In Re Grand Jury Investigation No. 78-184. Sells, Inc., Peter A. Sells, Fred R. Witte v. United States

Peter A. Sells, Fred R. Witte, and Sells, Inc., appeal from the district court’s order under Federal Rule of Criminal Procedure 6(e) granting the Civil Division of the Department of Justice access to documents, exhibits, and testimony acquired by a federal grand jury. The United States urges us to dismiss the appeal for want of jurisdiction. We uphold appellate jurisdiction and reverse.

In 1974, Special Agent Edwin Wordell of the Internal Revenue Service began a combined civil and criminal administrative investigation of Sells, Witte, and Sells, Inc. He issued administrative summonses for various corporate records of Sells, Inc. Sells, Inc., refused to comply with the administrative summonses. Wordell obtained a district court order enforcing the summonses on July 29, 1975, but his investigation was further delayed by a stay of enforcement pending appeal of the order to this court. 1

In May 1977 a federal grand jury was convened to investigate whether Sells, Witte, and Sells, Inc., had criminally defrauded the United States or evaded the federal income tax. The grand jury issued summonses to Sells, Witte, and Sells, Inc., for many of the materials previously sought by…

dissenting:

I dissent for, in my view, the issue which the appeal raises here is moot.

This is an appeal from an order of the district court made December 18, 1978, releasing grand jury records from the secrecy provision of Title 18 U.S.C.A. § 3326 (1977), Fed.R.Crim.P. 6(e). Since the effect of the order was never stayed, Civil Division attorneys for the Justice Department have had full access to all the minutes, books, and records of the grand jury’s criminal investigation of these appellants. Even if we should hold that the district court erroneously permitted such disclosure, our rever *1193 sal cannot restore any vestige of secrecy, any more than we can unring a bell. It seems unrealistic to suggest that, after more than two years of unrestricted use of the material by government attorneys and their staff, any shred of relevant information remains unexplored to which this now tattered veil of secrecy might give shelter.

Moreover, the appellants have a remedy more direct than this appeal. Since the record indicates that the government has commenced a civil suit against them, one in which such grand jury records will most surely be offered as evidence, appellants can at that…

642 F.2d 1184 81-1 USTC P 9373 In re GRAND JURY INVESTIGATION NO. 78-184. SELLS, INC., Peter A. Sells, Fred R. Witte, Appellants, v. UNITED STATES of America, Appellee. No. 78-3709. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 9, 1980. Decided April 2, 1981. Arlington Ray Robbins, San Diego, Cal. (argued), Daniel B. Hunter, Hunter & Ryan, E. Mac Amos, Jr., McWilliams, Amos & Curnow, San Diego, Cal., on brief, for appellants. Stephen D. Altman, Dept. of Justice, Washington, D.C., for appellee; J. Roger Edgar, Washington, D.C., on brief. Appeal from the United States District Court for the Southern District of California. Before FARRIS and NELSON, Circuit Judges, and CURTIS, * District Judge. FARRIS, Circuit Judge: 1 Peter A. Sells, Fred R. Witte, and Sells, Inc., appeal from the district court's order under Federal Rule of Criminal Procedure 6(e) granting the Civil Division of the Department of Justice access to documents, exhibits, and testimony acquired by a federal grand jury. The United States urges us to dismiss the appeal for want of jurisdiction. We uphold appellate jurisdiction and reverse. 2 In 1974, Special Agent Edwin Wordell of the…