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156

Disclosure of matters occurring before the grand jury to Department of Justice attorneys and Assistant United States Attorneys

Disclosure of materials covered by Federal Rule of Criminal Procedure 6(e) may be made without a court order "to an attorney for the government for use in the performance of such attorney's duty." See Fed. R. Crim. P. 6(e)(3)(A)(i). "Attorney for the government" is defined in Fed. R. Crim. P. 1(b).

Rule 6(e)(3)(A)(i) does not authorize disclosure to attorneys for other Federal government agencies. See United States v. Bates, 627 F.2d 349, 351 (D.C.Cir. 1980). Nor is disclosure permitted under this section to attorneys for States or local governments. In re Holovachka, 317 F.2d 834 (7th Cir. 1963); Corona Construction Co. v. Ampress Brick Co., Inc., 376 F. Supp. 598 (N.D.Ill. 1974).

Rule 6(e)(2), Fed.R.Crim.P., prohibits "an attorney for the government" from disclosing matters occurring before a grand jury, except as otherwise provided in the rules. Rule 1(b), Fed.R.Crim.P., defines "attorney for the government" to include as the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, an authorized assistant of a United States Attorney, and certain other persons in cases arising under the laws of Guam. In United States v. Forman, 71 F.3d 1214 (6th Cir. 1995), the court of appeals held that an attorney employed in the Tax Division of the Department of Justice who had gained access to grand jury materials but had not been assigned to review the materials or to participate in the grand jury proceedings was not "an attorney for the government" because he was not an "authorized" assistant to the Attorney General with respect to the grand jury materials that he disclosed to the target of the investigation. The court of appeals, construing 28 U.S.C. § 515(a), held that an "authorized" assistant of the Attorney General is one whose superiors have assigned him or her to work in some official capacity on the criminal proceeding. Id. at 1220. Having found that Forman was not an "attorney for the government" with respect to the grand jury matter, the Sixth Circuit held that Forman was not bound by the secrecy requirement of Rule 6(e)(2), and it therefore reversed his criminal contempt conviction. United States v. Forman, 71 F.3d at 1217-1220.

It is the opinion of the Department of Justice that the Forman decision does not foreclose informal consultation by an Assistant United States Attorney with colleagues in his or her district or with an attorney in the Department of Justice about matters occurring before a grand jury.

  1. Consultation with Department of Justice Attorneys: The court of appeals' conclusion in Forman that some type of delegation or assignment is required in order for a Department attorney to be "an authorized assistant of the Attorney General" was based on 28 U.S.C. § 515(a), which provides in pertinent part that an "officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, * * *, including grand jury proceedings * * *, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought." It is the Department's practice that "[g]overnment attorneys (other than Assistant United States Attorneys) who actually appear before the grand jury generally receive letters signed by the Assistant Attorney General for the pertinent Division authorizing them to appear before the grand jury as 'an authorized assistant of the Attorney General.'" Federal Grand Jury Practice at p. 169; see also USAM 9-11.241. Thus, Department attorneys -- as opposed to United States Attorneys and Assistant United States Attorneys -- may appear before a grand jury as "an attorney for the government" under Rule 6(d) only when they are specifically directed to do so by the Attorney General. See United States v. Sells Engineering, Inc., 463 U.S. 418, 428-429 n.12 (1983). Even in that context, however, the "specific direction to an attorney regularly employed on a full-time basis by the Department of Justice need not be embodied in a written authorization specific to the matter under investigation, but may be implied from other writings, guidelines, practices and oral directions transmitted through a chain of command within the Department." In re Persico, 522 F.2d 41, 66 (2d Cir. 1975); cf. United States v. Balistrieri, 779 F.2d 1191, 1207-1210 (7th Cir. 1985), cert. denied, 475 U.S. 1095 (1986).

    United States Attorneys and Assistant United States Attorneys may continue informally to consult with attorneys in the Department of Justice about grand jury investigations and to disclose matters occurring before the grand jury during those consultations without violating Rule 6(e)(2). As a matter of longstanding custom and practice, one of the duties of a Department of Justice attorney is to provide advice and assistance to United States Attorneys and Assistant United States Attorneys concerning grand jury investigations. In contrast to the level of participation required to conduct a grand jury proceeding, a Department of Justice attorney's participation is more limited when he or she is called upon to consult informally about matters occurring before a grand jury. Title 28 U.S.C. § 515(a) does not require that a Department of Justice attorney receive specific direction from the Attorney General to participate in a grand jury proceeding in that limited capacity. Nor has the Department ever had a practice of specifically directing Department of Justice attorneys to consult with United States Attorneys and Assistant United States Attorneys about grand jury investigations on a case-by-case basis. Department of Justice attorneys have a duty to confer with United States Attorneys and Assistant United States Attorneys about official matters, including matters occurring before the grand jury. Thus, a Department of Justice attorney is "authorized" to provide such advice and assistance in the performance of such attorney's duty. In those circumstances, the Department attorney is an "attorney for the government" and is bound by the grand jury secrecy rule of Rule 6(e)(2). Accordingly, United States Attorneys and Assistant United States Attorneys may disclose matters occurring before a grand jury to a Department of Justice attorney pursuant to Rule 6(e)(3)(A)(i) during consultations.

  2. Consultation within the U. S. Attorney's Office concerning matters occurring before the grand jury: It is also appropriate for a United States Attorney and Assistant United States Attorneys to disclose grand jury matters to one another pursuant to Rule 6(e)(3)(A)(i) when seeking advice regarding the handling of a grand jury investigation. Unlike Department of Justice attorneys who are governed by 28 U.S.C. § 515(a), United States Attorneys and Assistant United States Attorneys need not obtain any specific authorization from the Attorney General to conduct grand jury proceedings within their districts. All United States Attorneys and Assistant United States Attorneys are authorized by virtue of their appointment to conduct grand jury proceedings in their district. The authority of United States Attorneys to conduct grand jury proceedings is derived from 28 U.S.C. §  547, which directs United States Attorneys to "prosecute for all offenses against the United States" within their district. Assistant United States Attorneys derive their authority to conduct grand jury proceedings in the district of their appointment from 28 U.S.C. § 542. See USAM 9-11.241. Thus, United States Attorneys and Assistant United States Attorneys may disclose matters occurring before a grand jury pursuant to Rule 6(e)(3)(A)(i) to another Assistant United States Attorney in their district during informal consultations. In those circumstances, the Assistant United States Attorney consulted about the grand jury matter is an "attorney for the government" who is bound by the grand jury secrecy requirement of Rule 6(e)(2).

  3. Disclosure of Matters Occurring before the Grand Jury to Department of Justice attorneys for use in civil case: Disclosure of matters covered by Rule 6(e) to Department of Justice attorneys for use in a civil suit is permissible only pursuant to a court order under Rule 6(e)(3)(C)(i). United States v. Sells Engineering, Inc., 463 U.S. 418 (1983).

    When disclosure is authorized by court order under Rule 6(e)(3)(C)(i), of the Federal Rules of Criminal Procedure, for use in civil proceedings, there is a danger of misuse, or the appearance thereof, when such disclosure is made during the pendency of the grand jury investigation. There is no rule of law that would require a civil disclosure within the Department to be deferred until the relevant criminal investigation has been completed. Unless there is a genuine need for disclosure during the pendency of the grand jury investigation, however, it is the better practice to forestall the disclosure until the criminal investigation is completed.

  4. Prosecutions for Disclosure of Grand Jury Matter: Although the Forman decision precludes the government from prosecuting Department of Justice attorneys for criminal contempt under 18 U.S.C. §  401(3) for surreptitiously obtaining and disclosing grand jury material when the attorney had not been assigned to work on the grand jury investigation in any capacity, the decision does not prevent the government from prosecuting a United States Attorney, an Assistant United States Attorney, or a Department of Justice attorney who obtains grand jury information in his or her official capacity for criminal contempt under 18 U.S.C. §  401(3) if he or she makes an unauthorized disclosure of grand jury information. Additionally, other persons bound by the rule of grand jury secrecy in Rule 6(e)(2) are subject to prosecution for criminal contempt under 18 U.S.C. § 401(3) for the unauthorized disclosure of grand jury information.

The unauthorized disclosure of grand jury information can also be punished under other criminal statutes as well as pursuant to a district court's contempt powers. If an individual discloses grand jury material with the intent to obstruct an ongoing investigation, he or she may be prosecuted for obstruction of justice under 18 U.S.C. § 1503. See United States v. Jeter, 775 F.2d 670, 675-679 (6th Cir. 1985), cert. denied, 475 U.S. 1142 (1986); United States v. Howard, 569 F.2d 1331, 1334-1335 (5th Cir.), cert. denied, 439 U.S. 834 (1978). In addition, an individual who improperly disseminates grand jury materials may be prosecuted for the theft of government property under 18 U.S.C. § 641. See United States v. Jeter, 775 F.2d at 679-682; United States v. Friedman, 445 F.2d 1076 (9th Cir.), cert. denied, 404 U.S. 958 (1971); see also United States v. Girard, 601 F.2d 69, 71-72 (2d Cir.), cert. denied, 444 U.S. 871 (1979) (theft of information from DEA computers); United States v. DiGilio, 538 F.2d 972, 976-981 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977) (theft of grand jury information from FBI files). Compare United States v. Collins, 56 F.3d 1416, 1419-1420 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 737 (1996) (§ 641 applies to intangible property) with United States v. Tobias, 836 F.2d 449, 450-452 (9th Cir.), cert. denied, 485 U.S. 991 (1988) (§ 641 does not apply to intangible property).

On August 29, 1996, the Criminal Division of the Department of Justice sent the above information to the United States Attorneys and Criminal Division Section Chiefs. The information was contained in a Memorandum on the subject of Grand Jury Secrecy Requirements in the wake of United States v. Forman, 71 F.3d 1214 (6th Cir. 1995).

[updated October 2012] [cited in USAM 9-11.250; Tax Resource Manual 22]