concurring: We are here invited to exclude evidence acquired pursuant to a court order issued under standards subsequently determined by the Supreme Court to be improper. The majority declines this invitation on two independent grounds, one of the alternative holdings clearly stating that the exclusionary rule may not be invoked on the facts before us. (Part III of the majority opinion.) I concur solely on the basis of this alternative holding.
The exclusionary rule is principally, if not solely, designed to deter improper behavior by investigative personnel. Nix v. Williams, 467 U.S._(1984); United States v. Janis, 428 U.S. 433, 446 (1976). See also Stone v. Powell, 428 U.S. 465, 486 (1976); United States v. Calandra, 414 U.S. 338, 347-348 (1974); and Tirado v. Commissioner, 689 F.2d 307, 309, 310 (2d Cir. 1982). The Supreme Court recently stated that, "it is clear that the cases implementing the exclusionary rule 'begin with the premise that the challenged evidence is in some sense the product of illegal government activity.’ ” Nix v. Williams, supra. See also United States v. Crews, 445 U.S. 463, 471 (1980). No illegal conduct occurred in this case, and there is no improper behavior of investigative personnel to deter. The lawyers in this case religiously followed the prescribed procedures. The court that created and supervised the grand jury provided the material in good faith pursuant to the only procedure available — the one established by Congress. It is impossible to ask more of any Government official — whether it be a U.S. attorney or a District Court judge — and second guessing the District Court judge on Monday morning can never change the outcome of the previous Saturday. The exclusionary rule and the policies on which it rests have nothing to do with these circumstances. United States v. Leon, 468 U.S._(1984). The majority has plainly said so and it should say no more.
Unfortunately, it says a good deal more. Since it clearly and quite properly holds the exclusionary rule may not be invoked on the facts before us, it makes no difference whether the Supreme Court’s rulings in United States v. Baggot, 463 U.S. 476 (1983), and United States v. Sells Engineering, Inc., 463 U.S. 418 (1983), would be applied retroactively or not, for in either case, the evidence would be admissible on the facts before us. The majority itself states that "recent developments in exclusionary rule law make it clear that, at least under the facts of this case, it would be inappropriate to apply the rule even if we were to assume that the grand jury materials were obtained by respondent illegally.”1
Accordingly, I am completely at a loss to explain why 90 percent of the majority opinion is devoted to a superfluous discussion of our jurisdiction to decide the admissibility of evidence (part 1(A) of the majority opinion); the doctrine of comity and the circumstances under which the doctrine requires us to respect the rulings of other courts (part 1(B) of the majority opinion); the decisional background of most of the important rule 6(e) cases (part 11(A) of the majority opinion); and the rules of retroactivity (part 11(B) of the majority opinion).
The extended discussion of retroactivity is based on a fundamental misunderstanding of the exclusionary rule which, as the majority notes, is "the underlying ground advanced by petitioner in support of her suppression motion.” That misunderstanding is plainly revealed in the majority’s observation that "a finding that the subsequently announced rules [the Baggot and Sells cases] are not to be applied retroactively effectively creates a legal fiction that the evidence in question was not illegally obtained.” (Emphasis added.) Here the majority uses the word "illegally” to suggest that, measured against subsequent enlightenment, the wrong standard was utilized by the District Court in issuing the rule 6(e) order. But this in no way suggests that even assuming Baggot and Sells should be applied retroactively, that the evidence herein was "illegally obtained” (i.e., tainted) for purposes of the exclusionary rule. As is often the case, we simply have two distinct and entirely different uses of the word "illegally,” and the majority confuses the two. Indeed, the Supreme Court has clearly stated (and the majority agrees) that evidence obtained in good-faith reliance on proper procedure is not tainted for purposes of the exclusionary rule. United States v. Leon, supra.2
These various digressions, along with statements made in a concurring opinion, require two brief comments. The first concerns the discussion of comity which implies that in a different posture we might feel compelled to undertake a de novo review of a District Court’s rule 6(e) order. I reject this philosophy for the reasons I expressed in a concurring opinion in Graham v. Commissioner, 82 T.C. 299, 311-312 (1984):
The grand jury is peculiarly a creature of the District Court that created it, and hoth hy history and Federal rule, it is closely supervised by that court. The Federal Rules of Criminal Procedure, pursuant to Rule 6(e), specifically allocate responsibility for determining the propriety of using grand jury material for civil purposes to the District Court. Where the District Court supervising a particular grand jury has issued an order permitting the civil use of grand jury materials, that should end the matter for the Tax Court. Our jurisdiction is carefully circumscribed by statute and includes only civil matters; we certainly have no experience with, or responsibility for, grand juries. It is therefore wholly inappropriate for the Tax Court to reexamine the propriety of a District Court order under Rule 6(e), even if that order appears to be inappropriate to us. Since there was a Rule 6(e) order issued in the instant case, that ends the matter for me.
This seems to be the only course of action that recognizes the diverse responsibilities of the Tax Court and U.S. District Courts, particularly the U.S. District Court that has responsibility for a specific grand jury. For these reasons and also to avoid duplicative proceedings, it is imperative that the Tax Court honor a Rule 6(e) order issued by a District Court having specific responsibility for a specific grand jury, even though we may have misgivings about the wisdom of that order.
The second point is to emphasize that the majority properly considered the exclusionary rule as a central issue in this case, although it should have considered it the central issue in the case. Our failure to apply the rule here does not suggest a similar decision on more compelling facts. Despite the implication in one of the concurring opinions, the exclusionary rule is not solely a Fourth Amendment rule, nor has any Court to my knowledge ever drawn an acquisition-versus-use dichotomy in applying the exclusionary rule. Indeed, application of the exclusionary rule is not limited to constitutional violations, but is also appropriate where evidence is obtained in violation of Federal statutes or Federal rules of procedure. United States v. Blue, 384 U.S. 251, 255 (1966); Mallory v. United States, 354 U.S. 449 (1957); Upshaw v. United States, 335 U.S. 410 (1948); McNabb v. United States, 318 U.S. 332 (1943); Nardone v. United States, 308 U.S. 338 (1939); United States v. Genser, 582 F.2d 292 (3d Cir. 1978).
Furthermore, it is clear that courts, commentators, and even governmental agencies consider suppression to be an appropriate remedy where grand jury material is improperly disclosed and used for civil purposes in violation of rule 6(e). See In re Grand Jury Investigation No. 78-184, 642 F.2d 1184 (9th Cir. 1981); Matter of Fred R. Witte Center Glass No. 3 v. United States, 544 F.2d 1026, 1029 (9th Cir. 1976); In re Special March 1974 Grand Jury, etc., 541 F.2d 166, 170 (7th Cir. 1976); Coson v. United States, 533 F.2d 1119, 1120 (9th Cir. 1976); Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings on H.R. 5864 Before the House Subcomm. on Criminal Justice, Comm, on the Judiciary, 95th Cong., 1st Sess. 87, 55-56 (1977) (statement of Roger Robb, U.S. Court of Appeals for the District of Columbia Circuit, and statement of Acting Deputy Attorney General Richard L. Thornburgh); Note, "Administrative Agency Access to Grand Jury Materials,” 75 Colum. L. Rev. 162, 188 (1975). See United States v. Baggot, 463 U.S. at_(dissenting opinion of Chief Justice Burger, citing inter alia, Cohen v. Commissioner, a Memorandum Sur Order of this Court, unofficially reported at 42 T.C.M. 312, 50 P-H Memo T.C. par. 81,901 (1981), wherein the exclusionary rule was applied to bar grand jury evidence acquired without a valid rule 6(e) order). See Goldfein & Pisem, "Tax Court Expands Exclusionary Rule to IRS Violations of Grand Jury Secrecy,” 55 J. Tax. 312 (1981).
In conclusion, the only issue in this case is the applicability of the exclusionary rule to the facts before us. In the last few pages of a long opinion, the majority clearly and persuasively answers no to that question. I concur in that answer, but continue to believe, for the reasons stated in Cohen v. Commissioner, supra, that exclusion is the proper remedy when evidence is acquired by means abusive of the rule 6(e) procedure established by Congress.
Fay, Goffe, Shields, and Clapp, JJ, agree with this concurring opinion.Discussing United States v. Leon, 468 U.S._(1984), the majority states that "The Supreme Court's articulation of the 'good faith' exception to the rule makes it clear that application of the rule in this case would be inappropriate, whether or not the Rule 6(e) order herein was improvidently granted(Emphasis added.)
Some reason for excluding relevant evidence must be offered, and the argument here made, the majority tells us, is that the release of the material contrary to the criteria in Baggot and Sells "constituted an abuse of the grand jury process requiring the suppression of all the grand jury material in this proceeding.” Accordingly, the majority at the very beginning of its opinion states that, "we must decide whether the respondent’s use of these grand jury materials to determine the deficiency against this petitioner was improper.” Since this is the issue and the majority concludes, citing United States v. Leon, note 1 supra, that the evidence is not tainted, nothing else was at issue, and no more need be said.