156
Disclosure of matters occurring before the
grand jury
to Department of Justice attorneys and Assistant United States
Attorneys
|
Disclosure of materials covered by Federal Rule of Criminal
Procedure 6(e) may be made without a court order "to an attorney
for the
government for use in the performance of such attorney's duty."
See
Fed. R. Crim. P. 6(e)(3)(A)(i). "Attorney for the government" is
defined in
Fed. R. Crim. P. 54(c).
Rule 6(e)(3)(A)(i) does not authorize disclosure to attorneys
for
other Federal government agencies. See United States v.
Bates, 627 F.2d 349, 351 (D.C.Cir. 1980). Nor is disclosure
permitted
under this section to attorneys for States or local governments.
In re
Holovachka, 317 F.2d 834 (7th Cir. 1963); Corona
Construction Co. v.
Ampress Brick Co., Inc., 376 F. Supp. 598 (N.D.Ill. 1974).
Rule 6(e)(2), Fed.R.Crim.P., prohibits "an attorney for the
government" from disclosing matters occurring before a grand jury,
except as
otherwise provided in the rules. Rule 54(c), Fed.R.Crim.P.,
defines
"attorney for the government" to include "the Attorney General, an
authorized assistant of the Attorney General, a United States
Attorney,
[and] an authorized assistant of a United States Attorney * * *."
In
United States v. Forman, 71 F.3d 1214 (6th Cir. 1995), the
court of
appeals held that an attorney employed in the Tax Division of the
Department
of Justice who had gained access to grand jury materials but had
not been
assigned to review the materials or to participate in the grand
jury
proceedings was not "an attorney for the government" because he was
not an
"authorized" assistant to the Attorney General with respect to the
grand
jury materials that he disclosed to the target of the
investigation. The
court of appeals, construing 28 U.S.C. § 515(a), held that an
"authorized" assistant of the Attorney General is one whose
superiors have
assigned him or her to work in some official capacity on the
criminal
proceeding. Id. at 1220. Having found that Forman was not
an
"attorney for the government" with respect to the grand jury
matter, the
Sixth Circuit held that Forman was not bound by the secrecy
requirement of
Rule 6(e)(2), and it therefore reversed his criminal contempt
conviction.
United States v. Forman, 71 F.3d at 1217-1220.
It is the opinion of the Department of Justice that the
Forman decision does not foreclose informal consultation by
an
Assistant United States Attorney with colleagues in his or her
district or
with an attorney in the Department of Justice about matters
occurring before
a grand jury.
- Consultation with Department of Justice
Attorneys:
The court of appeals' conclusion in Forman that some type of
delegation or assignment is required in order for a Department
attorney to
be "an authorized assistant of the Attorney General" was based on
28 U.S.C.
§ 515(a), which provides in pertinent part that an "officer of
the
Department of Justice, or any attorney specially appointed by the
Attorney
General under law, may, when specifically directed by the Attorney
General,
conduct any kind of legal proceeding, * * *, including grand jury
proceedings * * *, which United States attorneys are authorized by
law to
conduct, whether or not he is a resident of the district in which
the
proceeding is brought." It is the Department's practice that
"[g]overnment
attorneys (other than Assistant United States Attorneys) who
actually appear
before the grand jury generally receive letters signed by the
Assistant
Attorney General for the pertinent Division authorizing them to
appear
before the grand jury as 'an authorized assistant of the Attorney
General.'"
Federal Grand Jury Practice at p. 169; see also USAM 9-11.241. Thus, Department
attorneys --
as opposed to United States Attorneys and Assistant United States
Attorneys
-- may appear before a grand jury as "an attorney for the
government" under
Rule 6(d) only when they are specifically directed to do so by the
Attorney
General. See United States v. Sells Engineering,
Inc., 463
U.S. 418, 428-429 n.12 (1983). Even in that context, however, the
"specific
direction to an attorney regularly employed on a full-time basis by
the
Department of Justice need not be embodied in a written
authorization
specific to the matter under investigation, but may be implied from
other
writings, guidelines, practices and oral directions transmitted
through a
chain of command within the Department." In re Persico, 522
F.2d 41,
66 (2d Cir. 1975); cf. United States v. Balistrieri, 779
F.2d 1191,
1207-1210 (7th Cir. 1985), cert. denied, 475 U.S. 1095
(1986).
- United States Attorneys and Assistant United States Attorneys
may
continue informally to consult with attorneys in the Department of
Justice
about grand jury investigations and to disclose matters occurring
before the
grand jury during those consultations without violating Rule
6(e)(2). As a
matter of longstanding custom and practice, one of the duties of a
Department of Justice attorney is to provide advice and assistance
to United
States Attorneys and Assistant United States Attorneys concerning
grand jury
investigations. In contrast to the level of participation required
to
conduct a grand jury proceeding, a Department of Justice attorney's
participation is more limited when he or she is called upon to
consult
informally about matters occurring before a grand jury. Title 28
U.S.C.
§ 515(a) does not require that a Department of Justice attorney
receive
specific direction from the Attorney General to participate in a
grand jury
proceeding in that limited capacity. Nor has the Department ever
had a
practice of specifically directing Department of Justice attorneys
to
consult with United States Attorneys and Assistant United States
Attorneys
about grand jury investigations on a case-by-case basis.
Department of
Justice attorneys have a duty to confer with United States
Attorneys and
Assistant United States Attorneys about official matters, including
matters
occurring before the grand jury. Thus, a Department of Justice
attorney is
"authorized" to provide such advice and assistance in the
performance of
such attorney's duty. In those circumstances, the Department
attorney is an
"attorney for the government" and is bound by the grand jury
secrecy rule of
Rule 6(e)(2). Accordingly, United States Attorneys and Assistant
United
States Attorneys may disclose matters occurring before a grand jury
to a
Department of Justice attorney pursuant to Rule 6(e)(3)(A)(i)
during
consultations.
- Consultation within the U. S. Attorney's Office
concerning matters
occurring before the grand jury: It is also appropriate for a
United
States Attorney and Assistant United States Attorneys to disclose
grand jury
matters to one another pursuant to Rule 6(e)(3)(A)(i) when seeking
advice
regarding the handling of a grand jury investigation. Unlike
Department of
Justice attorneys who are governed by 28 U.S.C. § 515(a),
United States
Attorneys and Assistant United States Attorneys need not obtain any
specific
authorization from the Attorney General to conduct grand jury
proceedings
within their districts. All United States Attorneys and Assistant
United
States Attorneys are authorized by virtue of their appointment to
conduct
grand jury proceedings in their district. The authority of United
States
Attorneys to conduct grand jury proceedings is derived from 28
U.S.C. §
547, which directs United States Attorneys to "prosecute for all
offenses
against the United States" within their district. Assistant United
States
Attorneys derive their authority to conduct grand jury proceedings
in the
district of their appointment from 28 U.S.C. § 542. See
USAM 9-11.241. Thus, United States
Attorneys
and Assistant United States Attorneys may disclose matters
occurring before
a grand jury pursuant to Rule 6(e)(3)(A)(i) to another Assistant
United
States Attorney in their district during informal consultations.
In those
circumstances, the Assistant United States Attorney consulted about
the
grand jury matter is an "attorney for the government" who is bound
by the
grand jury secrecy requirement of Rule 6(e)(2).
- Disclosure of Matters Occurring before the Grand Jury to
Department
of Justice attorneys for use in civil case: Disclosure of
matters
covered by Rule 6(e) to Department of Justice attorneys for use in
a civil
suit is permissible only pursuant to a court order under Rule
6(e)(3)(C)(i).
United States v. Sells Engineering, Inc., 463 U.S. 418
(1983).
- When disclosure is authorized by court order under Rule
6(e)(3)(C)(i), of the Federal Rules of Criminal Procedure, for use
in civil
proceedings, there is a danger of misuse, or the appearance
thereof, when
such disclosure is made during the pendency of the grand jury
investigation.
There is no rule of law that would require a civil disclosure
within the
Department to be deferred until the relevant criminal investigation
has been
completed. Unless there is a genuine need for disclosure during
the
pendency of the grand jury investigation, however, it is the better
practice
to forestall the disclosure until the criminal investigation is
completed.
- Prosecutions for Disclosure of Grand Jury Matter:
Although the
Forman decision precludes the government from prosecuting
Department
of Justice attorneys for criminal contempt under 18 U.S.C. §
401(3) for
surreptitiously obtaining and disclosing grand jury material when
the
attorney had not been assigned to work on the grand jury
investigation in
any capacity, the decision does not prevent the government from
prosecuting
a United States Attorney, an Assistant United States Attorney, or
a
Department of Justice attorney who obtains grand jury information
in his or
her official capacity for criminal contempt under 18 U.S.C. §
401(3) if
he or she makes an unauthorized disclosure of grand jury
information.
Additionally, other persons bound by the rule of grand jury secrecy
in Rule
6(e)(2) are subject to prosecution for criminal contempt under 18
U.S.C.
§ 401(3) for the unauthorized disclosure of grand jury
information.
The unauthorized disclosure of grand jury information can also
be
punished under other criminal statutes as well as pursuant to a
district
court's contempt powers. If an individual discloses grand jury
material
with the intent to obstruct an ongoing investigation, he or she may
be
prosecuted for obstruction of justice under 18 U.S.C. § 1503.
See United States v. Jeter, 775 F.2d 670, 675-679
(6th Cir.
1985), cert. denied, 475 U.S. 1142 (1986); United States
v.
Howard, 569 F.2d 1331, 1334-1335 (5th Cir.), cert.
denied, 439
U.S. 834 (1978). In addition, an individual who improperly
disseminates
grand jury materials may be prosecuted for the theft of government
property
under 18 U.S.C. § 641. See United States v.
Jeter, 775
F.2d at 679-682; United States v. Friedman, 445 F.2d 1076
(9th Cir.),
cert. denied, 404 U.S. 958 (1971); see also United
States
v. Girard, 601 F.2d 69, 71-72 (2d Cir.), cert. denied,
444 U.S.
871 (1979) (theft of information from DEA computers); United
States v.
DiGilio, 538 F.2d 972, 976-981 (3d Cir. 1976), cert.
denied, 429
U.S. 1038 (1977) (theft of grand jury information from FBI files).
Compare
United States v. Collins, 56 F.3d 1416, 1419-1420 (D.C. Cir.
1995),
cert. denied, 116 S. Ct. 737 (1996) (§ 641 applies to
intangible
property) with United States v. Tobias, 836 F.2d 449,
450-452 (9th
Cir.), cert. denied, 485 U.S. 991 (1988) (§ 641 does not
apply to
intangible property).
On August 29, 1996, the Criminal Division of the Department of
Justice sent the above information to the United States Attorneys
and
Criminal Division Section Chiefs. The information was contained in
a
Memorandum on the subject of Grand Jury Secrecy Requirements in the
wake of
United States v. Forman, 71 F.3d 1214 (6th Cir. 1995).
[cited in USAM 9-11.250;
Tax Resource Manual 22]
| |