The opinion of the court was delivered by: GILES
On February 25, 1980, the plaintiff, George X. Schwartz ("Schwartz"), filed this civil complaint seeking injunctive and declaratory relief against defendants, the United States Department of Justice, the Federal Bureau of Investigation, Benjamin R. Civiletti, United States Attorney General, Peter F. Vaira, United States Attorney for the Eastern District of Pennsylvania, William H. Webster, Director of the Federal Bureau of Investigation, and the United States of America. Schwartz alleges defendants violated rights protected under the Fourth, Fifth, Sixth, Ninth, and Tenth Amendments of the United States Constitution, as well as violated various sections of the Code of Federal Regulations, the Rules of Civil Procedure, the Administrative Code relating to revelation of investigatory information, the Code of Professional Responsibility for attorneys, and the Local Rules of the Federal Court for the Eastern District of Pennsylvania, and 42 U.S.C. § 1985(3). Schwartz alleges, essentially, that he was and remains a target of an investigation conducted in concert by the defendants which has commonly come to be known as "ABSCAM." Schwartz asserts that beginning on February 3, 1980, there was massive, nation-wide media coverage of the alleged details of the ABSCAM investigation, including reports of information which was solely and entirely within the knowledge of the defendants and their agents or employees. Schwartz alleges, therefore, that the sources of that information could only have been the defendants. He alleges that the timing and content of the disclosures evidence a deliberate and malicious intent on the part of the defendants to defame and prejudice him and to violate his constitutional and statutory rights. As a result of these alleged malicious disclosures, Schwartz contends that he has suffered and continues to suffer irreparable harm to his personal and professional reputation and political career. The gravamen and focus of the entire complaint is the effect of the media coverage on two Grand Juries which are presently sitting and of which Schwartz believes he is an investigatory target. One of those Grand Juries was sitting at the time of the disclosures, allegedly investigating matters not related to ABSCAM. The second Grand Jury was convened, after the disclosures, specifically to investigate the implications of the prior ABSCAM governmental investigation. Schwartz requests that this court bar prospectively the issuance of any indictment from either of these Grand Juries which might name him as a criminal defendant, or that any such indictment be declared invalid. He also requests the court to enjoin the defendants from making any submission arising out of the ABSCAM investigation concerning him to any other Federal Grand Jury or other issuing authority for indictment, presentment or warrant. He also seeks the imposition of sanctions against defendants for contempt. On March 10, 1980, plaintiff filed an Amended Complaint which added a request for compensatory and exemplary damages.
Presently before this court is a motion addressed to the essence of the plaintiff's complaint, viz. a motion for stay of grand jury presentment. Plaintiff requested an expedited hearing based on his apparent belief that one or both Grand Juries would hand down indictments before mid-May, and possibly by May 1, 1980.
On April 23, 1980, the Department of Justice, representing all defendants, moved for a protective order barring all discovery against the defendants or, in the alternative, staying discovery pending a ruling on the motion to dismiss, or in the alternative, on a motion for summary judgment, also filed by the defendants. On April 23, 1980, oral argument was held on plaintiff's Motion for Stay of Grand Jury Presentment and defendants' Motion for Protective Order. The Motion to Dismiss has not yet been fully briefed by the parties and is not yet before the court for decision.
For the reasons set out below, the court shall vacate its order of April 24, 1980, and shall enter a further order denying Schwartz' motion for a stay of grand jury presentment and staying all discovery against defendants in this action until the court rules on the motion to dismiss or the alternative motion for summary judgment.
I. MOTION FOR STAY OF GRAND JURY PRESENTMENT
Schwartz' motion is premised on the assertion that pervasive and persistent publicity, all of which he contends could only have been instigated by the government itself, has so poisoned the atmosphere of the Grand Jury as to make impossible any fair and reasonable consideration of any claims of criminal activity which may be made against him. Plaintiff claims that the publicity has created "inherent and incurable prejudice" in the minds of the Grand Jurors.
Plaintiff alleges that the combination of extensive and unwarranted leaks of allegations by the defendants and the issuance of any resulting criminal indictment, in light of plaintiff's position as President of the Philadelphia City Council, will create injury to his reputation and standing in the community and require diversion of his time, energy and resources, all to his irreparable harm. He alleges that his injury would be greater by virtue of his public position than it would be if he were an ordinary individual, though he recognizes that such results are usually incidental to any Grand Jury indictment or subsequent criminal prosecution. He claims that even if the indictment is eventually quashed or even if he is exonerated at trial, unusually severe and irreparable harm already would have been done to him. However, he does not request by this motion a permanent injunction staying indictment or a quashing of any indictment. Rather, he seeks an opportunity to examine each Grand Juror and to attempt to prove the adverse effect of publicity on each of them. He requests a stay of indictment until such a voir dire procedure could be accomplished. The relief plaintiff requests is unprecedented. Indeed, plaintiff admits that there is no precedent for such a voir dire of Grand Jurors before an indictment issues, but argues that case law implies that such a procedure is, or should be, available.
In opposition, defendants argue that no case authority exists or could be so interpreted to support such a proposition and that to grant the motion would be an unwarranted intrusion into the independent and secret functioning of the Grand Jury. Further, the defendants argue that even post-indictment, no indictment has ever been quashed or dismissed as a result of pre-indictment publicity alone. They state that Schwartz could voir dire the Grand Jury after any indictment may issue and before any criminal trial so as to protect his rights fully and not subvert the established doctrines of Grand Jury secrecy and independence. The government argues that there is no right to an unbiased Grand Jury.
For his theory of entitlement to pre-indictment injunction and discovery, Schwartz relies almost entirely on dicta by Judge Frankel of the Federal District Court for the Southern District of New York in United States v. Sweig, 316 F. Supp. 1148 (S.D.N.Y.), aff'd on other grounds, 441 F.2d 114 (2d Cir. 1970), cert. denied, 403 U.S. 932, 91 S. Ct. 2256, 29 L. Ed. 2d 711 (1971). In denying a post-indictment motion for dismissal of an indictment due to pre-indictment publicity, Judge Frankel stated:
It may be (at least the court accepts for now, as defendants appear to do) that such "atmospheric" influences have to be dealt with by measures short of dismissing indictments when the sources are wholly non-official. But the interest in the integrity of the criminal process may require sterner measures of prophylaxis if the prosecution itself forgets its duty to be sensitive to the considerations making for wise exercise of such investigatory power. (citations omitted) (emphasis supplied).
Judge Frankel conceded, "This thought may proceed a small step beyond the lower-court precedents the Government cites." Id. He stated that it was "common" for courts to deny motions to quash indictments for failure to show actual prejudice resulting from pre-indictment publicity, and then cited cases which he thought "intimated" that a case of prosecution-inspired publicity might be different from other general pre-indictment publicity which was not government inspired, i.e., Silverthorne v. United States, 400 F.2d 627, 633-34 (9th Cir. 1968) (effect of pretrial publicity on petit jurors must be ascertained) (The relevant dicta in Silverthorne was relied upon by the First Circuit in United States v. Brien, 617 F.2d 299, 312-13 (1st Cir. 1980) for the proposition that a defendant is protected from any pretrial publicity taint of the Grand Jury by the burden-of-proof standards applicable at trial and by the unbiased deliberations of the petit jury); United States v. Nunan, 236 F.2d 576, 593 (2d Cir. 1956), cert. denied, 353 U.S. 912, 77 S. Ct. 661, 1 L. Ed. 2d 665 (1957) (affirming denial of motion to quash indictment and finding that Grand Jury's consideration of partially untrue pre-indictment publicity which induced the Grand Jury to investigate was consistent with Grand Jury's duty); and United States v. Kahaner, 204 F. Supp. 921, 922 (S.D.N.Y.1962) (discussed infra ). However, Judge Frankel's discussion played no part in his holding denying the defendants' motion. Defendant Sweig had presented to the court a large collection of newspaper stories which suggested that the sources were government personnel. Thereafter, affidavits were filed explicitly denying that the United States Attorney or his assistants had given out statements and the alleged information recounted by the press. The government admitted that an Assistant Attorney General in the Department of Justice had made a general statement in response to a press inquiry to the effect that Grand Juries were investigating the activities of one of the defendants. Despite this admission, Judge Frankel held that the defendant had failed to present a "concrete basis" for inferring that the government officials were responsible in any substantial degree for the generation of the pre-indictment publicity. The motion to dismiss the indictment was denied. Judge Frankel stated that it might be appropriate upon a post-trial motion to require a more precise record of the Assistant Attorney General's pre-indictment statement for appellate review. In addition, he stated that it might be appropriate to consider whether defendant should be permitted, post-trial, to review the Grand Jury minutes for the kind and amount of evidence which was before it and the relative impact of outside influences, should such a measure seem necessary and proper for purposes of appeal. Although he left open the possibility of post-trial attacks on the indictment due to alleged governmental misconduct in releasing prejudicial pre-indictment information, his opinion cannot reasonably be read as recognizing any right of a defendant to attack an anticipated indictment before it issues on the basis of pre-indictment publicity by the government.
Schwartz also relies on United States v. Dioguardi, 20 F.R.D. 33 (S.D.N.Y.1956), Beck v. United States, 298 F.2d 622 (9th Cir.), cert. denied, 370 U.S. 919, 82 S. Ct. 1558, 8 L. Ed. 2d 499 (1962), and United States v. Kahaner, 204 F. Supp. 921 (S.D.N.Y. 1962), aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 835 and 836, 84 S. Ct. 62 and 74, 11 L. Ed. 2d 65 (1963). These cases do not aid plaintiff but rather support the government's position. In each there was a post-indictment attack on the indictment during the course of the subsequent criminal proceeding. In each case, the respective defendants failed to meet their burden of showing that the Grand Jury deliberations had been affected by pre-indictment publicity to the extent that due process had been denied. This was so even though it was alleged that the pre-indictment publicity had been generated by the government itself. United States v. Kahaner, supra. Further, while recognizing the propriety of a post-indictment attack in certain instances, nowhere do those cases suggest that an attack should be allowed before an indictment issues.
In Beck, supra, the Ninth Circuit found that vast quantities of media publicity were being disseminated about the defendant, a well-known labor figure, at the time the Grand Jury returned indictments. The defendant attacked those indictments as infringements of his asserted right to an unbiased Grand Jury. Following an in camera examination of the minutes of the Grand Jury, the trial court had found no evidence that the jury was prejudiced or that any member had been affected by the publicity. It ruled that a specific showing of prejudice was necessary and had not been made. The holding was affirmed. Nowhere did the court ...