IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
May 20, 1963
IN THE MATTER OF THE GRAND JURY INVSTIGATION OF VIOLATIONS OF 18 U.S.C. § 1621 (PERJURY).
Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.
FRIENDLY, Circuit Judge: The United States moves that we dismiss appeals by General Motors Corporation from, or summarily affirm, an order of Judge Edelstein in the District Court for the Southern District of New York. The order related to a grand jury investigation, initiated in the fall of 1962, into possible offenses under the perjury statute, 18 U.S.C. § 1621, on the part of officials of General Motors who had testified in a 1961 grand jury investigation, also in the Southern District of New York, of alleged violations of the Sherman Act in the company's manufacture and sale of railroad locomotives. The 1961 grand jury had returned an indictment against General Motors which was transferred to the Northern District of Illinois, where it is now awaiting trial.
In the 1962 grand jury proceedings, an attorney in the Antitrust Division who was in charge of the prosecution of the antitrust case caused subpoenas to be issued to certain General Motors officials, none of whom had testified before the 1961 grand jury but who, allegedly, were potentially important witnesses for the defense in the antitrust prosecution. Thereupon General Motors obtained an ex parte order staying compliance with the subpoenas pending disposition of a motion to be promptly made. Although General Motors fully recognized the right of the United States to investigate the alleged perjury, it claimed that the 1962 grand jury proceedings might constitute an abuse of process by enabling the Government to examine defense witnesses in advance of a criminal trial, despite the considered omission from the Federal Rules of Criminal Procedure of any provision for this type of discovery,*fn1 and to do so, moreover, in the secret, non-adversary form of grand jury testimony. To prevent such an abuse General Motors moved for an order limiting the conduct of the perjury investigation to persons designated by the Attorney General who were not members of the Antitrust Division, prohibiting disclosure of the transcript of the investigation to anyone other than the persons so designated, disqualifying any person so designated or otherwise having knowledge of the transcript from participating in the prosecution of the anti-trust indictment, and quashing the subpoenas that had been issued at the instance of the Antitrust Division. In the course of the proceedings on the motion, the Government submitted to the judge, but not to General Motors, an affidavit of Maneker, an attorney in the Department of Justice, setting forth, as we are told, the basis for the institution and scope of the perjury investigation; it opposed a motion by General Motors to have the affidavit either disclosed or expunged.
On February 27, 1963, Judge Edelstein filed an opinion, entered in the Clerk's docket on the same day, denying General Motors' basic motion and also its motion relating to the Maneker affidavit. 32 F.R.D. 175. On April 12, he signed an order, submitted by General Motors, denying the motions and ordering the appearance of four of the five witnesses on whom subpoenas had been served (the fifth had died); the Government took the position that the order was unnecessary because, as it claimed, the filing and docket-notation of the judge's opinion on February 27 had constituted an order. On April 22, General Motors filed a notice of appeal from the order of April 12; on April 29, it filed another notice of appeal relating also to the action taken on February 27.
The Government's motions in this Court and General Motors' response present a variety of procedural and substantive questions in addition to the one we deem decisive. Among these are whether the time for appeal started to run on February 27 when Judge Edelstein's opinion was entered, on April 12 when he signed the order, or on April 16 when the order was entered; whether the time limit for appeal is the 10 days provided by Criminal Rule 37(a)(2) or the 60 days provided by Civil Rule 73(a); whether General Motors has any standing to appeal; whether the ex parte consideration of the Maneker affidavit was proper; and whether General Motors' showing warranted the relief sought. We do not reach any of these questions because we find ourselves without jurisdiction over the appeal even if we assume it was seasonably taken.
Cobbledick v. United States, 309 U.S. 323 (1940), held that an order denying the application of witnesses to quash grand jury subpoenas was not "included within those 'final decisions' in the district court which alone the circuit courts of appeal are authorized to review" by what is now 28 U.S.C. § 1291. DiBella v. United States, 369 U.S. 121 (1962), reinforced the lesson of Cobbledick and corrected our error in having considered that an order granting or denying a pre-indictment motion to suppress evidence was appealable; "Only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent." 369 U.S. at 131-32. United States v. Koenig, decided in the same opinion, contributed the additional emphasis that the needed finality was not attained by the suppression motion's being made in a district different from that of the criminal prosecution. The case before us differs in that the movant is neither a prospective witness before the grand jury, as in Cobbledick, nor a prospective defendant on the charge to which his motion relates, as in DiBella and Koenig, but a defendant named in another indictment. However, the same considerations that underlie the Supreme Court's decisions in those cases are applicable here: "Encouragement of delay is fatal to the vindication of the criminal law." 309 U.S. at 325; "The duration of its the grand jury's life, frequently short, is limited by statute. It is no less important to safeguard against undue interruption the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found." 309 U.S. at 327. The denial of General Motors' motion here will in no way prevent it from asserting in the criminal trial in the Northern District of Illinois, if occasion should arise, that evidence proffered against it has been improperly obtained; its position in this respect is quite analogous to that of the unsuccessful movants in DiBella and Koenig. Although the order refuses what General Motors deems the most efficacious means of sealing off the evidence to be taken before the grand jury investigating perjury from the trial of the anti-trust indictment, it makes no final determination of General Motors' claims in that regard. Cf. Sam Fox Publishing Co. v. United States, 366 U.S. 683, 689 (1961). The order is thus not appealable as a final decision under 28 U.S.C. § 1291.
There is even less force in the contention that the order denied an injunction and therefore is appealable under 28 U.S.C. § 1292(a)(1). The Supreme Court scarcely intended that the important policy pronouncements in Cobbledick and DiBella could be side-stepped by baptizing a motion to quash as one to enjoin the prosecutor from enforcing a subpoena, or a motion to suppress as one for an injunction restraining the use of the evidence and mandating its return; yet such a description would be quite as valid as that which General Motors puts forth here. In Grant v. United States, 282 F.2d 165, 168-70 (2 Cir. 1960), we pointed out that orders restraining prosecutors from using evidence are not to be regarded as made in adversary civil litigation but, as explained by Judge Hough long ago, are steps taken pursuant to "the inherent disciplinary power of any court of record" over its officers, including the United States Attorney. United States v. Maresca, 266 Fed. 713, 717 (S.D.N.Y. 1920); see also Application of Iaconi, 120 F.Supp. 589 (D. Mass. 1954), and Judge Edelstein's opinion in the instant case, 32 F.R.D. at 181. We there showed also that the history of § 1292(a)(1), stemming from § 7 of the Evarts Act, c. 517, 26 Stat. 828 (1891), which provided an exception to the requirement of finality in cases "where, upon a hearing in equity in a district court or in an existing circuit court, an injunction shall be granted," etc., tended to negate a construction that would include a court's directions to its officers to act or refrain from acting. See also United States v. Rosenwasser, 145 F.2d 1015 (9 Cir. 1944); Fleischer v. Phillips, 264 F.2d 515, 516 (2 Cir.), cert. denied, 359 U.S. 1002 (1959). Our reading of § 1292(a)(1) in this respect has now been confirmed by the Supreme Court's statement in DiBella that "Every statutory exception to the rule of finality is addressed either in terms or by necessary operation solely to civil actions." 369 U.S. at 126.*fn2