Gilbert v. United States ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JEFFREY CURTIS GILBERT; ALVITA
VAN BENS; ROBERT GREEN; MARTHA
GREEN,
Petitioners-Appellants,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee,
ROBERT ARSCOTT; PRESTON ASBURY;
JONATHON BEAN; RONALD LEDONNE;
KEVIN PUTNAM; GREGORY SWEITZER;
JAMES LOVE; SEUNG LEE; GERALD
No. 99-1602
POTTS; CHARLES L. FOBBS; RICHARD
A. FULGINITI; J. RICHARD SALEN;
DANIEL L. HUSK; F. MICHAEL
MCQUILLAN; STEPHEN J. RICKER,
Parties in Interest-Appellees,
v.
RUBIN BUTLER; MICHAEL H.
CARLSON; GREGORY J. PETON;
CHRISTOPHER J. BROPHY; ALLEN W.
DISCHINGER; WILLIAM B. EVARTT;
LEROY K. JAMES,
Parties in Interest.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-98-890-DKC)
Argued: October 27, 1999
Decided: January 13, 2000
Before MURNAGHAN, NIEMEYER, and TRAXLER,
Circuit Judges.
_________________________________________________________________
Affirmed in part, reversed in part, and remanded with instructions by
unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Terrell Non Roberts, III, ROBERTS & WOOD, River-
dale, Maryland, for Appellants. Donna Carol Sanger, Assistant United
States Attorney, Baltimore, Maryland; Jay Heyward Creech, Upper
Marlboro, Maryland, for Appellees. ON BRIEF: Christopher A. Grif-
fiths, ROBERTS & WOOD, Riverdale, Maryland, for Appellants.
Daniel Karp, ALLEN, JOHNSON, ALEXANDER & KARP, Balti-
more, Maryland; Ronald M. Cherry, MCGUIRE, WOODS, BATTLE
& BOOTHE, Baltimore, Maryland; Robert Morgan, MASON, KET-
TERMAN & MORGAN, Hunt Valley, Maryland; John H. West, III,
Baltimore, Maryland; Paul T. Cuzmanes, WILSON, ELSER, MOS-
KOWITZ, EDELMAN & DICKER, Baltimore, Maryland; Linda S.
Woolf, GOODELL, DEVRIES, LEECH & GRAY, Baltimore, Mary-
land; Baron L. Stroud, SHAPIRO & OLANDER, Baltimore, Mary-
land, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jeffery Curtis Gilbert ("Gilbert") appeals from the district court's
refusal to grant access to certain grand jury materials. Gilbert asserts
he is entitled to (1) the grand jury testimony of twenty-six law
2
enforcement officers who played various roles in Gilbert's arrest, and
(2) an FBI report furnished to the grand jury. We affirm in part,
reverse in part, and remand with instructions.
I.
In April 1995, Sergeant Ronald LeDonne and Corporals Robert
Arscott, Preston Asbury, Jonathon Bean, Kevin Putnam, and Gregory
Sweitzer of the Prince George's County T-70 tactical squad executed
a warrant for Gilbert's arrest. Gilbert was wanted for the murder of
a police officer and the T-70 team apprehended him at the apartment
of his girlfriend, Alvita Van Bens ("Van Bens"). The officers' use of
force in making the arrest led to Gilbert's hospitalization for multiple
injuries. As a result, Gilbert brought a § 1983 action in state court
against members of the T-70 team and Prince George's County alleg-
ing excessive force was used during the arrest. 1 See 42 U.S.C.A.
§ 1983 (West Supp. 1998). However, because Gilbert lost conscious-
ness early in the nocturnal raid and ensuing struggle, he has no recol-
lection of who caused his injuries. Van Bens, ushered from the
apartment shortly after the T-70 team's entry, caught only a glimpse
of the fray.
The defendants removed the suit to federal court, where discovery
was stayed because a grand jury was investigating the incident and
receiving testimony from many of the officers involved. In ordering
the stay in December 1996, a magistrate judge informed the parties
that discovery could commence at the earlier of the conclusion of the
grand jury investigation or March 31, 1997.
When the month of March passed, the grand jury was still investi-
gating. Gilbert, however, was anxious to begin his case and accord-
ingly issued deposition subpoenas for a number of officers. In
_________________________________________________________________
1 Van Bens, Robert Green, and Martha Green joined with Gilbert in
bringing the action. Van Bens' claims arise from her removal from the
apartment and the subsequent search of the premises. The Greens' claims
arise from the search of their home in conjunction with Gilbert's arrest.
Because Gilbert's claim of excessive force is the predominant claim, we
shall simply refer to "Gilbert" when discussing the § 1983 action and
related litigation.
3
response to Gilbert's subpoenas and other discovery requests, the T-
70 officers moved for a protective order and indicated their unwilling-
ness to discuss the arrest because of the grand jury investigation. By
insisting that discovery commence in the civil case while the criminal
investigation was ongoing, Gilbert created a situation in which the
officers were forced to choose between asserting their Fifth Amend-
ment rights, and hence saying nothing at deposition, or testifying with
the concern that anything they said could be used against them before
the grand jury. Recognizing that the grand jury investigation would
end in a few months, the magistrate judge informed Gilbert that she
would compel depositions, but if Gilbert elected to proceed with
depositions before the end of the investigation, he would be barred
from later reopening them. As a result, Gilbert had to choose between
forcing the depositions and probably obtaining the evidentiary benefit
of Fifth Amendment assertions,2 or waiting until the investigation was
over and possibly receiving the officers' deposition testimony.
With this understanding, Gilbert scheduled depositions for the T-70
officers while the grand jury investigation was still in progress. All
officers, except Arscott, asserted their Fifth Amendment privilege and
declined to answer questions. Though Arscott did answer the ques-
tions propounded, Gilbert complained that Arscott was less than
forthcoming and remembered very little about the conduct of the
other team members.
In October 1997, the grand jury investigation ended and no indict-
ment was issued. LeDonne, Putnam, and Sweitzer then responded to
Gilbert's interrogatories and requests for production. The three offi-
cers also offered to attend depositions if Gilbert would agree not to
mention at trial their earlier invocations of the Fifth Amendment. Gil-
bert, wanting both the adverse inference of the earlier Fifth Amend-
ment assertions and the officers' testimony, declined the offer and
filed a motion to reopen their depositions, which the court denied.
Unlike their colleagues, Asbury and Bean refused to provide Gilbert
_________________________________________________________________
2 "[T]he Fifth Amendment does not forbid adverse inferences against
parties to civil actions when they refuse to testify in response to proba-
tive evidence offered against them . . . ." Baxter v. Palmigiano, 425 U.S.
308, 318 (1976).
4
with any discovery and continued to invoke their Fifth Amendment
privilege.
Gilbert then filed a separate action, which is the subject of this
appeal, to gain access to grand jury materials pursuant to Federal Rule
of Criminal Procedure 6(e). Specifically, Gilbert asked for access to
the grand jury testimony of twenty-six law enforcement officials
including Asbury, Bean, Putnam, and Sweitzer;3 the physical evi-
dence collected after Gilbert's arrest and the FBI's report containing
the results of tests performed on the evidence; 4 and the original copy
of the Prince George's County police investigative file concerning
Gilbert's arrest and his alleged murder of a police officer.
The district court rejected Gilbert's request for the grand jury testi-
mony, finding no showing of a particularized need. As for the FBI
materials, the district court directed that the physical evidence be
turned over to Gilbert, but refused to order the release of the report
because Gilbert could obtain his own expert analysis. Lastly, the dis-
trict court found that Gilbert was entitled to the original police inves-
tigative file which had been turned over to the grand jury. Gilbert now
appeals the district court's decision denying him access to the grand
jury testimony of the officers and the FBI report.
II.
We review the district court's denial of access to grand jury materi-
als for abuse of discretion. See In re Grand Jury Proceedings, GJ-76-
4 & GJ-75-3, 800 F.2d 1293, 1299 (4th Cir. 1986); see also
Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399 (1959)
_________________________________________________________________
3 Sergeant LeDonne did not testify before the grand jury; Asbury,
Bean, Putnam, and Sweitzer testified before the grand jury under grants
of immunity. The other twenty-two officers whose testimony is sought
played various roles in the case such as briefing the T-70 team before the
raid, backing up the entry squad, or gathering evidence after Gilbert's
arrest. It is undisputed that only the T-70 squad was in the apartment
when Gilbert was subdued and injured.
4 Sundry items were collected from the apartment including clothing,
bedding, and carpet. The FBI also subpoenaed articles of clothing worn
by the T-70 officers during the arrest.
5
(noting that "Courts of Appeals have been nearly unanimous in
regarding disclosure as committed to the discretion of the trial
judge"). In light of the import of the grand jury's core functions,
secrecy is a hallmark of its proceedings. See Douglas Oil Co. v. Pet-
rol Stops Northwest, 441 U.S. 211, 218 (1979). However, Federal
Rule of Criminal Procedure 6(e) provides exceptions to the general
rule of secrecy. At issue in the present case is Federal Rule of Crimi-
nal Procedure 6(e)(3)(C)(i), which in pertinent part provides that dis-
closure may be made "when so directed by a court preliminary to or
in connection with a judicial proceeding." According to the Supreme
Court, the burden is on the applicant for disclosure of confidential
grand jury materials to establish "a strong showing of particularized
need . . . before any disclosure will be permitted." United States v.
Sells Eng'g, Inc., 463 U.S. 418, 443 (1983). In demonstrating particu-
larized need, the party must establish that (1) the material "is needed
to avoid a possible injustice in another judicial proceeding," (2) "the
need for disclosure is greater than the need for continued secrecy,"
and (3) the "request is structured to cover only material so needed."
Douglas Oil Co., 441 U.S. at 222. In balancing the need for secrecy
and disclosure, courts must be cognizant of the rationale behind grand
jury confidentiality.
First, if preindictment proceedings were made public, many
prospective witnesses would be hesitant to come forward
voluntarily, knowing that those against whom they testify
would be aware of that testimony. Moreover, witnesses who
appeared before the grand jury would be less likely to testify
fully and frankly, as they would be open to retribution as
well as to inducements. There also would be the risk that
those about to be indicted would flee, or would try to influ-
ence individual grand jurors to vote against indictment.
Finally, by preserving the secrecy of the proceedings, we
assure that persons who are accused but exonerated by the
grand jury will not be held up to public ridicule.
Id. at 219. Once the proceeding of the grand jury ends, the interests
of secrecy are reduced, but not eliminated. See id. at 222. "[S]tringent
protection of the secrecy of completed grand jury investigations may
be necessary to encourage persons to testify fully and freely before
future grand juries." Illinois v. Abbot & Assocs., Inc., 460 U.S. 557,
6
566 n.11 (1983). Because the Douglas Oil Co. balancing test is
"highly flexible" as well as "adaptable to different circumstances and
sensitive to the fact that the requirements of secrecy are greater in
some situations than in others," Sells Eng'g, Inc., 463 U.S. at 445, we
address Gilbert's request as follows: (1) the grand jury testimony of
the two T-70 officers who refused to provide any discovery and main-
tained their Fifth Amendment rights, (2) the grand jury testimony of
the two T-70 officers who offered to be redeposed if Gilbert agreed
not to use their earlier invocation of the Fifth Amendment at trial, (3)
the grand jury testimony of the remaining officers who have no per-
sonal knowledge of what happened while the T-70 squad was alone
with Gilbert in the apartment, and (4) the FBI report.
A.
Gilbert claims that the grand jury testimony of Corporals Asbury
and Bean should be disclosed. Asbury and Bean are the only officers
who have refused to provide Gilbert any discovery, while continuing
to invoke the Fifth Amendment. The district judge denied Gilbert's
request for Asbury's and Bean's grand jury testimony on the grounds
that they probably would not be allowed to testify at trial, see In re
Grand Jury Subpoena, 836 F.2d 1468, 1472 (4th Cir. 1988), and Gil-
bert could use their assertions of the Fifth Amendment as adverse
inferences. The district judge also observed that Gilbert could garner
the necessary information about the arrest from the other T-70 offi-
cers.
As a general matter, the discovery process is integral to the Federal
Rules and "a party is entitled . . . to discovery of any information
sought if it appears `reasonably calculated to lead to the discovery of
admissible evidence.'" Degen v. United States , 517 U.S. 820, 825-26
(1996) (quoting Fed. R. Civ. P. 26(b)(1)). However,"[a]ssertion of
the privilege against self-incrimination may disrupt or thwart civil liti-
gation and discovery in a wide variety of cases." In re Grand Jury
Subpoena, 836 F.2d at 1473. Even so, grand jury testimony should
never be used as a substitute for thorough discovery. See Lucas v.
Turner, 725 F.2d 1095, 1106 (7th Cir. 1984). In the present case, only
eight people were in the apartment during the arrest: Van Bens, Gil-
bert, and the T-70 squad. Van Bens was quickly ushered from the
room before the arrest and Gilbert was knocked unconscious early in
7
the altercation. This leaves only six individuals with personal knowl-
edge of the force used to control Gilbert. Discovery revealed that
Arscott struck Gilbert several times, LeDonne kicked Gilbert and
LeDonne saw Asbury kick Gilbert "on one or two occasions." J.A. at
797. But this scant information does not explain how Gilbert sus-
tained injuries requiring hospitalization.
While it is true that Asbury's and Bean's invocation of the Fifth
Amendment will be available to Gilbert at trial and Gilbert has gath-
ered some information through the discovery process, there is no sub-
stitute for personal accounts of the course of the arrest. And the T-70
officers are the only persons who can provide this information. Gil-
bert justifiably fears that unless he can piece together the course of
the arrest, his § 1983 action will be seriously weakened. At oral argu-
ment counsel for the officers averred that Gilbert had access to all
necessary information from other sources and therefore Asbury's and
Beans's grand jury testimony should not be disclosed. But when ques-
tioned by the court, counsel for the officers admitted that he could not
accurately represent that all relevant information was available, pre-
sumably because counsel had not seen the grand jury materials.
Accordingly, we conclude that Gilbert meets the first Douglas Oil Co.
factor because he has shown that grand jury testimony of Asbury and
Bean "is needed to avoid a possible injustice in another judicial pro-
ceeding." 441 U.S. at 222.
Likewise, Gilbert has demonstrated that the need for disclosure of
Asbury's and Bean's grand jury testimony outweighs the interests in
secrecy. Asbury and Bean have provided no discovery in the § 1983
action. As mentioned above, the number of officers with personal
knowledge of the arrest is limited and without details from the testi-
mony of the participants or eyewitnesses to the arrest, Gilbert's case
will be damaged from the lack of specificity needed to obtain a just
verdict. Importantly, throughout this litigation, the grand jury tran-
scripts have been Gilbert's only hope of obtaining Asbury's and
Bean's version of the arrest. Moreover, the interests of secrecy are
reduced because the grand jury investigation is long over. See In re
Grand Jury Proceedings, GJ-76-4 & GJ-75-3, 800 F.2d at 1301 (not-
ing that the need for secrecy diminishes when the grand jury investi-
gation ends and when there is a "[l]apse of time between the grand
jury proceedings and the motion for disclosure").
8
Finally, we find that the request for Asbury's and Bean's testimony
"is structured to cover only materials so needed." Douglas Oil Co.,
441 U.S. at 222. The grand jury investigation was apparently limited
to the officers' conduct during Gilbert's arrest. Because of the simili-
tude of the investigation and Gilbert's excessive force claim, Gilbert's
request for Asbury's and Bean's grand jury testimony is "limited to
that material directly pertinent to the need for disclosure." Id. at 224.
By requiring the disclosure of Asbury's and Bean's testimony, we lift
the veil of grand jury secrecy no more than is absolutely necessary
and so adhere to the Douglas Oil Co. admonition that disclosure be
no greater than needed. See id. at 222. Accordingly, we reverse the
decision denying Gilbert access to the grand jury testimony of Asbury
and Bean and remand to the district court for the release of Asbury's
and Bean's testimony to Gilbert.
B.
Gilbert also asks for Corporals Putnam's and Sweitzer's grand jury
testimony. As was the case with Asbury and Bean, the limited number
of persons with knowledge of the force used to subdue Gilbert, and
the likelihood that Gilbert's § 1983 action will suffer from this dearth
of information, support Gilbert's claim that he has demonstrated that
the grand jury testimony of Putnam and Sweitzer"is needed to avoid
a possible injustice in another judicial proceeding." Id.
Turning to the second Douglas Oil Co. factor, however, we con-
clude that Gilbert has failed to demonstrate that the interests in disclo-
sure of Putnam's and Sweitzer's grand jury testimony outweigh the
interests in secrecy. During the pendency of the grand jury investiga-
tion Gilbert issued deposition subpoenas to the T-70 officers.
Although Asbury, Bean, LeDonne, Putnam, and Sweitzer invoked
their Fifth Amendment privilege, Gilbert scheduled the depositions
knowing that he would be prohibited from reopening the depositions
after the grand jury proceedings concluded. Even though the magis-
trate judge attempted to persuade Gilbert to wait until the end of the
grand jury investigation to conduct depositions of the officers, Gilbert
elected to go forward cognizant that the officers would likely invoke
the Fifth Amendment. Unlike Asbury and Bean, however, Putnam
and Sweitzer offered to be redeposed if Gilbert agreed not to mention
at trial their earlier assertions of the Fifth Amendment. Wanting both
9
the adverse inference of the Fifth Amendment assertions and the offi-
cers' deposition testimony, Gilbert refused the offer and filed a
motion to reopen the depositions, which was predictably denied.
Unlike Asbury and Bean, who throughout this litigation have
refused to respond to written discovery or to provide testimony, Gil-
bert could have deposed Putnam and Sweitzer. The choice that the
officers' compromise posed was an election created by Gilbert him-
self in his press for the commencement of discovery before the con-
clusion of the grand jury investigation. Cf. Sells Eng'g, Inc., 463 U.S.
at 445 (stating that courts may "take into account any alternative dis-
covery tools available" to the party seeking disclosure of grand jury
materials); Lucas, 725 F.2d at 1106 (emphasizing grand jury testi-
mony is not a substitute for discovery). Because Gilbert could have
redeposed Putnam and Sweitzer, the fact that the grand jury investiga-
tion has concluded is not enough to tip the scales toward disclosure.
With the interests of secrecy counseling against disclosure, we do not
reach the remaining Douglas Oil Co. factor. Accordingly, the district
court did not abuse its discretion by denying Gilbert access to the
grand jury testimony of Putnam and Sweitzer.
C.
Gilbert also believes he is entitled to the testimony of twenty-two
other officers who testified in the grand jury investigation. However,
Gilbert has not shown that their testimony "is needed to avoid a possi-
ble injustice" in his § 1983 action. Douglas Oil Co., 441 U.S. at 222.
The twenty-two officers made themselves available for depositions,
but testified that they have no personal knowledge of what happened
between the T-70 squad and Gilbert. Gilbert, on the other hand,
claims that the officers are biased in favor of the T-70 squad and as
a consequence the twenty-two officers in their depositions failed to
recall significant details about the raid in order to protect the T-70
team. Gilbert's general assertions that memories may have faded or
that the officers withheld information to protect themselves or their
colleagues are insufficient to establish a need for their grand jury tes-
timony. See United States v. Chase, 372 F.2d 453, 466 (4th Cir. 1967)
(concluding that the possibility that a witness' grand jury testimony
differed from that given on another occasion is"insufficient reason to
10
pierce the veil of secrecy which protects the proceedings of such a
body"); see also Lucas, 725 F.2d at 1102 (observing that "unsubstan-
tiated allegations that a cover-up occurred" fail to establish need).
Requests for disclosure of grand jury materials should be crafted
to cover only those materials needed. See Douglas Oil Co., 441 U.S.
at 222. When a particularized need is shown, secrecy"is lifted dis-
cretely and limitedly." Procter & Gamble Co. , 356 U.S. at 683. To
allow Gilbert access to the grand jury testimony of the twenty-two
officers would turn this rule on its head. The district judge correctly
described such a request as a "fishing expedition that [does] not jus-
tify breaching grand jury secrecy." J.A. at 946-47; see also In re
Grand Jury 95-1, 118 F.3d 1433, 1437 (10th Cir. 1997) (stating that
requests for access to grand jury materials "must amount to more than
a request for authorization to engage in a fishing expedition") (inter-
nal quotation marks omitted). Because Gilbert cannot show a need, he
cannot obtain disclosure.
Thus, we conclude that the district court did not abuse its discretion
in denying Gilbert access to the grand jury testimony of the twenty-
two officers. The officers have no first-hand knowledge of what
occurred inside the apartment and apparently they have all cooperated
and been deposed regarding the arrest. Bare assertions that the police
cover up for each other will not establish a need for grand jury testi-
mony.
D.
Finally, Gilbert argues that the district court abused its discretion
when it refused to grant access to the FBI report, the results of which
were related to the grand jury. Like the grand jury testimony of the
twenty-two officers without personal knowledge of the arrest, Gilbert
has failed to show that he needs the report to avoid a possible injus-
tice in his § 1983 action.
Gilbert speculates that the report could possibly shed light on the
identity of his assailants, but mere speculation does not establish
need. The physical evidence examined by the FBI has been turned
over to Gilbert. Gilbert simply claims that it would be unduly burden-
some and expensive for him to hire his own expert to conduct tests.
11
He also ventures that because blood is perishable he may not be able
to replicate any blood identification tests. However, neither in his
brief nor at oral argument has Gilbert indicated that he has made any
effort to conduct his own examination of the material. Under Douglas
Oil Co., the burden "rests upon the private party seeking disclosure,"
441 U.S. at 223, to demonstrate a need for the material sought. Here,
Gilbert offers no evidence to buttress his naked assertions that the
burden and expense of his own testing would be undue. See In re
Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079, 1092
(7th Cir. 1982) (observing "that cost considerations are not usually
enough by themselves to constitute particularized need"). Moreover,
there is no indication that Gilbert has retained an expert for the lim-
ited purpose of determining whether the blood samples have deterio-
rated. In light of his inaction, Gilbert has not shown that access to the
FBI report is needed for the prosecution of his§ 1983 action--and for
this reason we conclude that the district court did not abuse its discre-
tion in denying Gilbert access to the FBI report.
III.
For the foregoing reasons we conclude that the district court erred
in denying Gilbert access to the grand jury testimony of Asbury and
Bean. However, the district court was correct in denying Gilbert
access to the grand jury testimony of the remaining twenty-four offi-
cers and to the FBI report.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS
12