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RFPA
Form Q-2 -- Memorandum in Support of Motion for an Order Prohibiting
Notification of the Service of Grand Jury Subpoena
IN THE UNITED STATES DISTRICT COURT
FOR THE _______ DISTRICT OF _______
IN RE: GRAND JURY SUBPOENAS
DUCES TECUM, DATED
MISC. NO. _____________
(INSERT DATE OF SUBPOENA)
MEMORANDUM IN SUPPORT OF MOTION
FOR AN ORDER PROHIBITING NOTIFICATION
OF THE SERVICE OF GRAND JURY SUBPOENA
The United States has moved the Court to prohibit (insert name of bank)
from disclosing to its customers, for a period of ninety days, that the bank
has
been served with a Grand Jury subpoena duces tecum. [FN1] The motion is
filed
under the terms of the Right to Financial Privacy Act, 12 U.S.C. Section
3401 et
seq., pursuant to the Court's inherent powers, and under the provisions of
the
All Writs Act, 28 U.S. C. Section 1651. The Government's application is
made
for the soundest of reasons. [FN2] The Order whose entry is requested is
framed
in terms that parallel precisely the terms of the delayed-notice provisions
of
the Right to Financial Privacy Act, 12 U.S.C. Section 3409. And, the Order
has
been framed to be issued pursuant to the Court's inherent powers, and under
the
terms of the All Writs Act, 28 U.S.C. Section 1651. See United
States
v. New York Telephone Co., 434 U.S. 159, 172-178 (1977). The Order is
drawn
so that no one will be prohibited from relating "facts within their
knowledge
acquired beyond the grand jury room;" United States v. Central Supply
Association, 34 F. Supp. 241, 245 (N.D. Ohio 1940). Rather, by the
least
restrictive available means, the Order will simply defer the time at which
the
(insert name of bank) will become free to disclose publicly what it stated
to or
learned from the Grand Jury; King v. Jones, 319 F. Supp. 653, 658-659
(N.D. Ohio 1940). In pertinent part, Rule 6(e) of the Federal Rules of
Criminal
Procedure provides that "No obligation of secrecy may be imposed upon any
person
except in accordance with this rule." [FN3] Although seemingly absolute on
its
face, those parts of Rule 6(e) were designed to ameliorate the "unnecessary
hardship" of imposing an oath of secrecy upon the witness concerning
testimony
before the grand jury. See Fed. R. Crim. P., Rule 6(e), Advisory Committee
Note
2 (emphasis supplied). [FN4] Both prior and subsequent to the enactment of
Rule
6(e) of the Federal Rules of Criminal Procedure, the courts have recognized
that
some circumstances exist in which some appropriate limitation upon
disclosure of
matters may be imposed upon grand jury witnesses, despite the seemingly
absolute
language of the Rule. In Goodman v. United States, 108 F.2d 516 (9th
Cir.
1939), the court found it "well within the descretionary power of the court
to
impose an obligation of secrecy not alone upon grand jurors, but upon the
witnesses, if the court believes the precaution necessary in the
investigation
of crime." Id. at 520. And, in United States v. Central Supply
Association, 34 F. Supp. 241, 245 (N.D. Ohio 1940), the court enumerated
at
least five circumstances in which such a precaution might be found
"necessary in
the investigation of crime." See King v. Jones, supra,
319
F. Supp., at 658. Following the enactment of Rule 6(e) of the Federal
Rules of
Criminal Procedure in 1946, 5 F.R.D. 573, 583 (1946), [FN5] the witness
secrecy
provision of Rule 6(e) of the Federal Rules of Criminal Procedure was not
subjected to judicial scrutiny until the decision in United States v.
Smyth, 104 F. Supp. 279 (N.D. Cal. 1952). Finding that the rule
enunciated
in Goodman survived the enactment of Rule 6(e) of the Federal Rules of
Criminal
Procedure, the Smyth court noted that: . . . the secrecy of grand jury
proceedings is of substance and not of procedure. The power of the trial
court
to enforce secrecy is jurisdictional and a necessity if grand juries are to
function. The Federal Constitution encysted the common law grand jury with
all
its incidents. The Rules could not change the Constitution nor prevent the
court
from imposing secrecy upon everyone in connection with such a proceeding in
the
public interest. See also United States v. Central Supply
Association, 34 F. Supp. 241 (N.D. Ohio 1940). Symth,
supra,
104 F. Supp. at 280-81, n.5.
FN1. The requested Order would also prohibit the financial institution
from
notifying its customers of the matter of the documents subpoenaed, and of
the
nature and extent of compliance by the institutions with the subpoena's
terms.
FN2. The reasons advanced by the Government are explicated fully in an
Affidavit
filed ex parte and in camera together with this pleading. The government
contends that the finon and its customers are not entitled to those reasons
at
this time, and requests the court to retain the Affidavit filed by the
government
under seal of court.
FN3. Rule 6(e) of the Federal Rules of Criminal Procedure provides:
- General Rule -- A grand jury, an interpreter, a stenographer, an
operator of a recording device, a typist who transcribes recorded testimony,
an
attorney for the Government, or any person to whom disclosure is made under
paragraph (2)(A)(ii) of this subdivision shall not disclose matters
occurring
before the grand jury, except as otherwise provided for in these rules. No
obligation of secrecy may be imposed on any person except in accordance with
this
rule. A knowing violation of Rule 6 may be punipt of court. (Emphasis
added.)
FN4. Whatever "hardship" may be imposed upon the witnesses served with
the
requested Orders is clearly not "unnecessary." To the contrary, the
imposition
of any such "hardship" is essential to preserve the legitimate functions of
the
grand jury and the integrity of the judicial process itself. And, whatever
"hardship" may be imposed is, in any event, not overly burdensome on either
those
subject to the orders or the customers themselves.
FN5. It is interest one of the framers of Rule 6(e) of the Federal Rules of
Criminal Procedure suggested that the Rule itself contemplated the possible
imposition of a limited oath of secrecy upon grand jury witnesses, and that
the
purpose of including the witness secrecy provision of the Rule was only to
circumscribe the type of oath which might properly be imposed. After noting
that
the "Rule is specific that 'no obligation of secrecy may be imposed on any
person
except in accordance with this rule,'" George F. Longsdorf, a member of the
Advisory Committee that drafted the original version of the Federal Rules of
Criminal Procedure, suggested in 1951, that the "rules do not prescribe the
forms
of oaths to be taken by grand jurors or by witnesses called before the grand
jury." That fact was mentioned, he added, "to make allusion to the
practices
sometimes formerly followed of exacting before Federal grand juries a form
of
oath to witnesses which exacted greater secrecy than Rule 6(e) requires."
G.F.
Longsdorf, The Beginnings and Background of Federal Criminal
Procedure,
in 4 W.W. Barron, Federal Practice and Procedure, at 24 (Rules ed.
1951).
The same conclusion has been reached by each of the other courts that
have
considered the courts' powers to impose some appropriate limitations upon
the
disclosures which federal grand jury witnesses are able to make. See
In re Proceedings Before The Grand Jury Summoned October 12, 1970,
321 F.
Supp. 238, 240 (N.D. Ohio 1970); King v. Jones, supra 319 F.
Supp., at 657; In re Grand Jury Witnesses, 370 F. Supp. 1282, 1285
n.5
(S.D. Fla. 1974). Furthermore, the entry of an Or requested here is well
within
the powers of the Court. The grand jury is an arm of the court, which
exercises
jurisdiction of persons and subjects under the authority and supervision of
the
Court. In re Long Visitor, 523 F.2d 443, 446-47 (8th Cir. 1975), and
In re Gompman, 531 F.2d 262, 266 (5th Cir. 1976). As the Supreme
Court
noted in Brown v. United States, 359 U.S. 41, 49 (1958): A grand
jury is
clothed with great independence in many areas, but it remains an appendage
of the
court, powerless to perform its investigative function without the court's
aid,
because powerless itself to compel the testimony of witnesses. It is the
court's
process which summons the witness to attend and give testimony, and it is
the
court which must compel a witness to testify if, after appearing, he refused
to
do so. [FN6] See also O'Bryan v. Chandler, 352 F.2d 987, 990
(10th
Cir. 1965); In re A & H Transportation, Inc., 319 F.2d 69, 71 (4th
Cir.
1963); and In re Seiffert, 446 F. Supp. 1153 (N.D. N.Y. 1978). The
power
of a district court to enforce secrecy is jurisdictional and an incident of
the
court's supervisory authority over grand juries "encysted" by the
Constitution.
See United States v. Smyth, supra, at 280-81, n.5.
FN6. Since the grand jury is able to compel the attendance of witnesses
only
through the use of the district court's process, it might well be argued
that the
district court has the power in this case to issue the requested Orders as a
logical derivative of its power to issue the subpoenas duces tecum to which
the
Order relates, under Rule 17 of the Federal Rules of Criminal Procedure. In
such
case the witness secrecy provision of Rule 6(e) of the Federal Rules of
Criminal
Procedure may not be called into play at all.
Federal courts are endowed by All Writs Act, Title 28, United States
Code,
Section 1651, with "the power to issue such commands . . . as mao effectuate
and
prevent the frustration of orders . . . previously issued in (the) exercise
of
jurisdiction otherwise obtained." United States v. New York Telephone
Co., supra, at 172. While "the power of federal courts to impose
duties upon third parties is not without limits," id., the district
courts
should be "trusted to exercise their powers under the All Writs Act only in
cases
of clear necessity and to balance the burden imposed upon the party required
to
render assistance against the necessity." Id. at 165, n.5. Though
"unreasonable burdens may not be imposed," the power conferred by the All
Writs
Act is available "as a 'legislatively approved source of procedural
instruments
designed to achieve "the rational ends of law" ' " Id. at 172, citing
Harris v. Nelson, 394 U.S. 286, 299 (1969); and Price v.
Johnston,
334 U.S. 266, 282 (1948).
The requested Order is sought under the terms of the All Writs Act, to
render effective the process of this grand jury. That process consists in
the
subpoena duces tecum to which the Order relates. The subpoena is no more
than
"orders . . . previously issued in (the) exercise of jurisdiction otherwise
obtained" and properly exercised, either directly by the district court or
through its investigative arm, the grand jury. The requested Order is simply
a
"command" issued by the court, in the exercise of its discretion, "necessary
to
effectuate and prevent the frustration" of the grand jury's process.
Appropriately balancing "the burden imposed upon the party required to
render
assistance against the necessity" presented by the facts which compelled the
government to seek issuance of the Order, the government contends that the
Court
should find the Order both permissible and necessary under these
circumstances;
essential to preserve the legitimate functions of the grand jury; rationally
related to the reasons for which it is sought; and not overly burdensome on
those
subject to the Order or on the customers of (insert name of the bank).
Compare United States v. New York Telephone Co., supra
at
174.
Finally, the court should note that the entry of an Order such as that
sought here is not without precedent. Indeed, in a recent decision, the
Fourth
Circuit implicitly approved the entry of such an Order under similar
circumstances. See In re Swearingen Aviation Corporation,
etc., 486 F. Supp. 9 (D. Md.), aff'd 605 F.2d 125 (4th Cir.
1979).
Respectfully submitted,
________________________
United States Attorney
By: ________________________
Assistant U.S. Attorney
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