ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, Garth and Rosenn, Circuit Judges Garth, Circuit Judge, concurring.
Garden Court Nursing Home, Inc. and Sidney D. Simon, its owner and operator, appeal from an order of the district court requiring the United States to disclose auditors' analyses of the books and records of Garden Court to the Commonwealth of Pennsylvania, Department of Revenue (Department). The Department cross appeals from an order of the district court denying it access to other grand jury materials. This court has jurisdiction under 28 U.S.C. § 1291 (1976).
A federal grand jury investigated the activities of Simon and Garden Court. Simon was indicted for mail fraud and making false statements to the federal government. The gravamen of these offenses was that Simon fraudulently sought to obtain Medicaid reimbursements to which Garden Court was not legally entitled. Simon pled guilty to three of the twenty counts of the indictment. Following this plea, the Department, in connection with an investigation of the state income tax liability of Simon and the corporations he controlled, filed a petition in the district court to examine and copy grand jury materials. It sought disclosure of "all of the grand jury materials pertinent to its investigation." Simon and Garden Court objected to disclosure.
The district court held that Federal Rule of Criminal Procedure 6(e) (2) prohibited the disclosure of witness interviews, conducted outside the grand jury's presence but presented to it, and of transcripts of grand jury testimony. However, the court held that invoices possessed by the grand jury and auditors' analyses of Garden Court's books and records, prepared to assist the grand jury were outside the scope of the rule and could therefore be disclosed. The results of the analyses, though apparently not the analyses themselves, were presented to the grand jury.
Simon and Garden Court appeal, arguing that the auditors' analyses should not be disclosed. The Department of Revenue cross appeals, arguing that all of the requested materials should be disclosed. Since Simon and Garden Court do not contest the disclosure of the invoices, only the disclosure of the transcripts, witness interviews, and auditors' analyses are at issue in this appeal.
With specified exceptions, Rule 6(e) (2) prohibits the disclosure of "matters occurring before the grand jury." Since the rule does not prohibit the disclosure of other "matters", we must first determine whether the materials at issue in this appeal are within the scope of the rule.
In In re Grand Jury Matter, 682 F.2d 61, 63 (3d Cir. 1982) (Catania), this court stated that Rule 6(e) (2) "applies to anything which may reveal what occurred before the grand jury." Thus, if disclosure of the materials in this case would do so, Rule 6(e) (2) applies.
Were we writing on a clean slate, we might well hold that disclosure of any material generated in connection with a grand jury proceeding is governed by Rule 6(e) (2). Such a rule would be easier to apply and produce more certain results than the rule we apply today. However, the prior holdings of this court prevent us from adopting this rule. See, e.g., Catania, supra, at 64 n.4 (disclosure of draft indictment not governed by Rule 6(e) (2); In re Grand Jury Proceedings, 486 F.2d 85, 92 (3d Cir. 1973) (Schofield I) (disclosure of affidavit filed by government to enforce grand jury subpoena that states that subpoenaed items are relevant to grand jury investigation not governed by the rule). We believe that disclosure of the materials at issue in this appeal would reveal what occurred before the grand jury. Thus, we hold that the disclosure of all of these materials is governed by Rule 6(e) (2).
There is no question that disclosing grand jury transcripts reveals the contents of grand jury proceedings. Their disclosure is, therefore, governed by Rule 6(e) (2). See Catania, supra, at 65. No meaningful distinction can be drawn between transcripts and witness interviews conducted outside the grand jury's presence but ...