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UNITED STATES v. DIBONA

December 7, 1984

UNITED STATES of America
v.
Joseph G. DiBONA, et al.



The opinion of the court was delivered by: KELLY

 JAMES McGIRR KELLY, District Judge.

 This matter comes before the Court on defendants' motion to appeal the Report and Recommendation of August 29, 1984 by Magistrate Naythons in which the Magistrate found that an FBI report that was in the possession of the government was (1) not comprised of grand jury materials in violation of Fed.R.Crim.P. 6(e) and (2) was not the type of material sought to be protected from disclosure by Rule 6(e).

 The defendants seek to suppress any evidence that the government presented to the grand jury which indicted the defendants in an antecedent criminal matter.

 Factual Background

 Defendants DiBona and Rights have already entered guilty pleas in an antecedent criminal matter for, inter alia, filing false statements with the United States government. As part of the arrangement for their guilty pleas, the charges against RDL, Inc. were withdrawn. The government also instituted a civil action against all three defendants for filing false claims for payment on defense contract work that was not performed.

 The defendants, in the course of conducting discovery, filed a motion to compel discovery of various reports in the possession of the government's attorney, believing that this information was derived from the grand jury proceedings in contravention of Federal Rules of Criminal Procedure 6(e). It is their contention that this civil complaint is based on illegal grand jury material.

 The materials in question were contained within an FBI report which summarized the investigation. The government objected to producing this information claiming that it was privileged as the work product of an attorney prepared in anticipation of trial and that it contained information from confidential sources.

 The FBI agent who prepared the report was deposed and stated that the information was compiled while the grand jury investigation was still in progress. He further stated that his report may have included materials derived from information received by the grand jury. The Magistrate directed the government to produce the report for an in camera inspection to determine if it contained "grand jury material."

 Rule 6(e) prohibits the use of grand jury materials in subsequent litigation except in limited circumstances. Rule 6(e)(3)(C)(i) provides that the government may disclose grand jury material in its possession when directed to do so through a court order. It is not disputed that the United States Attorneys did not apply for a court order directing release of this evidence.

 The Magistrate's review of the lengthy FBI report found three references to matters that may have involved grand jury materials. The first reference was to a summary of RDL, Inc.'s stock allocations. These records were produced as the result of a subpoena issued by the grand jury. The Magistrate, citing the holding of United States v. Interstate Dress Carriers, Inc., 280 F.2d 52 (2d Cir.1960) found that financial records of RDL, Inc. were created for purposes independent of the grand jury process and were not "grand jury materials" under Rule 6(e).

 The second and third references were to statements given by witnesses who were interviewed by the FBI. These witnesses may have also testified before the grand jury but the information within the FBI report did not reveal with certainty if that occurred. The Magistrate found that, in any event, these statements by the witnesses were derived from an independent FBI investigation and not from information received by the grand jury.

 The defendants ask this court to examine the Magistrate's review and recommendation in light of the Supreme Court's decision in United States v. Sells Engineering, Inc., 463 U.S. ...


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