immunity now. Were it otherwise, any witness could refuse to testify, even after receiving use immunity, on the theory that his testimony might later lead to prosecutorial violations of his right against self-incrimination.
Thus, even if Heimerle is correct in his claim that a probation revocation hearing is not "criminal" within the meaning of the fifth amendment and section 6002, the prospect of future improper use of Heimerle's immunized testimony does not permit him to refuse to testify here under a grant of immunity.
Accordingly, the motion to quash must be denied.
II. DISCLOSURE OF PRIOR GRAND JURY TESTIMONY
Heimerle should be provided with the minutes of his grand jury testimony. Contrary to his contention, this is not the only alternative to quashing the subpoena; this court may, in its discretion, decline to authorize the release of the transcript while compelling his testimony. In this case, however, the normal reasons for withholding grand jury testimony simply do not exist.
Generally, a party moving to obtain the transcript of all or part of grand jury proceedings must make a strong showing of particularized need for the material under Federal Rule of Criminal Procedure 6(e)(3)(C)(i). See United States v. Sells Eng'g, Inc., 463 U.S. 418, 103 S. Ct. 3133, 77 L. Ed. 2d 743 (1983); Douglas Oil Co. v. Petrol Stops N.W., 441 U.S. 211, 60 L. Ed. 2d 156, 99 S. Ct. 1667 (1979). As Heimerle correctly observes, this policy in favor of secrecy exists for four widely recognized reasons: 1) to prevent the accused from fleeing in advance of trial and from tampering with witnesses; 2) to prevent prejudicial disclosure of information against an unindicted target; 3) to encourage witnesses to testify freely before the grand jury without fear of embarrassment or retribution; and 4) to encourage free deliberation among the grand jurors themselves. See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 405, 3 L. Ed. 2d 1323, 79 S. Ct. 1237 (1959) (Brennan, J., dissenting); United States v. Procter & Gamble Co., 356 U.S. 677, 682-82, 2 L. Ed. 2d 1077, 78 S. Ct. 983 n.6 (1958).
Where the person seeking disclosure of specific testimony is the witness himself, rather than a third party, these considerations lack force. In the most recent case directly on point, the D.C. Circuit held that instead of bearing the burden of persuasion himself, a grand jury witness "is entitled to a transcript of his own testimony absent a clear showing by the government that other interests outweigh the witness' [sic] right to such transcript." In re Sealed Motion, 279 App. D.C. 294, 880 F.2d 1367, 1371 (D.C. Cir. 1989). The court noted that the privilege of secrecy as to specific testimony belongs to the witness alone, and that he is free in any event to reveal his testimony to others outside the grand jury. Id. at 1371-72 (citing VIII J. Wigmore, Evidence § 2362). Using the same analysis, several other courts concur that a witness has a presumptive right to obtain a transcript of his own testimony. See In re Ferris, 512 F. Supp. 91, 92 (D. Nev. 1981) ("the effect of the transcript on the secrecy of the grand jury is minimal"); In re Minkoff, 349 F. Supp. 154, 158 (D.R.I. 1972) ("There is no merit in a paranoid secrecy for the sake of secrecy itself.").
None of this should be taken to mean that a witness is in every case entitled to his grand jury testimony as a matter of right. Rather, as the D.C. Circuit observed, release of the minutes may be denied (or at least delayed) where the government shows a sufficient countervailing interest. For example, in its recent decision in United States v. Coiro, 785 F. Supp. 326, 1992 U.S. Dist. LEXIS 2241 (E.D.N.Y. February 25, 1992), this court itself issued a protective order with respect to the defendant's prior grand jury testimony. Coiro, like Heimerle, has been subpoenaed to testify in United States v. Gotti; in addition, Coiro is under a separate indictment for perjury in connection with his grand jury testimony. While acknowledging that Coiro is unquestionably entitled to his grand jury testimony in preparing his own defense, this court found substantial justification for withholding the transcript until Coiro completes his testimony in United States v. Gotti. Coiro is currently serving a prison term for a RICO conviction arising out of obstruction of justice predicates, and (as noted above) is now under indictment for perjury; in both cases, the transactions at issue involved matters pertaining to Gotti and his associates. In light of Coiro's demonstrated willingness to subvert the truth-seeking process, especially in connection with the subject matter of his anticipated testimony, this court identified a significant danger that Coiro would improperly tailor his testimony if given access to the grand jury transcript.
Under the In re Sealed Motion test, the government has failed to show interests sufficiently weighty to overcome Heimerle's presumptive right to a transcript. The government's single-paragraph response merely recites a conclusory interest in grand jury secrecy and a desire to avoid providing the defense with grounds for impeaching Heimerle. The first of these grounds is nonsensical, since (as Wigmore notes) the right of secrecy vis-a-vis Heimerle's testimony belongs to Heimerle himself. As for the second prong, Heimerle's memorandum explains that the government's concern is this: if Heimerle obtains and reviews the transcript, the defense may elicit the fact of that review in order to impeach him on cross-examination. As the defense notes, however, the government has at the same time expressed a willingness to refresh Heimerle's memory orally if he is willing to be interviewed by the government attorney prior to testifying. Assuming this to be true -- and the government does not dispute this assertion in its response -- the government has made no showing of a reason for non-disclosure, much less a showing sufficient under the D.C. Circuit test.
It is true that many cases hold that a witness must make the same showing of particularized need as any other applicant. However, these cases carry less precedential weight than the D.C. Circuit's In re Sealed Motion opinion, are generally much older and date from a period when the keeping of grand jury minutes was optional, and frequently err in their reliance on Supreme Court precedent in this area. For example, the court in In re Grand Jury Proceedings, 73 F.R.D. 647 (M.D. Fla. 1977) claimed that "the law is definite that a witness before a grand jury does not have a right to a transcript of his testimony." Id. at 650 (citing Pittsburgh Plate Glass, 360 U.S. at 400); see also Valenti v. Department of Justice, 503 F. Supp. 230, 233-34 (E.D. La. 1980) (same). In fact, however, Pittsburgh Plate Glass only established that a third party (in that case, the defendant) has no presumptive right to obtain the grand jury minutes of others' testimony. Similarly, in refusing to provide a witness the minutes of his grand jury testimony on the ground that he had not demonstrated a compelling necessity, one district court made the irrational claim that "furnishing transcripts to grand jury witnesses . . . would subject such witnesses to retaliation and interfere with the ability of the grand jury to obtain information." In re Alvarez, 351 F. Supp. 1089, 1091 (S.D. Cal. 1972).
Accordingly, Heimerle's request for the minutes of his grand jury testimony is granted, subject to the condition that Heimerle bear any costs involved. See In re Ferris, 512 F. Supp. at 92.
Dated: Brooklyn, New York
March 4, 1992
I. LEO GLASSER, U.S.D.J.