substantial interest in information about him. This, however, is nothing new in criminal matters; the public often has an intense interest in criminal defendants, particularly when those defendants hold a position of public trust. If the rule mandating secrecy of grand jury proceedings were to be set aside every time a member of the public asserted an interest as a citizen in the substance of those proceedings, there would be little of the rule remaining.

The only case that has been cited by Judge Hastings that has permitted general public disclosure of grand jury materials is In re Biaggi, 478 F.2d 489 (2d Cir. 1973), a case that is readily distinguishable from the case at hand. In Biaggi, both the United States Attorney and a grand jury witness sought public disclosure of that witness's own testimony only. The witness, mayoral candidate Biaggi, had been accused in newspaper stories of asserting his Fifth Amendment privilege before the grand jury, which he publicly denied. ably took Biaggi by surprise, agreed to release the grand jury records, which disclosed that he had indeed asserted the privilege, though not with regard to the subjects alleged in the newspaper stories.

The court, in a decision which prob

The Second Circuit's assertion of inherent power to release grand jury information beyond the provisions of Rule 6(e) is of questionable authority after the Supreme Court's decisions in United States v. Baggot, 463 U.S. 476 (1983) and United States v. Sells Engineering, Inc., 462 U.S. 481 (1983), which together reaffirmed the importance of grand jury secrecy and disapproved

looking beyond the framework of Rule 6(e) for authority to order disclosure. But in any event, the extremely limited disclosure permitted in that case, the testimony of a single witness when disclosure was sought by both the witness and the United States Attorney, is clearly distinguishable from the wholesale public disclosure sought by Judge Hastings.

Wherefore, the Department of Justice respectfully urges that this Court deny the Emergency Motion to Extend Stay Pending Disposition of Appeal, and affirm the District Court's order granting disclosure to the Judiciary Committee and denying disclosure to Judge Hastings and the public.

CERTIFICATE

This is to certify that on the

22d day of October, 1987,

a copy of the foregoing RESPONSE OF THE DEPARTMENT OF JUSTICE TO JUDGE HASTINGS' EMERGENCY MOTION ΤΟ EXTEND STAY PENDING

DISPOSITION OF APPEAL was sent by DHL Worldwide Courier, postage prepaid, to the following:

In the

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 87-5857

In Re GRAND JURY PROCEEDINGS
OF GRAND JURY NO. 81-1 (MIA)

On Appeal from the
United States District Court

for the Southern District of Florida

MOTION FOR DIVISION OF ISSUES AND FOR TWO-DAY
EXTENSION FOR FILING BRIEFS ON THE MERITS

United States District Judge Alcee L. Hastings moves that this court defer consideration of the issues raised by the lower court's ruling that disclosure of grand jury material to Judge Hastings or the public was not justified and limit the hearing scheduled for October 28, 1987, to those issues necessary to determine whether that portion of the district court's order granting disclosure to the House of Representatives Committee on the Judiciary (the "Committee”) should be reversed, affirmed, or stayed. Judge Hastings also moves that this court extend the time within which he may submit a brief further addressing the merits of those issues from Friday, October 23, to Monday, October 26, 1987. In support of this motion, Judge Hastings states:

1. In the court below, the Committee took "no position with respect to Judge Hastings's suggestion that disclosure also be made to him and the public" (A.83 n.3). In this court, the United States Department of Justice (the "Department") has announced that it takes no position on the issues raised by Judge Hastings's Emergency Motion to Extend Stay Pending Disposition of Appeal (the "Emergency Motion"). Neither Judge Hastings nor the Department has had or, under the schedule established by this court, would have adequate time to brief the merits of the issues raised by the lower court's order denying disclosure to Judge Hastings and the public. As those issues bear upon the question of a stay, they are adequately addressed in the Emergency Motion and in the Committee's Memorandum of Points and Authorities in Opposition to the Emergency Motion. Accordingly, Judge Hastings suggests that the court defer consideration on the merits of the issues concerning disclosure to Judge Hastings and the public.

2.

Counsel for Judge Hastings has not been able to complete a brief on the merits for filing by Friday, October 23, 1987. On Monday afternoon, October 19, the clerk's office advised counsel of the court's decision to consider the merits and its direction that additional briefs be filed by Friday, October 23. Counsel's previously scheduled commit

ments for the week included: