IN RE GRAND JURY SUMMONED OCTOBER 12, 1970

• Decision Date: 10 December 1970
• Citation: 321 F. Supp. 238
• Parties: In re Proceedings before the GRAND JURY SUMMONED OCTOBER 12, 1970.
• Court: U.S. District Court — Northern District of Ohio

321 F. Supp. 238

In re Proceedings before the GRAND JURY SUMMONED OCTOBER 12, 1970.

United States District Court, N. D. Ohio, W. D.

December 10, 1970.

William M. Connelly, Asst. U. S. Atty., Toledo, Ohio, for the Government.

Arnold & Porter, Washington, D. C., and Donald F. Melhorn, Jr., Toledo, Ohio, for Donovan Wire & Iron Co. and Irwin Fruchtman.

MEMORANDUM

DON J. YOUNG, District Judge.

This cause came to be heard on motion of Donovan Wire & Iron Company and Irwin Fruchtman for an order enforcing compliance with the provisions of Rule 6 (e) of the Federal Rules of Criminal Procedure by restraining the government from imposing any obligation of secrecy upon grand jury witnesses.

The facts are not in dispute. Counsel for movants engaged in what is aptly described as a systematic debriefing of witnesses upon their departure from the grand jury room. In response thereto, the attorneys for the government advised several witnesses that while they were free to discuss their testimony with whomever they pleased, they were to report back to the grand jury in the event they were interrogated regarding the questions presented to them by the grand jury. The government's sole objective "was to attempt to discourage the movants practice of reconstructing the grand jury proceedings by systematically debriefing the grand jury witnesses." Government's Memorandum in Support of Amended Response at p. 4. The effect of the limiting instruction was that three witnesses who had appeared before the grand jury refused to discuss their testimony with movant's counsel, apparently believing that they were under some total restraint or were otherwise dissuaded by the possibility of having to report back to the grand jury.

Rule 6(e) of the Federal Rules of Criminal Procedure provides in pertinent part:

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, or stenographer * * * 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. (Emphasis added).

Witnesses are not mentioned in the list of persons coming under the prohibition set forth in the Rule. Therefore, they would be included within the group of persons upon whom no obligation of secrecy may be imposed. See Note 2 of the Advisory Committee Notes to Fed.R.Cr.P. 6(e).

The government takes the position that the action of movant's counsel was violative of the traditional veil of secrecy surrounding grand jury proceedings. At the outset the Court notes that the secrecy which is to be upheld is the final action or inaction of the grand jury and not the specific questions propounded to and specific answers given by a particular witness. 38 Am.Jur.2d, Grand Jury § 41 (1968). While it is true that in a given case the difference might be indistinguishable, such a result would appear to be by far the exception and not the general rule.

While the relevant case law is not abundant, the cases tend to lend support to the position taken by the movants. The cases show that the secrecy of grand jury proceedings may not be imposed upon witnesses who appear before a grand jury; they may be interviewed after their appearance and repeat what they said before the grand jury or otherwise relate their knowledge on the subject of the inquiry. Philadelphia Electric Co. v. Anaconda American Brass Co., 41 F.R.D. 518 (E.D.Pa.1967); Palmentere v. Campbell, 205 F.Supp. 261 (W.D. Mo.1962); In re Petition for Disclosure of Evidence, etc., 184 F.Supp. 38 (E.D. Va. 1960); In re Hearings Before the Committee on Banking and Currency, etc., 19 F.R.D. 410 (N.D.Ill.1956), rev'd on other grounds, 245 F.2d 667 (7th Cir. 1957); People v....