[authors: Richard Gregorie, William Marguardt, and Arnold Castillo]IntroductionThe COVID-19 pandemic has collided with the constitutional requirement that “infamous” crimes be charged by a grand jury. For the first time in United States history, grand juries in federal courts have been suspended because of the pandemic.[i] This has resulted in a significant controversy arising before federal courts across the country including two contradictory opinions in the Southern District of Florida:U.S. v. B.G.G., Case No. 20-80063-cr-MiddlebrooksU.S. v. Lauren Rosecan, Case No. 20-cr-80052-RuizThis paper will focus on the conflict that these two cases present to illustrate the dilemma that federal prosecutors are facing due to the suspension of grand juries, which has resulted in the inability to secure indictments and prosecutors filing criminal informations. We will explore the arguments that arise out of the application of the statute of limitations, 18 USC § 3231-3301, the Federal Rules of Criminal Procedure – Rule 6 and 7, Supreme Court decisions going back to 1885, and the Fifth Amendment of the U.S. Constitution.Brief History and Purpose of the Grand JuryThe first sentence of the Fifth Amendment reads, in part, as follows:“No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury…”The grand jury has stood between the prosecutor and the accused as the sole protection against a “hasty, malicious, and oppressive prosecution” for centuries.[ii] In 1734, New York publisher, Peter Zenger, was charged by the King’s New York Governor with seditious libel. The case was brought before two colonial grand juries which, one after the other, refused to indict Zenger. The Governor then brought Zenger to trial on an information, a charging instrument issued by the prosecutor alone. Zenger sat in jail for over a year before he was tried and acquitted. It was this case that led to George Mason, James Madison, and the other authors of the Bil

ding: (a) protecting the interests of customers, consumers or investors; (b) encouraging whistleblowers or witnesses to come forward; (c) addressing public concern or speculation and providing reassurance that the FCA is taking appropriate action; (d) deterring future breaches; and (e) protecting and enhancing the integrity of the UK financial system.4 Notably absent from this list of factors is any balancing standard to take into account potential harm or unfairness to the firm under investigation.At least at present, the FCA is proposing to make public disclosure only regarding firms that are under investigation, and not regarding individuals.5U.S. Approach to Disclosure of InvestigationsIn the U.S., there is a longstanding and widely-accepted tradition of treating investigations as confidential until the time at which a charge is filed in court. This approach includes both criminal and civil enforcement proceedings, and it applies equally to firms and individuals.For example, under Rule 6(e) of the Federal Rules of Criminal Procedure, the government is strictly prohibited from making any public disclosure of matters occurring before a grand jury, except in narrow circumstances and with prior judicial approval. Consistent with this rule of law, the U.S. Department of Justice (DOJ), which investigates criminal corporate misconduct, rigorously protects the confidentiality of its investigations and work, which involves “non-public, sensitive matters.”6 As explained in the DOJ’s Justice Manual, “[d]isseminating non-public, sensitive information about DOJ matters could violate federal laws, employee non-disclosure agreements, and individual privacy rights; put a witness or law enforcement officer in danger; jeopardize an investigation or case; prejudice the rights of a defendant; or unfairly damage the reputation of a person.”7 Absent exceptional circumstances, the DOJ does not disclose or even acknowledge a criminal investigation unless and until it brings criminal charges.The U.S. Securities and Exchange Commission (SE

For example, FINRA member firms and associated persons typically must comply with FINRA arbitrators’ orders or else risk sanctions from FINRA (FINRA Rule 13513; for more information, seeFINRA Industry Arbitration: A Step-by-Step Guideon Practical Law).Most nonparties, however, have not agreed to the jurisdiction of the arbitrator or the forum. In those cases, an arbitrator’s subpoena typically may be enforced only by filing an action under the Federal Arbitration Act or, if not preempted, an applicable state arbitration statute. The ability to obtain pretrial discovery by subpoena in those circumstances may be limited and varies by circuit. (For more information, seeCompelling Evidence from Nonparties in Arbitration in the USon Practical Law.)The rules governing government and regulatory subpoenas vary widely. For example, the Federal Rules of Criminal Procedure generally apply to subpoenas issued from grand jury investigations and subpoenas to testify in a criminal case (for example, Fed. R. Crim. P. 6 and 17) and address requirements such as:The form and format of the subpoena (for example, Fed. R. Crim. P. 17(a)).Who may issue a subpoena and how they may issue it (for example, Fed. R. Crim. P. 17(a), (f)).What information, documents, and testimony may be demanded in a subpoena (for example, Fed. R. Crim. P. 17(c), (h)).Service methods and procedures (for example, Fed. R. Crim. P. 17(d), (e) (requiring personal service of subpoenas in criminal cases and permitting service on US parties anywhere in the US)).Some agencies and organizations have their own rules governing the issuance of subpoenas and information requests (for example, FINRA Rule 8210 and SEC Enforcement Manual § 3.2.6). Similarly, FINRA, the SEC, and other regulatory agencies have their own rules for responding and objecting to subpoenas (for example, FINRA Rule 8210 and SEC Enforcement Manual § 3.2.7). These rules may impose fewer service and formatting requirements than the federal rules because the agencies that is

. . .The Government argues that unsealing the Affidavit would jeopardize the integrity of its ongoing criminal investigation. The Government’s motion says, “As the Court is aware from its review of the affidavit, it contains, among other critically important and detailed investigative facts: highly sensitive information about witnesses, including witnesses interviewed by the government; specific investigative techniques; and information required by law to be kept under seal pursuant to Federal Rule of Criminal Procedure 6(e).” ECF No. 59 at 8.

In In re: Optical Disk Drive Antitrust Litigation1 (ODD), the Ninth Circuit rejected the “effect test” in favor of a streamlined approach to evaluating civil discovery seeking grand jury evidence and allowed antitrust plaintiffs to access investigation material. Federal Rule of Criminal Procedure 6(e)(2)(B) limits the scope of this discovery by prohibiting the Government from disclosing a matter “occurring before a grand jury.” Several tests have emerged to determine what constitutes such a matter. Most federal courts have applied the “effect test,” which requires a “document-by-document” review of the information sought to evaluate whether it “will reveal some secret aspect of the inner workings of the grand jury.” In ODD, the Ninth Circuit developed its own approach which, while still prohibiting the discovery of information exposing “the secret workings of the grand jury,” rejects the need for a document-by-document analysis.The “Effect Test” The effect test is the most widely applied of four approaches to the application of Federal Rule of Civil Procedure 6(e)(2)(B). Courts applying this test must (1) go “case-by-case” through each document, recording, or other piece of evidence sought to determine whether it should be discoverable, and (2) evaluate whether the evidence sought revea