United States v. Ariel Henry Tager

638 F.2d 167, 1980 U.S. App. LEXIS 13030
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 20, 1980
Docket79-1691
StatusPublished
Cited by30 cases

This text of 638 F.2d 167 (United States v. Ariel Henry Tager) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ariel Henry Tager, 638 F.2d 167, 1980 U.S. App. LEXIS 13030 (10th Cir. 1980).

Opinions

SETH, Chief Judge.

This appeal arises from the conviction of appellant for mail fraud. 18 U.S.C. § 1341. The government alleged a scheme involving many people, including doctors, lawyers, and automobile repairmen, who were engaged in defrauding insurance companies. Appellant, an attorney, was indicted and prior to trial he moved to dismiss the indictment and to suppress certain evidence. The motions were denied, and it is from the denial of these motions that Mr. Tager appeals.

The relevant facts are as follows. The investigation leading to the indictment herein at issue was started by a Mr. Edward House employed by the Insurance Crime Prevention Institute (ICPI). The ICPI is an organization funded by over 300 insurance companies to investigate possible frauds against insurance companies. Neither the ICPI nor Mr. House was in any official position whatever. Mr. House worked as an investigator of ICPI and developed sufficient evidence to refer this case to the United States Postal Inspection Service. Thereafter he continued to assist in the investigation at the government’s invitation.

A grand jury was convened in Kansas City, Kansas. The government moved for disclosure to Mr. House of certain grand jury materials to enable him further to assist in the investigation. The motion was made under Fed.R.Crim.P. 6(e)(3)(C)(i) (then Rule 6(e)(2)(C)(i)). The trial judge who heard the motion granted it and ordered the requested disclosure. The investigation was subsequently transferred from the Kansas City, Kansas grand jury to a grand jury in Topeka, Kansas. An indictment was returned against appellant and others in Topeka. As stated above, appellant moved to dismiss the indictment and to suppress evidence, but the motions were denied. The trial judge hearing these motions had misgivings as to whether the disclosure to Mr. House was authorized by Rule 6(e); however, he felt bound by the prior decision of the judge who originally authorized the disclosures. This second judge registered his misgivings in a thorough memorandum accompanying his order denying the motions. We have followed and rely to a large measure on his analysis.

The primary issue on appeal is whether the disclosure in these circumstances of grand jury materials to Mr. House was within the authority provided by Fed.R. Crim.P. 6(e). For the reasons that follow we conclude it was not.

The Federal Rules of Criminal Procedure prohibit generally the disclosure of “matters occurring before the grand jury.” Fed.R.Crim.P. 6(e)(2). This rule codifies the long-standing policy of secrecy provided grand jury proceedings. The compelling policy reasons supporting this strict rule have been described in many cases. See, e. g., Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156; Dennis v. United States, 302 F.2d 5 (10th Cir.); Bary v. United States, 292 F.2d 53 (10th Cir.); United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.). This rule of secrecy “must not be broken except where there is a compelling necessity,” shown with particularity. United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077.

There are several exceptions to the rule of secrecy. These are for disclosure to a government attorney, Rule 6(e)(3)(A)(i); to government personnel assisting the government attorney, Rule 6(e)(3)(A)(ii); by court [169]*169order preliminarily to or in connection with a judicial proceeding, Rule 6(e)(3)(C)(i); and to a criminal defendant under certain conditions, Rule 6(e)(3)(C)(ii). Inasmuch as Mr. House is neither a government attorney, government “personnel,” nor a criminal defendant, subsections (A)(i), (A)(ii), and (C)(ii) are not applicable. Accordingly, the government argues the authority provided the court in subsection (C)(i) (in connection with a judicial proceeding) is sufficiently broad to encompass the disclosure to Mr. House ordered here.

As an initial concern we note that Mr. House did in fact review transcripts of the proceedings before the grand jury. The government conceded this at the hearing on the motions for dismissal and suppression. The government attorney stated: “The witness [Mr. House] will testify he has reviewed grand jury transcripts in this investigation. The government concedes that.” VII Rec. at 117. The disclosure is therefore controlled by Rule 6(e), and United States v. Interstate Dress Carriers, Inc., 280 F.2d 52 (2d Cir.) (disclosure of material that does not reveal matters occurring before grand jury not controlled by Rule 6(e)), is inapposite.

Subsection (C)(i) excepts from the rule of secrecy disclosures “when so directed by a court preliminarily to or in connection with a judicial proceeding.” The government contends that the grand jury proceedings in this case are “judicial proceedings” within the meaning of Rule 6(e)(3)(C)(i). The government cites several cases in support of this proposition. See United States v. Stanford, 589 F.2d 285 (7th Cir.); In re Grand Jury Witness Subpoenas, 370 F.Supp. 1282 (S.D.Fla.); In re Minkoff, 349 F.Supp. 154 (D.R.I.). Indeed, one court has termed this proposition “well settled.” In re Braniff Airways, Inc., 390 F.Supp. 344, 346 (W.D. Tex.).

The proposition is hardly well settled. While the Minkoff court ruled that a grand jury proceeding was a “judicial proceeding” within the meaning of subsection (C)(i), it limited its power to order disclosure to discharged grand jury proceedings. The court conditioned its order granting disclosure upon the adjournment of the grand jury. The court said:

“Where termination is a condition of disclosure, it is obvious that such disclosure can neither help nor harm the completed investigation. In such circumstances I find I have the power to order disclosure, without deciding today the power of the court to order disclosure of grand jury minutes which would take effect before the dismissal of the grand jury.”

In re Minkoff, 349 F.Supp. 154, 156-57 (D.R.I.). In addition, the disclosure was to a witness of her own testimony before the grand jury and not to an investigator to assist the investigation. Thus Minkoff provides no support for the government’s position in this case. The grand jury proceedings here were in full force at the time disclosure was ordered.

Furthermore, the unanswered question in Minkoff

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Bluebook (online)
638 F.2d 167, 1980 U.S. App. LEXIS 13030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ariel-henry-tager-ca10-1980.