Opinion · Court of Appeals for the Third Circuit

In Re Grand Jury Proceedings. Appeal of Fmc Corporation

In Re Grand Jury Proceedings. Appeal of Fmc Corp., 604 F.2d 806 (3d Cir. 1979)

Type
Opinion
Court
Court of Appeals for the Third Circuit
Jurisdiction
Federal
Date
1979-08-16
Topic
general

How later courts describe this case

  • criminal prosecution is in esse when there is an ongoing grand jury investigation

Citator

UpLaw has not yet analyzed In Re Grand Jury Proceedings. Appeal of Fmc Corporation. The absence of a flag is not a finding that it is good law.

Cited by
9 opinions
IN RE GRAND JURY PROCEEDINGS,604 F.2d 806(3rd Cir. 1979)
IN RE GRAND JURY PROCEEDINGS.
APPEAL OF FMC CORPORATION.
No. 79-1017.
United States Court of Appeals, Third Circuit.
Argued June 8, 1979.
Decided July 18, 1979.
As Amended August 16, 1979.
Thomas A. Bergstrom, (argued), Philadelphia, Pa., for appellant FMC Corp.

Peter F. Vaira, U.S. Atty., Walter S. Batty, Jr., (argued), Asst. U.S. Atty., Chief, Appellate Division, Bonnie Brigance Leadbetter, Asst. U.S. Atty., Deputy Chief, Appellate Div., Philadelphia, Pa., for appellee.
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Before HUNTER, WEIS and GARTH, Circuit Judges.
[1] OPINION OF THE COURT
PER CURIAM.
[2] In April or May, 1977, FMC Corporation produced a number of documents in response to a subpoenaduces tecumissued by a federal grand jury sitting in Philadelphia. Alleging that the government had filed a falseSchofieldaffidavit1and had violatedPage 807Fed.R.Crim.P. 6(e) by disclosing the documents to unauthorized persons, FMC asked for return of the documents. After argument, the district court denied the motion, and FMC appealed. We conclude that the order is nonappealable and must be dismissed because of a lack of jurisdiction.

[3] Certain exceptions notwithstanding, Congress and the federal courts have announced and adhered to a policy of permitting appeals only from the final decisions of district courts.28 U.S.C. § 1291;Cobbledick v. United States,309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). In the grand jury context, nongovernment appeals of technically nonfinal decisions have been closely limited to orders denying motions for the return of property.DiBella v. United States,369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). But as we observed inUnited States v.Premises Known As 608 Taylor Avenue,584 F.2d 1297, 1300 (3d Cir. 1978), the question whether a motion is for the return of property or whether it is for the suppression of evidence, and thus non-appealable, must be resolved by examining the essential character of the proceedings in the district court. It is not disputed that although the grand jury proceedings were at a standstill for a time, they have been resumed, and the conduct of FMC is still the subject of inquiry. There is obviously the possibility of a criminal prosecution against the corporation and it cannot be said that the motion is in no way tied to a potential indictment. This is "not an independent proceeding but merely a step in the criminal prosecution."Smith v. UnitedStates,377 F.2d 739, 742 (3d Cir. 1967). Accordingly, the appeal will be dismissed for lack of jurisdiction. The mandate shall issue forthwith.
  1. InIn re Grand Jury Proceedings (Schofield I),486 F.2d 85, 93 (3d Cir. 1973), we held that when a grand jury subpoena is challenged, it is reasonable "that the Government be required to make some preliminary showing by affidavit that each item is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose." In essence, FMC argues that the affidavit submitted to the district court to obtain the subject documents was fraudulent. ↩