F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 8 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
In re: GRAND JURY 95-1 No. 96-1543
Appeal from United States District Court
for the District of Colorado
(D.C. No. 95-Y-292)
Kenneth R. Scott, Assistant United States Attorney (Henry L. Solano, United States
Attorney, William Lucero, Chief Appellate Division, and Linda Kato, Special Assistant
United States Attorney, with him on the brief), Denver, Colorado, for the appellant.
Lee D. Foreman, of Haddon, Morgan & Foreman, P.C., Denver, Colorado, for the
appellee.
Before BRISCOE, LOGAN, and LUCERO, Circuit Judges.
BRISCOE, Circuit Judge.
A grand jury was convened to investigate possible criminal violations in
connection with mining operations conducted by Company X and its subsidiaries in
southwestern Colorado. While the grand jury proceedings were ongoing, the government
filed a civil action against John Doe, a former officer of Company X, under the
Comprehensive Environmental Response, Compensation and Liability Act. Doe filed a
motion in the civil action seeking disqualification of the district judge because the same
judge was presiding in the grand jury investigation and was allegedly privy to disparaging
evidence concerning Doe. Doe simultaneously filed a motion in the grand jury
proceedings for disclosure of materials. The district court granted the motion for
disclosure and the United States appeals. We issued a stay of the district court's order of
disclosure pending appeal on March 14, 1997, pursuant to a motion by the United States.
We reverse the district court's order granting the motion for disclosure of grand jury
materials.
I.
Company X and its subsidiaries operated a gold and silver mine in southwestern
Colorado from 1984 to December 1992. In December 1992, Company X and its
subsidiaries filed for bankruptcy and abandoned operations at the mine. According to the
government, the abandoned mine is now a Superfund site managed by the United States
Bureau of Reclamation and the Environmental Protection Agency.
In 1995, a federal grand jury in Colorado began investigating possible criminal
violations of federal environmental laws arising out of Company X's operation of the
mine. To date, the investigation has resulted in indictments against Company Y, a
subsidiary of Company X, and two senior managers of Company Y. Company Y has pled
guilty to forty felony crimes, including conspiracy, violations of the Clean Water Act, and
false statements, and has been fined $20 million. The investigation remains ongoing and
-2-
is focusing on former officers and employees of Company X and Company Y, including
Doe. No criminal charges have been brought against Doe to date.
As part of the grand jury investigation, on September 27, 1995, the United States
filed a sealed Ex Parte In Camera Motion for Judicial Approval to Issue Subpoena,
seeking permission to issue a grand jury subpoena duces tecum to a Denver law firm that
had served as outside counsel for Company Y during the time it was involved in the
mining operations. In support of the motion, the United States argued the documents and
information sought were not protected by any attorney-client privilege or work-product
immunity because (1) many of the documents were business records, technical data, and
communications with non-client third parties and were never subject to any privilege; (2)
any privilege or immunity concerning otherwise confidential documents had been waived
or otherwise extinguished by various conduct and statements; and (3) any other privilege
or immunity had been overcome by the crime-fraud exception. To support its argument
that the crime-fraud exception was applicable, the United States filed a sealed grand jury
submission that included detailed statements of relevant portions of the grand jury
investigation, including discussions of grand jury testimony and exhibits. Various grand
jury materials, including transcripts, were attached to the submission.
On January 9, 1996, the United States filed a related motion asking the district
court to hold in abeyance any determination concerning the alleged crime-fraud
exception, and the court granted the motion on January 11. Although hearings were
-3-
subsequently held on the remaining portions of the United States' motion for judicial
approval to issue subpoena, no ruling has yet been issued on that portion of the motion
concerning the crime-fraud exception.
The United States, acting through the Justice Department's Environment and
Natural Resources Division, filed a civil action against Doe on May 23, 1996, seeking to
recover environmental clean-up costs associated with the mine. The action was randomly
assigned by the clerk's office to Judge Edward Nottingham, the same judge who had
previously been assigned to oversee the grand jury investigation. Doe filed his motion to
disqualify Judge Nottingham on October 11, 1996, claiming disqualification was
necessary under 28 U.S.C. § 455(a) and (b)(1) because the judge had (1) presided over ex
parte applications by the government for prejudgment garnishment of Doe's property in
the civil action, (2) supervised the grand jury that was investigating matters related to the
mining operations and received ex parte submissions pertaining to the government's
attempt to obtain files from the law firm that represented Company Y, (3) failed to insure
that government counsel complied with notice requirements in actions commenced under
the Federal Debt Collection Procedure Act, and (4) ignored local rules in assuming
control over the civil action.
Doe also filed a motion in the grand jury proceedings on October 11, 1996,
seeking "full access to all grand jury materials that relate in any way to grand jury
investigations concerning the . . . [m]ine." Append. III at 1219. In support of his motion,
-4-
Doe asserted the United States had submitted various grand jury materials to the district
court (in particular, its ex parte motion for approval to issue subpoena) and that,
"[b]ecause both the Court and the [United States] in [the civil action] have had access to
grand jury materials, it is appropriate that [he] also have such access." Id. at 1221. Doe
further argued he would "be required to engage in discovery and disclosure in [the civil
action] which [would] require access to all materials in the possession of the United
States, including all grand jury materials." Id. at 1222. Notably, Doe's motion said
nothing about the motion to disqualify Judge Nottingham and did not urge that access to
the grand jury materials was necessary to fully address the motion to disqualify.
A hearing was held on October 29, 1996, on Doe's motion for access to grand jury
materials. At the outset of the hearing and prior to Doe's counsel speaking on the record,
Judge Nottingham stated: "I take the motion to be a motion that I need these materials,
because there has been disparaging information and I need the disparaging information to
support a motion to disqualify in the civil case." Id. at 1273-74. When Doe's counsel
finally spoke, he stated, "I think as you've stated the proposition, that a big part of our
request for access to the Grand Jury materials does in fact bear upon the pending motion
[to disqualify]." Id. at 1276. However, Doe's counsel later stated: "I can't tell you that if
you revealed the [grand jury] material to us in connection with the civil case, whether or
not at this point that would support or go against the motion to disqualify. Depending
upon the quality and tone of the material that you received, it either might support it or
-5-
might not support it. I can't honestly tell you that I know the answer to that question." Id.
at 1281.
Prior to ruling on Doe's motion for access, Judge Nottingham made the following
statements concerning his review of the grand jury materials submitted ex parte to him by
the government:
And as I sit here today, I have, very frankly I have difficulty remembering
disparaging things that I've heard about Mr. [Doe] except in the civil case. I think
that's where I picked up whatever disparaging material I think I remember about
Mr. [Doe]. And when I say disparaging, I'm using that in the sense that it tends to
put him in a bad light. I think the material in the civil case tended to put him in a
bad light, as I recall. That is hardly surprising because that's the nature of
advocacy.
Id. at 1301. Ultimately, Judge Nottingham granted Doe's motion for access, stating:
The motion for access to Grand Jury materials and Grand Jury file is
granted in part. And in making that determination, I'm guided by the Douglas Oil
criteria. Douglas Oil says, first of all, that Grand Jury materials may be disclosed
if it is necessary to avoid injustice in another judicial proceeding.
I do not see how any party in the civil proceeding involving the United
States versus [John Doe] can litigate the motion to disqualify unless and until they
know what the Grand Jury judge has seen and what has been furnished and what
has gone on before the Grand Jury judge.
Douglas Oil also says that the Court should consider the need for disclosure
versus the need for secrecy. What I have already said addresses the question of
whether there is a need for disclosure. I don't see how either side of the civil
proceeding can intelligently litigate the motion to disqualify when the only people
who know whether there has been "disparaging" information are the attorneys for
the government in the Grand Jury case and the Court.
And, you know, what is disparaging is in the eye of the beholder, and
ultimately it will be a question in the civil case of whether the material furnished to
the Court requires disqualification. But both sides in the civil case are entitled to
have the material and to make their case that either the material is disparaging or it
is not disparaging.
***
-6-
But my point is nobody in the civil case can litigate the civil case with
literally one hand tied behind their backs, and it's both sides, it's not just the
defendant in the civil case that has that problem, it's the United States Attorneys
who have that problem, [notwithstanding] the suggestion that there's been cross-
fertilization here, as to which suggestion I make no finding.
So the order of the Court will be that the government will furnish any
materials that have been furnished to the Grand Jury judge, and also the Court will
order the clerk and the court reporter to make available transcripts of any
proceedings involving the issue of the [law firm] subpoena.
Id. at 1307-09.
In response, government counsel asked Judge Nottingham to modify the order and
allow the government to withdraw its crime-fraud submission (and thereby prevent Doe
from gaining access to it). The judge initially indicated he had not received the crime-
fraud submission, but upon further questioning by government counsel, he remembered
receiving "a box of documents that accompanied [the government's motion] and that sat
in [his] chambers for a period of time." Id. at 1314. Judge Nottingham further stated: "I
looked at those documents. I can't remember what's in them, but I do remember looking
at those documents." Id. Ultimately, the judge stated:
I can't tell you what's in those documents. I can't tell you that there's
anything--that Mr. [Doe's] name is even mentioned in a single one of those
documents, and I can't tell you I read them. I can tell you I looked through them in
the way that one would look through something trying to get a flavor for what
issue is being presented, and what the issues are likely to be.
So I will not limit the scope of my order. I think those materials have to be
produced because they're things that I looked at and they are subject to the same
showing of particularized need and the same findings that I made earlier with
respect to the other materials.
Id. at 1316. Pursuant to the government's request, Judge Nottingham agreed to limit
-7-
disclosure of the materials to counsel of record in the civil action.
II.
We have jurisdiction to hear the government's appeal because the district court's
order of disclosure constitutes a final decision under 28 U.S.C. § 1291. State of
Wisconsin v. Schaffer, 565 F.2d 961, 965 n.1 (7th Cir. 1977) (order denying petition,
based on Fed. R. Crim. P. 6(e), which resolves all issues in case, is appealable as final
decision of district court); see United States v. Miramontez, 995 F.2d 56, 59 n.4 (5th Cir.
1993) ("Orders granting or denying disclosure of grand jury materials for use in civil
actions are appealable."); 15B Wright, Miller & Cooper, Federal Practice & Procedure §
3914.24, p. 181 (1992) (same).
The district court's order of disclosure was predicated on Fed. R. Crim. P.
6(e)(3)(C)(i), which provides that grand jury materials may be disclosed "when so
directed by a court preliminarily to or in connection with a judicial proceeding." In
reviewing an order of disclosure, we apply an abuse of discretion standard. Pittsburgh
Plate Glass Co. v. United States, 360 U.S. 395, 397 (1959); In re Lynde, 922 F.2d 1448,
1451 (10th Cir. 1991).
The prerequisites for disclosure of grand jury materials are demanding. See
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979) (outlining standard
for determining whether grand jury secrecy should be breached). Specifically, a party
seeking grand jury materials must show (1) the materials are needed to avoid a possible
-8-
injustice in another judicial proceeding, (2) the need for disclosure is greater than the
need for continued secrecy, and (3) the request is structured to cover only material so
needed. Lynde, 922 F.2d at 1452; see also In re Eyecare Physicians of America, 100 F.3d
514, 518 (7th Cir. 1996). Relevance alone is not sufficient; secrecy will not be broken
absent a compelling necessity for the materials. Eyecare, 100 F.3d at 518 (citing Hernly
v. United States, 832 F.2d 980, 983-84 (7th Cir. 1987). Further, the request must amount
to more "'than a request for authorization to engage in a fishing expedition.'" Id. (quoting
Lucas v. Turner, 725 F.2d 1095, 1101 (7th Cir. 1984)).
We conclude Doe cannot satisfy either the first or the second prerequisite for
access to the grand jury materials. Therefore, we need not consider the third prerequisite,
i.e., narrow tailoring of the request.
Does Doe need the grand jury materials to avoid possible
injustice in the civil proceeding?
The district court concluded Doe needed the grand jury materials to avoid possible
injustice in the civil action. More specifically, the court concluded the materials were
necessary for Doe to effectively argue his motion for disqualification. The question here
is whether the court abused its discretion in reaching that conclusion.
Doe's alleged need for the grand jury materials is general and vague. As
previously noted, Doe's motion seeking access to the materials did not even mention the
pending motion for disqualification in the civil action as a basis for disclosure. Only at
the hearing on the motion seeking access, pursuant to prompting by Judge Nottingham,
-9-
did Doe's counsel indicate he was interested in obtaining the grand jury materials to
support the motion for disqualification. Notably, however, Doe's counsel candidly
acknowledged he did not know whether the materials would help or hurt the motion for
disqualification. This acknowledgment clearly indicates the speculative nature of Doe's
assertion that Judge Nottingham was privy to "disparaging" grand jury information and
suggests Doe was simply interested in engaging in a fishing expedition. For these reasons
alone, we believe Doe has failed to demonstrate a particularized need for the materials.
See United States v. Rising, 867 F.2d 1255, 1260 (10th Cir. 1989) (general claim that
disclosure of grand jury transcripts will possibly reveal exculpatory evidence not enough
to demonstrate particularized need).
Even assuming Doe is sincere in his desire to obtain the grand jury materials to
support his motion for disqualification, we further conclude disclosure of the materials is
unnecessary to effectively argue that motion or to receive a fair ruling on that motion.
Doe's motion for disqualification asserts that, as a result of reviewing ex parte
submissions during the course of the grand jury proceeding, Judge Nottingham has
acquired "personal knowledge" of disputed evidentiary facts in the civil action, 28 U.S.C.
§ 455(b)(1), and his continued participation in the civil action after acquiring the
"personal knowledge" gives rise to an appearance of impropriety, 28 U.S.C. § 455(a).
Neither ground presents a compelling case for disclosure of the materials actually
reviewed by Judge Nottingham.
-10-
Title 28 U.S.C. § 455 provides in pertinent part:
(a) Any justice, judge, or magistrate of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be
questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the
proceeding.
In Doe's motion for disqualification, he relies on § 455(a), and only "the personal
knowledge of disputed evidentiary facts concerning the proceeding" portion of §
455(b)(1). In support of his reliance on (b)(1), Doe specifically argues that while the
court may have learned information pertaining to the civil action "in the courthouse or
even in chambers," any knowledge obtained by the court "outside the instant case" is
"extrajudicial and personal to the Court." Append. III at 1177.
In resolving Doe's argument that Judge Nottingham has "personal knowledge of
disputed evidentiary facts" relevant to the civil action, the critical question will be
whether the judge's review of the grand jury materials, in the course of performing his
judicial duties in presiding over the grand jury proceedings, can result in "personal
knowledge of disputed evidentiary facts" as that phrase is used in § 455(b)(1). In our
view, this question can be decided as a matter of law without disclosure of the materials.
Specifically, it is the context of Judge Nottingham's receipt of the information, not what
the information actually conveys, that will determine whether the knowledge is
"personal." In addressing this same provision of § 455(b)(1), this court has previously
-11-
held the "rule applies to knowledge which the judge obtained extrajudicially, e.g., through
prior representation of a party, or by witnessing the events at issue in the proceeding," and
"does not apply to knowledge obtained in the course of related judicial proceedings."1
United States v. Page, 828 F.2d 1476, 1481 (10th Cir.), cert. denied 484 U.S. 989 (1987).
See Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-
Wisconsin, 991 F.2d 1249, 1255 (7th Cir. 1993) (concluding "'[p]ersonal' knowledge of
evidentiary facts means 'extrajudicial'"); United States v. State of Alabama, 828 F.2d
1532, 1544-46 (11th Cir. 1987) (district judge properly disqualified under § 455(b)(1)
because activities as private lawyer and state senator prior to becoming judge gave him
personal knowledge of disputed evidentiary facts of case), cert denied 487 U.S. 1210
(1988).
As for Doe's second basis for disqualification, i.e., that Judge Nottingham's
conduct has created the appearance of impropriety in violation of § 455(a), it is a closer
question whether analysis of the materials actually reviewed is necessary to decide the
issue. Section 455(a) expands the protection of § 455(b), but duplicates some of its
protection as well. Liteky v. United States, 510 U.S. 540, 552 (1994). The standard for
disqualification under § 455(a) is "'whether a reasonable person, knowing all the relevant
1
Because the record on appeal suggests no impropriety on the part of Judge
Nottingham in overseeing the grand jury proceedings, we find it unnecessary to determine
if there are any exceptions to this general rule. See, e.g., In re Edgar, 93 F.3d 256, 259
(7th Cir. 1996).
-12-
facts, would harbor doubts about the judge's impartiality.'" David v. City and County of
Denver, 101 F.3d 1344, 1350 (10th Cir. 1996) (quoting Hinman v. Rogers, 831 F.2d 937,
939 (10th Cir. 1987)). Although it can be argued the grand jury materials actually
reviewed by the judge constitute "relevant facts" under this standard, it is also possible
that Doe's argument could be rejected as a matter of law when the extrajudicial source
factor is considered here. See Liteky, 510 U.S. at 551 ("opinions held by judges as a
result of what they learned in earlier [judicial] proceedings" are "not subject to
deprecatory characterization as 'bias' or 'prejudice'" under § 455(a)). Assuming, without
deciding, that analysis of the materials is necessary to fully consider the § 455(a)
argument, we conclude this can be accomplished by an in camera review by Judge
Nottingham or a different district judge rather than through direct disclosure to Doe's
counsel in the civil action. See In re John Doe, 13 F.3d 633, 636 (2d Cir. 1994) ("where
an in camera submission is the only way to resolve an issue without compromising a
legitimate need to preserve the secrecy of the grand jury, it is an appropriate procedure").
Does Doe's need for the grand jury materials exceed
the interest in continued grand jury secrecy?
Several well-established policies underlie the secrecy accorded to matters before
the grand jury, including: preventing those persons who may be indicted from escaping;
insuring that the grand jury enjoys unfettered freedom in its deliberations; preventing
targets of the investigation from tampering with witnesses; encouraging witnesses to
testify frankly and truthfully without fear of retaliation; and shielding those who are
-13-
exonerated by the grand jury. United States v. Procter & Gamble Co., 356 U.S. 677, 681-
82 n.6 (1958).
Because Doe has failed to demonstrate a compelling need for disclosure of the
documents, we conclude the interest in continued secrecy, supported by all of the above-
listed policies, far outweighs Doe's alleged need for the materials.
The decision of the district court is REVERSED. Doe's motion to dismiss the
appeal for failure to provide a sufficient record is DENIED.
-14-