In the UNITED STATES COURT OF APPEALS Case No. 87-6070 In Re Grand Jury 86-3 (Miami) On Appeal from the United States District Court OPPOSITION TO EMERGENCY MOTION TO EXTEND STAY PENDING DISPOSITION OF APPEAL Appellant has moved this court to extend the stay of the final order entered in this case by the Court below on December 2, 1987. That order makes available to the Committee on the Judiciary, which is currently conducting an inquiry into the possible impeachment of the Appellant, Judge Alcee L. Hastings, certain evidence necessary for the Committee to conduct its inquiry in a fair, complete, and impartial manner. Specifically, Judge Butzner, sitting by designation, determined that "good cause "had been shown within the meaning of the statute to warrant disclosure to the Committee of various documents relating to Judge Hastings' role in authorizing and supervising an electronic surveillance conducted in connection with an investigation of the Miami local of the International Longshoreman's Association, as well as any documents relating to possible improper disclosure by Judge Hastings of information generated by such electronic surveillance. The Court below further determined that the Committee's need for certain specific grand jury materials was greater than the need for continued secrecy and therefore that the Committee was entitled to obtain the materials sought. Finally, the Court determined that the Committee on the Judiciary and its counsel are "investigative officers" for the purpose of impeachment, acting in performance of their duties within the meaning of 18 U.S.C. Section 2517(1). Accordingly, they are entitled to receive certain information and materials from FBI agents and from a former Assistant United States Attorney who had been involved in conducting the electronic surveillance in question. In his Order of December 2, 1987, Judge Butzner granted the relief sought by the Committee on the Judiciary, but stayed his order for fourteen (14) days. Judge Hastings has appealed that decision and has now moved to extend the stay pending disposition of his appeal. ARGUMENT In the Eleventh Circuit, an applicant for a stay must make a four-fold showing in order to prevail. First, he must show likelihood of success on appeal. Second, he must show irreparable injury. Third, the applicant must show that the appellee would suffer no substantial harm. Finally, he must show that the public interest favors the grant of a stay. If the applicant fails to establish any of these factors, a stay must be denied. Garcia-Mir v. Meese, 781 F.2d 1450 (11th Cir. 1986); see also the leading case of Virginia Petroleum Jobber's Ass'n. v. FPC, 259 F.2d 921, 925, 104 U.S. App. D.C. 106 (1958). Judge Hastings has fallen short of the "extraordinarily high standard" applied in this Circuit for the granting of this "exceptional relief, Garcia-Mir v. Meese, 781 F.2d at 1453. Accordingly, his motion should be denied. Insofar as the grand jury materials are concerned, Judge Hastings' likelihood of success on appeal is minimal at best. The right of the Committee to obtain relevant grand jury materials in the context of its inquiry into the conduct of Judge Hastings has been established by Judge Butzner in In Re: Grand Jury Proceedings of Grand Jury No. 81-G (Miami), 669 F.Supp. 1072 (S.D.Fla. 1987). Judge Butzner set forth three grounds in support of the Committee's position: (1) the power to impeach vested in the House of Representatives under the Constitution; (2) the inherent authority of the court to disclose grand jury records and; (3) under the terms of Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure. This Court, on November 24, 1987, affirmed Judge Butzner's opinion insofar as Rule 6(e)(3)(c)(i) was relied upon, without reaching the remaining bases for the decision. In Re: Requests for Access to Grand Jury Materials, Grand Jury No. 81-1, Miami F.2d (11th Cir. 1987). In the instant case, Judge Butzner recognized the Committee's authority to conduct the investigation and specifically determined, upon review of Chairman Rodino's letter request of September 25, 1987 and upon in camera inspection of the wiretape material, that the Committee has shown a need for the grand jury testimony and exhibits to avoid a possible injustice in the congressional proceedings. The Committee's need is greater than the need for continued secrecy, and its request is limited to only relevant evidence. The Committee has shown a particularized need for disclosure sufficient to satisfy Federal Rule of Criminal Procedure 6(e). See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979). Judge Butzner's decision is manifestly correct. It is undisputed that the Grand Jury transcripts in question were generated nearly two years ago, in March, 1986. The grand jury completed its inquiry without returning an indictment. The Justice Department does not oppose disclosure of the testimony being sought by the Committee, and, finally, the fact of the investigation of Judge Hastings regarding this subject is known to the public through disclosures made by Judge Hastings' counsel.1 When these facts are considered in light of the criteria set forth under Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 1See the Supplemental Appendix to the appellate brief on behalf of Judge Hastings filed in In Re: Request for Access to Grand Jury Materials, Grand Jury No. 81-1, Miami, F.2d (1987) where counsel for Judge Hastings gratuitously attached as exhibits the letter requests from Chairman Rodino addressed to Judge Butzner. In addition, counsel for Judge Hastings made the first public disclosure of the letter from Assistant Attorney General Weld to the Clerk of the Court of Appeals for the Eleventh Circuit dated September 26, 1986, which referred the allegations concerning possible improper disclosures by Judge Hastings to the Eleventh Circuit Court of Appeals for appropriate disposition. We point this out only to demonstrate that Judge Hastings appears unconcerned about public disclosure of the fact 211 (1979), it is clear that Judge Butzner's determination that the Committee's need was greater than the continued need for secrecy was well founded and should not be disturbed. Accordingly, we respectfully submit that no further stay is appropriate under the test of Garcia-Mir v. Meese, 781 F.2d 1450 (11th Cir. 1986). Insofar as the disclosures of electronic surveillance materials and information are concerned, Judge Hastings' lack of standing to contest the disclosures sought is so manifest, that this Court should not further stay these proceedings based upon arguments which Judge Hastings is not entitled to make. Section 2510(11) of Title 18 defines and limits the definition of an "aggrieved person" to one "who was a party to any intercepted wire, oral or electronic communication or a person against whom the interception was directed." As Judge Butzner noted, this definition also includes a person on whose premises the intercepted conversation took place. Only an "aggrieved person" has standing under 18 U.S.C. Section 2518 (10)(a) to move to suppress the contents of a wiretap and evidence derived from it. Judge Butzner made an in camera inspection of the applications, affidavits, orders and progress reports pertaining to the relevant wiretaps. He specifically found that (1) Judge Hastings was not a party to any intercepted conversation; (2) Judge Hastings was not a person against whom any interception was directed, and; (3) no intercepted conversation took place on |