Inc. v. Globe Ticket Co., 309 F. Supp. 181 (E.D. Pa. 1970); Posey v. United States, 416 F. 2d 545 (C.A. 5 1969) . . .].

"Fourth, where a protective order is sought, it is sometimes (11) against the United States Attorney, [See, e.g., Application of Kelly, 19 F.R.D. 269 (S.D.N.Y. 1956)] and (12) more often, against use of grand jury material by another government agency, [See, e.g., In re Grand Jury Proceedings, 309 F. 2d 440 (3d Cir. 1962)] such as the IRS In re William H. Pflaumer & Sons, Inc., 53 F.R.D. 464, 471 (E.D. Pa.)."

While there is some authority for the proposition that "judicial proceeding" as used in Rule 6(e) applies only to trials in a United States District Court, United States v. Downey, 195 F. Supp. 581 (N.D. Ill. 1961); United States v. Crolich, 101 F. Supp. 782 (S.D. Ala. 1952), and it has been defined to include at least, "any proceeding determinable by a court, having for its object the compliance of any person, subject to judicial control, with standards imposed upon his conduct in the public interest, even though such compliance is enforced without the procedure applicable to the punishment of crime." Doe v. Rosenberry, 233 F. 2d 118 (2d Cir. 1958), disclosure has also been permitted for police disciplinary proceedings before a director of public safety, In re Grand Jury Transcripts, 309 F. Supp. 1050 (S.D. Ohio 1970), for disbarment proceedings, Doe v. Rosenberry, supra, for cases in the District of Columbia Court of General Sessions, Gibson v. United States, 403 F. 2d 166 (D.C. Cir. 1968), for state grand juries, In re Petition for Disclosure of Evidence Before October, 1959 Grand Jury of This Court, 184 F. Supp. 38 (W.D. Va. 1960), for other federal grand juries, United States v. Garcia, 420 F. 2d 309 (2d Cir. 1970), for federal civil proceedings, United States v. Procter & Gamble Co., 356 U.S. 677 (1958), and for a Congressional subcommittee authorized to investigate the possibly impeachable misconduct of two federal judges. Unreported order printed in Conduct of Albert W. Johnson and Albert L. Watson, United States District Court Judges, Middle District of Pennsylvania: Hearing Before Subcomm. of House Comm. on Jud. 79 Cong., 1st Sess. 63 (1945). While there is some authority for the view that court approval is required in order to present matters occurring before the grand jury to a second grand jury, the Second Circuit has recently held that court approval is necessary only where the two grand juries are convened in different districts, United States v. Garcia, 420 F. 2d 309 (2d Cir. 1970).

Government attorneys have also been permitted to use a trial witness' grand jury testimony for purposes of refreshing the witness' recollection or impeaching the witness at trial, United States v. American Radiator & Standard Sanitary Corp., 45 F.R.D. 477 (E.D. Pa. 1970); United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940); United States v. Cotter, 60 F. 2d 689 (2d Cir. 1932). However, in most instances approval of the court jurisdiction over the grand jury must be secured before disclosure, Herman Schwabe, Inc. v. United Shoe Machinery Corp., 21 F.R.D. 233 (D.D.C. 1957); Toth v. Silbert, 184 F. Supp. 163 (N.D. Ohio 1960); In re Grand Jury Investigation of Banana Industry, 214 F. Supp. 856 (D. Md. 1963); cf. United States v. Owens-Corning Fiberglas Corp., 271 F. Supp. 561 (S.D. Ca. 1967); United States v. American Oil Co., 264 F. Supp. 93 (E.D. Mo. 1966). "Disclosure of grand jury minutes is ordinarily left to the discretion of the trial court, [United States v. Bryant, 364 F. 2d 598 (4th Cir. 1966); United States Industries, Inc. v. United States District Court for Southern District of California, Central Division, 345 F. 2d 18 (9th Cir. 1965); Atlantic City Electric Co. v. A. B. Chance Co., 313 F. 2d 431 (2d Cir. 1963)] and its decision will be reversed only if it abused that discretion. [De Binder v. United States, 292 F. 2d 737 (D.C. Cir. 1961); Gordan v. United States, 299 F. 2d 117 (D.C. Cir. 1962)]. The court may direct that certain portions of the transcript be deleted before it is released. [United States v. McGowan, 423 F. 2d 413 (4th Cir. 1970); United States Industries, Inc., supra; United States v. Scott Paper Co., 254 F. Supp. 759 (W.D. Mich. 1966)]" 1 Wright, Federal Practice and Procedure-Criminal § 106 (1969), (1972 Supp.) (selected cited authority included in brackets).

In exercising this discretion the courts have frequently observed that after the grand jury has completed its investigation most of the reasons supporting the rule of secrecy no longer apply, State of Washington v. American Pipe & Construction Co., 41 F.R.D. 59 (S.D. Cal. 1966); United States v. Scott Paper Co., supra; United States v. Badger Paper Mills, Inc., 243 F. Supp. 443 (W.D. Wis. 1965), and that the principal reasons for secrecy thereafter are to encourage witnesses to come forward in subsequent investigations and to minimize the

inhibiting effect which disclosures might have on grand juror participation in subsequent grand jury investigations, Posey v. United States, 416 F. 2d 545 (5th Cir. 1969); United States v. Scott Paper Co., supra; City of Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 486 (E.D. Pa. 1962). Of course the burden of persuasion is on the party seeking disclosure and cases are replete with statements that disclosure will be ordered only "sparingly," United States v. Aman, 13 F.R.D. 430 (N.D. Ill. 1953), "rarely," Churder v. United States, 294 F. Supp. 207 (E.D. Mo. 1968), "for a substantial reason," United States v. Van Allen, 28 F.R.D. 329 (S.D.N.Y. 1961), "under most persuasive and compelling circumstances," United States v. Profaci, 124 F. Supp. 141 (E.D.N.Y. 1954), and "on a strong and positive showing," United States v. Brennan, 134 F. Supp. 42 (D. Minn. 1955). See, Wright, supra for a more complete list.

Cases where disclosure is sought by a defendant under indictment, while perhaps the most frequent occasion for disclosure, presents some special considerations. Under Rule 6(e) authorizes disclosure, "when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." Rule 16(a) of the Federal Rules of Criminal Procedure states that, "Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph any relevant... (3) recorded testimony of the defendant before a grand jury." The recently amended Jencks Act provides:

"(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or other inspection until said witness has testified on direct examination in the trial of the case.

"(b). After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relates to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination.

(c) If the United States claims that any statement ordered to be produced under this section contains matters which does not relate to the subject matter of the testimony of the witness the court shall order the United States to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If. pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilty of the defendant, the entire text of such statement shall be preserved by the United States and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.

"(d) If the United States elects not to comply with an order of the court under subsection (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.

"(e) The term "statement," as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means-*** (3) a statement, however, taken or recorded, or a tarnscription thereof, if any, made by said witness to a grand jury." 18 U.S.C. § 3500 (1970).

Professor Moore has observed that, "Since defendant's right to disclosure of minutes depends on showing grounds for dismisal, the significance of this right is diminished by the narrow area within which an indictment can be attacked.

Courts have long been reluctant to permit dilatory excursions into the facts surrounding an indictment, on the questionable theory that even an erroneous indictment is not an irreparable injury. This reluctance has been expressed in the strong presumption of regularity accorded to grand jury proceedings. And, as a further obstacle, disclosure rests within the discretion of the trial court. As a consequence of all this, pretrial motions for inspection, and to dismiss the indictment, are rarely granted." S Moore's Federal Practice ¶6.05 at 6-53 to 6-33 (1972); accord, Wright, supra at § 108.

Rule 16(a) states that a court may order disclosure of a defendant's grand jury testimony to him, but it seems fairly well established that the defendant has an absolute right to such disclosure in the absence of a showing by the government of particularized need for a protective order Rule 16(e), particularly in perjury cases and in view of the 1970 amendment to the Jencks Act, United States v. Manetti, 323 F. Supp. 683 (D.Del. 1971); United States v. Duffy, 54 F.R.D. 549 (N.D. Ill. 1972); United States v. Tanner, 279 F. Supp. 457 (N.D. Ill. 1967); cf. United States v. Jones, 374 F. 2d 414 (2d Cir. 1967). Under the 1970 amendment to the Jencks Act a defendant is entitled to disclosure of the recorded grand jury testimony of government witnesses who testify at his trial, Paz v. United States, 462 F. 2d 740 (5th Cir. 1972); United States v. Daras, 462 F. 2d 1361 (9th Cir. 1972).

However, the defendant may only have access to recorded grand jury testimony and there is no requirement that the grand jury proceedings be recorded, United States v. Trenary, 473 F. 2d 680 (9th Cir. 1973); United States v. Peden, 472 F. 2d 583 (2d Cir. 1973); United States v. Skolek, 474 F. 2d. 582 (10th Cir. 1973). Aware of this problem, the Ninth Circuit held that the trial court had abused its discretion by refusing to order recordation of grand jury proceedings on the request of defendants "in absence of a Government showing that it has legitimate and compelling interest to be served by nonrecordation. The Government cannot meet its burden by resort to the secrecy rubric." United States v. Price, 474 F. 2d 1223, 1225 (9th Cir. 1973); see, In re Russo, 53 F.R.D. 564 (C.D. Cal. 1971).

Improper disclosure of matters occurring before the grand jury by those covered by the Rule is punishable as contempt of court, United States v. Hoffa, 349 F. 2d 20 (6th Cir. 1965); United States v. Smyth, 104 F. Supp. 283 (N.D. Cal. 1952).

The final sentence in Rule 6(e) states, "The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons." "The language of the rule suggests that the purpose of this provision is to prevent the flight of a defendant or his associates, but in practice the technique of sealing indictments is not confined to that purpose." 8 Moore's Federal Practice, ¶ 6.05 at 6-60 citing United States v. Doyle, 348 F. 2d 715 (2d Cir. 1965). In any event this sentence of the Rule seems to have been only infrequently the subject of litigation, United States v. Onassis, 125 F. Supp. 190 (D.D.C. 1954). United States v. Niarchos, 125 F. Supp. 214 (D.D.C. 1954); United States v. Sherwood, 38 F.R.D. 21 (D. Conn. 1964) aff'd sub nom. United States v. Marion, 404 U.S. 307 (1971).

Final Grand Jury Actions

There are four possible final grand jury actions-1) discharge without any action, 2) to vote not to indict, to find "no bill," or to endorse the indictment "ignoramus," 3) to vote indictment (s), or 4) to submit a report to the court. The first two possibilities necessitate little discussion beyond the observation that a grand jury panel cannot be required to indict nor punished for failing to indict, United States v. Symth, 104 F. Supp. 283 (N.D. Cal. 1952), and that the refusal of one grand jury to indict does not preclude indictment by a subsequent grand jury, United States v. Gillespie, 345 F. Supp. 1236 (W.D. Mo. 1972), although it seems unlikely the refusal of one grand jury to indict would be reconsidered by a second grand jury.

Rule 6(f) of the Federal Rules of Criminal Procedure provides that, "An indictments may be found only upon the concurrence of 12 or more jurors. The indictment shall be returned by the grand jury to a judge in open court. If the defendant is in custody or has given bail and 12 jurors do not concur in finding an indictment, the foreman shall so report to the court in writing forthwith."

Although couched in various terms, see cases discussed in Wright, supra at § 110, an indictment may be returned when twelve grand juries are satisfied from the evidence presented and/or their knowledge that there is probable cause to believe that a crime has been committed within the territorial and subject matter jurisdiction of the court to which it is attached and that the person indicted committed the offense, see 8 Moore, supra at ¶6.02[2], 6-15; United States v. Cox, 342 F. 2d 167 (5th Cir. 1965). The indictment is ordinarily prepared by the attorney for the government and submitted to the grand jury for its adoption or rejection. United States v. Gower, 447 F. 2d 187 (5th Cir. 1971); United States v. Cox, supra; cf. Gaither v. United States, 413 F. 2d 1061 (D.C. Cir. 1961). While the grand jury may obviously draft their own indictment, it is less clear whether the attorney for the government may be instructed to assist the grand jury in drafting an indictment, see Cox, supra. Indictments contain the signatures of the grand jury foreman, Rule 6(c), and the attorney for the government, Rule 7(c). Failure of the foreman to sign is not fatal and not proper grounds for dismissal, Frisbie v. United States, 157 U.S. 160 (1895): United States v. Long, 118 F. Supp. 857 (D.P.R. 1954). However, failure of the attorney for the government to sign and affirm his agreement to proceed with the prosecution is fatal, United States v. Wright, 365 F. 2d 135 (7th Cir. 1966); Cox, supra, and a bill voted by the grand jury which the attorney for the government refuses to sign is not an indictment, In re Grand Jury, January 1969, 315 F. Supp. 662 (D. Md. 1970).

The law with regard to the last alternative available to the grand jury is somewhat obscure. Much of that obscurity involves the difficulty in distinguishing "presentments" from "reports" issued by a federal grand jury. It seems at common law "indictments" were returned by the grand jury based upon evidence presented to the grand jury, while "presentment" was "the notice taken by a grand jury of any effense from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king." 4 Blackstone's Commentaries 275 (New ed. 1813). "Reports" on the other hand involved statements of the grand jury on the conduct of the king's officials and the condition of the public jails and highways. The Fifth Amendment guarantees that. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . ." (emphasis added) As the Advisory Committee Note on Rule 7 of the Federal Rules of Criminal Procedure observed, "Presentment is not inclined as an additional type of formal accusation, since presentments as a method of instituting prosecutions are obsolete, at least as concerns the Federal courts." The result of this disuse has been a fading the distinction between "presentment" and "reports," to a point where they are frequently equated, Wright, supra at § 110 citing Note, 1961, 74 Harv. L. Rev. 590, 592 n. 16. As might be expected, the cases involving grand jury reports are very few, see, Application of United Electrical, Radio & Machine Workers of America, 111 F. Supp. 858 (S.D.N.Y. 1953): United States v. Connelly, 129 F. Supp. 766 (D. Minn. 1955); In re Grand Jury January, 1969, 315 F. Supp. 662 (D. Md. 1970); In re April 1956 Term Grand Jury, 239 F. 2d 263 (7th Cir. 1956); In re Petition for Disclosure of Evidence Before the October, 1959 Grand Jury of This Court, 184 F. Supp. 38 (E.D. Va. 1960); In re Grand Jury Proceedings, 479 F. 2d 458 (5th Cir. 1973); see also, United States v. Cox, supra. From these cases it may be concluded that federal grand juries have the authority to forward both presentments and reports to the court to which they are attached. The decision as to whether any of these communications should be made public, either in whole or in part; should be forwarded to other arthorities; should be sealed or expunged as a matter within the discretion of the court to whom they are submitted.

Under the provisions of the Organized Crime Control Act of 1970 special grand juries are impaneled "in a judicial district containing more than four million inhabitiants or in which the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, certifies in writing to the chief judge of the district that in his judgment a special grand jury is necessary because of criminal activity in the district." 18 U.S.C. § 3331. These grand juries have been given authority to issue reports:

(a) A special grand jury impaneled by any district court, with the concurrence of a majority of its members, may, upon completion of its original term, or each extension thereof, submit to the court a report

(1) concerning noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action; or

(2) regarding organized crime conditions in the district.

(b) The court to which such report is submitted shall examine it and the minutes of the special grand jury and, except as otherwise provided in subsections (c) and (d) of this section, shall make an order accepting and filing such report as a public record only if the court is satisfied that it complies with the provisions of subsection (a) of this section and that

(1) the report is based upon facts revealed in the course of an investigation authorized by subsection (a) of section 3332 and is supported by the preponderance of the evidence; and

(2) when the report is submitted pursuant to paragraph (1) of subsection (a) of this section, each person named therein and any reasonable number of witnesses in his behalf as designated by him to the foreman of the grand jury were afforded an opportunity to testify before the grand jury prior to the filing of such report, and when the report is submitted pursuant to paragraph (2) of subsection (a) of this section, it is not critical of an identified person.

(c) (1) An order accepting a report pursuant to paragraph (1) of subsection (a) of this section and the report shall be sealed by the court and shall not be filed as a public record or be subject to subpena or otherwise made public (i) until at least thirty-one days after a copy of the order and report are served upon each public officer or employee named therein and an answer has been filed or the time for filing an answer has expired, or (ii) if an appeal is taken, until all rights of review of the public officer or employee named therein have expired or terminated in an order accepting the report. No order accepting a report pursuant to paragraph (1) of subsection (a) of this section shall be entered until thirty days after the delivery of such report to the public officer or body pursuant to paragraph (3) of subsection (c) of this section. The court may issue such orders as it shall deem appropriate to prevent unauthorized publication of a report. Unauthorized publication may be punished as contempt of the court.

(2) Such public officer or employee may file with the clerk a verified answer to such a report not later than twenty days after service of the order and report upon him. Upon a showing of good cause, the court may grant such public officer or employee an extension of time within which to file such answer and may authorize such limited publication of the report as may be necessary to prepare such answer. Such an answer shall plainly and conscisely state the facts and law constituting the defense of the public officer or employee to the charges in said report, and, except for those parts thereof which the court determines to have been inserted scandalously, prejudiciously, or unnecessarily, such answer shall become an appendix to the report.

(3) Upon the expiration of the time set forth in paragraph (1) of subsection (c) of this section, the United States attorney shall deliver a true copy of such report, and the appendix, if any, for appropriate action to each public officer or body having jurisdiction, responsibility, or authority over each public officer or employee named in the report.

(d) Upon the submission of a report pursuant to subsection (a) of this section, if the court finds that the filing of such report as a public record may prejudice fair consideration of a pending criminal matter, it shall order such report sealed and such report shall not be subject to subpena or public inspection during the pendency of such criminal matter, except upon order of the court.

(e) Whenever the court to which a report is submitted pursuant to paragraph (1) of subsection (a) of this section is not satisfied that the report complies with the provisions of subsection (b) of this section, it may direct that additional testimony be taken before the same grand jury, or it shall make an order sealing such report, and it shall not be filed as a public record or be subject to subpena or otherwise made public until the provisions of subsection (b) of this section are met. A special grand jury term may be extended by the district court beyond thirty-six months in order that such additional testimony may be taken or the provisions of subsection (b) of this section may be met.

(f) As used in this section, "public officer or employee" means any officer or employee of the United States, any State, the District of Columbia, the Commonweath of Puerto Rico, any territory or possession of the United States, or any political subdivision, or any department, agency, or instrumentality thereof.

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