Grand Jury Subpoena, In re

• Decision Date: 14 December 1995
• Docket Number: D,No. 1250,1250
• Citation: 72 F.3d 271
• Parties: In re GRAND JURY SUBPOENA. John DOE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 95-6401.
• Court: U.S. Court of Appeals — Second Circuit

Page 271

72 F.3d 271

In re GRAND JURY SUBPOENA.

John DOE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 1250, Docket 95-6401.

United States Court of Appeals, Second Circuit.

Argued Dec. 8, 1995.

Decided Dec. 8, 1995.

Opinion Issued Dec. 14, 1995.

Christine E. Yaris, New York City (Nancy A. Perry, on the brief), for Appellant.

Andrew Weissman, Brooklyn, NY, Assistant United States Attorney for the Eastern District of New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, Peter A. Norling, Assistant United States Attorney, of counsel), for Appellee.

Before: FEINBERG, OAKES and CALABRESI, Circuit Judges.

FEINBERG, Circuit Judge:

John Doe appeals from an order of civil contempt dated November 28, 1995, entered in the United States District Court for the Eastern District of New York, Allyne R. Ross, J. Doe refused to testify in front of a grand jury unless: (1) he was permitted to write down every question asked of him; (2) he was given a transcript of his prior testimony before a different grand jury; and (3) he was given notes that may have been taken by federal agents when they interviewed him. The district court held that on the record before it, including material submitted to it in camera, Doe did not have a right to the materials he had requested. Upon determining that Doe had refused to answer questions and would continue to do so, the judge held Doe in civil contempt and ordered him confined for the life of the grand jury, or until he purged himself of the contempt, whichever was sooner. We affirm the order of the district court.

I. Background

In March 1992, Doe was granted immunity and testified before a grand jury. In November 1995, Doe was required to appear before another grand jury investigating the same activity. In the interim between these appearances, Doe was interviewed a number of times by federal agents.

On November 14, 1995, Judge Sterling Johnson Jr. of the Eastern District ruled that Doe could not bring notes into the grand jury room, nor could he take notes during the grand jury proceeding and leave the grand jury room with the notes. Thereafter, Doe refused to answer questions, relying on his fifth amendment privilege. Doe was then again granted immunity, but on November 21, 1995, he again refused to answer questions based on: (1) his purported fifth amendment privilege; (2) his need to take notes in order to be able to consult with his attorney; (3) his right to obtain the grand jury transcript of his 1992 appearance; and (4) his need for notes taken by federal agents. Doe did not make a formal motion under Rule 6 of the Federal Rules of Criminal Procedure for discovery of grand jury materials.

A compromise was then reached in which the government agreed to limit questioning initially to the time period after May 1995, the last time Doe spoke with any government agents, so as to alleviate his concern that his testimony now might be inconsistent with his earlier statements. But we have found nothing in the record to indicate that the government agreed not to ask, at a later date, questions relating to the period before May 1995. The government also agreed to let Doe take notes in the grand jury to the extent necessary to consult with counsel, who was right outside the grand jury room.

Doe next appeared in front of the grand jury on November 22. Despite being told that he could only write down questions about which he sought legal advice, Doe wrote down each question, even when he did not consult with his attorney. On November 28, Doe returned to the grand jury and, when the government asked questions regarding events prior to May 1995, Doe again refused to answer questions.

The parties and the jury foreperson then appeared before Judge Ross. Judge Ross determined that Doe had refused to answer questions and would continue to refuse. On the record before her, including material submitted in camera by the government, the judge then held Doe in civil contempt, finding that he had not shown a particularized need either for the grand jury transcript or the notes made by federal agents. Judge Ross held in the alternative that even if the court applied a presumption that Doe was entitled to disclosure of his prior testimony, such disclosure was not warranted in this case. The court ordered Doe confined for the life of the grand jury, or until he purged himself of the contempt, whichever was sooner, but stayed the contempt order for one day.

Doe promptly appealed and sought a further stay. On November 29, this court granted an emergency stay until Doe's motion for a stay could be heard by a motions panel of the court. That panel heard the motion on December 5, and continued the stay. In light of the government's representations regarding urgency, the panel also expedited Doe's appeal from the contempt order to December 8. This panel heard argument on that day. Later that day, we affirmed in a brief order stating that an opinion would follow. This opinion carries out that commitment.

II. Discussion

In this court Doe argues that: (1) he has a right to the transcript of his testimony before the 1992 grand jury and the notes, if any, taken by federal agents; and (2) he was denied due process at his contempt hearing in the district court. We review for abuse of discretion the district court's decision not to release the material sought. Pittsburgh Plate Glass Co. v. United States, 360 U.S 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959).

A. Disclosure of Grand Jury Materials

The Supreme Court has consistently recognized that the proper functioning of the grand jury system depends upon the secrecy of grand jury proceedings. Several distinct interests are served by this secrecy:

First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S.Ct. 1667, 1673, 60 L.Ed.2d 156 (1979).

Rule 6(e) of the Federal Rules of Criminal Procedure governs disclosure of grand jury materials. The Rule provides that grand jury transcripts "shall remain in the custody or control of the attorney for the government unless otherwise ordered by the court in a particular case." Fed.R.Crim.P. 6(e)(1). ¹ The court is authorized by Rule 6(e)(3)(C) to make disclosures otherwise prohibited by the Rule. The Supreme Court has held that this subsection requires "a strong showing of particularized need for grand jury materials before any disclosure will be permitted." United States v. Sells Eng'g, Inc., 463 U.S. 418, 443, 103 S.Ct. 3133, 3148, 77 L.Ed.2d 743 (1983); see United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958); see also Application of Executive Securities Corp., 702 F.2d 406, 408-09 (2d Cir.), cert. denied, 464 U.S. 818, 104 S.Ct. 78, 78 L.Ed.2d 89 (1983). Parties seeking disclosure have the burden of showing that the requested material "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." Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1674.

Most of the cases involving a request for a grand jury transcript arise in the context of third-party attempts to obtain a copy of a witness' grand jury testimony. See, e.g., Illinois v. Abbott & Associates, Inc., 460 U.S. 557, 103 S.Ct. 1356, 75 L.Ed.2d 281 (1983) (state attorney general); Douglas Oil, 441 U.S. 211, 99 S.Ct. 1667 (civil litigant); Smith v. United States, 423 U.S. 1303, 96 S.Ct. 2, 46 L.Ed.2d 9 (1975) (state prosecutor). Opinions dealing with a request by a grand jury witness (who is not a defendant) ² for his own testimony are less common, and the Supreme Court has not as yet ruled on the standard to be applied. But we believe that it can fairly be said that a majority of appellate opinions dealing with the issue have held that even when a witness seeks his own prior grand jury testimony, the burden of showing a particularized need still applies. See Davis v. United States, 641 A.2d 484, 490-91 (D.C.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1384, 131 L.Ed.2d 237 (1995); In re Bianchi, 542 F.2d 98, 100 (1st Cir.1976); Bast v. United States, 542 F.2d 893, 895-96 (4th Cir.1976); In re Bottari, 453 F.2d 370, 371-72 (1st Cir.1972); cf. Executive Securities Corp., 702 F.2d at 408-09 (particularized need must be shown by third party seeking to discover transcript of grand jury witness, even where third party has witness' consent). See also United States v. Lopez, 779 F.Supp. 13, 16 (S.D.N.Y.1991).

Doe suggests that a different standard should apply; i.e., a grand jury witness has a presumptive right to his own testimony, and the government can overcome this presumption only by a clear showing that other interests outweigh his right to his testimony. In support of this proposition, Doe cites two circuit court opinions, each of which has unusual facts: In re Sealed Motion, 880 F.2d 1367, 1371 (D.C.Cir.1989) and Bursey v. United States, 466 F.2d 1059, 1079-81 (9th Cir.1972). In the former, the D.C. Circuit held that under the Independent Counsel Act, 28 U.S.C. Sec. 591, et seq., a high-level government official who, although unindicted, would be named in the Independent Counsel's final...