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BARRY v. UNITED STATES

June 27, 1990

MARION S. BARRY, JR., Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants


Aubrey E. Robinson, Jr., Chief United States District Judge.


The opinion of the court was delivered by: ROBINSON, JR.

AUBREY R. ROBINSON, JR., CHIEF UNITED STATES DISTRICT JUDGE

 In Barry v. United States, 275 U.S. App. D.C. 218, 865 F.2d 1317 (D.C. Cir. 1989), the Court of Appeals remanded this case for a determination whether defendants unlawfully disclosed grand jury secrets as alleged by plaintiff. Reversing this Court's finding that plaintiff had not made out a prima facie case of such disclosures, the court above ordered an evidentiary hearing, at which defendants "may respond to Mayor Barry's allegations." Id. at 1326. This hearing took place May 4, 1990. Following a review of the entire record in this matter, and for the reasons that follow, the Court finds that the Government did not violate Fed. R. Crim. Pro. 6(e) as alleged. Consequently, the Court will dismiss plaintiff's claims and enter judgment in defendants' favor.

 I. Scope of Plaintiff's Case on Remand

 Plaintiff asserts that his prima facie case was not limited to any particular time period or set of news reports, relying in large part upon his and the Court of Appeals' references to the possibility of a "pattern or practice" of illegal grand jury disclosures. *fn1" In contrast, the Government attempts to limit this Court's consideration of the pattern or practice allegation to the period following mid-1987, and to limit plaintiff's case generally to a fixed universe of some thirty-four newspaper articles. *fn2"

 The answer lies somewhere in between. The Court of Appeals was not particularly clear on the extent, or indeed the consequence, of plaintiff's prima facie case. There is no question that one article, Mayor of Washington is Subject of Perjury Inquiry by Grand Jury, N.Y. Times, Aug. 29, 1984, at A1, col. 3, "constituted a prima facie violation of Rule 6(e)(2)." Barry, 865 F.2d at 1325. Upon this finding, the Court of Appeals directed this Court "to look further into this violation . . . in order to determine whether there has been a pattern or practice of impermissible disclosures of grand jury materials which, if proven, would justify civil contempt sanctions and/or injunctive relief under Rule 6(e)(2)." Id.

 Two other articles "raise[d] questions regarding possible improper Government disclosures:" Ex-City Worker is Jailed After Refusing to Testify, Washington Post, Aug. 10, 1984, at A1, col. 4, and Karen Johnson Jailed for Contempt, Loses Job, Washington Times, Aug. 10, 1984, at 1A, col. 3. Thus, the New York Times article clearly made out a prima facie case, and the Post article "suggests the same." Barry, 865 F.2d at 1325-26.

 This Court finds that a fair and honest reading of the language chosen by the Court of Appeals requires a reexamination of all of the news articles presented. Had the court above meant to limit the inference of unlawful disclosure to one article as the Government suggests, its reference to a possible pattern or practice would have been completely unnecessary. The Government's claim that plaintiff has pleaded the alleged pattern or practice as beginning in 1987 is denied by the Court of Appeals' direction that it be considered in connection with the 1984 New York Times article. While plaintiff is correct, therefore, that his pattern or practice allegation extends to the 1984 materials, his case is indeed limited to the articles presented to the Court of Appeals.

 At this juncture, rather than with a view toward the establishment of a prima facie case, the Court's task is to review the entirety of the record, now including the Government's evidentiary materials, to determine the ultimate question for decision: whether by pattern, practice or otherwise, "the [defendants] have unlawfully disclosed matters occurring before the grand jury." Barry, 865 F.2d at 1326.

 II. The Merits

 The establishment of plaintiff's prima facie case shifted the burden to the Government "to come forward with evidence to negate" plaintiff's showing. United States v. Eisenberg, 711 F.2d 959, 964 (11th Cir. 1983). The Court of Appeals here recognized the justification for this exercise: the Government "must now respond, because they are in the 'best position to know whether [they are] responsible for a violation' of the Rule." Barry, 865 F.2d at 1326 (quoting Lance, 610 F.2d at 219). More specifically, what the Government "knows" or can determine in this regard is what actually occurred before the grand jury, whether the purported grand jury disclosures are accurate, the identities of its employees with access to any of the grand jury information disclosed, and whether these individuals in turn provided any such information to the media. The Government's response, which meets the burden assigned it and negates the prima facie case, is as follows:

 A. The August 29, 1984 New York Times Article

 This article opens with an unattributed statement that a federal grand jury is "looking into drug use among city employees" and had asked plaintiff in January 1984 whether he obtained cocaine from former city employee Karen Johnson. Citing "law-enforcement officials familiar with" the grand jury testimony of plaintiff, the article continues that plaintiff denied that he had obtained cocaine from Johnson, and further denied that he was a "cocaine user." Also, "according to several officials," the grand jury heard testimony contradicting ...


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