United States v. William Wayne Nix, Jr., Ralph D. Osborne v. United States

concurring:

I concur in the majority’s holding that the district court erred in releasing grand jury transcripts to plaintiffs’ counsel in the Empire Motors litigation pursuant to an ex parte petition from the Assistant United States Attorney. I disagree, however, with the majority’s statement that there may be “unusual cases” in which it would be appropriate for the government to employ the ex parte procedure permitted by Rule 6(e)(3)(D) on behalf of a private party. Under a proper reading of Rule 6(e) and its accompanying comments, it is clear that ex parte proceedings are only permissible when the government is the real party in interest or when the government acts on behalf of a state or subdivision thereof.

Rule 6(e) makes a basic division between disclosures at the behest of the government and those at the behest of private parties. Where the government seeks the disclosure of information it can do so at an ex parte hearing. When a private party seeks that same information, the Rule provides precisely the opposite. There must be written notice to interested parties and a reasonable opportunity for them to appear and be heard. By allowing the government to act as the agent…

Opinion by Judge T.G. NELSON; Concurrence by Judge Reinhardt.

OVERVIEW

Ralph Osborne (Osborne) appeals two district court orders which permitted the disclosure of grand jury transcripts to the plaintiffs in a separate civil case in which he was a cross-defendant. He contends that the district court erred because it granted an ex parte request for disclosure in violation of Fed.R.Crim.P. 6(e). We agree that notice should have been given before the transcripts were disclosed. Therefore, we vacate and remand with instructions that the district court develop an appropriate remedy.

FACTS AND PROCEDURAL HISTORY

In 1988, Salvatore Ruscitti and others filed a class action suit in the Superior Court of California against Empire Motors and others. Osborne, a former owner of Empire Motors, was named as a cross-defendant in the case. Some months later, Ruscitti was murdered. A federal grand jury was empaneled and heard testimony from a number of people, including Osborne.

Will Nix, Osborne’s stepson, and several others were indicted on federal charges arising from the murder. Three defendants pleaded guilty in federal court, and the case *349 was dismissed as to the remaining defendants…

21 F.3d 347 UNITED STATES of America, Plaintiff, v. William Wayne NIX, Jr., Defendant. Ralph D. OSBORNE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 92-50705. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 8, 1993. Decided April 8, 1994. R.J. Coughlan, Jr., Coughlan, Semmer & Lipman, San Diego, CA, for petitioner-appellant. Larry A. Burns, Asst. U.S. Atty., San Diego, CA, for respondent-appellee. Appeal from the United States District Court for the Southern District of California. Before: REINHARDT, T.G. NELSON, Circuit Judges, and KAUFMAN, * District Judge. Opinion by Judge T.G. NELSON; Concurrence by Judge Reinhardt. T.G. NELSON, Circuit Judge: OVERVIEW 1 Ralph Osborne (Osborne) appeals two district court orders which permitted the disclosure of grand jury transcripts to the plaintiffs in a separate civil case in which he was a cross-defendant. He contends that the district court erred because it granted an ex parte request for disclosure in violation of Fed.R.Crim.P. 6(e). We agree that notice should have been given before the transcripts were disclosed. Therefore, we vacate and remand with instructions that the…