Challenging Federal Grand Jury Investigations: What to Do With What is Left

By Joel M. Androphy

A federal grand jury is investigating your client, the president and sole shareholder of XYZ, Inc. Your client and his corporation have received grand jury subpoenas demanding testimony, a handwriting exemplar, and the production of almost every document written in the past five years. Several employees of his corporation have been subpoenaed and instructed by the prosecutor not to discuss with your client the substance of their testimony. You subsequently find out from loyal employees that the investigation is slanted toward the testimony of disgruntled former employees, who have been offered immunity for their testimony. Rather than a direct approach to the investigation, the government is relying on hearsay-on-hearsay and drawing conclusions from questionable testimony.

There is an increasing awareness of similar improprieties surrounding many government investigations. Despite an apparent effort by the courts to find harmless error in a variety of situations, there is still some room to challenge prosecutorial misconduct. A persistent challenge during the pre-indictment stage of the investigation may save your client from a ruinous indictment. If nothing, else your effort will cause the overzealous prosecutor to be more careful.

This article will discuss the methods to attack improper grand jury proceedings from pre-indictment through appeal. A discussion of strategical consideration will provide a practical and useful aid in defending your client.

A. PRE-INDICTMENT RELIEF

1. The Supervisory Powers of the Federal Courts Over Grand Jury Investigations

The Supreme Court has recognized the supervisory power or jurisdictions of federal courts to formulate procedural rules not specifically enacted by Congress.1 The Court described the purposes underlying use of supervisory powers as:

“to implement a remedy for violation of recognized rights, … to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, … and finally, as a remedy designed to deter illegal conduct.”2

Most circuit courts have also recognized and defined the scope of the supervisory powers of federal courts.3 Because the grand jury is “an appendage of the court,”4 federal courts have increasingly exercised their supervisory powers over the administration of justice to regulate the manner in which grand jury investigations are conducted.5

2. The Court’s Role With Regard to the Conduct of Grand Jury Proceedings

In general, the courts will not dismiss a grand jury unless pre-indictment conduct affects the independent decision making ability of the grand jury. While courts are reluctant to interfere with a grand jury’s investigation, there are instances where judicial intervention is required even before grand jury proceedings are completed.6 “Where there is a clear potential for a violation of rights either of a witness or of a non-witness, [and] if the violation cannot be corrected at a later stage,” a court is not required to defer relief until after issuance of an indictment.7

“The grand jury’s historic role has been to serve as a protective bulwark standing solidly between the ordinary citizen and the overzealous prosecutor.”8 The reality, however, that grand jury proceedings are “secret, re parte and largely under the control of a federal prosecutor” should magnify counsel’s concern regarding the propriety of the investigation or usurpation of power by the prosecutor is called into question. Trusting that the system will always work without judicial interference or that any problems can be addressed later in litigation is naive.

Although the hypothetical investigation posed at the beginning of this article may not warrant dismissal of the grand jury,10 or to request sanctions under the disciplinary rules of the district court.11 The court may also want to closely monitor the conduct of the proceedings. If nothing else, your efforts will cause the prosecutor to reevaluate his strategy and employ a more professional approach for the remainder of the investigation.

3. The Court’s Role With Regard to Reviewing Grand Jury Testimony

Whenever a court dismisses a grand jury or otherwise imposes sanctions, if there is evidence of any misconduct, request an immediate in camera review of the transcripts of the grand jury testimony. This practice will also serve as a preventive measure against future prejudice.12

Even if you are fortunate in obtaining a dismissal of the grand jury, the right to an independent grand jury investigation will only be partially guaranteed upon transfer of the case to another untainted grand jury.13 The government will still have discretion to make presentations to the successor grand jury based upon evidence the original grand jury received. In other words, the government would be free to have a federal agent orally summarize the transcribed testimony of witnesses rather than calling the live witnesses for a second time.14 Should the government opt to present its evidence through the expedient and economical summarization method, any improprieties will be transmitted to the successor grand jury.

4. The Court’s Role With Regard to the Secrecy of Grand Jury Proceedings

Congress designed Fed. R. Cri. P. 6(e) to prevent disclosure of matters occurring before the grand jury, thereby implementing the “long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts.”15 To these ends, Rule 6(e)(2) in part recites a general rule of secrecy:

(2) General Rule of Secrecy. A grand juror, an intepreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person whom disclosure is made under paragraph 3(A)(ii) of this subdivision shall not disclose matter occurring before the grand jury, except as otherwise provided 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.
[emphasis added]

According to its plain terms, the Rule excludes the imposition of an “obligation of secrecy” on anyone who is not among the specifically named individuals.16 Witnesses, while not mentioned in the rule, are discussed in the following note of the Advisory Committee:

The Rule does not impose any obligation of secrecy on witnesses.

The Supreme Court, too, has observed that witnesses are not bound by the secrecy obligation of the rule “unless they happen to fit into one of the enumerated classes.”17 The Rule, in view of its interpretation by the Advisory Committee note and the Supreme Court in Sells Engineering,18 positively exempts witnesses from any such obligation.19 Several courts have taken this approach.20 At least one court sharply condemned prosecutors for violating the rule in this manner.21

Other courts, however, have left open the possibility that a court could, under the appropriate circumstances, impose secrecy on a grand jury witness.22 For example, the Eighth Circuit would require a demonstration of “compelling necessity … shown with particularity” before a court could issue such an order.23 Those courts finding an exception to the rule’s seemingly unequivocal language allow a secrecy obligation on witnesses when: (a) the obligation was imposed by a court; and (b) the court had imposed the obligation after an appropriate showing by the government.

In the hypothetical investigation posed earlier, you should request the court to order the prosecutor to send a letter to the witnesses advising them that they may speak with defense counsel. This may encourage more witnesses to talk with you than originally intended.

5. The Court’s Role With Regard to Grand Jury Subpoenas

a. Unreasonable and Oppressive, and/or Vague and Overbroad

Grand Jury subpoenas are instrumentalities of the United State’s Attorney’s office, issued pro forma without any court approval.(24) As a practical matter, the grand jury is generally unaware of their issuance.

A grand jury subpoena duces tecum, however, “remains at all times under the control and supervision of a court.”25 The court on motion may quash or modify the subpoena, if compliance would be unreasonable or oppressive, vague or indefinite.26 For example, it is contrary to the first principles of justice to allow a search through all of a corporation’s records, relevant or irrelevant, in the hopes that something will turn up.27

In the hypothetical situation, file a motion to quash objecting to the exploratory search. Be prepared, however, to offer to produce certain relevant documents to show your good faith and not general obstinance to subpoenas in general.

b. Handwriting Exemplars

Mere handwriting exemplars that display physical characteristics may be compelled by a grand jury.28 On the other hand, forcing compliance with a subpoena for contrived handwriting exemplar violated a witness’s Fourth and Fifth Amendment rights.29

In the hypothetical situation, inquire about the “real” intentions of the prosecutor. If the prosecutor wants your client to alter his handwriting style and submit convoluted exemplars to match the incriminating documents, file a motion to quash. Also, attend the handwriting session and instruct your client to make two sets of exemplars. If there is any issue to be raised later, you will have the samples readily available.

c. Fifth Amendment Concerns Regarding Testimony and Document Production

There is no dispute that, unless waived,30 your client has a Fifth Amendment right not to produce personal records.32 A letter to the prosecutor, rather than a personal appearance by your client, will usually suffice.

Custodians of corporate records, however, may generally not invoke the Fifth Amendment privilege against self incrimination.33The argument that the mere act of production constitutes personal testimony conceding the existence or authentication of the documents has been recently foreclosed by the Supreme Court.34 This Protection is reserved for sole proprietorships,35 and potentially viable for corporations where the custodian is the sole employee, officer, and shareholder.36

In the hypothetical situation, assert every right and privilege available. Remember that your precautions are the prosecutor’s headaches.

d. Attorney-Client Privilege With Regard to Testimony or Document Production

The attorney-client privilege protects oral or written communications made in confidence by clients to their lawyers for the purpose of obtaining legal advice.37 A record that is unprivileged in the hands of the clients, or their agents, such as an accountant or controller, does not become privileged simply by handing the document to an attorney.38

Without question, the production request will encompass privileged information. Unless the subpoena specifically excludes any reference to this material or the prosecutor consents to your position in writing, file a motion to quash. Do not assume the prosecutor agrees with you regarding the privileged information. The prosecutor may take the position that is not privileged or the privilege has been waived,39 and file a motion for contempt against your client.

e. Work Product Doctrine

The work product doctrine has been applied to grand jury proceedings,40 bringing into conflict two vital policies: the public interest in the search for the truth and the need to protect attorneys from unwarranted inquiries into their files and mental processes. To be protected, documents must have been generated and prepared in connection with or in anticipation of a grand jury inquiry and potential criminal litigation.41 In this regard, the strategy regarding the attorney-client privilege should be considered.

B. POST INDICTMENT RELIEF

The return of an indictment does not foreclose a challenging any illegality. Although the opportunity to review testimony and challenge the grand jury proceedings is more widely recognized by the courts at this stage, be prepared with specific challenges and not some generalized dislike for the prosecutor.

1. Disclosure of Grand Jury Testimony

Fed. R. Crim. P. 6(e) provides two exceptions for disclosure of grand jury testimony: Rule 6(e)(3)(C)(i) and Rule 6(e)(3)(C)(ii).

a. Particularized Need

Fed. R. Cri. P. 6(e)(C)(i) permits disclosure of grand jury testimony “when so directed by a court preliminarily to or in connection with a judicial proceeding.” The court may direct the manner, time and conditions of such disclosure. There are two related but independent prerequisites to a disclosure under the (C)(i) exemption. First, there is a court imposed “criterion of degree” called the particularized need test.42 Second, the ‘judicial proceeding’ language of (C)(i) imposes an additional criterion governing the kind of need that must be shown.”43

When a criminal proceeding is pending, the sole issue regarding disclosure is whether the “particularized need” requisite has been satisfied. To obtain a court order under the (C)(i) exception for “particularized need” a test has been delineated in Douglas Oil Co. v. Petrol Stops Northwest.44 The three-part balancing test is: Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.

However, once a grand jury has completed its work and an indictment has been returned, the need for secrecy is less compelling and disclosure may be more freely given.45 In that regard, always request the grand jury testimony of questionable witnesses or ask for an in camera review.

b. Evidence for Motion to Dismiss

Fed. R. Crim. P. 6(e)(3)(C)(ii) also permits disclosure “upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.”46 If there is any evidence of grand jury misconduct as detailed below, request immediate review of the proceedings.

2. Grand Jury Misconduct

Federal courts may use their supervisory powers to dismiss indictments for prosecutorial misconduct in the grand jury. The Supreme Court has recently held that dismissal of an indictment is appropriate only “if it is established that the violation substantially influenced the grand jury’s decision to indict,” or there is “great doubt” that the decision to indict was free from this substantial influence.47

a. Bias and Prejudice of Grand Jury

The Fifth Amendment to the United States Constitution guarantees that “(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”48 Nothing more is constitutionally required of an indictment than that it be “returned by a legally constituted and unbiased jury.”49 The Grand Jury must be “independent and informed.”50 It must exercise its fair and unbiased judgment “acting independently of either prosecuting attorney or judge.”51 Where bias and prejudice inhibit the grand jury’s ability to serve as an independent and impartial investigative body, constitutional guarantees are abrogated and the indictment must be dismissed.52

The judge will determine whether any grand juror personally knows a defendant is generally identified.53 Unless your client is a controversial public figure, this area will have little relevance.

b. Prejudicial Publicity

Prejudicial publicity may violate a defendant’s constitutional guarantee of due process, unless certain procedural safeguards are taken.54 The judge impaneling the grand jury must thoroughly probe each prospective juror’s possible prejudice and eliminate any prospective grand jurors when indications of prejudice appear.55 In addition, a judge must instruct the prospective grand jurors as a whole that they must sift through the charges by careful investigation and not by newspaper stories.56

Unless your client is the subject of widespread media attention, this area will also have little relevance. Pay particular attention to any adverse publicity. This is generally spawned by leaks from the prosecution and may suggest a breach of grand jury secrecy.57 It may also provide some insight into the proceedings and suggest other improprieties.

c. False Testimony

Under United States v. Basurto,58the government has a constitutional obligation to inform the court, counsel, and the grand jury about false statements, and that its failure to do so requires dismissal of the indictment. In Basurto, the Ninth Circuit held that:

the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured material, and when jeopardy is not attached. Whenever a prosecutor learns of any perjury committed before the grand jury, he is under a duty to immediately inform the court and opposing counsel – and, if the perjury may be material, also the grand jury – in order that appropriate action may be taken.59

A subsequent Ninth Circuit opinion in United States v. Bracy60 limited the reach of Basurto and questioned its continuing validity, regarding the duty of the prosecutor to inform the court and opposing counsel of all perjured testimony, whether material or immaterial. The Fifth Circuit has never decided whether to adopt the constitutional rule laid down in Basurto or the modified rule of Bracy.61

In the hypothetical situation, request for a review of the transcripts of the witnesses you suspect committed perjury. If it is material to the indictment, you may find some relief.

d. Exculpatory Evidence

While mere failure to present evidence favorable to a defendant to a grand jury is not necessarily automatic grounds for dismissal,62 failure to present evidence that clearly negates guilt would tend to undermine the authority of the grand jury.63

There are two vies concerning the duty of a prosecutor to present exculpatory evidence to a grand jury. Some courts have held that there is no such duty.64 Other courts have stressed the importance of the grand jury hearing all relevant information, and therefore have imposed a duty on the prosecutor to present exculpatory evidence. The Second, Seventh and Tenth Circuits have suggested that, although a prosecutor need not be present all conceivably exculpatory evidence to the grand jury, it must present evidence that clearly negates guilt.65 Where a prosecutor is aware of any substantial evidence negating guilt, he should, in the interests of justice, make it known to the grand jury, at least where it might reasonably be expected to lead the jury not to indict.66

If there is withholding of information vital to the grand jury’s ability to make an informed and independent judgment of the fact situation before them, then dismissal of the indictment is appropriate.67 If there is actual prejudice caused by prosecutor misconduct, then a dismissal of the indictment is appropriate, but there must be a showing of actual prejudice.68 Prosecutorial mis-conduct, even if unintentional, can cause an improper influence on the grand jury’s role; in that regard, the prosecutor has a duty of good faith to the court, the grand jury and the defendant.69

In the hypothetical situation, request that the court review your exculpatory evidence in light of the government’s presentation. Then argue that proffering false, deceptive, and misleading testimony substantially influenced the grand jury’s decision to indict. You may decide, however, that disclosure of your exculpatory information may be more valuable and effective at the trial stage. Prior disclosure may give the government a preview of your defense.

e. Hearsay Testimony

Excessive use of hearsay evidence in a grand jury proceeding may violate the defendant’s Fifth Amendment rights.70 If the hearsay testimony was represented in any way as reliable, the integrity of the grand jury proceedings may have been impaired. This area will only be effective in conjunction with other improprieties.

C. APPEALS

1. Jurisdiction

The United States Court of Appeals for the Fifth Circuit has jurisdiction of an appeal as a collateral order under the doctrine of Cohen v. Beneficial Industrial Loan Corporation.71 To qualify for this exception, the order under appeal must meet three conditions: first, it must conclusively determine the disputed question; second, it must resolve an important issue completely separate from the merits of the action; third, it must be effectively unreviewable on appeal from a final judgement.72

Generally, the first two elements are satisfied. It is the third element that has presented the most confusion depending upon which circuit court analyzes the scope of United States v. Mechanik.73

2. Mechanik Analysis

In Mechanik, the Supreme Court applied the harmless error doctrine to Fed. R. Crim. P. 6(d) violations and the issue of whether there was a probable cause to indict. The Court concluded that any error in the grand jury proceeding that may have affected the grand jury’s decision to indict was rendered harmless by the petit jury’s decision to return to a guilty verdict. Since Mechanik, numerous circuit courts have addressed the issue, raised by Justice Marshall in his dissent, of whether all allegations of grand jury abuse are effectively unreviewable post-conviction, and, if so, whether an indictment for violations of Rule 6 is subject to interlocutory review.

The Ninth Circuit Court of Appeals in United States v. Benjamin,74 held that after giving full precedential effect to Mechanik, they would not be able to afford appellants any effective review of grand jury abuse after final judgment. The court found no meaningful distinction between a Rule 6(d) violation involving probable cause and the decision to indict and a Rule 6(e) violation involving secrecy. Interlocutory appeal was permitted as a collateral order.75 Along the same lines, the Seventh and Eleventh Circuits have applied Mechanik‘s harmless error analysis to allegations of grand jury irregularities other than violations of Rule 6(d).79 In Porter v. Wainwright,77 the Eleventh Circuit applied Mechanik’s harmless error rule to a claim of grand juror bias. The Seventh Circuit applied the rule to claim of prosecutorial misconduct before the grand jury.78

Other Circuits, however, have interpreted Mechanik so as not to preclude post-conviction review of many allegations of grand jury irregularities. The Tenth Circuit Court of Appeals in United States v. Taylor79 ruled that allegations of inflammatory and prejudicial evidence and violations of the attorney-client privilege and the Sixth Amendment went beyond the question of probable cause, and attacked the “fundamental fairness” of the criminal proceedings which would be justiciable after final judgment and not subject to the Mechanik harmless error analysis.80 The Second Circuit denied interlocutory review recognizing a dramatic distinction between Rule 6(e) and a Rule 6(d) violation in Mechanik.81 Finally, the First Circuit Court of Appeals denied interlocutory review both for the reasons set forth in Taylor and its general reluctance against piecemeal appeals.82

The Fifth Circuit Court of Appeals has not fully discussed the issue in light of Mechanik, and its position is unclear.83 The U.S. Supreme Court has heard argument on the issue in January, 1989, and is expected to clarify the confusion.84

CONCLUSION

Counsel should attempt to thwart any attempt by the government to engage in misconduct at the grand jury stage of proceedings. Although the courts have expressed their inclination to rely on petit jury verdicts to render harmless grand jury abuse, a persistent and pervasive pattern of grand jury abuse designed to compromise and undermine the impartiality of the grand jury may reverse the trend in recent court rulings.

ENDNOTES

  1. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608 (1943);
    United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974 (1983).
  2. Id. at 505, 103 S.Ct. at 1978.
  3. See United States v. Kilpatrick, 821 F.2d 1456 (10th Cir. 1987), aff’d, Bank of Nova Scotia v. United States,______U.S.______, 108 S.Ct. 693 (1988); United States v. DiBernardo, 775 F.2d 1470 (11th Cir.), cert. denied, 476 U.S. 1105, 106 S.Ct. 1948 (1986); United States v. Ramirez, 710 F.2d 535 (9th Cir. 1983); United States v. McKenzie, 678 F.2d 629 (5th Cir.), cert. denied, 459 U.S. 1038, 103 S.Ct. 450 (1982); United States v. Estepa, 471 F.2d 1132 (2nd Cir. 1972).
  4. Brown v. United States, 359 U.S. 41, 49, 79 S.Ct., 539, 546 (1959); United States v, Stevens, 510 F.2d 1101, 1106 (5th Cir. 1975).
  5. United States v. Seruba, 604 F.2d 807, 816 (3rd Cir. 1979). See also United States v. Pabian, 704 F.2d 1533, 1536 (11th Cir. 1983); In re Grand Jury Investigation(Bertland), 610 F.2d 202 (5th Cir. 1980).
  6. In re Grand Jury Investigation of Hugle, 754 F.2d 863, 864 (9th Cir. 1985); In re Special April 1977 Grand Jury, 587 F.2d 889, 891-92 (7th Cir. 1978); In re Grand Jury Investigation, (Bertland), 610 F.2d 202 (5th Cir. 1980).
  7. In re Grand Jury Investigation of Hugle, 754 F.2d at 865.
  8. United Stated v. Pabian, 704 F.2d at 1535.
  9. United States v. Serubo, 604 F.2d at 816.
  10. United States v. LaRouche Campaign, 829 F.2d 250, 254 (1st Cir. 1987); Rule 6(e)(2), Fed. R. Crim. P.
  11. Local Rules of the United States District Court for the Douthern District of Texas, Rule 14, adopting the Free Press-Fair Trial Guidelines of the Judicial Conference of the United States [87 F.R.D. 519, 525 (1980)], Appendix A, Rules 4 and 5.
  12. See United States v. Provenzano, 688 F.2d 194, 201 (3rd Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 492 (1982).
  13. The Federal Rules have been amended to permit prosecutors to disclose matters before one federal grand jury to another federal grand jury. Rule 6(e)(3)(C)(iii). See United States v. Malatesta, 538 F.2d 748, 752-753 (5th Cir. 1978)(prior law), on reh’g en banc, 590 F.2d 1379, cert. denied, 440 U.S. 962 (1979).
  14. This practice has been criticized in United States v. Braniff Airways, Inc., 428 F.Supp. 579, 583-584 (W.D. Tex. 1977).
  15. Unites States v. Proctor & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958).
  16. In re Grand Jury Proceedings, 814 F.2d 61, 68 (1st Cir. 1987); Unites States v. Kilpatrick, 821 F.2d 1456, 1472 (10th Cir. 1987), aff’d, Bank of Nova Scotia v. United States,______U.S.______, 108 S.Ct. 693 (1988).
  17. United States v. Sells Engineering, Inc., 463 U.S. 418, 425, 103 S.Ct. 3133, 3138 (1983).
  18. Id.
  19. In Re Grand Jury Proceedings, 814 F.2d at 69.
  20. See, e.g., United States v. Radetsky, 535 F.2d 556, 569 (10th Cir. 1976), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976); In Re Langswanger, 392 F.Supp 783, 788 (N.D. Ill, 1975); In Re Russo, 53 F.R.D. 564, 570 (C.D. Cal. 1971); In Re Grand Jury Subpoena Duces Tecum, 575 F.Supp. 1219, 1221 (E.D.Pa. 1983) (“explicit directive” of Rule 6(e) cannot be overridden by court’s general supervisor authority over grand juries); In Re Grand Jury Subpoena, (East National Bank), 517 F.Supp. 1061, 1066 (D.Colo. 1981). In Re Grand Jury Proceedings, 558 F.Supp. 532 (W.D.Va. 1983) (“systematic debriefing” of grand jury witnesses permitted); In Re Grand Jury Summoned October 12, 1970, 321 F.Supp. 238 (N.D. Ohio 1970) (same ).
  21. United States v. Kilpatrick, 575 F.Supp. 325, 331-32 (D.Colo. 1983) (secrecy obligation “foolishness” and “misconduct” on the part of prosecutor for whom “ignorance of the law is no defense”). A while back, it was the practice to make grand jury witnesses take an oath of secrecy, and this is still the rule in some state court systems. Because of public outcry, the rule was changed, and, as has been seen, this is now verboten because of the language of the rule saying, “No obligation of secrecy may be imposed on any person except in accordance with this rule.” This language has been uniformly interpreted to prohibit any instruction to a witness that his testimony is secret. In Re Langswanger, (1975) D.C. Ill. 392 F.Supp. 783; In Re Grand Jury Witness Subpoenas, (1974) D.C.Fla. 370 F.Supp. 1282; In Re Alvarez (1972) D.C.Cal. 351 F.Supp. 1089; In Re Investigation before April 1975 Grand Jury (1976) D.C.Cir. 531 F.2d 600; In Re VescovoSpecial Grand Jury (1979) 473 F.Supp. 1335, and many other cases. In spite of this express command of Rule 6(e), secrecy obligations were imposed on several witnesses, and, to make the violation more disturbing, secrecy obligations were imposed on lawyers called to furnish information concerning their clients. That makes the violation gravely beyond the pale, because of the impossible position the lawyer-witness is placed in, but that’s what the grand jury description discloses. No “oath” of secrecy was administered, but an obligation of secrecy was imposed by obstructions from the government counsel to witness. This foolishness may or may not have been intentional, but ignorance of the law is not a defense available to a prosecutor. Id. at 331-332.
  22. The Local Rules for the Southern District of Texas, Rule 14, provide for the confidentiality of the names of grand jurors and witnesses for cause.
  23. In re Grand Jury Subpoena Duces Tecum, 797 F.2d 676, 681 (8th Cir.1986). (Although we are not presented with the issue of what kind of showing by the Government warrants issuance of such an order, we observe that the policy of non-secrecy as to grand jury witnesses embodied in Rule 6(e)(2) should not be set aside except in situations where the need for secrecy outweighs the countervailing policy, and that this need must be shown with particularity. In so observing , we draw upon the language of United States v. Proctor & Gamble Co., supra, in which the Supreme Court outlined the circumstances in which the policy of secrecy embodied in Rule 6(e) may be set aside by a federal court. We believe the policy of openness as to grand jury witnesses dictated by Rule 6(e)(2) requires similar considerations. To impose an order of secrecy upon a grand jury witness, there must be a “compelling necessity.” See United States v. Proctor & Gamble Co., 356 U.S. at 682, 78 S.Ct. at 986.
  24. In Re Grand Jury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291, 1296-97 (4th Cir. 1987); Application of Credit Information Corp. v. New York, 457 F.Supp. 969, 971 (S.D.N.Y. 1978).
  25. United States v. Doe (Shwartz), 457 F.2d 895, 898 (2d Cir. 1972).
  26. United States v. Dionisio, 410 U.S. 1, 11 (1976) quoting Hale v. Henkel, 201 U.S. 43, 76 (1906); United States v. Nixon , 418 U.S. 683 (1974); Subpoena: Subpoena Duces Tecum, 829 F.2d at 1302 n.14; In Re Grand Jury Proceedings (Bardier), 486 F.Supp. 1203 (D. Nev. 1980); In Re Grand Jury Investigation (General Motors), 174 F.Supp. 393 (S.D.N.Y. 1959).
  27. Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 305 (1924).
  28. United States v. Dionisio, 410 U.S. 1, 5 (1973); Gilbert v. California, 388 U.S. 263 (1967).
  29. In Re Layden, 446 F.Supp. 53, 56-57 (N.D. Ill. 1978).
  30. United States v. Sonderup, 639 F.2d 294, 297 (5th Cir. 1981); In Re Morganroth, 718 F.2d 161, 165 (6th Cir. 1983).
  31. United States v. Doe, 465 U.S. 605, 612-613, 104 S.Ct. 1237, 1241 (1984).
  32. An individual, while not required to give testimony that may incriminate him, may be required to produce business documents and records. Records voluntarily prepared are subject to subpoena provided the act of producing the records is not testimonial and incriminating. United States v. Doe, 104 S.Ct. at 1242-43. Additionally, documents maintained pursuant to a regulator program would not be protected. The Supreme Court in Doe and Fischer left open the question of whether the Fifth Amendment protects the contents of private papers that are not business records. United States v. Doe, 104 S.Ct. at 1244 n.7, 1245 (concurring and dissenting opinions); Fischer v. United States, 425 U.S. 391, 413-414 (1976); In Re Proceedings Before the August 6, 1984 Grand Jury, 767 F.2d 39, 41 (2nd Cir. 1985). The Ninth Circuit recently held that the privilege against self-incrimination may bar compelled disclosure to a grand jury of personal records transferred by a criminal suspect to his attorney. In Re Grand Jury Proceedings, (U.S. V. Terry) 759 F.2d 1418, 1420-1421 (9th Cir. 1985); United States v. Lang, 792 F.2d 1235, 1237 (4th Cir. 1986) cert. denied, 479 U.S. 985, 107 S.Ct. 574 (1986) (subpoena for personal records quashed by trial court); but see In Re Steinberg, 837 F.2d 527 (1st Cir. 1988).
  33. In Re Grand Jury Proceedings (Morganstern), 771 F.2d 143 (6th Cir. 1985), cert. denied, 474 U.S. 1033, 106 S.Ct. 594 (1985) (no privilege); United States v. G & G Advertising Co., 762 F.2d 632, 634-635 (8th Cir. 1985) (no privilege).
  34. The Supreme Court in Braswell v. United States, 108 S.Ct. 2284, 2295 (1988), resolved a conflict in the circuits regarding the “act of production doctrine.” The “act of production” doctrine first raised in Fischer and expanded upon in Doe called into question the remaining viability of the holding in Bellis v. United States, 417 U.S. 85 (1974), that a representative of a corporation has no Fifth Amendment privilege against providing corporate documents. The Second, Third, Forth, and D.C. Circuits held that the “act of production” doctrine applies to a corporate representative. In re Two Grand Jury Subpoena Duces Tecum, 769 F.2d 52, 57-59 (2d Cir. 1985); United States v. Antonio Sancetta, M.D., P.C., 788 F.2d 67, 74 (2d Cir. 1986); In Re Grand Jury Matter (Brown), 768 F.2d 525 (3d Cir. 1985) (en banc); United States v. Lang, 792 F.2d 1235, 1240-41 (4th Cir. 1986) cert. Denied, 479 U.S. 985, 107 S.CT. 574 (1986); In Re Sealed Case, 832 F.2d 1268, 1279 (D.C. Cir. 1987). The First, Fifth, Sixth, Eighth, Ninth and Tenth Circuits have rejected the act of production doctrine for corporate representatives. In Re Grand Jury Proceedings United States, 626 F.2d 1051, 1053 (1st Cir. 1980); In Re Grand Jury Proceedings (Doe), 814 F.2d 190 (5th Cir. 1980); aff’d, _____ U.S. _____, 108 S.Ct. 64 (1988); In Re Grand Jury Proceedings (Lincoln), 767 F.2d 1130, 1131(5th Cir. 1985); In Re Grand Jury Proceedings (Morganstern), 771 F.2d 143, 148 (6th Cir.) (en banc), cert. denied, 474 U.S. 1033, 106 S.Ct. 594 (1985); In Re Grand Jury Subpoena 85-W-71-5), 784 F.2d 857, 861 (8th Cir. 1986), cert. dismissed, See v. United States, 479 U.S. 1048, 107 S.Ct. 918 (1987); United States v. Malis, 737 F.2d 1511, 1512 (9th Cir. 1984); In Re Grand Jury Proceedings (Vargas), 727 F.2d 941, 945 (10th Cir.) cert. denied, 469 U.S. 819 (1984). The Eleventh Circuit has gone both ways. Compare In Re Grand Jury Subpoena Duces Tecum (Ackerman), 795 F.2d 904 (11th Cir. 1986) (a corporate representative has no act of production privilege) with In re Grand Jury No. 86-3 (Will Roberts Corp.) 816 F.2d 569, 573 (11th Cir. 1987) (a sole shareholder corporate representative may have an act of production privilege.
  35. In United States v. Doe, 104 S.Ct. at 1241-1242, the Supreme Court held that, while the contents of a sole proprietor’s voluntarily prepared business records were not privileged under the Fifth Amendment, the act of producing the particular records was privileged inasmuch as it would force admission of their existence, the possession or control of them, or the belief that the papers were those described in the subpoena. The Sixth Circuit recently held that corporate records required by law operate as an exception to the rule announced in Doe. In re Grand Jury Subpoena Duces Tecum, Underhill, 781 F.2d 64, 67-70 (6th Cir. 1980) cert. denied, 479 U.S. 813, 107 S.Ct. 64 (1986).
  36. Braswell v. United States, 108 S.Ct. at 2295 n.11.
  37. Hodges, Grant & Kaufman v. United States Government, Department of Treasury, 768 F.2d 719, 720 (5th Cir. 1985).
  38. Fischer v. United States, 425 U.S. 397-398.
  39. In re Grand Jury Proceedings (Vargas), 723 F.2d 1461, 1466 (10th Cir. 1983) cert. denied, 469 U.S. 819 (1984).
  40. In Re Grand Jury Proceedings (Duffy v. United States), 473 F.2d 840, 842 (8th Cir. 1973), cited in Velsicol Chemical Corp. v. Parsons, 561 F.2d 671, 676 (7th Cir. 1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1521 (1978).
  41. Appeal of Hughes, 633 F.2d 282, 285 (3rd Cir. 1980).
  42. Dennis v. United States, 384 U.S. 855, 870-875 (1966).
  43. United States v. Baggot, 463 U.S. 476, 480 103 S.Ct. 3164, 77 L.Ed.2d 785 (1983) (The two requirements, though related in some ways, are independent prerequisites to (C)(i) disclosure. The particularized-need test is a criterion of degree; the “judicial proceedings” language of (C)(i) imposes an additional criterion governing purpose, is an appropriate reason for breaching grand jury secrecy. Rather, the Rule contemplates only uses related fairly directly to some identifiable litigation, pending or anticipated. Thus, it is not enough to show that some litigation may emerge from the matter in which the material is to be used, or even that litigation is factually likely to emerge. The focus is on the actual use to be made of the material. Id. at 480.
  44. 441 U.S. 211, 222, 99 S.Ct. 1667, 60 L.Ed. 156 (1978).
  45. State of Wisconsin v. Schaffer, 565 F.2d 961, 967 (7th Cir. 1977);
  46. See infra regarding grand jury misconduct.
  47. Bank of Nova Scotia v. United States,______U.S.______, 108 S.Ct. 693 (1988).
  48. United States v. Heffington, 682 F.2d 1075, 1080 (5th Cir. 1982), cert. denied, Giella v. United States, 459 U.S. 1108, 103 S.Ct. 734 (1983).
  49. Costello v. United States, 50 U.S. 359, 363 (1956).
  50. Id.
  51. United States v. Dionisio, 410 U.S. 1, 16 (1972), quoting Stirone v. United States, 361 U.S. 212, 218 (1960).
  52. Costello v. United States, 350 U.S. at 363; United States v. Mitchell, 777 F.2d at 263; Beck v. Washington, 369 U.S. 541, 546 (1962); Costello v. United States, 350 U.S. at 363; Hoffman v. United States, 341 U.S. 479, 485 (1951); United States v. Walker, 710 F.2d 1062, 1069 (5th Cir. 1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 995 (1984).
  53. Beck v. Washington, 369 U.S. 541, 549 (1962).
  54. Id.
  55. Id.
  56. Id. at 548.
  57. Rule 6(e)(2), Fed. R. Crim. P.
  58. 497 F.2d 781 (9th Cir. 1974).
  59. Id. at 785-86.
  60. 566 F.2d 649 (9th Cir. 1977), cert. denied, 439 U.S. 818 (1978).
  61. United States v. Cathey, 591 F.2d 268, 272 )(5th Cir. 1979); United States v. Rodriguez, 765 F.2d 1546, 1559 n. 17 (11th Cir. 1985).
  62. United States v. Ruyle, 524 F.2d 1133, 1135 (6th Cir. 1975), cert. denied, 425 U.S. 934, 36 S.Ct. 1664 (1976); United States v. Mandel, 415 F.Supp. 1033, 1040 (D. Md. 1976).
  63. Id; United States v. Trass, 644 F.2d 791, 796-797 (9th Cir. 1981).
  64. See e.g., United States v. Adamo, 742 F.2d 927, 937-38 (6th Cir. 1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 971, 83 L.Ed.2d 975 (1985); United States v. Sears Roebuck & Co., 719 F.2d 1386, 1394 (9th Cir. 1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984); United States v. Civela, 666 F.2d 1122, 1127 (8th Cir. 1981), cert. denied, 107 S.Ct. 3195 (1987).
  65. United States v. Page, 808 F.2d 723, 727 (10th Cir.), cert. denied, 107 S.Ct. 3195 (1987); United States v. Flomenhoft, 714 F.2d 708, 711-712 (7th Cir. 1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1420, 79 L.Ed. 2d 745 (1984); United States v. Ciambrone, 601 F.2d 616, 622-23 (2nd Cir. 1979).
  66. Id. at 623. American Bar Association Standards for Criminal Justice, Standard 3-3.6(b) (2d ed. 1980) (requiring prosecutor to disclose “evidence which will tend substantially to negate guilt”); United States Attorneys’ Manual – Title 9- Criminal Division, 9-11.334, “Presentation of Exculpatory Evidence” (When a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence which directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person.)
  67. United States v. Martin, 480 F.Supp. 880, 886 (S.D. Tex. 1979).
  68. United States v. McKenzie, 678 F.2d 629, 631 (5th Cir. 1982).
  69. United States v. Samango, 607 F.2d 877, 884 (9th Cir. 1979); United States v. Hogan, 712 F.2d 757, 761 (2nd Cir. 1983).
  70. United States v. Flomenhoft, 714 F.2d at 712; United States v. Estepa, 471 F.2d 1132, 1136 (2nd Cir. 1972) (“When the framers of the Bill of Rights directed the Fifth Amendment that ‘no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,’ they were not engaging in a mere verbal exercise.”)
  71. 337 U.S. 541, 546 (1949).
  72. Flanagan v. United States, 465 U.S. 259, 265 (1984), quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
  73. 475 U.S. 66 (1986).
  74. 812 F.2d 548 (9th Cir. 1987) (improper disclosure of records of grand jury proceedings under Rule 6(e)).
  75. Accord, United States v. Dederich, 825 F.2d 1317 (9th Cir. 1987).
  76. Porter v. Wainwright, 805 F.3d 930, 941-942 (11th Cir. 1987), cert. denied, 107 S.Ct. 3196 (1987) (grand juror bias); United States v. Thomas, 788 F.2d 1250, 1254 (7th Cir.) cert. denied, 107 S.Ct. 187 (1986) (prosecutorial misconduct).
  77. 805 F.2d at 941-942.
  78. United States v. Thomas, 788 F.2d at 1254.
  79. 798 F.2d 1337, 1340 (10th Cir. 1986).
  80. Id. at 1340.
  81. United States v. Midland Asphalt Corp., 840 F.2d 1040, 1046 (2nd Cir. 1988), cert. granted, 108 S.Ct. 2869 (1988) (interlocutory review of a Rule 6(e) violation denied) (Rule 6(d) is designed to insure that grand juries are not subject to undue influence in their decision to indict. Rule 6(e), on the other hand, codifies the traditional rule of grand jury secrecy, which is necessary (1) to encourage witnesses to testify freely; (2) to prevent persons under investigation from learning of their status, lest they flee; and (3) to protect from the public ridicule those who are exonerated by the grand jury.
  82. United States v. LaRouche Campaign, 829 F.2d 250, 253 (1st Cir. 1987) (interlocutory review of Rule 6(e) violation denied).
  83. In Re Grand Jury Subpoenas on Barrett, 818 F.2d 330, 332-333 (5th Cir. 1987); In re Grand Jury Investigation (Bert Lance), 610 F.2d at 212-213; United States v. Gerber, 88-2841 (5th Cir. Oct,. 19, 1988) (Unreported decision)(In a case involving the failure of the government to present exculpatory evidence to the grand jury, the court held that there was “no showing…that the grand jury committed procedural error, or, if it did, such error is not harmless error, yet is unreviewable in later proceedings).
  84. United States v. Midland Asphalt Corp., 840 F.2d 1040 (2nd Cir. 1988), cert. granted, 108 S.Ct. 2869 91988).


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