In Re Richard L. Bast v. United States

WYZANSKI, Senior District Judge

(dissenting):

With the greatest respect for my brethren who have the advantage of being, as permanent members of this court, very familiar with local practice and precedent, yet with an awareness that their opinion, is in my view, flatly contrary to the considered analysis of Circuit Judge Hufstedler on behalf of the Court of Appeals for the Ninth Circuit, (see Bursey v. United States, 466 F.2d 1059, 1080) and is supported merely by such decisions as United States v. Johnson, 337 F.2d 180 (4th Cir., 1964) and In re Bottari, 453 F.2d 370 (1st Cir., 1972) [which have been emasculated by the subsequent amendments to F.R.Cr.P. 16(a)(1), as is revealed by Judge Frankel’s masterful opinion in United States v. Projansky, 44 F.R.D. 550 (S.D.N.Y., 1968) (quoted in extenso with approval in J. Moore, Rules of Criminal Procedure, par. 16.05[2] footnote 28)] and hence presents a conflict in opinion within the circuits which lays a sound basis for a petition for certiorari addressed to the Supreme Court of the United States, I dissent.

The majority opinion’s statement of the issue may require some qualification. It seems to me to be whether, absent a showing by the government that it has borne the burden of proving special overriding reasons for non-disclosure, a witness who voluntarily testified before a grand jury has a right, at his own expense, to secure a copy of an existing transcript of his own testimony.

It is not suggested in the case at bar that the government has shown or could show any extraordinary circumstances militating against disclosure. Nor is there a basis for claiming that the testimony was compelled. Nor is it indicated that furnishing plaintiff with a copy of the transcript of his testimony would involve additional expense, or that plaintiff would be unwilling to meet his fair share of any expense already incurred or hereafter to be incurred.

*898In this dissenting opinion there is considered first the equity of the matter, and then the law. As is so often the case, a detailed analysis reveals that fairness, judged by common sense, does not produce a result incompatible with the precise holdings of tribunals of great authority in the law.

Equity indicates that a plaintiff should have the right to secure a copy of the record of what he himself voluntarily told the grand jury. What he said was no secret to him. Nor is he prevented by any rule of law or any moral principle from telling anyone what he said, or from writing out his best recollection and circulating it. Hence, all that is involved in meeting plaintiff’s claim is to give him assurance of the correctness of the transcript — a point which excites the sympathy of any judge who has ever read the reporter’s record of the judge’s own charges to juries, the reporter’s account of the judge’s colloquies with counsel, and the reporter's typed version of evidence. Nor can it be regarded as other than laudable that the witness prefers to rely and to have the government, and any others who may be interested, rely on a correct transcript rather than on an unverified one, or on the witness’ unsupported recollection, or on another’s uncorroborated surmise as to what was actually said. It is not easy for an ordinary citizen to appreciate what is fair about repaying one who makes a free disclosure by imposing a restriction which precludes that very person from full awareness of what he has done to forward justice.

To meet such obvious considerations of fairness and decency, the majority relies on what it regards as some special principle applicable to grand juries, particularly as exemplified in United States v. Procter & Gamble, 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) and in (what the majority itself recognizes) the impaired reasoning of United States v. Johnson, 337 F.2d 180 (4th Cir. 1967).

Nothing standing in the way of equity appears in decision or dicta in United States v. Procter & Gamble. That case was not narrowly addressed to the precise question here in issue. There the applicant sought to reach all the minutes of a grand jury investigating the corporation. The Supreme Court, 356 U.S. at p. 684, 78 S.Ct. 983 as well as at p. 683, 78 S.Ct. 983 and in its reporter’s headnote underlined the point that it would not require “wholesale delivery” (italics in the original opinion at p. 684, 78 S.Ct. 983). Transparently, this is quite different from seeking a copy of the evidence the applicant himself gave, particularly when that evidence was given voluntarily.

Furthermore the rationale of Procter & Gamble and of United States v. Rose, 3 Cir., 215 F.2d 617, 628-629 (1954) on which Procter relied is, for the most part, plainly not relevant to the case at bar. Here, unlike in Rose, the government is not seeking “(1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crime; or (5) to protect [an] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.” [215 F.2d at pp. 628-629] Whatever dangers might be thought plausibly to exist in those five respects do not follow from a delivery to a voluntarily-testifying witness of a transcript of his own testimony; they follow, if at all, from the license of the witness to disclose to whomever he pleases his own recollection of what he told the grand jury. And such license the majority, in its third footnote and elsewhere, concedes, as it must, that the witness now enjoys.

The horse is out of the stable, and all that we are considering is whether to lock the *899barn door so that the horse may not carry its master’s correct colors.

As to the majority’s citation of United States v. Johnson, 337 F.2d 180 (4th Cir., 1964), nothing need be said in the light of the majority’s concession that it proceeds from premises manifestly no longer acceptable since the 1966 and 1975 amendments to F.R.Cr.P. 16(a)(1) which give a defendant a right to a copy of his own grand jury testimony. I would have thought that it followed a fortiori that a voluntary witness had a right to a copy of his own grand jury testimony; and I have not perceived any basis in policy or history for avoiding that, to me, persuasive proposition.

Without pausing to comment on the other cases cited by the majority, it will be sufficient to invoke the, to this judge, more persuasive opinions to the contrary by Judges Hufstedler and Frankel. Where they stand is where I do, not only out of respect but out of conviction.

Nor is there any support in the instant case for the government’s contention that we must respect the trial court’s exercise of discretion. That discretion, as the majority, citing Mr. Justice Harlan’s dissent in Procter & Gamble, 356 U.S. at p. 685, 78 S.Ct. 983 admits, is not unlimited. Here there is no room for discretion because plaintiff as a voluntarily-testifying witness before a grand jury should be recognized as having a prima facie right to a copy of the record of his own testimony, at least if he bears the incidental expense and if the government does not bear the heavy burden of showing special grounds for non-delivery.

To deny that right seems to me to be a denial of due process under the Fifth Amendment, and, moreover, to be contrary to what an appellate federal court should tolerate as conforming to standards of just procedure within the federal judicial system.

Therefore, I would reverse the judgment of the district court.