Appeal from an order of the United States District Court for the District of Connecticut, Hon. T. Emmet Clarie, Judge, authorizing the private disclosure of grand jury testimony to the Grievance Committee of the Windham County Judicial District, State of Connecticut. Reversed and remanded.
Before Mulligan, Circuit Judge, and Spears*fn* and Sweet*fn**, District Judges.
On November 19, 1979, Hon. T. Emmet Clarie, Chief Judge, United States District Court for the District of Connecticut, on the motion of the United States Attorney for the District of Connecticut and the Grievance Committee of the Bar of the State of Connecticut authorized the private disclosure of grand jury testimony to the Grievance Committee of the Windham County Judicial District, State of Connecticut ("the Committee"). The Committee had requested the order pursuant to Rule 6 of the Federal Rules of Criminal Procedure. The order of the district court is reversed and the matter is remanded.
On March 8, 1979 a federal grand jury sitting in Hartford, Connecticut returned a seven count indictment charging the appellant, Jacob S. Sobotka, an attorney admitted to practice in that state, and three other persons with multiple federal crimes including substantive mail fraud violations, and conspiracy to commit mail fraud, perjury, and subornation of perjury. Sobotka was also charged with perjury in connection with his own testimony before a federal grand jury. On June 1, 1979 Sobotka was convicted in the United States District Court for the District of Connecticut after entering a plea of nolo contendere to a criminal information charging him with the felony of obstruction of justice in violation of 18 U.S.C. § 1503. On August 1, 1979, Sobotka was sentenced by Hon. M. Joseph Blumenfeld, Senior United States District Judge for the District of Connecticut, to a two year term of imprisonment, execution of sentence suspended, and two years probation. The original indictment was then dismissed following sentencing on the superseding information.
Sobotka, who had also been a member of the Bar of the United States District Court for the District of Connecticut, resigned from that bar by letter dated October 3, 1979. He did not resign from the Bar of the State of Connecticut. On November 1, 1979 the Committee advised the United States Attorney that it was its intention to initiate the presentment of Sobotka before the Connecticut Superior Court in a disciplinary proceeding to determine whether he should be disbarred or otherwise disciplined for his conduct which resulted in his conviction. The Committee indicated that it was apparent that Sobotka would contest the disciplinary proceedings and that a formal trial would be necessary. The Committee alleged a compelling need to learn of the evidence presented to the grand jury against Sobotka and to identify the witnesses against him.
Oral argument was heard before Judge Clarie with an Assistant United States Attorney, Counsel to the Grievance Committee of the Windham County Judicial District and Sobotka appearing. The court ruled from the bench that the Committee should be permitted to review the grand jury testimony, but that the information should not be disclosed publicly and that the Committee hearing should be held in private. The district judge made no specific findings of fact or conclusions of law. Judge Clarie had not participated in the criminal proceedings against Sobotka. The district court stayed its own order, and on January 9, 1980 this court granted Sobotka's motion for a stay pending appeal.
Although not raised as an issue by the parties, there is the threshold question as to whether this is an appealable order. In a comparable situation then Chief Judge Friendly characterized a motion directing the release of grand jury minutes as "obviously appealable." In Re Biaggi, 478 F.2d 489, 491 (2d Cir. 1973). However, in Baker v. United States Steel Corp., 491 F.2d 1074 (2d Cir. 1974) a divided panel of this court held that an order directing the release to the Connecticut district court of certain federal grand jury testimony given previously in the Southern District of New York dealt with pretrial discovery and was therefore interlocutory and nonappealable. The majority distinguished Biaggi on the ground that there the question whether grand jury testimony should be released was the only matter pending before any court and unless review was granted at that point the issue could never have received appellate scrutiny. In this case, the only matter before the district court was the motion to grant the release of the grand jury minutes. While Sobotka may have appellate review on the merits if the Connecticut state court determines to take disciplinary action against him, the state courts obviously cannot determine whether the federal district court abused its discretion in releasing the minutes of the federal grand jury proceedings under Fed.R.Crim.Proc. 6(e), the issue here involved. We do not read Baker therefore as precluding appellate review here and we consider this to be a final decision appealable under 28 U.S.C. § 1291. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 231-33, 99 S. Ct. 1667, 1679-80, 60 L. Ed. 2d 156 (1979) (Rehnquist, J., concurring).
Fed.R.Crim.Proc. 6(e)(3)(C)(i) provides that disclosure of matters occurring before the grand jury, otherwise prohibited by the rule, may be made "when so directed by a court preliminarily to or in connection with a judicial proceeding." It is clear that the Committee's inquiry here is preliminary to or in connection with a judicial proceeding within Rule 6(e). This has been the law of this circuit since Doe v. Rosenberry, 255 F.2d 118, 119-20 (2d Cir. 1958), and has been followed in other circuits, see e. g., In the Matter of Disclosure of Testimony Before the Grand Jury, 580 F.2d 281, 285-86 (8th Cir. 1978); In re Special February 1971 Grand Jury v. Conlisk, 490 F.2d 894, 896-97 (7th Cir. 1973). Sobotka's argument to the contrary is clearly without merit.
However, it does not follow that disclosure of grand jury matters, simply because it is preliminary to or in connection with a judicial proceeding, is automatically authorized. The Supreme Court has consistently recognized that the proper functioning of the grand jury system depends upon the secrecy of its proceedings. See, e. g., Douglas Oil Co. v. Petrol Stops Northwest, supra, 441 U.S. at 218, 99 S. Ct. at 1672. The reasons for this tradition of secrecy are well established and often repeated, and are set forth in the margin.*fn1 Obviously the veil of secrecy is lifted by Rule 6(e), but gingerly. Moreover, even where the literal requirements of Rule 6(e) are met, the court which is requested to direct the disclosure must balance the goal of a just result in a judicial proceeding against the countervailing policy of grand jury secrecy. In re Biaggi, supra, 478 F.2d at 492. The guidance provided by the Supreme Court for those courts which must perform this delicate balancing function is necessarily couched in broad terms. Perhaps the strongest expression in favor of protecting the secrecy of grand jury proceedings appears in United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 986, 2 L. Ed. 2d 1077 (1958), where Mr. Justice Douglas held that " "the indispensable secrecy of (the) grand jury proceedings', . . . must not be broken except where there is a compelling necessity." However, the Court has subsequently indicated that "(i)t is equally clear that as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification." Douglas Oil Co. v. Petrol Stops Northwest, supra, 441 U.S. at 223, 99 S. Ct. at 1675.
One factor of significance here is that the grand jury which indicted Sobotka has completed its investigation and returned the indictment which was subsequently dismissed when Sobotka was found guilty under the superseding indictment. The Government argues that once the grand jury has completed its deliberations and handed down an indictment, "then most of the policies underlying the need for secrecy are no longer present." United States v. Moten, 582 F.2d 654, 663 (2d Cir. 1978). Most but not all. As the Supreme Court has noted, the showing of some necessity must be made even when the grand jury has concluded its investigation.
For in considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties . . . Thus, the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities.
Douglas Oil Co. v. Petrol Stops Northwest, supra, 441 U.S. at 222, 99 S. Ct. at 1674. In fact in Douglas Oil Co. the Court reversed disclosure of grand jury material, even though the grand jury had ...