of the scheme who denied having such knowledge.
In addition, defendants seek evidence in possession of the government which is favorable to the defendants, including documents showing materially inconsistent statements by witnesses the government intends to call at trial, and information regarding favorable treatment conferred by the government on witnesses it intends to call at trial. Finally, defendants seek written statements of all persons who have knowledge of the case, or who have been interviewed in connection with the case, who the government does not expect to call as witnesses, and all documents submitted to the government regarding alleged bid rigging in Western Pennsylvania which are not United States Steel documents, on the theory that these documents may have information favorable to the defendants.
The Court of Appeals for the Third Circuit recently summarized the obligations of the prosecution as established in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1967). United States v. Higgs, 713 F.2d 39 (3d Cir. 1983). The court emphasized that Brady's requirement of disclosure of exculpatory evidence "applies both to materials going to the heart of defendant's guilt or innocence and to materials that might well alter the jury's judgment of the credibility of a crucial prosecution witness" (citing Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); United States v. Gengler, 574 F.2d 730, 735 (3d Cir. 1978); United States v. McCrane, 547 F.2d 204, 207-08 (3d Cir. 1976); accord, Perkins v. Le Fevre, 691 F.2d 616, 619 (2d Cir. 1982); United States v. Allain, 671 F.2d 248, 255 (7th Cir. 1982); United States v. Bruner, 212 U.S. App. D.C. 36, 657 F.2d 1278, 1288 & n. 13 (D.C. Cir. 1981)), United States v. Higgs, slip op. at 7.
If the evidence is exculpatory, Brady only requires that material evidence be disclosed by the prosecution. In United States v. Agurs, 427 U.S. 97, 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976) the Supreme Court analyzed the requirements of materiality in three different situations. Id. at 103. The second situation,
and the one most applicable here, is when the defendant has made a specific request for information in the government's possession. The test for materiality set out by the Court was whether the "suppressed evidence might have affected the outcome of the trial." Id. at 104. Only if exculpatory evidence meets the appropriate test of materiality does the due process clause impose upon the prosecution the duty to disclose that information to a defendant. United States v. Higgs, supra, slip op. at 8.
The government states in its Response and Opposition to Defendants' Joint Motion to Compel Discovery that it has produced all favorable evidence and all Brady material to the extent that it exists and is not covered by Fed. R. Crim. P. 16(a)(2) or (3) or the Jencks Act, 18 U.S.C. § 3500. Where the government states in good faith that it has turned over all Brady material in its possession, see Response and Opposition of the United States to Defendants' Joint Motion to Compel Discovery at 28, that declaration is enough to satisfy a court of good faith disclosure under Brady. Archer v. United States, 393 F.2d 124, 126 (5th Cir. 1968); United States v. Deerfield Spec. Papers, Inc., 501 F. Supp. 796, 819 (E.D. Pa. 1980). The government has made such a statement with respect to requests (a), (c), (d), (f), (g), (h), (j), (k), (l), (m), (n), and (p). Requests (b) and (c) call for testimony, statements, or interview memoranda of present or former United States Steel employees "which reflect that the person believed there was nothing illegal or improper in any aspect of the contract." Defendants here try to prove a proposition by the converse. We agree with the government that in the case of a bid rigging conspiracy, the fact that certain employees of United States Steel were unaware of the conspiracy is not exculpatory or favorable to the defendant. Further, Fed. R. Crim. P. 16(a)(3) bars defendants from testimony given by United States Steel employees to the grand jury, while 16(a)(2) forbids defendants access to government memoranda. Courts have consistently held that Brady was not intended as a discovery device. Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977); United States v. Frick, 490 F.2d 666, 671 (5th Cir. 1973); United States v. Deerfield Spec. Papers, Inc., 501 F. Supp. 796, 818-19 (E.D. Pa. 1980); United States v. Leta, 60 F.R.D. 127, 131 (M.D. Pa. 1973). We will therefore deny defendants' requests (b) and (c), and similarly, request (e).
With respect to request (i) we believe defendants are in possession of information relating to occasions when they submitted bids lower than alleged co-conspirators. We believe that request (o) regarding statements inconsistent with anticipated trial testimony falls under Jencks Act material. Defendants have a right to such material after the witness has testified. We would note that Brady materials are exculpatory, and mere inconsistence of statements of a government witness with what may be testified to at trial stretches the Brady rationale far beyond its logical reach. United States v. Osticco, 563 F. Supp. 727, 729 (M.D. Pa. 1983).
5) Statements of Trial Witnesses
Pursuant to the Jencks Act, 18 U.S.C. § 3500, defendants have requested that the government provide them, before trial, with all statements in the possession of the government as well as transcripts of grand jury testimony of all persons the government intends to call at trial. As we have previously stated, we believe the language of the Jencks Act to be mandatory. "In any criminal prosecution brought by the United States, no statement . . . made by a Government witness . . . shall be the subject of a subpoena, discovery or inspection until said witness has testified on direct examination. . . ." (emphasis supplied). 18 U.S.C. § 3500. See United States v. Harris, 458 F.2d 670 (5th Cir.), cert. denied, 409 U.S. 888, 93 S. Ct. 195, 34 L. Ed. 2d 145 (1972); United States v. Litman, 547 F. Supp. at 652 (W.D. Pa. 1982); United States v. Frumento, 405 F. Supp. 23, 33 (E.D. Pa. 1975). While it is our policy always to encourage the government to provide such requested information before trial, we will not order early disclosure. United States v. Murphy, 569 F.2d 771 (3d Cir.), cert. denied, 435 U.S. 955, 98 S. Ct. 1588, 55 L. Ed. 2d 807 (1978).
III. Defendants' Motion for Disclosure of Matters Occurring Before the Grand Jury
Pursuant to Fed. R. Crim. P. 6(e)(3)(C), defendants have filed a joint motion for an order authorizing and compelling disclosure of matters before the Pittsburgh grand jury. Defendants seek 1) all materials excised from grand jury transcripts; 2) a list of other grand jury transcripts submitted to the Pittsburgh grand jury; 3) Pittsburgh grand jury transcripts shown to other grand juries; 4) comments made by the United States Attorney to the grand jury; 5) any untranscribed comments; 6) a list of persons shown documents; 7) any applications for orders authorizing transfers. The requests are made pursuant to three allegations made by defendants, namely, that 1) the transfer of documents to the Western District of Pennsylvania was without the requisite court order, 2) subpoenaed documents were disclosed to parties other than those who produced them; and 3) government counsel made prejudicial and inflammatory remarks to grand jurors regarding a witness' invocation of his Fifth Amendment privilege. The relief requested seems designed to allow defendants to inquire into whether other "improprieties" took place, which, we assume, might cumulatively provide defendants with material supporting a motion to dismiss the indictment. In the alternative, defendants have requested the Court to conduct an in camera review into these matters.
Rule 6(e)(3)(C) provides for disclosure of matters occurring before the grand jury a) when directed by a court in connection with judicial proceedings, and b) upon a showing by defendant that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. Fed. R. Crim. P. 6(e)(3)(C)(i) and (ii). We feel the allegations of impropriety made by defendants do not satisfy their burden under the Rule and we will, therefore, deny the motion.
The standard for disclosure of matters occurring before the grand jury in the Third Circuit is set out in United States v. Budzanoski, 462 F.2d 443 (3d Cir.), cert. denied, 409 U.S. 949, 34 L. Ed. 2d 220, 93 S. Ct. 271 (1972): "There may be pre-trial discovery of the testimony of a witness when it relates to the dismissal of the indictment, or upon a showing of substantial likelihood of gross or prejudicial irregularities in the conduct of the grand jury." Id. at 454 (citation omitted). As to the standard of conduct necessary for a court to authorize disclosure of transcripts relevant to the issue of dismissal of the indictment, the Court of Appeals for the Third Circuit has held that such disclosure is appropriate when "the record already show[ed] significant improprieties. . . ." United States v. Serubo, 604 F.2d 807, 818 (3d Cir. 1979). Should a defendant make the required showing under 6(e)(3)(C)(ii), this showing of a substantial likelihood of gross prejudicial irregularities serves to satisfy the "particularized need" standard of 6(e)(3)(C)(i). United States v. Frumento, 405 F. Supp. 23, 33 (E.D. Pa. 1975).
It has further been held, however, as a limiting factor, that
grand jury proceedings generally are accorded a presumption of regularity, and mere suspicions of impropriety will not justify intrusion into the confidentiality of the proceedings.Requests for inspection of grand jury matters must be bottomed on more than the mere belief that improper conduct has occurred and that discovery will verify this belief.
United States v. Boffa, 513 F. Supp. 444, 496 (D. Del. 1980). Accord, United States v. Deerfield Specialty Papers, Inc., 501 F. Supp. 796, 816 (E.D. Pa. 1980); United States v. Braunstein, 474 F. Supp. 1, 11 (D.N.J. 1978); United States v. Tedesco, 441 F. Supp. 1336, 1344 (M.D. Pa. 1977).
With respect to defendants' first allegation regarding improper transfer of documents without court order, the copy of the court order authorizing transfer of documents from one grand jury to another was produced to this court, thus satisfying us that the allegation was baseless.
The second allegation is that the government disclosed documents to certain parties who did not produce them. It is unclear to this Court on the basis of defendants' motion whether the "documents" were subpoenaed by a grand jury, and if subpoenaed, by which grand jury. Compare Defendants' Motion for Disclosure, at 4 ("Documents supboenaed by grand juries in various jurisdictions . . .") with id. at 5 (ii) (". . . were shown records and documents apparently subpoenaed from various defendants herein.") (emphasis added). Further, defendants, in support of this allegation, list two separate "occurrences": 1) that at an interview with two Justice Department attorneys, the interviewer, with counsel present, was shown "four or five folders relating to U.S. Steel bids and questioned . . . concerning those bids. The folders appeared to be (sic) documents which would have come from U.S. Steel and were not the files supplied by [the interviewee]," Appendix A to Defendants' Motion for Disclosure of Matters Occurring before the Grand Jury (sealed); and 2) that "Richard Perrott of Lord Electric Company was displayed various documents obtained from other defendants herein in connection with Perrott's appearance before the grand jury sitting in the District of Columbia in November, 1982."
With respect to 1) supra, it is unclear whether defendants are arguing that the documents shown to the interviewee, among other possibilities, were a) U.S. Steel documents; b) documents of other companies in the possession of U.S. Steel. It does seem clear that the identity of the documents was not clear to the affiant, the interviewee's counsel. We see nothing improper in the foregoing scenario. First, since it is unclear what the documents were, and since their identity seems purely speculative, this Court has no idea what defendants allege was being disclosed. Following from this, defendants have shown no evidence that the documents shown to this particular interviewee, regardless of their identity, were subpoenaed by or used by any grand jury in any way. Finally, even assuming these documents were subpoenaed by or presented to the grand jury in the Western District of Pennsylvania, (a critical fact) clear Third Circuit authority holds that "the mere fact that a particular document is reviewed by a grand jury does not convert it into a 'matter occurring before the grand jury' within the meaning of 6(e)." In re Grand Jury Investigation, 630 F.2d 996, 1000 (3d Cir. 1980). In this circuit, a document becomes a "matter occurring before the grand jury" when it has been prepared especially for the grand jury, as with a summary for grand jury use. See In re Grand Jury Matter, 697 F.2d 511 (3d Cir. 1982). Accord, In re Special February 1975 Grand Jury, 662 F.2d 1232, 1244 (7th Cir. 1981) ("Only those subpoenaed documents should be subject to Rule 6(e) which when reasonably considered in the context of the particular grand jury investigation are determined by the trial court to reveal some secret aspect of the grand jury investigation"), aff'd sub nom. United States v. Baggot, 463 U.S. 476, 103 S. Ct. 3164, 77 L. Ed. 2d 785 (1983). But see In re Grand Jury Disclosure, 550 F. Supp. 1171, 1177 (E.D. Va. 1982) (documents subpoenaed by grand jury are matters occurring before grand jury).
We note that most cases concerning disclosure and alleged improper disclosure arise pursuant to requests for documents by persons outside the grand jury process, see, e.g. In re Grand Jury Investigation, supra; United States v. Stanford, 589 F.2d 285 (7th Cir. 1978), cert. denied, 440 U.S. 983, 60 L. Ed. 2d 244, 99 S. Ct. 1794 (1979); United States v. Interstate Dress Carriers, Inc., 280 F.2d 52 (2d Cir. 1960). In such cases, the party requesting the documents has sought information relating only to the documents themselves, with "no interest in the grand jury proceedings except for the somewhat fortuitous occurrence that that body had, for a different purpose, previously acquired custody over the records that it now seeks." In re Grand Jury Investigation, 630 F.2d 996, 999 (3d Cir. 1980). In cases such as these, the Court must scrutinize the request and the purpose for which the documents are sought in order to ascertain whether the party seeks the information for its own intrinsic value rather than to learn what took place before the grand jury. See United States v. Interstate Dress Carriers, 280 F.2d at 54. United States v. Tager, 638 F.2d 167 (10th Cir. 1980) cited by defendants, involved disclosure of grand jury transcripts, clearly "a matter occurring before the grand jury." Memorandum in support of Defendants' Motion for Disclosure of Matters Occurring before the Grand Jury at 10.
We might be more convinced about the validity of defendants' concerns for the grand jury process had defendants' documents been disclosed to nonparties. United States v. RMI, 599 F.2d 1183 (3d Cir. 1979), cited by defendants, involved a petition for mandamus, made by a nonparty to the action, from whom the government had subpoenaed documents. The government proposed to disclose all documents, pursuant to Rule 16, to defendants. NL Industries, Inc., a nonparty, moved for a protective order. The basis of its motion was that it was a competitor of certain defendants, and would have been prejudiced by the unprotected disclosure of its documents, which contained highly confidential and proprietary business information. Id. at 1185. In ordering the district court to consider the merits of the motion, the Court of Appeals for the Third Circuit observed that,
"grand jury witnesses ought to be able to rely, generally, upon Rule 6(e) secrecy, with the reasonable assurance that matters not material to the government's case or to the defense will not be disclosed in connection with the trial of an indictment. If such disclosure is actually necessary it must occur, but only with appropriate safeguards taken in the interest of preserving property rights in confidential business information. If the material is claimed to be confidential, and is in fact immaterial, the secrecy policies of Rule 6(e) ought to prevail.