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UNITED STATES v. HARLOFF

July 14, 1993

UNITED STATES OF AMERICA,
v.
SCOTT DAVID HARLOFF, GREGORY ROBIN RAGGI, MICHAEL DAVID MAZZEO, THOMAS WILLIAM ALESSI, AND JAMES WILLIAM O'BRIEN, Defendants.



The opinion of the court was delivered by: MICHAEL A. TELESCA

 INTRODUCTION

 In a 19-count indictment, the five defendants, all former or suspended officers of the Rochester Police Department ("RPD"), were charged with having committed civil rights violations, money thefts, and other crimes while acting in their official capacity as members of an RPD drug interdiction unit.... Following a ten-week jury trial, the defendants were acquitted on March 26, 1993 of all charges.

 Pursuant to its disclosure obligations under the Jencks Act, 18 U.S.C. ┬ž 3500, the Government turned over to defense counsel thousands of documents, composed primarily of grand jury transcripts and investigation interview reports completed by RPD and Federal Bureau of Investigation personnel.... Many of these documents were used by defense counsel during cross-examination of government witnesses during the trial.

 The Government now moves for an order compelling the return of all documents disclosed under the Jencks Act.... The defendants oppose the government's motion, arguing that there is no legal justification for the relief requested by the Government. For the reasons set forth below, the Government's motion requesting an order for the return of such documents is denied.

 DISCUSSION

 I. Fed.R.Crim.P. 6 and Grand Jury Transcripts

 Rule 6 of the Federal Rules of Criminal Procedure codifies the traditional rule of secrecy concerning matters presented to the grand jury, and also sets forth exceptions under which secrecy may be broken and disclosure permitted. In particular, subdivision 6(e)(3)(C) of Rule 6 provides that:

 
disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made
 
(i) when so directed by a court preliminarily to or in connection with a judicial proceeding[.]

 Fed.R.Crim.P. 6(e)(3)(C)(i).... The Government argues that Rule 6 contemplates disclosure only in "very limited circumstances[,] . . . [and therefore] the long-established policy of grand jury secrecy, while not absolute, commands the return of materials disclosed pursuant to subdivision (e)(3)(C)(i) at the close of federal criminal proceedings." Gov't. Brief at 3.

 Moreover, "the consideration that disclosure of the grand jury materials might discourage future witnesses from testifying before a grand jury has little or any significance .... .... . after a court has already long since released these materials to the target of the grand jury investigation without any limitation on use." Id. Here, the Government disclosed the grand jury transcripts of potential government witnesses to the defendants on December 2, 1992, some six weeks prior to the start of trial.... This disclosure effectively eliminated the secrecy which attached to those materials, because the identity of the witnesses and the exact nature of their testimony was revealed.... No restriction was sought by the Government nor were any conditions imposed by the Court. Therefore, the restrictions imbodied in Rule 6 on the use of these materials ended once they were turned over, because it was then that they ...


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