PITTSBURGH PLATE GLASS CO. v. UNITED STATES.
No. 489.
Argued April 28, 1959.
Decided June 22, 1959.
Leland Hazard argued the cause for petitioner in No. 489,' With him on the brief were Cyrus V. Anderson and James B. Henry, Jr.
H. Graham Morison argued the'cause for petitioners in No. 491. With him on the brief were Samuel -K. Abrams and Robert M. Liehtman.
Philip Elman argued the causes for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Hansen, Daniel M. Friedman, Richard A. Solomon, Samuel Karp and Ernest L. Folk III.
Together with No. 491, Galax Mirror Co., Inc., et al. v. United States, also on certiorari to the same Court, argued April 29, 1959.
Mr. Justice Clark
delivered the opinion of the Court.
Petitioners stand convicted on a single-count indictment charging a conspiracy under § 1 of the Sherman Act. They contend that the trial judge erred in refusing to permit them to inspect the grand jury minutes covering the testimony before that body of a key government witness at the trial. The Court of Appeals affirmed the convictions, 260 F. 2d 397. With reference to the present claim, it held that Rule 6 (e) of the Federal Rules of Criminal Procedure committed the inspection or not of grand jury minutes to the sound discretion of the trial judge, and that in this instance, no abuse of that discretion had been shown. We granted certiorari limited to the question posed by this ruling; 358 U. S. 917, 918. We conclude that in the circumstances of this case the trial court did not err in refusing to make. Jonas’ grand jury testimony available to petitioners for use in cross-examination.
The indictment returned in the case named as defendants seven corporations, all manufacturers of mirrors, and three of their officers. However, only three of the corporations are petitioners here, along with one individual, J. A. Messer, Sr. The indictment charged a conspiracy to fix the price of plain plate glass mirrors sold in interstate commerce. It is not necessary for our purposes to detail the facts of this long trial, the record of which covers 860 pages. It is sufficient to say that the Government proved its case through 10 witnesses, the last of whom was Jonas. He was President of a large North Carolina mirror manufacturing company and had a reputation for independence in the industry. Although neither he nor his corporation was indicted, the latter was made a co-conspirator. The evidence indicates that the conspiracy was consummated at two meetings held on successive days during the week of-the annual meeting of the Mirror Manufacturers Association in 1954 at Asheville, North Carolina. Jonas, not being a member of the Association, did not attend the convention. Talk at the convention regarding prices culminated in telephone calls by several representatives of mirror manufacturers to, Jonas concerning his attitude on raising prices. On the day following these calls Jonas and three of the participants in the conspiracy met at an inn away from the convention headquarters and discussed “prices/’ Within three days thereafter each of the manufacturers announced an identical price increase, which was approximately 10 percent. Jonas’ testimony, of course, was confined to the telephone calls and the meeting at .the inn' where the understanding was finalized. The Government admits that he was an “important” witness. However, proof of the conspiracy, was overwhelming aside from Jonas’ testimony. While he was the only witness who characterized the outcome of the meetings as an “agreement” on prices, no witness negatived this conclusion and the identical price "fists that followed the meeting at the inn were little less than proof positive.
After the conclusion of Jonas’ testimony, defense counsel interrogated him as to the number of times he appeared and the subject of' his testimony before the grand jury. Upon ascertaining that Jonas had testified three times on “the same general subject matter,” counsel moved for the delivery of the grand jury minutes. He stated that the petitioners had “a right ... to inspect the Grand Jury, record of the testimony of this witness after he has completed his direct-examination” relating to “the same general subject matter” as his trial testimony. As authority for “the automatic delivery of Grand Jury transcripts” under'such circumstances-counsel cited Jencks v. United States, 353 U. S. 657 (1957). As previously indicated, the motion was denied.
It appears to us clear that Jencks v. United States, supra, is in nowise controlling here. It had nothing to do with grand jury proceedings and its language was not intended to encompass grand jury minutes. Likewise, it is equally clear that Congress intended to exclude those minutes from the operation of the so-called Jencks Act, 71 Stat. 595, 18 U. S. C. (Supp. V, 1958) § 3500.
Petitioners concede, as they must, that any disclosure of grand jury minutes is covered by Fed. Rules Crim. Proc. 6 (e) promulgated by this Court in 1946 after the approval of Congress. In fact, the federal' trial courts as well as the Courts of Appeals have been nearly unanimous in regarding disclosure as committed to the discretion of the trial judge. Our cases announce the same principle, and Rule 6 (e) is but declaratory of it. As recently' as last Term we characterized cases where grand jury minutes are used “to impeach a witness, to refresh his recollection, to test his credibility and the like” as instances of “particularized need where the secrecy of thé proceedings is lifted discretely and limitedly.” United States v. Procter & Gamble, 356 U. S. 677, 683 (1958).
Petitioners argue, however, that the trial judge’s discretion under Rule 6 (e) must be exercised in accordance with the rationale of Jencks; namely, upon a showing on cross-examination that a trial witness testified before the grand jury — and nothing more — the defense has a “right” to the delivery to it of the witness’ grand jury testimony.
This conclusion, however, runs counter to “a long-established policy” of secrecy, United States v. Procter & Gamble, supra, at 681, older than our Nation itself. The reásons therefor are manifold, id., at 682, and are compelling when viewed in the light of the history and modus operandi of the grand jury. Its establishment in the Constitution “as the sole method for preferring charges in serious criminal cases” indeed “shows the high place it [holds] as an instrument of justice.” Costello v. United States, 350 U. S. 359, 362 (1956). Ever since this action by the .Fathers, the American grand jury, like that of England, “has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.” Ibid. Indeed, indictments- may be returned on hearsay, or for that matter,. even on the knowledge of the grand jurors themselves. Id., at 362, 363. To make public any part of its proceedings would inevitably detract from its efficacy. Grand jurors would not act with that independence required of an accusatory and inquisitorial body. Moreover, not only would the participation of the jurors be curtailed, but testimony would be parsimonious if each ydtness knew that his testimony would soon be.in the hands of the accused. Especially is this true in antitrust proceedings where fear of business reprisal might haunt both the grand juror and the witness. And this “go slow” sign would continue as realistically at the time of trial as theretofore.
It does not follow, however, that grand jury minutes should never be made available to the defense. This Court has long held that there are occasions, see United States v. Procter & Gamble, supra, at 683, when the trial judge may in the exercise of his discretion order the minutes of a grand jury witness produced for use on his cross-examination at trial. Certainly “disclosure is wholly proper where the ends of justice require it.” United States v. Socony-Vacuum Oil Co., supra, at 234.
• The burden, however, is on the defense to show that “a particularized need” exists for the minutes which outweighs the policy of secrecy. We have no such showing here. As we read the record the petitioners failed to show any need' whatever for the testimony of the witness Jonas. They contended only that they had a “right” to the transcript because it dealt with subject matter generally covered at the trial. Petitioners indicate that the trial judge required a showing of contradiction between Jonas’ trial and grand jury testimony. Such a preliminary showing would not, of course, be necessary. While in a colloquy with counsel the judge did refer to such a requirement, we read his denial as being based on the breadth of petitioners’ claim. Petitioners also claim error because the trial judge failed to examine the transcript himself for any inconsistencies. But we need not consider .that problem because petitioners made no such request of the trial judge. The Court of Appeals apparently was of the view that even if the trial judge had been requested to examine the transcript he would not have been absolutely required to do so. It is contended here that the Court of Appeals for the Second Circuit has reached a contrary conclusion. United States v. Spangelet, 258 F. 2d 338. Be that as it may, resolution of that question must await a case where the issue is'presented by the record. The short of it is that in the present case the petitioners did not invoke the discretion of the trial judge, but asserted a supposed absolute right, a right which we hold they did not have. The judgment is therefore
Affirmed.
“Rule 6. The Grand Jury.
“(e) Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for • use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when.permitted by the court at the request of the defendant upon a showing that, grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule. The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no- person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.”
The fact that the trial testimony and that before the grand jury included the same “subjects” or related to "the same general subject matter” is not’ contested.
See S. Rep. No. 981, 85th Cong., 1st Sess.; 103 Cong. Rec. 15933.
E. g., United States v. Spangelet, 258 F. 2d 338; United States v. Angelet, 255 F. 2d 383; United States v. Rose, 215 F. 2d 617, 629; Schmidt v. United States, 115 F. 2d 394; United States v. American Medical Assn., 26 F. Supp. 429.
United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940). And see United States v. Procter & Gamble Co., 356 U. S. 677 (1958); United States v. Johnson, 319 U. S. 503, 513 (1943).
See Notes of the Advisory Committee on Rules, following Rule 6, Fed. Rules Crim. Proc.
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