ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Misc. No. 79-0680)
Before Seitz, Chief Judge, and Gibbons and Rosenn, Circuit Judges.
Robert A. Wright, a state trial judge, appeals from an order of a federal district judge establishing procedures for disclosure of federal grand jury materials to George Neagle, a defendant in a state criminal trial before the appellant.
During 1979, a federal grand jury in the Eastern District of Pennsylvania was investigating Leonard R. Milano for various criminal activities. After the grand jury investigation had begun, Milano was shot and wounded along with Thomas Manley. Manley died as a result of the wounds, but Milano survived.
Thereafter, George Neagle was charged by the Commonwealth of Pennsylvania with several offenses arising out of the shooting incident involving Milano and Manley. His case was scheduled on the appellant's docket. Because it appeared that Milano would be a witness at Neagle's state trial, Neagle made a motion in federal district court for disclosure of certain information the grand jury had on Milano. The motion was served on the state prosecutor and the United States Attorney. It was not served on appellant.
The district court entered an order directing the United States Attorney to compile all grand jury material pertinent to Neagle's request. The United States Attorney was then directed to transport the information to the appellant's chambers and to consult with him about what evidence would constitute Brady material. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The United States Attorney was to get a recommendation from the appellant as to disclosure and then communicate that recommendation to the district court. At that time, the district court would determine whether Fed.R.Crim.P. 6(e) permitted disclosure. The district court reasoned that this procedure was necessary because it was unfamiliar with the facts surrounding the state proceeding.
Although the appellant was not a party in the district court, he has taken this appeal to challenge the procedure employed by the district court. The appellees are the United States Attorney and Neagle. The state prosecutor is not an appellee.
At the outset, although the parties have not considered the issue, we must determine whether the appellant has standing to appeal the procedures set out in the order. To decide this question, an understanding of exactly what the district court's order contemplated vis-a-vis the appellant is necessary.
The crucial portions of the order provide:
2. After the United States Attorney has reviewed the evidence . . ., he shall transport all of the evidence pertaining to the requests . . . to the chambers of (the appellant), and shall meet with the State Judge at the State Judge's earliest convenience.
3. The United States Attorney shall consult with the State Judge about the contents of the evidence and shall communicate his views to the State Judge as to what evidence may constitute Brady material, so that the State Judge may make a fully informed determination of what material ought to be ...