Application for stay of District Court's order that the files
and records of the federal grand jury that indicated applicants be
turned over to a state prosecutor contemplating state prosecution
of applicants, is granted pending appeal. There are substantial
questions whether (1) the state prosecutor's claimed need for such
materials meets the "compelling necessity" standard for disclosure
set forth in Fed.Rule Crim.Proc. 6(e), since,
inter alia,
it is likely that applicants cannot be prosecuted at all under
California's double jeopardy provision, (2) the turnover order
would nullify the immunity granted to certain federal grand jury
witnesses, (3) such order should include illegally seized evidence,
and (4) double jeopardy might preclude state prosecution.
MR. JUSTICE DOUGLAS, Circuit Justice.
Substantial questions may be raised under both the Federal Rules
of Criminal Procedure and the Constitution whenever an order is
made requiring that the files and records of a federal grand jury
be turned over to a state prosecutor. Such an order was entered in
this case by the District Court. The Court of Appeals for the Ninth
Circuit denied a motion to stay the order pending appeal; however,
a motions panel of that court granted an emergency stay so that the
matter might be presented to me. I have now heard oral argument in
Yakima, Wash., and I have concluded that I should issue the
stay.
In 1973 and 1974, a federal grand jury in the Southern District
of California conducted a lengthy investigation into the affairs of
United States National Bank. This investigation resulted in
multicount indictments against both applicants. On June 12, 1975,
the federal case was
Page 423 U. S. 1304
concluded when applicants entered pleas of
nolo
contendere and were sentenced. On August 7, the District
Attorney for San Diego County filed a motion in Federal District
Court seeking the files and records of the grand jury. That motion,
which was opposed by the applicants, has led to the present
proceeding.
In a long line of cases, the Supreme Court has reaffirmed the
"long-established policy that maintains the secrecy of the grand
jury proceedings in the federal courts,"
United States v.
Procter & Gamble Co., 356 U. S. 677,
356 U. S. 681
(1958).
See, e.g., Dennis v. United States, 384 U.
S. 855 (1966);
Pittsburgh Plate Glass Co. v. United
States, 360 U. S. 395
(1959). Although the Court has affirmed the power of district
courts under Fed.Rule Crim.Proc. 6(e) to order disclosure of
evidence presented to grand juries, that Rule has been interpreted
to require a showing of "particularized need" or "compelling
necessity."
See, e.g., Pittsburgh Plate Glass Co., supra
at
360 U. S. 400.
It is a substantial question whether the need cited by the state
prosecutor in this case is great enough to justify breach of the
grand jury's deliberations. The state prosecutor contends, first,
that the grand jury materials will save the State substantial
investigatory and prosecutorial resources and, second, that the
materials will be generally useful in refreshing the memories of
witnesses who appeared before the grand jury. However, it is
doubtful whether either of these reasons -- which will always be
present whenever a State conducts an investigation following a
similar one by a federal grand jury -- meets the "compelling
necessity" standard of Rule 6(e).
The prosecutor also points out that the California statute of
limitations, which is three years for most felonies,
see
Cal.Penal Code § 800 (1970 and Supp. 1975), will bar prosecution of
applicants sometime in 1976. The collapse
Page 423 U. S. 1305
of United States National Bank, and presumably the termination
of any crimes that applicants may have committed, occurred on
October 18, 1973. The prosecutor thus, argues that the imminent
running of the statute of limitations justifies the turnover order.
The collapse of the bank, however, and the initiation of the
federal investigation were well publicized. Yet the prosecutor
chose to do nothing. Surely a state prosecutor may not demonstrate
"compelling necessity" by a state of affairs that his own tardiness
has brought about.
Finally, there is a serious question whether applicants can be
prosecuted at all under California law. California Penal Code § 656
(1970) forbids prosecution for "act[s] or omission[s]" for which
the accused has already stood trial under the laws of "another
State, Government, or country."
See also Cal.Penal Code §§
793, 794 (1970). The California Supreme Court has held that a
previous federal prosecution acts as a bar, under § 656, to
subsequent state prosecution.
People v. Belcher, 11 Gal.3d
91, 520 P.2d 385 (1974). It seems likely that a plea of
nolo
contendere would be considered the same for § 656 purposes as
a plea of guilty.
See, e.g., North Carolina v. Alford,
400 U. S. 25,
400 U. S. 35,
and n. 8 (1970). Moreover, the state prosecutor, in his declaration
to the District Court, virtually conceded that the California
crimes that applicants may have committed are state equivalents to
the federal crimes charged in the federal indictment. It is a
serious question whether prosecution would thus be based upon the
same "act or omission" as the crimes upon which applicants pleaded
nolo contendere, and would thereby be barred under § 656.
A substantial question arises whether the requisite showing of need
under Rule 6(e) is satisfied when a state prosecution cannot, under
state law, result in conviction.
If the moving parties had been witnesses before the
Page 423 U. S. 1306
federal grand jury, serious questions involving the
Self-Incrimination Clause of the Fifth Amendment would be involved.
No such issue is presented here as to applicants, because they did
not testify before the grand jury. Other persons, however, who
testified before the grand jury, were granted immunity. Immunity
once granted in a federal proceeding may not be nullified by a
turnover order obtained by a state prosecutor.
Murphy v.
Waterfront Comm'n, 378 U. S. 52
(1964).
The District Court, moreover, might have granted motions to
suppress evidence that had been obtained by the grand jury, and if
that occurred, it is difficult to see how motions that were won
before the District Court can be lost at the instance of the state
prosecutor. This Court has held that a witness before a grand jury
may not refuse to answer questions on the ground that they are
based upon evidence obtained in violation of the Fourth Amendment.
United States v. Calandra, 414 U.
S. 338 (1974). However, from the fact that a grand jury
may use illegally seized evidence, it does not follow that the
evidence may in turn be given to a state prosecutor.
Calandra was based upon the marginal deterrent value that
application of the exclusionary rule to grand jury proceedings
would have upon illegal police activity.
Id. at
414 U. S. 351.
In addition, the Court found that application of the exclusionary
rule would hinder and disrupt grand jury proceedings.
Id.
at
414 U. S. 349.
Neither of those reasons has much force in this case. First, there
are no grand jury proceedings to disrupt. Second, a turnover of
illegally seized evidence may undermine the deterrent effect of the
exclusionary rule to a greater extent than contemplated in
Calandra. Finally,
Calandra cannot be read as
approving illegal seizures of evidence. The only question before
the Court was whether a potentially disruptive challenge to the
seizure of evidence
Page 423 U. S. 1307
would lie during grand jury proceedings. After a trial court has
ruled that evidence was, in fact, the product of unconstitutional
police activity, there is no excuse for the continued use of the
evidence. There apparently is such a question of illegally seized
evidence in this case, although the record before me does not show
precisely what the evidence suppressed was and how relevant it
might be to the state as well as to the federal charges. It would
seem to be a substantial question whether a turnover order should
include such evidence.
*
Double jeopardy might also preclude state prosecution. That kind
of objection may, in time, be resolved upon an appropriate motion
before state tribunals. I mention the matter because the Double
Jeopardy Clause of the Fifth Amendment was held applicable to the
States in
Benton v. Maryland, 395 U.
S. 784 (1969).
Benton may cast doubt upon the
continuing vitality of
Bartkus v. Illinois, 359 U.
S. 121 (1959), which found that successive state and
federal prosecutions upon substantially similar charges do not
violate the Double Jeopardy Clause.
See also Abbate v. United
States, 359 U. S. 187
(1959).
It was suggested at oral argument that applicants' lawless
actions can be curbed only by denying them legal refuge. Yet all
constitutional guarantees extend both to rich and poor alike, to
those with notorious reputations, as well as to those who are
models of upright citizenship. No regime under the rule of law
Page 423 U. S. 1308
could comport with constitutional standards that drew such
distinctions.
I do not, of course, pass on the merits of the turnover order,
which is presently before the Court of Appeals. Yet these questions
seem to me to be so substantial that I have decided to issue the
stay. It will remain in effect until the Court of Appeals decides
the merits.
* It was suggested that applicants should seek relief from any
oppressive aspects of the turnover order by appropriate motions in
the state courts. It seems apparent, however, that even a cursory
examination of the federal grand jury materials would likely give
the state prosecutor "leads" to information that would result in a
permanent loss to applicants of the value of the secrecy of the
grand jury proceedings.