In late 1977, a federal grand jury in the Northern District of Georgia began examining various practices engaged in by the banking community of northern Georgia. The Justice Department's decision to initiate the grand jury inquiry resulted from investigations by the Justice Department, other government agencies, and Congressional committees into the activities of Lance, a former Director of the Budget and confidant of the President, while he was associated with the National Bank of Georgia. The grand jury did not limit its investigation to Lance's activities; yet he was clearly the primary focus of its proceedings.

The progress of the grand jury investigation was closely followed by the news media, and in November, 1978, Lance filed a motion requesting the district court to prohibit all extrajudicial publicity by the attorneys participating in the grand jury inquiry; to require all motions, briefs, appeals, orders, and other papers involved in the grand jury proceedings to be filed In camera and under seal; and to instruct the grand jurors to disregard any news media accounts of the investigation. Lance asserted that the extensive publicity surrounding the grand jury's investigation had exposed him to ridicule, humiliation, and embarrassment and had detrimentally affected the impartiality of the grand jury. As examples of the prejudicial publicity which he sought to have prohibited, Lance presented seven newspaper articles, which are described in the margin.1

In response to Lance's motion seeking to end this publicity, the district court conducted a hearing in chambers on November 29, 1978. At this hearing, the district judge disclosed that at a social gathering several people had informed him that two grand jury members were repeating the testimony of a grand jury witness. The court granted Lance's request, which was not opposed by the Justice Department, that all papers concerning the grand jury investigation be filed In camera and under seal. The court also ordered the Justice Department attorneys to admonish the members of the grand jury, on a daily basis if necessary, not to disclose any information concerning their proceedings and suggested that the attorneys also instruct the grand jurors that they should consider only the evidence presented before them in determining whether sufficient probable cause existed for the return of an indictment. The court then requested the Justice Department attorneys to report to it the reaction of the grand jurors to the admonitions. The court also ordered the attorneys to inform Justice Department officials in Washington that it wished the disclosures to cease and would take further steps to enforce the dictates of Rule 6(e) if necessary. The attorneys were to report to the court in fifteen days: to whom they spoke in the Justice Department, the substance of their communication to the Washington officials, and the response of those officials. The court did not rule upon Lance's request that it order the grand jurors not to read any newspaper articles or listen to any news media reports about the investigation, believing that it did not have the authority to enter such an order.

This first effort to curtail the publicity surrounding the grand jury's investigation met with limited success. Following the publication of additional news articles revealing that Lance had declined to testify before the grand jury and describing Lance's efforts to prohibit the disclosure by the Justice Department of information about the grand jury proceedings, Lance's attorney on January 4, 1979, sent to the district court for In camera consideration a letter expressing his client's concern about the continued disclosure of grand jury information and requesting that an In camera conference with the Justice Department attorneys be held to discuss the resolution of the publicity problem. Together with the letter, Lance's attorney enclosed an unfiled motion. In the motion, Lance made three requests. The first asked that the court order all government attorneys associated with the grand jury to show cause why the court should not sanction them for disclosing (i) Lance's decision not to testify before the grand jury and (ii) the occurrence and results of the prior In camera hearing of November 9, 1978. The second asked that the court examine each of the grand jurors In camera to determine whether any grand juror had violated the secrecy requirements of Rule 6(e) and should be sanctioned. Finally, he asked the district court (i) to admonish the grand jurors about their duty to determine probable cause on an impartial basis and to maintain the secrecy of their proceedings, (ii) to instruct the grand jury not to read newspaper articles or listen to other media accounts about the investigation, and (iii) to require that all the remaining proceedings before the grand jury be fully transcribed. In addition to describing Lance's earlier efforts to have the disclosures of information about the grand jury proceedings halted, his motion cited four articles which had appeared in numerous newspapers and, in substance, had been reported on radio and television. The articles allegedly revealed information about the grand jury proceedings and described Lance's prior efforts to halt the leak of such information, including the nature of the In camera proceeding before the district court in November, 1978. They are noted below.2

In response to Lance's letter, the parties met for a second In camera hearing before the district court on January 22, 1979. As an initial matter, the court dismissed as moot the motion filed by Lance seeking to require that the grand jury proceedings be recorded after being assured by the government attorneys that the proceedings were being recorded and that they were attempting in good faith to make all their statements on the record. With regard to Lance's charges that further disclosures of grand jury material had occurred, the district court stated that it did not consider the reports about Lance's decision not to appear before the grand jury to violate Rule 6(e). The court did, however, regard Attorney General Bell's statements about the prior hearing as a violation of the court's order that the proceedings be held In camera. The Justice Department attorneys stated that they had not released any information about the grand jury proceedings to anyone who was not involved in the investigation. The court reiterated its intent to enforce the provisions of Rule 6(e) and suggested that the Justice Department attorneys again inform their superiors that they should maintain the confidentiality of the material presented to the grand jury and should not disclose any information about the two In camera proceedings.

These last efforts by Lance to halt the publicity surrounding the grand jury inquiry were successful until late March, 1979, at which time interest in the grand jury probe was again spurred by the appointment by the Attorney General of a "special counsel" to direct the investigation of loans made by the National Bank of Georgia, while Lance was its president, to the peanut warehouse business operated by President Carter's family. Following the appearance of a series of articles announcing the appointment of the special counsel and reporting that the Justice Department would seek an indictment of Lance shortly, Lance filed the motion for sanctions which is the basis of this appeal.

In his motion for sanctions, Lance alleged that the disclosures contained in the numerous news media reports about the grand jury investigation violated Rule 6(e) and sought three forms of relief: first, that all persons associated with the Department of Justice or the United States Attorney's Office for the Northern District of Georgia who had any involvement with the grand jury probe be ordered to show cause why contempt sanctions should not be imposed for the disclosures by the Justice Department of confidential grand jury matters; second, that the court examine each member of the grand jury In camera to ascertain whether any juror had violated the obligation of secrecy imposed by Rule 6(e); third, that the court impose any sanctions which might be warranted, including an order dismissing the grand jury and barring the Justice Department from prosecuting him as a result of this investigation. In support of this request for relief, Lance presented to the court four new newspaper articles.3

Denying the relief sought by Lance, the district court ruled that he had failed to present sufficient evidence of governmental misconduct to justify the relief sought or to warrant holding an evidentiary hearing on his charges. The court found that in the few instances where the articles specifically credited Justice Department sources for the information reported, the disclosures did not constitute a violation of Rule 6(e) or any other applicable secrecy provisions. The court dismissed allegations of misconduct based on information revealed by sources identified as "government sources" or "sources close to the investigation" as being too vague to warrant the inference that the material was disclosed by attorneys in the Justice Department. Relying in part upon a misreading of In re Special April 1977 Grand Jury, 587 F.2d 889 (7th Cir. 1978), the court rejected Lance's contention that the government's refusal to submit affidavits denying any wrongdoing on their part required relief. With regard to Lance's allegations of misconduct by grand jurors, the court held that the mere allegation that some grand jurors were seen conversing with reporters in the absence of any information even as to the identity of the person who witnessed the conversation was insufficient to justify the In camera examination of each grand juror requested by Lance. From this order denying the requested relief without an evidentiary hearing, Lance brought the present appeal.

The government questions whether the order of the district court denying Lance's motion for sanctions is an appealable final order under 28 U.S.C. § 1291. At the outset we conclude that the proceeding before us is in civil contempt. Of the several guides used to distinguish between civil and criminal contempt proceedings, the purpose of the proceeding is by far the most significant. Here, that purpose was so clearly remedial, that the proceeding must be characterized as civil. In In re Special April 1977 Grand Jury, 587 F.2d 889 (7th Cir. 1978), the Seventh Circuit dealt with a challenge to an appeal from the denial of a petition to terminate grand jury proceedings while the criminal trial process was still proceeding. In that case, the court concluded that the denial of the sanction requested for an alleged violation of Rule 6(e) was an appealable final order within the meaning of section 1291. The court reasoned that if the order were not reviewable the petitioner would be denied any meaningful opportunity to obtain appellate review of the lower court's disposition of his grievance or to correct the damage caused by the alleged unauthorized disclosures. 587 F.2d at 891-92. We adopt this same reasoning and hold that the order denying Lance's request for relief was appealable under section 1291.

The harm Lance alleges is capable of repetition, and if we were to require completion of the discrete criminal trial processes before permitting review, we would deny any efficacious remedy. Acquittal or conviction would so obscure the claim of a personal remedy for grand jury irregularity as to render it meaningless. Lance's request for relief has practical viability only while the resultant criminal proceeding is executory. Unless we provide a remedy now, the harm would be rendered unreviewable. The situation is thus analogous to an interlocutory civil order which the Cohen doctrine would make appealable. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949).

At oral argument the government also challenged the appealability of the order denying relief on the ground that the return of an indictment by the grand jury against Lance subsequent to the district court's decision mooted his request for relief. The return of the indictment does moot Lance's request that the grand jury be dismissed. To attack the validity of the grand jury proceedings, he must now seek to dismiss the indictment. Lance's request that contempt sanctions be imposed upon the attorneys for the Justice Department and the United States Attorney's Office, however, is not mooted by his indictment. The attorneys are not parties to the ongoing criminal proceedings involving Lance but were the government officials charged with the duty of conducting the grand jury investigation. Moreover, because the grand jury process is now complete for Lance's case, there is no chance that any remedial relief granted could interfere with the grand jury's work. The order denying the requested contempt sanctions against them can be appealed by Lance. Lamb v. Cramer,285 U.S. 217, 52 S. Ct. 315, 76 L. Ed. 715 (1932); Sanders v. Monsanto Co.,574 F.2d 198, 199 (5th Cir. 1978); Southern Railway Co. v. Lanham, 403 F.2d 119, 124 (5th Cir. 1968).

Lance contends that the court below erred in denying his motion for contempt sanctions without holding an evidentiary hearing. He contends that those parts of the articles that refer to factual determinations made by federal investigators, that describe specific substantive areas in which Lance might have violated the law, that depict specific areas into which the grand jury was inquiring, and that attribute to Justice Department officials' statements that Lance and other persons would be indicted reflect information which could only have been garnered from sources in the Justice Department.

The Supreme Court has consistently acknowledged the importance of the secrecy requirements imposed upon grand jury proceedings to the proper functioning of the grand jury system. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979); United States v. Proctor & Gamble Co., 356 U.S. 677, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958). Maintaining the confidentiality of grand jury proceedings protects several important interests of the government and of private citizens. First, if preindictment proceedings were conducted publicly, individuals who learned of their possible indictment might flee the jurisdiction or attempt to tamper with the grand jurors or witnesses appearing before them. Persons with information about crimes would be less willing to appear voluntarily and to speak fully and frankly, knowing that the individuals about whom they testify would be aware of that testimony. The rule of secrecy avoids injury to the reputation of those persons accused of crimes whom the grand jury does not indict. Finally, it encourages the grand jurors to investigate suspected crimes without inhibition and to engage in unrestricted deliberations. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. at 219, 99 S.Ct. at 1673, 60 L. Ed. 2d at 165 (1979); United States v. Proctor & Gamble Co., 356 U.S. at 681 n.6, 78 S. Ct. at 986 n.6, 2 L. Ed. 2d at 1081 n.6 (1958); United States v. Malatesta, 583 F.2d 748, 752 (5th Cir. 1978), Modified on other grounds, 590 F.2d 1379 (en banc), Cert. denied, 440 U.S. 962, 99 S. Ct. 1508, 59 L. Ed. 2d 777 (1979); United States v. Howard, 569 F.2d 1331, 1335 (5th Cir.), Cert. denied, 439 U.S. 834, 99 S. Ct. 116, 58 L. Ed. 2d 130 (1978).

Embodying this reasoning, F.R.Crim.P. 6(e)(1) provides that:

A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the Government, or any person to whom disclosure is made under paragraph (2)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of rule 6 may be punished as a contempt of court.

F.R.Crim.P. 6(e)(1). To establish a violation of Rule 6(e) by Justice Department attorneys based on the news media reports about the grand jury inquiry, Lance must show that those reports contained information about "matters occurring before the grand jury" which was disclosed by "an attorney for the Government." This appeal will determine what constitutes a sufficient prima facie showing of a violation of Rule 6(e) to support a petition for sanctions.

This is a case of first impression in this circuit. We therefore turn to Rule 6(e) cases decided by other courts at the outset of our analysis. The parties have called to our attention six cases dealing with an alleged violation of Rule 6(e) by government disclosure of information about pending grand jury matters. Five of these cases are decisions by the United States District Court for the Southern District of New York and one is by the Seventh Circuit. Presenting similar factual situations to the one at bar, all of these cases involve allegations by a party that newspaper reports about the activities of a grand jury were based on information unlawfully disclosed by government attorneys. However, none of the cases cited deals with motions, such as Lance's, which seek contempt sanctions.

In United States v. Kahaner, 204 F. Supp. 921 (S.D.N.Y.1962), Aff'd, 317 F.2d 459 (2d Cir.), Cert. denied 375 U.S. 835, 84 S. Ct. 62, 11 L. Ed. 2d 65 (1963) and 375 U.S. 836, 84 S. Ct. 73, 11 L. Ed. 2d 65 (1963), the defendants sought dismissal of an indictment on the basis of preindictment publicity about the grand jury proceedings, which they alleged resulted from disclosures by the government. They presented to the court various newspaper articles, some of which attributed information to unidentified "officials." In response to the defendant's motion, the Justice Department attorney in charge of the investigation and prosecution of the defendant denied by affidavit that anyone associated with the government had revealed any information about grand jury matters to any persons and described the actions taken by the Justice Department from the beginning of the investigation to curtail any improper disclosures. Relying on this affidavit, the court held that the defendant's allegations of misconduct, which it characterized as resting on surmise and conjecture, were unsubstantiated and did not warrant dismissal of the indictment. 204 F. Supp. at 922-23.

United States v. Sweig, 316 F. Supp. 1148 (S.D.N.Y.), Aff'd, 441 F.2d 114 (2d Cir.), Cert. denied, 403 U.S. 932, 91 S. Ct. 2256, 29 L. Ed. 2d 711 (1970), presented allegations that the Justice Department and other agencies of the government were responsible for extensive preindictment publicity. The defendant sought dismissal of the indictment on the ground that the government-inspired publicity deprived them of their right to have an impartial grand jury determine whether probable cause existed for the return of an indictment. They submitted to the court numerous newspaper articles which "contained indications (references to 'official' informants and the like) that their sources were government people." 316 F. Supp. at 1154. Contending that the court must reject the defendant's motion as a matter of law, the government did not initially deny the allegations of misconduct by affidavit. Once the court suggested that the case could not be decided as a matter of law, however, the government responded with affidavits denying that any of the attorneys associated with the case had revealed the information reported by the press. After examining the newspaper articles in light of the government's affidavits, the court ruled that the defendants had not shown "a concrete basis for inferring that government officials were responsible in any substantial degree for the unquestionably considerable amount of publicity preceding the indictment." Id. at 1154-55. While acknowledging that journalists generally preserve the confidentiality of their sources with great care, the court concluded that the unspecified "sources" cited by the newspaper articles were not sufficiently particularized to justify holding an evidentiary hearing on the allegations of misconduct and denied the requested relief. Id. at 1155.

In United States v. Archer, 355 F. Supp. 981 (S.D.N.Y.1972), Rev'd on other grounds, 486 F.2d 670 (2d Cir. 1973), the defendants alleged that the government had intentionally released information to the press prior to and during the grand jury's deliberations for the purpose of inflaming the general public and of pressuring one or more of the defendants to cooperate with the government's investigation. Moving for dismissal of the indictment returned against them by the grand jury, the defendants cited fifteen newspaper articles and one editorial which initially reported the existence of an investigation of official corruption in various New York prosecutorial and judicial offices and later identified the defendants as subjects of the inquiry. The articles linking the defendants to the ongoing investigation attributed the information to "informed sources." By affidavit, the government attorneys denied that they were the source of any of the information disclosed. The district court concluded that the news reports cited by the defendants did not constitute sufficient prejudicial publicity to warrant dismissal of the indictment. It noted that of the two articles principally complained of by the defendants one was not released until after the indictment and did not report on the particulars of the investigation and the other cited only "informed sources" and did not disclose any information which was not a matter of public record. Refusing to hold an evidentiary hearing, the court found that even if the defendants had been able to show that the "informed sources" were government officials, the matters disclosed would not justify the granting of any relief. 355 F. Supp. at 987-89.

In United States v. Mitchell, 372 F. Supp. 1239 (S.D.N.Y.), Appeal dismissed sub nom., Stans v. Gagliardi, 485 F.2d 1290 (2d Cir. 1973), the prayer for dismissal of the indictment was based in part upon an article appearing in the New York Times which reported that "sources close to the investigation" had revealed that the grand jury was expected to return an indictment of the defendants on the day that the article appeared. By affidavit the government attorney in charge of the investigation denied that anyone associated with the government had revealed any information about the grand jury proceedings and described the government's extensive efforts to maintain the secrecy of the grand jury proceedings. Relying on Kahaner and Sweig, the district court rejected the defendants' request for dismissal of the indictment and ruled that their conclusory allegations of misconduct did not warrant holding an evidentiary hearing. 372 F. Supp. at 1247-48.

In re Grand Jury Subpoena Served upon Pedro Archuleta, 432 F. Supp. 583 (S.D.N.Y.1977), Reconsidered on subsequent motion, 434 F. Supp. 325, involved a charge by Archuleta of misconduct by the government as one ground of a motion to quash a subpoena ordering him to testify before a grand jury investigating bombings carried out in New York by a radical subversive group. He contended that an article in the New York Times which discussed the investigation of the bombing reported confidential grand jury material which the government had revealed. The article reported that a memorandum prepared by the investigators had named Archuleta as a "prime suspect" in the theft of dynamite found in bombs which failed to explode and that he had been requested by a Chicago grand jury investigating similar bombings to provide voice samples for comparison with taped phone calls announcing that the bombs had been planted. The United States Attorney's office that was conducting the New York investigation filed an affidavit denying that anyone associated with the government agencies involved in the inquiry had disclosed any information about the New York grand jury investigation. The court acknowledged the injurious effect of the disclosure upon Archuleta's reputation; yet it ruled that the misconduct alleged did not warrant quashing the subpoena to testify, noting that the proper remedy for unlawful disclosure of grand jury matters was the imposition of contempt sanctions on the offending party. The court did, however, consider the misconduct to be sufficiently egregious to warrant some remedial action by the court, and it ordered the Justice Department and the United States Attorney for the Southern District of New York to determine whether the improper disclosure originated within the federal government and to inform the court of the progress of this investigation within thirty days. 432 F. Supp. at 597-99. See also United States v. Kearney, 436 F. Supp. 1108, 1118-19 (S.D.N.Y.1977).

The final case cited by the parties is the decision of the Seventh Circuit in In re Special April 1977 Grand Jury, 587 F.2d 889 (7th Cir. 1978). In that case William Scott, who was the object of the ongoing grand jury investigation, requested the district court to terminate the grand jury proceedings because of improper disclosures made by persons associated with the government. Scott alleged that government personnel had revealed information about the grand jury proceedings to the news media and presented evidence of news media reports discussing grand jury matters and attributing the information to "government sources" or to "sources close to the investigation." In response the government filed affidavits by the persons involved in the investigation denying that they had disclosed the information reported by the news media. The Seventh Circuit upheld the dismissal without an evidentiary hearing of Scott's petition alleging violations of Rule 6(e) on the grounds that Scott had failed to present sufficient proof that persons associated with the government were the source of the information and that much of the material revealed could have been disclosed during the investigation conducted by the government prior to the empaneling of the grand jury. Noting that a petitioner who seeks to interfere with the grand jury process bears a heavy burden of justifying such relief, the court found that Scott did not demonstrate with sufficient particularity the sources of the information disclosed. The court found the references in the article to "government sources" or "sources close to the investigation" to be insufficient to establish the government's involvement in the publicity since "news reporters, as all the world knows, invariably attribute the information they receive to 'confidential sources' and in connection with stories of this nature, to unnamed sources 'close to the investigation.' " The court declined to grant Scott the opportunity to conduct an investigation in the form of an evidentiary hearing or civil discovery so that he could make his allegations more definite. 587 F.2d at 892-93.

In determining whether a party alleging a violation of Rule 6(e) based upon news media reports has established a prima facie case, a court must consider several factors. First, there must be a clear indication that the media reports disclose information about "matters occurring before the grand jury." F.R.Crim.P. 6(e). See In re Special April 1977 Grand Jury, 587 F.2d 889 (7th Cir. 1978); United States v. Archer, 355 F. Supp. 981 (S.D.N.Y. 1972), Rev'd on other grounds, 486 F.2d 670 (2d Cir. 1973). Courts have interpreted the secrecy requirement imposed by Rule 6(e) to apply not only to information drawn from transcripts of grand jury proceedings, but also to anything which "may tend to reveal what transpired before the grand jury." United States v. Armco Steel Corp., 458 F. Supp. 784, 790 (W.D.Mo.1978). See also United States v. Gold, 470 F. Supp. 1336, 1350 (N.D.Ill.1979). We construe the secrecy provisions of Rule 6(e) to apply not only to disclosures of events which have already occurred before the grand jury, such as a witness's testimony, but also to disclosures of matters which will occur, such as statements which reveal the identity of persons who will be called to testify or which report when the grand jury will return an indictment.4

However, the disclosure of information obtained from a source independent of the grand jury proceedings, such as a prior government investigation, does not violate Rule 6(e). In re Special April 1977 Grand Jury, 586 F.2d at 892; United States v. Archer, 355 F. Supp. at 989. A discussion of actions taken by government attorneys or officials E. g., a recommendation by the Justice Department attorneys to department officials that an indictment be sought against an individual does not reveal any information about matters occurring before the grand jury.5 Nor does a statement of opinion as to an individual's potential criminal liability violate the dictates of Rule 6(e). This is so even though the opinion might be based on knowledge of the grand jury proceedings, provided, of course, the statement does not reveal the grand jury information on which it is based.6

Second, the article or articles must indicate the source of the information revealed to be one of those proscribed by Rule 6(e), which prohibits disclosure only by "(a) grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the Government, or any person to whom disclosure is made under paragraph (2)(A) (ii) of this subdivision."7 Rule 6(e) does not prevent disclosures by a witness who testifies before the grand jury. United States v. Radetsky, 535 F.2d 556, 559 (10th Cir.), Cert. denied, 429 U.S. 820, 97 S. Ct. 68, 50 L. Ed. 2d 81 (1976); In re Investigation Before April 1975 Grand Jury, 174 U.S.App.D.C. 268, 274 n.11, 531 F.2d 600, 606 n. 11 (D.C. Cir. 1976); In re Langswager, 392 F. Supp. 783, 788 (N.D.Ill.1975); In re Minkoff, 349 F. Supp. 154, 157 (D.R.I.1972).

The information revealed in the news article must be considered in determining whether a Rule 6(e) source is identified. For example, if an article reports that following the presentation of specified evidence at a future time, the grand jury plans to return an indictment against named persons, the attribution of such information to "sources close to the investigation" might, without more, suffice to establish a prima facie case of a Rule 6(e) violation by the attorneys conducting the investigation. The nature of the disclosure is such that it discloses the likely source.8 On the other hand, if the article merely discusses the testimony of a witness before the grand jury, such information could have originated from a number of sources, including the witness himself or the grand jurors.9 Occasional references in an article to government attorneys or officials as the source of information the disclosure of which would not violate Rule 6(e) cannot be used to show that more serious disclosures in the same article that are attributed to such vague origins as "sources close to the investigation" were made by the Justice Department in the absence of any indication from the nature of the material disclosed that some likelihood exists that it did originate with the Justice Department.10

Disclosures which expressly identify when an indictment would be presented to the grand jury, the nature of the crimes which would be charged, and the number of persons who would be charged run afoul of the secrecy requirements codified in Rule 6(e).11 It is not necessary for the article to expressly implicate the Justice Department as the source of the disclosures if the nature of the information disclosed furnishes the connection.12

The inability to show a definite source for some of the information contained in the articles might cause a prima facie case to fail if a responsive affidavit denying the allegations is made. At the same time, even with such a response, the detail as well as the seriousness of a disclosure may militate in favor of a further investigation of its source in the form of an evidentiary hearing.

While each article must be parsed individually, the testing for a prima facie case must also include a review which considers the whole spectrum of news articles. The precise attribution of a source in one or more articles may give definition to a vague source reference in others because of their context in time or content.

Third, in assessing the what and who of disclosure at the prima facie case stage, the court must assume that all statements in the news report are correct.13 Given the broad first amendment protections accorded the news media, the assumption is a necessary safeguard to the enforcement of Rule 6(e). The complainant will almost never have access to anything beyond the words of the report. The respondent, on the other hand, is in the best position to know whether he is responsible for a violation.

Fourth, a court must consider the nature of the relief requested and the extent to which it interferes with the grand jury process. A criminal defendant who seeks to obtain dismissal of an indictment, a person subpoenaed to testify before the grand jury who requests the court to quash the subpoena, or the target of an ongoing grand jury investigation who seeks to have the grand jury dismissed bears a heavy burden in attempting to justify such relief.14 A prima facie case to secure a hearing on whether to impose contempt sanctions upon government attorneys, however, does not require as strong a showing. Such a hearing carries little threat of conflict with the grand jury proceedings. Punishment for contempt of court is the sanction specifically authorized by Rule 6(e)(1) for violations of its provisions, and a contempt citation will generally provide an adequate remedy for such violation. See United States v. Malatesta, 583 F.2d 748, 753 (5th Cir. 1978), Modified on other grounds, 590 F.2d 1379 (en banc), Cert. denied,440 U.S. 962, 99 S. Ct. 1508, 59 L. Ed. 2d 777 (1979); United States v. Dunham Concrete Products, Inc., 475 F.2d 1241 (5th Cir.), Cert. denied, 414 U.S. 832, 94 S. Ct. 65, 38 L. Ed. 2d 66 (1973); In re Grand Jury Subpoena Served upon Pedro Archuleta, 432 F. Supp. at 599.

Fifth, the court must weigh any evidence presented by the government to rebut the assumed truthfulness of reports which otherwise make a prima facie case of misconduct. In all of the cases discussed above, the government official responsible for the investigation denied by affidavit that any person associated with the government had disclosed information in violation of Rule 6(e). In every case but In re Special April 1977 Grand Jury, the court expressly relied upon the affidavit filed by the government in denying the requested relief without an evidentiary hearing on the charges of misconduct. In re Grand Jury Subpoena Served upon Pedro Archuleta, 432 F. Supp. at 599; United States v. Mitchell, 372 F. Supp. at 1247-48; United States v. Archer, 355 F. Supp. at 989; United States v. Sweig, 316 F. Supp. at 1154-55; United States v. Kahaner, 204 F. Supp. at 922-23. In Sweig, however, the government filed its responsive affidavit only after the district court suggested that it could not reject the defendant's motion as a matter of law in the absence of any denial of misconduct by the government. 316 F. Supp. at 1154.

Relying upon Kahaner, Sweig, Archer, and Mitchell, the district court concluded that the articles cited by Lance either did not sufficiently particularize the sources of information revealed or, where the information was specifically attributed to government officials, did not disclose matters occurring before the grand jury. However, this case differs from those cases relied upon by the district court in several respects. One form of relief requested by Lance was the imposition of contempt sanctions upon the government attorneys and employees associated with the grand jury investigation. In the prior cases the relief sought was either the dismissal of an indictment, United States v. Mitchell, 372 F. Supp. at 1246; United States v. Archer, 355 F. Supp. at 987; United States v. Sweig, 316 F. Supp. at 1153; United States v. Kahaner, 204 F. Supp. at 922; the dismissal of the grand jury, In re Special April 1977 Grand Jury, 587 F.2d at 890; or the quashing of a subpoena to testify, In re Grand Jury Subpoena Served upon Pedro Archuleta, 432 F. Supp. at 586. Rule 6(e) expressly authorizes the imposition of contempt sanctions as a punishment for a knowing violation of the secrecy rule, and the grant of such relief would not have interfered with the grand jury's ongoing investigation.

Unlike the parties seeking relief in the prior cases, Lance has attempted several times to have the court halt prejudicial disclosures of confidential grand jury matters appearing in the news media. When the publicity first began to appear, he properly sought relief from the district court. The relief granted proved ineffective. Lance then filed this motion for sanctions following the appearance of several articles which cited Justice Department officials as the source of the information disclosed. Unlike prior cases, the Justice Department and the United States Attorney's office refused a request by Lance that they submit affidavits denying that they or their staff had discussed grand jury matters with the press.

In light of the relief sought by Lance and the government's failure to file an affidavit denying the charges of misconduct, we conclude that the newspaper articles presented by Lance to the district court sufficiently established a violation of Rule 6(e) by persons associated with the Justice Department or the United States Attorney's Office for the Northern District of Georgia to prevent the district court from dismissing Lance's motion for sanctions as a matter of law. The articles contain numerous disclosures of information about the grand jury proceedings, and several of the articles identify either expressly or by inference the government attorneys as the source of the information.15

Examining all of the materials presented to the district court as a whole, we conclude that Lance made a sufficient prima facie showing of a violation of Rule 6(e) to warrant an evidentiary hearing in the absence of any affidavit by the Justice Department attorneys denying that they, their associates, or their superiors divulged the information appearing in the newspaper articles. Other courts have found affidavits of denial by the responsible government officials sufficient to counter any allegations of improper conduct under Rule 6(e); yet the relief sought in those cases was not contempt sanctions but a serious interference with the grand jury process. We leave for decision after a factual analysis by the district court the question whether the showing made by Lance would still warrant an evidentiary hearing even if a responsive affidavit should be filed by government counsel.

REVERSED and REMANDED.

I respectfully dissent. In my opinion, the denial of the motion for contempt is not an appealable order under 28 U.S.C. § 1291 and, therefore, this court lacks jurisdiction.

Analytically, appealability first turns on whether the contempt sought is criminal or civil. Denial of a criminal contempt motion is non-appealable. Denial of civil contempt is appealable by a non-party. If the appellant is a party, however, denial of a civil contempt is not appealable at this juncture because a Party has an opportunity for meaningful review at the conclusion of the case in chief unless the contempt action is so collateral to the litigation that immediate appeal is appropriate. Thus analyzed, the instant denial is not appealable.

Contempt is the normal remedy for breach of grand jury secrecy pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure. See United States v. Malatesta, 583 F.2d 748 (5th Cir. 1978), Modified on other grounds, 590 F.2d 1379 (5th Cir. 1979) (en banc). The court in Malatesta, however, did not reach or decide whether the contempt discussed was more appropriately criminal than civil.1 This distinction is important because a criminal contempt action is governed by the rules applicable to criminal proceedings generally; no appeal may be taken from a judgment in favor of the alleged contemnor, including a denial of the motion.2 Therefore, if the contempt action at issue here is criminal, there can be no appeal.3 Lamb v. Cramer, 285 U.S. 217, 220, 52 S. Ct. 315, 76 L. Ed. 715 (1932); United States v. Sanges, 144 U.S. 310, 323, 12 S. Ct. 609, 36 L. Ed. 445 (1892); Wingert v. Kieffer, 29 F.2d 59 (4th Cir. 1928); United States ex rel. West Virginia-Pittsburgh Coal Co. v. Bittner, 11 F.2d 93 (4th Cir. 1926).

The majority concludes that the contempt sought here is clearly civil rather than criminal. I disagree that the answer is so clear. No bright line distinguishes the two; however, there are criteria by which the nature of the proceeding can be determined. One factor is the character of the offense. If the purpose of the sanction is to vindicate the public interest, the proceeding is criminal in nature; if it is to remedy a wrong done to a particular individual, it is civil. Another factor is the remedy prayed for. If the proceeding is to result in punitive sanctions, by unconditional fine or imprisonment, it is considered criminal. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911);4 Duell v. Duell, 85 U.S.App.D.C. 78, 178 F.2d 683 (D.C.Cir.1949). If, on the other hand, the remedy is compensatory or coercive to secure performance of an obligation,5 the proceeding would be civil. Even coercive imprisonment is civil because the defendants "carry the keys of their prison." See In re Nevitt, 117 F. 448, 461 (8th Cir. 1902).

Here the prohibited action was the alleged disclosure of matters presented to the grand jury. In United States v. Malatesta, 583 F.2d 748 (5th Cir. 1978), the court identified four traditional reasons for clothing the grand jury process in secrecy: (1) to protect the accused from escaping and tampering with witnesses; (2) to encourage witnesses to appear and speak freely; (3) to encourage jurors to engage in an uninhibited investigation and deliberation; and (4) to protect the reputation of an accused who is Not indicted. It is apparent that all but factor (4) benefit the public interest in insuring the independence of the grand jury process. Factor (4) does not provide a basis for relief here because the appellant has been indicted.6 Therefore because the remaining reasons for grand jury secrecy protect public interests, it can be inferred from the nature of the offense that the contempt proceeding is criminal.

In addition to character of the violation, the nature of the contempt depends upon whether the sanction imposed is coercive and conditional or punitive. Gompers v. Buck's Stove & Range Co., supra. Because the instant case involves Denial of the motion for sanctions rather than an Imposition of sanctions, we are limited in our analysis of the nature of the sanctions to the prayer for relief;7 it is impossible to determine from the motion itself whether the sanctions sought are punitive or remedial.8 Again because policies of secrecy are for the benefit of public rather than private interests, implying that a contempt action for violation would be criminal, appellant, at least, should have demonstrated that the remedies sought were remedial9 rather than punitive.

It is evident that if the present motion is construed to be one for criminal contempt there can be no appeal from the denial. United States v. Sanges, supra. However, even if we adopt the reasoning of the majority that the contempt sought is civil,10 this appeal is not proper.

An order holding a Party to a lawsuit11 in civil contempt is interlocutory and normally not appealable until final judgment of the case in chief. Doyle v. London Guaranty Co., 204 U.S. 599, 27 S. Ct. 313, 51 L. Ed. 641 (1907). Inferentially, the Denial of such a motion is also not appealable by a party to the lawsuit. See Union Tool Co. v. Wilson, 259 U.S. 107, 110-11, 42 S. Ct. 427, 66 L. Ed. 848 (1922). The obvious reason underlying this doctrine is that a party to ongoing litigation will have another, more appropriate, opportunity to seek review of the court's action when the entire case is appealed.12 This rationale preserves the party's right to appeal and also diminishes piecemeal litigation with its attendant disruption of the ongoing case. Although it is true that a grand jury proceeding is "party-less" the Supreme Court has held that this distinction is immaterial in determining appealability.13 Cobbledick v. United States, 309 U.S. 323, 327, 60 S. Ct. 540, 84 L. Ed. 783 (1940). Furthermore, when a target has been indicted, as here, the criminal proceeding is definite as to parties and the party-less nature of a grand jury proceeding has disappeared.

The lack of an opportunity for review was the basis for the Seventh Circuit's decision in In re Special April 1977 Grand Jury,14 relied upon by the majority. Factually, the case differs from the instant case, however, in that the target in April 1977 Grand Jury had not yet been indicted leaving the appellant in a different procedural posture than the instant case. The distinction is important because in April 1977 Grand Jury the court concluded15 that an unindicted target has no other meaningful opportunity for review because no trial will occur from which final adjudication on appeal can be taken.16 Additionally, the unindicted target has no opportunity to rehabilitate his reputation at trial. Thus, the appeal did not run counter to the policies against piecemeal litigation and disruption of the judicial process. Moreover, protection of the reputation of the unindicted or innocent accused is one of the policies behind grand jury secrecy. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979); United States v. Malatesta, supra. Because the target here has been indicted, he will have an opportunity to vindicate himself before a jury of his peers or to appeal at the termination of the case in chief.17

The majority has concluded that the order is appealable on the theory that the alleged defendants in the contempt proceeding are Non-parties, being government employees appearing as attorneys for the government. Even if we accept the proposition that, in the instant case, the prosecuting attorneys are non-parties, appealability does not turn upon that status. In determining appealability, it is the status of the Appellant rather than that of the appellee which is dispositive. Thus, a non-party may immediately appeal a contempt citation, yet a contempt citation against a Party may not be appealed prior to final judgment. See text accompanying n. 11, Supra. The distinction is logical a non-party has no opportunity for review besides an immediate appeal whereas a party can have the order reviewed as part of the appeal of the case in chief. Analogously, a denial of contempt against a non-party cannot be appealed by a party until the termination of the case in chief.18 Thus, even if the appellees are properly considered non-parties to the criminal proceedings against Lance, the denial of the motion for sanctions is non-appealable at this time.

Furthermore, the claim of the appellant is not limited to a discrete group of government officials who might properly be considered non-parties, but is against "all attorneys, agents and employees of the United States Department of Justice and the United States Attorneys Office for the Northern District of Georgia who are or have been involved in any manner whatsoever in the federal grand jury investigation of the banking practices and related activities of certain northern Georgia banks." This overly-broad language presumably includes the Attorney General within its scope.19 Rather than seeking redress from mere government officials, the appellant has implicated the hierarchy of the Justice Department itself, a branch of the Federal Government which is presumably a "party" to a grand jury investigation and to a criminal trial. Moreover, the appellant obviously considered the appellees parties to the grand jury proceeding as he failed to initiate a separate proceeding with summons and service, steps which would be necessary in a contempt action against a non-party in order to comport with the requirements of due process.20

In support of the argument that appeal is proper against the non-party government attorneys, the majority relies chiefly21 on the Supreme Court decision in Lamb v. Cramer, 285 U.S. 217, 52 S. Ct. 315, 76 L. Ed. 715 (1932).22 A close reading of Lamb discloses that such reliance is misplaced. First, Lamb v. Cramer involved an issue more akin to res judicata than to appealability of non-final orders. Second, the case in chief involved in Lamb had terminated in final judgment prior to the appeal from the denial of the motion for contempt so that the denial itself was final.

Although the order involved here is interlocutory, review would be proper if the denial of the motion is collateral to the ongoing criminal proceedings. Under 28 U.S.C. § 1291, the court of appeals has jurisdiction to review only final judgments.23 The Supreme Court has authorized appeal of collateral orders, however, recognizing that there exists a "small class (of orders) which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225-1226, 93 L. Ed. 1528 (1949). The Court implied that review would be restricted to orders presenting "serious and unsettled question(s)." Id. at 547, 69 S. Ct. 1221. The Fifth Circuit has interpreted this rule to limit interlocutory appeal to "an order otherwise not appealable, determining substantial rights of the parties which will be irreparably lost if review is delayed until final judgment . . . ." United States v. Wood, 295 F.2d 772, 778 (5th Cir. 1961), Cert. denied, 369 U.S. 850, 82 S. Ct. 933, 8 L. Ed. 2d 9 (1962).

In determining whether an order is collateral, we are cognizant of the policies of minimizing piecemeal litigation and disruption of the orderly administration of justice. "Adherence to this rule of finality has been particularly stringent in criminal prosecutions because 'the delays and disruptions attendant upon intermediate appeal' which the rule is designed to avoid 'are especially inimical to the effective and fair administration of the criminal law.' " Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651, 657 (1977). This policy applies to grand jury proceedings as well as trials. In the language of the Supreme Court:

The proceeding before a grand jury constitutes "a judicial inquiry," Hale v. Henkel, 201 U.S. 43, 66 (, 26 S. Ct. 370, 375, 50 L. Ed. 652) (1906), of the most ancient lineage. . . . The duration of its life, frequently short, is limited by statute. It is no less important to safeguard against undue interruption the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found. Opportunity for obstructing the "orderly progress" of investigation should be no more encouraged in one case than in the other. That a grand jury has no definite litigants and that none may emerge from it, is irrelevant to the issue.

Cobbledick v. United States, 309 U.S. 323, 327, 60 S. Ct. 540, 542, 84 L. Ed. 783 (1940).

The appellant has failed to demonstrate that the present order satisfies the above criteria for collateral orders. Because the appellant in his prayer for relief has not identified what sanctions he would ultimately seek, it is impossible to determine whether this action is "independent of the cause itself." See e. g., Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965), Cert. denied, 384 U.S. 929, 86 S. Ct. 1380, 16 L. Ed. 2d 532 (1966). Recognizing that the probability of disruption of the criminal investigation is relevant to appealability, the majority reasons that disruption is improbable because only contempt sanctions are sought. The majority, at best, is using a cloudy crystal ball, however, because the district court has very broad powers in fashioning contempt sanctions in order to remedy breaches of court orders.24 Moreover, the appellant specifically prays for relief that would "fully and appropriately protect the constitutional rights of the petitioner." He further states that he has "been denied his rights under the fourth, fifth and sixth amendments to the United States Constitution." These prayers are very telling in terms of whether the motion is truly collateral. It is obvious that the appellant is seeking protection of rights in the criminal context which are not collateral to an eventual criminal proceeding.25 Furthermore, because appellant will have an opportunity to air his constitutional grievances at trial, this court will have an opportunity to review such constitutional claims on appeal of the entire case.26

The foregoing should not be construed as precluding review of a district court's supervision of the grand jury process; rather Appeal is simply not the appropriate route. A better procedure to cure abuses of discretion or errors by the district court in supervising a grand jury is mandamus. See In re Grand Jury Subpoenas, 581 F.2d 1103 (3d Cir. 1978). Mandamus is more appropriate for three reasons: (1) Mandamus is discretionary with This court and not automatic as is appeal, and consequently has a lesser impact on the administration of the grand jury proceeding. (2) Mandamus benefits the movant because relief can be granted at a more meaningful time during grand jury deliberations rather than after an indictment has been returned, as in the instant case. (3) Mandamus will not spawn more appealable orders because a granting of the writ of mandamus is not a finding that the entire action is collateral to the main event. Additionally, prospective protection of the grand jury process can be accomplished by injunctive relief,27 the denial of which is appealable under 28 U.S.C. § 1292. Therefore, through mandamus and injunction the administration of grand jury proceedings can be scrutinized and the personal interests of targets can be protected without creating a new category of appealable orders.

For the foregoing reasons I conclude that the appeal should have been dismissed for lack of jurisdiction.