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BARRY v. UNITED STATES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


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.

MEMORANDUM

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.

  Finally, the Court of Appeals noted the "whole spectrum of news articles" before it, in which "the precise attribution of a source in one . . . may give definition to a vague source reference in others because of their context in time or content." Id. (quoting In re Grand Jury Investigation (Lance), 610 F.2d 202, 219 (5th Cir. 1980)).

 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 plaintiff's statements, and was then "examining whether he committed perjury." *fn3"

 First, the Government's evidentiary submission reveals that portions of this report are not accurate. For example, the focus of the grand jury's inquiries was cocaine distribution by Karen Johnson, not "drug use among city employees;" the next step taken by the grand jury would have been to investigate Johnson's suppliers. Declaration of Robert R. Chapman (hereinafter "Chapman Decl.") at 33. In addition, without disclosing secret information here, it can be said that the substance of plaintiff's testimony was not as this article reported it. Id. at 34. Finally, the grand jury at that time had not yet turned to any investigation of plaintiff's alleged perjury. Id. These errors substantially weaken the prima facie inference of unlawful disclosure by Government officials. While the Court might take a reporter's statement of reliance on Government sources as true in assessing the prima facie case, it need not do so now. These inaccuracies seriously undermine the credibility of the reporter, or indirectly, that of his source.

 Second, the Government's submission shows that much of the information disclosed had been made public previously. On August 11, 1984, plaintiff's counsel stated in a newspaper interview that, had Karen Johnson testified, she would have "substantiate[d] Barry's statement to federal authorities that he did not obtain cocaine from her." See Barry-Johnson Relationship Described, Washington Post, Aug. 11, 1984, at A1, col. 2. Earlier articles had reported with attribution only to "informed sources" that the grand jury asked whether he had obtained cocaine from Johnson, see City Employe Indicted on Cocaine-Selling Charges, Washington Post, Apr. 19, 1984, at A1, col. 2, and that plaintiff denied doing so. See D.C. Employe Sentenced, Subpoenaed, Washington Post, July 24, 1984, at A1, col. 5.

 The information before the grand jury in supposed contradiction to plaintiff's testimony had been disclosed in part during the sentencing of Karen Johnson, see Gov't Sentencing Memo. at 4, Def. App. at 32, and widely reported thereafter with attribution only to vague sources. See D.C. Employe Sentenced, Subpoenaed, Washington Post, July 24, 1984, at A1, col. 5 (reporting that tape recorded conversation detailing sales to plaintiff presented to grand jury); Drug Figure's Story Could Implicate D.C. Officials, Washington Times, Aug. 3, 1984, at 8A, col. 1 (reporting substance of Government sentencing memorandum and that identity of drug buyer "believed to be" plaintiff).

 The Court does not note these earlier reports because they would excuse any subsequent Government disclosure. To the contrary, Rule 6(e) does not create a type of secrecy which is waived once public disclosure occurs. The Government is obligated to stand silent regardless of what is reported, accurate or not, by the press. The repetition of information which the press had widely reported earlier, however, should not create a particularly strong inference of government disclosure. By the time the New York Times article was published, a myriad of individuals were "familiar with" plaintiff's testimony. It is by no means clear that the source for this publication was in fact a person covered by Rule 6(e).

 To the extent any doubt remains whether unlawful disclosure occurred, the Government's proffer of affidavits fully answers it. Special Agent William J. Hotop of the FBI conducted an investigation into the matters disclosed in this article, specifically to determine the identity of government personnel with knowledge of those matters. Declaration of William J. Hotop at 1. Reasonable inquiries revealed 135 such persons. Excluding members of the grand jury, grand jury witnesses and their attorneys, a probation officer, and two D.C. police officers, 84 federal government employees fall within the ambit of both Rule 6(e) and plaintiff's allegations. *fn4" See id. at 3-4.

 The Government has proffered affidavits signed by each of these 84 persons, save two, *fn5" unequivocally denying any unlawful disclosure. The Court of Appeals held that two such affidavits would not suffice to negate the inference of a Rule 6(e) violation, but left open the possibility that more might do so. See Barry, 865 F.2d at 1325 n. 9. The Government now offers denials from more than a few of the officials with grand jury access. With two exceptions, every Assistant United States Attorney, Department of Justice official, Drug Enforcement official and FBI Agent, in addition to support staff from each agency, has denied that he or she was the source of the leaks alleged by plaintiff. With only the words of the New York Times article to counter them, *fn6" these affidavits effectively negate any inference of unlawful disclosure.

 B. The Washington Post and Times Articles of August 10, 1984

 The Court of Appeals singled these articles out because the first "mentions certain grand jury testimony relating to an investigation of alleged D.C. Government corruption and also cites the comments of an allegedly 'knowledgeable law enforcement official' about that testimony," and because the second reported comments allegedly made by an Assistant United States Attorney indicating that a narcotics investigation would be "continuing." See id. at 1325.

 The Post article contains only one paragraph disclosing grand jury information. The article states that plaintiff, "in an interview with federal prosecutors and in testimony to the grand jury in January, said he had a close personal relationship with Johnson but flatly denied buying or receiving cocaine from her, sources said." Ex-City Worker is Jailed After Refusing to Testify, Washington Post, Aug. 10, 1984, at A1, col. 4. Again, the Court notes that this information had been published earlier, also with the vague and unqualified reference to "sources." See D.C. Employe Sentenced and Subpoenaed, Washington Post, July 24, 1984, at A1, col. 5. The inference of Government disclosure is a fragile one at best and has effectively been negated by the Government's affidavits.

 The Post article also discusses the grand jury appearance and subsequent jailing of Karen Johnson. This information does not fall within Rule 6(e), since the contempt order was read in open court. Nor does the discussion of the tape recording obtained by police investigation implicate Rule 6(e). *fn7" The article cites a "knowledgeable law enforcement" source for the unremarkable proposition that grand jury witnesses facing contempt rarely decline to testify. That this self-evident statement came from some member of the executive branch does not buttress claims that true grand jury disclosures elsewhere in the article also have the Government as their source. See Lance, 610 F.2d at 218.

 The Washington Times article reports that "Assistant U.S. Attorney Robert R. Chapman said that despite Johnson's refusal to cooperate the grand jury will continue its narcotics investigation." Karen Johnson Jailed for Contempt Loses Job, Washington Times, Aug. 10, 1984, at 1A, col. 3. The bulk of the article recounts events surrounding Johnson's contempt of Court. It also states that "neither prosecutors nor [Johnson's attorney] would disclose what questions Johnson refused to answer" and that "the U.S. Attorney's Office has refused to define the scope of its investigation . . . ." Id. Nonetheless, "one source said that the Johnson indictment likely will lead to 'indictments farther up the ladder.'" Id.

 Chapman himself denies making the statement attributed to him as it is reported. He concedes only that he said something to the effect that "it is continuing." See Chapman Decl. at 28. By itself, such a statement cannot be said to reveal the content or direction of the grand jury's work. The statement by an unspecified source is speculative, and not entirely accurate, since the investigation would pursue individual's higher up the narcotics distribution ladder, not the ladder of Government as one might infer. This, in combination with the Government's affidavits, effectively rebut plaintiff's allegations.

 C. The Remaining News Reports

 1. 1984 News Reports

 No other 1984 news report creates a greater inference of unlawful disclosure than the August 1984 New York Times article. Most of the passages cited by plaintiff do not reveal information covered by Rule 6; *fn8" where such information is revealed, the reports typically cite "sources," "informed sources" or "sources familiar with the case." *fn9" Some passages are simply wrong. *fn10" Only one article, Further Indictments Seen in City Drug Case, Washington Times, Apr. 20, 1984, at 8A, col. 5, cites a "law enforcement official" for the statement that the indictment of Johnson could lead to indictments "higher 'up the ladder' -- in the distribution of cocaine." As noted above, the statement is speculative, and to the extent this statement implies that high city Government officials had become targets, it is incorrect. To the extent this or other articles accurately reveal grand jury information and implicate a Government source, the Government affidavits effectively rebut any inference of a Rule 6(e) violation.

 2. 1986-1987 News Reports

 The vast majority of reports offered by plaintiff during this period do not reveal grand jury material at all. The several references to police investigations among these articles cannot be remedied under Rule 6(e). *fn11" A number of articles rely on detailed, publicly filed search warrant returns and inventories. *fn12" Also, the grand jury issued a rather detailed subpoena to the custodian of plaintiff's official records. Compliance with this subpoena was publicly observed, and the report thereof refers merely to "sources" and "sources familiar with the inquiry." *fn13" While one other article arguably reveals other grand jury information, the article also cites only "sources." *fn14" Finally, reports of one witness' appearance before the grand jury, Jared Kinnon, *fn15" twice include references to his discussions with prosecutors. *fn16" The appearance itself was publicly observable. Kinnon's discussions with prosecutors outside the grand jury do not fall within Rule 6(e).

 In sum, detailed scrutiny of these news reports indicates that the Government had no role in the disclosure of any grand jury information during 1986 and 1987. Actual grand jury disclosures are few. In those cases where disclosure occurred, there are no precise governmental attributions upon which any inference could be made that similar unattributed revelations resulted from the same governmental source. In no sense do these reports support a finding of a pattern or practice of governmental disclosure.

 III. Conclusion

 The Government has met its burden by negating the inference of unlawful disclosure created by the news reports proffered by plaintiff. In each instance, the report did not reveal grand jury information, proved false, was attributable to vague sources, or was answered adequately by the Government's affidavits. The complete record before the Court does not in any way support a finding of Rule 6(e) violation. Judgment in this matter will therefore be entered for defendants.

 An appropriate Order accompanies this Memorandum.

 ORDER -- June 27, 1990, Filed

 Following the evidentiary hearing held May 4, 1990, and upon consideration of the entire record in this matter, it is by the Court this 27th day of June, 1990,

 ORDERED, that Plaintiff's claims be and hereby are DISMISSED with prejudice; and it is

 FURTHER ORDERED, that Judgment in this matter be and hereby is entered in favor of Defendants.


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