Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Grand Jury Proceedings

decided after remand: August 26, 1987.

IN RE GRAND JURY PROCEEDINGS (HENRY KLUGER, DECEASED)


Appeal from an order entered in the United States District Court for the Eastern District of New York, McLaughlin, J., modifying a previous order entered in the same court pursuant to Fed. R. Crim. P. 6(e). The previous order granted the Internal Revenue Service access to grand jury materials for use in a civil matter. The modifying order prohibited all further disclosure of the materials or copies thereof pending a showing of particularized need, except when the government seeks only to authenticate copies by showing in camera the original materials. The modifying order deferred the determination of particularized need to the courts in which the materials are offered. Held: appellee estate of deceased had standing to contest the validity of the original Rule 6(e) order; the portion of the modifying order that conditions continued use of the grand jury materials on a showing of particularized need is appealable under 28 U.S.C. § 1291 and is affirmed; and the portion of the modifying order that deferred the particularized need determination to the courts in which the materials are offered is not appealable.

Author: Meskill

Before: VAN GRAAFEILAND, MESKILL and NEWMAN, Circuit Judges.

MESKILL, Circuit Judge

The government appeals from an order entered in the United States District Court for the Eastern District of New York, McLaughlin, J., modifying a previous order entered in the same court by Judge Bramwell under Fed. R. Crim. P. 6(e). Judge Bramwell's order granted to the Internal Revenue Service (IRS) access to grand jury materials for use in a civil tax matter against appellee, the estate of Henry Kluger, and Kluger's widow, Debra Kluger. Judge McLaughlin's modifying order*fn1 prohibited further disclosure of the grand jury materials and/or copies thereof pending a showing by the government of particularized need for the materials. Judge McLaughlin deferred the particularized need determination to the United States Tax Court and/or the United States District Court for the Southern District of Florida, the courts in which the government will seek to introduce the materials. Judge McLaughlin did not require a particularized need showing when the government seeks to authenticate copies of the materials by showing in camera the originals to the trial judge before whom the copies are offered.

BACKGROUND

In 1981 a federal grand jury sitting in the Eastern District of New York conducted a tax and narcotics investigation into the affairs of Henry Kluger. Kluger died in Florida in 1982. On March 29, 1983, Judge Bramwell issued the Rule 6(e) order "for the purposes of determining, establishing, assessing and collecting the Federal civil tax liability of Henry Kluger and his heirs, and for use in any judicial proceeding related thereto."

Approximately three months later the Supreme Court decided United States v. Sells Engineering, Inc., 463 U.S. 418, 77 L. Ed. 2d 743, 103 S. Ct. 3133 (1983), and United States v. Baggot, 463 U.S. 476, 77 L. Ed. 2d 785, 103 S. Ct. 3164 (1983). Under Sells and Baggot, the government is required to make a showing of particularized need before gaining access under Fed. R. Crim. P. 6(e) to grand jury materials. See Sells, 463 U.S. at 420. It is undisputed that Judge Bramwell did not require such a showing before granting the government's application for disclosure under the Rule.

Armed with the grand jury materials, the IRS determined deficiencies in Kluger's income taxes for the years 1976 through 1981. Kluger's widow and his estate currently are contesting the 1979 deficiencies in the tax court. The estate is contesting the government's collection suit, brought in the Southern District of Florida, for the taxes due for the remaining years.

In March 1986 the estate moved the United States District Court for the Eastern District of New York for an order vacating Judge Bramwell's order on the basis that Sells and Baggot should be applied retroactively to invalidate that order. Judge McLaughlin ruled that although principles of retroactivity did not require Sells and Baggot to be applied to Judge Bramwell's order, the "better approach" was to condition further disclosure of the grand jury materials on a showing of particularized need,*fn2 and ordered that the showing be made in the courts in which the materials are offered. The government appeals.

Discussion

The government contends that the estate lacked standing to contest the validity of Judge Bramwell's order and that Judge McLaughlin erred both in conditioning further disclosure of the materials on a showing of particularized need and in deferring that determination to the courts in which the materials are offered. The estate counters that, as a threshold matter, we lack jurisdiction to review Judge McLaughlin's order.

A. Appellate Jurisdiction

The estate argues that we may not review Judge McLaughlin's order, claiming that is it not final and thus not appealable under 28 U.S.C. § 1291 (1982). For purposes of our analysis, we bifurcate the order into (1) the portion requiring a showing of particularized need before further disclosure may be made of the materials, and (2) the portion deferring the particularized need determination to the tax court and/or the Southern District of Florida, where the tax litigation is pending.

The first portion of the order expressly contemplates further proceedings on the question of continued use in the tax court and/or the Florida district court. As a result, it does not fall squarely within the classic definition of a final order articulated long ago by the Supreme Court in Catlin v. United States, 324 U.S. 229, 89 L. Ed. 911, 65 S. Ct. 631 (1945), because it does not "end [] the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.