the Government obtains an order pursuant to Fed.R.Crim.P. 6(e)(3)(C) authorizing disclosure to the later grand jury. Because the Government obtained no order authorizing either transfer in this case, defendants contend that I must dismiss this indictment.
The transfer from the second to the third grand jury clearly did not require a court order. On April 28, 1983, the Supreme Court amended rule 6(e)(3)(C). The amendment added paragraph 6(e)(3)(C)(iii) which specifically authorizes disclosures by the Government to subsequent grand juries without a court order. The transfer between the second and the third grand jury in this case occurred after the effective date of the amendment to Rule 6. Therefore, the Government did not need to obtain a court order to effect that transfer.
The transfer between the first and second grand juries presents a more difficult problem because this court must now determine the state of the law before the adoption of Fed.R.Crim.P. 6(e)(3)(C)(iii). The Advisory Committee viewed the amendment as a limited change in the law. "Even absent a specific provision to that effect, the courts have permitted such disclosure in some circumstances." Fed.R.Crim.P. 6(e)(3)(C)(iii) advisory committee note.
Our Court of Appeals seems never to have ruled on the necessity of a court order authorizing a transfer of materials. The Government cites Robert Hawthorne, Inc. v. Director of Internal Revenue, 406 F. Supp. 1098, 1116 (E.D.Pa.1976), for the proposition that such an order was not required. That case is not directly on point, however. In Hawthorne, Judge Becker expressed the view that a later grand jury could subpoena materials considered by an earlier grand jury without a Rule 6(e) order.
Before August, 1984, some courts took the position that disclosure between grand juries in the same district did not constitute an abuse of the grand jury process. See, e.g., United States v. E.H. Koester Bakery Co., 334 F. Supp. 377 (D.Md.1971); cf. In re Grand Jury Investigation of Banana Industry, 214 F. Supp. 856 (D.Md.1963) (improper without court order when different districts). Other courts have taken the position that disclosure between grand juries violated Rule 6(e), but did not warrant dismissal of the indictment. See, e.g., United States v. Malatesta, 583 F.2d 748, 752-754 (5th Cir.1978), cert. denied, 440 U.S. 962, 99 S. Ct. 1508, 59 L. Ed. 2d 777 (1979); United States v. Lawson, 502 F. Supp. 158, 166-167 (D.Md.1980); see also In re Grand Jury Proceedings, 658 F.2d 782, 783 (10th Cir.1981) (adverting to problem).
As the foregoing suggests, I have found no reported case in which a court dismissed an indictment on the ground that the Government transferred materials without a court order from one grand jury to another in the same judicial district in the course of a continuing investigation. I therefore see no merit in defendants' motion to dismiss this indictment on the ground that no court order authorized the transfer from grand jury one to grand jury two.
(2) Utilization of Summaries
Defendants assert that their counsel "believes that the Government may have improperly utilized summaries of some of the pre-existing grand jury evidence." Defendants' motion at 3. The Government "denies utilizing any summaries of any grand jury evidence at anytime [ sic ]." Government's Response at 2.
Chief Judge Lord has held that the use of summaries "is inherently suspect." United States v. Mahoney, 495 F. Supp. 1270, 1276 (E.D.Pa.1980); see also Id. at 1275 n. 6 (citing cases). The Government in Mahoney admitted that it had used summaries. The Government denies using summaries in this case. Defendants desire access to the grand jury's transcripts in order to substantiate their claim that the Government used summaries in a way justifying dismissal of the indictment.
This court cannot order disclosure of grand jury materials to the defendants unless they establish "particularized need" as described in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979). See, e.g., Mahoney, 495 F. Supp. at 1272-1273. As Judge Caldwell has aptly stated, this creates a peculiar situation:
In the present case, defendant's motion and brief present something of a "catch-22" situation. Defendant contends that there may be grounds for a motion to dismiss the indictment but that the only way he can tell is to inspect the grand jury minutes. Yet in order to inspect the minutes, defendant must show a particularized need therefor.