The opinion of the court was delivered by: Cannella, District Judge:
The application by Maria Cruz for disclosure of her grand
jury testimony is denied.
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,
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
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
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 ...