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September 1990
THE FEDERAL GRAND JURY:
EXCEPTIONS TO THE RULE OF SECRECY (PART II)
By
Austin A. Andersen
Special Agent Andersen and Legal Instructor
FBI Academy
Part I of this article traced the development of the
Federal grand jury system in the United States and set forth the
reasons for the requirement that grand jury proceedings be
conducted in secrecy. Two general categories of exceptions to
the obligation of secrecy specifically provided for by Rule
6(e), Federal Rules of Criminal Procedure (F.R.C.P.) were noted:
Disclosure without a court order, such as the disclosure to an
attorney for the government and the subsequent disclosure to
such government personnel necessary to assist the attorney in
enforcing Federal criminal law; and disclosure requiring a court
order, such as the disclosure of Federal grand jury material to
reveal a violation of State law or for use in some other
judicial proceeding.
Part II will address difficulties commonly encountered by
law enforcement officials attempting to comply with the
requirements of Rule 6(e) as they come into contact with
materials from grand jury investigations. Among the most
problematic areas are dissemination to foreign authorities,
determining exactly what type of evidence constitutes ``matters
occurring before the grand jury,'' and defining the
``disclosure'' of such matters.
DISCLOSURE TO FOREIGN AUTHORITIES
Because of the transnational character of many drug and
organized crime investigations conducted by modern police
agencies, there is an increasing need for reciprocal cooperation
and coordination by law enforcement authorities throughout the
world. Government attorneys, however, have no discretionary
authority to provide grand jury materials to other countries.
In contrast to its specific provision allowing courts to reveal
violations of State criminal laws, Rule 6(e) is silent with
respect to an exception for the disclosure of a violation of
foreign law to foreign authorities. Because the rule of secrecy
generally prevents the disclosure of grand jury testimony to
foreign officials, courts reject attempts by subpoenaed
witnesses to invoke their fifth amendment right against
compulsory self-incrimination as protection against prosecution
in other countries. (43) This protection of the witness'
testimony is especially important, inasmuch as the U.S.
prosecutor has no ability to immunize the witness with respect
to foreign criminal proceedings. (44)
Despite the absence of express authority in Rule 6(e) to
provide grand jury material to law enforcement officers of other
countries, on occasion requests for disclosure by foreign
agencies have been accommodated under Rule 6(e)(3)(C)(i), (45)
pursuant to a court order upon a showing of a particularized
need for the use of the material in a judicial proceeding. (46)
In determining if such a need exists, the court will use a
balancing test, weighing the policy of secrecy against the
obligation to avoid an injustice in some other tribunal. (47) In
addition, the court must also be satisfied that the forum for
which the material is to be used qualifies as a ``judicial
proceeding,'' as opposed to a mere investigation or audit. (48)
Although disclosure of grand jury material under Rule 6(e)
(3)(C)(i) is not easily or quickly facilitated, the U. S.
Government nonetheless has a substantial interest in assisting
foreign law enforcement authorities in the procurement of
evidence relevant to their criminal investigations. For this
reason, Congress has added a provision in the judicial section
of the U. S. Code that authorizes Federal courts--rather than
grand juries--to assist foreign authorities in gathering
evidence. Title 28 U.S.C. Section 1782 enables the U. S.
district court where a person resides to order that person to
provide testimony, statements, documents, or other evidence for
use in a foreign or international proceeding. Application for
such orders are made by letters rogatory, or requests from the
foreign tribunal, using protocol set forth in Title 28 U.S.C.
Section 1781. An order to compel evidence pursuant to letters
rogatory does not, however, include grand jury material subject
to the rule of secrecy. (49)
Other methods of exchanging information with foreign police
should not be overlooked by U.S. officers investigating matters
of international importance. Foreign countries may request
information from the U. S. Government under treaties providing
for mutual assistance in criminal investigations. Under the
Mutual Assistance Treaty in Criminal Investigations with
Switzerland, for instance, the U.S. Government is obligated to
disclose, upon request, grand jury materials from an
investigation after the case is no longer pending. (50)
Evidence obtained without the assistance of a grand jury is
often routinely exchanged with other law enforcement agencies
when there is a common need for the information. Telephone
records, for instance, when they are obtained by court order
pursuant to Title 18 U.S.C. Section 2703(c) (Electronic
Communications Privacy Act), are not subject to the Rule 6(e)
secrecy requirement. The terms of each mutual assistance treaty
determines the type of information available for exchange and
describes the form in which the request should be made.
ISSUES CONCERNING THE APPLICATION OF GRAND JURY SECRECY
With its many exceptions, the doctrine of grand jury
secrecy is obviously not an absolute. Unfortunately, neither
the statutory language of Rule 6(e) nor its judicial
interpretation has provided clear and unequivocal rules
governing the accessibility of grand jury material to law
enforcement officers under all circumstances.
Disclosure at the Conclusion of the Grand Jury Proceedings
Rule 6(e) is silent concerning the length of time that
secrecy must be preserved. It is obvious that grand jury
testimony, transcripts, and documents are not protected by the
ban on disclosure to the extent they have been publicly revealed
in an indictment, at trial, or in a guilty plea. Exactly how
long matters not publicly disclosed must remain secret when the
grand jury is no longer convened varies. The dismissal of the
grand jury does not, by itself, lift the veil of secrecy,
automatically providing an attorney for the government with
broader discretion to disseminate grand jury material. When
disclosure is made by court order pursuant to one of the rule's
exceptions, however, the reasons for maintaining secrecy after
the grand jury is dismissed lose some of their force and are
more easily outweighed by competing interests when the court is
faced with the question of whether the ends of justice require
disclosure. (51) As previously noted, under the mutual
assistance treaties with some nations, disclosure may be made
after the grand jury's investigation is completed.
Defining ``Matters Occurring before the Grand Jury''
Rule 6(e) prohibits the disclosure to any person of
``matters occurring before the grand jury,'' except when made in
accordance with one of the rule's exceptions. These
``matters,'' however, are never further defined, except by case
law which is, at times, inconsistent. As a result, there is
considerable confusion concerning exactly what is encompassed by
the term ``matters occurring before the grand jury.'' Courts
generally agree that matters occurring before the grand jury
include subpoenas, the testimony of witnesses, and specific
questions of the grand jurors, as well as the transcripts of
these statements, the targets upon which the grand jury's
suspicion focuses, and specific details of what took place
before the grand jury. (52) Conversely, government reports that
contain statements provided by witnesses during investigations
prior to or independent of a grand jury appearance are generally
not considered matters occurring before the grand jury, unless
the witness was coerced into making a statement in lieu of a
subpoena or appearance. (53) A government document that
summarizes or restates matters identified as occurring before
the grand jury, however, is covered by the secrecy requirements
of Rule 6(e). (54)
Testimonial evidence and its transcription is generally
considered to be grand jury material. It is arguable, however,
that subpoenaed documents--especially third-party business
records, such as telephone toll transactions--do not qualify as
matters occurring before the grand jury. (55) Reasons given by
courts for excluding such documents from the category of
protected material include:
* Such records are independently compiled by corporations
for business purposes, and by themselves, do not reveal
the direction, strategy, or any other matters before the
grand jury.
* They are generally sought for their intrinsic value to
government investigators assisting the prosecutor and
are seldom even seen by the grand jurors.
* Disclosure of such information, often obtainable by
means other than with a Federal grand jury subpoena,
(56) does not contravene the underlying policy that
justifies the secrecy rule.
While holding that innocuous, pre-existing documents are
not protected from disclosure merely because they are
subpoenaed, one court noted that Rule 6(e) ``does not
require...that a veil of secrecy be drawn over all matters in
the world that happen to be investigated by a grand jury.'' (57)
For these reasons, most, but not all, courts hold that such
documents are not defined as ``matters occurring before a grand
jury,'' unless there is a demonstrated nexus between disclosure
and the revelation of some protected aspect of the grand jury's
investigation, such as the identities of witnesses or jurors,
the substance of testimony, the strategy or direction of the
investigation, or the deliberations and questions of jurors.
(58)
Notwithstanding the lack of judicial consensus as to
whether a subpoenaed document itself falls within the definition
of a matter occurring before a grand jury, one court
conceptualized information per se that is removed from the grand
jury context in the following manner:
``...when testimony or data is sought for its own sake--for
its intrinsic value in the furtherance of a lawful
investigation--rather than to learn what took place before
the grand jury, it is not a valid defense to disclosure
that the same information was revealed to a grand jury or
that the same documents had been, or were presently being,
examined by a grand jury.'' (59)
The Supreme Court has indicated that information extracted
from grand jury material does not constitute a matter occurring
before a grand jury when disclosure of the raw data does not
reveal that its source is the grand jury investigation. In
United States v. John Doe, (60) the Court considered the issue of
whether the same government attorney conducting a grand jury
investigation into criminal antitrust matters may make continued
use of the grand jury materials in the civil phase of the case
without obtaining a court order. The Court held that there is
no disclosure unless the material is actually revealed to some
other person not authorized to receive it. A second issue
concerned the defendant's contention that the government's use
in a civil complaint of information obtained from grand jury
material (including documents and transcripts of testimony)
violated Rule 6(e) provisions concerning secrecy by disclosing
matters that occurred before a grand jury. The Court noted that
since the civil complaint ``does not quote from or refer to any
grand jury transcripts or documents subpoenaed by the grand
jury...or even refer to the existence of a grand jury,'' (61) it
does not constitute a prohibited disclosure. (62)
The John Doe decision implies that unsourced data removed
from grand jury material may be revealed by government personnel
without committing a disclosure. Extracted information,
however, must be scrupulously handled in order to avoid either
directly or indirectly divulging a grand jury nexus. It is
important to note, however, that disclosure of such material
among law enforcement officers may be restricted for other
reasons. The Right to Financial Privacy Act of 1978, (63) for
instance, requires that financial records protected under the
act and subpoenaed by a grand jury must be afforded the
protections of Rule 6(e). In addition, the Tax Reform Act of
1976 (64) restricts disclosures of tax information obtained from
the Internal Revenue Service, whether it has been presented to a
grand jury or not.
Defining ``Disclosure''
After it is determined that certain material must be
categorized as divulging matters occurring before a grand jury,
disclosure of that material may be lawfully accomplished only in
accordance with the exceptions to secrecy specifically set
forth in Rule 6(e). Exactly what constitutes ``disclosure,''
however, is not made clear, either by Rule 6(e) or judicial
consensus. In considering the question of whether support
personnel tasked with maintaining and storing grand jury
material violate the secrecy rule, one court has recently
indicated that mere access or possession--as opposed to use for
investigative purposes--does not amount to disclosure as
intended by Rule 6(e). (65) Because there is no consistent
judicial guidance on this issue, government agencies are left
with the uncertain task of devising appropriate security
measures to protect such material.
Subpoenas, transcripts of testimony, and other documents
that identify matters occurring before a grand jury entrusted to
government personnel assisting the prosecuting attorney should
be secured in such a way that access is limited to those
individuals listed on the disclosure letter to the district
court. The materials can be used only for the purpose of
assisting the attorney in a Federal criminal prosecution and not
for internal or administrative purposes, such as agency
inspections or personnel investigations. The material should be
placed in a lockable room, filing cabinet, or other container
accessible only to government personnel listed on the disclosure
letter; it should not be stored or identified in automated data
systems--or any other location--accessible to personnel not
listed on the disclosure letter. In the event that grand jury
material is to be used in court, as in the case of original
documents, consideration must be given to preserving the chain
of custody. In most instances, however, the subpoenaed material
will consist of copies of documents, thereby eliminating the
need for chain of custody procedures. At the conclusion of the
grand jury investigation, original documents should be returned
to the owner, unless the right to the material is expressly
relinquished.
CONCLUSION
The grand jury is a time-honored legal institution that
serves the interests of both the government and the accused by
its ability to operate in secrecy. The exceptions to the rule
of secrecy provide government personnel with a carefully limited
ability to access and use the work product of the grand jury's
investigation. Most of the time, law enforcement officers come
in contact with Federal grand jury material when they assist a
government attorney in a Federal criminal investigation.
Although the decision by the attorney to reveal matters
occurring before the grand jury is discretionary, all officers
receiving the material must strictly adhere to the statutory
requirements of disclosure made under Rule 6(e)(3)(A)(ii). The
officers must be advised of their obligation of secrecy, which
not only prevents them from discussing grand jury material with
unauthorized individuals but also creates a duty to provide
physical security for documents that reveal matters occurring
before a grand jury. Also, the name of each employee using the
material must be furnished to the court, and the material can be
used only to assist the attorney in the Federal criminal
investigation.
Depending on case-by-case factual circumstances, the
definition of ``matters occurring before a grand jury'' may not
always be readily apparent; if material is not characterized as
a matter occurring before a grand jury, then its disclosure is
not controlled by Rule 6(e). Government personnel assisting an
attorney with a grand jury investigation are likely to find
themselves in possession of three types of materials:
1) Documents, such as subpoenas or transcripts of grand
jury proceedings, that reveal matters occurring before the
grand jury. These documents, clearly defined as a matter
occurring before a grand jury, are entitled to the
protection of secrecy and must be afforded security from
disclosure absent a specific exception set forth in Rule
6(e).
2) Third-party business records subpoenaed by the grand
jury. Because of the disagreement among courts as to
whether these documents, by themselves, reveal matters
occurring before the grand jury, it is not always obvious
whether they should be categorized as grand jury material.
Therefore, further disclosure must be carefully coordinated
with the attorney supervising the grand jury investigation.
3) Information extracted from grand jury material. Raw
data removed from context and carefully evaluated to make
certain that its use for other purposes neither directly
nor indirectly reveals its grand jury origins is not
entitled to protection under Rule 6(e).
In the absence of legislation designed to eliminate the
uncertainty involved in defining grand jury material and its
disclosure, these issues are likely to continue as a source of
confusion for government personnel assisting grand juries.
Therefore, as a general rule, the law enforcement officer in
possession of any material obtained from a grand jury should
seek appropriate legal guidance before attempting further
dissemination of either documents or information contained
therein.
FOOTNOTES
(43) See, e.g., In re Gilboe, 699 F.2d 71 (2d Cir. 1983);
In re Baird, 668 F.2d 432 (8th Cir. 1982), cert. denied, 456
U.S. 982.
(44) Id., Baird at 433-434.
(45) Rule 6(e)(3)(C)(i), F.R.C.P., provides, in part:
``Disclosure otherwise prohibited by this rule of matters
occurring before the grand jury may also be made...when so
directed by a court preliminarily to or in connection with a
judicial proceeding....''
(46) See Note, ``Disclosure of Grand Jury Materials to
Foreign Authorities under Federal Rule of Criminal Procedure
6(e),'' 70 Virginia Law Review 1623, 1632-3 (1984).
(47) Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S.
211 (1979).
(48) Id.
(49) Supra note 46, at 1632-1633.
(50) 27 U.S. Treaty at 2040; see Note, supra note 46, and
Tigar and Doyle, ``International Exchange of Information in
Criminal Cases,'' 1983 Michigan Year Book of International Legal
Studies 61, 66-73.
(51) See, e.g., United States v. Short, 671 F.2d, 178 (6th
Cir. 1982), cert denied, 102 S.Ct. 932; Butterworth, supra note
26, in which the Court implies that a State's interest in
witness secrecy is not as powerful after the grand jury is
dismissed; Socony-Vacuum, supra note 31.
(52) See, e.g., Douglas Oil Co., supra note 47; In re
Grand Jury Investigation of Ven-Fuel, 441 F.Supp. 1299,
1302-1303 (M.D. Fla. 1977).
(53) In re Baggot, 662 F.2d 1232, 1237-1238 (7th Cir.
1981).
(54) In re Grand Jury Proceedings, 613 F.2d 501, 505 (5th
Cir. 1980).
(55) See, e.g., Illinois v. Sarbaugh, 552 F.2d 768 (7th
Cir. 1977); United States v. Interstate Dress Carriers, Inc.,
280 F.2d 52 (2d Cir. 1960).
(56) Telephone records, for instance, often obtained by
court order pursuant to 18 U.S.C. 2703(c) [Electronic
Communications Privacy Act], are not subject to the Rule 6(e)
requirement of secrecy. Since investigators have an option as
to how they gain access to such material, its subsequent use or
disclosure reveals nothing about the grand jury investigation.
(57) Securities Exchange v. Dresser Industries, 628 F.2d
1368, 1382-1383 (D.C. Cir. 1980), cert. denied, 449 U.S. 993.
(58) See, e.g., Senate of Puerto Rico v. United States
Department of Justice, 823 F.2d 574, 584 (D.C. Cir. 1987); In re
Grand Jury Proceedings, 851 F.2d 860, 866-867 (6th Cir. 1988);
In re Grand Jury Investigation (New Jersey State Commission of
Investigation), 630 F.2d 996, 1000 (3d Cir. 1980); In re Special
February 1975 Grand Jury, 662 F.2d 1232, 1243 (7th Cir., 1981).
Many of the majority view cases concern Freedom of Information
/Privacy Act litigation in which, ironically, there is a release
to the general public of subpoenaed material which, due to
internal agency policy, is often not freely interchangeable
among law enforcement officers.
For minority view, see Fiumara v. Higgins, 572 F.Supp. 1093
(D.N.H. 1983) (district court considered telephone toll records
subject to secrecy); In re Grand Jury Proceedings, 851 F.2d 860
(6th Cir. 1988) (rebuttable presumption exists that confidential
business records compelled by subpoena are matters occurring
before a grand jury).
Some courts find a distinction between disclosure for law
enforcement purposes and public release, noting that documents
remain the property of the persons from whom they have been
subpoenaed. Therefore, where the owner of the documents does
not consent to their release to the public, disclosure must be
authorized by court order. See, e.g., Capitol Indemnity Corp.
v. First Minnesota Construction Co., 405 F. Supp. 929 (D. Mass.
1975); Interstate Dress Carriers, supra note 55.
(59) United States v. Interstate Dress Carriers, Inc., supra
note 55.
(60) 481 U.S. 102, 110 (1987).
(61) Id. at 110, quoting from In re Grand Jury Investigation,
774 F.2d 34, 37 (2d Cir. 1985).
(62) This interpretation is consistent with the concurring
opinion of Justice Scalia in Butterworth v. Smith, supra note
26, in which he suggests that although a State is not allowed to
prevent a former witness from telling what he told the grand
jury, it may be able to keep him from revealing that he gave
that information to the grand jury.
(63) 12 U.S.C. 3420.
(64) 26 U.S.C. 6103.
(65) United States v. Archer-Daniels-Midland Co., 785 F.2d
206, 213 (8th Cir. 1986); for a different result, see In re
Grand Jury Investigation, 774 F.2d, 34 (2d Cir. 1985).
_______________
Law enforcement officers of other than Federal jurisdiction
who are interested in this article should consult their legal
adviser. Some police procedures ruled permissible under Federal
constitutional law are of questionable legality under State law
or are not permitted at all.