In re Grand Jury Subpoena Duces Tecum, M-11-188.
| Decision Date | 01 December 1983 |
| Docket Number | No. M-11-188.,M-11-188. |
| Citation | 575 F. Supp. 93 |
| Parties | In re GRAND JURY SUBPOENA DUCES TECUM. |
| Court | U.S. District Court — Southern District of New York |
Rudolph W. Giuliani, U.S. Atty., James R. DeVita, Asst. U.S. Atty., New York City, for the government.
By an ex parte application the government seeks an order prohibiting a bank from disclosing to its customer that the bank has been served with a grand jury subpoena duces tecum for records concerning the customer. The application originally was accompanied by a short affidavit of the Assistant United States Attorney which stated simply "Premature disclosure of the investigation ... may frustrate efforts to seize evidence of crimes and may jeopardize the effectiveness of the Grand Jury investigation." No authorities were cited supporting the issuance of such an order.
In response to my direction that further papers be submitted in support, the government filed a brief in the form of an affirmation. This brief makes reference to the provision of Criminal Rule 6(e)(2) that "No obligation of secrecy with respect to Grand Jury proceedings may be imposed on any person except in accordance with this rule." It goes on to argue that, in spite of Rule 6(e)(2), authority for the order lies in the All Writs Act, 28 U.S.C. § 1651. The Government cites In re Swearingen Aviation Corp., 486 F.Supp. 9 (D.Md.1979) as authority for a secrecy order where necessary to protect the legitimate investigative function of the grand jury. The affirmation of the Assistant United States Attorney states that . The brief concludes with the contention that the Government has made a "particularized showing of need for secrecy".
I do not decide on the Government's contention that it is entitled to receive such an order of secrecy upon a "particularized showing of need for secrecy". The Government does not contend it is entitled to the order without making such a showing. And I find that the papers submitted do not make a sufficient showing to comply with the standard that the Government acknowledges it must meet.
The Assistant's affirmation submits no information which would enable a court to decide whether a secrecy order is warranted. Nothing is stated except the prosecutor's formulaic...
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