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In re Grand Jury Investigation B-15-1

United States District Court, D. Connecticut

December 16, 2015

In Re Grand Jury Investigation B-15-1

MEMORANDUM REGARDING PETITION FOR DISCLOSURE

STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE

I am the supervising judge for Grand Jury B-15-1. On November 24, 2015, the government presented me with an ex parte petition for disclosure related to that grand jury, seeking to transmit documents that it received through a grand jury subpoena to specified Department of Justice Civil Division attorneys for use in determining whether to bring a civil fraud case. The government requested disclosure while the grand jury was still on-going, and did not specify the exact documents to be disclosed, nor any reason for the urgency of the requested disclosure. It also did not disclose whether a Civil Division investigation was currently on-going. Instead, the government made two arguments: first, because the underlying documents did not originate with the grand jury, they were not “grand-jury matters” subject to the strictures of Rule 6(e) of the Federal Criminal Rules of Procedure and therefore could be disclosed without any court supervision; and second, if the materials were subject to Rule 6(e), the government argued that it had sufficiently met the required “particularized need” standard by asserting that disclosure would increase the efficiency of the Civil Division’s enforcement and would prevent it from bringing meritless claims.

After I informally raised concerns regarding the petition with government counsel, the government filed a notice of withdrawal of its petition on December 11, 2015. Treating that notice as a motion to withdraw the ex parte petition, the motion is granted. Nevertheless, because the government’s petition has raised important questions that I deem likely to arise in subsequent grand jury proceedings, I offer the following analysis.

A. Relevant Portions of Rule 6(e)

Rule 6(e)(2) of the Federal Rules of Criminal Procedure provides for the secrecy of grand jury proceedings, and specifies that matters occurring before the grand jury must not be disclosed by an attorney for the government. Fed. R. Crim. P. 6(e)(2)(B)(vi). Rule 6(e)(3) provides exceptions to that rule, allowing that “[d]isclosure of a grand-jury matter-other than the grand jury's deliberations or any grand juror's vote-may be made to:

(i) an attorney for the government for use in performing that attorney's duty;
(ii) any government personnel--including those of a state, state subdivision, Indian tribe, or foreign government--that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law; or
(iii) a person authorized by 18 U.S.C. § 3322.” Fed. R. Crim. P. 6(e)(3)(A). The government does not argue that any of those exceptions apply in the current case.[1]

Rule 6(e)(3)(E) provides that “the supervising court may authorize disclosure-at a time, in a manner, and subject to any other conditions that it directs-of a grand-jury matter: (i) preliminarily to or in connection with a judicial proceeding . . . .” The Supreme Court has held that the government must make a “strong showing of particularized need” in order to trigger authorization under that provision. United States v. Sells Engineering, Inc., 463 U.S. 418, 442- 43 (1983).

B. Rule 6(e) Applies.

The government first argued that Rule 6(e) does not apply at all to the materials produced by the grand jury subpoena because the underlying materials are not “grand-jury matters.”

The Supreme Court has already implicitly recognized that disclosure of documents produced through a grand jury subpoena should be governed by Rule 6(e). See United States v. John Doe, Inc. I, 481 U.S. 102, 107, 111 (1987) (where civil attorneys were seeking “production of various documents, ” observing that “[t]he Department of Justice properly recognized that under our holding in Sells it could not disclose information to previously uninvolved attorneys from the Civil Division or the United States Attorney's office without a court order pursuant to Rule 6(e)(3)(C)(i)”).

Indeed, this case bears strong similarities to a case decided by U.S. District Judge John Gleeson in the Eastern District of New York in 1998. See Application of U.S. for an Order Authorizing Disclosure of Certain Matters Occurring Before the Regular Friday 7/1/96 Grand Jury, No. 98-MISC-016, 1998 WL 817759, at *2 (E.D.N.Y. Jan. 22, 1998) [hereinafter “Application Re 7/1/96 Grand Jury”]. In that case, the government sought to disclose financial documents that had been produced or would in the future be produced via grand jury subpoena to Civil Division attorneys for use in a civil matter. Id. The government argued that the subpoenaed documents were not subject to Rule 6(e) at all because they had not been created at the behest of the grand jury. Id. at *1. Judge Gleeson rejected that argument. He determined that, because “the scope of the request is defined in part by reference to what the grand jury already has subpoenaed or will subpoena at some future point, ” the disclosure would “reveal information about the subject of the grand jury’s investigation.” Id. at *2. Similarly here, the government requested that civil attorneys be granted unsupervised access to materials resulting from a grand jury subpoena without any clear limitations to prevent, for instance, Judge Gleeson’s concern that the very fact that certain documents were being subpoenaed and in what order could reveal information about the grand jury investigation.

The Supreme Court has also enumerated several strong policy arguments against allowing prosecutors to transfer grand-jury materials to Civil Division attorneys without court supervision. In United States v. Sells Engineering, Inc., 463 U.S. 418 (1983), the Court held that grand-jury materials-in that case, transcripts of the proceedings-could not be turned over to Civil Division attorneys without court order. The dissent vociferously argued that the majority had departed from a long-standing practice that Civil Division attorneys were allowed unfettered and unsupervised access to grand-jury materials as a matter of course. Without expressly admitting that it was overturning the previous practice, however, the majority premised its holding on legislative history, as well as three key policy concerns: (1) broad disclosure, even to government bodies, increases the risk of secrecy violations, id. at 432; (2) disclosure to civil attorneys without court supervision increases the temptation of prosecutors to manipulate the grand jury to produce evidence for a civil case, and such abuse would be extremely difficult to regulate, id.; and (3) the civil use of grand-jury materials allows civil attorneys to improperly bypass the normal limits of the Federal Rules of Civil Procedure in favor of the unfettered investigatory powers of the ...


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