United States v. McGrath, 78 Cr. 315 (HFW).

• Decision Date: 11 September 1978
• Docket Number: 78 Cr. 315 (HFW).
• Citation: 459 F. Supp. 1271
• Parties: UNITED STATES of America, Plaintiff, v. James McGRATH et al., Defendants.
• Court: U.S. District Court — Southern District of New York

459 F. Supp. 1271

UNITED STATES of America, Plaintiff, v. James McGRATH et al., Defendants.

78 Cr. 315 (HFW).

United States District Court, S. D. New York.

September 11, 1978.

Robert B. Fiske, Jr., U. S. Atty., for the S. D. of New York, New York City, by Kenneth V. Handal, Asst. U. S. Atty., New York City, of counsel, for United States of America.

Mark Lemle Amsterdam, New York City, for defendant Scigowski.

MEMORANDUM DECISION

WERKER, District Judge.

Defendant Sylvester Scigowski moves pursuant to Fed.R.Crim.P. 6(e) for an order requiring the government to disclose and turn over the grand jury minutes of this action and pursuant to Fed.R.Crim.P. 12 to dismiss the indictment on grounds that it was obtained through an abuse of the grand jury in violation of his fifth amendment rights.

Although grand jury proceedings are secret, an order to disclose grand jury minutes may issue when a party demonstrates "a `particularized need' that outweighs the need for secrecy." United States v. Moten, 582 F.2d 654 (2d Cir., 1978), at 662, citing Dennis v. United States, 384 U. S. 855, 868, 86 S.Ct. 1840, 1848, 16 L.Ed.2d 973 (1966); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959); United States v. Proctor & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). In the present case there has been no such sufficient "particularized showing." Defendant, through an affidavit of counsel, asserts that there "may have been" an abuse of the grand jury and alleges based upon "a review of the discovery materials so far provided by the government, discussions among counsel, and other factors, that there is so much and such substantial exculpatory material that the prosecutor must have withheld same in order for the grand jury to indict Mr. Scigowski." Amsterdam affid. at 1. The affidavit continues to recount two examples from taped conversations. In the first, an apparent informer asks a co-defendant if the latter has seen Sal. The co-defendant responds "Sal who?" In the second, the apparent informer suggests that Scigowski may be the informer and the co-defendant answers "that's not enough." Amsterdam affid. at 2. From the above defendant concludes that (a) "exculpatory material, of a significant nature, exists and is in the possession of the government;" (b) "it strains the imagination to believe that the grand jury returned a conspiracy indictment against Mr. Scigowski in light of the existence of such obviously exculpatory evidence, especially when added to the lack of trustworthiness inherent in the...