In Re GRAND JURY ( 2009 )

United States Court of Appeals
For the First Circuit
No. 08-1880
IN RE: GRAND JURY
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Torruella, Stahl, and Howard,
Circuit Judges.
Andrew Good, with whom Philip G. Cormier and Good & Cormier,
were on brief for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
May 11, 2009
TORRUELLA, Circuit Judge. This appeal arises from an
ongoing grand jury investigation. The appellant, a non-target,
testified before the grand jury concerning highly technical and
ancient subject matter. After approximately three hours of
testimony, during which the government reminded the appellant
repeatedly that a failure to testify truthfully would be subject to
possible perjury charges, the government continued its examination
to a later date. In the interim, the appellant sought access to a
transcript of his prior testimony pursuant to Federal Rule of
Criminal Procedure 6(e)(3)(E)(i). The district court denied the
request, finding that the appellant failed to provide a strong
showing of a particularized need for access to the transcript. The
appellant refused to testify further, and, on the government's
motion, the district court found the appellant in contempt. This
appeal followed. After careful consideration, we reverse and
remand.
I. Background
To avoid compromising the grand jury investigation, we
only discuss the bare minimum of facts necessary to dispose of this
appeal.
In May 2008, the government issued a subpoena to the
appellant to testify before a federal grand jury sitting in the
District of Massachusetts, and subsequently issued a subpoena
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directing him to produce documents related to the subject matter of
his testimony.
After receipt of the subpoenas, the appellant indicated
through counsel that he would assert his Fifth Amendment right
against self-incrimination and would refuse to testify. In
response, the government applied for and obtained an order granting
the appellant use immunity pursuant to 18 U.S.C. §§ 6002 & 6003,
and compelled him to testify before the grand jury.
About a week later, in June 2008, the appellant testified
before the grand jury for approximately three hours and fifteen
minutes. During his examination, which was conducted by three
assistant U.S. attorneys simultaneously, the prosecutors warned the
appellant multiple times that the use immunity order did not
protect him from prosecution for testifying falsely. In some
instances, the prosecutors asked repetitive questions, and
suggested inconsistencies in the appellant's testimony. Other
times, the prosecutors verbally abused the appellant. However, the
prosecutors did not indicate that they were planning to indict the
appellant on perjury or obstruction of justice charges. Moreover,
the appellant was questioned about events and documents of
significant complexity. A number of these events and documents
dated back to 1999.1
1
We note that during the course of this appeal we requested a copy
of the transcript and exhibits from the appellant's appearance for
our own independent review.
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The government did not complete its examination.
Consequently, the government ordered the appellant to return and
complete his testimony the following week. At the appellant's
request, the government agreed to continue his return to the grand
jury for an additional two weeks, until early July 2008.
In the interim, counsel for the appellant sent a letter
to the government seeking an opportunity for the appellant to
review the transcript of his grand jury testimony in advance of his
second day of testimony. The government declined the request.
As a result, the appellant filed an emergency motion for
access to a transcript of his grand jury testimony pursuant to Fed.
R. Crim. P. 6(e)(3)(E)(i), which authorizes a court to order
disclosure of grand jury materials "preliminarily to or in
connection with a judicial proceeding." In particular, appellant
sought to review his transcript at the U.S. Attorney's office or a
similar location, and further requested that his lawyer accompany
him and that the appellant be allowed to take notes.
In support of his motion, the appellant cited a recent
D.C. Circuit decision, In re Grand Jury, 490 F.3d 978 (D.C. Cir.
2007), in which the court held that grand jury witnesses are
entitled under Rule 6(e)(3)(E)(i) to review transcripts of their
own grand jury testimony. See id. at 980, 990. In the
alternative, the appellant argued that he has shown a
particularized need for access to the transcript given the
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prosecutors' warnings of possible perjury prosecution and the
complexity of the subject matter of his testimony. The government
opposed, and argued that, under First Circuit law, the appellant
must provide "a strong showing of particularized need" to obtain
access, see In re Special Proceedings, 373 F.3d 37, 47 (1st Cir.
2004) (quotation marks omitted), and that the appellant had failed
to do so.
A hearing was held on the same day as the filing of the
emergency motion, which, as the district court noted, did "not
provide[] a great deal of time for reflection." In ruling on the
motion, the district court first acknowledged that "at least at
first reading I agree with the reasoning of the D.C. Circuit case."
In particular, the district court noted that the benefit to the
witness of access far outweighs the "very mild burden on grand jury
secrecy, so mild as to be close to nonexistent," since a witness is
not bound to keep his testimony secret, and could easily debrief
his or her attorney after testifying. Moreover, although the
district court recognized the "potential administrative burden"
caused by the D.C. Circuit rule in permitting access, it concluded,
in its own view, that "the benefit to the witness greatly outweighs
the burden to the government."
Nevertheless, the district court concluded that it was
bound by First Circuit precedent, and thus required the appellant
to provide a strong showing of a particularized need for the
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transcript in order to obtain access. In examining whether the
appellant had made a showing of particularized need, the district
court stated:
I do not find that there is a particularized
need here, that is, as I interpret the case
law, as to what is required to show a
particularized need; that there are three
unusual aspects to this: The first is that
the testimony spread over two days or more
than one day; the second is that the witness
was confronted by the prosecutor and given
perjury warnings about the accuracy of some of
his statements; and the third is that the
subject matter is quite complex. While to
some extent those facts are unusual, they're
not highly unusual, and I don't think under
the [In re] Bianchi [542 F.2d 98 (1st Cir.
1976)] and In Re: Special Proceedings line of
cases are enough to show particularized need.
Accordingly, the district court denied the motion.
One week later, in mid-July 2008, the appellant appeared
before the grand jury but refused to answer questions. That same
day, the government petitioned the district court to hold the
appellant in civil contempt pursuant to 28 U.S.C. § 1826. Still
that same day, the district court conducted a hearing during which
it allowed the government's petition for contempt in an oral ruling
and written order. However, the district court stayed that order
during the pendency of any appeal.
Counsel for the appellant also pointed out that the
transcript of the appellant's first day of grand jury testimony was
now available, and moved the district court to order the government
to file the transcript with the court. After initially
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entertaining the request, the district court denied the motion,
because it was concerned about the "mechanical difficulties
involved," and since it was "not relying on what the transcript
said, I don't feel I need to see the transcript. I won't make it
part of the record."
II. Discussion
On appeal, the appellant contends that the district court
erred in denying his request to review a transcript of his grand
jury testimony prior to his second day of examination. We review
any rulings of law de novo, and, to the extent we find no legal
error, any denial of disclosure for abuse of discretion. See In re
Grand Jury Proceedings, 580 F.2d 13, 18 (1st Cir. 1978).
A. Standard That Applies to a Request for Access
The appellant first contends that the district court
erred as a matter of law in requiring him to provide a "strong
showing of particularized need" in order to obtain access to his
transcript. Instead, the appellant argues that a "less demanding"
standard of particularized need applies when a grand jury witness
seeks only access to a transcript of his testimony, rather than a
copy. For support, appellant relies on In re Grand Jury, a recent
D.C. Circuit decision where the court held that grand jury
witnesses are entitled "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." 490
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F.3d at 990. Given its importance to the appellant's claims, we
discuss the D.C. Circuit's decision in some detail.
1. The D.C. Circuit Decision
Grand Jury involved a grand jury investigation into a
company and its employees. Id. at 980. Two employees of the
company testified before the grand jury, and were subpoenaed to
testify an additional time. Id. Both moved for access to a
transcript of their prior grand jury testimony before testifying
further, "in order to avoid the possibility of inconsistent
statements occasioned by the passage of years since the events in
question and many months" since they last testified, as well as the
possible need "to take advantage of recantation pursuant to 18
U.S.C. § 1623." Id. at 984. The district court denied both
motions, finding that neither employee provided a sufficient
showing of "particularized need" for the transcripts that
"outweighed the interests in maintaining grand jury secrecy." Id.at 984 & n.4.
On appeal, the D.C. Circuit, addressing the issue for the
first time, see id. at 987, noted that the district court, in
requiring a showing of particularized need, relied on Supreme Court
precedent that concerned third parties seeking copies of such
materials. See id. at 984 & n.3 (citing, among other cases,
Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222-23
(1979)). However, in contrast to a third party, a grand jury
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witness is under no obligation to maintain the secrecy of grand
jury proceedings. Id. at 985; see also Fed. R. Crim. P. 6,
Advisory Committee Notes, 1944 Adoption, Note to Subdivision (e)
("[R]ule does not impose any obligation of secrecy on witnesses.").
With this background in mind, the D.C. Circuit addressed
"when courts should" provide access. Grand Jury, 490 F.3d at 986.
Noting that the text of Rule 6(e)(3)(E)(i) is "open-ended," and
following the "general analytic approach" of other circuits that
have addressed the issue, the court "weigh[ed] the competing
interests of the Government and grand jury witnesses." Id. at 987.
As to witnesses, the district court identified two interests in
obtaining access: (1) the need to "ensur[e] that their
recollections are accurately reflected in the transcripts," and
(2) for those witnesses who "may testify again in the same
investigation . . . to help prepare for the upcoming testimony."
Id. at 988. As to the government, the court identified two
competing interests: (1) to maintain grand jury secrecy, and (2) to
prevent witness intimidation. Id.The court concluded that the witness interests in access
outweighed the government's interests in prohibiting such access.
As to secrecy, the court noted that the secrecy rationale was meant
to prevent "the public or others from learning what a grand jury
witness said to the grand jury." Id. Thus, while preventing
access to a third party was necessary to maintain the secrecy of
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grand jury witness testimony, preventing access to the witness
himself "makes little sense," since a witness already knows the
content of his testimony and, in any event, has the right to
broadcast the substance of his testimony if he so desired. Id. at
988-89 (noting that "the witness can stand on the courthouse steps
and tell the public everything the witness was asked and
answered"). The D.C. Circuit therefore concluded that "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."
Id. at 989.
As to witness intimidation, the court found compelling
the concern that providing copies to a witness would result in
third parties forcing disclosure of the copies and thereby
"deter[ring] witnesses from testifying freely and candidly in the
first place." Id. at 989. However, the concern with intimidation
"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." Id.
at 990. The court, in particular, saw little difference between
pressure to divulge the contents after a private review of the
transcript and pressure to "recall their testimony from memory."
Id. Based on this weighing of interests, the court concluded that
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first-party witnesses are entitled to access of their transcripts
under Rule 6(e).
2. Analysis
The appellant contends that the D.C. Circuit's reasoning
in Grand Jury supports his claim of a less demanding standard,
since he seeks the same access to a transcript of his own testimony
that the D.C. Circuit permitted. We agree. To be clear, we do not
adopt the D.C. Circuit's holding that a grand jury witness is
entitled to access to a transcript of his grand jury testimony.
Instead, we hold that, in light of the considerations supporting
the D.C. Circuit decision and our own review of our precedent, a
less demanding requirement of particularized need applies when a
grand jury witness demands access to a transcript, rather than a
copy of the transcript.2
Admittedly, we have held that "a grand jury witness has
no general right to the transcripts of his testimony." Bianchi,
542 F.2d at 100 (citing In re Bottari, 453 F.2d 370 (1st Cir.
1972)). Instead, in this circuit a witness must provide "a strong
2
The dissent unfortunately misconstrues our decision by stating
that "[t]he panel majority adopts an approach based on the
reasoning and rationale of a recent D.C. Circuit opinion, which
permits relatively unfettered access even for non-defendant
witnesses." (Dissent at 25). As the decision makes clear, we do
not adopt the D.C. Circuit approach, and although we discuss the
D.C. Circuit at great length, we base our decision on a review of
our precedent as well as our independent assessment of the
interests at stake, many of which were not addressed by the D.C.
Circuit.
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showing of particularized need" in order to obtain a copy of a
transcript. Special Proceedings, 373 F.3d at 47 (quotation marks
omitted).
However, as the appellant correctly points out, our prior
case law has solely concerned grand jury witnesses seeking copies
of their transcript, while the appellant seeks only access,
understood as an opportunity to review the transcript. In Bottari,
our earliest case on the issue, the witness sought, as a
precondition to testifying, a copy of "a transcript of the
questions and answers following his appearance before the grand
jury." 453 F.2d at 371. Likewise, in Bianchi, the witness sought
"copies of his prior grand jury testimony." 542 F.2d at 100(emphasis added). And in Special Proceedings, a case outside the
grand jury context, but involving what we determined an analogous
situation, a special investigation, we rejected a witness's claim
for a copy of his deposition transcript.3 373 F.3d at 47.
3
The dissent points out that in Special Proceedings we stated the
following:
Taricani may be arguing that as a witness he has an
elevated right to copies of his own deposition
transcript. However, in this circuit "a grand jury
witness has no general right to transcripts of his
testimony." In re Bianchi, 542 F.2d 98, 100 (1st Cir.
1976). Similarly, a majority of circuits hold that a
non-defendant witness seeking access to his own
deposition transcript must make "a strong showing of
particularized need" for such disclosure.
373 F.3d at 47 (emphasis added). According to the dissent, the use
of the word "access" above means that our precedent equally
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In none of these cases did we have the occasion to
address whether a demand for access, which imposes a lesser burden
on the governmental interests of grand jury secrecy and witness
intimidation, still requires a strong showing of particularized
need. Nor has the Supreme Court opined on the issue. However, the
Supreme Court, in articulating a standard of particularized need
for third parties, has noted that its "standard is a highly
flexible one, adaptable to different circumstances and sensitive to
the fact that the requirements of secrecy are greater in some
requires a "strong showing of particularized need" for requests for
a review of a transcript. (Dissent at 26-28).
We disagree. First, the sentence in which "access" appears
only describes what the "majority of circuits" have held. More
importantly, it notes that such a holding is only "[s]imilar[]" to
our own rule, which, described in the previous sentence, does not
deal with "access" but with copies, or, to borrow the words of the
Bianchi court, with "a general right to transcripts." 542 F.2d at
100 (emphasis added).
Second, the dissent relies upon Awuah v. Coverall N. Am.,
Inc., 554 F.3d 7 (1st Cir. 2009), for the proposition that we give
effect to the language of a prior panel decision even if it is
"perhaps broader than the precise controversy at issue." (Dissent
at 27). In Awuah, however, we gave effect to broader language in
a prior decision because, although broader, it "constitute[d] the
rationale for the decision." 554 F.3d at 11. In contrast, the
broader statement in Special Proceedings did not "constitute the
rationale for the decision," but was a description of the holdings
of a "majority of circuits." In fact, and as discussed below, had
the court in Special Proceedings intended to reach access as
defined here, it would have at least expressed some disapproval
with the district court's sua sponte offer of access. Instead, the
court in Special Proceedings cited the option with approval. 373
F.3d at 47.
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situations than in others." United States v. John Doe, Inc. I, 481
U.S. 102, 112 (1987). We take the same approach.
We begin by discussing the significant interest a witness
has in reviewing a transcript of his or her grand jury testimony.
As the D.C. Circuit recognized, even witnesses who intend to
testify truthfully have an interest in avoiding inaccuracies and
inconsistencies that may subject them to a potential perjury
prosecution. See Grand Jury, 490 F.3d at 988 (noting that 18
U.S.C. § 1623(a) provides for "inconsistent statements as [a] basis
for a perjury conviction"). The interest in avoiding inaccuracies
and inconsistencies increases significantly when a grand jury
witness has to testify over multiple days, and thus has to prepare
for upcoming testimony. Id.Moreover, federal law "strongly reinforces" that
interest. Id. A grand jury witness has a statutory right to
recant, one that would be difficult to exercise without a review of
the transcript. See 18 U.S.C. § 1623(d); see also Grand Jury, 490
F.3d at 988 ("A witness would have difficulty taking full advantage
of the statutory recantation provision . . . without obtaining
prompt access to transcripts of their own testimony."). In
addition, the federal rules contemplate the disclosure of grand
jury transcripts. See Fed. R. Crim. P. 6(e)(3)(E)(i) ("The court
may authorize disclosure . . . of a grand jury matter . . .
preliminary to or in connection with a judicial proceeding").
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Finally, the government is subject to a higher burden of proof to
establish perjury, which lessens the risk of perjury prosecution
and, therefore, allows witnesses to be less evasive and more
forthcoming in answering questions.4
We also stress that the interest a witness has in
maintaining the accuracy of his or her testimony is not just
personal to the witness. It is systemic, as both the courts and
the government have a substantial interest in ensuring the accuracy
of grand jury testimony.
With the witness's interests in mind, we consider the
interests of the government, particularly how those interests are
affected in the access context as compared to the copy context. As
the D.C. Circuit points out, there are significant differences
between the access and copy context with respect to witness
intimidation. Specifically, "if a witness could routinely obtain
a copy of the grand jury transcript . . . an interested party could
in turn pressure the witness to obtain the transcript and to give
it to that third party." Grand Jury, 490 F.3d at 989. Likewise a
"witness's fear of being forced to disclose the transcript to a
threatening third party could deter witnesses from testifying
4
The dissent only views these protections as "abundant . . . for
all grand jury witnesses," and thus concludes that we "vastly
overstate[] a witness's interest in access to prior grand jury
testimony." (Dissent at 32-33). Instead, we view these
protections as a recognition of the significant interest a witness
has in maintaining the accuracy of his testimony, such that we do
not overstate it, but simply take it into account.
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freely and candidly in the first place." Id. Both of these
concerns are alleviated significantly when only access is
permitted. Unlike in the copy context, a witness granted only
access could, in the face of intimidation, simply decline to reveal
his testimony. See id. at 990 (noting that, in general, a grand
jury witness could decline to discuss his or her testimony, and
that this option "is not realistically affected by whether the
witness can review the transcript at a secure location").5
Moreover, because of this option, the witness will feel less
inclined to withhold truthful testimony.
Although the D.C. Circuit did not address it, the access
context also differs from the copy context with respect to grand
jury secrecy. As both the D.C. Circuit and the district court in
this case point out, a grand jury witness is under no obligation to
maintain the secrecy of his or her testimony. To use the colorful
5
The D.C. Circuit, in fact, found this difference so significant
that it expressly reserved the issue of whether "the possibility of
witness intimidation would justify denying copies of transcripts."
Id. at 989-90.
The dissent contends that our conclusion is "naive," because
"[t]he same people who would cajole a witness to obtain a copy of
his testimony and reveal it would be able to use similar methods to
coerce the witness into reviewing his testimony and reporting its
contents." (Dissent at 30). However, the dissent does not fully
take into account the evasive measures a witness can undertake if
he only obtains access. After all, a witness, even after review,
could be less than forthcoming about his testimony, and a third
party would never know to cajole further. If the witness obtains
a copy, however, no amount of evasion can hide his testimony,
printed in black and white, from a determined third party.
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example of the district court, a grand jury witness has the right
to "put up that information on a billboard on the Mass. Pike."
Thus, any concern with maintaining grand jury secrecy is already
diminished in the grand jury witness context.6 However, permitting
access does not exacerbate the situation in the way making a copy
available does. Unlike access, a copy can take on a life of its
own, and, despite the efforts of a well-intentioned grand jury
witness, a copy can float around and land in the wrong hands.
Accordingly, the access context better maintains grand jury secrecy
vis-a-vis the copy context.
Finally, although we have not had the occasion to address
the issue, our decision in Special Proceedings lends some support
to the distinction we make between granting access and granting a
copy. There, we found that a deponent in a special investigation
failed to articulate, let alone show, a particularized need for a
copy of his deposition transcript, in part because "the district
court took steps to accommodate any need [the witness] might have
for the transcript by offering [the witness] and his counsel access
to the deposition testimony as long as they agreed to keep the
6
In fact, our precedent has failed to acknowledge the fact that a
grand jury witness is not under any obligation to maintain grand
jury secrecy. Some courts, most notably the D.C. Circuit, have
viewed this fact as cutting in favor of witness access. Other
courts have not. See, e.g., Bast v. United States, 542 F.2d 893,
896 (4th Cir. 1976) (requiring a showing of particularized need,
but "recogniz[ing] that Fed. R. Crim. P. 6 imposes no condition of
secrecy on the witness.").
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transcript confidential." 373 F.3d at 47. Not only did we cite
the option of access with approval, but we also indicated that a
greater showing of need was required to move from the access
context to the copy context.
We also recognize one other important interest not
discussed by the D.C. Circuit but cited by the district court
below, efficiency. Articulating a lesser standard of
particularized need with respect to access may increase the burdens
on the government in grand jury proceedings. However, we agree
with the district court that "the benefit to the witness greatly
outweighs the burden to the government." As the D.C. Circuit
noted, "the Federal Rules . . . mandate that grand jury proceedings
be transcribed or taped," with such records being kept by the
government. Grand Jury, 490 F.3d at 986 (citing Fed. R. Crim. P.
6(e)(1)). Thus, the cost of providing a transcript, which must be
created anyway, and the slight delay caused by the review of the
transcript would not impede an investigation significantly. In
fact, there is no evidence that the D.C. Circuit's more lenient
rule has had any detrimental affect on grand jury investigations in
that circuit.
We conclude by noting that our "less demanding" standard
of particularized need does not apply to appellant's request to
take notes. Permitting notetaking blurs the line between the
access and copy contexts, since one can imagine an appellant
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transcribing his transcript and, in effect, creating a copy. Thus,
our requirement of a strong showing of particularized need applies
equally to the notetaking context.7
For all of the above reasons, we find that the district
court committed error in applying our precedent, which has solely
involved requests for copies, to the appellant's request for access
to a transcript of his grand jury testimony.
B. Showing of Particularized Need
Because the district court did not make any factual
findings, but assumed as true the contentions in support of the
appellant's request for access, we address whether appellant has
made a showing of particularized need in light of the less
demanding standard we articulated above.8
7
Permitting the appellant's counsel to be present during the
review, which the appellant also requests, is a closer call. Thus,
following the D.C. Circuit, we leave it up to the "sound
discretion" of the district court on remand to determine whether
appellant's counsel can be present. See Grand Jury, 490 F.3d at
990.
8
Because we hold that our former standard of "a strong showing of
particularized need" still applies to the appellant's request to
take notes, we still must review the district court's finding of no
particularized need. In our view, there was no abuse of
discretion. The district court, assuming the appellant's
contentions as true, ultimately determined that the appellant's
circumstances, which included the prosecutors' perjury warnings and
the complexity of his testimony, were not sufficiently
particularized to meet our standard. Given that we have not found
a sufficiently particularized need where only an "ill-defined"
potential for perjury prosecution exists, see, e.g., Bianchi, 542
F.2d at 100, we do not see how the district court abused its
discretion in denying notetaking.
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The appellant argues that his need for access is
sufficiently particularized to justify access for two reasons: (1)
the threats of perjury prosecution given by the prosecutors during
his examination, and (2) the complexity of the subject matter of
his testimony, which involved "ancient activity." We agree.
The appellant contends that his need was particularized
because he was "threatened by . . . powerful authorities with life-
wrecking perjury convictions and years of imprisonment." Our own
review of the grand jury transcript supports his claim. In some
instances the prosecutors made pointed comments to the appellant,
asking in places if he "ha[d] a hearing problem" or whether he
"speak[s] the English language."
Under our case law in the copy context, we have held that
potential perjury prosecution alone does not arise to a
particularized need. In Bottari, for example, we found no
particularized need due to potential perjury prosecution because
that potential alone made "th[e] appellant . . . no different from
any other witness who testifies before a grand jury, or elsewhere."
453 F.2d at 371. Likewise in Bianchi, where the witness also had
use immunity under 18 U.S.C. §§ 6002 and 6003, we found no
Moreover, the district court did not abuse its discretion in not
making the transcript a part of the record, as the appellant
claims. In examining whether the appellant provided a strong
showing of particularized need, the district court assumed as true
the appellant's contentions in support of why his need was
particularized. Thus, the appellant would have received little
benefit from having the district court review the transcript.
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particularized need where the witness's "ill-defined fear" of a
"'slight inconsistency' between past and present testimony [that]
might subject him to perjury prosecution [wa]s unfounded." 542
F.2d at 100.
In this context, however, it is a close call whether the
strongly worded, even abusive warnings of the prosecutors alone
suffice to demonstrate a particularized need under our lesser
standard for access. Some circuits have permitted access based
upon such conduct, although they did so on other grounds. See,
e.g., Bursey v. United States, 466 F.2d 1059, 1080 (9th Cir. 1972)
(holding that "the concepts of fundamental fairness inherent in due
process require that a grand jury witness be given some protection
from the[] risks [of perjury] before he is compelled to answer
repetitious questions"). However, we do not need to address the
issue, because the threats of perjury prosecution, combined with
the complexity of the appellant's testimony, sufficiently
establishes a particularized need. As the witness attested to, and
as the grand jury transcript and exhibits bear out, the subject
matter of his testimony was significantly complex, involving not
only complex technical material, but also events and dates
occurring nearly a decade ago. Thus, any concerns with
inconsistencies in his testimony (concerns which were repeatedly
inflamed by the prosecutors) were magnified by the potential traps
posed by the highly technical and ancient nature of his testimony.
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Accordingly, the threats of perjury prosecution, combined with the
complexity of the witness's testimony, supplies the necessary
particularized need to permit access.
We conclude by discussing our application of this lesser
demand for "particularized need" going forward. In this case we
have found such a need satisfied given the abusive warnings of the
prosecutors during testimony and the complexity of the appellant's
testimony. We emphasize that, based upon our review of the record,
the warnings were not only strongly worded, but were also
buttressed by repetitious questions and insulting language.
Moreover, the subject matter of the testimony concerned complex,
nearly decade-old technical material that was integral to the
examination.9
9
The dissent disagrees, and contends that our rule "is likely
satisfied in many -- if not most -- grand jury investigations."
(Dissent at 34). The dissent misstates the basis of our finding
for a particularized need. Prosecutor's warnings combined with
testimony only "involv[ing] complex subjects that occurred some
time in the past" are not sufficient to establish a particularized
need under our lower standard, as the dissent suggests. (See id.
at 35). Something more is required, and we articulated above what
that more was in this case.
Moreover, we disagree with the dissent's characterization of the
warnings made during the examination. The dissent quotes four
warnings during the examination to show that they were innocuous,
ignoring other warnings as "infrequent[] and inconsequential[]."
(Dissent at 39-41). It is the third quoted warning on which we
disagree. The dissent seeks to explain that the warning is
justifiably strongly worded because the appellant was being
"evasive." (Id. at 40). However, we read the exchange as
supporting our view that the examination was highly technical, as
the government immediately stated after giving the warning that
"Okay. So stop playing games with us. This jury is composed of a
-22-
We are also cognizant of the effect the application of
our rule will have on grand jury proceedings, since we do not want
to "saddle a grand jury with minitrials and preliminary showings
[that] would assuredly impede its investigation." United States v.
Dionisio, 410 U.S. 1, 17 (1973). However, the lesser standard of
particularized need we apply here would not impose undue hardship
on grand jury investigations. A district court in its discretion
can utilize procedures, such as the expedited hearing the district
court conducted in this case, to minimize any undue effect on the
grand jury investigation. Moreover, although we had the advantage
of reviewing the transcript in this case, nothing we say here
requires the government to submit one in response to a motion for
access. To the extent that the transcript is not available, a
grand jury witness can testify (or make a proffer) in camera as to
his or her examination to support his or her claim, with the
government having an opportunity to rebut.10 Finally, to the extent
group of laymen. . . . so talk to us like we're regular people and
stop playing word games with us." Moreover, the dissent dismisses
the other warnings given during this exchange, such as "Now I'm
telling you to answer the questions straightforwardly and
truthfully," followed shortly thereafter by "Okay. Can you answer
the question straightforwardly?," and still later by "Again, answer
the question that's asked of you. Answer is directly. Answer it
truthfully. All right?" and, after a five minute break, "I remind
you that you're still under oath." From here, the government's
warnings took an abusive turn: "Please, again, do you have a
hearing problem?" and "And you speak the English language, that's
your first language, right?"
10
Thus, we disagree with the dissent that under our rule "a district
court will abuse its discretion if it fails to review the
-23-
that a grand jury witness games the system to establish a
particularized need, a district court can take evidence of that
into account. A witness cannot establish a need, let alone a
particularized one, if the purported need was self-induced.11
III. Conclusion
For the foregoing reasons, we reverse the district
court's finding of contempt, and, on remand, direct the district
court to permit the appellant access to a transcript of his grand
jury testimony consistent with this opinion.
Reversed.
"Dissenting opinion follows"
transcript." (Dissent at 36 n.23).
11
The dissent claims that we "too quickly dismisses the witness's
obstreperous conduct." (Dissent at 41 n.28). Our own review of
the transcript does not suggest to us that the appellant was being
obstreperous during the examination given the highly technical
nature of the questions asked. Moreover, the appellant has
proceeded in good faith throughout the course of these proceedings.
As the district court found in staying its contempt order pending
appeal, the appellant's claims were "not frivolous" and that the
appellant was not "being contumacious in the way [of an] ordinary
grand jury witness, who simply refuses to testify without good
reason."
-24-
HOWARD, Circuit Judge, dissenting. Neither the Federal
Rules of Criminal Procedure nor Supreme Court precedent
specifically address the circumstances in which a non-defendant
grand jury witness may access his testimony, regardless of the
format of such access. The panel majority adopts an approach based
on the reasoning and rationale of a recent D.C. Circuit opinion,
which permits relatively unfettered access even for non-defendant
witnesses. Were we writing on a blank slate, I believe this
approach would be problematic. But we are not writing on a blank
slate; an unbroken line of our cases going back over thirty years
forecloses the majority's result. Thus, because the majority's
conclusion is contrary to our precedent, unwise as a matter of
policy, and insupportable on this record, I respectfully dissent.
I.
Since at least 1972, we have made clear that grand jury
witnesses have no general right of access to transcripts of their
prior grand jury testimony. See In Re Bottari, 453 F.2d 370 (1st
Cir. 1972). We have since elaborated on this rule, making just as
clear that fear of future perjury prosecution cannot constitute a
cognizable reason for a witness to have access to a transcript of
his testimony. See In Re Bianchi, 542 F.2d 98, 100 (1st Cir. 1976)
(citing United States v. Chevoor, 526 F.2d 178, 181 (1st Cir.
1975)). We later confirmed our adherence to the majority rule
among the circuits that a "non-defendant witness seeking access to
-25-
his own [grand jury] transcript must make a 'strong showing of
particularized need' for such disclosure."12 In Re Special
Proceedings, 373 F.3d 37, 47 (1st Cir. 2004) (quoting In Re Grand
Jury Subpoena, 72 F.3d 271, 274 (2d Cir. 1995)) (emphases added).
It is true that during the course of In Re Special
Proceedings, we noted that the district court afforded the witness
seeking access to his testimony the opportunity to review it, so
long as the witness kept the information confidential. Id. But
that comment was made in the context of explaining why the witness
failed to make the requisite "strong showing of particularized
need." The majority attempts to treat this summary comment as
lending "some support to the distinction" it draws "between
granting access and granting a copy." Maj. Op. at 17; see also
Maj. Op. at 12-13 n.3. But this short aside did not (and indeed
could not) change the ratio decidendi of our decision in In Re
Special Proceedings, which requires that even a non-defendant
witness make a "strong showing of particularized need" for "access"
to his own grand jury testimony.
12
The panel majority attempts to avoid the full scope of this
holding by highlighting the fact that In Re Special Proceedings
articulated this result as the holding of "a majority of circuits,"
and that our rule is "similar." Maj. Op. at 12-13 n.3 (quoting In
Re Special Proceedings, 373 F.3d at 47). But the majority neglects
the next sentence of In Re Special Proceedings, which makes clear
that we too subscribe to the rule in the majority of circuits: "[a]
few circuits take a contrary view . . . but are at odds with
Bianchi." 373 F.3d at 47. It is therefore clear that a fair
reading of In Re Special Proceedings cannot limit its reach merely
to copies.
-26-
Where, as here, the language of a prior panel decision is
perhaps broader than the precise controversy at issue in that prior
decision, we still give effect to the language of the prior panel
decision. Awuah v. Coverall, N. Am., Inc., 554 F.3d 7, 11 (1st
Cir. 2009). Absent contravening authority from this court sitting
en banc or the Supreme Court, we must continue to honor the In Re
Special Proceedings doctrine. Id.; United States v. Holloway, 499
F.3d 114, 118 (1st Cir. 2007).13
Thus, our case law does not permit the majority's
conclusion that a less demanding standard of particularized need is
appropriate where a witness seeks access to his prior grand jury
testimony. The majority attempts to elide decades of case law by
drawing a distinction between access to prior testimony and the
availability of copies of prior testimony. But, for the reasons
13
The majority's second attempt to reconcile its holding with our
precedent is equally unavailing. As explained in note 1, the ratio
decidendi of In Re Special Proceedings extends to access and does
not end with the provision of copies. Consequently, both Awuah and
Holloway require that the panel use the "strong showing of
particularized need" standard for access as well as copies.
-27-
described above, unlike in the D.C. Circuit,14 our precedent does
not countenance such a distinction.15
II.
Even if it were permissible for us to sweep away our
precedent and to create an entirely new rule regarding a non-
defendant witness's right to access his grand jury testimony, the
majority's chosen rule permitting access based on a "less demanding
requirement of particularized need" is unwise. First, in creating
this less demanding standard, the majority fails to give due weight
to important interests of grand jury secrecy and preventing witness
intimidation, while at the same time, the majority overemphasizes
a witness's interest in access to his testimony. Second, the
majority's preferred approach will improvidently hamstring the
operation of grand juries.
14
The D.C. Circuit case, In Re Grand Jury, 490 F.3d 978 (D.C. Cir.
2007), is factually distinguishable from the case at bar, and the
majority has significantly expanded this precedent in order for its
rule to encompass cases such as the appellant's. Unlike in In Re
Grand Jury, where witnesses without immunity testified as many as
three times, with months between such testimony, the appellant in
this case had immunity. See id. at 980. Moreover, the appellant's
testimony was originally continued for one week, and was later
continued for another two weeks to accommodate appellant's counsel.
All other delays in this case have resulted from the appellant's
protracted efforts to gain access to his prior testimony.
15
Our circuit's view of the law finds significant support in the
"majority of appellate decisions dealing with this issue." In Re
Grand Jury Subpoena, 72 F.3d at 274-75 (citing Davis v. United
States, 641 A.2d 484, 490-91 (D.C. App. 1994); Bast v. United
States, 542 F.2d 893, 895-96 (4th Cir. 1976); In Re Bianchi, 542
F.2d 98; In Re Bottari, 450 F.2d 370).
-28-
A.
1.
The majority has identified three interests militating
against witness access to grand jury testimony,16 but has not given
full weight to those interests. The majority dismisses the notion
that grand jury secrecy is an important interest in this context
because grand jury witnesses have no obligation to keep their
testimony secret. Although the majority is correct that a witness
is under no obligation to keep his testimony secret, Maj. Op. at 10
(citing In Re Grand Jury, 490 F.3d at 988-89), it does not follow
that permitting a witness access to his own testimony "does not
exacerbate" the threat to grand jury secrecy. Maj. Op. at 17
(emphasis in original). On the contrary, a witness -- even if he
is denied the ability to review his testimony with counsel -- will
now have an additional opportunity to think about his testimony and
potentially disclose it.17 Moreover, we can expect that a witness
16
Because of the profound threat the majority's proposed rule poses
to the efficiency of grand juries, I discuss this interest in Part
II.B, infra.
17
The majority leaves open the question of whether the appellant is
entitled to have his counsel review the transcript. Maj. Op. at 19
n.7. It suffices here to note the district court's ruling on
remand from the D.C. Circuit, in which the court held that "the
expertise of legal counsel is not necessary for the [witness] to
assess whether the transcripts reflect inconsistencies or
falsehoods that place [the witness] at risk for a perjury
prosecution or warrant recantation . . . ." In Re Grand Jury
Proceeding, 520 F. Supp. 2d 61, 64 (D.D.C. 2007). Moreover, as the
district court further noted, since attorneys are not permitted in
the grand jury room when a witness testifies, it would be anomalous
-29-
will be likely to remember a significantly greater portion of his
testimony during a private review than while undergoing questioning
before the grand jury, making any subsequent disclosure more
problematic from the standpoint of the important interest in
secrecy. Thus, as a practical matter, the majority's rule will
have an adverse impact on grand jury secrecy.
Similarly, witness intimidation will almost certainly
increase under this new standard. The majority asserts that "a
witness granted only access could, in the face of intimidation,
simply decline to reveal his testimony." Maj. Op. at 16 (citing In
Re Grand Jury, 490 F.3d at 990). Respectfully, this assertion is
naive. The same people who would cajole a witness to obtain a copy
of his testimony and reveal it would be able to use similar methods
to coerce the witness into reviewing his testimony and reporting
its contents. The majority's claim that a witness can undertake
"evasive measures" to avoid commenting on a recollection refreshed
by a lengthy review of the witness's prior testimony is
unpersuasive. See Maj. Op. at 16 n.5. As the majority correctly
notes, such evasive measures are unlikely to succeed with respect
to the existence of a transcript copy; these measures are similarly
likely to fail when determined individuals demand a witness divulge
the contents of his testimony. Given that most witnesses will have
to permit an attorney to be present during a review of the
transcript. Id. at 64 n.4.
-30-
better recollections of their testimony after the opportunity to
review it in private, a fact that will not elude those seeking
additional information, the rule we are now adopting will
exacerbate the threat of witness intimidation.
2.
By contrast, again relying on the D.C. Circuit's
approach, the majority overemphasizes a witness's interest in
access to his grand jury testimony. The guiding light in the
majority's balancing is a witness's supposed need to ensure that
past testimony is accurate, presumably to innoculate him from
criminal charges of providing false declarations to the grand jury,
with secondary consideration for a witness's need to prepare for
future testimony where such testimony is spread over several days.
Maj. Op. at 14 (citing In Re Grand Jury, 490 F.3d at 988); see also
18 U.S.C. § 1623.18 Though well-intentioned, the majority's
solicitude for witnesses in this regard is misplaced; although the
majority claims that "even witnesses who intend to testify
truthfully have an interest in avoiding inaccuracies and
inconsistencies that may subject them to potential perjury
prosecution," Maj. Op. at 14, federal law already provides ample
18
The most obvious and greatest antidote to this concern, of course,
is that the witness "should testify truthfully in the first
instance." In Re Grand Jury Proceedings, 520 F. Supp. 2d at 64.
-31-
protection to such witnesses, which should serve to obviate the
majority's concern over the plight of these witnesses.19
The law already provides abundant protections for all
grand jury witnesses. Testimony is punishable only when the
government proves beyond a reasonable doubt that it is false, made
knowingly, and is material to the work of the grand jury. 18
U.S.C. § 1623(a); United States v. Silveira, 426 F.3d 514, 518-19
(1st Cir. 2005). Similarly, the relevant statute provides
significant protection to those charged with making inconsistent
statements. Such statements are actionable only if the government
proves beyond a reasonable doubt that they were made (1) knowingly
and (2) they are inconsistent to the degree that one of them is
necessarily false. 18 U.S.C. § 1623(c). Even then, it is an
affirmative defense that the defendant "at the time he made each
declaration believed the declaration was true." Id. Furthermore,
in certain circumstances, witnesses have the right to recant any
false declarations. 18 U.S.C. § 1623(d).20 As courts have
19
In addition, as a further argument for disclosure, the majority
correctly notes that in certain circumstances, the Federal Rules of
Criminal Procedure contemplate disclosure of grand jury
transcripts. Maj. Op. at 14 (citing Fed. R. Crim. P.
6(e)(3)(E)(i)). But the majority neglects to acknowledge that such
disclosure is only permitted on a strong showing of particularized
need, see Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 221(1979), which the majority concedes is not met in this case. Maj.
Op. at 19 n.8. Thus, the Federal Rules of Criminal Procedure
provide no reason to tip the balance in favor of access.
20
The majority's conclusion that it "would be difficult to exercise
[the statutory right to recant] without a review of the transcript"
-32-
recognized, these are copious protections for those who fear
prosecution for failing to provide less than perfectly accurate
testimony to the grand jury. See In Re Grand Jury Proceedings, 520
F. Supp. 2d at 64 (citing Doe v. United States, 72 F.3d 271 (2d
Cir. 1995)).
The majority acknowledges the robust protections against
unwarranted perjury charges afforded grand jury witnesses, see Maj.
Op. at 14-15, but nevertheless (erroneously in my view) concludes
that "federal law strongly reinforces" a witness's interest in
access. Maj. Op. at 14 (internal quotation marks omitted).
Rather, the substantial protections available to grand jury
witnesses militate in favor of affording less weight to the
witness's interest in obtaining access to grand jury testimony.
Consequently, the majority has vastly overstated a witness's
interest in access to prior grand jury testimony, and as a result,
does not follow. Maj. Op. at 14. As explained above, because
other provisions of federal law provide witnesses with significant
protections, recantation is not needed to resolve minor
inconsistencies or slight errors. A witness will have a better
memory of the major points of his testimony, and after testifying,
in consultation with counsel, he will be able to exercise his right
to recant without a detailed review of the record of his testimony.
Although we require a witness attempting to recant admit that his
testimony is false, we have never required any greater level of
detail in order to permit recantation. E.g., United States v.
Scivola, 766 F.2d 37, 43 (1st Cir. 1985); United States v. Goguen,
723 F.2d 1012, 1018 (1st Cir. 1983). The majority's continued
insistence on transcript access for this purpose exalts recantation
above these other protections available to grand jury witnesses,
and unnecessarily burdens the efficiency of grand jury
investigations.
-33-
has created a new rule that will needlessly and unduly interfere
with the efficient operation of grand juries, contrary to the
teachings of the Supreme Court.
B.
It is axiomatic that grand juries are integral to the
"fair and expeditious administration of the criminal laws." United
States v. Dionisio, 410 U.S. 1, 17 (1973) (citations omitted).
Their role is to investigate potential criminal violations
"independently of either prosecuting attorney or judge," and they
are therefore imbued with "necessarily broad" investigative powers.
See id. at 13, 17 (citing Branzburg v. Hayes, 408 U.S. 665, 688
(1972)). The Supreme Court has therefore long held that grand jury
proceedings should be free of procedural delays and that "[a]ny
holding that would saddle a grand jury with minitrials and
preliminary showings would assuredly impede its investigation and
frustrate the public's interest in fair and expeditious
administration of the criminal laws." Id. at 17; see also United
States v. R. Enters., Inc., 498 U.S. 292, 300-01 (1991); United
States v. Calandra, 414 U.S. 338, 350 (1974); Stern v. United
States Dist. Court, 214 F.3d 4, 16-17 (1st Cir. 2000).
The majority's approach of permitting witnesses to access
their testimony based on a lesser standard of particularized need
that is likely satisfied in many -- if not most -- grand jury
investigations threatens to unleash precisely the mischief that the
-34-
Supreme Court has warned against. The majority believes that the
combination of a prosecutor's use of perjury warnings during
questioning of a witness and the fact that a witness's testimony
involves complex subjects that occurred some time in the past is
sufficient to meet its lower threshold of particularized need.
Maj. Op. at 20, 22. But all grand jury investigations are
necessarily retrospective, and they frequently focus on complex
matters.21 Moreover, through evasive and unresponsive testimony,
any witness could elicit perjury warnings from those questioning
him.22 Thus, under the majority's standard, any witness who
21
The majority claims "something more" is required to meet its
diminished standard, Maj. Op. at 22 n.9, but its opinion refers
only to perjury warnings, which are appropriate, necessary, and
encouraged in our case law, see infra note 22, the fact that the
subject matter involved technical material, and that some events
occurred less than ten years in the past. But these are common
circumstances and it is likely that many –- if not most –- grand
jury investigations will be encompassed in the ambit of the
majority's new rule.
22
The majority's decision to consider perjury warnings in
determining whether a witness has satisfied a less demanding
standard will inevitably chill prosecutors' proper use of perjury
warnings, which is a disservice to prosecutors, witnesses, and the
grand jury's quest for the truth. The record in this case reveals
that the prosecutors' perjury warnings were limited and
appropriate. See infra pp. 39-41.
These warnings are particularly appropriate in light of our
previous expressions of strong displeasure with prosecutors in this
circuit who attempt to skirt warnings to grand jury witnesses.
See, e.g., United States v. Pancheco-Ortiz, 889 F.2d 301 (1st Cir.
1989); United States v. Babb, 807 F.3d 272 (1st Cir. 1986). In
drawing an adverse inference from four reasonable and appropriate
perjury warnings, we are acting at cross-purposes with our firm
guidance regarding warnings in grand juries, and unnecessarily
burdening prosecutors who legitimately offer appropriate perjury
warnings.
-35-
received a perjury warning and testified over several days in a
complex case about events occurring in the past, can advance at
least a strong claim for access to his prior testimony, thereby
creating precisely the kind of procedural delay the Supreme Court
has warned against.
The prosecutors responsible for coordinating the grand
jury investigation will now have to defend these claims, which the
district courts will need to adjudicate.23 Handling these tasks
will inevitably distract prosecutors and judges while delaying and
sometimes even derailing important grand jury investigations. This
problem is only compounded by the fact that our lenient new test
will give witnesses every incentive to engage in obstreperous
23
The majority claims that its opinion does not require a district
court to review the transcript of grand jury proceedings in all
cases, Maj. Op. at 23 & n.10, but, under the logic of the
majority's analysis, the district court necessarily must review the
transcript to determine whether the witness can satisfy the "less
demanding requirement of particularized need." Without such a
review, it is difficult to imagine how a district court can
determine whether perjury warnings were sufficiently numerous and
abusive or a witness's testimony sufficiently complex to justify
relief.
The majority claims that other procedures, such as witness
testimony or proffers and government rebuttal, might allow the
district court to determine whether a witness has satisfied the
majority's lower standard. Maj. Op. at 23. But the district court
will be unable to accept as true a witness's statements in this
posture, see Maj. Op. at 19-20 n.8, and as this case demonstrates,
witnesses and prosecutors will disagree sharply over what
transpired before the grand jury. Consequently, as a practical
matter, a district court will abuse its discretion if it fails to
review the transcript of a witness's grand jury testimony to
determine whether the less demanding requirement of particularized
need has been satisfied.
-36-
conduct in an effort to cause their testimony to continue over to
a second day in the hope of gaining access to a transcript.24
This case is proof that all but the most stringent
standards of witness access will create slippage that threatens to
undermine the orderly operation of grand juries. As these
proceedings demonstrate, witnesses, advocates, and even judges can
and do disagree regarding a witness's evasiveness and
obstreperousness, as well as the propriety of prosecutors'
questioning. Because such disagreements have the potential to
stymie the efficient operation of grand juries and the interests of
witnesses are protected under other provisions of federal law, the
Supreme Court and our own precedents require that grand juries be
permitted to pursue their work without the threat of these types of
proceedings.
Moreover, the break in the appellant's testimony,
occasioned by the need to hear another witness, would have been
about one week in length had the appellant not delayed it further
first to accommodate his counsel, and then again, to wage this
24
The majority suggests that "[a] witness cannot establish a need,
let alone a particularized one, if the purported need was self-
induced." Maj. Op. at 24. The problem, of course, is that the
need in this case was self-induced. The witness responded to
straightforward questions with evasive and sometimes misleading
responses, which the majority fails to acknowledge. See infra note
27. It was these responses to questions (and the prosecutors'
sensible attempts to follow-up) rather than any particularly
technical details of the testimony that occasioned the witness's
unease in this case.
-37-
protracted battle over access. Indeed, a transcript of the
appellant's testimony was not available until approximately one
month after his initial testimony. The majority claims that such
a one month delay is "slight" and will not "impede an investigation
significantly," Maj. Op. at 18, but I simply cannot agree. Grand
juries are normally limited to eighteen month terms, Fed. R. Crim.
P. 6(g), and a delay of one month is hardly slight or
insignificant. Moreover, the majority's ruling leaves open the
strong likelihood that there will be multiple witnesses appearing
before a single grand jury who may be able to assert a right to
review grand jury transcripts, which will further degrade a grand
jury's ability to execute its functions in an expeditious manner.25
Thus, as this case also demonstrates, the majority's rule has
significant potential needlessly to saddle grand jury proceedings
with delay and unnecessarily encrust them with precisely the sorts
of procedural requirements that the Supreme Court has warned
against.
III.
The facts of this case only confirm the adverse effect
the majority's new standard will have on the efficiency and
25
I can take no comfort in the majority's observation that "there
is no evidence that the D.C. Circuit's more lenient rule has had
any detrimental [e]ffect on grand jury investigations in that
circuit," Maj. Op. at 18, because no such evidence was offered by
either party or requested by this court, and in view of the secrecy
that properly shrouds grand jury proceedings, such evidence should
not be readily discernible.
-38-
expeditiousness of the grand jury process. The majority claims
that threats of perjury prosecution and the complexity of testimony
jointly suffice to meet its lower threshold. Maj. Op. at 20, 22.
But the record reflects only four perjury warnings and no
particularly outrageous conduct on the part of the prosecutors, nor
does it bear out the majority's claim of complexity.
During the course of three hours and fifteen minutes of
testimony, the record reveals only four perjury warnings. The
first was given at the beginning of the witness's testimony,
reminding him that the use immunity order does not extend to
perjury or obstruction of justice:
PROSECUTOR: [Y]ou also understand that the
order [granting use immunity] does not protect
you if you lie, mislead or obstruct this grand
jury's investigation, do you understand that?
WITNESS: I do understand that yes.26
The second warning was given when a different prosecutor
first began questioning the witness:
PROSECUTOR: All right. Well you know [name
redacted] I'm going to caution you, and [the
other prosecutor] told you this earlier.
Despite the fact that you have received
immunity today, if your testimony is designed
to mislead this grand jury or is evasive or
equivocal, you can be charged with obstruction
of justice, do you understand that?
26
Ofttimes, a prosecutor will have more than one purpose for this
introductory perjury warning, including the buttressing of the
witness's anticipated testimony by suggesting -- through the
perjury warning -- that the immunized witness has every incentive
to tell the truth.
-39-
WITNESS: I do understand that.
The third perjury warning was given after the witness
offered a series of evasive answers to straightforward questions:
PROSECUTOR: No, no. Look. Look, [name of
witness redacted], again let's make a --
you're here to tell the truth. Okay? This
isn't a game. All right? You're not here to
defend [third party] or defend your own
actions. You have immunity. The only way you
get into trouble here is if you lie or mislead
this grand jury. Do you understand this
concept?
WITNESS: I do.27
The fourth and final perjury warning was given purely
prophylactically after a two hour lunch break:
27
The majority relies on a prosecutor's admonition that the lawyers
presenting and the grand jurors hearing the case were "laymen" to
conclude that the witness's answers were not evasive or
obstreperous but rather "highly technical." Maj. Op. at 22 n.9.
What the majority overlooks is that the prosecutors in this case
were attempting to elicit from the witness basic facts regarding
whether a third party was warned of a particular danger, and if so,
when and in what level of detail. The witness claimed that such a
warning was provided at a meeting at which he was present, but when
pressed, conceded that the warning was not given at the meeting.
Unlike the details of a warning, which may be technical, the fact
of whether a warning was given, and if given, its subject is not
normally, and in this case was not "highly technical." The
witness's failure to address this question in a straightforward or
even consistent manner is one of many examples of his evasiveness.
Furthermore, I note that the witness requested and was granted
the opportunity to consult with counsel shortly after the exchange
the majority describes. This further reinforces my conclusion that
the prosecutors were not behaving abusively or attempting to
overbear the witness. Instead, the prosecutors respected the
witness's rights and were only interested in eliciting the truth,
which the witness was obfuscating considerably.
-40-
PROSECUTOR: [Name redacted], just to remind
you, can you please acknowledge that you
understand that you are still under oath?
WITNESS: I do understand that, yes.
Other than these warnings reminding the witness that use
immunity does not extend to perjury or obstruction of justice, the
words "perjury," "lie," "obstruct," or other similar words and
phrases appear in the transcript only infrequently and
inconsequentially. The record further clarifies that the few times
the prosecutors acted in a way that could be characterized as
confrontational, see Maj. Op. at 20, 22 n.9, the witness was
providing obviously evasive and non-responsive answers.28
28
The majority too quickly dismisses the witness's obstreperous
conduct and his consistently unresponsive and insufficient answers
to legitimate questions, and the majority further fails to
acknowledge the obvious systemic harm that flows from such conduct.
Maj. Op. at 24 n.11. This omission is puzzling in light of the
majority's concern for systemic benefits that come from access.
See Maj. Op. at 15. When one considers the appellant's conduct in
this case, it is clear that any hardship that he has experienced is
"self-induced," that prosecutors provided him with warnings in
compliance with our case law, see supra note 22, and that the
majority's new rule will grant witnesses wide latitude to avoid
cooperating with grand juries and prosecutors searching for the
truth.
Finally, the fact that I disagree so sharply with the majority
over what transpired in this case and the severity of the
prosecutors' perjury warnings reaffirms the wisdom of our decisions
in Bottari, Bianchi, and Special Proceedings -- consistent with
Supreme Court precedent -- to avoid such disputes altogether by
applying a rigorous "strong showing of particularized need"
standard for all access to grand jury transcripts, while relying on
the other substantial protections found in federal law to protect
the interests of witnesses.
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In addition, it is important to note that although some
of the substantive subject matter in this case may be technical,
for the most part, the prosecutors did not dwell on the technical
complexities. It is also worth noting that the witness admitted to
having reviewed many of the documents pertinent to his testimony
with his attorney in the days and weeks prior to his testimony.
This preparation should substantially ameliorate the majority's
concern regarding both the technical and the "ancient" nature of
the testimony. Moreover, the witness was given the opportunity to
consult with counsel, who was available outside of the grand jury
room, and the record reflects that the witness consulted with
counsel at least twice, which should further palliate concerns that
anything unfair occurred here.
IV.
Because I find that the majority's newly invented lesser
standard of need is inconsistent with our precedent, significantly
detracts from important interests of grand jury secrecy and
preventing witness intimidation, substantially overemphasizes the
interests of a witness, encrusts grand jury proceedings with
needless procedural complications, and is insupportable on this
record, I respectfully dissent.
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