IN RE GRAND JURY EMPANELLED MARCH 8, 1983, Misc. No. 83-711.

• Decision Date: 31 January 1984
• Docket Number: Misc. No. 83-711.
• Parties: In re GRAND JURY EMPANELLED MARCH 8, 1983.
• Court: U.S. District Court — Eastern District of Tennessee

579 F. Supp. 189

In re GRAND JURY EMPANELLED MARCH 8, 1983.

Misc. No. 83-711.

United States District Court, E.D. Tennessee, N.D.

January 31, 1984.

R. Louis Crossley, Jr., Knoxville, Tenn., for Knoxville Journal.

John W. Gill, Jr., U.S. Atty., Knoxville, Tenn., for defendant.

MEMORANDUM

ROBERT L. TAYLOR, Chief Judge.

On November 29, 1983, the United States issued three grand jury subpoenas duces tecum to Jacob F. Butcher and his attorney William T. Ramsey. The return date on these subpoenas was continued until January 31, 1984. On January 25, 1984, Butcher and Ramsey mailed to the Clerk of this Court a motion to quash these subpoenas. At the request of the United States, and with consent of Butcher and Ramsey, this motion was not filed, but was handed to the Court pending a ruling on the United States' request to seal this motion from the public. On January 27, 1984, the Court invited counsel for the news media to express their views concerning the sealing of this motion. On that same day, the Knoxville Journal filed a petition for access to the motion. On January 30, 1984, the United States filed a motion for a closed hearing on the motion to quash.

The United States Attorney bases his request on Federal Rule of Criminal Procedure 6(e)(5)-(6). These two subparagraphs of Rule 6 became effective on August 1, 1983, and provide:

(5) Closed Hearing. Subject to any right to an open hearing in contempt proceedings, the court shall order a hearing on matters affecting a grand jury proceeding to be closed to the extent necessary to prevent disclosure of matters occurring before the grand jury.

(6) Sealed Records. Records, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury.

Both subparagraphs are new and the Court is unable to find any judicial interpretation of these subparagraphs. The notes of the Advisory Committee on the Federal Rules of Criminal Procedure are the best authority on the scope of these two subparagraphs.

With respect to Rule 6(e)(5) the notes state that

this addition to rule 6 would make it clear that certain hearings which would reveal matters which have previously occurred before a grand jury or are likely to occur before a grand jury with respect to a pending or ongoing investigation must be conducted in camera in whole or in part in order to prevent public disclosure of such secret information. One such hearing ... at which information about a particular grand jury investigation might need to be discussed is one at which the question is whether to ... order a grand jury witness to comply fully with the terms of a subpoena directed to him.

Fed.R.Crim.P. 6 (Advisory Committee Notes), reprinted at 97 F.R.D. 245, 276.

The notes also quote a recent General Accounting Office study that established "that open hearings often seriously jeopardize grand jury secrecy ...." Id.

For judges to decide these matters, the witness' relationship to the case under investigation must be discussed. Accordingly, the identities of witnesses and targets, the nature of expected testimony, and the extent to which the witness is cooperating are often revealed during preindictment proceedings. Because the matters discussed can compromise the purposes of grand jury secrecy, some judges close the preindictment proceedings to the public and the press; others do not. When the proceeding is open, information that may otherwise be kept secret under rule 6(e) becomes available to the public and the press....

Open preindictment proceedings are a major source of information which can compromise the purposes of grand jury secrecy. In 25 cases we were able to establish links between open proceedings and later newspaper articles containing information about the identities of witnesses and targets and the nature of grand jury investigations.

Id., quoting Comptroller General, More Guidance and Supervision needed over Federal Grand Jury Proceedings 8-9 (Oct. 16, 1980).

In this case the identity of the witness is already known. The Knoxville Journal also states that the public already knows that Butcher is under investigation by the grand jury. The Journal, therefore, argues that a closed hearing will not prevent a "disclosure of matters occurring before the grand jury." However, review of the subpoenas and motion to quash indicate that an open hearing would also reveal the nature of the expected documents and the extent to which the witness is cooperating. Butcher has been the subject of a previous grand jury subpoena duces tecum. A comparison of the previous subpoena with the present subpoena shows that an open...