have examined each of the articles and observe initially that defendant Lovecchio's name appears in only three of them (Articles 5, 6, and 7). None of these three articles is dated, but the government has attached to its brief a transcript of defendant's testimony, which indicates that Lovecchio appeared before the grand jury for questioning on June 18, 1982.
Examination of the articles that mention defendant by name indicates that Lovecchio was subpoenaed as a witness before the grand jury after he initially appeared but did not testify. The article entitled "Court Ponders Balky Witness" is largely speculative and states that "it is believed" a closed hearing before a federal district judge was held because defendant refused to testify and that federal attorneys "are believed" to have offered defendant immunity in exchange for his testimony. The article also states that government reasons for seeking Lovecchio's testimony "are not known." A review of defendant's grand jury testimony shows that anything the grand jurors might have read in these speculative and undetailed published accounts conformed to the more extensive information given to the grand jury regarding the grant of immunity under which defendant testified. Specifically the grand jury and defendant were informed that the immunity would not insulate defendant from a subsequent prosecution for perjury, that defendant was neither a target nor a subject of the investigation, and that by court order defendant could not invoke the fifth amendment and refuse to testify.
In the present case defendant has failed to link the generation of the publicity to government sources. Article 1, see n. 2 supra, contains observations by the United States Attorney that "someone privy to these investigations has seen fit to attempt to conduct a trial via the news media." This general statement, however, was published almost four months prior to defendant's appearance before the grand jury and is all defendant has presented regarding the source of media information. Moreover, two articles refute suggestions of government-induced leaks. One ("Mancuso Ordered to Testify With Immunity Guarantee") indicated that the government attorney handling the case declined to give reasons why several individuals and certain documents had been subpoenaed. The other ("Probe into Jury Tampering is Reportedly Intensifying") expressly stated, "Officials connected with the case refuse to comment."
Though Federal Rule of Criminal Procedure 6(e)(2) states the general secrecy rule regarding proceedings before a grand jury, its nondisclosure provisions encompass only grand jurors, interpreters, stenographers, operators of recording devices, typists who transcribe testimony, and government attorneys. Individuals called as witnesses may disclose whatever they wish to the media. Another important consideration in the present matter is that none of the articles relates to the charges against defendant. Defendant was granted immunity with regard to the jury tampering investigation, and he has pointed to no publicity that is relevant to the perjury indictment returned against him.
As we have indicated we can discern nothing prejudicial in the publicity cited by defendant. Furthermore, our review of applicable authority convinces us that the extreme sanction of dismissal of an indictment is rarely used and would certainly be inappropriate in a situation such as the one now before us. See, e.g., United States v. Brien, 617 F.2d 299, 313 (1st Cir.) cert. denied, 446 U.S. 919, 100 S. Ct. 1854, 64 L. Ed. 2d 273 (1980); In Re Grand Jury Proceedings, 632 F.2d 1033, 1039 (3d Cir.1980). The most lucid formulation of the standard applicable to the current matter was that enunciated by the court in Silverthorne v. United States, 400 F.2d 627, 634 (9th Cir.1968), cert. denied, 400 U.S. 1022, 91 S. Ct. 585, 27 L. Ed. 2d 633 (1971):
The quantum of evidence necessary to indict is not as great as that necessary to convict. If a grand jury is prejudiced by outside sources when in fact there is insufficient evidence to indict, the greatest safeguard to the liberty of the accused is the petit jury and the rules governing its determination of a defendant's guilt or innocence. And, if impartiality among the petit jurors is wanting, the cure is reversal by the appellate courts.