In re: United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1114
In the Matter of:
U NITED S TATES OF A MERICA ,
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.
____________
S UBMITTED F EBRUARY 2, 2005—D ECIDED F EBRUARY 15, 2005
____________
Before E ASTERBROOK , M ANION , and K ANNE , Circuit
Judges.
P ER C URIAM . 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 compen-
satory 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

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2 No. 05-1114
(though not all) of the materials already in Rogan’s posses-
sion, 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 autho-
rized 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 prac-
tice, 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 under-
taking. 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

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No. 05-1114 3
judge’s investigation of the prosecutor’s office continues.
The United States now asks us to issue a writ of manda-
mus to accomplish Judge Holderman’s recusal, on the
ground that his impartiality reasonably may be ques-
tioned 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 peti-
tion’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 dispar-
aged 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 applica-
tion, prosecuted for criminal contempt of court. Instead
of leading to the information the judge sought, however, the

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4 No. 05-1114
threat caused Stern to retain a lawyer. The judge
then asked that Stern be given immunity from prosecu-
tion 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 Responsibil-
ity, 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 conversa-
tions 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 re-
veal 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 Attor-
ney 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

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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 con-
tempt has been made out, and the contempt is not commit-
ted 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 inap-
propriate 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 crim-
inal proceedings, against any member of the United
States Attorney’s Office. The United States did not re-
lease 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. Like-
wise 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 in-
consistent 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

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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 consider-
ation 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 amend-
ment 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

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No. 05-1114 7
unwarranted disclosure to private parties, for such disclo-
sures 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 al-
ready in the possession of its adversary is not the sort
of thing that calls the prosecutor’s bona fides into ques-
tion; 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

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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

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