In re Grand Jury, 08-1880.
| Decision Date | 11 May 2009 |
| Docket Number | No. 08-1880.,08-1880. |
| Citation | 566 F.3d 12 |
| Parties | In re GRAND JURY. |
| Court | U.S. Court of Appeals — First Circuit |
Andrew Good, with whom Philip G. Cormier and Good & Cormier, were on brief for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.
Before TORRUELLA, STAHL, and Howard, Circuit Judges.
This appeal arises from an ongoing grand jury investigation. The appellant, a non-target, testified before the grand jury concerning highly technical and ancient subject matter. After approximately three hours of testimony, during which the government reminded the appellant repeatedly that a failure to testify truthfully would be subject to possible perjury charges, the government continued its examination to a later date. In the interim, the appellant sought access to a transcript of his prior testimony pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(i). The district court denied the request, finding that the appellant failed to provide a strong showing of a particularized need for access to the transcript. The appellant refused to testify further, and, on the government's motion, the district court found the appellant in contempt. This appeal followed. After careful consideration, we reverse and remand.
To avoid compromising the grand jury investigation, we only discuss the bare minimum of facts necessary to dispose of this appeal.
In May 2008, the government issued a subpoena to the appellant to testify before a federal grand jury sitting in the District of Massachusetts, and subsequently issued a subpoena directing him to produce documents related to the subject matter of his testimony.
After receipt of the subpoenas, the appellant indicated through counsel that he would assert his Fifth Amendment right against self-incrimination and would refuse to testify. In response, the government applied for and obtained an order granting the appellant use immunity pursuant to 18 U.S.C. §§ 6002 & 6003, and compelled him to testify before the grand jury.
About a week later, in June 2008, the appellant testified before the grand jury for approximately three hours and fifteen minutes. During his examination, which was conducted by three assistant U.S. attorneys simultaneously, the prosecutors warned the appellant multiple times that the use immunity order did not protect him from prosecution for testifying falsely. In some instances, the prosecutors asked repetitive questions, and suggested inconsistencies in the appellant's testimony. Other times, the prosecutors verbally abused the appellant. However, the prosecutors did not indicate that they were planning to indict the appellant on perjury or obstruction of justice charges. Moreover, the appellant was questioned about events and documents of significant complexity. A number of these events and documents dated back to 1999.1
The government did not complete its examination. Consequently, the government ordered the appellant to return and complete his testimony the following week. At the appellant's request, the government agreed to continue his return to the grand jury for an additional two weeks, until early July 2008.
In the interim, counsel for the appellant sent a letter to the government seeking an opportunity for the appellant to review the transcript of his grand jury testimony in advance of his second day of testimony. The government declined the request.
As a result, the appellant filed an emergency motion for access to a transcript of his grand jury testimony pursuant to Fed. R.Crim.P. 6(e)(3)(E)(i), which authorizes a court to order disclosure of grand jury materials "preliminarily to or in connection with a judicial proceeding." In particular, appellant sought to review his transcript at the U.S. Attorney's office or a similar location, and further requested that his lawyer accompany him and that the appellant be allowed to take notes.
In support of his motion, the appellant cited a recent D.C. Circuit decision, In re Grand Jury, 490 F.3d 978 (D.C.Cir.2007), in which the court held that grand jury witnesses are entitled under Rule 6(e)(3)(E)(i) to review transcripts of their own grand jury testimony. See id. at 980, 990. In the alternative, the appellant argued that he has shown a particularized need for access to the transcript given the prosecutors' warnings of possible perjury prosecution and the complexity of the subject matter of his testimony. The government opposed, and argued that, under First Circuit law, the appellant must provide "a strong showing of particularized need" to obtain access, see In re Special Proceedings, 373 F.3d 37, 47 (1st Cir.2004) (quotation marks omitted), and that the appellant had failed to do so.
A hearing was held on the same day as the filing of the emergency motion, which, as the district court noted, did "not provide[ ] a great deal of time for reflection." In ruling on the motion, the district court first acknowledged that "at least at first reading I agree with the reasoning of the D.C. Circuit case." In particular, the district court noted that the benefit to the witness of access far outweighs the "very mild burden on grand jury secrecy, so mild as to be close to nonexistent," since a witness is not bound to keep his testimony secret, and could easily debrief his or her attorney after testifying. Moreover, although the district court recognized the "potential administrative burden" caused by the D.C. Circuit rule in permitting access, it concluded, in its own view, that "the benefit to the witness greatly outweighs the burden to the government."
Nevertheless, the district court concluded that it was bound by First Circuit precedent, and thus required the appellant to provide a strong showing of a particularized need for the transcript in order to obtain access. In examining whether the appellant had made a showing of particularized need, the district court stated:
I do not find that there is a particularized need here, that is, as I interpret the case law, as to what is required to show a particularized need; that there are three unusual aspects to this: The first is that the testimony spread over two days or more than one day; the second is that the witness was confronted by the prosecutor and given perjury warnings about the accuracy of some of his statements; and the third is that the subject matter is quite complex. While to some extent those facts are unusual, they're not highly unusual, and I don't think under the [In re] Bianchi [542 F.2d 98 (1st Cir.1976) ] and In re: Special Proceedings line of cases are enough to show particularized need.
Accordingly, the district court denied the motion.
One week later, in mid-July 2008, the appellant appeared before the grand jury but refused to answer questions. That same day, the government petitioned the district court to hold the appellant in civil contempt pursuant to 28 U.S.C. § 1826. Still that same day, the district court conducted a hearing during which it allowed the government's petition for contempt in an oral ruling and written order. However, the district court stayed that order during the pendency of any appeal.
Counsel for the appellant also pointed out that the transcript of the appellant's first day of grand jury testimony was now available, and moved the district court to order the government to file the transcript with the court. After initially entertaining the request, the district court denied the motion, because it was concerned about the "mechanical difficulties involved," and since it was
On appeal, the appellant contends that the district court erred in denying his request to review a transcript of his grand jury testimony prior to his second day of examination. We review any rulings of law de novo, and, to the extent we find no legal error, any denial of disclosure for abuse of discretion. See In re Grand Jury Proceedings, 580 F.2d 13, 18 (1st Cir.1978).
The appellant first contends that the district court erred as a matter of law in requiring him to provide a "strong showing of particularized need" in order to obtain access to his transcript. Instead, the appellant argues that a "less demanding" standard of particularized need applies when a grand jury witness seeks only access to a transcript of his testimony, rather than a copy. For support, appellant relies on In re Grand Jury, a recent D.C. Circuit decision where the court held that grand jury witnesses are entitled "to review transcripts of their own grand jury testimony in private at the U.S. Attorney's Office or a place agreed to by the parties or designated by the district court." 490 F.3d at 990. Given its importance to the appellant's claims, we discuss the D.C. Circuit's decision in some detail.
Grand Jury involved a grand jury investigation into a company and its employees. Id. at 980. Two employees of the company testified before the grand jury, and were subpoenaed to testify an additional time. Id. Both moved for access to a transcript of their prior grand jury testimony before testifying further, "in order to avoid the possibility of inconsistent statements occasioned by the passage of years since the events in question and many months" since they last testified, as well as the possible need "to take advantage of recantation pursuant to 18 U.S.C. § 1623." Id. at 984. The district court denied both motions, finding that neither employee provided a sufficient showing of "particularized need" for the transcripts that "outweighed the interests in maintaining grand jury secrecy." Id. at 984 & n. 4.
On appeal, the D.C. Circuit, addressing the issue for the first time, see id. at 987,...
To continue reading
Request your trial
-
Grand jury proceedings
...990. At least one circuit has moved in the same direction as the DC Circuit regarding witness access to transcripts. In In re Grand Jury , 566 F.3d 12 (1st Cir. 2009), the First Circuit made clear that although it was not adopting the DC Circuit’s holding— i.e., that a witness is always ent......
-
Trials
...redaction as alternative to closure to allow possible redactions prior to disclosure when remanding). 2051. See, e.g. , In re Grand Jury, 566 F.3d 12, 17-18 (1st Cir. 2009) (right of access not violated when court denied witness copy of grand jury testimony absent showing particularized nee......