On Appeal From the United States District Court for the Western District of Pennsylvania, D.C. Misc No. 00890E.
Sloviter, Becker and Stapleton, Circuit Judges.
This appeal presents the question whether someone found in civil contempt for failure to testify before a grand jury is entitled to know the disclosure of the commencement and termination dates of that grand jury. The district court denied contemnor's motion for disclosure of the dates. We reverse.
Appellant Patrick DiLoreto was convicted of various drug and income tax violations and sentenced to twenty years imprisonment.*fn1 Although his conviction was vacated and remanded on direct appeal, United States v. DiLoreto, 888 F.2d 996 (3d Cir. 1989), appellant remains in custody pending a new trial. In January 1989, after serving only three months of his prison term, appellant was subpoenaed to appear before the federal grand jury that was investigating the activities of one Merchie C. Calabrese, Jr.*fn2 When appellant invoked the privilege against self-incrimination, the government sought and obtained an order granting appellant use immunity and compelling him to respond. See 18 U.S.C. §§ 6002, 6003 (1988). This order notwithstanding, appellant refused to answer questions before the grand jury. The government therefore moved for a Rule to Show Cause why he should not be held in contempt.
Appellant waived a hearing and informed the court (through counsel) that he had no intention of answering questions. The court thereupon found appellant in contempt of court and remanded him to the custody of the United States Marshal until such time as he should purge himself of the contempt by agreeing to answer questions, or eighteen months, or the remaining life of the grand jury, whichever was least. Appellant has been in various local jails since that time. On October 6, 1989, appellant moved for disclosure of the commencement and termination dates of the grand jury. The district court, on February 8, 1990, denied the motion without opinion. This appeal followed.
Federal Rule of Criminal Procedure 6(e), which codifies the longstanding policy of secrecy surrounding federal grand jury proceedings, obviously constrains the right of public access to grand jury records. More particularly, Rule 6(e)(2) imposes a rule prohibiting disclosure of "matters occurring before the grand jury." The exception to the rule of secrecy, Rule 6(e)(3), and the sealing requirement, Rule 6(e)(6), also pertain only to "matters occurring before the grand jury."
We must be wary, however, of an overly strict construction of what matters actually "occur before the grand jury," as it has been correctly held that some non-substantive incidents of grand jury proceedings must be kept secret. For instance, although criminal defendants generally have the right to inspect jury selection records under 28 U.S.C. § 1867(f) (1982), they are not normally entitled to the names of the members of the grand juries that indicted them. See United States v. McLernon, 746 F.2d 1098, 1122-23 (6th Cir. 1984); United States v. Carlock, 606 F. Supp. 491, 492-93 (W.D.La. 1985); United States v. Vaughn, 510 F. Supp. 206, 209-10 (D.N.J. 1981). Obviously, the disclosure of the names and addresses of the grand jurors could facilitate intimidation of or retaliation against those grand jurors.
We explicated the theory behind the Rule 6 secrecy doctrine in In re Grand Jury Investigation (Appeal of New Jersey State Commission of Investigation), 630 F.2d 996 (3d Cir. 1980), cert. denied sub nom. Rittenhouse Consulting Enterprises Ltd. v. New Jersey State Commission of Investigation, 449 U.S. 1081, 66 L. Ed. 2d 805, 101 S. Ct. 865 (1981):
[The] policy of secrecy is not absolute. Rule 6(e) shields solely 'matters occurring before the grand jury.' It is designed to protect from disclosure only the essence of what takes place in the grand jury room, in order to ...