customer. Section 1109 permits a court to order delayed notice in certain circumstances. The Government contends that because the situation involved in this matter involves several of the circumstances listed in section 1109, this court should order the institution to maintain secrecy.
I find this argument unpersuasive. First, the Right to Financial Privacy Act explicitly states that "nothing in this chapter (except sections 3415 and 3420 of this title) shall apply to any subpoena or court order issued in connection with proceedings before a grand jury." 12 U.S.C. § 3413(i). Sections 3415 and 3420 are inapposite here. I decline to analogize from a statute which excludes grand jury subpoenas in express terms. Second, the Right to Financial Privacy Act imposes a series of requirements on the "government authority" seeking financial records. See 12 U.S.C. §§ 3411. Section 1109 only relieves the Government, and not the institution, from an obligation to serve copies of subpoenas and requests on customers. Accordingly, section 1109 in no way parallels this case.
The Government next contends that 28 U.S.C. § 1651 and this court's supervisory power over grand juries under the Federal Rules of Criminal Procedure authorize the requested order. The Government makes this contention even though Fed.R.Crim.P. 6(e) appears to announce a general rule precluding district courts from requiring grand jury witnesses to keep silent about their testimony. Rule 6(e)(2) provides that "no obligation of secrecy may be imposed except in accordance with this rule." Rule 6 nowhere mentions imposition of such an obligation upon witnesses; Rule 6 only imposes this obligation on grand jurors, interpreters, stenographers, recorders, typists, government attorneys and certain other government personnel.
The Government argues that the federal courts, notwithstanding the express language of Rule 6(e), retain a general authority to require a grand jury witness not to disclose matters relating to the witness' testimony. Some of the cases relied on by the Government do contain language suggesting that there may be situations in which such a restraint would be proper, but examples of restraints actually imposed by federal courts since the adoption of Rule 6(e) seem to be very rare. In fact, two courts facing "systematic debriefing" of grand jury witnesses by attorneys have declined to impose a rule of silence on the witnesses. In re Grand Jury Proceedings, 558 F. Supp. 532 (W.D.Va.1983); In re Grand Jury Summoned October 12, 1970, 321 F. Supp. 238 (N.D.Ohio 1970).
The only authority really on point which the Government has brought to this court's attention is the decision in In re Swearingen Aviation Corporation and Fairchild Industries, Inc., 486 F. Supp. 9, 12 (D.Md. 1979). In that case, the court did indeed direct certain financial institutions not to advise their customers for a period of ninety days of disclosures required by a grand jury. The court did conclude "that rule 6(e) is not an impediment to the issuance of the Orders under the circumstances of this case. . . ." With all respect, I am not persuaded by that Court's opinion, or by the cases the opinion relies on, that the explicit directive of Rule 6(e) -- "no obligation of secrecy may be imposed on any person except in accordance with this rule" -- may be overridden by this court's general supervisory authority over grand juries. It is true that in Swearingen the Fourth Circuit declined to mandamus the district court to vacate its ex parte orders; but the Fourth Circuit's ruling was expressly keyed to its determination that customers of the financial institutions "lack[ed] standing to contest the validity of the orders. . . ." In re Swearingen Aviation Corp., 605 F.2d 125, 126 (4th Cir.1979). In the view of the Fourth Circuit, only the financial institutions themselves -- i.e., the entities restrained by the ex parte orders -- had standing to contest the orders. The court of appeals' opinion, then, in no way approved the district court's order, because Article III precluded the court of appeals from considering the merits of the petition for mandamus.
In sum, I conclude that Rule 6(e) embodies "usages and principles of law," 28 U.S.C. § 1651, which run counter to the order proposed by the Government. For the foregoing reasons the Government's motion is DENIED.
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