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It follows that if Mr. Biaggi had made no application to the district court, the Government could not have procured disclosure of his grand jury testimony. No matter how much, or how legitimately, the public may want to know whether a candidate for high public office has invoked the privilege of self-incrimination before a grand jury, or has lied about having done so, that interest must generally yield to the larger one of preserving the salutary rule of law embodied in Rule 6(e) of Federal Rules of Criminal Procedure. But that is not this case.

[5–8] We need not determine whether Mr. Biaggi's application of April 26 for a limited review of the grand jury minutes by a judge or judges, which the district court was abundantly justified in denying, both for reasons that are apparent on the public record and for others that are not, would alone have empowered the court to order release of the testimony. For his application of May 1 assuredly did, and it now does not matter that the order of disclosure was based on the Government's motion rather than on Mr. Biaggi's. Insofar as the rule of secrecy "was designed for the protection of the witnesses who appear,” In re Grand Jury Proceeding, 4 F.Supp. 283, 284-285 (E.D. Pa. 1933), Mr. Biaggi waived this protection by seeking complete disclosure in the form of a motion requesting disclosure of his own testimony for its own sake and not merely as the lesser of evils should release of the redacted minutes be upheld. Insofar as the rule exists for the benefit of the Government, the United States Attorney has waived it in the clearest terms. The interests of grand jurors will not be affected; they asked no questions and their names could be redacted if they had. There remains only the interest of other persons named in the questions. Having sought disclosure, Mr. Biaggi could not condition his demand upon this being done only in a manner harmful to others. Our reading of the grand jury minutes in redacted form indicates that there is little chance that the questions asked and answers given will provide a context for meaningful inference about the identities of the deleted names. Clearly there would be greater possibility of injury to such persons—and, very likely, to Mr. Biaggi as well—if their names were not deleted. In any event, once Mr. Biaggi's motion gave the district judge power to direct the disclosure that had been sought, it was for the judge to determine what reasonable conditions should be imposed.

We have been handicapped in saying more by the application of Mr. Biaggi's counsel, which we have thought proper to grant, that we stay our order for a short period to enable him to apply to the Supreme Court for a further stay of release of the testimony pending the filing of a petition for certiorari. In the event of denial of such an application and release of the minutes we may wish to supplement this opinion so that the grounds for and the limits of our decision may be even more clearly understood.

We affirm the order of the district court and direct that our mandate issue five days after the filing of this opinion unless within that period an application for a further stay shall be filed under Supreme Court Rule 50, in which event release of the testimony shall be stayed until a ruling thereon. During that interval counsel shall endeavor to agree on what portions of the October 29 testimony shall also be released. In the absence of agreement, all shall be, with all names and personal references redacted.

HAYS, Circuit Judge (dissenting) :

Rule 6(e) of the Federal Rules of Criminal Procedure forbids disclosure of grand jury proceedings with certain carefully limited exceptions. My brothers concede that the present situation does not present a case for the application of any of the exceptions specified in the Rule. They have, without the support of any authority in the statute or the case law, created another exception, applicable to the situation where a witness waives the secrecy requirement by seeking release of the grand jury minutes. I do not believe that we have power to legislate this additional exception and I therefore respectfully dissent.

8 Subsequent to argument we were advised that counsel for Mr. Biaggi had agreed to deletions from the grand jury minutes of the names of law firms and the names of any alien witnesses who would be put in jeopardy by the release of the testimony. Although this is commendable, it is not sufficient. We think that, in addition to the redactions proposed by the United States Attorney, letters attached to the grand jury minutes should be omitted


FRIENDLY, Chief Judge, with whom JAMESON, District Judge, joins :

Now that Representative Biaggi's grand jury testimony has been made public, we are relieved of the handicaps, noted in our initial opinion, at 493, which impeded full explanation of the grounds for and limits of our decision.

It is now apparent that Mr. Biaggi's request for a review of his grand jury testimony by one or more district judges "for the sole purpose of determining whether or not I took the Fifth Amendment privilege or any other privilege on my personal finances and assets" was framed, whether wittingly or not, in such a manner as to create a false impression in light of the publicity that had given rise to it. As can be seen from the grand jury testimony, the answer to the precise question propounded in all likelihood would have had to have been in the negative. Yet the New York Times article had reported that Mr. Biaggi had stated in an interview, and had assured the Conservative Party when it was considering him as its nominee for the mayoralty, that he had fully answered all questions before the grand jury. The minutes show that, in fact, he had refused to answer seventeen. When Mr. Biaggi sought a full disclosure, although with the names of other persons named in the questions and answers unredacted, he waived his rights to have the minutes remain secret, and the public interest required that the request be granted with proper protection to the persons named.

[9] Our decision should therefore not be taken as demanding, or even authorizing, public disclosure of a witness' grand jury testimony in every case where he seeks this and the Government consents. It rests on the exercise of a sound discretion under the special circumstances of this case.

Hays, Circuit Judge (dissenting):
I dissent.

The law forbids the publication of these Grand Jury minutes. In my opinion the rules of law are a more reliable guide to the administration of justice than the personal views of judges as to what “the public interest" may require.

Mr. EILBERG. Our next witness is Mr. Conyers, one of the most outspoken Members on the need for grand jury reform. He is thoroughly familiar with the subject and has introduced a bill of his own, H.R. 11660. Mr. Conyers, we have read your statement. Please proceed as

you see fit.



Mr. CoNYERS. Thank you, Mr. Chairman. I ask unanimous consent that my prepared statement be incorporated in the record.

Mr. ÉILBERG. The statement will be incorporated in the record. [The prepared statement for Hon. John Conyers, Jr., follows:]


THE STATE OF MICHIGAN Mr. Chairman and members of the Subcommittee, as you may know, grand jury abuse is nothing new. Virtually from the beginning of our Republic's history, citizens high and low have reeled from politically motivated prosecutions and complained bitterly of trumped-up indictments. When Senator Edward Kennedy told this committee three years ago that the grand jury has become a "dangerous modern form of Star Chamber secret inquisition that is trampling the rights of American citizens from coast to coast," his words echoed sentiments voiced 176 years earlier by Thomas Jefferson, who charged that Federalists were pressuring grand juries “to become inquisitors on the freedom of speech."

Yet while grand jury abuse has been commonplace throughout American history, Congressional attempts to remedy this situation certainly have not. In fact, as already noted by Chairman Eilberg, these hearings mark the first time Congress has seriously considered the notion of grand jury reform. What prompted the Congressional concern that has led to these hearings after so many gen

erations of neglect? It was the campaign of grand jury harassment unleashed against Richard Nixon's political enemies between 1970 and 1973 that vividly unveiled the grand jury's potential as a weapon of repression. It was the infamous case of the "Fort Worth Five" and other less publicized but no less outrageous horrors that made us realize that Nixon's Organized Crime Control Act of 1970, which introduced both subtle and sweeping changes in grand jury and immunity procedures, was a prescription for grand jury "dirty tricks,” not a panacea for gang-busting.

Moreover, it was not until we took a long, hard look at the Ft. Worth case and its companion horror stories that we learned how much the grand jury left to be desired as an institution of democratic government even before the Nixon Administration went to work on it. How many of us realized that, as a matter of routine, federal grand juries could deny subpoenaed witnesses the assistance of counsel or a copy of their completed testimony? That a prosecutor could legally ask a grand jury to return an indictment based solely on evidence that would be inadmissable at trial?

The 1973 hearing that Chairman Eilberg conducted on the Ft. Worth case performed a great service. It raised hard questions about the grand jury process and acted as a catalyst for three years of study and bill-drafting. Your groundbreaking legislative reform proposals, Mr. Chairman, have been followed by three other omnibus reform bills, including H.R. 11660, a revised version of H.R. 2986 which I introduced a year ago last February with the cosponsorship of 24 of our colleagues. Several other members, including Ms. Holtzman and Mr. Fish from this panel, have introduced proposals aimed against one or another specific aspect of grand jury abuse. Combined, these bills offer a well-thoughtout program for ending grand jury abuse, one which seeks to achieve two main goals:

(1) To guarantee democratic rights throughout the grand jury process, both for witnesses and grand jurors themselves.

(2) To disarm the grand jury as a frightening device readymade for political persecution.

Both these goals, of course, are related. It is the absence of constitutional safeguards in the grand jury chamber that invites prosecutors to manipulate grand juries against their enemies in the first place. But these goals are not identical, and there is a danger facing us as we go about the work of grand jury reform. It would be very possible for this Subcommittee, for the full Judiciary Committee, even for the Congress to guarantee many basic democratic rights in the grand jury process, yet leave "loopholes” wide enough for the government to continue the same political inquisitions that sparked our deep concern with the grand jury problem initially. Let me elaborate on this point los discussing in more detail the major legislative proposals we have before us.

THE GRAND JURY AND DEMOCRATIC RIGHTS Through my reading of recent grand jury scholarship, conversations with people involved in the criminal justice system and study of testimony already given before this Subcommittee, I feel confident in saying that a general consensus about many basic grand jury reforms is building. From the prosecu ors and judges who make up the bulk of the American Bar Association conmi tee developing new standards for grand jury conduct to the many national civil liberties, labor and religious groups who have mobilized around the grand jorv issue, there comes a very clear call for change. Most all serious students of the federal grand jury-with the glaring exception of the Department of Justice can agree, at a bare minimum, on the following changes in grand jury procedure:

The right to counsel inside the grand jury chamber for grand jury witnesses ;
The granting of adequate time to prepare for a grand jury appearance;
The access to a copy of one's own grand jury testimony ;
The right not to be indicted on evidence inadmissable at trial ;

The requirement that prosecutors present all exculpatory evidence in their possession to the grand jury;

The prohibiting of reiterative contempt, the jailing of a witness for the refusal to answer the same questions more than once; and

The requirement that prosecutors inform witnesses whether they are targets and about the nature of the crime under investigation and their rights to silence and counsel.

Frankly, I find it extremely difficult to comprehend arguments against these changes. Once the principle that due process is essential to justice is accepted, how can it be argued that due process need not apply everywhere a person may find him or herself in legal jeopardy? In a landmark decision last September, California Supreme Court Chief Justice put the matter quite succintly.

“(O)ne is continually struck by the fact that this (grand jury) proceeding remains untouched by the safeguards which have become firmly attached to points in the criminal process of far less significance. For example, it is now the law that a casual suspect at a line-up has more rights than an accused before a grand jury. Similarly, a parolee charged simply with violation of conditions of his parole has the opportunity to personally appear, cross-examine hostile witnesses, and be conditionally represented by counsel at the revocation hearing, yet none of these protections is accorded to the potential indictee. Indeed, far more safeguards protect prison inmates at disciplinary hearings and parole recission hearings than are permitted free and presumptively innocent persons before the grand jury."

All the major omnibus bills before this Subcommittee address themselves to this absence of fundamental rights in the grand jury chamber. Each proceeds from the historically accurate assumption that the grand jury was never meant to provide an "exception" to the Bill of Rights. Indeed, the grand jury was written into American law as an integral part of the Bill of Rights--we ought never to lose sight of this point, although the Justice Department seems to have. To allow the government to use the grand jury as a means by which it can, for instance, interrogate a witness in the absense of the counsel he or she would otherwise be entitled to is as alien to the basic thrust of the Constitution as a Nazi band in a Bicentennial parade.

By enacting the list of reforms mentioned above into law—this list, of course, only highlights the major safeguards envisioned by the various pieces of grand jury reform legislation—the Congress will have taken a great leap forward. But the job of grand jury reform will remain incomplete. The enactment of these necessary safeguards would still leave the door ajar to the use of the grand jury as a weapon of political repression. The way would still be clear for prosecutors so inclined to derail political rivals, discredit dissenters or scapegoat minorities through the grand jury process.

THE GRAND JURY AND REPRESSION If FBI Director Clarence Kelley were to come before Congress tomorrow and request that Bureau agents be granted subpoena power, the Congress would overwhelmingly rebuff Mr. Kelley's request, as it has done in the past with similar requests from Mr. Hoover. The idea of giving FBI agents-or U.S. attorneys or any executive branch law enforcement officials for that mattercompulsory process authority is unthinkable. Nations that allow law enforcement officials to compel people to answer questions and punish those who refuse are police states, not democratic societies. Congress would not dare give law enforcement officials such unaccountable discretion especially now that we are so painfully aware of the FBI's track record on civil liberties.

Yet, in reality, the FBI now has that discretion anyway. The FBI currently can compel people to answer questions and punish them if they refuse, and the Bureau has gained this dangerous power not through a statute debated by the representatives of the American people, but through the ill-defined authority of the grand jury.

The process is simple. It can begin anytime a person approached by FBI agents refuses to answer their questions, and that, it appears, is a course that growing numbers of people the FBI seeks to interrogate are taking, for a variety of reasons. Many, particularly activists and supporters of political groups we now know the FBI has been systematically disrupting over the years, basically do not trust the FBI enough to give it information, any information. They may feel that their answers might be twisted to harass or harm their friends and associates. They may feel that by visiting their homes and workplaces, the FBI is chilling their right to engage in political activity and warning others to stay away, too. They may feel that the FBI has no right to traipse through their personal lives. They may be outraged by arrogant FBI attempts to intimidate them into answering, or they may be aware that giving false information to the FBI is a crime and, rather than risk giving an incorrect answer, decide to remain silent.

In any case, the law does not care why a person refuses to answer FBI questions. Every person has the legal right to slam the door in an FBI agent's face if he or she so chooses.

Once a person refuses to answer questions, however, FBI agents have ways to step up their pressure. Talk to us, they say, or you will have to talk to the grand jury. Sometimes the threat of a grand jury subpoena and all the disruption and unfavorable publicity that could mean will scare a person who intended to remain silent into answering questions. But the FBI's subpoena threat is not an idle one, and should the person steadfastly reiterate his or her legal right not to answer FBI questions, the Bureau can always have it executed. A quick phone call to the nearest cooperative U.S. attorney is often sufficient to produce the grand jury subpoena sought. Sometimes phone calls are not even necessary. The U.S. Attorney in my home city of Detroit, for example, openly stated last summer that FBI agents are sent out to question witnesses with subpoenas in their pockets. If a prospective witness does not cooperate to the extent the FBI sees fit, out comes the subpoena.

For the FBI's unfortunate target, the grand jury subpoena nullifies the legal right not to talk to the FBI. Once inside the grand jury chamber, the same questions the FBI agents wanted answered are asked by federal prosecutors, and this tirre the inquiries must be answered. If witnesses should invoke the Fifth Amendment, then the prosecutors, by simply obtaining the approval of the Attorney-General, can “immunize" them. Continued silence at this point brings contempt and an incarceration that will last as long as the grand jury's term and can be begin again with the convening of a new grand jury. By such a process, the FBI can have someone thrown into jail for an indefinite period without ever having to produce , sbred of evidence of the person's criminal activity.

I wish that the above scenario were only an idle theoretical exercise. But it is not. In case after case over the past six years Justice Department officials have used the grand jury to railroad-the only word that adequately describes a situation where there are no accusers, accused or evidence their enemies and irri. tants behind bars. The Nixon Administration pioneered this strategem, and many researchers have studied the incredible extent to which the Nixon-Mitchell Justice Department bent the grand jury system to its needs. But let us be absolutely clear about one thing. We are not talking about past history. We are not talking about the sorry exploits of a Richard Nixon and a J. Edgar Hoover that must not be allowed to happen again. We are talking about horrors that are continuing at this very moment. The stories of the Ft. Worth Five, the Harrisburg Eight and Prof. Samuel Popkin, to name some of the more celebrated grand jury victims of the Nixon years, are fairly familiar to anyone who has read on the grand jury issue. Let me note briefly here some appalling instances of grand jury abuse that are the responsibility of the present Administration.

I can start, arbitrarily, with Cynthia Garvey, a young Oakland woman active in various Bay Area radical political activities. At the height of the FBI's embarrassment over its failure to find missing heiress Patty Hearst, Ms. Garvey was approached by FBI agents, presumably because she had once been. hnt no longer was, close to one of the people involved with the SLA. Ms. Garvey had no sympathy for the SLA, and she made this no secret. She refused to cooperate with the SLA defense in a subsequent criminal trial. But Ms. Garvey also did not trust the FBI, feeling strongly that the Bureau was engaged in a desperate search for scapegoats, and she refused to answer FBI questions. She was then subpoenaed, immunized and jailed for contempt when she refused to answer the same questions before the grand jury. In all, she was behind bars for about nine months in 1975. Counting time off for litigation, the government took the better part of a year out of her life before releasing Ms. Garvey at the expiration of the grand jury's term last September.

It is still not clear how much time the government will take out of Lureida Torres' life. Ms. Torres is an unemployed New York City schoolteacher. She is also a member of the Puerto Rican Socialist Party (PSP), which is basically why she is presently in jail. For over a year now the government has been investigating a series of bombings that ripped New York City between October, 1974, and October, 1975. The FALN, a tiny fringe group that backs independence for Puerto Rico, claimed credit for the blasts, and last fall, the government, frustrated in its search for the FALN bombers, began indiscriminately questioning anyone who believes (or believed) in Puerto Rican independence, apparently


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