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IN RE THE MAY 18

February 19, 1985

IN THE MATTER OF THE MAY 18, 1981 GRAND JURY


The opinion of the court was delivered by: NICKERSON

MEMORANDUM AND ORDER

NICKERSON, District Judge

The United States Attorney and the Kings County District Attorney move pursuant to Rule 6(e) (3) (C) (i) of the Federal Rules of Criminal Procedure for an order allowing disclosure of certain federal grand jury testimony to the District Attorney. Congressman Charles E. Schumer, the subject of the grand jury investigation, opposes the motion.

 All papers on the motion have been sealed. To the extent that facts in the record are mentioned in this opinion and have been published in New York State Court opinions, Schumer v. Holtzman, 94 A.D.2d 516, 465 N.Y.S.2d 522 (2d Dep't), aff'd as modified, 60 N.Y.2d 46, 454 N.E.2d 522, 467 N.Y.S.2d 182 (1983), the papers are deemed unsealed. The court does not use pseudonyms since the state court opinions name the parties and describe the pertinent facts. Cf. In the Matter of Frank Kitchen, 706 F.2d 1266, 1268 n.1 (2d Cir. 1983).

 In 1981 and 1982 the United States Attorney's Office conducted a grand jury investigation into Schumer's conduct of his successful 1980 congressional campaign while he was a New York State Assemblyman. The inquiry focused on whether Schumer had engaged in criminally fraudulent conduct by permitting members of his Assembly staff to work on his congressional campaign while on the state payroll.

 Following the investigation the United States Attorney recommended that Schumer be prosecuted. On January 17, 1983 the Justice Department closed the matter stating that it "is not appropriate for federal prosecution."

 The Kings County District Attorney then commenced an investigation of Schumer's conduct. The United States Attorney turned over to her witness interview notes made prior to any testimony before the federal grand jury. Members of her office interviewed a number of the witnesses. The state inquiry is still active, but a state grand jury has not been empanelled.

 On reviewing the District Attorney's notes, the United States Attorney gave her his office's opinion that the state investigation did not reveal a complete and accurate picture of the events of 1980. This motion followed to permit the state investigators to have access to the grand jury testimony. The United States Justice Department supports the motion.

 The United States Attorney asserts that there are discrepancies between the grand jury testimony and the notes of the state interviews of the witnesses. The court assumes, without deciding, that material discrepancies do exist.

 I

 The grand jury is said to serve two functions, to uncover crimes deserving of prosecution and to protect the innocent by screening out charges not warranting prosecution. United States v. Sells Engineering, Inc., 463 U.S. 418, 103 S. Ct. 3133, 3137-38, 77 L. Ed. 2d 743 (1983). The prohibition of Federal Rule of Criminal Procedure 6(e) (2) against disclosure of grand jury matters by, among others, a government attorney serves to promote these two ends. Id. ; United States v. Procter & Gamble Co., 356 U.S. 677, 681-82, 2 L. Ed. 2d 1077, 78 S. Ct. 983 (1958).

 
?'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 exonerated by the grand jury will not be held up to public ridicule.'

 Sells, supra, 463 U.S. at , 103 S. Ct. at 3138 (1983) quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 60 L. Ed. 2d 156, 99 S. Ct. 1667, (1979) (footnotes and citation omitted).

 But the secrecy of grand jury proceedings is not absolute. The Rule makes exceptions. Among them is the circumstance where a court directs disclosure "preliminarily to or in connection with a judicial proceeding." Rule 6(e) (3) (C) (i). To come within this exception the moving parties must show that the proposed uses of the grand jury material are related fairly directly to some identifiable litigation, ...


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