Judge Criticizes Prosecutor's Use of Language Directing Secrecy for Receipt of Grand Jury Subpoena (1/4/16)

I hope that all readers of this blog know that grand jury proceedings are generally secret and the grand jurors and government actors in the process must keep them secret.  FRCrP 6(e)(2), here.  But the obligation of secrecy is not imposed on witnesses before the grand jury.  They may discuss their testimony before the grand jury and the documents they produced under grand jury subpoena.

In United States v. Gigliotti, 2015 U.S. Dist. LEXIS _____ (ED NY 12/23/15), here, Judge Dearie denied a motion to suppress evidence obtained pursuant to grand jury subpoena that unlawfully contained the following:

YOU ARE HEREBY DIRECTED NOT TO DISCLOSE THE EXISTENCE OF THIS SUBPOENA, AS IT MAY IMPEDE AN ONGOING INVESTIGATION.

When the Gigliottis first raised the issue, the prosecutors conced that the language was unlawful.  That alone was not satisfying, so the the Court ordered

Given the defenses’ persistent and understandable objections to language added to grand jury subpoenas, the Court orders the government to file a report detailing: (1) how extensively this or similar language has been used in grand jury subpoenas by the United States Attorney’s Office, (2) what training or procedures the Office has initiated to review grand jury subpoenas, and (3) what steps the Office has taken to ensure that similar language is not used in the future, absent specific judicial authorization.

The Court described the prosecutors' submission in response:

First and foremost, the government acknowledged (as it had before1) that its use of the Non-Disclosure Language was improper. ECF No. 107. The government asserted that it is not the practice and policy of the United States Attorney’s Office for the Eastern District of New York (the “Office”) to include such language in grand jury subpoenas to witnesses. Id. at 2. Rather, “Office and Departmental training instructs that non-disclosure may not be imposed on a grand jury witness absent statutory authority or judicial order.” Id. at 4. The government stated that absent such legal authority, the Office’s policy has been to include a request, not a command, for non-disclosure. Id. at 3.

Nevertheless, the government informed the Court that three of the thirty-eight grand jury subpoenas issued in connection with this case included the Non-Disclosure Language “in violation of [the Office’s] practice and policy.” Id. at 3-4. The government offered the curious representation to the Court that “[t]he inclusion of such language was inadvertent and unintentional,” having been “missed by undersigned counsel when the subpoenas were finalized by support staff.” Id. at 3. 

The government stated that “in light of the error revealed by the present motion, the government has issued letters to the three recipients of the grand jury subpoenas in question notifying them of the error and advising them that they are under no legal obligation not to disclose their receipt or responses to the subpoenas.” Id. at 3. The government also stated that following this Court’s order dated October 7, 2015, the Office directed all Assistant United States Attorneys (“AUSAs”) not to include requests for non-disclosure on the face of subpoenas. Id. Instead, such requests will now be made in a separate cover letter “[t]o avoid any appearance that such language carries with it judicial authority.” Id.

The Court then started its discussion:

The government’s improper directions to subpoena recipients are cause for serious concern. As the government acknowledges, Fed. R. Crim. P. 6(e)(2) imposes no obligation of secrecy on grand jury witnesses. See Fed. R. Crim. P. 6(e)(2)(A) (“No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).”); Fed. R. Crim. P. 6(e)(2)(B) (not including witnesses among the list of persons bound by an obligation of secrecy).  As the United States Supreme Court summarized in United States v. Sells Engineering, Inc., 463 U.S. 418 (1983), 

Rule 6(e) of the Federal Rules of Criminal Procedure codifies the traditional rule of grand jury secrecy. Paragraph 6(e)(2) provides that grand jurors, government attorneys and their assistants, and other personnel attached to the grand jury are forbidden to disclose matters occurring before the grand jury. Witnesses are not under the prohibition unless they also happen to fit into one of the enumerated classes. 

Id. at 425. As these authorities make clear, it was improper for the government to include the Non-Disclosure Language in grand jury subpoenas issued to witnesses.

The Court then held that suppression was not the appropriate remedy.

The Court, however, had the closing caution to the prosecutors:

A word of caution, however, to the government. This ruling is not meant to suggest that suppression, as drastic a remedy as it may be, or other significant sanctions, might not be available to a court should practices of this sort persist. Indeed, now that the government is unambiguously on notice of this problem and the need to correct it, continued violations could well warrant severe remedies. 

This admonition is triggered, in part, by the government’s disappointing response to the Court’s October 7, 2015, request for a delineation of the scope of this problem and the Office’s plan to address it. The Court takes little comfort in the fact that the Office’s official policy conforms to Rule 6(e); such policy was violated multiple times here, and it is apparent that such violations are not isolated to this case.4 And the Court is, frankly, bemused by the government’s rather glib explanation that the violations were simply “inadvertent and unintentional.”  

The Court’s bigger concern, however, is that the Office has not yet taken adequate steps to prevent violations of this sort from happening again. The Office’s direction to all AUSAs that grand jury subpoenas no longer include, on their face, non-disclosure requests is a step in the right direction. But the government has yet to explain, in specific terms, how it will ensure compliance with its policy moving forward, and it has yet to reassure the Court that it has adequately conveyed the seriousness of this issue to all of its AUSAs. The government proceeds at its peril.

JAT Comments:

1.  Obviously Judge Dearie was not pleased with either the original misconduct or the adequacy of the prosecutors' response.

2.  The decision has gathered significant press.  See e.g., Stephanie Clifford, Prosecutors’ Secrecy Orders on Subpoenas Stir Constitutional Questions (DealBook 12/31/05), here, and Andrew Keshner, Judge Denied Suppression Bid but Cautions U.S. Prosecutors (New York Law Journal 1/4/16), here.  The following is from the NYT DealBook

It is not unusual for prosecutors on the state and federal levels to include a sentence in a subpoena requesting a witness not disclose its existence. The law does not allow them to make it mandatory, however, unless a judge approves it. 

“You can always ask; you just can’t direct somebody not to disclose it without a judge’s order,” said Daniel R. Alonso, a former state and federal prosecutor. 

Mr. Alonso said prosecutors have good reasons for trying to keep subpoenas quiet, especially in organized crime cases. Once targets of an investigation know to whom investigators have spoken, they may try to destroy evidence or intimidate witnesses. Serving subpoenas, in essence, tips the government’s hand. 

“They don’t want them to know because of the risk they will tamper with evidence,” Mr. Alonso said. 

But defense lawyers say these requests, if followed, also hamstring a defendant’s legitimate ability to challenge a subpoena or mount a defense. The law is intended to create a higher bar for imposing a gag order on witnesses, forcing prosecutors to make a case to a judge that such a measure is necessary and obtain a court order.

3.  I have seen grand  jury subpoenas with the precatory "requests" rather than directions.  These requests are usually in a letter with the subpoena or, in some cases, might be oral.  So, long as the wording and context is sufficient to insure that the recipient of the subpoena would understand that it is not compulsory, I suppose it is OK.  Many witnesses might want to comply rather than irritate the prosecutor.