United States Court of Appeals
For the First Circuit
Nos. 04-1808, 04-1809, 04-1810
IN RE: GRAND JURY PROCEEDINGS.
__________
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS FROM ORDERS COMPELLING WITNESS
TESTIMONY BEFORE A GRAND JURY AND PROHIBITING THE WITNESS FROM
COMMUNICATING WITH THE APPELLANTS OR APPELLANTS’ COUNSEL
Before
Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.
[[ ]]*
July 8, 2005
*
This is a redacted version of the original decision filed
under seal on April 26, 2005. The redactions in this published
version, indicated by double brackets, are intended to make public
the court's legal rulings while protecting grand jury secrecy and
related interests. See, e.g., In re Grand Jury Subpoena, Judith
Miller, 397 F.3d 964, 1002 (D.C. Cir. 2005); In re Lindsey, 148
F.3d 1100 (D.C. Cir. 1998).
BOUDIN, Chief Judge. This case presents important
questions involving grand jury operations and the attorney-client
privilege. Because the grand jury investigation is ongoing, our
discussion omits a certain amount of detail and by a separate order
the decision is being sealed. However, the court anticipates that
an expurgated version of the opinion or summary of the key legal
rulings will be published in due course.
Background. In the course of a grand jury investigation
in [[ ]], a lawyer (Lawyer I) directed his client ("Client A")
to commit perjury in testifying before the grand jury, after
initially advising him to tell the truth. The same lawyer has also
represented another client ("Client B") who might or might not have
some connection with the earlier perjury. In [[ ]], Lawyer I
told Client A to recant the false testimony. Lawyer I did so after
consulting with Lawyer II, who represented [[ ]] other clients
(collectively "Group C") variously connected with Client B and with
pertinent events.
Learning of the perjury, the government is now
investigating the possible involvement of others with that perjury
and with other possible crimes. The present grand jury summoned
Lawyer I, and the prosecutor sought to question him about the prior
perjury of Client A including the involvement of others with that
perjury and its subornation. Lawyer I refused to answer a number
of these questions, saying that answering them would invade Client
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B's attorney-client privilege and the joint-defense privilege
enjoyed by the Group C clients.
That questions to Lawyer I might invade the privilege of
Client B is clear but the Group C clients are not represented by
Lawyer I but by Lawyer II who practices independently. However, it
was Lawyer I's position, not contested by the government at this
stage, that the two lawyers at the relevant times had a joint-
defense arrangement which allowed them, without waiving the
attorney-client privilege, to exchange confidences that their
respective clients may have confided to them separately.
Eventually the government moved to compel Lawyer I to
answer the disputed questions, arguing that the crime-fraud
exception defeated the claim of privilege as to both Client B and
the Group C clients. Upon Lawyer I’s request, the court notified
Client B’s current counsel--unaffiliated with Lawyer I--and counsel
for each of the Group C clients; [[ ]].
At the government’s behest, the district court also
directed Lawyer I not to reveal to anyone (other than his own
counsel) the “substance of the government’s motion to compel”--an
order the government thought essential to protect against the risk
that Lawyer I might affect or influence other potential grand jury
witnesses. Client B objected that under Fed. R. Crim. P.
6(e)(2)(A), Lawyer I could not be barred from disclosing to Client
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B or anyone else what he (Lawyer I) learned as a grand jury witness
or elsewhere.
Current counsel for two [[ ]] Group C clients
also objected to the motion to compel. Lawyer II provided an
affidavit describing his representation of the Group C clients; in
addition to other details about his consultations with Lawyer I, he
said that incident to their joint defense arrangement he had
disclosed to Lawyer I confidential information received from at
least one of the Group C clients.
The district court held several hearings and heard
arguments as to whether or not the privilege was abrogated. The
government also made two ex parte filings whose contents were not
made known to opposing counsel; a redacted version of one of the
filings was, however, supplied to opposing counsel. Such ex parte
submissions, although surprising to those unacquainted with the
practice, have precedent in certain contexts including grand jury
matters and privilege claims. See In re Grand Jury Proceedings
(Violette), 183 F.3d 71, 79 (1st Cir. 1999).
The court also considered the government’s request that
it engage in a limited type of in camera inquiry suggested as a
possibility by the Supreme Court in United States v. Zolin, 491
U.S. 554 (1989). In such an inquiry the judge may examine
privileged material itself to determine whether it is or remains
privileged. The district judge expressed reservations about his
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capacity, given the complexities of the background events, to
conduct such a limited inquiry which would involve the judge in
questioning Lawyer I and not merely reviewing documents. In the
end, the government chose to rest on what it already adduced and
abandoned its request for an in camera inquiry under Zolin.
Thereafter, in March 2004, the district court granted the
government's motion to compel answers to the government's listed
questions. Requests by Client B and one of the Group C clients to
allow their lawyers to interview Lawyer I about the underlying
events were denied. The objecting clients then sought access to
all of the filings made so far in the district court, including the
government's ex parte filings. This too was denied in October 2004
when the district court issued a memorandum explaining its
decisions in more detail.
In the October 2004 memorandum, the district judge
explained his reasons for concluding that the crime-fraud exception
applied. The judge said he was satisfied that the government had
made a "prima facie showing" not only of Lawyer I's corruption but
also, [[ ]], of
a shared intent by the Clients--when making
the communications the government seeks to
discover--to use otherwise privileged
attorney-client communications to facilitate
corruption and frustration of the grand jury
inquiry.
The district judge stressed that he was not finding that any of the
clients had in fact corruptly communicated with counsel. He only
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found enough of a likelihood had been established to justify
compelling Lawyer I's answers--albeit "limited only to those lines
of inquiry" identified by the government.
The district court expressed discomfort with the
government's bypassing of the Zolin in camera inquiry, warning that
this might result in a remand. The court also explained its
reasons for concluding that the court had authority to forbid
Lawyer I from disclosing to anyone, including Lawyer II and to
Client B and the Group C clients, what he had been asked in the
grand jury or other information pertaining to “the subject matter”
of the grand jury inquiry.
On this appeal, Client B and the Group C clients, as the
alleged privilege holders, have attacked the prima facie standard
adopted by the district court and, in the alternative, argued that
even this allegedly too lenient standard has not been met. Client
B also urges that the government and district court were obliged to
follow the Zolin in camera procedure. Finally, the clients say
that the non-disclosure order to Lawyer I was barred by Fed R.
Crim. P. 6(e)(2) and that it was overly broad as well.
The customary standard of review in cases of privilege is
that strictly legal questions are reviewed de novo, raw fact
findings are reviewed for clear error, and the application of legal
standards to specific facts with a measure of deference. See
Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002);
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United States v. Mass. Inst. of Tech., 129 F.3d 681, 683 (1st Cir.
1997).1 We begin with the privilege question, which involves both
law and law-application issues, and then return to the Rule 6 issue
which presents solely a question of law.
Privilege. Familiarly, the attorney-client privilege--
somewhat simplified--is a privilege of a client to refuse to
testify or to have his counsel testify as to confidential
communications between the two made in connection with the
rendering of legal representation, see Cavallaro, 284 F.3d at 245;
see also Fisher v. United States, 425 U.S. 391, 403 (1976); 8
Wigmore, Evidence § 2292 (McNaughton rev. 1961). It extends as
well to communications made within the framework of a joint defense
arrangement. In re Grand Jury Subpoena, 274 F.3d 563, 572 (1st
Cir. 2001); United States v. Bay State Ambulance and Hosp. Rental
Serv., Inc., 874 F.2d 20, 28 (1st Cir. 1989).
The crime-fraud exception–-one of several qualifications
to the attorney-client privilege–-withdraws protection where the
client sought or employed legal representation in order to commit
or facilitate a crime or fraud. Specifically, courts have required
the privilege challenger to present evidence: “(1) that the client
1
The decisions, e.g., Violette, sometimes say that privilege
determinations are reviewed for abuse of discretion, but this is
the "umbrella" usage of the phrase by which, for example, an
abstract error of law–-certainly not reviewed deferentially–-is
described as one kind of abuse of discretion. E.g., Cooter & Gell
v. Hartmark Corp., 496 U.S. 384, 402 (1990).
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was engag[ed] in (or was planning) criminal or fraudulent activity
when the attorney-client communications took place; and (2) that
the communications were intended by the client to facilitate or
conceal the criminal or fraudulent activity.” Violette, 183 F.3d
at 75.2
Like the privilege itself, the exception, where employed
in a federal criminal case, is effectively a creature of federal
common law. See Fed. R. Evid. 501. This means that federal judges
start with a core of common precedent reflecting the privilege but
also have power to refine and adjust both the substance and
procedure in light of reason and experience. See Zolin, 491 U.S.
at 562-63; Violette, 183 F.3d at 77-78. The process of development
is far from over.
It is often hard to determine whether the attorney-client
relationship has been misused by the client for crime or fraud
without seeing the document, or hearing the testimony, as to which
the privilege is claimed. To overcome this problem (as well as
other privilege problems) judges have sometimes been willing to
review privileged materials by themselves in camera and then decide
whether the other side is entitled to it. See, e.g., United
States v. Jacobs, 117 F.3d 82, 87 (2d Cir. 1997). The Supreme
Court has blessed this procedure in Zolin. 491 U.S. at 572; see
2
See generally United States v. Reeder, 170 F.3d 93, 106 (1st
Cir.), cert. denied 528 U.S. 872 (1999); United States v. Rakes,
136 F.3d 1, 4 (1st Cir. 1998).
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also Edgar v. United States, 82 F.3d 499, 509 (1st Cir.), cert.
denied 519 U.S. 870 (1996).
Zolin also said that a “lesser evidentiary showing” is
needed for in camera review than is needed finally to pierce the
privilege, and that upon this showing whether to conduct in camera
review is within the trial court’s discretion. 491 U.S. at 572.3
For such a review, all that was needed was a factual basis “to
support a good-faith belief by a reasonable person” that “in camera
review of the materials may reveal evidence to establish the claim
that the crime-fraud exception applies." Id. (internal quotation
mark omitted). "May" is a very relaxed test and, as only the judge
gets this initial access, properly so.
However, Zolin did not answer the question of what level
of proof is needed to pierce the privilege itself, 491 U.S. at 563,
although it acknowledged that the statement in Clark v. United
States, 289 U.S. 1, 14 (1933), that a “prima facie case” was the
needed showing “has caused some confusion.” Zolin, 491 U.S. at 563
n.7. In our own case, the district court found a prima facie
showing had been established, but cautiously did not further
explain what this meant. We share its caution but are obliged to
attempt refinement.
3
Despite Zolin’s mention of discretion, conceivably on some
facts a district court might abuse its discretion by declining to
conduct an in camera review prior to piercing the privilege. But
a categorical rule would be unwise and Client B has not argued for
one.
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"Prima facie" is among the most rubbery of all legal
phrases; it usually means little more than a showing of whatever is
required to permit some inferential leap sufficient to reach a
particular outcome. Black’s Law Dictionary 1228 (8th ed. 2004);
e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Here, the outcome is piercing the privilege based on a certain
level of proof. This circuit has previously avoided a calibration
of that level, Violette, 183 F.3d at 78, as has the Supreme Court,
Zolin, 491 U.S. at 563, but it is important in this case as to one
client.
As we read the consensus of precedent in the circuits, it
is enough to overcome the privilege that there is a reasonable
basis to believe that the lawyer's services were used by the client
to foster a crime or fraud.4 The circuits--although divided on
articulation and on some important practical details--all
effectively allow piercing of the privilege on something less than
a mathematical (more likely than not) probability that the client
intended to use the attorney in furtherance of a crime or fraud.
4
A "probable" or "reasonable" cause standard is used in the
Second, Sixth and Ninth Circuits. Jacobs, 117 F.3d at 87; In re
Grand Jury Proceedings, 87 F.3d 377, 381 (9th Cir.), cert. denied
519 U.S. 945 (1996); In re Antitrust Grand Jury, 805 F.2d 155, 165-
66 (6th Cir. 1986). The Third Circuit requires "evidence which, if
believed by the fact-finder, would be sufficient to support a
finding that the elements of the crime-fraud exception were met,”
Haines v. Liggett Group Inc., 975 F.2d 81, 95-96 (3d Cir. 1992);
accord, In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985). The
Third and D.C. Circuits have described their standard as similar to
“probable cause.” Haines, 975 F.2d at 95; In re Sealed Case, 754
F.2d at 399 n.3.
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This is a compromise based on policy but so is the existence and
measure of the privilege itself.
Precisely because of the initial barrier of the
privilege, it is very hard for an adversary unaided to show that
the privileged communications were themselves corrupt, so the
requirements for access cannot be set too high. And, if the
communications were innocent, the initial look may often not damage
the client. In all events, the reasonable cause standard is
intended to be reasonably demanding; neither speculation nor
evidence that shows only a distant likelihood of corruption is
enough.
In addition, the privilege is not lost solely because the
client’s lawyer is corrupt–-as was certainly true in this case
since the lawyer suborned Client A’s perjury. The crime-fraud
exception requires the client’s engagement in criminal or
fraudulent activity and the client’s intent with respect to
attorney-client communications. Violette, 183 F.3d at 75, 79.
Accord, In re Grand Jury Subpoenas, 144 F.3d 653, 660 (10th Cir.),
cert. denied 525 U.S. 966 (1998); In re Sealed Case, 107 F.3d 46,
49 (D.C. Cir. 1997). If there are contrary views,5 we do not think
that they comport with the modern view of the privilege’s nature
5
In re Impounded Case (Law Firm), 879 F.2d. 1211, 1213-14 (3d
Cir. 1989), cited by the government, says that the crime-fraud
exception may apply even where “pertinent alleged criminality is
solely that of the law firm,” but it is unclear in the context of
that case whether the court intended that this showing would
forfeit the privilege of an innocent client.
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and purpose as explained in Upjohn v. United States, 449 U.S. 383,
389 (1981).
An additional limitation on piercing is that it is not
enough to find reasonable cause to believe that the client is
guilty of crime or fraud. Forfeiture of the privilege requires the
client's use or aim to use the lawyer to foster the crime or the
fraud. As Rakes explained:
No general rule withdraws the privilege from
communications that occur in the same time
frame as criminal [conduct]. . . . [T]he
attorney-client privilege is forfeited inter
alia where the client sought the services of
the lawyer to enable or aid the client to
commit what the client knew or reasonably
should have known to be a crime or fraud.
136 F.3d at 4.
Here, we are satisfied that the reasonable cause standard
is satisfied as to Client B. [[ ]]
Our assessment, like that of the district judge, is
preliminary, reflects no finding that Client B acted wrongfully,
and is limited solely to the issue whether there is reasonable
cause adequate to pierce Client B’s privilege. The compelled
testimony of Lawyer I (or other evidence) could turn out to
vindicate Client B entirely and inculpate someone (or no one) else.
The prima facie case is sometimes assumed to destroy the privilege
once and for all once the opponent gains access to the material
(which is one reason for the Zolin procedure). We think that there
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may well be room for protective remedies if the privilege is
initially pierced but this turns out to have been in error.
It should be noted, finally, that the district court’s
initial proposal to examine Lawyer I in camera was not a finding
that the government had met only the lower threshold under Zolin
and therefore could only proceed to issue its motion to compel
after acquiring additional inculpatory evidence obtained in camera.
In its October 2004 decision, the district court made quite clear
that the government had fully met its prima facie burden needed to
overcome Client B’s privilege, and it is this conclusion that we
affirm.
The more difficult problem concerns the Group C clients.
There is scant evidence that these clients' purpose in retaining
Lawyer II was to use his services in furtherance of a crime or
fraud. True, the district judge made a finding (quoted above) of
a “shared intent” to “use otherwise privileged attorney-client
communications to facilitate corruption and frustration of the
grand jury inquiry.” But his decision points to no facts to
buttress this finding, nor--more ominously since the government
certainly should know--is any such raw-fact evidence identified in
the government’s briefs.
It is not enough that the lawyer’s work posed an obstacle
to the grand jury; perfectly legitimate representation may do this.
[[ ]] To pierce the privilege requires that the
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clients have an intent to misuse their legal representation (e.g.,
by enlisting the lawyer’s advice to frame their perjury) to
perpetrate the crime or fraud. Violette, 183 F.3d at 75. Such
evidence may exist as to Group C but it has not yet been furnished.
The government relies upon In re Sealed Case, 754 F.2d at
399-402, where a client’s document destruction incident to
litigation was treated as undercutting the privilege of
communications between it and its lawyers in that litigation. But
there, the attorneys represented the client in the very litigation
for which evidence had been destroyed, and in hearings in which the
client sought to prevent exposure of the destruction, in the course
of which they filed false documents and verified their
authenticity. Id. at 400, 402. The lawyers were thus justifiably
characterized as “instrumentalities in the ongoing cover-up.” Id.
at 402. In this case, no such misuse of Lawyer II is shown.
Now that Client B’s privilege has been pierced, some of
what the government seeks can conceivably be obtained by questions
directed to Lawyer I tailored to avoid disclosures that would
invade Group C’s privilege; arguably Lawyer I-Client B
conversations can be reached regardless of what information Lawyer
I passed on to the Group C clients. How far Lawyer I may be
questioned about the source of the information--if it came from
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Lawyer II or the Group C clients--may be more debatable. Other
difficult questions may also arise.6
The government also remains free to ask the district
court to make an in camera inquiry under Zolin directed to
overcoming the Group C clients’ privilege. The government
abandoned this quest when it apparently judged that the district
court might side with it anyway. Nothing prevents the prosecutor
from pursuing this route, either before or after further
questioning of Lawyer I, if the district judge is willing to follow
it. It is for the district court to say whether the low Zolin
standard would warrant in camera questioning of the Group C
clients.
The non-disclosure order. When in December 2003 the
district court gave notice of the government's motion to compel, it
included a protective order directing Lawyer I and his counsel that
“the substance” of the motion to compel should not be further
disclosed or discussed with any third parties (including Client B,
Client B’s current attorney, Lawyer II or the Group C clients). In
its October 2004 memorandum, the district court added that it would
continue prohibiting Lawyer I “from discussing the subject matter
6
An example is the extent to which–-once Client B’s privilege
is pierced–-Lawyer I may be made to testify about whether he
conveyed these clients’ information to Lawyer II. See, e.g., In re
Grand Jury Subpoena, 274 F.3d 563, 572 (1st Cir. 2001) (“Even when
[the joint-defense privilege] applies, however, a party always
remains free to disclose his own communications.”); United States
v. Agnello, 135 F. Supp. 2d 380, 383 (E.D.N.Y. 2001) (same).
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of his grand jury [testimony] with anyone other than his own
counsel.”
Together, Client B and the Group C clients urge that the
order is inconsistent with Rule 6(e), is in any event over-broad,
and violates the First Amendment. Client B, in particular,
complains that Lawyer I’s counsel interpreted the order to extend
beyond “matter[s] occurring before the grand jury” to preclude
Lawyer I from discussing not only what he was asked but also his
recollection of the underlying events in which Lawyer I was
involved. These include Lawyer I's original subornation and his
later turn-about advice that Client A recant.
These past events are matters assuredly of interest to
Client B, given government suspicions of him. Moreover, as Lawyer
I represented Client B at the time of the subornation, the latter
certainly has special reason to want to know what his erstwhile
lawyer recalls about those events.7 In the district court, Client
B unsuccessfully sought to clarify and narrow the order and he now
says that the district court has implicitly confirmed Lawyer I’s
counsel’s reading. Whether or not the district court so intended,
the government does not dispute that the protective order is
intended to have this breadth.
7
The government has not contested standing and quite arguably
these interests are enough to give Client B standing to challenge
the existence and scope of the secrecy order. But cf. In re
Swearingen Aviation Corp., 605 F.2d 125, 126-27 (4th Cir. 1979)
(rejecting challenge to secrecy order by non-witnesses on grounds
that secrecy was meant to benefit witnesses).
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There are several layers of argument to be peeled away.
The first is the clients' claim that Rule 6(e) by itself bars the
imposition of any secrecy order on Lawyer I. Fed. R. Crim. P.
6(e)(2)(B) lists categories of persons (e.g., grand jurors and
court reporters) who "must not disclose a matter occurring before
the grand jury," subject to certain exceptions in subsection
6(e)(3). But 6(e)(2)(B) is preceded by subsection 6(e)(2)(A) which
provides: "No obligation of secrecy may be imposed on any person
except in accordance with Rule 6(e)(2)(B)."
Witnesses are not listed in Rule 6(e)(2)(B), nor does
Lawyer I fall into any of the listed categories of persons who
"must not" disclose grand jury matters. Pertinently the original
advisory committee note says that "[t]he rule does not impose any
obligation of secrecy on witnesses" and, although some districts
did so prior to the rule, a "seal of secrecy on witnesses seems an
unnecessary hardship and may lead to injustice if a witness is not
permitted to make a disclosure to counsel or to an associate."
Rule 6 Advisory Committee Notes, 1944 Note to Subdivision (e).
At first blush this appears to be a strong argument for
the appellants, but several courts have read the rule more
narrowly.8 These decisions take Rule 6(e)(2)(A) to set a default
8
E.g., In re Subpoena To Testify Before Grand Jury Directed to
Custodian of Records, 864 F.2d 1559, 1563-64 (11th Cir. 1989); In
re Grand Jury Subpoena Duces Tecum, 797 F.2d 676, 680 (8th Cir.),
cert. dismissed 479 U.S. 1013 (1986). But see United States v.
Radetsky, 535 F.2d 556, 569 (10th Cir.), cert. denied 429 U.S. 820
(1976), overruled in part on other grounds by United States v.
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rule of permitting disclosure by witnesses absent a contrary order
by the court in that proceeding, but also to leave open the
possibility of restrictions where they can be justified by
particular and compelling circumstances. See In re Grand Jury
Proceedings, 814 F.2d 61, 69 (1st Cir. 1987) (collecting cases but
not deciding the issue).
We now decide that the rule’s phrasing can, and should,
accommodate rare exceptions premised on inherent judicial power.
Absent restriction, courts have inherent power, subject to the
Constitution and federal statutes, to impose secrecy orders
incident to matters occurring before them. The general power is
regularly expressed in orders limiting access to discovery
materials, closing sensitive proceedings, and in other contexts.
Sometimes these powers are reflected in or reconfirmed by rules,
e.g., Fed. R. Civ. P. 26(c), but orders of this kind predated such
rules which ordinarily reflect or refine the underlying authority
without displacing it.9
Daily, 921 F.2d 994, 1004 & n.11 (10th Cir. 1990).
9
See Chambers v. NASCO, Inc., 501 U.S. 32, 42-50 (1991)
(sanctions rules do not displace courts’ inherent authority);
United States v. Aisenberg, 358 F.3d 1327, 1347 (11th Cir.), cert.
denied 125 S. Ct. 276 (2004) (“Although Rule 6(e)(3) enumerates the
exceptions to the traditional rule of grand jury secrecy . . . the
district courts have inherent power beyond the literal wording of
Rule 6(e)(3) to disclose grand jury material . . . .”); Matter of
Special March 1981 Grand Jury, 753 F.2d 575, 577 (7th Cir. 1985)
(court has inherent power to cure improvident disclosure).
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Those who drafted and approved Rule 6(e) seemingly
intended to do no more than abolish a general practice existing in
some districts of automatically silencing grand jury witnesses as
to their testimony. The advisory note says that the rule “does not
impose” secrecy obligations and does not say that it prohibits such
obligations made by appropriate order. There is no indication in
the history of an intent to cut off the courts’ power to restrict
disclosure based on extraordinary circumstances. Cf. Aisenberg,
358 F.3d at 1347.
In this case, we are not dealing with an ordinary grand
jury witness. Lawyer I confessedly suborned perjury of a witness
in a related grand jury proceeding and is connected to certain
underlying events that may have comprised an effort to frustrate a
grand jury investigation. Further, disclosure of what is now
happening in the present grand jury could help Client B (whose own
privilege has been pierced under the crime-fraud exception) and the
Group C clients [[ ]] coordinate their own testimony.
Rule 6(e)(2)(A) was not directed to such a situation nor
does the First Amendment bar an appropriately tailored order. The
interest in the secrecy of grand jury proceedings during their
pendency has been treated with great respect by the courts.10 The
10
See, e.g., In re Grand Jury Subpoena, 223 F.3d 213, 218-19
(3d Cir. 2000); In re Subpoena To Testify, 864 F.2d at 1564; see
also 2 Beale et al., Grand Jury Law and Practice § 9:19 (2d ed.
1997).
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present ban is concerned with protecting an ongoing grand jury
investigation from further abuse by one who has already
demonstrated a capacity and intention to frustrate the
investigation. The restriction as to only one witness is planted
in an adequate showing of special need.
Our circumstances are far away from the only Supreme
Court case invoked by appellants. In Butterworth v. Smith, 494
U.S. 624, 635-36 (1990), the Supreme Court struck down a Florida
statute precluding a state grand jury witness from ever disclosing
his grand jury testimony. But the grand jury proceeding had long
been completed and it was the permanency of the ban that most
troubled the Supreme Court. Id. at 632, 635-36. Lawyer I or
Client B may return to the district court to request a termination
of the ban whenever the need for it has disappeared.
This takes us to appellants’ claim that the ban, if
sustainable at all, is overly broad. The ban appears to cover two
different although related subjects. One is disclosure by Lawyer
I of whatever happens within the grand jury--questions he has been
asked or may be asked, answers he has given or may give, documents
he may provide or be shown, and the like. The other is his own
independent recollection of events about which he may or may not be
asked including discussions or interactions with Clients A and B.
The former are, strictly speaking, "matter[s] occurring
before a grand jury" and their revelation poses the most direct
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threat that the government's hand may be disclosed to other
witnesses, enabling them to alter their own answers or coordinate
evasions. Such revelations are already prohibited for most of
those connected with the grand jury, and extension of this
limitation to Lawyer I, based on the special circumstances of this
case, is justified.
It is more difficult to sustain a ban on Lawyer I's
discussion with his own former client, or with others, about Lawyer
I's independent recollection of previous events outside the grand
jury even though they may be matters about which the grand jury has
questioned or will question him. In particular, Client B has a
clear interest in preserving the opportunity to find out what his
former lawyer recollects about Client B's own involvement and the
interaction. Nor does such a discussion, if honestly conducted,
reveal the grand jury's plan of attack.
Of course, any discussion between Lawyer I and anyone
else of interest to the grand jury presents an opportunity to
conspire and tailor stories. But that opportunity exists in any
event; Lawyer I has not been precluded from all contact with his
own former clients or lawyers for Group C clients. Nor do we
normally prevent indicted co-conspirators from discussing their
cases with one another even though in some cases the prospect that
they will tailor their stories is very real.
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The district judge has adopted the broad construction of
his order, if at all, by indirection, and has never provided an
explicit grounding for extending the order beyond revelation of the
proceedings before the grand jury. The original notice barred
disclosure by Lawyer I only of “the substance of the government’s
motion to compel”; and the October memorandum ambiguously
prohibited discussion of “the subject matter of [Lawyer I’s] grand
jury [omitted word--presumably “testimony”] with anyone.”
We do not say that a witness could never be precluded
from discussing independent recollections; situations involving
national security are too obvious a concern to encourage general
pronouncements. Instead, finding the ban unclear in scope but
lacking clear justification for the broader reading, we modify the
present restriction to cover only (in addition to the substance of
the government's sealed motion) "matters occurring before the grand
jury" and not independent recollections of the witness about
external prior events as to which the witness has been or may be
questioned.
There is one further caveat. It is difficult to foresee
how events may develop and we are sensitive to the fact that Client
B and to a lesser extent the Group C clients seemingly had a
protected relationship with Lawyer I. Our modified affirmance of
the order limiting disclosure by Lawyer I rests on the
understanding that Lawyer I, Client B and the Group C clients
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remain free at any time to seek relief from the district court for
good cause shown so as to permit Lawyer I to disclose some or all
of his grand jury testimony to Client B, the Group C clients or
both.
Accordingly, the district court's order granting the
motion to compel is affirmed as to Client B’s privilege but vacated
as to the Group C clients’ privilege (without prejudice to a
further showing by the government with respect to them). The order
limiting disclosure is modified, and as modified affirmed, to apply
only to the proceedings before the district court on the motion to
compel and to "matters occurring before the grand jury" as that
phrase is customarily employed and as discussed above. No costs.
It is so ordered.
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