteness that article III demands is absent. Obviously, in all such cases the probability of the injury’s occurrence is a matter of degree, which means that most cases stand on their facts and general principles are hard to derive. Here, whether the injury will ever occur depends solely on the appellant’s decision whether to confer with the United States Attorney. The order imposes an obligation on him only if he decides to confer. Moreover, there is no indication in the record one way or the other about what action the appellant intends to take in this regard. The very fact that he does not want to involve himself, as is shown by this appeal, would seem to indicate that when the time comes, he will in fact not involve himself.

Thus the appellant can easily avoid any injury by deciding not to confer. Such conduct is not barred by the order and carries no danger of contempt. We note that this is true especially because of the nature of the injury to appellant. The only possible injury of which the appellant complains is his involvement in the procedure in question. Because the appellant can avoid those procedures without any harm, there is no imminent threat of injury to any interest of the appellant.

We realize that by holding that appellant has no standing due to the form of the order, we have reached the merits of the appeal to the extent of construing the order. As we have noted before, however, resolution of standing often involves the merits in one way or the other. See Rosen v. Public Service Electric & Gas Co., 477 F.2d 90, 94 (3d Cir. 1973) (“The substantive issues must be considered to ascertain whether ‘there is a logical nexus between the status asserted and the claim sought to be adjudicated.’ ” (quoting Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968)).

Nevertheless, the question of what procedure the order in fact required and the question of whether those procedures are legally permissible are analytically distinct. Because our ruling rests solely on the fact that the order does not injure the appellant, we express no view on the propriety of the procedures employed. Moreover, this does not leave Neagle without review. If the appellant decides not to confer, we assume the district court will reconsider Neagle’s motion and enter an appropriate order.

Accordingly, we conclude that because appellant need not examine any of the information nor confer with the United States Attorney, he is in no danger of injury and thus has no standing.

III.

The appeal will be dismissed.

Each party to bear its own costs.

1 . Both Neagle and the United States Attorney consider the form of the order as having relevance to whether the district court had power to do what it did. Neither, however, discussed the relevance of the form of the order to standing, which we believe is its primary significance in this appeal.