In re Grand Jury Witness Subpoenas, GJ 15.

• Decision Date: 25 January 1974
• Docket Number: No. GJ 15.,GJ 15.
• Parties: In re GRAND JURY WITNESS SUBPOENAS.
• Court: U.S. District Court — Southern District of Florida

370 F. Supp. 1282

In re GRAND JURY WITNESS SUBPOENAS.

No. GJ 15.

United States District Court, S. D. Florida.

January 25, 1974.

Robert W. Rust, U. S. Atty., and Lloyd Bates, Asst. U. S. Atty., Miami, Fla., for the Government.

Barry L. Garber, and Donald I. Bierman, Bierman & Sonnett, P. A., Miami, Fla., for defendants.

MEMORANDUM OPINION

ATKINS, District Judge.

This cause has come before the Court on motions by Fernando Prio, Hugo Olazabal, Candido Pacheco and Oscar Alfonzo, witnesses subpoenaed before the United States Grand Jury, to compel the production of transcripts of their prior and future grand jury testimony. Additionally, the witnesses Olazabal, Pacheco and Alfonzo request the production of their transcribed statements which were given to law enforcement agents on various occasions. These motions have been raised against the following background.

The petitioners were subpoenaed to testify on January 11, 1974¹ before the grand jury in connection with an investigation into the criminal tax liability of one Oswaldo Alfonzo. Petitioner Prio previously testified before the grand jury on January 4, 1973. The other petitioners testified on December 14, 1972. The testimony of these individuals has been transcribed. The government has represented to the Court that each witness in his prior appearance invoked the privilege against self-incrimination in response to questions other than those concerning his identity and employment. In addition, Prio responded to a number of questions concerning various corporations. The government informs the Court that it will seek use immunity pursuant to 18 U.S.C. § 6001 et seq. in the event that these witnesses again invoke their Fifth Amendment privilege.

The threshold inquiry is whether this Court has the power to order the government to produce the requested grand jury testimony. F.R. Crim.P. 6(e) permits disclosure of matters occurring before a grand jury in limited circumstances.² The court may direct the disclosure of such matters "preliminarily to or in connection with a judicial proceeding . . . ." The issue of whether a grand jury proceeding is a "judicial proceeding" within the meaning of F.R.Crim.P. 6(e) was answered in the affirmative in In re Minkoff, 349 F.Supp. 154 (D.R.I.1972). This Court concurs in that conclusion.³

The decision whether to order the disclosure of grand jury testimony is one committed to the sound discretion of the trial court. United States v. Fuentes, 432 F.2d 405 (5th Cir. 1970). That decision rests on a determination of whether the policies behind the traditional veil of secrecy that surrounds grand jury proceedings will be undermined by disclosure.

The Supreme Court in United States v. Procter and Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) quoted with approval the Third Circuit's concise delineation of the reasons behind the policy of secrecy:

"(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect (sic) innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt." 356 U.S. 677, 681 n. 6, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 quoting with approval from United States v. Rose, 215 F.2d 617, 628, 629 (3d Cir. 1954).

An ever-widening rift is developing among the courts, however, concerning the application of these policy-reasons to a witness who seeks disclosure. Compare, Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972); In re Minkoff, 349 F.Supp. 154 (D.R.I.1972); In re Russo, 53 F.R.D. 564 (C.D.Cal.1971); In re Craven, 13 Crim.L.Rep. 2100, March 30, 1973, with, In re Bottari, 453 F.2d 370 (1st Cir. 1972); In re Alvarez, 351 F.Supp. 1089 (S.D.Cal.1972).

The Court starts with the proposition that the

". . . `indispensible secrecy of grand jury proceedings' (citation omitted) must not be broken except where there is a compelling necessity." Procter and Gamble Co., supra, 356 U.S. at 682, 78 S.Ct. at 986.⁴

The witnesses contend that although they will be granted use immunity pursuant to 18 U.S.C. § 6001 et seq. they will still be exposed to possible perjury charges. 18 U.S.C. § 6002(3). Therefore, each witness asserts that he must have access to his prior grand jury testimony to avoid any "inadvertent" misstatements.

The Court finds, however, that under the circumstances of this case, disclosure would be inconsistent with valid reasons for maintaining a cloak of secrecy in grand jury proceedings. The witnesses reiterate the argument set forth in Russo, supra, that the policy justification that secrecy frees a witness from apprehension that his testimony will be disclosed is not applicable where the witness himself moves for disclosure of transcribed testimony. The Court in Russo maintains that the privilege of non-disclosure belongs to the witness himself.⁵ Important considerations exist, however, which dictate that a unilateral exercise of a privilege of disclosure of transcribed testimony not be recognized. For example, a witness may not realize the significance of his testimony at the time he seeks disclosure. Also, the witness may have been lulled into a false sense of security by a clever individual who is the target of an investigation. Contrariwise, a witness, who has obtained disclosure may then fall prey to intimidation and be compelled to furnish a copy of his testimony. As the Court in In re Alvarez, supra, stated:

"While a witness before a grand jury may later verbally divulge his testimony, it is also true that he may claim, without fear of contradiction, that he gave no useful testimony. In the absence of a transcript, this denial cannot be refuted." 351 F.Supp. at 1091.

In this regard it is significant to note that the person whose activities are under investigation in the instant cause was not brought to trial on an indictment in a previous case because of the disappearance of the government's main witness.

Recognition of a general "right" to disclosure of a witness's own transcribed testimony would, it seems to the Court, have a debilitating effect on the grand jury's access to information. As inroads are made on the tradition of secrecy that surrounds grand jury proceedings, witnesses may, consciously or not, hold back vital information. The Court recognizes that there exists a move "in the direction of relaxing the rigid rules of secrecy (which includes) Federal courts as well as the State courts." Palmentere v. Campbell, 205 F.Supp. 261 (W.D.Mo.1962). But any further incursions on the fortress of secrecy surrounding the grand jury must be made with an abundance of caution. For no less than the institution of the grand jury itself is at stake.

Moreover, refusal to release the transcripts will serve to make any potential subornation of perjury more difficult. Although the potential defendant in this case is aware of the ongoing investigation and is free to speak with the witnesses, he would encounter greater difficulty in piecing together a contrived defense in a complicated case without access to the transcript.

Disclosure of written transcripts of grand jury proceedings also poses a threat to the innocent target of the ongoing investigation. The verified word, in the hands of an overzealous press or an unscrupulous individual could have disastrous consequences.

The Court is also concerned about the potential flood of litigation that would ensue if a particularized need were recognized in the claim that disclosure of the transcribed testimony will avoid "inadvertent error." The petitioners' claims in this regard are no different than those of any other witness who testifies before a grand jury. In re Bottari, supra.⁶

With regard to the disclosure of a witness's previously transcribed grand jury testimony and testimony about to be transcribed then, the Court adheres to the principle that unless a particularized need amounting to a compelling necessity is shown, the secrecy of the grand jury proceedings shall remain inviolate.

The motion by the witnesses, Olazabal, Pacheco and Alfonzo to compel the government to produce transcripts of their testimony given under subpoena before Internal Revenue Agents on various dates is without merit. No statutory provision exists which permits access to investigatory files at this stage of the criminal process. Also, the Freedom of...