United States v. Russell Burke, Terry Michael Butler, Terrance W. Chester, Joyce Greeson, William Frederick Honchell, Michael Evans, George Perez , 856 F.2d 1492 ( 1988 )

PER CURIAM:

This is an appeal from the district court’s denial of motions to dismiss the indictment.¹ The appellants before the court are Russell Burke, Terry Butler, Terrance Chester, Joyce Greeson, Frederick Honc-hell, Michael Evans and George Perez.

I. All appellants appeal on the ground that pretrial delay violated the Sixth Amendment to the Constitution of the United States or the “speedy trial” act (18 U.S.C. § 3161) [the speedy trial issue].

II. Joyce Greeson’s appeal from the denial of her motion to dismiss the indictment is based on the ground that “the government made improper evidentiary and non-evidentiary use of her immunized grand jury testimony” following her having testified before the grand jury under use-immunity. 18 U.S.C. § 6003 [the Greeson immunity issue].

III. Appellants Chester, Greeson, Honc-hell and Perez appeal on the ground that there was such flagrant governmental misconduct during the investigative and grand jury stages of the case that to proceed upon the indictment would undermine the integrity of the judiciary. Alternatively, they seek to have the case remanded for further hearing on the ground that they were denied their Fifth Amendment rights by having been indicted by a grand jury which was not fair and impartial.

All appellants entered guilty pleas, reserving the right to appeal the issues now before this court. All have been sentenced and all are currently free on bond pending the disposition of this appeal.²

I.Speedy Trial Issue

After a careful review of the record, the district judge entered a thorough and well-reasoned order denying the speedy trial motions.

Following our review of the record, we uphold the district court’s denial of the motion and for the reasons expressed in the district judge’s memorandum opinion, 673 F.Supp. 1574 (N.D.Ga.1986), we affirm the district judge’s determination.

II.Joyce Greeson’s Immunity Issue

Following an evidentiary hearing,³ a United States Magistrate’s report to the trial judge recommended that Greeson’s motion raising the immunity issue be denied. Following review of the testimony and evidence submitted at the magistrate’s hearing and the testimony and evidence presented to the indicting grand jury, the district judge adopted the magistrate’s report and recommendation and denied Gree-son’s motion.

Following our review of the material reviewed by the district judge⁴ and the conclusions of law set out in the district judge’s order, we uphold the district judge’s conclusion that the government has met its burden of establishing, by a preponderance of the evidence, that all evidence presented to the indicting grand jury was derived from legitimate sources wholly independent of Greeson’s immunized testimony given before the previous grand jury. The government has met its affirmative duty as prescribed by the Supreme Court in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

As recited by the district judge, “Gree-son’s testimony provided little relevant information _” The extent of her testimony was to confirm information previously obtained by government agents from independent sources including certain immigration forms.

As to her “non-evidentiary use of immunized testimony” position, Greeson contends that the government chose to prosecute her because the government believed that she had perjured herself when giving immunized testimony to the grand jury. We find that contention, as presented to the district court, to be without merit and we uphold the district judge in his denial of Greeson’s “non-evidentiary use” motion.⁵

III.Governmental Misconduct

This case arises from the same facts and indictment and this appeal is from the same district court order as United States v. Elliott, 849 F.2d 554 (11th Cir.1988). Issues I and II in this case are distinct from issues in the Elliott case. Issue III in this case — Governmental Misconduct — is identical to Issue 2 in the Elliott case. Since that opinion has been filed prior to this opinion, we are bound by the Elliott panel’s holding. The appellants Chester, Greeson, Honchell and Perez make the same three arguments to us as did Elliott: (1) that the government presented fabricated and highly prejudicial documents to the indicting grand jury; (2) that the attorneys for the government abused the court’s subpoena power to such an extent as to undermine the integrity of the judiciary; and (3) that there were flagrant Rule 6(e), Fed.R. Crim.P., violations which resulted in gross abuses of the grand jury secrecy rule. Consequently, we adopt Issue 2 of the Elliott opinion verbatim. 849 F.2d 554, 556-58. We have substituted “[Chester, Greeson, Honchell and Perez]” where the name “Elliott” appears.

“[Chester, Greeson, Honchell and Perez argue] that the Government presented fabricated documents to the grand jury; that Government attorneys abused the court’s subpoena power; and that there were egregious violations of Fed.R.Crim.P. 6(e) which resulted in abuses of the grand jury secrecy rule. We disagree.

“At the Government’s prompting, Ms. Bickerton, a public accountant formerly associated with T. Lamar Chester, fabricated documents to be included among those in her possession subpoenaed by a Houston grand jury to be presented to an Atlanta grand jury. The fabrication was arranged by Government agents in their effort to uncover a suspected obstruction of justice by Chester and two lawyers. The plan ultimately failed, and the fabricated documents were misplaced along with other genuine documents. The magistrate’s report and recommendation included a finding that no fabricated documents were presented to the indicting grand jury. The district court adopted this finding upon a de novo review of the record. This finding is not clearly erroneous.

“[Chester, Greeson, Honchell and Perez argue] that the district court’s grand jury subpoena power was abused because it was used by the Government as a pretext for investigative purposes to interview suspects, and not solely for grand jury purposes. That a subpoenaed individual is not ultimately called before the grand jury does not result in a per se violation of a court’s subpoena power. As a practical matter, the United States Attorney is allowed considerably leeway in attempting to prepare for a grand jury investigation. United States v. Santucci, 674 F.2d 624, 632 (7th Cir.1982), cert. denied, 459 U.S. 1109, 103 S.Ct. 737, 74 L.Ed.2d 959 (1983). The United States Attorney must regularly interview witnesses prior to appearances before the grand jury to ensure that grand jurors are not burdened with duplicate information. The court’s subpoena power may not, however, be used by the United States Attorney’s office as part of its own investigative process. United States v. DiGilio, 538 F.2d 972, 985 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). Courts necessarily play a limited role regarding grand jury proceedings given the role of the United States Attorney and the broad power inherent in the grand jury.

“A review of the grand jury testimony and records does not show an encroachment by the Government on the court’s subpoena power that would compel court interference. Only by the exercise of this Court’s general supervisory power to protect the integrity of the judicial process could some relief be afforded [Chester, Greeson, Honchell and Perez] on this point. On this record, we find no reason to exercise that power. See Bank of Nova Scotia v. United States, — U.S. —, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) (court should not invoke its supervisory power to dismiss an indictment for prosecutorial misconduct in a grand jury investigation where misconduct does not prejudice the defendant).

“The record reflects some probable misconduct by some Government lawyers. The district court, however, carefully considered the allegations of violations of grand jury secrecy and concluded that [Chester, Greeson, Honchell and Perez] did not establish sufficient prejudice to warrant dismissal of the indictment. The district court found that the magistrate had given [Chester, Greeson, Honchell and Perez] a fair hearing, and was within his discretion in denying defendants’ motion for production of grand jury records. We agree.

“The controlling standard for our purposes is a straightforward one:

Parties seeking grand jury transcripts under rule 6(e) must show that the matter they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations.

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1675, 60 L.Ed.2d 156 (1979) (footnote omitted). A defendant’s effort to obtain grand jury materials can only succeed with a showing of “particularized need.” United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077 (1958). The decision to disclose grand jury proceedings is a matter within the district court’s discretion. United States v. Benton, 637 F.2d 1052, 1059 (5th Cir. Unit B 1981). Particularized need is not shown by a general allegation that grand jury materials are necessary for the preparation of a motion to dismiss. See Thomas v. United States, 597 F.2d 656, 658 (8th Cir.1979). See also United States v. Sells Eng’g Inc., 463 U.S. 418, 445, 103 S.Ct. 3133, 3149, 77 L.Ed.2d 743 (1983) (rational relationship to alleged claims is insufficient to constitute particularized need); United States v. Cole, 755 F.2d 748, 759 (11th Cir.1985) (unsubstantiated allegations do not satisfy particularized need standard).

“The district court found that [Chester, Greeson, Honchell and Perez] failed to show particularized need. Without this showing, [Chester, Greeson, Honchell and Perez are] not entitled to grand jury materials, nor can we require those materials to be revealed. United States v. Liuzzo, 739 F.2d 541, 545 (11th Cir.1984). The district court’s finding on this issue is not clearly erroneous. The magistrate and district court reviewed extensively the Rule 6(e) issues in the case, as evidenced by the magistrate’s order denying [Chester, Gree-son, Honchell and Perez’] motion to dismiss the indictment, and the district court’s affirming order.

“Among other things, the district court found: First, that the serious prejudice asserted by defendants] was undermined by [their] year and a half delay before appealing the magistrate’s denial. Second, that the magistrate’s finding that the requisite particularized need had not been shown was not clearly erroneous. The only allegation found to approach particularized need was the allegation of fabricated documents, as to which the district court found that none came before the grand jury. Third, that defendants] made no attempt to particularize [their] sweeping request for grand jury records. Fourth, that, as to the transfer orders and letters, neither a showing of particularized need nor an explanation of how disclosure would assist in establishing government misconduct before the indicting grand jury. Fifth, that adopting the magistrate’s finding, the Houston and Atlanta grand jury investigations were not a single, joint investigation of the same individuals and transactions. Sixth, that the majority of the alleged violations occurred in relation to the Houston grand jury investigation with little or no impact on the Atlanta grand jury investigation. Seventh, that defendants] had not shown that any conduct, in Houston or Atlanta, had prejudiced [their] rights or ability to make a defense in this case. See Order of March 31, 1986.

“[Chester, Greeson, Honchell and Perez have] the burden of showing that the requested materials covered only the particularized need. Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1675. Here, the district court found that [Chester, Greeson, Honchell and Perez] made no attempt to limit or particularize [their] broad request for all grand jury records, or show how disclosure would assist [them] in establishing governmental misconduct before the indicting jury. These findings are not clearly erroneous. [Chester, Greeson, Honchell and Perez] must ‘show that these circumstances had created certain difficulties peculiar to this case, which could be alleviated by access to specific grand jury materials, without doing disproportionate harm to the salutary purpose of secrecy embodied in the grand jury process in order to justify a district court’s order of the production of grand jury documents.’ Liuzzo, 739 F.2d at 545. This [they have] not done.”

We have reviewed the briefs and record in this case and affirm on Issues I and II on the basis of that review. With respect to Issue III — Governmental Misconduct— we affirm the district court on the basis of the holding in the Elliott opinion, by which we are bound.

AFFIRMED.

1 . One of the appellants, Terrance Chester, also raises the issue that "the government improperly withheld from him information regarding witnesses, including co-conspirators, informants and others who witnessed and/or participated in the commission of the indicted crimes.” We relegate this issue to a footnote because we find it to be without merit and it will not be further discussed.

2 . All of the defendants arrested in this case, save the deceased T. Lamar Chester, have either pleaded guilty (some "conditionally") or have been tried and convicted. Apparently one of the defendants named in the indictment (Jose M. Galan) has never been arrested. However, the government in its brief says that the "sole remaining defendant Elliott was tried and convicted in July, 1986, and later sentenced."

3 . The most compelling testimony at the hearing which we have received was submitted by the government to the magistrate in camera.

4 . The material was obtained by this court as a result of its August 26, 1987 Order to Supplement the Record.

5 . In Greeson’s brief filed with this court, she raises the point that she was compelled to give information against grand jury target Tony Chester and that the testimony she gave enabled the government to bring a case against Chester who consequently struck a plea bargain with the prosecutor and agreed to testify against Gree-son.

Relying upon United States v. Hampton, 775 F.2d 1479 (11th Cir.1985), Greeson asserts that it must be presumed that the cooperation of Tony Chester was derived from Joyce Greeson's compelled testimony.

That point was never raised in the district court. Though the government had the burden of proof on Greeson’s "immunity issue," it was not required to anticipate every possible position that might have been available to the mov-ant. Greeson must first have raised the issue in some manner in order to have placed a burden of proof upon the government on that issue.