Grand Jury Subpoena, In re

• Decision Date: 23 December 1996
• Docket Number: No. 897,D,897
• Citation: 103 F.3d 234
• Parties: 25 Media L. Rep. 1211 In re GRAND JURY SUBPOENA. John DOE NO. 4, Respondent-Appellee, v. John DOE NO. 1, et al., Intervenors-Appellants. ocket 96-6210.
• Court: U.S. Court of Appeals — Second Circuit

Page 234

103 F.3d 234

25 Media L. Rep. 1211

In re GRAND JURY SUBPOENA.

John DOE NO. 4, Respondent-Appellee, v. John DOE NO. 1, et al., Intervenors-Appellants.

No. 897, Docket 96-6210.

United States Court of Appeals, Second Circuit.

Argued Oct. 7, 1996.

Decided Dec. 23, 1996.

James Ostrowski, Buffalo, NY, for Intervenors-Appellants.

Kathleen M. Mehltretter, Assistant United States Attorney, Buffalo, NY, for Appellee.

Before OAKES, ALTIMARI, and MAHONEY, ^* Circuit Judges.

OAKES, Senior Circuit Judge:

Intervenors-Appellants John Doe 1, et al., appeal from an oral order dated July 12, 1996, and later written order entered July 24, 1996, in the United States District Court for the Western District of New York, Richard J. Arcara, Judge, sealing all pleadings, memoranda, and proceedings related to this case. Appellants assert that three subsections of Fed.R.Crim.P. 6(e), as well as the First Amendment, are violated by the district court's order. We have jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); United States v. Klepfer (In re Herald Co.), 734 F.2d 93, 96 (2d Cir.1984) (Cohen applies to appeals from sealing orders). We affirm.

I Facts

Because this case is sealed, our recitation of the facts is necessarily limited in scope. Essentially, the relevant circumstances are as follows:

Earlier this year, John Doe 4 (hereinafter Doe 4) was served with a grand jury subpoena duces tecum. Soon after, Doe 4 filed a motion in the District Court for the Western District of New York asserting that it had been the victim of illegal electronic surveillance by the government, and demanding that the government disclose any such surveillance pursuant to 18 U.S.C. §§ 2515 and 3504 and 50 U.S.C. § 1801. Upon learning of Doe 4's motion and ascertaining that argument was to be heard on it, a representative of the press telephoned Judge Arcara's chambers and requested information about the hearing. She was told that it was closed to the public. Thereafter, members of the press, represented by John Doe 1, et al. (hereinafter Appellants), moved to intervene and access all pleadings and court proceedings on Doe 4's motion.

On July 12, 1996, Judge Arcara heard oral argument on Appellants' motion in a closed courtroom. Both Appellants and Doe 4 argued for an open hearing; the government argued in favor of closure. The court permitted Appellants to intervene, but denied the motion for access. Deeming Doe 4's motion to be related to a grand jury proceeding, Judge Arcara ordered all papers and pleadings on that motion sealed except as necessary for providing associated legal services, and closed the proceedings to the public. The order specifically did not prohibit Doe 4 from disclosing information about the subpoena duces tecum served upon it or from discussing any appearance it had made or might make before the grand jury. This immediate oral order was later reflected in the court's written order of July 24, 1996. Appellants appeal that order; the government is the Respondent. We review the issues of law related to the district court's closure order de novo. United States v. Doe, 63 F.3d 121, 125 (2d Cir.1995).

II Discussion

Appellants assert that the district court's sealing order violates Federal Rule of Criminal Procedure 6(e)(2), (5), and (6), as well as the First Amendment. We disagree.

A. Federal Rule of Criminal Procedure 6(e)

1. Rule 6(e)(5) and (6)

Appellants maintain that Rule 6(e)(5) and (6) is exceeded by the district court's order. Rule 6(e)(5) provides "... the court shall order a hearing on matters affecting a grand jury proceeding to be closed to the extent necessary to prevent disclosure of matters occurring before a grand jury." Rule 6(e)(6) states "[r]ecords, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury."

We begin by emphasizing that " 'the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings.' " United States v. Haller, 837 F.2d 84, 87-88 (2d Cir.1988) (quoting Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979)). We have repeatedly explicated the rationale for this policy:

(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

United States v. Moten, 582 F.2d 654, 662 (2d Cir.1978) (quoting United States v. Amazon Industrial Chemical Corp., 55 F.2d 254, 261 (D.Md.1931) ("[i]t is obvious that the basis of all but the last of these reasons for secrecy is protection of the grand jury itself ... rather than of those brought before the grand jury.") and citing, inter alia, United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 986 n. 6, 2 L.Ed.2d 1077 (1958)); see also United States v. Sells Eng'g Inc., 463 U.S. 418, 424, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 743 (1983); Douglas Oil, 441 U.S. at 218-19, 99 S.Ct. at 1672-73; Haller, 837 F.2d at 88.

Rule 6(e) implements this policy of secrecy. See Fed.R.Crim.P. 6(e). The plain language of the Rule shows that Congress intended for its confidentiality provisions to cover matters beyond those actually occurring before the grand jury: Rule 6(e)(6) provides that all records, orders, and subpoenas relating to grand jury proceedings be sealed, not only actual grand jury materials; similarly, Rule 6(e)(5) refers to matters affecting a grand jury proceeding, not only the proceedings themselves. The pertinent question, therefore, is whether a particular proceeding is related to or affects a grand jury proceeding. The district court determined that Doe 4's motion could directly affect the grand jury proceeding. We turn now to a review of this assessment. ¹

Rule 6(e)(5) and (6) provide for closure and sealing "to the extent necessary" to protect the grand jury process. Appellants argue that this provision means that only hearings which will reveal what transpires at a grand jury investigation must be closed, and that this hearing will not reveal such information. For this reason, they protest that the hearing is "only tangentially" related to, and will not affect, the grand jury proceeding. Common sense tells us that Doe 4's motion is intrinsically related to and affects the grand jury investigation. But for the subpoena duces tecum, Doe 4 would not have been alerted to the alleged illegal electronic surveillance, and its motion would never have been made. Furthermore, the resolution of the motion may affect the outcome of the grand jury investigation.

The Advisory Committee Notes to the 1983 Amendment to Rule 6 specify that section (e)(5) was added in order to

make it clear that certain hearings which would reveal matters which have previously occurred before a grand jury or are likely to occur before a grand jury with respect to a pending or on-going investigation must be conducted in camera in whole or in part in order to prevent public disclosure of such secret information.

This comment recognizes that a proceeding is related to or affects a grand jury investigation if it would reveal matters actually or potentially occurring before the grand jury. We believe that a hearing on Doe 4's motion poses a significant risk of disclosing information which has occurred or which may occur before the grand jury. Because the government has not yet confirmed or denied the investigation, we can only speculate as to the precise nature of the risk. For example, the government may be forced to reveal surveillance of Doe 4 or other potential witnesses and targets of the investigation, and the existence or conduct of other parties may be exposed in the course of discovery. We find the risk to be serious enough to consider this proceeding "related" to the grand jury investigation.

The same commentary provides two examples of hearings which may be closed under 6(e)(5), and thus are implicitly regarded as relating to or affecting the grand jury: a motion to quash a grand jury subpoena, and a motion for an immunity order. A comparison of Doe 4's motion to the motion to quash provides further support for the decision that the motion is related to the grand jury process. A motion to quash is made by a witness to a grand jury investigation, as is this motion. In order to defend against both motions, the government must reveal information about its conduct which should be kept secret from the public until conclusion of the investigative process. Because these motions are procedurally similar, the Advisory Committee Notes are consistent with our decision that Doe 4's motion affects and is related to a grand jury proceeding.

The cases touching upon this issue vary in result according to the factual circumstances. ² For example, in a case involving the sealing of documents under Rule 6(e), Martin v. Consultants & Administrators, Inc., 966 F.2d 1078 (7th Cir.1992), the Seventh Circuit held that FBI reports, while not automatically included within the scope of Rule 6(e), may be included "where they are closely related to the grand jury's investigation itself and where disclosure would reveal the identities of targets and...