In re Doe, Misc. No. 82-38.

• Decision Date: 27 April 1982
• Docket Number: Misc. No. 82-38.
• Citation: 537 F. Supp. 1038
• Parties: In re John DOE Grand Jury Proceedings.
• Court: U.S. District Court — District of Rhode Island

537 F. Supp. 1038

In re John DOE Grand Jury Proceedings.

Misc. No. 82-38.

United States District Court, D. Rhode Island.

April 27, 1982.

COPYRIGHT MATERIAL OMITTED

Lincoln C. Almond, U. S. Atty., James E. O'Neil, Asst. U. S. Atty., D. R. I., Providence, R. I., for the United States.

OPINION

PETTINE, Chief Judge.

The United States Attorney petitioned this Court pursuant to Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure¹ for an order permitting him to disclose certain documents to the Criminal Division of the Attorney General of the State of Rhode Island for review and presentation to a Rhode Island grand jury. The documents in question were acquired by a federal grand jury during the course of investigating the above-entitled matter and are apparently still in its possession. In an Order dated April 13, 1982, this Court denied the government's petition. Because the problem of grand jury secrecy is a recurring one, the Court has decided to issue this Opinion to elaborate on the reasons for its decision.

The Court's first concern in addressing this matter is whether the United States Attorney should be authorized to deliver documents held by the grand jury to a third party when the third party has not requested production of the documents and has not demonstrated a legal right thereto. The Court believes that such authorization cannot be given. It must be remembered that the documents in question remain the property of the person who produced them despite the fact that they are currently in the hands of the grand jury. United States v. Penrod, 609 F.2d 1092, 1097 (4th Cir. 1979) (dicta), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980); United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). The grand jury is authorized to retain these documents only to further its investigation and in the usual case will be required to return the documents to their owner upon completion of its task. Robert Hawthorne, Inc. v. Director of Internal Revenue, 406 F.Supp. 1098, 1131-32 (E.D.Pa.1976).

Given the grand jury's limited authority with respect to these documents, the Court believes that it would be improper for the grand jury to be used as an instrument to transfer these documents to a third party who has neither requested their production nor shown a legal right to obtain them. Rather, a party seeking production of documents held by the grand jury should be required to take the same steps which are necessary to obtain documents that are not in the possession of the grand jury. He must either secure consent to disclosure from the owner of the documents or obtain a court order granting him disclosure based on some legal right thereto.² United States v. Penrod, supra, at 1097; United States v. Interstate Dress Carriers, Inc., supra, at 54.

In this case, because the United States Attorney is the party petitioning for disclosure, the State Attorney General has not been required to request production of the documents or to show a legal right to obtain such production. Such a request by a party which is legally entitled to production of documents is a prerequisite to a judicial determination of whether documents held by the grand jury can be disclosed. United States v. Monsour, 508 F.Supp. 168, 169 (W.D.Pa.1981). Once such a request is made the court can proceed to determine whether the documents sought come within the scope of the grand jury secrecy provisions of Rule 6(e), and, if so, whether the requisite showing of particularized need has been made. Absent such a request, disclosure to a third party of documents held by the grand jury must be denied regardless of whether such documents come within the scope of Rule 6(e). Because no such request was made in this case, the petition of the United States Attorney was denied.

A second procedural defect in the petition for disclosure also required denial of the petition. The United States Attorney sought to proceed ex parte in this matter, and did not serve notice on the owners of the documents that are the subject of the petition. The Court believes that this was not the proper procedure under the circumstances.

It must be acknowledged that there is some support in the legislative history of Rule 6(e) for the procedure adopted by the government in this case. The Senate Report on the 1977 amendments to Rule 6(e) states that, "It is contemplated that the judicial hearing in connection with an application for a court order by the government under subparagraph (3)(C)(i) should be ex parte so as to preserve, to the maximum extent possible, grand jury secrecy." S.Rep.No.354, 95th Cong., 1st Sess. 8, reprinted in 1977 U.S.Cong.Code & Ad.News 527, 532 (footnote omitted). However, courts which have reviewed this portion of the legislative history have rejected the notion that the Rule requires that all hearings on petitions for disclosure be conducted ex parte. In re Grand Jury Investigation No. 78-184, 642 F.2d 1184, 1192 (9th Cir. 1981); Petition of the United States for Disclosure of Grand Jury Matters (Miller Brewing Co.), 510 F.Supp. 585, 586-87 (E.D.Wis. 1981); In re Grand Jury Matter, 495 F.Supp. 127, 134 (E.D.Pa.1980).

It is important to realize that to a large degree "our legal institutions presuppose a preference for adversariness," in part because adversary proceedings facilitate informed decisionmaking. In re Grand Jury Matter, 495 F.Supp. at 134. Given this established tradition favoring adversary proceedings, an ex parte proceeding should be resorted to only when necessary to preserve grand jury secrecy. This secrecy will obviously not be threatened by giving notice and an opportunity to object to disclosure to the owners of documents held by the grand jury, inasmuch as these persons are already aware of both the documents' contents and the fact that such documents are being reviewed by the grand jury.³ In re Grand Jury Investigation No. 78-184, 642 F.2d at 1192. Whether notice should be afforded to other persons when such notice might risk compromising grand jury secrecy is a far different question which will have to be decided on a case-by-case basis. See id. at 1192 (leaving to district court the decision whether to give notice and opportunity to be heard to grand jury targets with respect to documents with which they were familiar but did not own).

The final reason for denying the government's petition was that the Court was convinced that disclosure was not authorized under Rule 6(e) of the Federal Rules of Criminal Procedure. Rule 6(e) codifies the longstanding tradition of secrecy which has surrounded grand jury proceedings.⁴ It provides that:

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 (3)(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. F.R.Crim.P. 6(e)(2).

There are a number of exceptions to the general rule of secrecy provided for in the Rule. The Rule provides that disclosure of matters other than the deliberations or vote of any grand juror may be made to an attorney for the government or to government personnel deemed necessary to assist in the enforcement of federal criminal law. F.R.Crim.P. 6(e)(3)(A). Disclosure of grand jury material may also be authorized "when so directed by a court preliminary to or in connection with a judicial proceeding." F.R.Crim.P. 6(e)(3)(C)(i). However, parties seeking disclosure under the latter provision must show a particularized need for the material. Specifically, they must satisfy the test set forth in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979), which requires a showing that "the material they seek 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."

There has been no attempt in this case by the government to show that an order requiring disclosure of documents to the State Attorney General would be warranted under the Douglas Oil test. Instead, the United States Attorney argues that Rule 6(e) is not applicable to the documents which he wishes to turn over to the State Attorney General because mere disclosure of documents does not constitute disclosure of matters occurring before the grand jury within the meaning of Rule 6(e). Thus, the key question before the Court is whether disclosure of documents subpoenaed by a grand jury should be governed by the secrecy provisions of Rule 6(e).

There is an abundance of cases which address this question with a striking lack of unanimity.⁵ Indeed, one can discern four different approaches to the question of whether disclosure of documents subpoenaed by the grand jury is governed by the secrecy provisions of 6(e). First, a few courts have suggested that subpoenaed documents are never subject to the disclosure restrictions of the Rule. See, e.g., United States v. Weinstein, 511 F.2d 622, 627 n.5 (2d Cir.), cert. denied, 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975); Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 59 (E.D.Pa. 1980); In re Grand Jury Investigation of Ven-Fuel, 441 F.Supp. 1299, 1303 (M.D.Fla. 1977). Other courts have taken exactly the opposite position, holding that subpoenaed documents should be treated the same as grand jury testimony and should be disclosed only if the requirements of Rule 6(e) are satisfied. Some courts in this group have simply treated documents as falling within the scope of 6(e) without comment or...