In re Grand Jury

• Decision Date: 22 June 2007
• Docket Number: No. 06-3078.,No. 06-3095.,06-3078.,06-3095.
• Citation: 490 F.3d 978
• Parties: In re: GRAND JURY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

490 F.3d 978

In re: GRAND JURY.

No. 06-3078.

No. 06-3095.

United States Court of Appeals, District of Columbia Circuit.

Argued January 22, 2007.

Decided June 22, 2007.

Appeals from the United States District Court for the District of Columbia (No. 06mc00057) (No. 06mc00159).

Before: ROGERS and KAVANAUGH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

This case raises a question that, surprisingly, has not yet been decided by this court: whether federal grand jury witnesses, after they have testified, are entitled to examine the transcripts of their own testimony. Applying Federal Rule of Criminal Procedure 6(e)(3)(E)(i), we hold that grand jury witnesses are entitled to review the transcripts of their own testimony in private at the U.S. Attorney's Office or a place agreed to by the parties or designated by the district court.

I.

During a criminal investigation of a company and its employees, the Government issued multiple grand jury subpoenas for the testimony of two corporate employees. The first employee testified on three occasions. Approximately two months after the employee's third grand jury appearance, the employee was subpoenaed to testify a fourth time. The employee sought to review his prior grand jury testimony— in particular asking for copies of the transcripts of the prior three grand jury appearances. The Government, which keeps copies of grand jury transcripts and tapes, see Fed.R.Crim.P. 6(e)(1), denied that request. The employee then filed a motion in the United States District Court for the District of Columbia to compel disclosure of the transcripts. The district court denied the motion, and the employee appealed. In the meantime, the employee subsequently testified a fourth time.

The second employee testified once and then was subpoenaed to testify again. The employee sought to review her prior grand jury testimony and asked for a copy of the transcript of the first grand jury appearance. The Government denied that request. Following the Government's denial, the employee filed a motion in the district court to compel disclosure of the transcript of the prior grand jury testimony. The district court denied that motion, and the employee appealed. In the meantime, this employee testified a second time.

II.

For two alternative reasons, the Government says that the court lacks jurisdiction over both employees' appeals. First, the Government argues that the district court's denials of the employees' motions for their grand jury transcripts are not "final decisions" under 28 U.S.C. § 1291. Second, the Government contends that the employees' appeals are moot because the employees have completed their testimony before the grand jury. We disagree with both of the Government's jurisdictional points. The Government also argues the second employee's appeal is untimely; we disagree.

A.

Section 1291 vests courts of appeals with jurisdiction over "appeals from all final decisions of the district courts of the United States ..., except where a direct review may be had in the Supreme Court." The Government maintains that the district court's orders denying the witnesses access to their own grand jury transcripts are not "final decisions" under § 1291.

No court of appeals has directly answered the question whether a district court order denying a witness access to transcripts of his or her own testimony (as opposed to a party seeking access to transcripts of someone else's testimony) is appealable as a final decision. In arguing against appellate jurisdiction, the Government analogizes this situation to cases involving witnesses' motions to quash grand jury subpoenas on privilege or other grounds. The Government advances this analogy because a witness ordinarily cannot appeal from a denied motion to quash a grand jury subpoena until the witness first refuses to comply with the subpoena and is held in contempt. See, e.g., United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). According to the Government, the same prerequisite should apply to a witness's appeal of a denied motion for access to grand jury transcripts (in other words, the witness first should refuse to comply with a subpoena and be held in contempt). But the Government's argument has a gaping hole: A witness who has already testified will not necessarily be subpoenaed for future grand jury testimony — and thus may not have an opportunity to be held in contempt in order to appeal an order denying access to the transcript of prior grand jury testimony. For example, what about access to the transcript of a witness's final appearance before the grand jury? Or what about the grand jury witness who testifies only once? Under the jurisdictional rule that the Government would have us adopt, such parties would be out of luck in seeking to appeal denied motions for access to transcripts of their testimony. The Government's attempted analogy therefore does not hold up. Cf. Cobbledick v. United States, 309 U.S. 323, 329, 60 S.Ct. 540, 84 L.Ed. 783 (1940) ("Due regard for efficiency in litigation must not be carried so far as to deny all opportunity for the appeal contemplated by the statutes.").

For purposes of appellate jurisdiction, this case is analogous to cases where a party seeks access to the grand jury transcripts of the testimony of other witnesses. As Justice Rehnquist explained, an order denying such third parties access to a transcript "disposes of all of the contentions of the parties and terminates a separate proceeding pending before the grand jury court [and] is therefore appealable as a `final decision' under 28 U.S.C. § 1291." Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 233, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979) (Rehnquist, J., concurring); see id. at 215-17, 99 S.Ct. 1667; see also United States v. Miramontez, 995 F.2d 56, 57, 59 n. 4 (5th Cir.1993); Wisconsin v. Schaffer, 565 F.2d 961, 965 & n. 1 (7th Cir.1977); Gibson v. United States, 403 F.2d 166, 167 (D.C.Cir.1968); cf. In re Grand Jury 95-1, 118 F.3d 1433, 1434, 1436 (10th Cir.1997); In re Federal Grand Jury Proceedings, 760 F.2d 436, 437-38 (2d Cir.1985).¹ So too in this case. Here, as in cases involving third-party disclosure motions, appellate consideration of the access issue alone is unlikely to significantly delay the grand jury investigation.² Here, as in cases involving third-party disclosure motions, the requesting witness may have no opportunity to be held in contempt if the request is denied. And here, as in cases involving third-party disclosure motions, the district court's order terminates a separate proceeding before the grand jury court.

This case is also analogous to the situation where a third party seeks to interpose a privilege objection to subpoenas issued to other witnesses — such as a client who objects to a subpoena issued to his or her attorney. In those cases, the party holding the privilege has no opportunity to be held in contempt because it is not the subpoenaed party. The courts therefore have generally considered district court orders denying such motions to be final decisions for purposes of appellate jurisdiction. See, e.g., Perlman v. United States, 247 U.S. 7, 9-10, 12-13, 38 S.Ct. 417, 62 L.Ed. 950 (1918); In re Sealed Case, 107 F.3d 46, 48 n. 1 (D.C.Cir.1997); Impounded, 277 F.3d 407, 410-11 & n. 3 (3d Cir.2002); In re Grand Jury Proceedings (Manges), 745 F.2d 1250, 1251 & n. 2 (9th Cir.1984); see also 2 SARA SUN BEALE & WILLIAM C. BRYSON, GRAND JURY LAW AND PRACTICE §§ 9:39, 11:18 ¶ 3 & n. 4 (2d ed.2005). The same rationale applies here because the requesting party may have no opportunity to be held in contempt in order to obtain appellate review.

In sum, we hold that the district court's denials of the employees' disclosure motions constitute "final decisions" over which this court has jurisdiction under 28 U.S.C. § 1291.

B.

The Government alternatively contends that this court lacks jurisdiction over the employees' appeals because the cases are moot. According to the Government, the employees requested disclosure of their transcripts in order to prepare for subsequent grand jury appearances. Because both employees went ahead and testified again before the grand jury, the Government argues that the employees no longer need the transcripts of their prior testimony.

This argument is closely related to the Government's initial jurisdictional contention. Under the Government's theory, the witness seeking to appeal the denial of a disclosure motion must refuse to comply with an outstanding subpoena and be held in contempt; and if the witness testifies instead of defying the subpoena, the disclosure issue becomes moot. The primary problem for the mootness version of the Government's contempt-as-prerequisite-for-appeal argument is that a witness has an interest in reviewing his or her grand jury transcript even when the witness has finished testifying. Here, for example, the employees have expressed concern that their prior testimony may have included inadvertent inaccuracies or inconsistencies, and they want to review the transcripts to correct those inaccuracies or inconsistencies. Correcting the record is not a pointless gesture. The Government otherwise could use a witness's inaccurate or inconsistent testimony as a basis, at least in part, for a criminal prosecution of that witness or someone else. See 18 U.S.C. § 1623(a), (c) (inconsistent statements). In addition, federal law explicitly provides a mechanism for a witness to timely recant prior grand jury testimony. See id. § 1623(d). Yet witnesses would have difficulty taking full advantage of this statutory recantation right without access to transcripts of their own grand jury testimony. Contrary to the Government's theory, moreover, a witness's interest in reviewing transcripts of past testimony could well increase after any subsequent testimony; that's because the...