In Re Federal Grand Jury Investigation of Possible Civilrights Violations Pertaining to the Death Ofkenneth Rex Mcelroy.appeal of Del F. Clement.in Re Federal Grand Jury Investigation of Possible Civilrights Violations Pertaining to the Death Ofkenneth Rex Mcelroy.appeal of Frank Aldridge, Respondent,united States of America, Petitioner-appellee, 718 F.2d 875 (8th Cir. 1983)

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U.S. Court of Appeals for the Eighth Circuit - 718 F.2d 875 (8th Cir. 1983)

Submitted Sept. 14, 1983. Decided Oct. 13, 1983


Ronald S. Reed, Jr., Morton, Reed & Counts, St. Joseph, Mo., for aldridge.

Mark H. Wissehr, St. Joseph, Mo., for Clement.

Robert G. Ulrich, U.S. Atty., Kansas City, Mo., for petitioner-appellee.

Before ARNOLD and FAGG, Circuit Judges and DUMBAULD* , Senior District Judge.

DUMBAULD, Senior District Judge.

The well-publicized killing of one Kenneth Rex McElroy by gunfire in Skidmore, Nodaway County, Missouri, on July 10, 1981, led to a federal grand jury investigation as well as investigation by State authorities. The federal grand jury inquiry was directed toward possible civil rights violations. Appellant Frank Aldridge was a witness, having been granted immunity. The grand jury has been discharged. No indictments were returned. Appellant Del F. Clement was a potential suspect.

On October 28, 1982, upon application of the United States Attorney, District Judge Howard F. Sachs entered an order pursuant to Rule 6(e) (3) (C) (i) FRCrP authorizing disclosure of the grand jury transcript of Aldridge's testimony to the State prosecuting attorney for Nodaway County, subject to appropriate requirements and safeguards. Appellants objected to the order.

The prosecuting attorney completed his examination of the transcript and returned it to the custody of the federal court. The prosecuting attorney represents that he has retained no copies of the transcript. No State prosecution was instituted following such perusal of the transcript.

It was agreed and represented to this Court in open court at the argument on September 14, 1983, by the United States Attorney that no further disclosures of the transcript may be made by the Government without a fresh application to the District Court for disclosures under Rule 6 FRCrP. We accept this representation, and we so construe the order of the District Court.

Accordingly it seems clear that the order of October 28, 1982, is now functus officio and that the instant case is moot.

In view of this determination it is not necessary for us to consider at this time the questions as to appellants' standing which the Government has raised.

For the foregoing reasons the appeals are dismissed as moot.

 *

The Honorable Edward Dumbauld, Senior District Judge of the Western District of Pennsylvania, sitting by designation