The opinion of the court was delivered by: MISHLER
Memorandum of Decision and Order
The company challenges the validity of an order of this court dated July 13, 1979, made pursuant to Rule 6(e), Fed.R.Crim.P., authorizing the United States Attorney to disclose "testimony and exhibits which have been or will be presented" to a grand jury empanelled on June 6, 1979, to certain named officials and investigators of an agency of a municipal government.
The grand jury was empanelled, based on information supplied to the United States Attorney for the Eastern District of New York by that agency, to investigate charges that the Company bribed municipal employees in connection with a contract entered into by the Company and the municipality.
On July 5, 1979, a grand jury subpoena Duces tecum was served on the Company requiring production (among other classes of documents) of all bank records relating to the Contract, and all expense vouchers and travel records of eleven named employees of the Company.
The court heard argument on that portion of the Company's omnibus motion seeking reconsideration or modification of the amended order of this court, or alternatively, entry of an order protecting the Company's rights in the civil suit.
The government's affidavit in support of the order dated July 13, 1979, states:
The sole purpose for which access to the grand jury testimony and exhibits is sought is to enable the named individuals to assist the United States Attorney in the investigation of this matter. It is respectfully submitted that this assistance is indispensable to an effective grand jury presentation.
At argument, the United States Attorney explained that the expertise of the municipal agency in guiding the grand jury investigation through complex bidding and contracting procedures employed by the municipality was vital and if the United States Attorney were denied the right to discuss evidence submitted to the grand jury with the named individuals in the municipal agency, the grand jury's inquiry would be seriously hampered.
It is the government's position that this limited disclosure is authorized by section (2)(C)(i) of Rule 6(e) which permits disclosure otherwise prohibited by the rule "when so directed by a court preliminarily to or in connection with a judicial proceeding." The government disavows reliance upon section (e)(2)(A) which authorizes disclosure when made to "an attorney for the government for use in the performance of such attorney's duty" (subd. (i)) or to "such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce Federal criminal law" (subd. (ii)).
The Company contends that none of these provisions authorize disclosure of grand jury material to municipal investigators for the purpose of aiding the grand jury in its deliberations.
In Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667, 1672-73, 60 L. Ed. 2d 156 (1979), the Court stated:
We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but found innocent by the grand jury will not be held up to public ridicule.
Rule 6(e) Fed.R.Crim.P. codifies this rule of grand jury secrecy which "was imported into our federal common law and is an integral part of our criminal justice system." Id. 99 S. Ct. at 1672 n. 9. It provides, as a general rule, that matters occurring before the grand jury shall not be disclosed. As indicated above, the government eschewing reliance upon section (e)(2)(A) argues that disclosure is authorized by section (e)(2)(C)(i).
Notwithstanding the government's position with respect to section (e)(2)(A) it is our view that this provision may, indeed, contain authorization for disclosure in the instant case. Of course, it is well established that the phrase "an attorney for the government" as used in section (e)(2)(A)(i) authorizing disclosure to "an attorney for the government for use in the performance of such attorney's duty" refers only to attorneys for the federal government and does not include attorneys for state and local governments. See Special February 1971 Grand Jury v. Conlisk, 490 F.2d 894, 896 (7th Cir. 1973); In re Grand Jury Proceedings, 309 F.2d 440, 443 (3d Cir. 1962). ...