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168.

Sample Government Application for Permission to Disclose Grand Jury Records for Restitution Purposes

TO THE HONORABLE LEE ROSENTHAL:

COMES NOW the United States of America by and through Gaynelle Griffin Jones, United States Attorney in and for the Southern District of Texas, and the Office of Consumer Litigation, United States Department of Justice, and files this

Application for Permission to Disclose Records Subpoenaed by the Grand Jury, and states as follows:

INTRODUCTION

The government has completed prosecution of the defendants in this action. Since defendant XXXXXX XXXXXX, Sr., sold the cars to retailers, many of the consumer victims do not know that XXXXXX was the source of their vehicle. It would now be appropriate to inform victims of the defendants' rollback activities that the vehicles they purchased were in fact rollbacks. Because the grand jury subpoenaed many of the documents which identified the rollbacks, the government seeks the Court's approval for the proposed process in order to avoid any question whatsoever regarding compliance with the grand jury secrecy requirements of Fed. R. Crim. P. 6(e).

I. THE NATURE OF THE PROPOSED NOTICE

The government proposes sending a notice to inform consumers that the vehicle they purchased has an altered odometer. The notice would only be sent where the vehicle in question has been positively identified as a rollback. Such a notice would serve at least three important functions:

First, it would inform the consumer that the vehicle's mileage is higher than the consumer believed, thus indicating a need for increased scrutiny for potential mechanical failure.[FN1]
FN1. In enacting statutory requirements barring odometer fraud, Congress found that "an accurate indication of the mileage traveled by a motor vehicle assists the purchaser in determining its safety and reliability[.]" 15 U.S.C. § 1981.
Second, it would prevent the consumer from continuing the fraud by certifying false odometer information if the consumer resells the car.
Third, it would alert the consumer that he or she has been the victim of a crime, which would give rise to potential renegotiation of the purchase transaction with the dealer involved, or other possible civil remedies.[FN2]
FN2. The Victims' Rights and Restitution Act of 1990 recognized a legal right for victims of crimes to be informed of "any restitution or other relief to which the victim may be entitled under this or any other law and manner in which such relief may be obtained[.]" 42 U.S.C. § 10607(c)(1)(B).
In addition to sending a notice of the rollback, NHTSA (the investigating agency) would provide consumers seeking documentation of the rollback with copies of documents pertaining to the vehicle's mileage. Some of those documents were obtained through grand jury process, giving rise to this application.

II. THE NOTICE IN QUESTION WOULD NOT VIOLATE THE RULE BANNING THE DISCLOSURE OF "MATTERS OCCURRING BEFORE THE GRAND JURY"

Fed. R. Crim. P. 6(e) prohibits disclosure of "matters occurring before the grand jury" with certain exceptions, including "when so directed by a court . . . in connection with a judicial proceeding[.]" Rule 6(e)(3)(C)(i).

Initially, the government does not intend to disclose "matters occurring before the grand jury," but is filing this motion to avoid any question in this regard. While the fact that a particular vehicle was rolled back is known due to comparison of various records, some of which were subpoenaed by the grand jury, the government does not intend to disclose that the information was derived in part from the grand jury. Nor does the government intend to disclose to consumers that any documents provided were subpoenaed by the grand jury.

"Opinions" based on a grand jury investigation are not matters occurring before the grand jury. In re Grand Jury Investigation, 610 F.2d 202, 217 (5th Cir. 1980). Thus, the conclusion that a vehicle is a rollback is not such a matter. Moreover, the disclosure of business records does not reveal a "matter occurring before the grand jury" where the records are created for purposes independent of grand jury investigations and have legitimate uses unrelated to the substance of grand jury proceedings. See In re Grand Jury Investigation, 630 F.2d 996, 1000 (3d Cir.), cert. denied, 449 U.S. 1081 (1980).

In In re Grand Jury Investigation, the Fifth Circuit stated that Rule 6(e) applies to "anything which 'may tend to reveal what transpired before the grand jury.'" 610 F.2d at 216 (citation omitted). Accordingly, Rule 6(e) "is not intended 'to foreclose from all future revelation to proper authorities the same information or documents which were presented to the grand jury." In re Grand Jury Investigation, 630 F.2d 996, 1000 (3d Cir.), cert. denied, 449 U.S. 1081 (1980) (quoting United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960)). Here, the government proposes solely a disclosure of documents and information which were presented to the grand jury, not a large scale disclosure that would reveal what transpired.Thus, the government would be on sound footing to proceed without a Rule 6(e) order. Nevertheless, the government files this application to avoid any potential question regarding the propriety of this action.

III.THE VICTIMS' RIGHT TO KNOW PROVIDES A COMPELLING INTEREST IN DISCLOSURE

The Victims' Rights and Restitution Act of 1990 makes it clear that victims of crime have the right to information of the sort the government proposes to disclose. The statute states that crime victims have "[t]he right to be notified of court proceedings," "[t]he right to confer with the attorney for the government in the case," "[t]he right to restitution," and "[t]he right to information about the conviction, sentencing, imprisonment, and release of the offender." 42 U.S.C. §§ 10606(b)(3),(5),(6), & (7). These rights require that the victims understand the nature of the conduct at issue.

In this case, the spirit of the Act requires that victims be notified of the true mileage of the vehicles that they have purchased. Victims have the right to know that the sentencing of the offender and other court proceedings, in part, related to conduct that affected them. Furthermore, some consumers may have the right to civil remedies in relation to the purchase of their vehicle, which can only be adequately addressed using the kind of information the government is proposing to disclose. Finally, disclosure would help prevent further harm from occurring. Once the present owners are knowledgeable about the rollback, they are in a position to take appropriate safety precautions that relate to a high-mileage vehicle. Present owners also would be obligated by law to inform future purchasers that the true mileage of the vehicle is not known.

CONCLUSION

For the foregoing reasons, the government requests an order permitting the disclosure of vehicle information and documents pertaining to the true mileage of vehicles sold by the defendants in this case.

Dated: December 8, 1993 Respectfully submitted:

GAYNELLE GRIFFIN JONES United States Attorney

___________________________ ABRAN MARTINEZ Assistant United States Attorney (713) 238-9445

___________________________ KENNETH L. JOST Assistant Director

DOUGLAS W. STEARN Attorney

Office of Consumer Litigation P.O. Box 386 Washington, D.C. 20044 (202) 307-0048