In re: Grand Jury

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 22, 2007 Decided June 22, 2007

No. 06-3078

IN RE: GRAND JURY

Consolidated with
06-3095

Appeals from the United States District Court
for the District of Columbia
(No. 06mc00057)
(No. 06mc00159)

Before: ROGERS and KAVANAUGH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

PER CURIAM: This case raises a question that, surprisingly,
has not yet been decided by this court: whether federal grand
jury witnesses, after they have testified, are entitled to examine
the transcripts of their own testimony. Applying Federal Rule
of Criminal Procedure 6(e)(3)(E)(i), we hold that grand jury
witnesses are entitled to review the transcripts of their own
testimony in private at the U.S. Attorney’s Office or a place
agreed to by the parties or designated by the district court.
 2

I.

During a criminal investigation of a company and its
employees, the Government issued multiple grand jury
subpoenas for the testimony of two corporate employees. The
first employee testified on three occasions. Approximately two
months after the employee’s third grand jury appearance, the
employee was subpoenaed to testify a fourth time. The
employee sought to review his prior grand jury testimony – in
particular asking for copies of the transcripts of the prior three
grand jury appearances. The Government, which keeps copies
of grand jury transcripts and tapes, see Fed. R. Crim. P. 6(e)(1),
denied that request. The employee then filed a motion in the
United States District Court for the District of Columbia to
compel disclosure of the transcripts. The district court denied
the motion, and the employee appealed. In the meantime, the
employee subsequently testified a fourth time.

The second employee testified once and then was
subpoenaed to testify again. The employee sought to review her
prior grand jury testimony and asked for a copy of the transcript
of the first grand jury appearance. The Government denied that
request. Following the Government’s denial, the employee filed
a motion in the district court to compel disclosure of the
transcript of the prior grand jury testimony. The district court
denied that motion, and the employee appealed. In the
meantime, this employee testified a second time.

II.

For two alternative reasons, the Government says that the
court lacks jurisdiction over both employees’ appeals. First, the
Government argues that the district court’s denials of the
employees’ motions for their grand jury transcripts are not “final
decisions” under 28 U.S.C. § 1291. Second, the Government
 3

contends that the employees’ appeals are moot because the
employees have completed their testimony before the grand
jury. We disagree with both of the Government’s jurisdictional
points. The Government also argues the second employee’s
appeal is untimely; we disagree.

A.

Section 1291 vests courts of appeals with jurisdiction over
“appeals from all final decisions of the district courts of the
United States . . . , except where a direct review may be had in
the Supreme Court.” The Government maintains that the district
court’s orders denying the witnesses access to their own grand
jury transcripts are not “final decisions” under § 1291.

No court of appeals has directly answered the question
whether a district court order denying a witness access to
transcripts of his or her own testimony (as opposed to a party
seeking access to transcripts of someone else’s testimony) is
appealable as a final decision. In arguing against appellate
jurisdiction, the Government analogizes this situation to cases
involving witnesses’ motions to quash grand jury subpoenas on
privilege or other grounds. The Government advances this
analogy because a witness ordinarily cannot appeal from a
denied motion to quash a grand jury subpoena until the witness
first refuses to comply with the subpoena and is held in
contempt. See, e.g., United States v. Ryan, 402 U.S. 530, 532-33
(1971). According to the Government, the same prerequisite
should apply to a witness’s appeal of a denied motion for access
to grand jury transcripts (in other words, the witness first should
refuse to comply with a subpoena and be held in contempt). But
the Government’s argument has a gaping hole: A witness who
has already testified will not necessarily be subpoenaed for
future grand jury testimony – and thus may not have an
opportunity to be held in contempt in order to appeal an order
 4

denying access to the transcript of prior grand jury testimony.
For example, what about access to the transcript of a witness’s
final appearance before the grand jury? Or what about the grand
jury witness who testifies only once? Under the jurisdictional
rule that the Government would have us adopt, such parties
would be out of luck in seeking to appeal denied motions for
access to transcripts of their testimony. The Government’s
attempted analogy therefore does not hold up. Cf. Cobbledick
v. United States, 309 U.S. 323, 329 (1940) (“Due regard for
efficiency in litigation must not be carried so far as to deny all
opportunity for the appeal contemplated by the statutes.”).

For purposes of appellate jurisdiction, this case is analogous
to cases where a party seeks access to the grand jury transcripts
of the testimony of other witnesses. As Justice Rehnquist
explained, an order denying such third parties access to a
transcript “disposes of all of the contentions of the parties and
terminates a separate proceeding pending before the grand jury
court [and] is therefore appealable as a ‘final decision’ under 28
U.S.C. § 1291.” Douglas Oil Co. of Cal. v. Petrol Stops Nw.,
441 U.S. 211, 233 (1979) (Rehnquist, J., concurring); see id. at
215-17; see also United States v. Miramontez, 995 F.2d 56, 57,
59 n. 4 (5th Cir. 1993); Wisconsin v. Schaffer, 565 F.2d 961, 965
& n.1 (7th Cir. 1977); Gibson v. United States, 403 F.2d 166,
167 (D.C. Cir. 1968); cf. In re Grand Jury 95-1, 118 F.3d 1433,
1434, 1436 (10th Cir. 1997); In re Federal Grand Jury
Proceedings, 760 F.2d 436, 437-38 (2d Cir. 1985).1 So too in

1
In cases where the disclosure motion was part of a broader
challenge to the evidence presented to the grand jury or to the integrity
of the grand jury proceedings (challenges that are not usually
entertained pre-indictment), some appellate courts have declined to
entertain the motion at least until after indictment or conviction. See
United States v. Schiff, 874 F.2d 705, 706 (9th Cir. 1989); In re 1985
Grand Jury Proceedings, 785 F.2d 593, 594-95 (8th Cir. 1988); In re
 5

this case. Here, as in cases involving third-party disclosure
motions, appellate consideration of the access issue alone is
unlikely to significantly delay the grand jury investigation.2
Here, as in cases involving third-party disclosure motions, the
requesting witness may have no opportunity to be held in
contempt if the request is denied. And here, as in cases
involving third-party disclosure motions, the district court’s
order terminates a separate proceeding before the grand jury
court.

This case is also analogous to the situation where a third
party seeks to interpose a privilege objection to subpoenas
issued to other witnesses – such as a client who objects to a
subpoena issued to his or her attorney. In those cases, the party
holding the privilege has no opportunity to be held in contempt
because it is not the subpoenaed party. The courts therefore
have generally considered district court orders denying such
motions to be final decisions for purposes of appellate
jurisdiction. See, e.g., Perlman v. United States, 247 U.S. 7, 9-
10, 12-13 (1918); In re Sealed Case, 107 F.3d 46, 48 n.1 (D.C.
Cir. 1997); Impounded, 277 F.3d 407, 410-11 & n.3 (3d Cir.
2002); In re Grand Jury Proceedings (Manges), 745 F.2d 1250,
1251 & n.2 (9th Cir. 1984); see also 2 SARA SUN BEALE &
WILLIAM C. BRYSON, GRAND JURY LAW AND PRACTICE §§ 9:39,
11:18 ¶ 3 & n.4 (2d ed. 2005). The same rationale applies here
because the requesting party may have no opportunity to be held

Grand Jury Matter Impounded, 703 F.2d 56, 59-60 (3d Cir. 1983).
2
If the witness is again subpoenaed, the witness then refuses to
testify without access to the prior transcript, and the district court for
some reason denies access to the transcript, then there could be delay
caused by an appeal. In such a case, however, the witness would be
in contempt for refusing to testify – and even the Government agrees
there is appellate jurisdiction in those circumstances.
 6

in contempt in order to obtain appellate review.

In sum, we hold that the district court’s denials of the
employees’ disclosure motions constitute “final decisions” over
which this court has jurisdiction under 28 U.S.C. § 1291.

B.

The Government alternatively contends that this court lacks
jurisdiction over the employees’ appeals because the cases are
moot. According to the Government, the employees requested
disclosure of their transcripts in order to prepare for subsequent
grand jury appearances. Because both employees went ahead
and testified again before the grand jury, the Government argues
that the employees no longer need the transcripts of their prior
testimony.

This argument is closely related to the Government’s initial
jurisdictional contention. Under the Government’s theory, the
witness seeking to appeal the denial of a disclosure motion must
refuse to comply with an outstanding subpoena and be held in
contempt; and if the witness testifies instead of defying the
subpoena, the disclosure issue becomes moot. The primary
problem for the mootness version of the Government’s
contempt-as-prerequisite-for-appeal argument is that a witness
has an interest in reviewing his or her grand jury transcript even
when the witness has finished testifying. Here, for example, the
employees have expressed concern that their prior testimony
may have included inadvertent inaccuracies or inconsistencies,
and they want to review the transcripts to correct those
inaccuracies or inconsistencies. Correcting the record is not a
pointless gesture. The Government otherwise could use a
witness’s inaccurate or inconsistent testimony as a basis, at least
in part, for a criminal prosecution of that witness or someone
else. See 18 U.S.C. § 1623(a), (c) (inconsistent statements). In
 7

addition, federal law explicitly provides a mechanism for a
witness to timely recant prior grand jury testimony. See id.
§ 1623(d). Yet witnesses would have difficulty taking full
advantage of this statutory recantation right without access to
transcripts of their own grand jury testimony. Contrary to the
Government’s theory, moreover, a witness’s interest in
reviewing transcripts of past testimony could well increase after
any subsequent testimony; that’s because the possibility of
inaccurate or inconsistent testimony tends to increase the more
a witness testifies. See Bursey v. United States, 466 F.2d 1059,
1079 (9th Cir. 1972). In short, because a witness’s interest in
reviewing transcripts of his or her prior grand jury testimony
does not end as a result of any subsequent grand jury testimony,
the employees’ appeals here are not moot. Cf. Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12-13 (1992);
FTC v. Browning, 435 F.2d 96, 97-98 n.1 (D.C. Cir. 1970).

C.

The Government also maintains that one of the two appeals
here was untimely under Federal Rule of Appellate Procedure 4.
The second employee filed a notice of appeal 49 days after the
district court entered the order denying the disclosure motion.
The Government argues that this employee missed the 10-day
deadline for filing a notice of appeal in a “criminal case” under
Federal Rule of Appellate Procedure 4(b). See id. 4(b)(1)(A)
(“In a criminal case, a defendant’s notice of appeal must be filed
in the district court within 10 days after the later of: (i) the entry
of either the judgment or the order being appealed; or (ii) the
filing of the government’s notice of appeal.”). The employee
counters that Rule 4(a)’s 60-day deadline applies here; that rule
governs the filing of a notice of appeal in a “civil case” in which
the United States is a party. See id. 4(a)(1)(A)-(B) (“In a civil
case, . . . [w]hen the United States or its officer or agency is a
party, the notice of appeal may be filed by any party within 60
 8

days after the judgment or order appealed from is entered.”).

Is this grand jury matter a “criminal case” or a “civil case”
for purposes of Federal Rule of Appellate Procedure 4? The
intuitive answer would be that the grand jury matter is a criminal
case; after all, the prosecutor uses a grand jury in order to
conduct investigations into possible criminal offenses. But for
purposes of the appellate deadlines in Rule 4, that intuitive
answer does not square with the text of the Rule or with the
decided cases from other courts of appeals.

This Rule 4 issue has arisen in three distinct contexts:
(i) motions by third parties for disclosure of grand jury
materials; (ii) appeals of contempt citations after parties have
refused to comply with grand jury subpoenas on privilege or
other grounds; and (iii) motions by third parties based on
privilege grounds to quash or modify grand jury subpoenas
issued to other parties. In the context of motions by third parties
for disclosure of grand jury materials, two courts of appeals
have expressly addressed the question; both courts concluded
that the 60-day “civil case” deadline in Rule 4(a) applies. See In
re Special Grand Jury 89-2, 450 F.3d 1159, 1168-69 (10th Cir.
2006); Miramontez, 995 F.2d at 57-58. In the context of appeals
from civil contempt citations for refusing to comply with grand
jury subpoenas, the Government agrees that the 60-day “civil
case” deadline in Rule 4(a) applies. See Tr. of Oral Arg. Jan. 22,
2007 at 40; see also In re Grand Jury Proceedings, 795 F.2d
226, 230 (1st Cir. 1986). Of course, in such cases, the witness
has an incentive to appeal immediately to obtain relief from
ongoing contempt sanctions. In the context of motions to quash
subpoenas issued to other parties, four courts of appeals have
expressly addressed the question, with two circuits holding that
the 60-day “civil case” deadline in Rule 4(a) applies and two
holding that the “criminal case” deadline in Rule 4(b) applies.
Compare Impounded, 277 F.3d at 410-11 (applying Rule 4(a));
 9

and Manges, 745 F.2d at 1251 (applying Rule 4(a)), with In re
Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, 902
F.2d 244, 247 (4th Cir. 1990) (applying Rule 4(b)); and In re
Grand Jury Proceedings (Company X), 835 F.2d 237, 238-39
(10th Cir. 1987) (applying Rule 4(b)).

In the various cases, courts generally have based their
decisions on a combination of textual and policy considerations.
Here, our analysis of Rule 4 leads us to the conclusion that the
60-day “civil case” deadline of Rule 4(a) applies to appeals of
first-party grand jury disclosure motions. To begin with, the text
of Rule 4(b) uses the term “defendant.” On its face, that
provision cannot logically apply to a grand jury proceeding for
the simple reason that there is no “defendant” in a grand jury
proceeding. See Impounded, 277 F.3d at 410-11. Moreover, the
policy argument that some courts have cited in applying the 10-
day deadline notwithstanding Rule 4’s text – namely, to avoid
delaying the grand jury investigation – does not apply in this
transcript-disclosure context. For example, appeals in cases
involving motions to quash can delay the investigation because
the witness often will not testify until the appeals process has
run its course. Cf. Company X, 835 F.2d at 238-39. By contrast,
appeals in cases such as this one involving only motions for
disclosure of transcripts – and not also a refusal to testify that
triggers contempt proceedings – do not threaten to significantly
delay the prosecutor and grand jury from continuing their
investigation. Consistent with the text of Rule 4, the case law
from other circuits in analogous areas, and the fact that the
policy arguments applicable to motion-to-quash cases do not
apply in this context, we hold that Rule 4(a)’s 60-day deadline
applies here. The court therefore has jurisdiction to consider the
second employee’s appeal.
 10

III.

With the jurisdictional issues resolved, we turn to the
substantive issue raised by the two witnesses: Does Federal
Rule of Criminal Procedure 6(e)(3)(E)(i) entitle witnesses to
obtain access to the transcripts of their own grand jury
testimony?

At a hearing before the district court, the employees,
through counsel, advised the district court that, before their
reappearances, they sought access to the transcripts of their prior
grand jury testimony in order to avoid the possibility of
inconsistent statements occasioned by the passage of years since
the events in question and many months since their prior grand
jury appearances, to aid counsel in advising them, and
potentially to allow them to take advantage of recantation
pursuant to 18 U.S.C. § 1623. In addition, one of the employees
asserted, based on the prosecutor’s statements to his counsel,
that he was a “subject” and thus his actions were within the
scope of the ongoing investigation. In denying the motions for
disclosure, the district court found, upon applying the standard
for third-party access to grand jury transcripts,3 that neither
employee had shown a particularized and compelling need that
outweighed the interests in maintaining grand jury secrecy.4

3
See Douglas Oil Co., 441 U.S. at 222-23; Pittsburgh Plate
Glass Co. v. United States, 360 U.S. 395, 399-400 (1959); United
States v. Proctor & Gamble Co., 356 U.S. 677, 678-79, 682 (1958).
4
As regards the first employee, the district court stated:

It will always be the case that access to grand jury
transcripts of prior testimony will aid a subject and
his counsel, particularly when being questioned on
more than one occasion over a period of time about
facts surrounding the same or related events. If these
 11

On appeal, the employees contend in their briefs that they
“seek only access to the transcripts of their prior grand jury
testimony.” Appellants’ Br. at 11; see also id. at 43; Reply Br.
at 20. Although their briefs also discuss why they are entitled to
copies of the transcripts, Appellants’ Br. at 23-24, appellants’
counsel expressly conceded during oral argument that if the
employees were granted access to the transcripts, then they

concerns were deemed to outweigh the policy of
grand jury secrecy, the Court would find itself in the
position of ordering disclosure with frequency to any
person called to appear more than once before a
grand jury. The Court also finds merit in the
Government’s argument that releasing grand jury
testimony transcripts to corporate employees
jeopardizes the integrity of the grand jury process by
discouraging employees from testifying fully and
openly for fear of retaliation from corporate
employers.

Mem. Op. May 16, 2006, at 7 (footnote omitted and emphasis added).

As regards the second employee the district court stated:

Having found that in order to compel
disclosure of her prior grand jury transcript Petitioner
must show a particularized need that outweighs the
need for grand jury secrecy, and that Petitioner’s
articulated need to avoid inconsistent statements is
not sufficiently compelling or particularized to
outweigh the need for grand jury secrecy in an active
and ongoing investigation, the Court will deny
Petitioner’s request for an order compelling
production of the transcript of her prior grand jury
testimony.

Mem. Op. May 1, 2006, at 6.
 12

would not need to obtain copies of the transcripts of their prior
grand jury testimony.5 Consequently, if this court holds that the
employee-witnesses were improperly denied an opportunity to
review – to have access to, as distinct from obtaining copies of
– the transcripts of their prior grand jury testimony, then the
court has no occasion to opine further. The employees have
repeatedly made clear that their needs would be fully met
through having access only. We consider this legal question de
novo. See In re Sealed Case, 146 F.3d 881, 883-84 (D.C. Cir.
1998); In re Sealed Case, 121 F.3d 729, 740 (D.C. Cir. 1997);
cf. United States v. Sells Eng’g, Inc., 463 U.S. 418, 427, 442
(1983).

Federal prosecutors use grand juries to assist their
investigations of possible federal crime. See Sells Eng’g, Inc.,
463 U.S. at 423. By employing a grand jury (and only by
employing a grand jury), a federal prosecutor may issue
subpoenas for witnesses and documents, backed up by penalties
of contempt and other potential sanctions for non-compliance.
When using the grand jury, a prosecutor also may question a
witness without the witness’s attorney present – a great tactical
advantage to the prosecutor in obtaining the truth from
recalcitrant witnesses. For those and other reasons, the grand
jury is considered a vital prosecutorial tool for investigation of

5
During oral argument on January, 22, 2007 (Tr. at 14), the
following colloquy occurred:

The Court: Can I ask you one question on the merits,
which is would you be satisfied by a right to
review the transcript as opposed to obtain the
transcript? In other words, the witness is
allowed to go to the offices of the prosecutor
and to review the transcript?

Appellants’ Counsel: Yes, Your Honor.
 13

possible federal crimes.

To help encourage grand jury witnesses to testify honestly
and without fear and thereby assist the investigation’s search for
truth, the other parties in the room for a witness’s testimony –
the prosecutors, the grand jurors, and the court reporters or
transcribers if any – are under an obligation of secrecy with
respect to grand jury proceedings. The witnesses themselves are
not under an obligation of secrecy, however. As Wigmore
explained and as Rule 6 provides, the theory of grand jury
secrecy is that “the witness is guaranteed against compulsory
disclosure; the privilege must therefore be that of the witness,
and rests upon his consent.” 8 JOHN HENRY WIGMORE,
EVIDENCE IN TRIALS AT COMMON LAW § 2362 (McNaughton
rev. 1961) (“WIGMORE”); see also Fed. R. Crim. P. 6(e)(2)(A)-
(B); cf. Fed. R. Crim. P. 6, Advisory Committee Notes, 1944
Adoption, Note to Subdivision (e) (“rule does not impose any
obligation of secrecy on witnesses”).

The grand jury secrecy question has become somewhat
more complex in modern times because, as a result of a rule
change in 1979, the Federal Rules now mandate that grand jury
proceedings be transcribed or taped. See Fed. R. Crim. P.
6(e)(1); 1 BEALE & BRYSON, GRAND JURY LAW AND PRACTICE
§ 4:9 ¶ 2. Government attorneys keep the transcripts and tapes
of grand jury proceedings, and the Government cannot disclose
those transcripts or tapes absent a court order or except in
circumstances expressly specified by Rule 6. See Fed. R. Crim.
P. 6(e)(1), (3)(A)-(E).

On occasion, a third party will request copies of the grand
jury transcripts of another witness’s testimony, often for use in
a separate legal proceeding such as a related civil case. See,
e.g., Douglas Oil Co., 441 U.S. at 213, 216-17. On other
occasions, as here, the witnesses may seek access to the
 14

transcripts of their own testimony. See, e.g., In re Sealed
Motion, 880 F.2d 1367, 1368, 1370-71 (D.C. Cir., Spec. Div.,
1989).

For authorized disclosure of grand jury materials under
Rule 6(e)(3)(E)(i), a threshold requirement is that the disclosure
be “preliminar[y] to or in connection with a judicial
proceeding.” That prerequisite is satisfied in this case; indeed,
the Government does not dispute that the grand jury
investigation is a “judicial proceeding” for these purposes,
which makes sense given that the district court itself convenes
and supervises the grand jury proceedings. Therefore,
disclosure here would be “in connection with a judicial
proceeding.” Cf. In re 1979 Grand Jury Proceedings, 479 F.
Supp. 93, 96 (E.D.N.Y. 1979) (“well settled that a grand jury
hearing is a ‘judicial proceeding’ within the scope of Rule 6(e)”
and therefore Rule 6(e) may “support disclosure ‘in connection
with’ the grand jury’s own proceedings”) (internal quotation
omitted). Alternatively, disclosure here may be considered
“preliminary” to a judicial proceeding – namely, preliminary to
a possible criminal trial – which would similarly give courts
authority to order disclosure in response to first-party requests.
See United States v. Mayes, 670 F.2d 126, 129 (9th Cir. 1982)
(“We need not decide whether a grand jury proceeding is ‘a
judicial proceeding’ under Rule 6(e), as it seems clear that grand
jury proceedings are at least preliminary to a judicial
proceeding.”); 1 BEALE & BRYSON, GRAND JURY LAW AND
PRACTICE § 5:11 ¶ 3 (“[G]rand jury proceedings are generally
‘preliminary to’ criminal court proceedings . . . .”); 2 SUSAN W.
BRENNER & LORI E. SHAW, FEDERAL GRAND JURY: A GUIDE TO
LAW AND PRACTICE § 18:6 (2006) (“It is . . . likely that the
Court would find that a grand jury investigation is ‘preliminar[y]
to’ a judicial proceeding, which would allow disclosure to
proceed under Rule 6(e)(3)(E)(i).”) (alteration in original); cf.
United States v. Baggot, 463 U.S. 476, 477, 479-80 & n.2 (1983)
 15

(criminal prosecution would be judicial proceeding under Rule
6); United States v. Bates, 627 F.2d 349, 351 (D.C. Cir. 1980).

Under either interpretation of “preliminarily to or in
connection with a judicial proceeding,” the bottom line here is
the same: The federal courts have the authority under Rule
6(e)(3)(E)(i) to order disclosure to grand jury witnesses of their
own transcripts. The more difficult question is when courts
should do so.

As to that issue, the text of Rule 6(e)(3)(E)(i) simply
provides that a “court may authorize disclosure – at a time, in a
manner, and subject to any other conditions that it directs – of a
grand-jury matter: (i) preliminarily to or in connection with a
judicial proceeding.” The text does not say whether and when
grand jury witnesses may obtain access to transcripts of their
own grand jury testimony. For that and other reasons, the scope
of Rule 6 is an area “badly in need of comprehensive legislative
attention.” 1 BEALE & BRYSON, GRAND JURY LAW AND
PRACTICE § 5:1 ¶ 4. Until that happens, however, we have no
choice but to decide the legal question before us: Are grand jury
witnesses never entitled to have access to the transcripts of their
prior testimony? Are they always entitled to access to the
transcripts? Are they entitled to access only in certain
circumstances?

Although this court has not addressed the issue, several
courts of appeals have previously considered whether a grand
jury witness can obtain access to the transcript of his or her own
testimony, usually in terms of obtaining transcript copies. The
Ninth Circuit and the former Special Division for the Purpose of
Appointing Independent Counsels held that grand jury witnesses
are entitled in certain circumstances to obtain a copy of their
grand jury transcripts. See In re Sealed Motion, 880 F.2d at
1368, 1370-71; Bursey, 466 F.2d at 1080; see also United States
 16

v. Rose, 215 F.2d 617, 628-30 (3d Cir. 1954), cited in In re
Sealed Motion, 880 F.2d at 1372-73 & n.8. By contrast, a
divided Fourth Circuit panel and the First Circuit held that grand
jury witnesses are not entitled to obtain copies of their
transcripts; two other courts of appeals seem to have reached the
same conclusion. See Bast v. United States, 542 F.2d 893, 894,
896 (4th Cir. 1976) (applying particularized need standard); In
re Bianchi, 542 F.2d 98, 100 (1st Cir. 1976); see also In re
Grand Jury Subpoena, 72 F.3d 271, 273-75 (2d Cir. 1995);
United States v. Scrimgeour, 636 F.2d 1019, 1025 (5th Cir.
1981). In a divided panel decision, the Seventh Circuit held that
grand jury witnesses may not obtain copies of the transcripts of
their own testimony, although that case was later reheard by the
en banc Seventh Circuit, which evenly split on the question. See
United States v. Clavey, 565 F.2d 111, 114-15 (7th Cir. 1977),
vacated and rev’d en banc in part, 578 F.2d 1219 (7th Cir.
1978). On occasion, the courts have considered whether the
witness has alternative means to review the prior testimony.
See, e.g., Bursey, 466 F.2d at 1080 & n.11; Rose, 215 F.2d at
629-30. Otherwise the right to a copy has been examined in
terms of preventing a miscarriage of justice, see, e.g., Rose, 215
F.2d at 629, or fundamental fairness inherent in due process
inasmuch as the prosecutor has access to the transcripts, see,
e.g., Bursey, 466 F.2d at 1079-80; In re Sealed Motion, 880 F.2d
at 1371-73. For their part, several commentators have argued,
without distinguishing between having access and obtaining a
copy, that a witness should be entitled to the grand jury
transcript of the witness’s own testimony in some circumstances
– e.g., after the grand jury process has concluded and the witness
is subpoenaed to testify at trial. See COUNCIL FOR COURT
EXCELLENCE, THE GRAND JURY OF TOMORROW 69-72 (2001);
see also George Edward Dazzo, Opening the Door to the Grand
Jury: Abandoning Secrecy for Secrecy’s Sake, 3 D.C. L. REV.
139, 164-65 (1995) (suggesting a rebuttable presumption
favoring pretrial access by a defendant).
 17

In accord with the open-ended text of Rule 6(e)(3)(E)(i) and
the general analytical approach of the cases from other circuits,
the parties here agree that we must weigh the competing
interests of the Government and grand jury witnesses. That
approach is consistent, moreover, with the way that the Supreme
Court has weighed the competing interests for and against
disclosure when assessing third-party requests for the secret
transcripts of the testimony of other witnesses. See Sells Eng’g,
Inc., 463 U.S. at 442-44; Douglas Oil Co., 441 U.S. at 221-23.

We begin with the interests of grand jury witnesses. Grand
jury witnesses obviously want to ensure that the transcripts of
their testimony accurately convey their recollections. A grand
jury witness is typically nervous and may make mistakes in
testimony, without always realizing it at the time (and especially
without an attorney present in the grand jury to help identify
inadvertent errors). Grand jury witnesses often are asked
numerous questions about specific names, dates, places,
meetings, conversations, and the like. In their search for the
truth, prosecutors tend to fire the questions rapidly and
aggressively, and sometimes ask variations of the same question
repeatedly. See Bursey, 466 F.2d at 1079; 1 BEALE & BRYSON,
GRAND JURY LAW AND PRACTICE § 5:5 ¶ 3. It therefore is not
uncommon for a witness to testify honestly but inaccurately on
certain points. See Bursey, 466 F.2d at 1079. It also is not
uncommon for a witness to intentionally provide false
testimony, but that does not affect our point as to the interests of
honest witnesses. If a witness’s testimony includes inaccuracies
or inconsistencies, the Government might use those inaccuracies
or inconsistencies against the witness – for example, either
during the witness’s reappearance before the grand jury or in a
prosecution of the witness or someone else. See, e.g., 18 U.S.C.
§ 1623(a) (inconsistent statements as basis for perjury
conviction). Witnesses therefore have a great interest in
ensuring that their recollections are accurately reflected in the
 18

transcripts. A witness’s general interest in reviewing the
transcript is strongly reinforced by federal law, which expressly
allows witnesses to timely recant prior grand jury testimony
without legal penalty. See id. § 1623(d). A witness would have
difficulty taking full advantage of the statutory recantation
provision, however, without obtaining prompt access to
transcripts of their own testimony. In cases where the witness
may testify again in the same investigation, as here, the witness
has an additional reason to review the transcript of the prior
testimony: to help prepare for the upcoming testimony. See
Bursey, 466 F.2d at 1079. That last interest is no longer
implicated in this particular case because the two employees
have apparently completed their grand jury testimony.

On the other side of the ledger, the Government advances
two basic rationales for denying witnesses access to their own
transcripts: maintaining grand jury secrecy and preventing
witness intimidation.

Grand jury secrecy rules prevent the public or others from
learning what a grand jury witness said to the grand jury. The
guarantee of secrecy thus encourages witnesses to testify
candidly. But the secrecy rationale does not apply when a
witness seeks access to a transcript of his or her own grand jury
testimony. Indeed, it seems illogical to cite grand jury secrecy
as the basis for denying a witness’s access to the transcript of his
prior grand jury testimony. Preventing a third party from
reviewing a witness’s grand jury testimony is essential to
guarantee secrecy to witnesses; preventing the witness from
reviewing the witness’s own testimony is entirely unnecessary
to guarantee secrecy to witnesses. See In re Sealed Motion, 880
F.2d at 1368, 1370-72 & n.6 (“[G]overnment’s interest in
nondisclosure was a non sequitur when a grand jury witness
moves for a copy of his own testimony because the right to
secrecy in a grand jury proceeding belongs to the grand jury
 19

witness and the witness is already cognizant of his
testimony . . . .”) (internal citation omitted); see also Rose, 215
F.2d at 628-30 (disclosure to witness who testified “would not
subvert any of the reasons traditionally given for the
inviolability of Grand Jury proceedings”); Clavey, 565 F.2d at
121 (Swygert, J., dissenting) (“A review of the reasons
traditionally advanced for justifying the veil of secrecy upon
grand juries shows that none dictates that a witness should be
denied a copy of his own testimony.”); Bast, 542 F.2d at 898
(Wyzanski, J., dissenting) (any dangers that generally justify
grand jury secrecy do not apply to witness’s request to access
transcript of his grand jury testimony). For this reason, the
Supreme Court’s “particularized need” standard, which the
Court crafted to deal with third-party requests for secret
transcripts of other witnesses’ testimony, does not apply in this
first-party context. See In re Sealed Motion, 880 F.2d at 1370-
73 & n.6; see also, e.g., Sells Eng’g, Inc., 463 U.S. at 420, 443-
44; Douglas Oil Co., 441 U.S. at 216-17, 222-23; Pittsburgh
Plate Glass Co. v. United States, 360 U.S. 395, 396, 399-400
(1959); United States v. Procter & Gamble Co., 356 U.S. 677,
678-79, 682 (1958).

To be sure, the Government is concerned about grand jury
witnesses (or their attorneys) who disclose information to other
grand jury witnesses (or their attorneys) with the purpose of
obstructing the criminal investigation. The Government
identifies joint defense agreements among attorneys as a threat
to the integrity of the grand jury process. But denying witnesses
access to their own transcripts to help prevent witnesses from
talking to others makes little sense to begin with – and makes
even less sense given that grand jury witnesses are under no
legal obligation of secrecy. A grand jury witness is legally free
to tell, for example, his or her attorney, family, friends,
associates, reporters, or bloggers what happened in the grand
jury. For that matter, the witness can stand on the courthouse
 20

steps and tell the public everything the witness was asked and
answered. See Fed. R. Crim. P. 6(e)(2)(A)-(B); Fed. R. Crim. P.
6, Advisory Committee Notes, 1944 Adoption, Note to
Subdivision (e) (“rule does not impose any obligation of secrecy
on witnesses”). The secrecy rules therefore are no justification
for denying witnesses access to their own transcripts.

The Government also expresses concern about witness
intimidation. Here, the Government is on firmer ground. We of
course agree with the Government that witness intimidation (and
the fear of it) remains a serious problem in our criminal justice
system. See Illinois v. Abbott & Assocs., 460 U.S. 557, 566-67
n.11 (1983); 1 BEALE & BRYSON, GRAND JURY LAW AND
PRACTICE § 5:12 ¶ 7. And if a witness could routinely obtain a
copy of the grand jury transcript, the Government theorizes that
an interested party could in turn pressure the witness to obtain
the transcript and to give it to that third party. See United States
v. John Doe, Inc. I, 481 U.S. 102, 125 (1987) (Brennan, J.,
dissenting) (“[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.”) (internal quotation omitted) (emphasis altered); In
re Alvarez, 351 F. Supp. 1089, 1090-91 (S.D. Cal. 1972). The
Government further suggests that the witness’s fear of being
forced to disclose the transcript to a threatening third party could
deter witnesses from testifying freely and candidly in the first
place.

Regardless of whether the possibility of witness
intimidation would justify denying copies of transcripts, an issue
we need not decide, the Government’s witness intimidation
argument lacks force with respect to a witness’s merely
reviewing the transcript in private at the U.S. Attorney’s office
or a place agreed to by the parties or designated by the district
court. Grand jury witnesses are not substantially more likely to
 21

face pressure to divulge information about their grand jury
testimony if they can review their transcript in private than if
they have to recall their testimony from memory. To take a
simplistic example, if an individual tracks down a grand jury
witness and asks, “Did you dime me out to the grand jury?” the
witness’s answer – some variation of yes, no, I’m not talking
about it, or my lawyer told me not to talk about it – is not
realistically affected by whether the witness can review the
transcript at a secure location. The Government’s compelling
interest in preventing witness intimidation therefore does not
support denying the witness the opportunity to review the
transcript of his prior grand jury testimony.

In sum, grand jury witnesses have a strong interest in
reviewing the transcripts of their own grand jury testimony. The
Government has little good reason to prevent witnesses from
reviewing their transcripts. Weighing the interests of witnesses
and the Government, we therefore hold that the grand jury
witnesses are entitled under Rule 6(e)(3)(E)(i) to review
transcripts of their own grand jury testimony in private at the
U.S. Attorney’s Office or a place agreed to by the parties or
designated by the district court. We leave to the sound
discretion of the district court whether to permit the witnesses’
attorneys to accompany the witnesses as they review their
transcripts and whether to allow the witnesses or their attorneys
to take notes. Because our holding on the right of access affords
the employees complete relief, we need not and do not resolve
the issue of whether witnesses also have a right to obtain a copy
of the transcripts of their prior testimony, leaving that issue for
another day. Accordingly, because the district court erred in
applying the third-party standard, supra note 3, we reverse the
orders denying the employees’ motions for disclosure of the
transcripts of their prior grand jury testimony to the extent that
they were denied access.