UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
March 11, 1985
IN RE GRAND JURY SUBPOENA DUCES TECUM DATED JANUARY 2, 1985 (Robert M. Simels, Esq.); DONALD PAYDEN, Intervenor,
UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: EDELSTEIN
EDELSTEIN, District Judge:
This motion involves a subpoena duces tecum issued by the Grand Jury on January 2, 1985 to Robert M. Simels, Esq. ("Simels"), counsel for defendant Donald Payden ("Payden"), to appear before the Grand Jury and disclose certain information regarding this fee arrangement with Payden. Payden has moved to quash the subpoena on the ground that it violated his sixth and fifth amendment rights. To resolve the issues presented by this motion the court has carefully balanced Payden's sixth and fifth amendment rights and the government's substantial interests in obtaining evidence of criminal conduct.
The intervenor's motion to quash the subpoena is hereby denied.
On August 2, 1984, Payden was arrested on charges of conspiring to sell heroin. Ten days later, Payden was named in a two court indictment, which charged Payden and another defendant with conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and distribution and possession with intent to distribute heroin in violation of 21 U.S.C. § 841. Upon presentment before Magistrate Leonard Bernikow on August 3, 1984, an appearance was entered for Jay Goldberg, Esq. ("Goldberg") as Payden's counsel. Goldberg continued as Payden's counsel until early September, 1984.
Following a number of conferences and a hearing, Goldberg chose to withdraw because of an apparent conflict resulting from Goldberg's prior representation of one of Payden's alleged co-conspirators who was a participant in an intercepted telephone conversation that will be played at trial.
On September 19, 1984, Simels entered an appearance for Payden and has continued as Payden's counsel. On October 10, 1984, the Grand Jury returned a superseding indictment against Payden. In addition to the two counts contained in the initial indictment, the superseding indictment added a third defendant and a count under 21 U.S.C. § 848 which charged that Payden organized a continuing criminal narcotics enterprise ("848 count"). Under the 848 count, the government seeks forfeiture of all profits and proceeds of profits obtained by Payden from the operation of the narcotics enterprise and has particularized two items: case seized from Payden's home and a 25% interest in a company as represented by shares of stock.
On October 17, 1984, subsequent to the return of the first superseding indictment, the government served Simels with a trial subpoena, pursuant to Fed. R. Civ. P. 17(c).
In substance, the trial subpoena calls for production of documentary evidence relating to defendant's fee arrangement and payments to counsel. The government's stated purpose in seeking fee information pursuant to the trial subpoena "was to obtain evidence of the disposition by Payden in the post-August 2, 1984 period of a substantial sum of money because it would be probative evidence of his receipt of substantial profits from his narcotics trafficking." Government's Affidavit in Response to Motion to Quash at P 31. Although the subpoena was made returnable October 27, 1984, Simels requested and was granted an extension by the government and permitted to withhold the information pending review by the United States Attorney of the decision to seek information regarding Simels' fees. On January 29, 1985, the government withdrew the trial subpoena, pending resolution of this motion.
On January 2, 1985, the Grand Jury issued a subpoena duces tecum to Simels. The Grand Jury subpoena commands testimony and the production of documents similar to those sought in the previously issued and subsequently withdrawn trial subpoena.
The Grand Jury subpoena was served on Simels in open court on January 3, 1985. On January 19, 1985, Payden moved to intervene and quash the Grand Jury subpoena and the court heard oral argument on February 5, 1985. The return date of the Grand Jury subpoena has been adjourned on several occasions pending a decision on the motion.
I. Intervention of Donald Payden.
Payden's motion to intervene is granted. Payden has presented substantial questions regarding his sixth amendments and fifth amendment rights. The threat to these rights presents a sufficient interest in the subject of the subpoena to entitle him to intervene as of right. See in re Katz, 623 F.2d 122, 125 (2d Cir. 1980) (fifth amendment right of intervenor threatened when intervenor's attorney served with subpoena).
II. The Motion to Quash the Grand Jury Subpoena.
Payden seeks to quash the subpoena because it infringes on his right to the effective assistance of counsel provided by the sixth amendment and his fifth amendment right to the free from abuse of grand jury process.
A. Sixth Amendment Rights.
The first step in analyzing this motion is to determine the nature of the alleged sixth amendment infringement. The sixth amendment
protects a number of aspects regarding the effective assistance of counsel, see, e.g., Geders v United States, 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976) (trial court's order preventing communication between counsel and defendant violated sixth amendment); in re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984) (prosecutors' actions which prevented defense counsel from adequately preparing for impending trial violated sixth amendment); United States v. Pineda, 692 F.2d 284, 287 (2d Cir. 1982) (ordinarily government's deliberate use of informer to elicit incriminatory statements from the defendant after the indictment violates the sixth amendment), and not all of them are implicated here. There are three possible areas of infringement in this case: the mere disclosure of the fee arrangement itself; the effect of responding to the subpoena on the ability of counsel to prepare for trial; and the effect of counsel testifying and the result of being forced to withdraw as trial counsel in this case.
1. Disclosure of the information.
The first area of possible infringement stems from the disclosure of the fee information. The fee information will supply the government with additional evidence of "substantial income," an element of the 848 count. Payden contends that the mere disclosure of the fee information, which may incriminate him, infringes his sixth amendment right. He contends that requiring Simels to disclose this information will chill Payden's relationship of trust and confidence with Simels. This argument is unpersuasive. The mere disclosure by defense counsel of information that is adverse to the defendant does not affect counsel's ability to represent the defendant effectively as required by the sixth amendment. United States v. Wilson, 571 F. Supp. 1417, 1422 (S.D.N.Y. 1983) (not an infringement of sixth amendment unless legal strategy would be disclosed); see in re Grand Jury Witness (Waxman), 695 F.2d 359, 363 (9th Cir. 1982) (per curiam); in re Grand Jury Proc., Des Moines, Iowa, 568 F.2d 555, 558 (8th Cir. 1977), cert. denied, 435 U.S. 999, 98 S. Ct. 1656, 56 L. Ed. 2d 90 (1978); United States v. Wolfson, 558 F.2d 59, 65-66 (2d Cir. 1977); see also in re January 1976 Grand Jury (Gensen), 534 F.2d 719, 731 (7th Cir. 1976) (where client makes his attorney a witness to the crime by giving him money, the client may not invoke the sixth amendment to bar the attorney's testimony at trial).
The sixth amendment protects two types of information from disclosure: privileged information and information that relates to the preparation of a defense. Thus, the sixth amendment provides broader protection than the attorney-client privilege. See generally Allis, Limitations on Prosecutorial Discovery of the Defense Case in Federal Courts: The Shield of Confidentiality, 50 S. Cal. L. Rev. 461, 507-10 (1977) (discussion of cases involving sixth amendment infringement based on "piercing of the shield of confidentiality which surrounds the preparations of the defense camp" which were not interferences with attorney-client privilege). The disclosure of fee information by an attorney is not protected by the attorney-client privilege in this circuit. In re Shargel, 742 F.2d 61, 62 (2d Cir. 1984); see also in re Witness Before Special March 1980 Grand Jury, 729 F.2d 489, 492 (7th Cir. 1984) (government entitled to fee information from former attorneys pursuant to its investigation of continuing criminal enterprises); United States v. Sherman, 627 F.2d 189, 190-92 (9th Cir, 1980) (privilege does not prevent disclosure of fees for use in "net worth" theory of computing tax liability).
Some courts apply a more expansive interpretation of the attorney-client privilege based on the "'incrimination rationale,' which focuses upon whether the materials sought may be used as evidence against the client." In re Shargel, supra, 742 F.2d at 62 & n.2. Thus, the first question is whether information which would be privileged under the "incrimination rationale" but not protected under this circuit's interpretation of attorney-client privilege is protected by the sixth amendment.
The answer must be that the scope of protection for "privileged" information under the sixth amendment is the same as that of the attorney-client privilege. See United States v. Melvin, 650 F.2d 641, 645 (5th Cir. 1981) (sixth amendment violation only when there is an intrusion into a confidential attorney-client relationship); United States v. Pappadio, 346 F.2d 5, 9 (2d Cir. 1965) (information not relating to subject matter of meetings not protected by attorney-client privilege and for the same reason did not interfere with right to effective representation of counsel), vacated on other grounds sub nom. Shillitani v. United States, 384 U.S. 364 86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966); United States v. King, 536 F. Supp. 253, 264-65 (C.D. Cal. 1982) ("Sixth Amendment right to effective counsel, like the attorney-client privilege, is based on the confidentiality of the communication"); see also United States v. Valencia, 541 F.2d 618, 621 (6th Cir. 1976) (disclosure of privileged information by informer infringed sixth amendment right to effective assistance of counsel); State v. Pratt, 284 Md. 516, 398 A.2d 421, 433 (Md. 1979) ("the [attorney-client] privilege is . . . closely tied to the federal . . . constitutional guarantees of the effective assistance of counsel and could, if limited too severely, make these basic guarantees virtually meaningless"). This conclusion is based on the similarity of the rationales supporting the attorney-client privilege as defined in this circuit and this facet of sixth amendment protection. See United States v. King, supra, 536 F. Supp. at 265.
There is not such identity between the "incrimination rationale" and the underpinnings of the sixth amendment.
The sixth amendment guarantees defendant the right to an attorney who can effectively prepare a trial strategy, Morris v. Slappy, 461 U.S. 1, 21, 75 L. Ed. 2d 610, 103 S. Ct. 1610 (1983) (Brennan, J., concurring), and effectively represent him at trial, Holloway v. Arkansas, 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978). In order for this right to be realized, there must be full and frank discussion between defense counsel and defendant. The protection afforded by the attorney-client privilege is similar. As stated by the Second Circuit in Shargel, "[t]he underlying theory of the attorney-client privilege is 'that encouraging clients to make the fullest disclosure to their attorneys enables the latter to act more effectively, justly and expeditiously, and that these benefits outweigh the risks posed by barring full revelation in court.'" Shargel, supra, 742 F.2d at 62 (quoting J. Weinstein & M. Berger, Evidence P 503(02) (1982)). Based on these rationales, Payden's sixth amendment right to the effective assistance of counsel is not infringed merely because his attorney is compelled to disclose incriminating information.
The second area of information protected by the sixth amendment relates to defense preparations. See, e.g., United States v. King, supra, 536 F. Supp. at 264-65; in re Terkeltoub, 256 F. Supp. 683, 684 (S.D.N.Y. 1966).
When the information sought by the subpoena is examined in this light, no sixth amendment infringement is found. Defense counsel's ability to formulate defense strategy and prepare for trial are not impaired by the fact that he must divulge the fee arrangement. United States v. Wilson, 571 F. Supp. 1417, 1422 (S.D.N.Y. 1983). Compare in re Grand Jury Witness (Salas), 695 F.2d 359, 362 (9th Cir. 1982) (bills, ledgers and statements would reveal the nature of the services provided, such as researching particular areas of the law). Nothing the government seeks from Simels would in any way disclose Payden's legal strategy nor has Payden made such a contention. Payden's argument that disclosure of the information will destroy his relationship of trust and confidence with his attorney is makeweight. This contention is a retread of the attorney-client privilege argument the Second Circuit rejected in Shargel. Because the information sought by the subpoena is not protected by the attorney-client privilege and does not relate to defense strategy, the court finds that the disclosure of the information will not infringe Payden's sixth amendment rights.
2. Time and effort required to respond to the subpoena and its effect on defense counsel's ability to prepare for trial.
Payden contends that the subpoena will prevent Simels from adequately preparing for trial and thus infringe on his right to effective counsel. Payden as well as the amici refer the court to a recent decision by the First Circuit, in re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984), which held that the issuance of a federal grand jury subpoena to counsel infringed the defendant's sixth amendment right to counsel where defendant was awaiting trial in state court on charges based on the same activities under investigation by the federal grand jury. The Court of Appeals for the First Circuit held that the district court did not "exceed its discretion in finding that the timing of the subpoenas to be inappropriate, given the pendency of the state criminal proceedings in which the subpoenaed attorneys were serving as defense counsel." Id. at 17 (emphasis in original). In reaching its decision the court stated that "[e]ven when trials are pending, the grand jury's right to unprivileged evidence may outweigh the right of the defense bar and its clients not to be disturbed," and that "[t]he matter is one that turns on the particular facts as evaluated by the district judge." Id. at 19.
In a similar time bind and constraint the court would be concerned that Simels' effectiveness as counsel might be impaired. This is simply not the case here. While the court readily concedes that this is a rather complex case,
Simels has had ample time to prepare this case for trial. The court has not ordered Simels to proceed without adequate preparation.
Further, Simels has been on notice since October 17, 1984, just seven days after the filing of the first superseding indictment, that the government would be seeking information regarding his fee arrangement with Payden. As of the date of the filing of this Opinion, a trial date still has not been fixed. There can be no credible claim that the subpoena will prevent Payden's counsel from going to trial without adequate preparation.
Payden further contends that even if Simels has enough time to prepare for trial, Simels is "discouraged" from taking the time and effort needed to prepare a proper defense, because of the ever-present threat that his attorneys' fees will eventually be forfeited. The canons of professional responsibility, however, require Simels to represent Payden zealously despite the risk that he will not receive compensation for his work. See United States v. Ramey, 559 F. Supp. 60, 62 (E.D. Tenn. 1981) (by accepting employment as counsel for defendant in a criminal case, the attorney impliedly stipulates that he will represent the client in the matter until its conclusion); People v. Woods, 117 Misc. 2d 1, 2 457 N.Y.S.2d 173, 175 (Dist. Ct. 1982) ("attorney cannot leave his client in the middle of a matter, because he does not supply him with money, . . . without running the risk of losing the benefit of that relation"); DR 7-101(A)(2); see also DR 2-110(c)(1).
Should Simels or Payden feel that Simels can no longer provide effective representation in this case, the court will ensure that Payden is represented by counsel who will provide effective representation of Payden's interests.
3. The attorney as witness and disqualification.
The determination that the information shall be disclosed raises the question of how disclosure is to be made. There are three possible ways the information may be disclosed:
(1) by stipulation or testimony of a non-conspirator;
(2) by Simels testifying before the Grand Jury; or
(3) by Simels testifying at trial.
a. Stipulation or testimony of non-conspirator.
By letter dated February 7, 1985, the government stated that "the legitimate interests of both the Government and Payden can be accommodated without the appearance of Mr. Simels as a grand jury or a trial witness and therefore, without his consequent withdrawal as trial counsel." The government proposes that Simels supply the fee information in a sworn statement and that such information could be admitted at trial, either through a stipulation or, if the information leads to a non-conspirator witness who had knowledge of the transfer of attorneys' fees, by that witness's testimony.
In light of the court's determination that the information shall be disclosed, Payden's rights will not be infringed by the admission of the information by a stipulation or through the testimony of a non-conspirator witness. Thus, this approach would be that least intrusive on Payden's rights.
b. Testifying before the Grand Jury.
Should Simels reject the government's proposal, one alternative is that he be required to testify before the Grand Jury. Payden contends that this eventuality will "chill" the attorney-client relationship so as to erode his right to effective assistance of counsel.
"[M]erely requiring a defendant's lawyer to testify does not alone constitute a material interference with his function as an advocate or operate to deprive the accused of a fair trial." United States v. Freeman, 519 F.2d 67, 68 (9th Cir. 1975); accord United States v. Hall, 346 F.2d 875, 882 (2d Cir.), cert. denied, 382 U.S. 910 & 947, 15 L. Ed. 2d 161, 86 S. Ct. 250 (1965). In in re Grand Jury Subpoena Served Upon Arthur Kinoy, 326 F. Supp. 400, 402 (S.D.N.Y. 1970), the court stated that "[l]awyers, of all people, should be supposed competent to enforce in the grand jury room their legitimate duties of confidentiality. They are obliged at the same time, not less than others, to give their non-privileged knowledge to the grand jury." Accord United States v. Wolfson, 558 F.2d 59, 65-66 (2d Cir. 1977); see in re Grand Jury Proc., Des Moines, Iowa, 568 F.2d 555, 558 (8th Cir. 1977).
Simels' appearance before the Grand Jury will not deprive Payden of the effective assistance of counsel.
Defense counsel has conceded that the government has not acted in bad faith in this case and that the government is not seeking this information in order to harass defense counsel. Cf. in re Grand Jury Matters, 751 F.2d 13, 19 (1st Cir. 1984) (district court found United States Attorney's actions constituted "harassment"). Under the circumstances of this case, the court does not find that requiring Simels to comply with the subpoena is "oppressive or unreasonable." Fed. R. Crim P. 17(c).
c. Requiring Simels to testify at trial.
Should Simels testify regarding the fee arrangement at trial,
this would result in his disqualification as trial counsel based on Disciplinary Rule 5-102. The disqualification of counsel undoubtedly "pos[es] a confrontation between the public's right to every man's evidence and the client's right to employ counsel of his own choosing," in re Grand Jury Proceedings (Jones), 517 F.2d 666, 674 n.4 (5th Cir. 1975), however, the disqualification of counsel when he becomes a witness is not a per se infringment of the defendant's sixth amendment right to effective assistance of counsel. Rather, the sixth amendment interest is balanced against the ethical and other considerations when making the decision to disqualify counsel. United States v. McKeon, 738 F.2d 26, 34-35 (2d Cir. 1984); United States v. Cunningham, 672 F.2d 1064, 1070 (2d Cir.), cert. denied, 466 U.S. 951, 104 S. Ct. 2154, 80 L. Ed. 2d 540 (1982); United States v. Peng, No. S. 84 Cr. 823 (DNE), slip op. at 6-7 (S.D.N.Y. Feb. 8, 1985). "'The right to assistance of counsel does not imply the absolute right to counsel of one's choice. A defendant's right to obtain counsel of his choice must be balanced against the need for efficient and effective administration of criminal justice.' . . . Where defense counsel's testimony is important to the government's case, the best alternative is for counsel to withdraw." Grady v. United States, 715 F.2d 402, 404 (8th Cir. 1983) (quoting United States v. Weninger, 624 F.2d 163, 166 (10th Cir.), cert. denied, 449 U.S. 1012, 66 L. Ed. 2d 470, 101 S. Ct. 568 (1980)).
While sixth amendment interests are implicated, they are not absolute and do not require the court to quash the subpoena. Moreover, to accommodate Payden's sixth amendment interests related to his choice of counsel, the court could order a limited disqualification and allow Simels to continue to assist with Payden's defense, but not appear at counsel table in front of the jury. See United States v. Cunningham, supra, 672 F.2d at 1074 (disadvantage to defendant as a result of the disqualification is "reduced considerably by the limited nature of the disqualification").
4. Future subpoenas.
The court holds that the government may subpoena Simels without making any preliminary showing. The court cautions the government in the strongest terms not to construe this as an open door to attorney shopping until the government decides that it has enough information regarding Payden's assets or until Payden seeks court appointed counsel.
This court does not share the fears of the amici or the court in United States v. Rogers, 84 Cr. 337, slip op. at 25 (D. Colo. Feb. 26, 1985) (allowing forfeiture of attorneys' fees would arm the government with "the ultimate tactical advantage of being able to exclude competent defense counsel as it chooses"), in light of this caution and the court's interest in the efficient administration of justice, which includes the expeditious handling of criminal cases, see Walters v. United States, 404 F. Supp. 996, 998 (S.D.N.Y. 1975), aff'd mem., 542 F.2d 1166 (2d Cir. 1976).
The court finds that based on the contentions raised by this motion and the framework established in this opinion, the defendant has and will continue to receive the effective assistance of counsel whether represented by Simels or another attorney.
B. Fifth Amendment Rights
Payden claims that the issuance of the subpoena constitutes an abuse of grand jury process and thus violates his fifth amendment rights. It is asserted that the government is using the Grand Jury as a discovery tool which is clearly not permitted. United States v. Doss, 563 F.2d 265, 276 (6th Cir. 1977) (en banc); United States v. Fisher, 455 F.2d 1101, 1104-05 (2d Cir. 1972). The basis for the defendant's contention is a statement by the Assistant United States Attorney for this case at a pre-trial conference. The AUSA stated that the subpoena relates to the 848 count of the first superseding indictment. The government contends that the information is required for the forfeiture portion of the 848 count. The defendant argues that because the government need not include the details of the items sought by forfeiture in the indictment, United States v. Grammatikos, 633 F.2d 1013, 1024 (2d Cir. 1980); United States v. Thevis, 474 F. Supp. 134, 145 (N.D. Ga. 1979); United States v. Bergdoll, 412 F. Supp. 1308, 1318-19 N.17 (D. Del. 1976), it is an abuse of grand jury process to obtain information regarding potentially forfeitable assets through the Grand Jury. Clearly this information may be used against the defendant at trial to establish the "substantial income" element of the 848 count and the items subject to forfeiture.
The court finds that the Grand Jury investigation was still in progress at the time the subpoena was issued. As the Supreme Court has noted, "'[a] grand jury's investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed . . . .'" United States v. Dionisio, 410 U.S. 1, 13, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973) (quoting United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970)). While the information need not be included in the indictment, there is no reason to preclude the Grand Jury from obtaining information relevant to forfeiture and including it in the indictment. In order to quash the subpoena based on an abuse of grand jury process, the defendant must demonstrate that the sole or dominant purpose of the investigation is to discover information for use at trial. In re Grand Jury Subpoena (Koecher), 755 F.2d 1022, slip op. at 2260 n.2 (2d Cir. 1985); in re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1041 (3d Cir. 1980).
Courts have been reluctant to quash a subpoena based on this "sole or dominant purpose" rationale. 8 J. Moore, Moore's Federal Practice P 6.04, at 6-87 n.41 (1984) ("[I]t is not at all difficult for the prosecutor to establish that it was not his sole or dominant purpose to gather evidence for the existing case.").
For example, the filing of superseding indictments have supported the government's contention that an investigation is continuing. United States v. Shakur, 560 F. Supp. 313, 318 (S.D.N.Y. 1983). Thus, this is not a stituation [situation] in which the government is using grand jury process for the purpose of harassment, in re Grand Jury Matters, 751 F.2d 13, 19 (1st Cir. (1984); nor is the government attempting to freeze Simels' testimony for trial, see, e.g., United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir. 1979); United States v. Fisher, 455 F.2d 1101, 1104-05 (2d Cir. 1972). "[W]here there is another legitimate purpose behind the grand jury investigation, the proceeding would not be improper merely because the Government may derive an incidental benefit." United States v. Gibbons, supra, 607 F.2d at 1328; accord United States v. Zarattini, 552 F.2d 753, 757 (7th Cir.), cert. denied, 431 U.S. 942, 53 L. Ed. 2d 262, 97 S. Ct. 2661 (1977).
In addition to gathering information to include in the 848 count, the government asserts that the Grand Jury is also investigating other unindicted co-conspirators. The identity of the person delivering funds to Simels, it is argued, would lead to the identity of possible co-conspirators. This is certainly within the scope of the Gran Jury's investigatory power and does not constitute an abuse of grand jury process. See, e.g., in re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1042 93d Cir. 1980); United Stated v. Gibbons, supra, 607 F.2d at 1328-29; United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert. denied, 429 U.S. 1062, 97 S. Ct. 787, 50 L. Ed. 2d 778 & 430 U.S. 969, 97 S. Ct. 1652, 52 L. Ed. 2d 361 (1977). The intervenor has failed to satisfy his burden that the issurance of the subpoena is an abuse of grand jury process even though the information may be used at trial.
Intervenor's motion to quash the Grand Jury subpoena is denied. In the event Mr. Simels and the government enter into a stipulation pursuant to the government's letter of February 7, 1985 the court will quash the subpoena. On the other hand, if Mr. Simels fails to enter into the stipulation proposed by the government, Mr. Simels is ordered to appear before the Grand Jury as commanded in the subpoena and provide the Grand Jury with the documents requested therein one week from the filing of this Opinion or at a later date should the Grand Jury so direct.