MEMORANDUM
JAMES R. MILLER, Jr., District Judge.
The United States seeks an ex parte court order authorizing disclosure to Internal Revenue Service (IRS) agents of documents subpoenaed by the Special Federal Grand Jury No. 1, December, 1974 and transcripts of testimony before the grand jury for the purpose of determining whether the matters under investigation have involved the incurrence of civil tax liabilities by a certain individual, hereinafter termed the taxpayer.1
The taxpayer was indicted on multiple counts of mail fraud. Subsequently he pled guilty to willful failure to file income tax returns pursuant to a plea agreement under which the mail fraud charges were dismissed. He has been sentenced.
The disclosure is sought pursuant to F.R. Crim.P. 6(e). As amended by Pub.L. 95-78, 91 Stat. 319, effective October 1, 1977, Rule (6)(e) provides as follows:
"(e) Secrecy of Proceedings and Disclosure —
"(1) General Rule — A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the Government, or any person to whom disclosure is made under paragraph (2)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for 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.
"(2) Exceptions —
"(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to —
"(i) an attorney for the government for use in the performance of such attorney's duty; and
"(ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce Federal criminal law.
"(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney's duty to enforce Federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made.
"(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made —
"(i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or
"(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.
"(3) Sealed Indictments — The Federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons." (Emphasis added).
Prior to the enactment of the 1977 amendment to Rule 6(e) the rule provided as follows:
"(e) Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule. The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons."
The legislative history of the 1977 amendments to Rule 6(e) contains the following relevant comments:
"Rule 6(e)
"Subsection (A) of section 2 concerns rule 6(e) which deals with the secrecy of grand jury proceedings.
"Rule 6(e) currently provides that `disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties'. Rule 54(c) defines attorneys for the government to mean `the Attorney General, an authorized assistant to the Attorney General, a United States attorney, and an authorized assistant of the United States attorney, and when applicable to cases arising under the laws of Guam, means the Attorney General of Guam . . .'
"The Supreme Court proposal would change Rule 6(e) by adding the following new language:
For purposes of this subdivision, `attorneys for the government' includes those enumerated in Rule 54(c); it also includes such other government personnel as are necessary to assist the attorneys for the government in the performance of their duties.
It would also make a series of changes in the rule designed to make its provisions consistent with other provisions in the Rules and the Bail Reform Act of 1966.5
"5 For example, the rule presently speaks of a `court' keeping an indictment secret until the defendant is in custody. The proposed amendment would change `court' to `federal magistrate' in order to make Rule 6(e) consistent with Rule 6(f). The Rule as amended would not preclude a judge from receiving an indictment and keeping it secret. Rule 54(e) defines `federal magistrate' to include U. S. Judges as well as U. S. Magistrates.
"The Advisory Committee note states that the proposed amendment is intended `to facilitate an increasing need, on the part of Government attorneys to make use of outside expertise in complex litigation.'6
"6 Advisory Committee note to proposed amendment to Rule 6, in communication from the Chief Justice of the United States, H. Doc. 94-464, at 8.
"The note indicated that:7
"7 Id. at 9.
Although case law is limited, the trend seems to be in the direction of allowing disclosure to Government personnel who assist attorneys for the Government in situations where their expertise is required. This is subject to the qualification that the matter disclosed be used only for the purposes of the grand jury investigation.
"It is past history at this point that the Supreme Court proposal attracted substantial criticism, which seemed to stem more from the lack of precision in defining, and consequent confusion and uncertainty concerning, the intended scope of the proposed change than from a fundamental disagreement with the objective.8
"8 Federal Rules of Criminal Procedure Amendments. Hearings before the Subcommittee on Criminal Justice. Committee on the Judiciary. U.S. House of Representatives, 95th Cong. 1st sess. (1977) (hereinafter cited as House Hearings), pp. 19-56, 66-71, 85-95, 105-106, 111-114, 124, 147-166, 181, 204, 229-230, and 246-247.
"Attorneys for the Government in the performance of their duties with a grand jury must possess the authority to utilize the services of other government employees. Federal crimes are `investigated' by the FBI, the IRS, or by Treasury agents and not by government prosecutors or the citizens who sit on grand juries. Federal agents gather and present information relating to criminal behavior to prosecutors who analyze and evaluate it and present it to grand juries. Often the prosecutors need the assistance of the agents in evaluating evidence. Also, if further investigation is required during or after grand jury proceedings, or even during the course of criminal trials, the Federal agents must do it. There is no reason for a barrier of secrecy to exist between the facets of the criminal justice system upon which we all depend to enforce the criminal laws.
"The parameters of the authority of an attorney for the government to disclose grand jury information in the course of performing his own duties is not defined by Rule 6. However, a commonsense interpretation prevails, permitting `Representatives of other government agencies actively assisting United States attorneys in a grand jury investigation . . . access to grand jury material in the performance of their duties.'9 Yet projected against this
"9 United States v. Evans, 526 F.2d 701 (5th Cir. 1976). See also United States v. Hoffa, 349 F.2d 20, 43 (6th Cir. 1965); United States v. United States District Court, 238 F.2d 713 (4th Cir. 1975); cert. denied, sub nom. Valley Bell Dairy Co. v. United States, 352 U.S. 981, 77 S.Ct. 382, 1 L.Ed.2d 365; United States v. Culver, 224 F.Supp. 419, 432 (D.Md.1963); United States v. Anzelmo, 319 F.Supp. 1106, 1116 (E.D.La.1970).
current practice, and the weight of case law, is the anomalous language of Rule 6(e) itself, which, in its present state of uncertainty,10 is spawning some judicial decisions
"10 There are indications that the Supreme Court's proposed change will not clarify the present situation and may even lead to further unclarity. As observed by the Ninth Circuit:
The requirement
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