In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1114

In the Matter of:

UNITED STATES OF AMERICA,

Petitioner.

____________

Petition for a Writ of Mandamus

to the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 93 GJ 51—James F. Holderman, Judge.

____________

SUBMITTED FEBRUARY 2, 2005—DECIDED FEBRUARY 15, 2005

____________

Before EASTERBROOK, MANION, and KANNE, Circuit

Judges.

PER CURIAM. Unnecessary medical procedures performed

at Edgewater Hospital in order to obtain payments from

insurers (including the federal government’s health-care

programs) led to criminal prosecutions for fraud. Peter

Rogan, a principal at one of Edgewater’s management

companies, was not among the criminal defendants, but the

United States filed a civil suit against him seeking compensatory damages and penalties under the False Claims Act.

In this capacity Rogan obtained materials that had been

gathered by the grand jury that issued the indictments. The

estate of Albert Okoro, who had died during one of

Edgewater’s unnecessary procedures, also sought grand

jury materials for use in civil litigation against Rogan and

others. Persuaded that Okoro’s estate should have some
2 No. 05-1114

(though not all) of the materials already in Rogan’s possession, the United States Attorney for the Northern District

of Illinois applied to the district court for an order under

Fed. R. Crim. P. 6(e)(3)(E)(i) permitting their release. The

application, made ex parte as Rule 6(e)(3)(F) permits, was

presented to Chief Judge Kocoras and granted. He authorized the United States to give Okoro’s estate whatever

grand jury materials the prosecutor saw fit to release.

After learning that Okoro’s estate had acquired grand

jury materials for use in the pending suit, Rogan protested

to Chief Judge Kocoras. This led to his recusal—for his

son is a partner at Winston & Strawn, which represents

Rogan. See 28 U.S.C. §455(b)(5)(ii), (iii). Under local practice, Rogan’s motion was transferred to Judge Holderman

because he is next in line to become chief judge. The United

States Attorney acknowledged that the grant of discretion

to determine which materials to hand over was not best

practice, and it volunteered to retrieve the materials so that

any dispute about the extent of the estate’s access could be

decided with Rogan’s participation. Judge Holderman

vacated Chief Judge Kocoras’s order in light of this undertaking. At that point, however, consideration of the estate’s

request for information came to a halt. Judge Holderman

decided not to address it until he learned why the United

States had made the ex parte request to Chief Judge

Kocoras. He deemed ex parte action, and the grant of

discretion to an Assistant United States Attorney, so

irregular that he threatened to hold the Assistant in

criminal contempt of court, and he demanded to know who

within the United States Attorney’s Office participated in

the decision to file such a request and why they had

approved it. Meanwhile the state litigation went to trial,

and Okoro’s estate was handicapped by the lack of access to

materials that were in Rogan’s possession. The estate

recovered from other defendants and apparently has

decided not to pursue the matter further, but the district
No. 05-1114 3

judge’s investigation of the prosecutor’s office continues.

The United States now asks us to issue a writ of mandamus to accomplish Judge Holderman’s recusal, on the

ground that his impartiality reasonably may be questioned by objective and informed observers. See 28 U.S.C.

§455(a); Liteky v. United States, 510 U.S. 540 (1994);

Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847

(1988). Mandamus is the right—indeed, we have held, see

United States v. Boyd, 208 F.3d 638, 645 (7th Cir. 2000);

United States v. Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir.

1985), the only—means to this end. Yet many of the petition’s arguments deal more with what is being done (an

investigation of decision-making within the U.S. Attorney’s

Office) than with which judge is doing the investigation.

One form of relief fairly comprised within the petition’s

scope is a halt to the inquest. We conclude that the inquiry

is inappropriate and must cease; this makes it unnecessary

to decide whether someone other than Judge Holderman is

the right person to preside.

When Rogan’s protest sparked Chief Judge Kocoras’s

recusal and landed the matter in Judge Holderman’s lap, he

concluded (as his response in this court states): “It was hard

for me to believe that Chief Judge Kocoras would sign such

an erroneous order unless he were misled.” Judge

Holderman thought that the United States had “cited

inapplicable subsections of Rule 6(e)” and failed to alert

Chief Judge Kocoras to decisions of this circuit that disparaged ex parte applications under Rule 6(e). To quote again

from Judge Holderman’s response: “I wondered why . . .

better procedures had not been employed? Was it by neglect

or design? That was the key question that I needed to have

answered.”

The judge threatened to have Assistant United States

Attorney Jacqueline Stern, who had signed the application, prosecuted for criminal contempt of court. Instead

of leading to the information the judge sought, however, the
4 No. 05-1114

threat caused Stern to retain a lawyer. The judge

then asked that Stern be given immunity from prosecution in order to induce her cooperation. It is not clear

that the Executive Branch can foreclose a charge of criminal

contempt, see Young v. United States ex rel. Vuitton et Fils

S.A., 481 U.S. 787, 799 (1987), but at all events immunity

is not bestowed lightly (or quickly). Thus the judge asked

for information from other attorneys in the Office, only to

find that they were less than forthcoming given the threat

to prosecute whoever turned out to be responsible; and

when the Office did not provide as much information (and

as fast) as the judge sought, he insisted that everyone, right

up to the United States Attorney, be investigated by the

Department of Justice’s Office of Professional Responsibility, which the judge wanted to report back to him with its

findings.

The fundamental problem with this inquiry is that the

United States Attorney is not answerable to a judge for

the deliberations among his staff. The intra-office conversations and memoranda that the judge wants to see

are covered by multiple privileges. See, e.g., United States

v. Zingsheim, 384 F.3d 867 (7th Cir. 2004), which holds that

federal judges may not insist that prosecutors reveal deliberative or pre-decisional materials. A federal court

must evaluate lawyers’ final submissions—that is, must

review outputs rather than inputs. How the United States

reaches its litigating positions, who said what to whom

within the prosecutor’s office, and so on, are for the Attorney General and the President to evaluate. The Judicial

Branch is limited to assessing counsel’s public deeds.

Judges often are tempted to seek a larger role in the

conduct of litigants that appear frequently before them. See

also, e.g., In re United States, 345 F.3d 450 (7th Cir. 2003).

Temptation may be especially strong for a judge who spent

many years as a prosecutor before donning the robe. (Judge

Holderman served for six years as an Assistant United
No. 05-1114 5

States Attorney in the Northern District of Illinois.) But

temptation must be resisted in order to maintain separation

between executive and judicial roles, and between the

formulation and evaluation of positions in litigation. In the

rare situations when a prima facie case of criminal contempt has been made out, and the contempt is not committed in the judge’s presence (and thus amenable to summary

disposition), the judge must turn the matter over to a

prosecutor rather than assume an inquisitorial role inappropriate to the Judicial Branch.

None of the papers that the United States tendered to

Chief Judge Kocoras is objectively frivolous. There is

accordingly no basis for civil sanctions, let alone criminal proceedings, against any member of the United

States Attorney’s Office. The United States did not release any grand jury material without judicial approval;

it sought and obtained authorization before acting. Nor

did it hide from Chief Judge Kocoras the fact that Rogan

had not been notified. To the contrary, the application

alerted the Chief Judge to its ex parte nature. If that

was a problem, the Chief Judge could have denied the

application and ordered service on Rogan’s lawyers. Likewise the application showed that the United States sought

discretion to decide which materials to hand over, and the

Chief Judge bestowed that power on the prosecutor’s office.

Perhaps he should not have done so, but it cannot be

thought a form of criminal contempt to ask the court and

then proceed with its approval.

When making ex parte applications a litigant must alert

the tribunal to authority, known to it, that may be inconsistent with its legal position, for there is no adversary

to do that job. Judge Holderman thought that the United

States Attorney should have called Chief Judge Kocoras’s

attention to Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir.

1977); United States v. Miller Brewing Co., 687 F.2d 1079

(7th Cir. 1982); Illinois v. F.E. Moran, Inc., 740 F.2d 533
6 No. 05-1114

(7th Cir. 1984); In re Moore, 776 F.2d 136 (7th Cir. 1985);

and In re Special March 1981 Grand Jury, 753 F.2d 575

(7th Cir. 1985) (Almond Pharmacy). Judge Holderman

reads these decisions as precluding ex parte requests to

authorize the release of grand jury materials. We do not

understand them so. Two predate the 1983 amendments

to Rule 6(e), which explicitly authorize ex parte proceedings

when the United States is the petitioner. (Ex parte consideration preserves grand jury secrecy while nondisclosure

remains a possibility.) F.E. Moran likewise does not

mention the amendment, because the applications for grand

jury materials had been made before November 1, 1983,

when it took effect. Moore recognizes that changes to Rule

6(e) were made in 1983 but does not remark the new

authority to proceed ex parte; that subject had not been

broached, for the very good reason that the dispute in Moore

concerned venue rather than procedures to be used in

reaching a decision. Only Almond Pharmacy mentions the

amendment to Rule 6(e)(3)(F)— and even then not to apply

it, because the applications had been made in September

and October 1983, while the old language still governed.

None of these decisions establishes that the 1983 amendment means anything other than what it says. Under Rule

6(e)(3)(F) as it reads today, the United States is entitled to

file an application ex parte, after which the judge must

decide whether to order an interested private party to be

notified. It is not hard to imagine circumstances in which

lack of notice would abuse the district judge’s discretion: for

example, when the United States seeks to favor its own

interests by authorizing itself to use grand jury material in

a civil suit, the judge would be well advised to let the civil

defendant have an opportunity to oppose the motion. But

when the United States seeks permission to give the

materials to a private litigant, there is less reason to fear a

one-sided presentation; after all, the prosecutor has an

ongoing interest in protecting grand jury materials from
No. 05-1114 7

unwarranted disclosure to private parties, for such disclosures could make it harder to secure cooperation in future

criminal investigations. See In re Biaggi, 478 F.2d 489, 491-

92 (2d Cir. 1973) (Friendly, J.). A proposal to allow

one private litigant access to grand jury materials already in the possession of its adversary is not the sort

of thing that calls the prosecutor’s bona fides into question; it is understandable that Chief Judge Kocoras granted

the application. At all events, as we have stressed, when the

United States Attorney’s Office makes a mistake and seeks

inappropriate relief, the judiciary’s proper course is to deny

the motion, not to threaten criminal prosecution or seek

privileged pre-decisional materials. Our legal system does

not contemplate an inquisitorial role for federal judges.

Tempers have flared on both sides; Judge Holderman tells

us (in his response to the petition) that he has said some

things that he regrets, and the same should hold true for

the United States Attorney, whose petition in this court

levels some overwrought charges. We think it likely that

everyone has acted from good intentions, but that a strong

belief in one’s own position has led to the unsound inference

that anyone who disagrees must be acting in bad faith. A

swift end to this contretemps will allow calmer reflection

and, we trust, a restoration of the cordial and mutually

respectful relations between bench and prosecutor that are

vital to the administration of justice.

The petition for a writ of mandamus is granted, and the

district court is directed to close its investigation into

the proceedings that occurred before Chief Judge Kocoras in

December 2003. The Office of Professional Responsibility is

free to proceed as it chooses, but it need not investigate at

the behest of the Judicial Branch—nor are its findings (if it

conducts an investigation voluntarily) to be reported to the

Judicial Branch. This is a matter for the Executive Branch

to handle internally using its own judgment. Because we

have halted the district court’s inquest, we need not discuss
8 No. 05-1114

any of the other issues on which the U.S. Attorney, the civil

litigants, and the district judge have exchanged opposing

views.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-15-04