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U.S. v. LOPEZ

November 19, 1991

UNITED STATES OF AMERICA
v.
JESUS LOPEZ, DEFENDANT.



The opinion of the court was delivered by: Cannella, District Judge:

MEMORANDUM AND ORDER

The application by Maria Cruz for disclosure of her grand jury testimony is denied.

BACKGROUND

The second superceding indictment charges the defendant Jesus Lopez with three counts: (1) conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(B) (1988); (2) possession with intent to distribute approximately five grams of heroin within 1000 feet of a school in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C) (1988); and (3) using and carrying firearms during a drug trafficking crime in violation of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(C) (1988). Defendant filed a motion to suppress oral statements made on July 22, 1990 and physical evidence discovered on that date. A suppression hearing is scheduled to be held on December 2, 1991.

Lopez challenges the lawfulness of the search on the ground that Maria Cruz, the tenant of the apartment where the physical evidence was discovered and where Lopez had been living, did not voluntarily consent to the search. Cruz testified on this issue and others before the grand jury.*fn1 Defendant subpoenaed Cruz to testify at the suppression hearing. Cruz now moves for disclosure of her grand jury testimony before proceeding with the suppression hearing.*fn2

DISCUSSION

The Supreme Court has "recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979). Disclosure, however, is permitted under narrow circumstances. Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure permits the court to authorize disclosure "preliminarily to or in connection with a judicial proceeding." The Supreme Court construes Rule 6(e)(3)(C)(i) as requiring "a strong showing of particularized need for grand jury materials before any disclosure will be permitted." United States v. Sells Eng'g, Inc., 463 U.S. 418, 443, 103 S.Ct. 3133, 3148, 77 L.Ed.2d 743 (1983). Where the grand jury has terminated, the "`considerations justifying secrecy become less relevant, [and] a party asserting a need for grand jury transcripts will have a lesser burden in showing justification.'" Id. (quoting Douglas Oil Co., 441 U.S. at 223, 99 S.Ct. at 1675).

The Government contends that Cruz is not entitled to her grand jury testimony because she has failed to establish a particularized need for her testimony. Cruz, however, argues that a grand jury witness need not demonstrate particularized need to obtain his or her grand jury testimony. Cruz principally relies on the D.C. Circuit's decision In re Sealed Motion, 880 F.2d 1367 (D.C. Cir. 1989) (per curiam). The D.C. Circuit held that "a grand jury witness has a general right to a transcript of such testimony absent the government demonstrating countervailing interests which outweigh the right to release of a transcript." Id. at 1373.

The D.C. Circuit's decision conflicts with the rule in this circuit. In Executive Securities Corp. v. Doe, 702 F.2d 406, 408-09 (2d Cir. 1983), the Second Circuit explicitly stated that "witnesses do not have the prerogative to effect the release of transcripts of their own grand jury testimony." Id. at 408-09. The Seventh and Fourth Circuits also require grand jury witnesses to establish particularized need to obtain their testimony. See United States v. Clavey, 565 F.2d 111, 114 (7th Cir. 1977), cert. denied, 439 U.S. 954, 99 S.Ct. 351, 58 L.Ed.2d 345 (1978); Bast v. United States, 542 F.2d 893, 895 (4th Cir. 1976).

The Supreme Court has not ruled on this precise issue. However, in his dissenting opinion in United States v. John Doe, Inc. I, 481 U.S. 102, 107 S.Ct. 1656, 95 L.Ed.2d 94 (1987), Justice Brennan stated that a grand jury witness does not have an automatic right to his testimony. See John Doe, Inc. I, 481 U.S. at 125, 107 S.Ct. at 1669 (Brennan, J., dissenting). In John Doe, Inc. I, the Supreme Court held that Rule 6(e) of the Federal Rules of Criminal Procedure does not prohibit disclosure of grand jury materials in the civil phase of a dispute to the attorney who conducted the criminal prosecution. See id. at 108, 107 S.Ct. at 1660. The Supreme Court's holding was based on the plain meaning of the word "disclosure." The Court reasoned that a government attorney's "solitary reexamination of material in the privacy of . . . [his] office" did not constitute "disclosure." Id.

Justice Brennan disagreed with the majority's interpretation of the word disclosure. In support of his position, he pointed to the rule regarding disclosure to a grand jury witness of his own testimony:

  [T]he Court's assumption that "disclosure" does
  not occur when a party seeking to utilize
  information is already in legitimate possession
  of it is belied by the "well settled rule that a
  witness is not entitled to a copy of his grand jury
  testimony on demand, even though he obviously was
  present in the grand jury room during the receipt
  of evidence, since a rule of automatic access would
  expose grand jury witnesses to potential
  intimidation" by making it possible for those with
  power over the witness to monitor his or her
  testimony.

Id. at 125, 107 S.Ct. at 1669 (Brennan, J., dissenting) (emphasis added and omitted) (citations omitted). In support of this legal rule, Justice Brennan cited the decisions by the Seventh Circuit in United States v. Clavey, the Fourth Circuit in Bast v. United States, and the Second Circuit in Executive Securities Corp. v. Doe. See id. He concluded by observing that disclosure to a grand jury witness of his own testimony ...


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