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UNITED STATES v. MAHONEY

August 5, 1980

UNITED STATES of America
v.
James J. MAHONEY



The opinion of the court was delivered by: LORD, III

Defendant has moved for disclosure of all grand jury transcripts and for dismissal of the superseding indictment. Two grand juries heard evidence in this case. The first grand jury heard testimony and subpoenaed documents without returning an indictment. The second grand jury, empanelled June 29, 1979, handed down the original indictment on October 5, 1979 and a superseding indictment on November 30, 1979. The defendant moves under Fed.R.Crim.P.6(e) *fn1" for disclosure of all the transcripts of all proceedings before all grand juries that heard evidence in this case, alleging that grounds exist to dismiss the indictment because of matters occurring before the grand jury.

I

 There is a long-standing policy in federal courts to enshroud grand jury deliberations in secrecy. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979); United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S. Ct. 983, 985, 2 L. Ed. 2d 1077 (1958). The Supreme Court has cited with approval the reasons for the secrecy as set forth in United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954):

 
(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

 Douglas Oil, supra, 441 U.S. at 219 n.10, 99 S. Ct. at 1673 n.10, 60 L. Ed. 2d at 165 n.10; Proctor & Gamble, 356 U.S. at 681 n.6, 78 S. Ct. at 986 n.6.

 The decision to permit disclosure is within the discretion of the trial court judge who must assess whether the need for disclosure overbalances the requirements of secrecy. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S. Ct. 1237, 1240, 3 L. Ed. 2d 1323 (1959); In Re Grand Jury Proceedings, 309 F.2d 440, 444 (3d Cir. 1962). In Proctor & Gamble, the Supreme Court held that grand jury secrecy "must not be broken except where there is a compelling necessity. There are instances when that need will outweigh the countervailing policy. But they must be shown with particularity." 356 U.S. at 682, 78 S. Ct. at 986. In later cases the Supreme Court has adhered to the same standard. Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966); Pittsburgh Plate Glass Co. v. United States, supra. Some commentators and courts have viewed Dennis as representing a liberalizing trend to open up grand jury deliberations, since the court recognized "the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice." 384 U.S. at 870, 86 S. Ct. at 1849. See, Allen v. United States, 129 U.S. App. D.C. 61, 390 F.2d 476 (D.C.Cir.1968); 1 Wright Federal Practice & Procedure, Criminal ยง 108. Nonetheless, the Court in Dennis did not alter the particularity test. Rather, it noted that, "it cannot fairly be said that the defense has failed to make out a "particularized need.' The showing . . . goes substantially beyond the minimum required by Rule 6(e) and the prior decisions of this Court." 384 U.S. at 872, 86 S. Ct. at 1850. In Douglas Oil, the most recent Supreme Court case on standards for disclosure, the Court reiterated the particularity test and observed that the request for disclosure should be narrowly tailored to the asserted need for disclosure. 441 U.S. at 222, 99 S. Ct. at 1674, 60 L. Ed. 2d at 167.

 The burden is on the party seeking disclosure to show a particularized need for that disclosure. Douglas Oil, 441 U.S. at 222, 99 S. Ct. at 1674, 60 L. Ed. 2d at 167; Pittsburgh Plate Glass Co., 360 U.S. at 400, 79 S. Ct. at 1241. Thus mere speculation that there was, for example, prosecutorial abuse in the grand jury proceedings is not enough to justify disclosure. United States v. Edelson, 581 F.2d 1290 (7th Cir. 1978), cert. denied, 440 U.S. 908, 99 S. Ct. 1216, 59 L. Ed. 2d 456 (1979). In short, grand jury deliberation should not be opened solely for discovery purposes. City of Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 486, 490 (E.D.Pa.1962).

 When the grand jury has completed its work, obviously the policy reasons for secrecy are lessened, and in this light the Supreme Court has held that at that time "disclosure is wholly proper where the ends of justice require it." United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S. Ct. 811, 849, 84 L. Ed. 1129 (1940). Concomitantly the burden on the movant to show a particularized need is also lessened. Douglas Oil Co., 441 U.S. at 222, 99 S. Ct. at 1674, 60 L. Ed. 2d at 167. In fact of the five reasons cited in Proctor & Gamble only one remains, the concern for "(encouraging) free and untrammeled disclosures by persons who have information with respect to the commission of crimes." The other four reasons for secrecy are related to the functioning of a particular grand jury. The encouragement of "free and untrammeled disclosures," however, is a concern for the operations of future grand juries. Thus it is supported by policy considerations not to be lightly dismissed. Westinghouse Electric Corp., 210 F. Supp. at 490. Indeed, the Supreme Court has admonished that although the interests in secrecy are reduced when a grand jury has finished its work they are not altogether eliminated. Douglas Oil Co., 441 U.S. at 222, 99 S. Ct. at 1674, 60 L. Ed. 2d at 167.

 It is against this background of disclosure jurisprudence that the defendant's motions must be tested.

 II

 The defendant asserts that almost all the evidence heard by the indicting grand jury consisted of summaries that did not present a fair and accurate portrayal of matters occurring before the first grand jury. In essence the defendant argues that the grand jury records he has seen *fn2" reveal such prosecutorial misconduct that, if the whole record were viewed, might well rise to a level necessitating dismissal of the indictment.

 The defendant offers four specific examples:

 
a) failure to present information regarding the mass of documents subpoenaed by the first grand jury;
 
b) failure to summarize prior inconsistent statements when summarizing the later ...

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