Grand Jury - Generally

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

Braswell v. United States, 487 U.S. 99 (1988)

A federal grand jury issued a subpoena to petitioner as the president of two corporations requiring him to produce the corporations’ records. There was no requirement that the petitioner testify. The Supreme Court holds that the custodian of corporate records may not resist a subpoena for such records on the ground that the act of production will incriminate him in violation of the Fifth Amendment. Had the defendant conducted his business as a sole proprietorship, under United States v. Doe, he could rely on the “act of production” privilege. However, as the president of a corporation, he may not.

United States v. Williams, 504 U.S. 36 (1992)

The government is under no obligation to introduce exculpatory evidence to the grand jury – not even if the evidence substantially negates the defendant’s guilt.

Kilpatrick v. United States, 487 U.S. 250 (1988)

On the basis of various irregularities and misconduct at the grand jury, the district court dismissed the indictment against the defendants. The Supreme Court reversed, holding that absent any evidence of prejudice, governmental misconduct does not give rise to dismissal of an indictment. In order to determine if prejudice has been established, the defendant must establish that the “violation substantially influenced the grand jury’s decision to indict.” Because there were no allegations of constitutional errors at the grand jury, just procedural irregularities, the indictment should not have been dismissed in this case.

United States v. Mechanik, 475 U.S. 66 (1986)

Irregularities in the grand jury may be rendered harmless by the subsequent conviction of the defendant at trial.

Butterworth v. Smith, 494 U.S. 624 (1990)

The Supreme Court finds a Florida statute which barred witnesses from disclosing their grand jury testimony to be unconstitutional. The unanimous decision held that at least in situations where the grand jury’s term has ended, the interests advanced by the law are insufficient to overcome the witness’ First Amendment right to make a truthful statement of information he acquired on his own.

Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989)

The defendant sought to dismiss his indictment on the grounds that the prosecutor had provided information from his grand jury to the court and parties in a separate criminal case. The Supreme Court, in this unanimous decision, holds that this motion is not subject to immediate appeal under §1291. The defendant’s contention that he has a right not to be tried at all, not simply not to be convicted, finds no support in the grand jury clause of the Fifth Amendment or Rule 6(e). If a violation of the secrecy rules is to be remedied, it can be remedied after trial and final judgment has been entered.

Woodfox v. Cain, 772 F.3d 358 (5th Cir. 2014)

The district court’s conclusion that the petitioner established that the state trial judges acted in a discriminatory manner in choosing grand jury foremen was supported by the evidence and affirmed on appeal.

In re Grand Jury, 566 F.3d 12 (1st Cir. 2009)

A witness has a right to review his prior grand jury testimony if he shows a particularlized need to do so. A prosecutor’s threats and comments about a possible perjury prosecution may provide a sufficient basis to require the disclosure of the witness’s prior testimony prior to having to testify again. The First Circuit noted that this only applies to allowing the witness to review his testimony; the witness is not entitled to a transcript of his prior testimony.

In re: Grand Jury, 490 F.3d 978 (D.C. Cir. 2007)

Witnesses before the grand jury appeared several years ago, and then were “invited back” to give further testimony. They requested an opportunity to review their prior testimony. The D.C. Circuit held that a grand jury witness has a strong interest in reviewing the transcripts of his own grand jury testimony and the government’s interest in grand jury secrecy is not as strong. On a case by case basis, the court should determine whether the witness’s attorney should be entitled to review the transcript. This holding only authorizes the witness to review the transcript and not to obtain a copy.

In re Grand Jury, 566 F.3d 12 (1st Cir. 2009)

This case arrives at virtually the same holding as the D.C. Circuit in the case above: the witness has the right to review his grand jury transcript, though this does not necessarily allow him to make copies or to allow his attorney to see the transcript.

United States v. Bergeson, 425 F.3d 1221 (9th Cir. 2005)

A defendant jumped bail. His attorney, Ms. Bergeson, was subpoenaed to testify at the grand jury about whether she had told her attorney about the trial date. The trial court held that the information was not privileged, but the subpoena would be quashed as unreasonable and oppressive, because compliance with the subpoena would destroy the attorney-client relationship. The government had other evidence of the defendant’s knowledge of the trial date (from the defendant’s mother and an earlier pleading filed by counsel indicating that the defendant agreed to a continuance). The Ninth Circuit affirmed, holding that the trial court did not abuse its discretionary authority under Rule 17(c)(2).

United States v. Downer, 143 F.3d 819 (4th Cir. 1998)

After the defendant was convicted by a jury of aggravated sexual abuse, the court realized that the definition of the offense given to the jury violated the Ex Post Facto Clause, because the offense, as defined, did not exist at the time of the alleged conduct. The trial court then entered judgment on a lesser included offense. The Fourth Circuit reversed: entering judgment on the lesser offense, which was not the subject of the indictment, violated the Grand Jury Clause.

In re Grand Jury Subpoena Dated December 17, 1996, 148 F.3d 487 (5th Cir. 1998)

A motion to quash a grand jury subpoena is not moot simply because the documents sought in the subpoena have already been produced. The court still can remedy the error by requiring the return of the documents, or the destruction of the documents.

United States v. McLaughlin, 126 F.3d 130 (3rd Cir. 1997)

When a grand jury subpoena is served on a corporation for corporate records, neither the corporation, nor the custodian may assert the Fifth Amendment privilege. Braswell v. United States, 487 U.S. 99 (1988). The flip side of this, however, is that if the custodian produces certain records (or fails to produce certain records), this fact may not be used against the custodian personally in a trial against that individual. Here, the custodian (the defendant) failed to produce certain records and the government argued to the jury that the failure to produce these records was evidence of his guilty state of mind. This was reversible error.

In re Trial Subpoena Duces Tecum (Ellwest Stereo Theatres), 927 F.2d 244 (6th Cir. 1991)

A record custodian may be compelled to authenticate records which are brought under compulsion of a subpoena (in this case, a trial subpoena). Unlike in Cursio v. United States, 354 U.S. 118 (1957), where the custodian was asked about missing records, the custodian in this case was simply asked to identify the records which were produced.

In re Grand Jury Proceedings, Subpoenas for Documents, 41 F.3d 377 (8th Cir. 1994)

Records which belonged to the defendants and which were prepared in their personal capacity, or as sole proprietors, were subpoenaed from their lawyer and accountant. The records in the possession of the accountant were given to him by the attorney. The question of whether the Fifth Amendment applies in this circumstance is decided under the following principle: When material has been transferred from a client to an attorney for the purpose of seeking legal advice and the subpoena is directed to the attorney, the proper inquiry is whether the subpoena, if directed to the client himself, would require compelled testimonial self-incrimination. In this case, moreover, the defendant did have the “act of production” privilege. By producing the documents in compliance with the subpoena, the defendants would be vouching for the genuineness of the documents.

In re Grand Jury Proceedings (Mora v. U.S.), 71 F.3d 723 (9th Cir. 1995)

The collective entity doctrine (i.e., the Fifth Amendment may not be invoked by a corporation or other collective entity) does not apply to a former employee of a collective entity who is no longer acting on behalf of the entity.

In re Grand Jury Subpoena Dated April 9, 1996, 87 F.3d 1198 (11th Cir. 1996)

A custodian may not be forced to give testimony about the whereabouts of records not in her possession if she asserts the Fifth Amendment.

In re Grand Jury Subpoena Dated November 12, 1991 (Paul), 957 F.2d 807 (11th Cir. 1992)

The defendant, the former Chairman of a failed savings and loan, was subpoenaed to bring various corporate records which were in his possession. He was no longer affiliated with the corporation at the time he received the subpoena. Nevertheless, pursuant to Braswell v. United States, 487 U.S. 99 (1988), he could not resist compliance with the subpoena on Fifth Amendment grounds.

United States v. Dean, 989 F.2d 1205 (D.C.Cir. 1993)

Defendant was the assistant to HUD Secretary Pierce who was under investigation by an Independent Counsel. She was subpoenaed to produce all documents in her possession relating to her work at HUD. She resisted, but was ultimately ordered to do so by the District Court. At trial, the government sought to introduce the records and the fact that she produced them pursuant to a subpoena. The “act of production” doctrine, however, applied in this situation. Though the defendant was the custodian of “government records,” just as the custodian of business records may insist on being immunized before being compelled to produce documents – with regard to evidence of the act of production (as opposed to the contents of the documents) – a government custodian has that same right. This case contains a good discussion of the act of production doctrine, as well as the “required records” exception which provides that records which must be maintained are not subject to the “act of production” doctrine. The required records exception does not apply in this case because the records being subpoenaed were not required to be maintained by the government.

In re Grand Jury Subpoena Duces Tecum Dated April 19, 1991 (Continental Holdings), 945 F.2d 1221 (2d Cir. 1991)

In a bankruptcy civil suit, certain depositions were filed under seal. A prosecutor sought access to the depositions by means of a grand jury subpoena. The Second Circuit concluded that the government had to establish either a compelling need or the impropriety of the civil protective order.

In re Grand Jury, 111 F.3d 1066 (3rd Cir. 1997)

Individuals who had been illegally wiretapped (by another private party) had standing to challenge the government’s effort to obtain the wiretaps to present to the grand jury. 18 U.S.C. §2515 expressly provides that no illegally obtained wiretap may be used in any proceeding – and this includes the grand jury.

United States v. Bolton, 893 F.2d 894 (7th Cir. 1990)

An indictment returned by a grand jury which was sitting beyond its properly extended term must be dismissed.

United States v. North, 920 F.2d 940 (D.C.Cir. 1990)

Oliver North’s conviction was potentially tainted by the use of his immunized testimony before the Iran-Contra Committee of Congress. The trial court must convene a “line-by-line” and “item-by-item” inquiry into whether the testimony of grand jury witnesses or trial witnesses was affected by North’s testimony. The appellate court holds that witnesses may not “refresh their memories” with immunized testimony. Rehearing the case, 920 F.2d 940, the court reached the same result. The court emphasized that insulating the prosecutor from exposure does not automatically prove that immunized testimony was not used against the defendant. “Kastigar is violated whenever the prosecution puts on a witness whose testimony is shaped, directly or indirectly, by compelled testimony, regardless of how or bywhom he was exposed to that compelled testimony.” The court also holds that the inquiry into the improper use of immunized testimony includes an inquiry into whether the grand jury improperly had before it immunized testimony. There is a distinction between presenting to the grand jury statements which were improperly obtained (such as a forced or un-Mirandized confession) and presenting Kastigar-tainted testimony to the grand jury. In the latter case, the grand jury is considering evidence which was derived on the “promise” of the prosecutor that such use would never be made of the testimony.

In re Sealed Motion, 880 F.2d 1367 (D.C.Cir. 1989)

A witness before the grand jury who was named in an independent counsel’s report is entitled to a transcript of his testimony. Legislative history of the Ethics in Government Act reveals Congress’ awareness of the necessity of protecting individuals who are named in such reports.

In re Grand Jury Subpoenas (Nash), 858 F.Supp. 132 (D.Ariz. 1994)

The government issued a subpoena requesting fee information from the defendants’ attorneys. The defendants had already been indicted and were awaiting trial. The government contended that the information was not being sought for evidentiary purposes in the pending case, but for possible new tax charges. Of course, the grand jury may not be used by the government for pretrial criminal discovery. Because the dominant purpose of these subpoenas was to uncover evidence for trial, compliance with the subpoenas would be delayed until after judgment was entered in the pending criminal case.

Westin v. McDaniel, 760 F.Supp. 1563 (M.D.Ga. 1991)

The district court enjoined a state grand jury probe into the conduct of an attorney who allegedly identified an undercover agent in a public place, thereby spoiling her undercover role. After his first arrest, the case against the attorney was dismissed. The federal court enjoined a new grand jury investigation. Younger v. Harris did not apply, because there was no pending criminal case. The Eleventh Circuit affirmed: 949 F.2d 1163.

United States v. Gillespie, 666 F.Supp. 1137 (N.D.Ill. 1987)

The grand jury lacks authority to return an indictment after the expiration of its term. The court could not salvage this invalid indictment by a nunc pro tunc order purporting to extend the term.

In re Grand Jury Subpoenas, 659 F.Supp. 628 (D.Md. 1987)

A protective order was issued in a civil case which barred disclosure of the depositions which were being taken in the case. Despite this protective order, the United States Attorney subpoenaed all depositions to a sitting grand jury. The Court held that this was proper, noting that a grand jury is not limited by a civil protective order. The Court notes that the civil parties could have asserted the Fifth Amendment right against self-incrimination but simply relying on the protective order was not sufficient. The Fourth Circuit affirmed, holding that in order to invoke the Fifth Amendment rights, a witness must assert them and not rely on a civil protective order. 42 Crim.L.Rep. 2317.

In re Grand Jury Proceedings (PHE., Inc.), 640 F.Supp. 149 (E.D.N.C. 1986)

A corporation’s shareholders and directors could intervene in a grand jury proceeding to challenge as abusive the issuance of grand jury subpoenas requiring all the corporation’s employees to appear at the same time on the same day.