United States v. Baggot (1983)

United States v. Baggot, 463 U.S. 476, 481 , 103 S.Ct. 3164 , 77 L.Ed.2d 785 (1983) (“The IRS need never go into court to assess and collect the amount owed; it is empowered to collect the tax by non-judicial means ... without having to prove to a court the validity of the underlying tax liability.”).

And when interpreting the exception in Rule 6(e) for grand jury matters “preliminarily to or in 17 Case: 17-15016 Date Filed: 03/27/2020 Page: 18 of 104 connection with a judicial proceeding,” the Supreme Court explained that the exception “is, on its face, an affirmative limitation on the availability of court- ordered disclosure of grand jury materials.” United States v. Baggot, 463 U.S. 476, 479 , 103 S. Ct. 3164, 3167 (1983).

Cf. United States v. Baggot, 463 U.S. 476, 480 , 103 S.Ct. 3164, 3167 , 77 L.Ed.2d 785 (1983) (“The particularized-need test is a criterion of degree.”) Other portions of the District Court’s memorandum appear to rest upon the ground that the government has made a showing of particularized need adequate to justify disclosure.

Sells II, 103 S.Ct. at 3148-49.

We must therefore consider the “knotty question of what, if any, sorts of proceedings other than garden-variety civil actions or criminal prosecutions might qualify as judicial proceedings under (C)(i).” Baggot, 463 U.S. at 479, n. 2 , 103 S.Ct. at 3166, n. 2 (citations omitted).

United States v. Baggot, 463 U.S. 476, 478 (1983).

United States v. Baggot, 463 U.S. 476 , 479–80, 103 S. Ct. 3164, 3167 (1983) (“[Federal Rule of Criminal Procedure 6(e)] contemplates only uses related fairly directly to some identifiable litigation, pending or anticipated.” (emphasis added)).

In interpreting what is now Rule 6(e)(3)(E)(i), for example, the Supreme Court stressed that the exception “reflects a judgment that not every beneficial purpose, or even every valid governmental purpose, is an appropriate reason for breaching grand jury secrecy.” United States v. Baggot, 463 U.S. 476, 480 (1983).

In interpreting what is now Rule 6(e)(3)(E)(i), for example, the Supreme Court stressed that the exception “reflects a judgment that not every beneficial purpose, or even every valid governmental purpose, is an appropriate reason for breaching grand jury secrecy.” United States v. Baggot, 463 U.S. 476, 480 (1983).

An exception for matters of historical significance bears no resemblance to an exception which applies “to assist in preparation or conduct of a judicial proceeding.” United States v. Baggot, 463 U.S. 476, 480 , 103 S. Ct. 3164, 3167 (1983).

An exception for matters of historical significance bears no resemblance to an exception which applies “to assist in preparation or conduct of a judicial proceeding.” United States v. Baggot, 463 U.S. 476, 480 , 103 S. Ct. 3164, 3167 (1983).

This leaves the exception in subsection (i), for disclosure of grand jury materials “preliminarily to or in connection with a judicial proceeding.” 1 1 The district court noted that for a request to be “in connection with” a judicial proceeding, the proceeding “must already be pending.” See United States v. Baggot, 463 U.S. 476, 479 , 103 S. Ct. 3164, 3166 (1983).

This leaves the exception in subsection (i), for disclosure of grand jury materials “preliminarily to or in connection with a judicial proceeding.” 1 1 The district court noted that for a request to be “in connection with” a judicial proceeding, the proceeding “must already be pending.” See United States v. Baggot, 463 U.S. 476, 479 , 103 S. Ct. 3164, 3166 (1983).

The only provision that contemplates re- lease of grand-jury materials to a member of the general pub- lic is subsection (e)(3)(E)(i), which authorizes the court to or- der disclosure “preliminarily to or in connection with a judi- cial proceeding.” The Supreme Court has held that this excep- tion applies only when the purpose of the disclosure is “to assist in preparation or conduct of a judicial proceeding” that is “pending or anticipated.” United States v. Baggot, 463 U.S…

See United States v. National Bank of Commerce, 472 U.S. 713, 721 (1985) (finding 6331 permits a levy on a bank account for delinquent income taxes); United States v. Baggot, 463 U.S. 476, 481 (1983) ("The IRS ... is empowered to collect the [income] tax by nonjudicial means (such as levy on property or salary, 26 U.S.C. 6331, 6332)").

We must therefore consider the "knotty question of what, if any, sorts of proceedings other than garden-variety civil actions or criminal prosecutions might qualify as judicial proceedings under (C)(i)." Baggot, 463 U.S. at 479, n. 2 , 103 S.Ct. at 3166, n. 2 (citations omitted). 10 The most commonly relied upon definition of a (C)(i) "judicial proceeding" is contained in Judge Learned Hand's opinion in Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir.1958).

Id. at 480 , 103 S.Ct. at 3167 (citations omitted).

We have consistently construed the Rule, however, to require a strong showing of particularized need for grand jury materials before any disclosure will be permitted.”); United States v. Baggot, 463 U.S. 476, 480 (1983) (explaining that the “preliminarily to or in connection with a judicial proceeding” and the “particularized need” requirements “are independent prerequisites to ([E])(i) disclosure” (internal quotation marks omitted)).

United States v. Baggot, supra, 103 S.Ct. at 3167.

See id. (“The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.”); see also United States v. Baggot, 463 U.S. 476, 484 , 103 S.Ct. 3164 , 77 L.Ed.2d 785 (1983) (“The words ‘preliminary to ’ necessarily refer to judicial proceedings not yet in existence, where, for example, a- claim is under study.”).

First, the court-ordered disclosure must be “preliminary to or in connection with a judicial proceeding.” As the Supreme Court has stated, this requirement “governfs] the kind of need that must be shown.” United States v. Baggot, 463 U.S. 476, 480 , 103 S.Ct. 3164 , 77 L.Ed.2d 785, 791 (1983) (emphasis in original).

P. 6(e)(3)(E)(i) (emphasis added); see also Niz-Chavez v. Garland, 141 S. Ct. 1474 , 1481–82 (2021) (finding that “[n]ormally, indefinite articles (like ‘a’ or ‘an’) precede countable nouns” and therefore 42 indicate a “singular” quantity (emphasis in original)), and the exception’s goal of ensuring that, even where disclosure is allowed, the veil of grand jury secrecy is lifted only “discretely and limitedly,” Douglas Oil, 441 U.S. at 221 (internal quotation marks omitted) …

On the other hand, the Supreme Court has stressed that disclosure under the (3)(C)(i) exception is permitted only where “ the primary purpose of disclosure is . . .t o assist in preparation or conduct of a judicial proceeding.” United States v. Baggot, 463 U.S. 476, 480 (1983).

Plaintiff has provided no evidence to suggest that the proceedings were 7 See United States v. Davis, 721 F. App’x 856 , 860 n.1 (11th Cir. 2018) (noting that a proceeding must be pending for a request to be “in connection with” same) (citing United States v. Baggot, 463 U.S. 476, 479 (1983))). 8 Shows Urquidi, 71 F.4th at 366 (quoting United States v. Miramontez, 995 F.2d 56, 59 (1993) (quoting Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959))); see Uni…

Relevant here is the exception found in Rule 6(e)(3)(E)(i), which provides that a court “may authorize disclosure — at a time, in a manner, and subject to any other conditions that it directs — of a grand-jury matter . . . preliminarily to or in connection with a judicial proceeding.” Even if a party can establish that the materials sought are needed for “pending or anticipated” litigation, United States v. Baggot, 463 U.S. 476, 480 (1983), the Supreme Court has held that th…

Relatedly, the United States asserts that the IRS’s “administrative investigation . . . is neither a ‘judicial proceeding’ nor ‘preliminarily to or in connection with a judicial proceeding.’” Id. at 7 (quoting United States v. Baggot, 463 U.S. 476, 481 (1983)).

“The IRS . . . may levy ‘without having to prove to a court the validity of the underlying tax liability.’” Martell, 2010 WL 11597650 , at *3 (quoting United States v. Baggot, 463 U.S. 476, 481 (1983)).

“Rule [6(e)] contemplates only uses related fairly directly to some identifiable litigation,” and therefore, “[i]f the primary purpose of disclosure is not to assist in preparation or conduct of a judicial proceeding, disclosure under [Rule 6(e)(3)(E)(i)] is not permitted.” United States v. Baggot, 463 U.S. 476, 480 (1983).

(Id. at ¶¶ 8–15.) Thus, Plaintiffs meet the first (3)(E)(i) requirement— that the disclosure be “preliminarily to or in connection with a judicial proceeding.” United States v. Baggot, 463 U.S. 476, 479 (1983).

“The test for whether a communication is absolutely privileged when it occurs before judicial proceedings have begun entails both subjective and objective components.” Shell Oil Co. v. Writt, 464 S.W.3d 650, 655 (Tex. 2015) (citing RESTATEMENT (SECOND) OF TORTS § 588 cmt. e (1977) (“As to communications preliminary to a proposed judicial proceeding, the rule . . . applies only when the communication has some relation to a proceeding that is actually contemplated in good fait…

Fla. 1979), and contemplates disclosure of grand jury materials for uses that are “related fairly directly to some identifiable litigation, pending or anticipated.” United States v. Baggot, 463 U.S. 476, 480 (1983) (finding tax audit not a judicial proceeding within the exception).

Subject to obtaining prior court approval based on a showing of particularized need, the Attorney G en­ eral may also make such disclosures “[for] uses related fairly directly to some identifiable litigation, pending or anticipated.” United States v. Baggot, 463 U.S. 476, 480 (1983); see also Fed.

Cf. United States v. Baggot, 463 U.S. 476, 481 (1983).

Baggot, supra, 463 U.S. at 480, 103 S.Ct. at 3167 .

See United States v. Baggot, 463 U.S. 476, 478-79 , 103 S.Ct. 3164 , 77 L.Ed.2d 785 (1983) (explaining that a taxpayer has two mutually exclusive options for contesting the IRS’ determination of deficiency: he may pay the assessment, file a refund claim with the IRS and then, if necessary, file suit in the district court to recover a refund; or he may petition the Tax Court for a redetermination of the deficiency). 2 The Government concedes that its denial notice to Cigarett…

See United States v. Baggot, 463 U.S. 476 , 103 S.Ct. 3164 , 77 L.Ed.2d 785 (1983); United States v. Sells Eng’g, Inc., 463 U.S. 418 , 103 S.Ct. 3133 , 77 L.Ed.2d 743 (1983).

See United States v. Baggot, 463 U.S. 476 , 103 S.Ct. 3164 , 77 L.Ed.2d 785 (1983); United States v. Sells Eng'g, Inc., 463 U.S. 418 , 103 S.Ct. 3133 , 77 L.Ed.2d 743 (1983). 5 The Government did not oppose the petition, except to the extent that it sought internal Government documents protected by the attorney work-product privilege.

See In re Special February 1975 Grand Jury (Baggot), 662 F.2d 1232, 1237-38 (7th Cir.1981), aff'd, 463 U.S. 476 , 103 S.Ct. 3164 , 77 L.Ed.2d 785 (1983).

See In re Special February 1975 Grand Jury (Baggot), 662 F.2d 1232, 1237-38 (7th Cir.1981), aff'd, 463 U.S. 476 , 103 S.Ct. 3164 , 77 L.Ed.2d 785 (1983).

P. 6(e)(3)(E)(i); see United States v. Baggot, 463 U.S. 476, 480 (1983) (explaining that courts can consider Rule 6(e) motions when primary purpose of disclosure is to prepare an anticipated judicial matter); Scott, 414 F.3d at 816 .

P. 6(e)(3)(E)(i); see United States v. Baggot, 463 U.S. 476, 480 (1983) (explaining that courts can consider Rule 6(e) motions when primary purpose of disclosure is to prepare an anticipated judicial matter); Scott, 414 F.3d at 816 .

See United States v. Baggot, 463 U.S. 476, 480 (1983).

See Baggot, 103 S.Ct. at 3167 .

See United States v. Baggot, 463 U.S. 476, 478-79 (1983) (explaining that a taxpayer has two mutually exclusive options for contesting the IRS’ determination of deficiency: he may pay the assessment, file a refund claim with the IRS and then, if necessary, file suit in the district court to recover a refund; or he may petition the Tax Court for a redetermination of the deficiency).2 The Government concedes that its denial notice to Cigarette City included an inaccurate state…

See id. at 478 , 103 S.Ct. 3164 .

See U.S. v. Baggot, 463 U.S. 476, 479-80 , 103 S.Ct. 3164, 3166-67 , 77 L.Ed.2d 785 (1983); Sells Engineering, 463 U.S. at 434, 443-44 , 103 S.Ct. at 3143, 3148-49 ; Illinois v. Abbott, 460 U.S. 557 , 566-67, 103 S.Ct. 1356, 1360-61 , 75 L.Ed.2d 281 (1983); Douglas Oil, 441 U.S. at 218-19, 222-23 , 99 S.Ct. at 1672-73, 1674-75 ; Lynde, 922 F.2d at 1454 ; U.S. v. Rising, 867 F.2d 1255, 1260 (10th Cir.1989); U.S. v. Warren, 747 F.2d 1339, 1347 (10th Cir.1984).

See Baggot, 463 U.S. at 479 , 103 S.Ct. 3164 ("[T]he term ‘in connection with’ .,. refer[s] to a judicial proceeding already pending, while ‘preliminarily to’ refers to one not yet initiated,”).

See United States v. Baggot, 463 U.S. 476, 481 (1983) (“The IRS need never go into court to assess and collect the amount owed; it is empowered to collect the tax by non-judicial means (such as levy on property or salary, 26 U.S.C. §§ 6331 , 6332), without having to prove to a court the validity of the underlying tax liability.”); see also United States v. Beeman, 388 Fed.

See United States v. Baggot , supra .

See generally United States v. Baggot , 463 U.S. 476 (1983) ; United States v. Sells Engineering, Inc. , 463 U.S. 418 (1983) .