GODBOLD, Circuit Judge:
Appellants were named as "unindicted conspirators" in an indictment by a federal grand jury charging a highly publicized conspiracy. In this case they challenge the power of the grand jury to charge them with criminal conduct in this manner without indicting them. We conclude that the grand jury exceeded its power and authority and that its action was a denial of due process to appellants.
I. The facts.
Following political demonstrations and disruptions at the Republican Party National Convention at Miami, Florida, on August 21-24, 1972, a federal grand jury sitting in the Northern District of Florida undertook an investigation into the disturbances and their causes. The grand jury's probe led it to believe in the existence of a plot to achieve riot and the widespread use of various implements of violence. On October 18, 1972, the grand jury issued a five-count indictment. We set out in the margin the pertinent parts of Count One,
—18 U.S.C. § 2101: organizing, promoting, encouraging and participating in a riot.
—18 U.S.C. § 844(i): malicious destruction of property by means of explosives.
—18 U.S.C. § 844(h): use of explosives to commit federal felonies.
—26 U.S.C. § 5861(c): possession of non-tax paid firearms.
The alleged conspirators included ten named persons plus others not named. Of the ten persons named, seven were made defendants and three were not. The latter three, although accused of participation in the criminal conspiracy, were denominated in the indictment as "unindicted co-conspirators." Of the persons not named some were alleged to be known and others unknown.
Prior to the trial of the seven named defendants, two of the three named but unindicted persons, Robert Wayne Beverly and John Victor Chambers, filed a petition in the United States District Court for the Northern District of Florida, seeking entry of an order expunging the references to them in Count One of the indictment. The United States Attorney appeared and contested the application. The named defendants did not object to expunction of references to Beverly and Chambers. The District Judge denied the petition without opinion or statement of reasons.
The issue for decision appears to be of first impression at the appellate level.
II. Justiciability, standing and mootness.
We hold that there is a case or controversy, that the appellants have standing, and that the acquittal of the persons named as defendants does not moot the case. The government's position to the contrary on each of these points is founded upon its argument that since the appellants were not indicted, and particularly since those named as defendants were acquitted, the formal branding of appellants as alleged felons and as participants in a distasteful conspiracy is a mere chimera, neither substantial nor injurious. This is at least disingenuous.
Beverly and Chambers complain of injury to their good names and reputations and impairment of their ability to obtain employment. The courts have recognized in many contexts that these are substantial and legally cognizable interests entitled to constitutional protection against official governmental action that debases them. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), concerned validity of a Wisconsin statute providing for posting of public notices labelling persons as excessive drinkers. The Court characterized "a person's good name, reputation, honor, or integrity" as protected interests and said:
Id. at 435-36, 91 S.Ct. at 509, 27 L.Ed.2d at 518. The Court observed that to some persons posting under the statute might be merely the mark of an illness, but to others it was "a stigma, an official branding of a person," the imposition of a "degrading" and "unsavory" label. Id. at 437, 91 S.Ct. at 510, 27 L.Ed.2d at 519.
In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court recognized that a teacher's "interest in liberty" would be adversely affected if the state, in declining to rehire him, made "any charge against him that might seriously damage his standing and associations in his community."
The public ignominy of being accused of crime is one of the factors underlying the Sixth Amendment right to speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 221, 87 S.Ct. 988, 18 L.Ed.2d 1, 7 (1967). In Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969), the interest of appellant that was recognized was that he not be publicly branded as a criminal without a trial through the means of a state-created "Commission of Inquiry."
In Application of American Society for Testing and Materials, 231 F.Supp. 686 (E.D.Pa.1964), the court acted to protect the name and reputation of a named but unindicted conspirator in an antitrust action. The American Society (ASTM) was a nonprofit corporation comprised of persons drawn from major industries of the United States, having as one of its purposes the standardization of specifications and methods of testing various materials, and headed by persons described by the court as "dedicated, selfless scientists." In the same series of litigation the court acted to also protect the name of a business concern that was another named but indicted conspirator. Application of Turner and Newall, Ltd., 231 F.Supp. 728 (E.D.Pa.,1964).
The legally protected right in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951), was that of a charitable organization "to carry on its work, free from defamatory statements of the kind discussed." 341 U.S. at 140-141, 71 S.Ct. at 632, 95 L.Ed. at 837 (designation of an organization as communist by the Attorney General of the United States).
Appellants complain also of injury to their economic interests. One's right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the "liberty" and "property" concepts of the Fifth Amendment. Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377, 1388 (1959) (denial of security clearance for access to classified information resulting in loss of job and inability to find other employment); with respect to public employment, cf. Board of Regents v. Roth, supra, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). It would be unrealistic to deny that an accusation, even if unfounded, that one has committed a serious felony may impinge upon employment opportunities.
In the present case the District Judge recognized the injury to appellants' interests. Addressing government counsel at the hearing on appellants' application he said:
Beverly and Chambers were not subjected to the burdens of trial and the risk of conviction, as were the persons named as defendants. They do not, however, seek to protect their reputations against these hazards but rather against the opprobrium resulting from being publicly and officially charged by an investigatory body of high dignity with having committed serious crimes.
The government defies common sense with its theory that one's interests are not adversely affected to any extent by being publicly branded as a felon so long as he is not named as a defendant for trial. We reject as frivolous the contention that if appellants have suffered injury it is at the hands of only the news media to whom they should repair for relief. Coupled with these two arguments by the government is a third, which can be described as "innocence by association," that is, that the judgment of acquittal of the seven named defendants both exonerated the appellants and repaired any injury they may have suffered. Certainly the judgment did not in a legal sense exonerate Beverly and Chambers, who were not on trial and had no access to the forum. It does not bar later indictments against them. It is mere speculation to say that in a practical sense the vindication of the named defendants rubs off on the appellants and ameliorates their injury. The acquittal of a named defendant is not wholly curative of the reputational injury suffered by having been charged and tried, but our system permits the residual injury in its pursuit of overall societal interests. The appellants are not even the beneficiaries of such a partial cure. So far as we, the parties, and the public at large can discern, the jury may have considered Beverly and Chambers—not present to defend themselves—as the real culprits. The indictment remains in the official records of the Northern District of Florida and presumably of the Department of Justice. The currency given to it—at least that in written form—remains unretracted in libraries and depositories.
What we have said leads to several conclusions. There is an actual case or controversy. It is narrow, sharply drawn, and concrete. On one side are the persons who complain of injury to them by a single document, and on the other side is the sovereign, defending the power of the grand jury to do what was done. The appellants fulfill the standing requirements established by the Supreme Court in Ass'n of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). See Florida v. Weinberger, 492 F.2d 488 (CA5, 1974).
The issue is not political. The subject matter has not been expressly reserved to the executive or legislative branches. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, 959 (1968); Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407, 415-416 (1973). The court will be able to resolve the issue without doing violence to the doctrine of separation of powers, and the relief sought is within the power and competence of the judicial branch. See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 69, 7 L.Ed.2d 663, 685-86 (1962).
The dispute has not been resolved by subsequent developments, and an opinion will not be merely advisory. See California v. San Pablo & Tulare Ry. Co., 149 U.S. 308, 37 L.Ed. 747, 748-49 (1893); C. Wright, Law of Federal Courts, § 12, at 35-36 (2d Ed., 1970).
From these threshold issues we turn to the merits.
III. The merits.
United States v. Calandra, 414 U.S. 338, 342-343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561, 568 (1974). In its investigative-accusative function the grand jury determines if there is probable cause to believe a crime has been committed, and issues indictments accordingly. Id.; Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).
In its function of shielding and protecting the citizen against arbitrary and oppressive governmental action the grand jury:
Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569, 580 (1962) (footnote omitted). The Supreme Court again recognized the shielding function of the grand jury in Jenkins v. McKeithen, supra:
395 U.S. at 430, 89 S.Ct. at 1853, 23 L.Ed.2d at 422. The judges of this court recognized the grand jury's dual function as investigator-accuser and as protector in the four separate opinions issued in United States v. Cox, 342 F.2d 167 (CA5), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). See 342 F.2d at 170, 174-75, 183, 189-90.
In this country the grand jury was considered so essential to liberty that the Fifth Amendment precluded federal prosecution for serious crime without a presentment or indictment by a grand jury. United States v. Calandra, supra, 414 U.S. at 343, 94 S.Ct. at 617, 38 L.Ed.2d at 568.
Neither the Constitution, federal statutes, nor the Federal Rules of Criminal Procedure define the functions or powers of the grand jury.
An indictment is returned by a grand jury pursuant to its investigatory-accusatory function. It is a specific accusation of crime, having a threefold purpose: notice to the defendant, pleading in litigation, and the basis for the determination of former acquittal or conviction. United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1876); United States v. Seeger, 303 F.2d 478 (CA2, 1962); 1 Orfield, Criminal Procedure
We have found no reported opinion or scholarly commentary, and the government suggests none, contending that a federal grand jury is empowered to accuse a named private person of crime by means of an indictment which does not make him a defendant. The government, unable to point to supporting authority, states that the practice has long been in effect. In Application of United Electrical, Radio & Machine Workers, 111 F.Supp. 858 (S.D.N.Y., 1953), a similar argument was advanced in an effort to give validity to a grand jury report accusing private persons of crime. The court responded, 111 F.Supp. at 869:
Hammond v. Brown, 323 F.Supp. 326 at 345-46 (N.D.Ohio), aff'd 450 F.2d 480 (CA6, 1971) (challenging the "Kent State" prosecutions), also rejected custom as a basis on which to sanction grand jury reports criticizing or defaming private persons without indictment.
The offending document in this case is an indictment that accuses appellants but does not make them defendants for trial. No claim is made, indeed none can be made, that it was or purported to be a grand jury "report." We refer, however, to the body of law concerning reports by federal grand juries because it is consistent with what we here conclude with respect to indictments.
Common law grand juries at times issued nonindicting reports. Usually these were directed at undesirable community conditions or the conduct of public affairs, and did not purport to charge a criminal offense and to bring an offender to justice but were for the purpose of arousing public and legislative indignation. See the authorities collected in Judge Ainsworth's opinion in the El Paso case, supra, 479 F.2d at 460 n. 2.
The authorities are divided upon whether a federal grand jury has authority to issue a report of any kind. Authorities pro and con are reviewed in In re Report and Recommendations of June 5, 1972 Grand Jury, 370 F.Supp. 1219 (D.D.C., 1974) (concerning delivery of "Watergate" grand jury report to House Committee on the Judiciary.
In United Electrical, supra, the court expunged a report that did not concern
Judge Sirica, in the Watergate grand jury case, In re Report and Recommendation of June 5, 1972 Grand Jury, supra, upheld the power of the federal grand jury to render a report which was "a simple and straightforward compilation of information gathered by the Grand Jury, and no more." 370 F.Supp. at 1226. He distinguished the report before him from those held to be unauthorized in United Electrical and Hammond v. Brown on the ground it drew no accusatory conclusions and deprived no one of an official forum in which to respond. Id.
The Seventh Circuit, in Application of Johnson, 484 F.2d 791 (CA7, 1973), declined to suppress a grand jury report concerning a confrontation between Chicago police and members of the Black Panther Party in which two party members were killed, and in so doing distinguished Hammond and United Electrical on the ground that the report before it charged no petitioner with illegal activity.
Despite the variation in views concerning the limits of grand jury power to issue reports, we find no substantial authority permitting a federal grand jury to issue a report accusing named private persons of criminal conduct. We perceive no persuasive reason why the federal grand jury should be permitted to do by indictment what it could not do within the historical outer limits of a grand jury report.
The courts have struck down with strong language efforts by grand juries to accuse persons of crime while affording them no forum in which to vindicate themselves. Thus, United Electrical (with respect to reports):
111 F.Supp. at 867-868. People v. McCabe, 148 Misc. 330, 333, 266 N.Y.S. 363, 367 (1933), with respect to a presentment,
In dismissing a grand jury report that accused state judges and attorneys of wrongdoing either criminal or little short of criminal, the Florida Supreme Court said this:
State v. Interim Report of Grand Jury, 93 So.2d 99 at 102 (Fla., 1957).
Public accusation of misconduct through use of a non-indicting indictment is subject to the same comments just quoted (although we recognize the seductive appeal springing from familiarity with the practice of using the device and from absence of prior attack upon it).
We have referred to the second function of the grand jury, that of serving as a shield for the citizen against baseless charges of crime and from misuse of power by prosecutor and court. The grand jury that returns an indictment naming a person as an unindicted conspirator does not perform its shielding function but does exactly the reverse. If the charges are baseless, the named person should not be subjected to public branding, and if supported by probable cause he should not be denied a forum. Failure of the grand jury to perform its shielding function where appropriate may be explained by the tendency of the body, with its members not learned in the law, to follow the lead of the prosecutor, who is its legal advisor. We are told that in this instance the origin for the grand jury's action was the prosecutor.
Brief for the United States, p. 27.
One indicted by a grand jury has no right to appear before that body, under oath or otherwise. He is not entitled to present evidence or to have particular persons called as witnesses. He has only a limited right to counsel if he appears, and no right to be present in person or by counsel while evidence is being presented. He has no right to confrontation and to cross-examination, and no right to present argument. He is not entitled to know the identity of the witnesses who testified concerning him, and even after the grand jury has completed receiving evidence, its evidence is unavailable to him. He may not demand a statement of reasons supporting the body's conclusion. The evidence and the witnesses underlying the grand jury's action surface, if at all, at a criminal trial.
The incidents of due process afforded an unindicted conspirator are more limited than those available to one named as a defendant. The unindicted conspirator is not a party to the criminal trial where names and facts come to light, and he has no right under the Federal Rules of Criminal Procedure to intervene. If he is a witness at the trial, which is at least a possibility, he may be excluded from the courtroom except when testifying. And finally, of course, a decision in the trial that the defendants were not guilty of criminal conduct neither vindicates him nor bars his being subsequently indicted and tried as a defendant.
In part II, supra, we have already discussed the harm to the citizen who is accused but not indicted. To further the necessary process of weighing this private injury against governmental interest we have sought to discern what legitimate interests of the government are served by stigmatizing private citizens as criminals while not naming them as defendants or affording—in this case, indeed, affirmatively opposing—access to any forum for vindication. The Department of Justice suggests nothing that rises to the dignity of a substantial interest. The Department does state in conclusory terms that "the interest of justice may on occasion require that [unindicted conspirators] be named in the indictment." These "interests of justice" are not identified, and the cases cited in support concern naming in the indictment the victim of crime where necessary to protect the defendant.
There is at least an implication that in this instance naming Beverly and Chambers was considered necessary in order to prove, or facilitate the proof, of conspiracy by the persons named as defendants.
In the instant case, Count One charged that the named conspirators conspired "with divers other persons, some known and others unknown to the grand jury." We have not been told why the two appellants were named while other persons who were alleged to be conspirators and whose identity was known were left behind the protective cloak of anonymity.
Finally, we know of no reason why, if the indictment wishes to center upon a specific person but not name him as defendant, he cannot be described as "John Doe."
An unindicted conspirator anonymously designated as an "other person" or as "John Doe" may be unmasked in a bill of particulars or at trial. The bill of particulars is, however, the statement of the prosecutor and does not carry the imprimatur of credibility that official grand jury action does. At least arguably its public impact may be tempered by protective orders entered by the court. When a witness testifies at trial he does so as a private individual and makes no formal adjudication regarding criminality. An indictment, the formal act of an impartial, formally convened quasi-judicial body of historical status and power, carries more impact on the reputation of its subject than does trial testimony. In any event, it must be recognized in the process of balancing private injury and governmental interests that wholly different, and valid, governmental interests apply to naming the private citizen in a bill of particulars or in trial testimony than apply to identifying him in the indictment as an unindicted conspirator.
If the implied governmental interest of "necessity to prove the conspiracy" relates to inducing persons to testify as prosecution witnesses, the government has available other and less injurious means than those employed in this case.
Nine of the ten persons named in the indictment were active in the Vietnam Veterans Against the War, an anti-war group. The naming of appellants as unindicted conspirators was not an isolated occurrence in time or context. The same procedure was employed in other cases.
Having balanced the governmental interest in the grand jury's functions and the harm caused thereby to individuals, we conclude that so long as the federal grand jury acts within the limits of its powers to investigate, to indict, and possibly to issue limited types of reports, the governmental interest in these important and historical functions tips the balance against requiring the full panoply of due process. Here, with respect to Beverly and Chambers, the grand jury acted beyond its historically authorized role, and we are shown no substantial interest served by its doing so. The balance tips wholly in favor of the adversely affected appellants. The scope of due process afforded them was not sufficient.
The extent to which the grand jury could be constitutionally authorized to act beyond the powers presently conferred upon it by common law and statutes, and the exact contours of procedural due process that then would be required in a balancing process to protect the interests of persons affected, is not for us to decide in this case.
IV. The power to expunge.
The grand jury has been variously viewed as an arm of the court, as an instrumentality of the people,
We have already pointed out in part II the exercise by the district court, over government objection, of the power to protect unindicted conspirators in the Johns-Manville antitrust litigation.
During trial ASTM had also filed a separate action requesting expunction and entry of formal findings that it had not committed the violations charged against it. After trial this separate suit was heard. The court rejected the government's argument of lack of jurisdiction. ASTM offered testimony from the criminal trial plus additional testimony and more than 100 exhibits. The court indicated it would enter appropriate findings of fact protecting ASTM, with a right in the government to come forward with an offer of evidence to the contrary in an upcoming trial of other defendants.
The other unindicted conspirator, Turner and Newall, filed after trial a motion to expunge, which was treated by the court as a separate suit. 231 F.Supp. 728. The court overruled the government's jurisdictional objections and granted relief similar to that granted ASTM.
The government, while contending these two cases were wrongly decided, also attempts to distinguish them on the ground that the motions were made later in the proceedings than in the instant case and that relief was granted after the court had a record on which to determine if there was any basis to support the allegations of the indictment. This misses the mark. ASTM and Turner and Newall represent an ad hoc approach that presumably was reasonably satisfactory to the affected parties since neither appealed from denial of pre-trial relief. At best the remedy they offer is a poor one. If the movant is successful, relief comes only after a trial at which the formal charge of criminal conduct inevitably has been given greater currency. If he is unsuccessful, added dignity is given to his criminal label by judicial refusal to remove it, a decision made after examination of a record to which the victim is not a party. In the final analysis, of course, probable cause on the
V. Sovereign immunity and grand jury immunity.
Sovereign immunity does not bar appellants from relief. That doctrine precludes private suits against the United States which would result in a drain on the public treasury or would inhibit the necessary and proper functioning of government. See Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209, 1216 (1947); Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15, 23 (1963). This is not such a proceeding. Beverly and Chambers asked no substantive relief against the government but rather made only a comparatively mild request to strike from the indictment charges that the government was not able to show served any substantial purpose. A request to expunge, in the circumstances here presented, at the request of persons having standing, was no more subject to the defense of sovereign immunity than the filing of a bill of particulars or the raising of an objection to the indictment by the named defendants.
Grand jurors, individually and collectively, enjoy a privilege assertable in suits for defamation;
VI. Grand jury secrecy.
The conclusions which we reach with respect to the power of the grand jury and the demands of due process make it unnecessary for us to discuss the issue of whether naming a person as an unindicted conspirator without making him a defendant violates the requirements of grand jury secrecy.
VII. Appellate jurisdiction.
In the El Paso case we had no doubt of the jurisdiction of the Court of Appeals to consider and act upon the order of the District Court nor do we entertain any doubt in this case. Beverly and Chambers filed a notice of appeal, and (as in El Paso) we have referred to them as appellants, but the court may consider the matter as a petition for a writ of mandamus.
The decision of the District Court is vacated and the cause is remanded with directions that the District Court order that the Clerk of the United States District Court for the Northern District of Florida expunge from Count One of the indictment described above all references to appellants.
Vacated and remanded with directions.
450 F.2d at 200, n. 2.
"This case involves the imputation of illegality, up to June 1, 1962, and inferentially thereafter, to the applicant in a document of record, which is not a moot question as far as the applicant is concerned. The Memorandum and finding [entered post-trial by the court] . . . are based upon a specific record in a real and substantial controversy."
In a very recent case the District of Columbia Superior Court adopted what it termed the federal rule that grand juries do not even have authority to publish reports on the condition or management of public institutions or affairs. It sealed a report dealing in detail with supposed wrongdoing by specific individuals employed at a District of Columbia hospital. In Re Recommendation of Grand Jury of Dec. 6, 1974, 16 Cr.L. 2395 (D.C.Super.Ct., 1/23/75).
See also the El Paso case, supra, 479 F.2d 460 n. 2; United Electrical, supra, 111 F.Supp. at 867-68.
U. S. v. Marshall, No. 51942 (W.D.Wash., indictment filed April 16, 1970). Anti-war activists charged with conspiracy; 16 named as alleged co-conspirators of whom 8 were made defendants and 8 unindicted. The trial of the eight defendants ended in mistrial Dec. 14, 1970, and there have been no further proceedings.
U. S. v. Ahmed, No. 14950 (M.D.Pa., indictment filed April 30, 1971). Catholic anti-war activists charged with conspiracy and other federal offenses; 12 named as alleged co-conspirators of whom 8 were made defendants and 4 unindicted. Conspiracy charges dismissed March 27, 1972. Two defendants were, however, convicted of other substantive violations; on appeal the convictions were affirmed in part, reversed in part sub nom. United States v. Berrigan, 482 F.2d 171 (CA3, 1973).
U. S. v. Russo, No. 9373 (C.D.Cal., indictment filed Dec. 29, 1971). "Pentagon Papers" case; four named as alleged co-conspirators, of whom two were made defendants and two unindicted. Proceedings terminated in dismissal May 11, 1973.
U. S. v. Rudd, No. 70 Cr. 195 (N.D.Ill., indictment filed April 7, 1972). S.D.S. "Weathermen"; 40 named as alleged co-conspirators of whom 12 were made defendants and 28 unindicted. Indictment dismissed January 3, 1974.
U. S. v. Ayres, No. 48104 (E.D.Mich., indictment filed Dec. 7, 1972). S.D.S. "Weathermen"; 39 named as alleged co-conspirators, of whom 15 were made defendants and 24 unindicted. Indictment dismissed Oct. 15, 1973.