Reports of Special Grand Juries
At the conclusion of its service, a special grand jury is
18 U.S.C. § 3333, by a majority vote of its members, to submit
district court, potentially for public release, a grand jury
report, which must
concern either: (1) noncriminal misconduct, malfeasance, or
misfeasance in office
involving organized crime activity by an appointed public officer
as the basis for a recommendation for removal or disciplinary
action; or (2)
organized crime conditions in the district, without however being
critical of any
identified person. ("Public officer or employee" is defined
broadly in 18 U.S.C.
§ 3333(f) to include Federal, State and local officials.)|
Upon receiving a report from a special grand jury, the
district court must
examine it, together with the minutes of the special grand jury,
and accept it,
for eventual filing as a public record, if the report is: (1) one
of the two
types authorized by 18 U.S.C. § 3333(a); (2) based upon facts
the course of an authorized criminal investigation; (3) supported
preponderance of the evidence; and (4) if each public officer or
in the report was afforded a reasonable opportunity to testify and
witnesses on his/her own behalf before the special grand jury,
prior to its
filing the report. (It would seem that 18 U.S.C. § 3333(a)
recording of the proceedings if a special grand jury may issue a
The wording and the legislative history of 18 U.S.C.
§§ 3332(a) and
3333(b)(1) indicate that a special grand jury should not
investigate for the sole
purpose of writing a report; the report must emanate from the
investigation. At bottom, then, a special grand jury functions
a regular grand jury. It is only after the "completion" of the
investigation, when the time is near for discharging the jury, that
a report may
be submitted to the court under 18 U.S.C. § 3333(a). The grand
jury will by
that time have exhausted all investigative leads and have found all
The "misconduct," "malfeasance," or "misfeasance" that may be
of a report (provided it is related to organized criminal activity)
must, to some
degree, involve willful wrongdoing as distinguished from mere
inaction or lack
of diligence on the part of the public official. Nonfeasance in
if it is of such serious dimensions as to be equatable with
misconduct, may be
a basis for a special grand jury report. See S.Rep. No.
617, 91st Cong.,
1st Sess. (1969), reprinted in 1970 U.S.C.C.A.N. 4007.
Reports involving public officials must connect "misconduct,"
"malfeasance," or "misfeasance" with "organized criminal activity."
criminal activity" should be interpreted as being much broader than
crime;" it includes "any criminal activity collectively
statement is based upon the legislative history of 18 U.S.C. §
of 18 U.S.C. § 3333, but both sections were part of the
Control Act of 1970, making it logical to construe the term the
same way for both
sections. See 116 Cong. Rec. 35,290 (October 7, 1970).
Before the district court may enter as a public record a
special grand jury
report concerning appointed public officers or employees, a complex
must be followed as set down in 18 U.S.C. § 3333(c).
If a court decides that a report submitted to it by a special
regarding a public officer or employee does not comply with the
law, the court
may seal the report and keep it secret or, for remedial purposes,
order the same
grand jury to take additional testimony. For purposes of taking
testimony, a special grand jury may be extended to serve for longer
thirty-six months (but this is the only exception to the thirty-six
If the district court feels that the filing of a special grand
as a public record would prejudice the fair consideration of a
matter, the court is authorized under 18 U.S.C. § 3333(d) to
keep the report
sealed during the pendency of that matter. Sealed for such a
reason, the report
would not be subject to subpoena.
When appropriate, United States Attorneys will deliver copies
of grand jury
reports, together with the appendices, to the governmental bodies
jurisdiction to discipline the appointed officers and employees
in "organized criminal activity" is the subject of the report.
U.S.C. § 3333(c)(3). (The prospect of such disciplinary action
prevent the officer's or employee's being compelled to testify
under a grant of
immunity.) See In re Reno, 331 F. Supp. 507 (E.D.
[cited in USAM 9-11.330]