United States District Court, Southern District of New York
November 19, 1991
UNITED STATES OF AMERICA
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.
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).
To satisfy the particularized need test, the party must show
that the requested material "is needed to avoid a possible
injustice in another judicial proceeding, that the need for
disclosure is greater than
the need for continued secrecy, and that [its] request is
structured to cover only material so needed." Douglas Oil Co.,
441 U.S. at 222, 99 S.Ct. at 1674. The burden of proving that
the need for disclosure outweighs a continuing need for secrecy
lies on the party requesting disclosure. See City of New York
v. Liberman, 85 Civ. 4958 (MJL), slip op. at 3, 1990 WL 212900
(S.D.N.Y. Dec. 12, 1990).
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 is
regarded as "`disclosure' . . . because such a construction of
the Rule furthers its basic purposes." Id.
While the rule stated by Justice Brennan is dicta, the
majority's opinion in John Doe, Inc. I does not dictate that
grand jurors, as well as government attorneys, be afforded
automatic access to discovery of grand jury proceedings. To be
sure, the grand jury witness, like the government attorney who
participated in the grand jury investigation, is not a stranger
to the grand jury proceedings.
Nevertheless, disclosure to a grand jury witness of his
testimony poses risks of further disclosure that are absent
when disclosure is made to a government attorney.
Justice Brennan recognized that such disclosure could open
the door for intimidation of grand jury witnesses and
discourage them from testifying. See John Doe, Inc. I, 481 U.S.
at 125, 107 S.Ct. at 1669 (Brennan, J., dissenting). Disclosure
also poses the risk that defendants will obtain discovery of
grand jury testimony. Judge Learned Hand eloquently explained
the basis for refusing a defendant's request to inspect all
grand jury minutes:
It is said to lie in discretion, and perhaps it
does, but no judge of this court has granted it,
and I hope none ever will. Under our criminal
procedure the accused has every advantage. . . .
Why in addition he should in advance have the
whole evidence against him to pick over at his
leisure, and make his defense, fairly or foully,
I have never been able to see. . . .
United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923); see
Campbell v. Eastland, 307 F.2d 478, 487 n. 12 (5th Cir. 1962),
cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963).
Since the Supreme Court in John Doe, Inc. I did not consider
these additional concerns, the Court is unwilling to extend the
Supreme Court's decision to grand jury witnesses. Therefore,
the Court finds that to obtain his or her testimony, a grand
jury witness must establish particularized need for it, which
is not outweighed by the public's interest in secrecy. See
Executive Secs. Corp., 702 F.2d at 408-09.
Turning to the instant case, Cruz seeks to review her grand
jury testimony to avoid inconsistencies in her testimony at
the suppression hearing which could expose her to a perjury
prosecution. The Second Circuit has stated that particularized
need "refers to the ability of the party seeking disclosure to
obtain the information he seeks from sources other than the
protected source." United States v. Moten, 582 F.2d 654, 663
(2d Cir. 1978). In this case, Cruz has access to her grand jury
testimony — she presented the testimony and can rely on her
own recollection of the statements she made. While the passage
of time and the stress of testifying may have dulled Cruz's
recollection, she testified on matters of which she was
intimately familiar. In any event, Cruz's concern that she will
render inconsistent testimony at the suppression hearing is no
different from that of any other grand jury witness who
testifies on more than one occasion.*fn3 Were the Court to
find that a grand jury witness' request to review his or her
transcript to avoid giving inconsistent testimony constituted
particularized need would render the particularized need test
meaningless, since every grand jury witness could claim a need
on this basis.
In any event, the Court finds that there are countervailing
interests in maintaining secrecy that outweigh the minimal
need asserted by Cruz for her testimony. Generally, once the
grand jury has returned an indictment the concern for secrecy
is lessened. See In re Grand Jury, 583 F.2d 128, 130-31 (5th
Cir. 1978). However, the Government explains that there is a
continuing need to maintain grand jury secrecy because Cruz's
testimony went beyond the charges in the indictment, and
disclosure would pose serious risks to an ongoing
investigation. The Government also raises the concern that
disclosure to Cruz may unfairly benefit Lopez by providing him
with discovery of the elements of the Government's case against
him. Justice Brennan recognized that providing a grand jury
witness with his or her testimony poses the risk of disclosure
to others who have control over the witness. See John Doe, Inc.
I, 481 U.S. at 125, 107 S.Ct. at 1669.
In sum, the Court finds that the competing interests lie in
favor of nondisclosure. Cruz has not satisfied her burden in
demonstrating a particularized need for her testimony that
outweighs the public's interest in maintaining secrecy.
Accordingly, Cruz's application for access to her grand jury
testimony is denied.
Maria Cruz's application for her grand jury testimony is