Government Abuse of Rule 6(e)’s Grand Jury Secrecy Requirement (7/31/21)

In Harbor Healthcare System, L.P. v. United States, 2021 U.S. App. LEXIS 20988  (5th Cir. 7/15/21) (Unpublished), here, a nontax case, the Court had this interesting footnote (Slip Op. 6 n. 1):

   n1 The government asserts several times in its brief that “Harbor is a subject of a grand jury proceeding.” Under Rule 6 of the Federal Rules of Criminal Procedure, the government’s attorneys “must not disclose a matter occurring before the grand jury.” Fed. R. Crim. P. 6(e)(2)(B)(vi); see also In re Grand Jury Investigation, 610 F.2d 202, 213, 219 (5th Cir. 1980) (“Punishment for contempt of court is the sanction specifically authorized by Rule 6(e)(1) for violations of its provisions, and a contempt citation will generally provide an adequate remedy for such violation.”); Wayne R. LaFave et al., Secrecy Requirements, 4 Crim. Proc. § 15.2(i) (4th ed. 2020) (discussing the need to “keep secret the subject of the grand jury’s inquiry while it is considering the possible issuance of an indictment” (citing United States v. Proctor & Gamble Co., 356 U.S. 677, 681 n.6 (1958))). An exception exists for “[t]he court [to] authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter preliminarily to or in connection with a judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(E)(i). The government has not pointed to such authorization by this or another court.

JAT Comments:

1. I am sure that attorneys with substantial experience in white-collar crimes, including tax crimes, have had instances, particularly in the old days when the Thompson memorandum applied, where the Government let the entity know that an employee was not “cooperating” after the employee asserted the Fifth Amendment either in a proffer session or before the grand jury.