Unpublished Disposition, 911 F.2d 738 (9th Cir. 1990)

MEMORANDUM

Zarate appeals from an order of the district court holding him in civil contempt pursuant to 28 U.S.C. § 1826 for refusing to comply with a court order directing him to testify and give evidence before a grand jury. The district court had jurisdiction pursuant to 28 U.S.C. § 1826 and 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We review a district court's adjudication of contempt for abuse of discretion. United States v. Grant, 852 F.2d 1203, 1204-05 (9th Cir. 1988). We affirm.

The district court "should order disclosure of grand jury transcripts only when the party seeking them has demonstrated that a 'particularized need exists ... which outweighs the policy of secrecy.' " United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986) (citation omitted). Because we have held that a request for grand jury transcripts is "within the sound discretion of the trial court," id., it follows that the district court's refusal to disclose sealed documents should be reviewed for an abuse of discretion.

Zarate contends that absent exceptional circumstances he should have access to the documents filed under seal by the government. The government filed the documents in opposition to Zarate's claim that the government was improperly using the grand jury to prepare a previously indicted case. Zarate relies on In re Grand Jury Proceedings (Schofield), 486 F.2d 85 (3d Cir. 1973), and our decision in United States v. Dinsio, 468 F.2d 1372 (9th Cir. 1973).

Schofield does not control this case. Here, the government has filed materials detailing a complex grand jury investigation into the manufacture of methamphetamine. The materials cannot be characterized as merely "disclosing that the matters requested by the subpoena are relevant to an investigation it is conducting." 486 F.2d at 93. Thus, the government's declaration is not the sort of document to which the lenient Schofield standard should apply.

Even if we were to adopt the test set forth in Schofield, this case presents extraordinary circumstances. The government's declaration contains very sensitive material detailing a complex investigation involving methamphetamine manufacturing and trafficking. The release of such material would likely result in harm to individuals. Thus, there are extraordinary circumstances that warrant denying Zarate's request for disclosure of the sealed documents.

Dinsio does not help Zarate for the same reason. Although in Dinsio we held that the government's affidavit, which was submitted to show the necessity for exemplars of Dinsio's finger and palm prints, must be submitted to Dinsio and her counsel and that in camera disclosure to the district judge was not enough, we were careful to note that " [n]othing in the record ... provides any basis upon which we could conclude that these disclosures could or would impermissibly compromise the secrecy of the grand jury proceedings. 468 F.2d at 1393-94.

In In re McElhinney, 698 F.2d 384 (9th Cir. 1983), we held:

If the government objects to disclosure of the supporting affidavits on secrecy grounds, the district court must determine in camera whether sensitive materials can be excised and still give the witness any relevant information. The witness then must demonstrate to the court that a challenge to the electronic surveillance can be supported by the papers then in hand, without introduction of additional evidence, and without the necessity of a plenary hearing. The court may decide that the affidavits, apart from necessarily secret information, are of no value to the witness, but that, considered as a whole, they are sufficient to support the surveillance.

Id. at 385-86 (citation omitted). Under this standard, a review of the sealed documents indicates that information in those documents was both too sensitive to be released and of no use to Zarate in making his argument. In light of the sensitive nature of the sealed documents, the district court did not abuse its discretion by denying Zarate access to those documents.

Zarate claims that the government is improperly using the grand jury to prepare for the trial of Garrett. An indictment filed on December 1, 1989, charged Garrett with conspiracy to manufacture, possession with intent to distribute and distribution of methamphetamine. The indictment also charged Garrett with related possession, attempt and firearm counts. The Assistant United States Attorney who is prosecuting the indictment is the same prosecutor who questioned Zarate before the grand jury.

The government contends that Zarate does not have standing to challenge a grand jury subpoena on the ground that it constitutes an abuse of the grand jury process. We disagree. See In re Grand Jury Proceedings (Pressman), 586 F.2d 724, 725 (9th Cir. 1978) (reaching the merits of appellant witnesses' argument on this issue); see also United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988) (suggesting that a nonparty grand jury witness may object to jurisdiction of the grand jury to inquire).

We have held that the government may not use the grand jury for the sole purpose of pretrial discovery. United States v. Star, 470 F.2d 1214, 1217 (9th Cir. 1972). Here, a review of the materials filed by the government under seal indicates that the current investigation is not being used to investigate the already indicted cases. The scope of the current investigation includes charges and activities which are not the subject of the already indicted cases. In consideration of the contours of the current investigation it appears that the government is not abusing the grand jury process. The grand jury subpoena is not being used to conduct discovery or to prepare the pending indicted cases for trial. Thus, the district court's conclusion that the subpoena of Zarate was for a proper purpose was not erroneous.

The district court did not abuse its discretion in refusing to disclose the sealed documents to Zarate and it was correct in concluding that the government was not improperly using the grand jury process to prepare an already indicted case. Therefore, the district court did not abuse its discretion by holding Zarate in contempt.

Zarate's motion for bail pending appeal is denied as moot. Court reporter Bates's motion for an extension of time to file the reporter's transcript is granted.

AFFIRMED.

FERNANDEZ, Circuit Judge, may subsequently file a concurring statement.

FERNANDEZ, Circuit Judge, concurring:

I concur in the result and in everything the main memorandum, which was filed August 10, 1990, says regarding the merits of this case.

I write separately, and briefly, for the sole purpose of stating that, in my opinion, no case of ours or of the Supreme Court has held that a mere witness before the grand jury can complain that his testimony will be used in a pending trial of another person. Permitting the challenge, as the Court does here, can result in serious delays. In fact, if grand jury witnesses who are not targets can delay their questioning for months by concocting a series of attacks on the purposes and motives of the institution, investigations will be seriously hampered. Cf. United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 618-619, 38 L. Ed. 2d 561 (1974); United States v. Dionsio, 410 U.S. 1, 93 S. Ct. 764, 772-73, 35 L. Ed. 2d 67 (1973).

That is particularly true because, regardless of the effect on some third person, the witness is simply not affected in any legally cognizable way whatever. See Calandra, 414 U.S. at 345, 94 S. Ct. at 618-19. In this case, for example, whether Zarate's testimony is or is not used against Garrett is beside the point. Zarate has no legitimate reason to withhold that testimony until the time of trial, at which time he could surely be subpoenaed to give his testimony in court.

In short, Zarate has no standing to raise his challenge. Of course, as the main memorandum points out, even if he did have standing, his attack must fail on the merits.

Therefore, I concur.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.