GRAND JURY MANUAL

 Introduction

 Chapter 1 - Getting Started

 Chapter 2 - The Requirement of Secrecy -- Rule 6(e)

 Chapter 3, Part I - Subpoenas

 Chapter 3, Part II - Subpoenas

 Chapter 4 - Presenting Evidence to the Grand Jury

 Chapter 5 - Immunity

 Chapter 6 - Multiple Representation/Conflicts of Interest

 Chapter 7 - Indictment and Information

 Chapter 8 - Perjury and Obstruction of Justice

 Chapter 9 - Plea Agreements

 Introduction

This new edition of the Antitrust Division Grand Jury Practice Manual was prepared to aid all
Division personnel in the performance of their grand jury-related responsibilities. It is designed
to be a single updated source for general legal, policy and procedural guidance relevant to such
responsibilities. Although a certain amount of detail is provided concerning the various criminal
laws the Division enforces, this Manual is intended to be a guide to grand jury practice and not a
comprehensive primer on criminal law enforcement. This Manual is intended to be as current as
possible, however, Division professionals should be alert to changes in substantive law and
Division procedures that may not be contained in this Manual.

This version of the Grand Jury Manual is a complete revision of the old Manual which should
now be discarded. It should be used in conjunction with the Antitrust Division Manual which
also provides valuable guidance in the criminal law enforcement area.

This manual provides only internal Department of Justice guidance. It is not intended to, does
not, and may not be relied upon to create any rights, substantive or procedural, enforceable at
law by any party in any matter civil or criminal. No limitations are hereby placed on otherwise
lawful investigative and litigative prerogatives of the Department of Justice.

Numerous attorneys, paralegals and secretaries throughout the Antitrust Division, including all
the employees in the FOIA Unit, contributed to this edition of the Manual. Without their effort,
performed in addition to their already heavy work-loads, this revision could not have been
produced. We all owe a debt of thanks to them.

Several individuals, in addition, deserve special recognition for their contribution to this edition
-- Elaine Fidler, proofed (and reproofed) this Manual and managed various other aspects of its
production; Jacqueline Jones, who typed (and retyped) the majority of the Manual; Kate Schlech,
who offered her sage comments on all the chapters of the Manual; John Powers, who reviewed
the legal analysis throughout the Manual and was always there to offer advice and guidance; and
especially Leo Neshkes, who took responsibility for this revision when it was faltering and
without whom this edition of the Manual would never have been produced.
 TABLE OF CONTENTS

I. Getting Started

A. Functions of the Grand Jury

B. Initial Steps in Starting a Grand Jury Investigation
1. Memo Requesting Authorization
2. Letters of Authority
3. Arranging for the Grand Jury and Preliminary Conferences
4. Types of Grand Juries
5. Public Comment and Contacts with Outside Counsel
C. Empaneling the Grand Jury
1. Empaneling Provision
2. Grand Jury Qualifications and Selection of Grand Jury
3. Objections to Grand Jury
4. Voir Dire
5. Alternate Grand Jurors
6. The Judge's Charge
D. Composition and Structure of the Grand Jury
1. General Composition
2. Duties of the Grand Jury Foreperson
3. Duties of the Grand Jury Secretary
4. Quorum and Effect of Lack of Quorum
5. Absence of Grand Jurors
6. Removal of a Grand Juror; Authority to Supplement
E. Recordation
F. Limitations on Grand Jury Power to Investigate
1. What May a Federal Grand Jury Investigate
2. Limitations on the Power to Investigate by District Court
3. Power of Grand Jury Limited by Prosecutor
4. What Objections can be Raised to the Grand Jury Proceeding and by Whom
G. Who May be Present -- Rule 6(d)
1. Who May be Present
2. The Effect of Presence of Unauthorized persons in Grand Jury Room
3. Effect of Having Ineligible or Disqualified Grand Juror Present
H. FBI and Other Assistance
1. Benefits of Using Outside Investigative Resources
2. Procedure for Obtaining Outside Investigative Help
3. Operational Suggestions
I. Checklist Before Conducting First Grand Jury Session
J. Checklist Before Conducting Subsequent Sessions

I. GETTING STARTED

A. Functions of the Grand Jury

The function of the grand jury is to investigate possible criminal violations of the federal laws
and to return indictments against culpable corporations and individuals where there is probable
cause to believe that a violation has occurred. In performing this function, "the grand jury is to
inquire into all information that might possibly bear on its investigation until it has identified an
offense or has satisfied itself that none has occurred."(1) The grand jury "is a grand inquest, a
body with powers of investigation and inquisition, the scope of whose inquiries is not to be
limited narrowly by questions of propriety or forecasts of the probable result of the investigation,
or by doubts whether any particular individual will be found properly subject to an accusation of
crime."(2) The grand jury is rooted in several centuries of Anglo-American history and "has the
dual function of determining if there is probable cause to believe that a crime has been
committed and of protecting citizens against unfounded criminal prosecutions."(3)

B. Initial Steps in Starting a Grand Jury Investigation

1. Memo requesting authorization

The Division's grand jury investigations must be approved by the Assistant Attorney General. If
a Division attorney believes that a criminal violation of the antitrust laws has occurred, he should
prepare a memorandum requesting authority to conduct a grand jury investigation ("the
authorization memo"). The authorization memo should set forth all presently available relevant
information that indicates that there may have been a violation of any of the criminal provisions
of the antitrust laws. (Sherman Act Sections l, 2, and 3). It should specify, to the extent possible:

1. The companies, individuals, industry, and commodity involved;

2. The estimated amount of commerce involved on an annual basis;
3. The geographic area affected and the district where the investigation is to be conducted;
4. The suspected violation and a summary of the supporting evidence;
5. The significance of the possible violation from an economic and antitrust enforcement
standpoint;
6. The estimated amount of time the investigation will take; and
7. Any additional relevant information.

The authorization memo should also discuss how the grand jury will be used to gather additional
evidence and the expected parameters of the investigation. To the extent possible, the
memorandum should identify the individuals and corporations that will be subpoenaed and the
individuals or corporations that are potential defendants. If a preliminary inquiry has not been
authorized, the authorization memo should request that clearance for the investigation be
obtained from the Federal Trade Commission.

The information supporting a request for grand jury authority may come from a prior preliminary
inquiry, a CID investigation or confidential sources. In addition, there are numerous public
sources for locating basic information to include in the authorization memo. The Division's
library is a rich source of information that should not be overlooked at the start of a grand jury
investigation. Useful information about major corporations can be obtained from the 10-K and
annual reports located in the Antitrust library.(4) Basic industry information is available in the
library's bound volumes and periodicals and from the on-line database accessed through the
library. Dun & Bradstreet reports also can be obtained through the Antitrust library. Other
valuable sources of information, both in preparing the authorization memo and throughout the
ensuing investigation, are the Division's files of past investigations, corporate filings with state
government offices, state and federal regulatory agency filings and reports, and national and
local trade association reports.(5)

The staff's authorization memo is forwarded to the section or field office chief for review. The
chief will write a cover memorandum that contains his views and recommendation, a list of
attorneys who will be assigned to the investigation and the district in which the grand jury
investigation will be conducted. The chief's memorandum should also set forth an estimate of the
time and resources to be used and any specific problems that are likely to be encountered during
the investigation.

The authorization memo and the chief's cover memo, along with the grand jury letters of
authority, are sent to the Office of Operations for review by the Director of Operations. The
recommendation of the Director of Operations is made to the Assistant Attorney General through
the appropriate Deputy Assistant Attorney General. The following appears on the bottom of the
left side of the Operations recommendation memorandum:

Approved:                              

Date:                              

Disapproved:                              

Date:                              

Upon approval of the recommendation by the Assistant Attorney General, the staff is notified
through its section or field office chief.

Requests to expand the scope of an existing grand jury investigation also require the approval of
the Assistant Attorney General. The same procedure as that which is used with new
investigations should be followed. When personnel changes are made on the staff of an existing
grand jury investigation, the section or field office chief should notify the Office of Operations
so that additional letters of authority may be prepared.

2. Letters of authority

Whenever a grand jury investigation is requested, the staff will prepare letters of authority for the
signature of the Assistant Attorney General, addressed to each attorney who will appear before
the grand jury.(6) Upon approval of the grand jury, the signed letters are returned to the
appropriate section or field office chief. They should be issued before an Antitrust Division
attorney attends any grand jury sessions. Unlike United States Attorneys and their assistants, a
Division attorney must be specifically authorized to conduct grand jury proceedings; he does not
have general authorization.

The issuance of letters of authority is governed by 28 U.S.C. § 515, which provides, in part:
(a) The Attorney General or any other 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, civil or criminal, including grand jury proceedings and proceedings
before committing magistrates, 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.

The Attorney General has delegated the authority to direct Department of Justice attorneys to
conduct grand jury proceedings to all Assistant and Deputy Assistant Attorneys General.(7)

Letters of authority may be broadly drafted and need not describe the specific parties or
violations that are under investigation.(8) While it is Division policy that all attorneys receive a
letter of authority prior to appearing before the grand jury, failure to receive a letter should not
invalidate a subsequent indictment.(9) The letter of authority should be filed with the clerk in the
district where the grand jury will sit, if possible, before any official action by the Government
attorneys affecting the rights of witnesses or possible defendants, such as issuance of subpoenas,
is taken.(10) A state attorney participating in the Division's Cross-Designation Program should not
attend any grand jury sessions on behalf of the Division before an Oath of Office is executed and
a grand jury letter of authority has been filed.

Upon the return of an indictment, experienced defense counsel may check the letters of authority,
and failure to file (or to file promptly) may lead to additional motions and unnecessary work on
the part of the staff in dealing with the omission. However, failure to file a valid letter prior to
appearing before the grand jury should not invalidate a subsequent indictment.(11)

In many jurisdictions, letters of authority are secret; in others, they are a matter of public record.

A sample letter of authority is attached as Appendix I-1.

3. Arranging for the grand jury and preliminary conferences

After the grand jury investigation has been authorized, arrangements for the investigation should
be made with the United States Attorney in the district in which the grand jury will sit and, if
appropriate, the chief judge or the particular judge who will be in charge of the grand jury. It is
also advisable to meet with the clerk of the district court and the local United States Marshal. If
practicable, and the procedures in the district are unknown, such arrangements should be made in
person. If impracticable, or if the jury is to sit in a district where the staff has already established
a personal relationship with the United States Attorney and is acquainted with the local
procedures, arrangements may be made by letter or telephone. If the matter is being handled by a
Washington staff, the chief of the field office in whose jurisdiction the grand jury will sit should
be consulted. Frequently, the chief will have had grand jury experience in the district in which
the grand jury will sit and can be quite helpful in procedural matters and as liaison with the court
and other officials.

Continued liaison should be maintained with the United States Attorney throughout the entire
investigation and, insofar as necessary, with the clerk and marshal. A conference with these
individuals should be held prior to the empaneling of a new grand jury, or when the investigation
is to be conducted by a grand jury previously empaneled, prior to the first session. Among the
procedural matters to be discussed and with which the staff should become familiar are:

1. Filing of letters of authority and secrecy thereof;

2. Challenging and excusing grand jurors;
3. Excusing witnesses;
4. Subpoenas;
a. Where returnable;
b. Whether the service copy is signed and sealed;
c. Where return of service is to be made; and
d. Secrecy;
5. Note taking by grand jurors;
6. Arrangements for court reporting;
7. Obtaining an impounding order;
8. Handling of Witness' Certificates of Attendance and Payment;
9. Immunity applications and orders;
10. Appointment of secretary and keeping of attendance record; and
11. Excusing the grand jury temporarily and recalling it for additional sessions.

The number of hours per day the grand jury should sit and the length of time normally taken for
lunch should also be ascertained. Although, within limitations, this is the prerogative of the
grand jury, the staff can tactfully suggest the appropriate hours and, normally, they will be
followed by the grand jury. In some districts, the hours will be fixed by the court in its charge to
the grand jury.

A conference with the judge having supervision over the grand jury ordinarily should be sought
prior to the empaneling of a new grand jury, or, if the investigation is to be conducted by a grand
jury already empaneled, prior to the initial session. At this conference, the staff should be
prepared to explore any anticipated special problems and to explain the general nature of the
investigation. Care should be taken that the court understands the anticipated duration of the
grand jury and the anticipated frequency of sessions. This is necessary so that the court will not
be faced with unexpected complaints of undue hardship or inconvenience by jurors in the case of
a grand jury already empaneled, or in the case of a grand jury to be empaneled, so that the court
can advise the panel and excuse such persons as may be appropriate. In the latter instance, if the
jurors do not know in advance the period they are to serve, they may either not show up or show
up angry. In the case of a grand jury already empaneled, the problem of inconvenience or
hardship can only be dealt with as tactfully as possible by the staff and, if necessary, jurors
excused and additional jurors empaneled.

If not covered in the conference with the United States Attorney, the court's desires should be
ascertained as to the procedure to be followed in:

1. Excusing grand jurors;

2. Note taking by grand jurors;
3. Recalling the grand jury from time to time for additional sessions; and
4. Obtaining immunity orders.
The procedure to be followed in challenging grand jurors should also be discussed if such
challenges are contemplated. Finally, it may be possible to obtain an appropriate impounding
order at this conference.(12)

4. Types of grand juries

Ordinarily, Division investigations are conducted by a regular grand jury. Regular grand juries
may be empaneled for up to 18 months. The court may extend this period by six months or less if
it determines that such an extension is in the public interest.(13) An antitrust matter may be
presented to a grand jury that is already empaneled or one that is specifically empaneled for the
antitrust investigation.

The decision as to whether the matter will be presented to a grand jury already empaneled or one
to be empaneled is made in conjunction with the U.S. Attorney and depends upon a number of
factors, including the following:

1. The practice in the district;

2. The number of sessions and length of time required by the Antitrust Division; and
3. The workload and the term of the grand jury already empaneled.

For example, in some districts, a grand jury will be empaneled for the full 18 months and the
United States Attorney only uses it infrequently. If the time remaining in the term of the grand
jury is sufficient for presentation of the antitrust matter, this grand jury may be used. On the
other hand, the practice in the district may be to empanel a grand jury solely for antitrust
investigations and for the full 18 months.(14) In other districts, a grand jury will be empaneled for
only a short period of time, (perhaps two or three months), and it will be necessary to present the
antitrust matter to successive grand juries. Numerous other variations exist, but these are
examples of the choices that may be faced.

In some districts, the particular grand jury that will conduct the investigation will be determined
by the United States Attorney without court approval. In other districts, approval of the court is
required. In still other jurisdictions, a decision will be made by the court with the advice and
assistance of the United States Attorney and/or the Antitrust Division attorneys. In the absence of
exceptional circumstances, it is the policy of the Division to follow the procedures in the district
in which the grand jury will sit. It is extremely important that the staff becomes thoroughly
familiar with the local procedures. These should be discussed with the United States Attorney
and, insofar as necessary, the clerk of the district court and the United States Marshal.

Division attorneys should be aware of the distinction between regular grand juries that are
empaneled specifically for antitrust investigations and special grand juries that are empaneled
under the authority of 18 U.S.C. § 3331.(15) The former are often referred to as "special grand
juries"; however, this is a sometimes confusing misnomer.

Special grand juries are limited to major metropolitan areas and areas where the Attorney
General, Deputy Attorney General or designated Assistant Attorney General certifies that a
special grand jury is necessary because of criminal activity in the district. Special grand juries are
designed primarily to meet the special needs of organized crime and public corruption
investigations. Special grand juries are virtually never used by the Division.

5. Public comment and contacts with outside counsel

As a general rule, no public comments on the existence or nature of the grand jury investigation
are made. In rare instances, some comment may be necessary. In such cases, it should come from
the Department's Director of Public Affairs and all inquiries concerning a grand jury
investigation should be directed to his office with no comment by the staff.

All substantive contacts with outside counsel throughout the investigation should be recorded. A
good practice is to make notes in a stenographic notebook of all contacts with counsel, witnesses
or third parties, including the dates and, if appropriate, the substance of the conversation. This
notebook should be preserved and a memorandum to files written, describing all significant
contacts. In addition, any agreements or special arrangements that are made with outside counsel,
such as subpoena modifications, should be memorialized in exchanges of written
correspondence.

C. Empaneling the Grand Jury

1. Empaneling provision

District courts are authorized to empanel grand juries under Fed. R. Crim. P. 6(a), which
provides:

The court shall order one or more grand juries to be summoned at such time as the public interest
requires. . . .

This provision empowers the court to empanel one or more grand juries in addition to those other
grand juries that already may be sitting. The empaneling should be in open court unless
extremely unusual circumstances require exclusion of the public.(16)

2. Grand jury qualifications and selection of grand jury

The requirements for grand juror selection are contained in the Jury Selection and Service Act,
28 U.S.C. §§ 1861, et seq. ("JSSA"). Grand jurors must be "selected at random from a fair cross
section of the community in the District or Division wherein the court convenes."(17) The JSSA
does not require that the resulting grand jury be a statistical mirror of the community but only
that the grand jurors are selected from a source that is reasonably representative of the
community.(18)

Each judicial district has a written plan for random juror selection that has been reviewed and
approved by the chief judge and the judicial counsel for the circuit.(19) Among other things, each
district's plan (1) establishes a jury commission or authorizes the clerk of the court to manage the
jury selection process, (2) specifies the sources for the names of prospective jurors and identifies
those groups of persons or occupational classes that are exempt from service or whose members
may be automatically excused upon request(20) and (3) describes the procedures to be followed in
randomly selecting jurors from among the qualified candidates. Actual juror qualifications, such
as United States citizenship, age, English language proficiency, absence of physical or mental
infirmity, and lack of conviction for a felony are detailed in 28 U.S.C. § 1865. The JSSA
specifically prohibits any exclusion based on race, color, religion, gender, national origin, or
economic status(21).

Under the usual procedure, the clerk sends out "juror qualification forms" under § 1864. Based
on the responses received, a decision is made as to whether the prospective jurors are qualified or
automatically excused. The names of qualified jurors are then placed in a master jury wheel from
which names are drawn randomly when a grand jury is to be empaneled. The prospective jurors
are then summoned for jury duty.(22) Typically, the jurors from which the grand jury will be
selected have been summoned and are present when the staff enters the court for empaneling.
Possible defects in the summoning process should be discussed with the United States Attorney.
If improperly summoned, challenges to the array may be made as discussed below.

When the prospective jurors have been assembled, the judge or the clerk will explain the
demands of grand jury service and will inquire of the prospective grand jurors whether there is
any reason why service on the grand jury would present an undue hardship, e.g., long-term
illness, hearing impairment, acute business problems, etc. The criteria for excusing a prospective
juror varies from judge to judge, but generally is extremely strict. The power of the court to
excuse prospective grand jurors is set forth in 28 U.S.C. § 1866(c):

. . . any person summoned for jury service may be (1) excused by the Court, upon a showing of undue
hardship or extreme inconvenience, for such period as the Court deems necessary, at the conclusion of
which such person shall be summoned again for jury service. (23)

Following this procedure, the 23-person grand jury is picked from the remaining prospective
jurors.

3. Objections to grand jury

a. Form of objection

1) Challenges under Rule 6(b)(1). Government attorneys may challenge the qualifications of
individual grand jurors under Fed. R. Crim. P. (6)(b)(1), which provides:

The attorney for the government or a defendant who has been held to answer in the district court may
challenge the array of jurors on the ground that the grand jury was not selected, drawn or summoned in
accordance with law, and may challenge an individual juror on the ground that the juror is not legally
qualified. Challenges shall be made before the administration of the oath to the jurors and shall be tried
by the court.

According to the specific wording of the Rule, the challenge shall be made before the jurors are
given their oath. If a Division attorney believes that a juror should be excused after the
administration of the oath, he should proceed under Fed. R. Crim. P. 6(g) or 28 U.S.C. § 1866(c)
(2), (5).
Theoretically, prospective antitrust defendants may challenge the array of grand jurors or a single
grand juror under Rule 6(b)(1). However, since antitrust defendants are virtually never "held to
answer," this provision has little application to antitrust grand juries. Further, prospective
antitrust defendants are not entitled to notification of grand jury selection.(24)

2) Motion to dismiss under Rule 6(b)(2). Fed. R. Crim. P. 6(b)(2) provides, in pertinent part,
that:

A motion to dismiss the indictment may be based on objections to the array or on the lack of legal
qualification of an individual juror, if not previously determined upon challenge. . . . An indictment shall
not be dismissed on the ground that one or more members of the grand jury were not legally qualified if
it appears from the record kept pursuant to subdivision (c) of this rule that 12 or more jurors, after
deducting the number not legally qualified, concurred in finding the indictment.

This Rule incorporates the JSSA's provisions for moving to dismiss an indictment based on a
failure to comply with proper jury selection procedures. Only "substantial failures to comply"
with the provisions of the JSSA constitute a violation of the Act; technical violations are
insufficient to support a motion to dismiss.(25) "A substantial failure is one that contravenes one
of the two basic principles of the Act: (1) random selection of jurors, and (2) determination of
juror disqualification, excuses, exemptions, and exclusions on the basis of objective criteria."(26)
The motion to dismiss must reduce the number of qualified votes for indictment to fewer than 12
to be successful.(27) A defendant must object to the array by pre-trial motion to dismiss the
indictment and failure to do so constitutes a waiver.(28) Only defendants have standing under Rule
6(b)(2); grand jury witnesses are not entitled to complain about the composition of the grand
jury.(29) A defendant may inspect written questionnaires and other documents relevant to grand
jury selection to prepare the motion to dismiss.(30) The district court is not required to hold a
hearing on a challenge to the composition of the grand jury.(31)

b. Grounds for objection

1) Objections to individual jurors. The staff or a defendant may object to a specific grand juror
because the juror is not legally qualified to sit on the jury. The JSSA sets out the legal
qualifications for grand jurors.(32) In general, all persons are qualified to serve on a grand jury
unless:

1. they are not citizens of the United States;

2. they are under 18 years old;
3. they have not resided within the judicial district for a period of at least one year;
4. they are unable to read, write and understand the English language sufficiently to satisfactorily
fill out the juror qualification form;
5. they are unable to speak the English language;
6. they have a mental or physical infirmity that would prevent them from rendering satisfactory
juror service; or
7. they have a charge pending against them or have been convicted of a felony.
Occasionally, the staff may wish to exclude a prospective juror with a potential conflict of
interest or a particular bias in regard to the matter to be investigated. For example, a prospective
juror may be employed by the company under investigation, may be a direct and substantial
victim or may be intimately involved in the industry under investigation. Those grand jurors who
cannot judge the matter fairly should be excused. The court is authorized to exclude a
prospective grand juror on the basis of bias or conflict of interest under 28 U.S.C. § 1866(c)(2),
(5), which provide, in pertinent part, that:

any person summoned for grand jury service may be . . . (2) excluded by the Court on the ground that
such person may be unable to render impartial jury service or that his service as a juror would be likely
to disrupt the proceedings, or . . . (5) excluded upon determination by the Court that his service as a
juror would be likely to threaten the secrecy of the proceedings, or otherwise adversely affect the
integrity of the jury deliberations. . .

Even prior to the enactment of 28 U.S.C. § 1866, several courts upheld the right of the
empaneling judge to question prospective jurors and to exclude them on conflict of interest
grounds.(33)

The presence of an ineligible grand juror will not normally invalidate an indictment. A valid
indictment must have the votes of at least 12 qualified grand jurors. Therefore, the number of
ineligible grand jurors must be sufficient to reduce the number of qualified votes to fewer than
12 to invalidate an indictment.(34)

2) Objections to the grand jury array. The grand jury array may be objected to if it is not
representative of the community. The JSSA requires that grand jurors be randomly selected from
a fair cross-section of the community. Jury panels must be selected from a source reasonably
representative of the community; however, this does not require that the grand jury be a
"statistical mirror" of the community, reflecting the proportionate strength of every identifiable
group within that population.(35) Generally, the JSSA's requirements are satisfied unless the grand
jury's failure to reflect the composition of the community is a result of non-random selection,
actual discrimination in the selection process, or failure to select from a fair cross-section of the
community.(36) The mere opportunity for non-random jury selection or the fact that the panel
ultimately selected is somehow unrepresentative of the community is not a violation.

The Supreme Court, in Duren v. Missouri, 439 U.S. 357 (1979), defined the requirements for a
prima facie violation of the fair cross-section requirements of the JSSA. First, the defendant must
prove that the relevant community contains a distinct group. Second, the defendant must prove
that the venire from which the jury was chosen did not contain a fair representation of the
distinct group. Finally, the defendant must prove that the under-representation of the distinct
group was due to systematic exclusion of the group in the jury selection process.(37) To rebut a
defendant's prima facie case, the Government must show that the systematic exclusion was
designed to advance a significant state interest that is compatible with the fair cross-section's
requirements.(38)
Occasionally, a defendant may seek to have an indictment dismissed because the grand jury as a
whole was biased; for example, where the grand jury has already returned indictments in the
same industry. Such challenges have been consistently rejected by the courts.(39)

c. Burden of proof

Grand jury proceedings, including the grand jury selection process, are subject to a strong
presumption of regularity and the burden of proving an irregularity is on the person alleging it.(40)
In general, only substantial failures to comply with the JSSA are a violation; mere technical
violations are insufficient to support a challenge to grand jury action.(41)

d. Relief

If a defendant successfully attacks the composition of the grand jury prior to conviction, the
relief is dismissal of the indictment. However, a defendant's conviction at trial may render
harmless any error in the grand jury proceedings.See United States v. Mechanik, 475 U.S. 66
(1986). (42) If an indictment is dismissed because of an improperly constituted grand jury, the
matter may be resubmitted to a new, properly constituted grand jury, assuming there are no
statute of limitations problems.

e. Waiver

A challenge to the composition of the grand jury is waived if it is not raised in a timely manner.
(43)
Generally, a challenge to the array of grand jurors or a single grand juror on the grounds that
they were legally unqualified or selected improperly must be made by the moving party prior to
the administration of the oath to the jurors. When defendants are not "held to answer" prior to
empaneling, as is the case with virtually all antitrust matters, objections to the grand jury's
composition must be filed before trial commences, or within seven days after the defendant
discovers or, by due diligence, could have discovered grounds for the challenge, whichever is
earlier.(44) In some jurisdictions, a waiver may be overcome by a showing of actual prejudice.

4. Voir Dire

If the staff believes that it may want to exclude prospective jurors who may have potential
conflicts of interest or particular biases in regard to the matter to be investigated, they may wish
to question the prospective jurors to ascertain if any conflicts exist. Such questioning should be
discussed with the court prior to the empaneling, to work out the appropriate procedure and to
remind the judge of his authority under 28 U.S.C. § 1866(c)(2), (5), to exclude prospective
jurors.

In some districts, the staff can discover potential conflicts of interest by examining the summary
of the responses to the "juror qualifications forms." However, in other jurisdictions, where the
summaries are unavailable or do not contain the desired information, the only practical way to
discover a potential conflict of interest is for the judge to conduct a voir dire.
The courts have generally upheld the right of the empaneling judge to question prospective jurors
and to exclude them on conflict of interest grounds.(45) The questioning of grand jurors prior to or
at the time of empaneling has generally followed one of the following procedures, depending on
the court's preference:

(l) The judge has a full grand jury drawn and sworn, but does not dismiss the remaining panel. The
selected jurors are sworn so that when the matter under investigation is explained to them (out of the
hearing of the rest of the panel), they are under the secrecy oath. After the swearing-in, the staff
explains the nature of the investigation and asks the jurors who believe that they may have a conflict of
interest to so advise the judge. The jurors are assembled in open court where the court asks those who
felt they had a conflict of interest to step forward and explain. If the court agrees, they are excused and
replacements are called from the remaining panel and the process is repeated.

(2) The judge, in open court, questions certain prospective jurors selected by the clerk as to each
one's employment and that of his closest relatives. The questioning is based on the juror's
answers to the "juror qualification form." Depending on the answers, the judge allows the juror
to become a member of the grand jury or orders him to step aside.

Some jurisdictions handle the matter more informally. For example, in some jurisdictions, the
judge has, (a) in open court but at side-bar and out of the hearing of the remainder of the
prospective jurors, or (b) in his chambers, questioned the prospective juror and, depending upon
the answers, excused or allowed the juror to serve.

The Division has no preference on legal grounds between the procedures described above.
Method (1) conforms to Rule 6(g) and Method (2) conforms to 28 U.S.C. § 1866. The second
method, however, requires much more time, since each prospective juror must be examined
individually. The informal procedures have the advantage of simplicity but may jeopardize the
secrecy of the proceedings since the prospective juror is not under oath.

If the investigation is to be conducted by a grand jury already empaneled, potential conflicts of

interest should also be ascertained and acted upon.

5. Alternate grand jurors

Prior to the empaneling of a new grand jury, the staff should consider requesting the court to
empanel four alternate grand jurors. Over an 18-month term, there is an inevitable attrition of
grand jurors and the availability of alternates (who need only be called up by the clerk) to replace
those permanently excused, will save the laborious process of requesting and having the court, at
a later date, empanel additional grand jurors (under Fed. R. Crim. P. 6(g)). The practice of
empaneling alternate grand jurors is specifically authorized by Fed. R. Crim. P. 6(a)(2).

Alternate grand jurors are empaneled and sworn with the regular grand jurors. The alternates are
advised that, as alternates, the clerk will call them if needed. They are then excused before the
grand jury begins to transact business. Until they are called upon to replace excused grand jurors,
they do not participate in any of the grand jury sessions. If an alternate grand juror ultimately
replaces an original grand juror, the alternate should review all pre-existing grand jury
transcripts.

6. The judge's charge

After the members of the grand jury have been selected, the judge will ordinarily administer the
oath to the jury as a whole, appoint the foreperson and deputy foreperson, administer the oath to
them, and, thereafter, charge or instruct the grand jury. This is done in open court.

The charge is usually in general terms and concerns itself largely with the mechanics of grand
jury service. For example, the judge will undoubtedly include a reference to the burden of proof,
stating that the grand jury need not find a crime has been committed beyond a reasonable doubt
but merely that there is probable cause to believe a violation of the law has occurred. He will
ordinarily give instructions that, after concluding that a violation may exist, it is the duty of the
grand jury to indict, without fear or bias, and despite any individual belief that the statute
involved should not be the law. He will point out that the foreperson will preside over the jurors
and administer oaths to witnesses, and that the United States Attorney or other Department of
Justice attorneys will be present to assist the jurors in the conduct of their investigation, in
bringing evidence before them, and in advising them as to the law. He will generally advise the
jurors as to the necessity of a quorum being present at all times and the number of jurors
necessary to return an indictment. He will probably discuss possible conflicts of interest if not
previously covered. He may comment on the rule of secrecy. He ordinarily will not discuss
matters of substantive law.

The staff should be thoroughly conversant with the court's instructions. Frequently, it will be
advisable to refer to the instructions during the grand jury proceedings. For example, if grand
jurors express views opposing antitrust enforcement, one excellent solution is a reading of the
court's instruction as to the duty to indict, notwithstanding personal opinions. If an existing grand
jury is used and conflicts of interest were not resolved prior to empaneling, such conflicts may be
discovered and resolved with less abrasiveness by utilizing the court's instructions.

In most jurisdictions, the jurors will be given a copy of The Handbook For Federal Grand Jurors,
a pamphlet prepared by the Committee on the Operation of the Jury System in compliance with
the directions of the Judicial Conference of the United States. This pamphlet sets forth general
principles which should be followed by the jurors during their proceedings. To a large extent, it
covers the same matters that are normally covered in the judge's charge.

After the judge has charged the grand jury, the jury will normally retire to the room in which it
will sit and begin its investigation.

D. Composition and Structure of the Grand Jury

1. General composition

A regular grand jury consists of at least 16 but not more than 23 members. It may be empaneled
initially for up to 18 months. This period may be extended by the court for an additional six
months. The time period a grand jury sits is computed from the date of empanelment. Each grand
jury has a foreperson, a deputy foreperson and often a secretary.

2. Duties of the grand jury foreperson

Fed. R. Crim. P. 6(c) provides:

FOREPERSON AND DEPUTY FOREPERSON. The court shall appoint one of the jurors to be foreperson and
another to be deputy foreperson. The foreperson shall have power to administer oaths and affirmations
and shall sign all indictments. The foreperson or another juror designated by the foreperson shall keep
record of the number of jurors concurring in the finding of every indictment and shall file the record
with the clerk of the court, but the record shall not be made public except on order of the court. During
the absence of the foreperson, the deputy foreperson shall act as foreperson.

The court-appointed foreperson is the court's administrator of the grand jury sessions,
supervising the recording activities of its secretary (if a secretary is appointed and performs such
activities), assuring that there is a lawful number of jurors present at each session, and acting as
liaison on behalf of the grand jurors with the supervising judge when problems or questions arise
requiring consultation with the court. One of the foreperson's most important functions is
administering the oath to witnesses. The foreperson is also the spokesman for the grand jury,
presenting indictments to the court in open session and causing a secret record to be kept of the
number of jurors concurring in the findings of every indictment.

Following the staff examination of a witness, grand jurors should be allowed to question the
witness. The grand jury foreperson may also supervise this questioning (recognizing the
questions of the grand jurors in an orderly fashion), although this is frequently done by the staff.
Rapport with the jury is increased if such supervision is left to the foreperson.

If the foreperson is absent, the deputy foreperson, who is also appointed by the court, assumes all
of the duties of the foreperson. If both are absent, the court must appoint another foreperson for
such time as is necessary. It is essential to have someone authorized to administer oaths to
witnesses.

Although not required by statute or case law, it is a wise precaution to request the foreperson, or
in his absence, the deputy foreperson, at the beginning of each session and after each rest period,
to examine the persons in the room and state on the record, in substance, that only authorized
jurors, the Government attorneys (providing names) and the reporter (providing name) are
present in the grand jury room. If the number of jurors present is not recorded by the secretary,
the foreperson should state the number for the record.

3. Duties of the grand jury secretary

Although there is no specific legislation that creates the position, it is customary in many districts
for a secretary of the grand jury to be appointed. Fed. R. Crim. P. 6(c) authorizes the foreperson
to designate a juror to perform specific secretarial duties on his behalf. Normally, the jurors
select a member to act as secretary to keep a record of the jurors' attendance, the matters
presented, the witnesses called, and the number of votes cast on each indictment.(46) This
procedure is usually followed with the concurrence of the foreperson. The staff should be
prepared to work out mechanical details with the grand jury at the first session.

Usually, the grand jury secretary receives a roster of the grand jurors from the clerk. The
secretary takes attendance twice a day (at the beginning of the morning session and after lunch).
A true count of the members present is generally taken by the secretary at each break and the
noon recess. The secretary's attendance records are given to the clerk of the court to verify the
clerk's records.

The secretary will generally keep docket sheets on which are recorded the type of investigation,
the court's docket number (if any), the matters being presented, the names of all witnesses
appearing before the jury, together with remarks and other data. The secretary will need the
staff's help in maintaining the docket sheet. Prior to the appearance of each witness, the staff
should supply the secretary with the correctly spelled name of the witness for recording on the
docket sheet.(47) The United States Attorney's office will be familiar with the practices in the
district and the duties of the secretary necessary to conform to these practices. These duties must
be explained to the secretary by either the staff or the United States Attorney's office.

The practice in many districts requires the secretary (or the staff) to pick up the grand jury books
(the docket sheets, secretary's notes, etc.) each morning at the United States Attorney's office,
return them at noon, pick them up again after lunch, and return them at adjournment. The
contents of the grand jury's books are highly confidential and they are usually secured in the
United States Attorney's or the clerk's safe when not in use by the jury. The staff should ascertain
what the practice is in each particular district.

In some jurisdictions, a secretary is selected but performs no duties; in other jurisdictions, a

secretary is not appointed. In these jurisdictions, a deputy clerk (or in some cases, the foreperson
or the Government attorney) checks the attendance of the jurors prior to the morning session and
sometimes prior to the afternoon session. No further check is made of juror attendance.
However, it is recommended that after every break, the foreperson make a statement for the
record of how many jurors are present. Insofar as the attendance of witnesses is concerned, the
only records will be the Certificate of Attendance and Payment and the grand jury transcripts.

4. Quorum and effect of lack of quorum

Fed. R. Crim. P. 6(a) provides, in part, that the grand jury shall consist of not less than 16 and no
more than 23 members. The Handbook for Federal Grand Jurors states (page 10):

Sixteen of the 23 members of the grand jury constitute a quorum for the transaction of business. If
fewer than this number are present, even for a moment, the proceedings of the grand jury must stop.
This shows how important it is that each grand juror conscientiously attend the meetings. If a grand
juror believes that an emergency prevents his attendance at the meeting, he must promptly advise the
grand jury foreperson. If his absence will prevent the grand jury from acting, he should attend the
meeting.
In sum, a grand jury must have at least 16 members (a bare quorum) present. In the absence of a
quorum, no business may be transacted. At least 12 jurors must concur to return an indictment.(48)

5. Absence of grand jurors

a. Excusing a grand juror

For a variety of reasons, such as illness, vacation or pressing personal or business problems,(49) a
grand juror may be absent from some sessions. In many districts, the grand juror must notify the
clerk or the United States Attorney to be excused. In other districts, the Government attorneys or
the foreperson may excuse a juror on a temporary basis. In still other districts, the request is
made to the foreperson who, in turn, communicates with the court.

Grand jurors expecting to be absent should be encouraged to give as much advance warning as
possible so that any quorum problems can be anticipated. The staff, in close contact with the
grand jurors, can expect to encounter many problems, excuses, complaints, etc., about the
difficulty of attending certain sessions. Grand jurors, with all due tact, should be discouraged
from being absent except in extenuating circumstances. The staff should request that the clerk
keep it advised of any excused absences.

b. Effect of absence

Problems arise when, in a lengthy antitrust investigation, jurors are absent from some grand jury
sessions. Defense counsel, seizing the issue of the absenteeism, often claim prejudice against
their clients if they suspect that any absentee jurors concurred in finding an indictment. Thus, it
has been contended that the absentee jurors failed to hear sufficient evidence to qualify to vote.
In United States ex rel. McCann v. Thompson, 144 F.2d 604, 607 (2d Cir. 1944), Judge Learned
Hand rejected just such a contention, and pointed out that "[s]ince all of the evidence addressed
before a grand jury . . . is aimed at proving guilt, the absence of some jurors during some part of
the hearings will ordinarily merely weaken the prosecution's case." The court further stated, "If
what the absentees actually hear is enough to satisfy them, there would seem to be no reason why
they should not vote."(50)

While the absence of a juror or jurors from a few sessions should not invalidate an otherwise
valid indictment, it is wise to take precautions to ensure the validity of the indictment. Unless
there are strong reasons to the contrary, absent grand jurors should be asked to read the
transcripts, with accompanying exhibits, of those sessions that were missed. In addition, all
transcripts and exhibits should be available to the grand jurors when they finally vote on the
proposed indictment.

6. Removal of a grand juror: authority to supplement

Fed. R. Crim. P. 6(g) states, in part:

At any time for cause shown the court may excuse a juror either temporarily or permanently, and in the
latter event the court may impanel another person in place of the juror excused.
If it is discovered that a grand juror has a serious conflict of interest concerning the matter under
investigation, the staff and/or the United States Attorney can move to excuse that grand juror for
cause.

In addition, grand jurors may die, become ill, move out of the district, or be excused by the court
from further service on a hardship basis. It is a good practice to supplement the grand jury by
requesting the court to empanel additional grand jurors when the number of grand jurors gets
below twenty.(51) At this point, legitimate absences could threaten a quorum. The procedure for
empaneling such jurors is the same as previously described.

E. Recordation

Rule 6(e)(l) provides that:

All proceedings, except when the grand jury is deliberating or voting, shall be recorded stenographically
or by an electronic recording device . . . .  The recording or reporter's notes or any transcript prepared
therefrom shall remain in the custody or control of the attorney for the government unless otherwise
ordered by the court in a particular case.

Prior to the adoption of the rule, colloquy between Government attorneys and the grand jury was
not routinely recorded. The rule now requires that all statements made by Government attorneys,
as well as the witnesses and grand jurors, before the grand jury be recorded. Attorneys should
never go off the record, even to discuss non-investigation related matters, such as lunch
schedules. The practice has been, however, to order a complete transcript only of actual witness
testimony and opening and closing statements by Division attorneys. Care should be taken,
however, to record all proceedings even if transcripts are ordered only for the above-listed
matters. The untranscribed notes generally remain in the custody of the court reporter, but care
should be taken that all notes are preserved and available on request, i.e., that they are in the
"control" of the Government attorney.

The staff should arrange for a reporter to be present in advance of the grand jury session.
Generally, the United States Attorney's office or the Division field office will have a list of
accredited reporters. Forms should be filled out in advance for payment of the reporter for
attendance and transcripts. This will require the identity and address of the reporter and his
federal identification number.

The reporter should be sworn before the first session begins and, in some jurisdictions, before
each subsequent session begins. In subsequent sessions, any new reporter who has not been
sworn before that grand jury should be sworn. Oaths for reporters are generally available from
the grand jury clerk.

F. Limitations on Grand Jury Power to Investigate

1. What may a federal grand jury investigate

A federal grand jury may investigate any federal criminal offense committed within the district,
i.e., within the jurisdiction of the court.(52) A grand jury that calls a witness without any purpose
of obtaining evidence from him of any offense committed, in whole or in part, in the district in
which the grand jury is sitting exceeds its powers and any indictment based on that testimony
may be dismissed.(53) Nevertheless, since "the eventual scope and direction of [the grand jury's]
inquiry is often only hazily perceived and tentatively defined", it must be allowed "to pursue any
leads which may be uncovered."(54) For these reasons, the grand jury's jurisdiction is not limited
to the probable result of its inquiry.(55) A witness cannot challenge the right of a grand jury in one
district to question him concerning events in another district.(56)

A grand jury may investigate a matter with no defendant or criminal charge specifically in view.
(57)
The powers of investigation of the grand jury and its powers to obtain information are "not to
be limited narrowly by questions of propriety or forecasts of the probable result of the
investigation, or by doubts whether any particular individual will be found properly subject to an
accusation of crime." This, the Supreme Court points out, is normally "developed at the
conclusion of the grand jury's labors, not at the beginning."(58) However, it is an abuse of the
grand jury process to conduct a grand jury investigation with the sole intent of eliciting evidence
for a civil case.(59) At such time as the Government decides to proceed only civilly, the grand jury
investigation should be terminated. It is also improper to utilize a grand jury for the sole or
dominating purpose of preparing an already pending indictment for trial.(60) However, a
prosecutor may use evidence at trial that was incidentally gained from a grand jury primarily
investigating other crimes.(61)

A grand jury may investigate matters previously investigated by another grand jury.(62) This is
true even if the first grand jury took adverse action. As stated in United States v. Steel, 238 F.
Supp. 580, 583 (S.D.N.Y. 1965):

In any event, and assuming the first and second grand juries were in complete disagreement, this would
be no ground for dismissal since adverse action by a grand jury does not bar or limit action, including
contrary action, by a subsequent grand jury. . . .

A grand jury may indict on hearsay and other evidence that would be inadmissible at trial, or, for
that matter, even on the knowledge of the grand jurors themselves.(63) The staff should take care,
however, to elicit as much admissible evidence as possible.

Historically, the grand jury could present or indict. Presentment is the process whereby a grand
jury initiates an independent investigation and asks that a charge be drawn to cover the facts if
they constitute a crime. Since the grand jury may present, it may investigate independently of
direction from the United States Attorney.(64) Presentment, however, is now obsolete in federal
courts.(65) Further, an indictment is invalid if not signed by the Government attorney.(66)

A grand jury may investigate violations of law, although the evidence presented to it is without
authority of the Attorney General.(67) However, Antitrust Division attorneys must be authorized
by the Assistant Attorney General to appear before the grand jury.(68)

2. Limitations on the power to investigate by district court

The court may issue subpoenas for testimony and documents and may exercise its contempt
powers to guarantee compliance with such subpoenas. However, the court cannot unduly
interfere with the essential activities of the grand jury nor encroach on the grand jury's or the
prosecutor's prerogatives. In United States v. United States District Court, 238 F.2d 713 (4th
Cir.), cert. denied, 352 U.S. 981 (1957), the district court refused to permit the Government
attorneys to examine subpoenaed documents or transcripts outside the presence of the grand jury
or to summarize and digest the evidence for the grand jury, quashed a subpoena duces tecum on
the grounds that the grand jury could not demonstrate "materiality", ordered the grand jury to
either indict or return a no bill (the grand jury desired further investigation), held that the
Government attorneys could help prepare an indictment, but only in the presence of the grand
jury, and adjourned the grand jury and refused the Government's request to call it back into
session. On a writ of mandamus, the Fourth Circuit held, inter alia, that the lower court should
reconvene the grand jury and permit it to continue the investigation, vacate orders quashing the
subpoenas and limiting the right of Government counsel to receive and use evidence before the
grand jury, and permit Government counsel to summarize and digest the evidence for the benefit
of the grand jury.

Although the grand jury is a "sovereign body," the courts exercise supervisory jurisdiction and
may prevent gross abuses of power. Thus, should the court object to acts of the grand jury, it
may discharge the grand jury under the provisions of Fed. R. Crim. P. 6(g). Few cases exist
showing the circumstances which would compel a court to discharge a grand jury. As stated in In
re Investigation of World Arrangements, 107 F. Supp. 628, 629 (D.D.C. 1952):

This court specifically limits itself to dismissal of a grand jury only where there is good cause. The court
feels that grand juries should be consistently advised of their power to act independently in
investigations and their duty to diligently inquire into crimes triable in the District of Columbia. Nor
should the court, without cause, intervene to discharge a grand jury to prevent an indictment.

An antitrust grand jury, once empaneled, has all the powers of any other grand jury and a district
court is without authority to limit those powers by instructions to the grand jurors on their being
empaneled or otherwise.(69)

3. Power of grand jury limited by prosecutor

Fed. R. Crim. P. 7(c) provides, in part:

The indictment or the information shall be a plain, concise and definite written statement of the
essential facts constituting the offense charged. It shall be signed by the attorney for the
government. . . . [Emphasis supplied.]

The grand jury cannot indict without the signature of the prosecutor. As stated in United States v.
Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935 (1965):

The role of the grand jury is restricted to a finding as to whether or not there is probable cause to
believe that an offense has been committed. The discretionary power of the attorney for the United
States in determining whether a prosecution shall be commenced or maintained may well depend upon
matters of policy wholly apart from any question of probable cause. . . . It follows, as an incident of the
constitutional separation of powers, that the courts are not to interfere with the free exercise of the
discretionary powers of the attorneys of the United States in their control over criminal prosecutions.
The provision of Rule 7, requiring the signing of the indictment by the attorney for the government, is a
recognition of the power of government counsel to permit or not to permit the bringing of an
indictment. If the attorney refuses to sign, as he has the discretionary power of doing, we conclude that
there is no valid indictment. . . .

Although it is common practice for the United States Attorney to sign the indictment, an
indictment is equally valid if signed by a Division attorney. A grand jury cannot make
accusations of individuals short of indictment; it cannot issue reports to the public or other
branches of government.(70) This, of course, is not applicable to special grand juries empaneled
under the provision of 18 U.S.C. §§ 331, et seq.

4. What objections can be raised to the grand jury proceeding and by whom

In general, objections can be raised to the activities of a grand jury insofar as the activities
exceed or contravene the limitations of the grand jury's jurisdiction as set forth above. However,
witnesses appearing before a grand jury generally have no right to raise such objections.(71)
Witnesses have the same testimonial privileges they would have in any other criminal
proceeding. However, the grand jury's power to investigate is not limited to admissible
testimony. As stated in In re Radio Corp. of America, 13 F.R.D. 167, 170-71 (S.D.N.Y. 1952):

The grand jury "is a grand inquest, a body with powers of investigation and inquisition, the scope of
whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable
result of the investigation, or by doubts whether any particular individual will be found properly subject
to an accusation of crime. . . . [W]itnesses are not entitled to take exception to the jurisdiction of the
grand jury or the court over the particular subject-matter that is under investigation. . . ." [Citing Blair v.
United States, 250 U.S. 273 (1919).](72)

Objections to the scope or propriety of the grand jury proceedings are available only to persons
indicted by such grand jury.

G. Who May be Present -- Rule 6(d)

1. Who may be present

Fed. R. Crim. P. 6(d) provides:

Who May Be Present. Attorneys for the government, the witness under examination, interpreters when
needed and, for the purpose of taking the evidence, a stenographer or operator of a recording device
may be present while the grand jury is in session, but no person other than the jurors may be present
while the grand jury is deliberating or voting.
This rule allows attorneys for the Government, the witness, interpreters, and stenographers or
operators of recording devices to be present during the grand jury session. Only the grand jurors
themselves may be present during deliberation or voting.

Not every attorney working for the federal establishment is a Government attorney within the
meaning of Fed. R. Crim. P. 6(d). Generally, only Department of Justice attorneys and attorneys
working for the Department under a special appointment qualify.(73)

The witness is not entitled to have counsel present in the grand jury room.(74) However, the
Division's general practice is to advise the witness that he may leave the grand jury room to
consult with counsel.(75)

Some districts permit the use of grand jury "agents"; however, this practice is fraught with
potential problems and is discouraged in the Antitrust Division.

2. The effect of presence of unauthorized persons in grand jury room

In the past, the presence of unauthorized persons in the grand jury room was often a sufficient
ground for dismissal of an indictment.(76) However, the Supreme Court in Bank of Nova Scotia v.
United States, 487 U.S. 250 (1988), held that errors in grand jury proceedings should not be
grounds for dismissing an indictment unless such errors prejudiced the defendants. As the Court
stated at p. 256:

[D]ismissal of the indictment is appropriate only 'if it is established that the violation substantially
influenced the grand jury's decision to indict' or if there is 'grave doubt' that the decision to indict was
free from the substantial influence of such violations (citations omitted).

The Supreme Court in Bank of Nova Scotia, among other things, held that a violation of Rule
6(d) by having two agents read prior testimony in tandem was not grounds for dismissal in that
case.

An indictment will not be set aside for mere technical violations of the rule. Thus, when an
attorney unconnected with the proceedings accidentally entered the grand jury room and
remained there for several seconds and where testimony was immediately stopped before the
grand jury, the indictment was not quashed.(77) Technical intrusions of unauthorized persons
should be noted on the record, together with the fact that no proceedings were conducted while
those persons were present, if this is indeed the case.

A violation of Rule 6(d) is remedied by a guilty verdict from a petit jury.(78)

3. Effect of having ineligible or disqualified grand juror present

Fed. R. Crim. P. 6(b)(2) provides:

A motion to dismiss the indictment may be based on objections to the array or on the lack of legal
qualification of an individual juror, if not previously determined upon challenge. . . . An indictment shall
not be dismissed on the ground that one or more members of the grand jury were not legally qualified if
it appears from the record kept pursuant to subdivision (c) of this rule that 12 or more jurors, after
deducting the number not legally qualified, concurred in finding the indictment.

Despite the clear language of this Rule, defendants often attempt to use the presence of one or
more ineligible grand jurors in the jury room as grounds for a motion to dismiss an indictment.
Such motions are routinely denied by the courts.(79) The courts have examined, in camera, the
records required to be kept by the grand jury under Rule 6(c) and denied a 6(b)(2) motion
summarily, if the records disclosed that the number of jurors concurring (discounting the jurors
challenged) totaled 12 or more.(80)

H. FBI and Other Assistance

Historically, Antitrust Division lawyers have done most of the Division's investigative work.
From time to time, the FBI was asked to assist staffs. In the last several years, however, the
Division has greatly expanded its use of outside investigators due primarily to the growth in
criminal enforcement. The Division now uses investigative agents more frequently and from a
wider variety of agencies. In the last few years, the Division has worked with agents from the
FBI, Department of Agriculture, Department of Defense, Environmental Protection Agency,
Department of Housing and Urban Development, Department of Commerce, Farmer's Home
Administration, General Services Administration, Department of Interior, U.S. Postal Service,
and Department of Transportation.

1. Benefits of using outside investigative resources

Use of outside agents has varied substantially from office to office. Use of agents appears to
have been most effective where the agents have been made, in effect, a part of the investigative
and trial staff. These agents serve grand jury and trial subpoenas, execute search warrants,
interview witnesses, review and analyze documents, prepare charts and exhibits, and testify
before the grand jury and at trial.(81) Their testimony has ranged from expert testimony on
technical questions, such as handwriting analysis, to testimony before the grand jury providing
background or statistical data, to grand jury testimony recounting statements by cooperating
witnesses.

Use of investigative agents has been most beneficial in local or regional price-fixing or bid-
rigging investigations where there are more than a few potential witnesses and/or targets, where
the offense is relatively straightforward, and where an agent can easily be incorporated into a
staff. Perhaps their greatest benefit is simply the availability of additional investigatory
resources. Agents can also bring with them special investigatory expertise. While there have
been concerns expressed that agents may not be effective interrogators in antitrust conspiracy
cases, in fact, antitrust conspiracies are no more complex than other white collar and/or
conspiracy crimes. Also, most agents are likely to be more versed in general interrogation
techniques than many Division attorneys. The necessary expertise in antitrust law, Division
practices and policies, and the facts of a particular investigation can be communicated in training
sessions or discussions at the outset of the investigation.
Other benefits include (1) the knowledge of Office of Inspector General (OIG) agents of the
federal programs administered by their agencies; (2) technical assistance, e.g., consensual phone
monitors, handwriting analysis, (3) analysis of large amounts of data; (4) conduct of a large
number of interviews in a short period of time; (5) prompt and accurate service of subpoenas;
and (6) local presence for distant attorneys.

Also, agents have proven particularly effective at presenting background or statistical testimony
to grand juries and at trial. This can include summaries of interstate commerce evidence, a
general description of an industry or bidding practices in that industry, or analysis of statistical
data such as pricing or sales patterns. Use of agents to put such evidence before the grand jury,
rather than putting it in piecemeal through a number of industry witnesses, can result in a clearer
presentation of the evidence and substantial savings of grand jury and trial time.

2. Procedure for obtaining outside investigative help

a. FBI assistance

Procedures for obtaining assistance vary from agency to agency. FBI assistance is still the most
widely available and may be obtained in any criminal investigation. Authorization for FBI
assistance is obtained by preparing a memo from the Assistant Attorney General to the Director
of the FBI, describing the investigation and the nature of the assistance required.(82) Whenever
possible, it is preferable to have a specific case agent or agents assigned to the investigation to
carry out all necessary duties rather than obtaining assistance only for one or two specific tasks.
Having a case agent or agents assigned allows full use to be made of an agent's skills and also
creates a better working relationship by permitting the agent to be fully integrated into the staff.

One specific limitation on the assistance provided by FBI agents is that FBI agents generally
have a limited geographic area in which they can carry out investigative activities. Thus, for an
investigation with a wide geographic scope, the logistics of getting agents involved from
numerous jurisdictions and keeping them adequately informed of the nature and progress of the
investigation may outweigh the benefits to be obtained from their assistance.

Although approval must be obtained from Washington FBI headquarters prior to an agent
becoming involved in the investigation, it is often useful to contact the appropriate local office(s)
to introduce oneself and advise that a request for assistance is being made. Then the Washington
authorization will not come to the office out of the blue and a good working relationship can be
instituted from the outset. Such contact can also result in an earlier initiation of assistance.

b. OIG assistance

Assistance from an Inspector General's office is limited to investigations involving subject

matters within the jurisdiction of that agency. There is one very important exception. Agents
from the U.S. Postal Service have a relatively broad jurisdiction. They may investigate any
violation involving the use of the U.S. mails. Thus, if mail fraud charges may result from an
investigation, assistance may be sought from the postal inspectors.
Assistance from an OIG's office generally may be arranged through contact between the section
or office chief and the head of the regional OIG office or the OIG Washington headquarters. No
higher approvals are required. OIG agents generally have more geographic flexibility than FBI
agents. At a minimum, they can travel throughout a several state region and often can travel
nationwide.

3. Operational suggestions

When working with an agent, several considerations should be kept in mind. While assigned to
your investigation, an agent, in effect, serves two masters -- the Antitrust Division and his own
supervisors. Allocation of time to the antitrust investigation can become an issue between the
two agencies and create real difficulties for the agent. Much of this can be avoided by up-front
discussions of the scope of our investigation, the length of time it is expected to take, and the
commitment of time needed from the agent. Again, keep in mind that involving the agent fully in
the investigation as a staff member creates a better working relationship, better agent morale, and
more productive use of the agent's time.

It is important at the outset of the investigation to inform the agent of Antitrust Division practices
and policies that may affect the investigation. The agent must understand that all strategic
decisions must ultimately be made by Division attorneys, in consultation, where necessary, with
their Washington superiors. Such decisions, including whom to immunize, what representations
can be made to witnesses, decisions to prosecute, and plea agreements can and should be
discussed with the agent but those decisions must rest with Division attorneys.

One final point to keep in mind in working with agents is that they may not be fully familiar with
the requirements of Fed. R. Crim. P. 6(e). Before an agent has any contact with the grand jury or
grand jury materials, you should provide him with a complete briefing on grand jury secrecy
requirements. The agent must understand that any grand jury materials received must be used
only to assist in the criminal investigation. They may not be used for any civil purpose.(83)

I. CHECKLIST Before Conducting First Grand Jury Session

1. Approval from Assistant Attorney General.

2. Issuance and filing of letters of authority.
3. Conference with U.S. Attorney, Field Office Chief.
4. Conference with Judge.
5. Empaneling.
a. Check for conflict of interests and disqualify prospective jurors as may be appropriate.
6. Impounding Order.
7. File Rule 6(e) disclosure form.
8. Issuance of subpoenas duces tecum.
9. Scheduling of first session with grand jury clerk.
10. Issuance of testamentary subpoenas where substantive witnesses are to be called.
11. Swearing in of court reporter at first session.
12. Check for quorum at first session.
a. Note on the record that there is a quorum and that no unauthorized persons are
present.
 13. Introduce attorneys and inform grand jurors of basic antitrust law and nature of investigation.

J. CHECKLIST Before Conducting Subsequent Sessions

1. Schedule upcoming session with clerk at least one month in advance - make sure clerk notifies
grand jurors; make room arrangements.
2. Arrange for and notify court reporter.
3. Issue testamentary subpoenas and arrange for service.
4. Request immunity, where appropriate, at least two weeks prior to date of session.
a. Prepare immunity applications and orders and arrange for submission to judge when
approval and clearance are obtained.
5. Select documents to be used as grand jury exhibits.
6. Prepare questions.

FOOTNOTES

1. United States v. R. Enterprises, Inc., U.S. , (1991).

2. Blair v. United States, 250 U.S. 273 (1919); see also United States v. Calandra, 414 U.S. 338,
343 (1974).

3. Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972); see also United States v. Sells Eng'g, Inc.,
463 U.S. 418, 423 (1983); United States v. Calandra, 414 U.S. at 343.

4. 10-K's and annual reports for other publicly-held corporations are available in the SEC
Reference Room.

5. See ATD Manual VI for a more detailed discussion of available information sources.

6. See U.S.A.M. 9-11.241.

7. Order No. 725-77.

8. See United States v. Morrison, 531 F.2d 1089 (1st Cir.), cert. denied, 429 U.S. 837 (1976); In
re Subpoena of Persico, 522 F.2d 41 (2d Cir. 1975); United States v. Morris, 532 F.2d 436 (5th
Cir. 1976); Infelice v. United States, 528 F.2d 204 (7th Cir. 1975); United States v. Wrigley, 520
F.2d 362 (8th Cir.), cert. denied, 423 U.S. 987 (1975); United States v. Prueitt, 540 F.2d 995 (9th
Cir.), cert. denied, 429 U.S. 1063 (1976).

9. See United States v. Balistrieri, 779 F.2d 1191, 1209 (7th Cir.) (a letter of authorization is not
essential to the validity of an appointment under § 515(a)), cert. denied, 475 U.S. 1095 (1985);
see also In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987), cert. denied, 484 U.S. 1027 (1988).
10. If it is necessary to issue subpoenas prior to filing the letters of authority, it may be wise to
request the United States Attorney to issue the subpoenas.

11. See Belt v. United States, 73 F.2d 888, 889 (5th Cir. 1934); May v. United States, 236 F.
495, 500 (8th Cir. 1916).

12. An impounding order should only be obtained after a grand jury has been empaneled;
otherwise, there is no proceeding before the court in which such an order can be entered.
However, an impounding order can be obtained by virtue of the jurisdiction of an already
empaneled grand jury and the order by its terms can authorize transfer of the documents to a
future grand jury. See Fed. R. Crim. P. 6(e)(3)(c)(iii) and Ch. IV § E. 1., infra.

13. Fed. R. Crim. P. (6)(g).

14. This is the preferred procedure if appropriate arrangements can be made because potential
conflicts with the United States Attorney's use of the grand jury are avoided.

15. See U.S.A.M. 9-11.300, et seq.

16. See In re Impaneling of Grand Jury, 4 F.R.D. 382 (S.D.N.Y. 1945).

17. 28 U.S.C. § 1861.

18. See United States v. DiTommaso, 405 F.2d 385 (4th Cir. 1968), cert. denied, 394 U.S. 934
(1969); United States v. Marcello, 423 F.2d 993 (5th Cir.), cert. denied, 398 U.S. 959 (1970);
United States v. Potter, 552 F.2d 901 (9th Cir. 1977); United States v. Test, 550 F.2d 577 (10th
Cir. 1976).

19. 28 U.S.C. § 1863.

20. The JSSA mandates the use of voter registration lists or lists of actual voters as the primary
source of juror names. To the extent necessary, these lists may be augmented by supplemental
sources. See generally United States v. Young, 822 F.2d 1234 (2d Cir. 1987); United States v.
Brummitt, 665 F.2d 521 (5th Cir. Unit B Dec. 1981), cert. denied, 456 U.S. 977 (1982); United
States v. Brady, 579 F.2d 1121 (9th Cir. 1978), cert. denied, 439 U.S. 1074 (1979).

21. 28 U.S.C. § 1862; see generally United States v. Greene, 489 F.2d 1145 (D.C. Cir. 1973),
cert. denied, 419 U.S. 977 (1974); United States v. Zirpolo, 450 F.2d 424 (3d Cir. 1971); United
States v. Maskeny, 609 F.2d 183 (5th Cir.), cert. denied, 447 U.S. 921 (1980); United States v.
Gometz, 730 F.2d 475 (7th Cir.), cert. denied, 469 U.S. 845 (1984); United States v. Brady, 579
F.2d supra.

22. The number to be summoned varies from district to district.

23. See United States v. Anderson, 509 F.2d 312 (D.C. Cir. 1974), cert. denied, 420 U.S. 991
(1975).
24. See United States v. Barone, 311 F. Supp. 496 (W.D. Pa. 1970); United States v. Kenner, 36
F.R.D. 391 (S.D.N.Y. 1965).

25. 28 U.S.C. § 1867; see United States v. Savides, 787 F.2d 751, 754 (1st Cir. 1986); United
States v. LaChance, 788 F.2d 856, 870 (2d Cir.), cert. denied, 479 U.S. 883 (1986); United States
v. Carmichael, 685 F.2d 903, 911-12 (4th Cir. 1982), cert. denied, 459 U.S. 1202 (1983); United
States v. Schmidt, 711 F.2d 595, 600 (5th Cir. 1983), cert. denied, 464 U.S. 1041 (1984); United
States v. Nelson, 718 F.2d 315, 319 (9th Cir. 1983); United States v. Gregory, 730 F.2d 692, 699
(11th Cir.), cert. denied, 469 U.S. 1208 (1984).

26. United States v. Savides, 787 F.2d at 754; see also United States v. Maskeny, 609 F.2d 183
(5th Cir.), cert. denied, 447 U.S. 921 (1980); United States v. Ross, 468 F.2d 1213 (9th Cir.
1972), cert. denied, 410 U.S. 989 (1973).

27. See United States v. Johnston, 685 F.2d 934, 938 (5th Cir. 1982), cert. denied, 460 U.S. 1053
(1983); United States v. Okiyama, 521 F.2d 601, 604 n.2 (9th Cir. 1975).

28. See Davis v. United States, 411 U.S. 233 (1973); United States v. Greene, 489 F.2d 1145
(D.C. Cir. 1973), cert. denied, 419 U.S. 977 (1974); Porcaro v. United States, 784 F.2d 38, 43
(1st Cir.), cert. denied, 479 U.S. 916 (1986); United States v. Zirpolo, 450 F.2d 424, 432 (3d Cir.
1971); Throgmartin v. United States, 424 F.2d 630, 631 (5th Cir. 1970); United States v.
Tarnowski, 583 F.2d 903, 904 n.1 (6th Cir. 1978), cert. denied, 440 U.S. 918 (1979); Louie v.
United States, 426 F.2d 1398, 1402 (9th Cir.), cert. denied, 400 U.S. 918 (1970); Talk v. United
States, 509 F.2d 862, 863 (10th Cir. 1974), cert. denied, 421 U.S. 932 (1975).

29. See United States v. Fitch, 472 F.2d 548, 549 (9th Cir.), cert. denied, 412 U.S. 954 (1973).

30. See Test v. United States, 420 U.S. 28, 30 (1975); Mobley v. United States, 379 F.2d 768,
773 (5th Cir. 1967); United States v. Armstrong, 621 F.2d 951, 955 (9th Cir. 1980); United
States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973), cert. denied, 416 U.S. 936 (1974).

31. United States v. Miller, 771 F.2d 1219 (9th Cir. 1985).

32. 28 U.S.C. § 1865.

33. See, e.g., United States v. Hoffa, 349 F.2d 20, 32-33 (6th Cir. 1965), aff'd on other grounds,
385 U.S. 293 (1966).

34. See United States v. Johnston, 685 F.2d at 938; United States v. Okiyama, 521 F.2d at 604
n.3.

35. See United States v. D'Alora, 585 F.2d 16 (1st Cir. 1978); United States v. Fernandez, 480
F.2d 726 (2d Cir. 1973); United States v. DiTommaso, 405 F.2d 385, 389 (4th Cir. 1968), cert.
denied, 394 U.S. 934 (1969); Simmons v. United States, 406 F.2d 456, 461 (5th Cir.), cert.
denied, 395 U.S. 982 (1969); United States v. Miller, 771 F.2d at 1228; United States v. Test,
550 F.2d 577 (10th Cir. 1976).
36. See generally United States v. Savides, 787 F.2d at 754; United States v. Branscome, 682
F.2d 484, 485 (4th Cir. 1982) (per curium); United States v. Percival, 756 F.2d 600, 615 (7th Cir.
1985).

37. See also United States v. Hafen, 726 F.2d 21 (1st Cir.), cert. denied, 466 U.S. 962 (1984);
Government of the Virgin Islands v. Navarro, 513 F.2d 11, 19 (3d Cir.), cert. denied, 422 U.S.
1045 (1975); United States v. Maskeny, 609 F.2d at 192; United States v. Hoffa, 349 F.2d at 30;
United States v. Miller, 771 F.2d supra.

38. 439 U.S. at 367-68; see also Ross v. Kemp, 785 F.2d 1467, 1479 (11th Cir. 1986).

39. See Estes v. United States, 335 F.2d 609 (5th Cir. 1964), cert. denied, 379 U.S. 964 (1965).

40. See Government of the Virgin Islands v. Navarro, 513 F.2d at 19; Mobley v. United States,
379 F.2d at 771; United States v. Battista, 646 F.2d 237 (6th Cir.), cert. denied, 454 U.S. 1046
(1981); United States v. Turcotte, 558 F.2d 893 (8th Cir. 1977); United States v. Potter, 552 F.2d
901 (9th Cir. 1977).

41. 28 U.S.C. § 1876(a); see footnote 25, supra.

42. See United States v. Mechanik, 475 U.S. 66 (1986).

43. See Davis v. United States, 411 U.S. 233 (1973); Porcaro v. United States, 784 F.2d at 43;
United States v. Young, 822 F.2d 1234 (2d Cir. 1987); United States v. Zirpolo, 450 F.2d at 432;
Throgmartin v. United States, 424 F.2d at 631; United States v. Tarnowski, 583 F.2d at 904 n.1;
United States v. Hoffa, 367 F.2d 698, 709-10 (7th Cir. 1966), vacated on other grounds, 387 U.S.
231 (1967); Louie v. United States, 426 F.2d at 1402; Talk v. United States, 509 F.2d at 863;
United States v. Green, 742 F.2d 609 (11th Cir. 1984).

44. 28 U.S.C. § 1867(a), (c); see Davis v. United States, 411 U.S. 233 (1973); United States v.
Greene, 489 F.2d 1145 (D.C. Cir. 1973), cert. denied, 419 U.S. 977 (1974); Porcaro v. United
States, 748 F.2d at 43; United States v. Studley, 783 F.2d 934 (9th Cir. 1986).

45. See United States v. Hoffa, 349 F.2d 20, 32-33 (6th Cir. 1965), aff'd on other grounds, 385
U.S. 293 (1966); United States v. Gibson, 480 F. Supp. 339 (S.D. Ohio 1979).

46. 8 Moore's Federal Practice, ¶ 6.02[2] at 6-11 (2d ed. 1970).

47. In antitrust investigations, the docket sheet often shows an entry such as United States v.
Antitrust Matter. If an indictment is returned, "Antitrust Matter" is stricken, and the names of the
defendants are listed where "Antitrust Matter" previously appeared.

48. Fed. R. Crim. P. 6(f).

49. In one instance, the court confronted an employer who threatened to fire an employee
because of her grand jury work. As a result, the employer withdrew from that position. In
another instance, the court advised a juror to inform her employer, who objected to her service,
that the court viewed such objections with disfavor. She continued to serve on the jury with no
further objections from her employer.

50. See also United States v. Leverage Funding Sys., Inc., 637 F.2d 645 (9th Cir. 1980), cert.
denied, 452 U.S. 961 (1981).

51. This presupposes that alternate grand jurors were not originally empaneled. If they were
empaneled, the clerk, with the approval of the supervising judge, should be requested to call the
required number of alternates as may be necessary to keep the jury at full strength.

52. Hubner v. Tucker, 245 F.2d 35, 39 n.6 (9th Cir. 1957).

53. Brown v. United States, 245 F.2d 549, 554 (8th Cir. 1957).

54. United States v. Doulin, 538 F.2d 466, 470 (2d Cir.), cert. denied, 429 U.S. 895 (1976); see
also United States v. Paxson, 861 F.2d 730, 733 (D.C. Cir. 1988).

55. United States v. Paxson, 861 F.2d at 733.

56. United States v. Girgenti, 197 F.2d 218, 219 (3d Cir. 1952).

57. United States v. Smyth, 104 F. Supp. 283, 287 n.1 (N.D. Cal. 1952).

58. Blair v. United States, 250 U.S. 273, 282 (1919).

59. United States v. Procter & Gamble Co., 356 U.S. 677 (1958).

60. United States v. Dardi, 330 F.2d 316, 336 (2d Cir.), cert. denied, 379 U.S. 845 (1964).

61. See In re Grand Jury Proceedings, 814 F.2d 61 (1st Cir. 1987); In re Grand Jury Proceedings,
632 F.2d 1033 (3d Cir. 1980).

62. United States v. Thompson, 251 U.S. 407 (1920); United States v. Steel, 238 F. Supp. 580,
583 (S.D.N.Y. 1965); In re Borden Co., 75 F. Supp. 857, 863-64 (N.D. Ill. 1948).

63. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959).

64. United States v. Smyth, 104 F. Supp. at 295.

65. In re United Elec., Radio and Mach. Workers, 111 F. Supp. 858, 863 n.13 (S.D.N.Y. 1953).

66. Fed. R. Crim. P. 7(c).

67. Sullivan v. United States, 348 U.S. 170, 173 (1954).

68. See § B.2., supra.

69. See In re Borden Co., 75 F. Supp. 857, 859 (N.D. Ill. 1948).

70. See In re United Elec., Radio and Mach. Workers of Am., 111 F. Supp. 858, 864, 869
(S.D.N.Y. 1953).

71. Witnesses may object to allegedly defective subpoenas on grounds of unreasonableness,

burdensomeness, etc. (See Ch. III § F.) and to improper electronic surveillance (See Ch. IV §
D.4.).

72. See also United States v. Girgenti, 197 F.2d 218, 219 (3d Cir. 1952) (witness not entitled to
challenge the authority of the court or the grand jury, provided the grand jury has de facto
existence and organization).

73. See Fed. R. Crim. P. 54(c); Ch. II § C.1.; In re Grand Jury Proceedings, 309 F.2d 440 (3d
Cir. 1962) (FTC attorney not within Rule).

74. United States v. Corallo, 413 F.2d 1306 (2d Cir.), cert. denied, 396 U.S. 958 (1969); United
States v. Fitch, 472 F.2d 548 (9th Cir.), cert. denied, 412 U.S. 954 (1973).

75. Such consultations should not be allowed to unreasonably disrupt the proceedings. See Ch.
IV § F.7.

76. See United States v. Heinze, 177 F. 770 (2d Cir. 1910).

77. United States v. Rath, 406 F.2d 757 (6th Cir.), cert. denied, 394 U.S. 920 (1969); see also
United States v. Kahan & Lessin Co., 695 F.2d 1122, 1124 (9th Cir. 1982).

78. United States v. Mechanik, 475 U.S. 66 (1986).

79. See United States v. Johnston, 685 F.2d 934 (5th Cir. 1982), cert. denied, 460 U.S. 1053
(1983).

80. See, e.g., United States v. Anzelmo, 319 F. Supp. 1106, 1113 (E.D. La. 1970); United States
v. Richter Concrete Corp., 328 F. Supp. 1061, 1967 (S.D. Ohio 1971).

81. Disclosure of grand jury materials to Government agents so that they may assist the
Government attorneys in the conduct of criminal investigations is authorized by Rule 6(e)(3)(A)
(ii). See Ch. II § D. and United States v. Lartey, 716 F.2d 955 (2d Cir. 1983).

82. See ATD Manual III-8 for more detailed information regarding the request for assistance.

83. United States v. Sells Eng'g Inc., 463 U.S. 418 (1983); see Ch. II §§ C. and D., infra.
 TABLE OF CONTENTS

II. The Requirement of Secrecy -- Rule 6(e)

A. Rule 6(e)
1. Purpose of Rule 6(e)
2. Obligation on Grand Jurors
3. Obligation on Reporter
4. Obligation on Government Attorneys and Support Staff
5. No Obligation on Witness
B. What is Covered by Rule 6(e)
1. Grand Jury Testimony/Transcripts/Colloquy
2. Documents
3. Government Memoranda Summarizing or Referring to Testimony or Documents
4. Nature of Investigation or Identity of Targets
5. Local Rules May Provide for Additional Secrecy
6. Access to Ministerial Grand Jury Records
7. Names of Witnesses
8. Interview Memoranda
9. Proffer Memoranda
C. Disclosure to Attorneys for the Government, Rule 6(e)(3)(A)(i)
1. Definition of "Attorney for the Government"
2. Policy After Sells
3. Use of Grand Jury Materials for Civil Cases in the Antitrust Division
D. Disclosure to Other Government Personnel; Rules 6(e)(3)(A)(ii) and 6(e)(3)(B)
1. Definition of Government Personnel
2. When Necessary to Assist in Enforcing Federal Criminal Laws
3. No Need for Court Authorization
4. Notice--Rule 6(e)(3)(B)
5. Record of Disclosure/Advice of Secrecy
E. Disclosure to Witness
1. Access to Own Transcript
2. Antitrust Division Policy Regarding Disclosure of Grand Jury Transcript to a Witness
3. Disclosure to a Witness of Another's Grand Jury Transcript or Testimony
4. Disclosure to a Witness of Documents Subpoenaed from Another Party
F. Disclosure to Defendant - Bases for Pre-Trial Discovery of Grand Jury Material
1. Disclosure to Defendant of His Own Testimony
2. Disclosure of Grand Jury Transcripts of Government Witnesses Pursuant to the Jencks
Act and Rule 26.2
3. Disclosure of Grand Jury Transcripts upon a Showing of Grand Jury Abuse - Rule 6(e)(3)
(C)(ii)
4. Disclosure of Brady Material
G. Disclosure to Another Grand Jury--Rule 6(e)(3)(C)(iii)
H. Disclosure Under Court Order-Rule 6(e)(3)(C)(i)
1. Must be "preliminarily to or in Connection with a Judicial Proceeding"
2. Must Show Particularized Need
3. Particularized Need Must be Balanced Against Need for Maintaining Grand Jury Secrecy
4. Disclosure to Government Agencies
 5. Disclosure to State Attorneys General
6. Mechanics of Obtaining Disclosure Orders
I. Use of Materials in Investigation
1. Quotation of Transcripts in Motions and Briefs
2. Using Subpoenaed Documents to Refresh Recollection
3. Using Grand Jury Testimony to Refresh Recollection
J. Disclosure to Computer Specialists
K. Non-Disclosure Orders
1. Restrictions on Witnesses
2. Protective Orders
L. Sanctions
M. Security of Grand Jury Information
1. Safeguards During Use
2. Storage Requirements
3. Safeguards During Transfer
4. Return and Destruction Procedures
5. Safeguards for Word Processing Equipment

II. THE REQUIREMENT OF SECRECY -- RULE 6(e)

A. Rule 6(e)

The general secrecy requirements of Rule 6(e) are contained in Section 6(e)(2). It provides that:

A grand juror, 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 (3)(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 punished as a contempt of court.

1. Purpose of Rule 6(e)

Rule 6(e) codifies the traditional rule of grand jury secrecy by prohibiting members of the grand
jury, Government attorneys and their authorized assistants, and other grand jury personnel from
disclosing matters occurring before the grand jury, except as otherwise authorized by the rule.
Grand jury secrecy is vital to the investigative function of the grand jury. It serves several
distinct interests, primarily: (1) to encourage witnesses to come forward and testify freely and
honestly; (2) minimize the risks that prospective defendants will flee or use corrupt means to
thwart investigations; (3) to safeguard the grand jurors themselves and the proceedings from
extraneous pressures and influences; and (4) to protect accused persons who are ultimately
exonerated from unfavorable publicity.(1)

In addition, the secrecy requirements of Rule 6(e) and the limited exceptions promote three other
policy concerns: (1) the Government's need to know what transpires before the grand jury to
prosecute cases effectively and to assist the grand jury in its deliberations; (2) the need to protect
the grand jury process from prosecutorial abuse; and (3) the need for Government attorneys to
adhere to established procedures that limit the Government's powers of discovery and
investigation.(2)

The reasons for grand jury secrecy are particularly compelling while an investigation is pending.
While these reasons may lose some of their force after the proceedings have been concluded,
grand jury secrecy may never be breached, except as provided for by the rule, no matter how
compelling the circumstances.(3)

2. Obligation on grand jurors

Grand jurors are subject to the secrecy requirement of Rule 6(e). The court generally provides
each grand juror with a copy of the Federal Grand Jury Handbook that includes an explanation of
Rule 6(e)'s obligation of secrecy. In addition, each grand juror's obligation of secrecy usually is
emphasized in the oath each juror takes and in the charge given to the grand jury by the judge. A
frequently used practice of Division attorneys is to reiterate the requirements of Rule 6(e) in the
opening statement to the grand jury and at appropriate times during subsequent grand jury
sessions.

The grand jurors may disclose matters occurring before them, except for their deliberations, to
the attorneys representing the Government for use in the performance of their duties or to others
when ordered to do so by the court. A grand juror obviously may discuss matters occurring
before the grand jury with other grand jurors, but should do so only in the grand jury room.

3. Obligation on reporter

The reporter who takes and transcribes the evidence is permitted to be present during grand jury
sessions, except when the grand jury is deliberating or voting. Rule 6(e) specifically imposes an
obligation of secrecy on the reporter. Further, the rule explicitly recognizes that the reporter may
utilize other persons as typists to transcribe the recorded testimony by including such typists
among those who are prohibited from making disclosures. Transcription of grand jury evidence
should be performed entirely on the premises of the grand jury reporter. Independent
transcription centers should not be used because of the potential for a breach of grand jury
secrecy.(4)

4. Obligation on Government attorneys and support staff

Government attorneys and support staff are prohibited from disclosing matters occurring before a
grand jury, subject to several important exceptions that are discussed in detail elsewhere in this
chapter.

5. No obligation on witness

Rule 6(e) specifically prohibits any obligation of secrecy from being "imposed on any person
except in accordance with this rule." Therefore, witnesses cannot be put under any obligation of
secrecy and attempts to impose such an obligation generally have been struck down by the
courts.(5) One circuit permits the imposition of a reasonable obligation of secrecy on a witness if
there is a compelling necessity that is shown with particularity.(6) The grand jury foreman or a
Government attorney may request a witness not to make unnecessary disclosures when those
disclosures or the attendant publicity might hinder an investigation.(7) When making such a
request, it should be absolutely clear that it is a request only and that no expressed or implied
coercion is used.

B. What Is Covered By Rule 6(e)

Rule 6(e) prohibits the disclosure of any information that would reveal "matters occurring before
the grand jury." Rule 6(e) does not cover all information developed during the course of a grand
jury investigation; only information that would reveal the strategy or direction of the
investigation, the nature of the evidence produced before the grand jury, the views expressed by
members of the grand jury, or anything else that actually occurred before the grand jury.(8) Rule
6(e) does not apply to material obtained or created independently of the grand jury as long as the
disclosure of such material does not reveal what transpired before or at the direction of the grand
jury.(9) Rule 6(e) also does not apply to information that has become a matter of public record, for
example, by its introduction at trial.(10)

Attorneys should consult the case law in the jurisdiction where the grand jury is sitting to
determine what materials constitute "matters occurring before the grand jury." The following
sections provide general guidelines on how certain categories of information have been treated
under Rule 6(e).

1. Grand jury testimony/transcripts/colloquy

Transcripts of witness testimony, statements made by Government attorneys, and any other
statements made by or before the grand jury, while in session, clearly constitute "matters
occurring before the grand jury" and may not be disclosed, except in conformity with one of the
exceptions to Rule 6(e).(11) Some courts have held that the court's charge to the grand jurors is not
covered by Rule 6(e) because the ground rules by which the grand jury operates do not reflect
matters occurring before the grand jury.(12)

2. Documents

The courts differ widely as to the extent that documents are considered "matters occurring before
the grand jury." Therefore, the local rules and the case law in the jurisdiction where the grand
jury is sitting should be carefully consulted before any documents are disclosed.

Rule 6(e) usually does not govern the disclosure of documents obtained by means independent of
the grand jury.(13) This is true even when such documents have later been examined by the grand
jury or made grand jury exhibits so long as disclosure of the documents does not reveal that they
were exhibits.(14)
Most courts do not consider individual documents subpoenaed by the grand jury to be "matters
occurring before the grand jury." The rule that has evolved is that Rule 6(e) does not apply to
subpoenaed documents that are sought for the information they contain, rather than to reveal the
direction or strategy of the grand jury investigation.(15) As explained in United States v. Stanford,
589 F.2d 285 (7th Cir. 1978), cert. denied, 440 U.S. 983 (1979), at 291:

Unlike testimony, documents are created for purposes other than the grand jury investigation; they are,
therefore, more likely to be useful for purposes other than revealing what occurred before the grand
jury.

The Division's general policy is to treat individual documents subpoenaed by the grand jury as
not covered by Rule 6(e) unless disclosure of the documents would reveal the scope, direction, or
other secret aspect of the investigation or would implicate one of the secrecy concerns of the
rule. Collections of documents, as opposed to individual documents, are more likely to be treated
as covered by Rule 6(e). Division attorneys should be particularly careful in those jurisdictions
that are beginning to take a broader view of the coverage of Rule 6(e) in light of the suggestion
in United States v. Sells Engineering, Inc., 463 U.S. 418 (1983), and United States v. Baggot,
463 U.S. 476 (1983), that subpoenaed documents should be treated the same as testimony.(16) The
Sixth Circuit in In re Grand Jury Proceedings, 851 F.2d 860 (6th Cir. 1988), established a broad
presumption that subpoenaed documents are covered by Rule 6(e). In deviating from the rule in
most other circuits, the court held at p. 866:

The general rule, however, must be that confidential documentary information not otherwise public
obtained by the grand jury by coercive means is presumed to be 'matters occurring before the grand
jury' just as much as testimony before the grand jury.

A court is more likely to treat subpoenaed documents as covered by Rule 6(e) if the request is
framed in terms of the grand jury investigation, for example, a request that calls for the
disclosure of all documents subpoenaed by a particular grand jury or a list or inventory of all
such documents, because such a request is more likely to reveal the scope or direction of the
investigation.(17) In general, the greater the number of documents sought, the more likely that
disclosure is prohibited by Rule 6(e).(18)

Different considerations may also apply to documents such as affidavits, narratives and
summaries that are prepared specifically by the subpoena recipient for the grand jury and
frequently submitted in lieu of an actual grand jury appearance or underlying documents. The
policy reasons for grand jury secrecy apply more strongly to such documents because they
resemble testimony and are more likely than ordinary business records to reveal the nature and
scope of the grand jury's investigation.(19)

While Rule 6(e) may not apply to the disclosure of subpoenaed documents, a court order may,
nevertheless, be required for their public disclosure. Subpoenaed documents remain the property
of the person from whom they were subpoenaed, the grand jury having only temporary custody.
(20)
Where the owner of the documents does not consent to their release, disclosure must be
authorized by the court. The standard for such authorization is not Rule 6(e), but whether the
party seeking the documents is lawfully entitled to have access to them.(21)
Before disclosing any documents subpoenaed by the grand jury, attorneys should be certain that
disclosure is not restricted by another statute. For example, the Right to Financial Privacy Act of
1978, (12 U.S.C. § 3420) requires that protected financial records subpoenaed by a grand jury be
accorded the same protections as Rule 6(e) material. Similarly, the Tax Reform Act of 1976, (26
U.S.C. § 6103) restricts disclosure of tax information obtained from the Internal Revenue
Service, irrespective of whether it has been presented to a grand jury.

As a matter of Department policy, an attorney should not initiate the disclosure of subpoenaed
documents to another attorney working solely on civil matters without an appropriate court
order.(22) This policy does not apply to materials that were created for a purpose independent of
the grand jury.(23)

3. Government memoranda summarizing or referring to testimony or documents

Government memoranda, or portions thereof, that summarize or refer to grand jury testimony or
documents are covered by Rule 6(e) to the extent that their disclosure would reveal "matters
occurring before a grand jury." Documents prepared by an attorney or his authorized assistants
that reflect grand jury information cannot be disclosed.(24)

Government memoranda, or portions thereof, that excerpt, refer to, or discuss grand jury
testimony are covered by Rule 6(e) and may not be disclosed except as provided by Rule 6(e).(25)
Government memoranda that reflect information provided by witnesses outside of the grand jury
room usually are not covered by Rule 6(e).(26)

Government memoranda that analyze documents subpoenaed by the grand jury have at least the
same protection under Rule 6(e) as the subpoenaed documents. In some instances, the disclosure
of an analysis of subpoenaed documents may reveal more about the strategy and direction of an
investigation than would disclosure of the documents alone. In these instances, the analysis
should not be disclosed.(27) Memoranda reflecting information obtained independent of the grand
jury, such as summaries of bidding information prepared by other agencies, ordinarily should be
treated as outside of the coverage of Rule 6(e), even if the document is later submitted to the
grand jury.(28) However, one circuit court has held that an analysis of information obtained
independently of the grand jury that was prepared specifically for the grand jury is covered by
Rule 6(e).(29) Also, at least one district court has held that Government memoranda requesting
authority for conducting a grand jury are covered by Rule 6(e) because such memoranda provide
a blueprint for the Government's investigation.(30)

4. Nature of investigation or identity of targets

Generally, it is necessary to disclose at least some information describing the nature of a grand
jury inquiry during the course of an investigation. In most circumstances, such information
should be very general. For example, a Government attorney could say, "We are investigating a
possible price-fixing conspiracy in the road building industry." In some situations, such as during
plea negotiations or witness interviews, it may be appropriate to summarize the evidence in
somewhat greater detail. This should be done only when necessary for the effective conduct of
the investigation. Attorneys should be careful not to disclose the identities of specific witnesses,
actual verbatim testimony or other information that would reveal the strategy or precise direction
of the investigation or anything that has actually occurred before the grand jury.(31)

The identities of the targets of the investigation should not be disclosed since one of the specific
interests that Rule 6(e) serves is to protect individuals who ultimately are not indicted from
unfavorable publicity.(32) The exception to this is disclosure to the targets of their status as
targets.(33) An attorney may also, as appropriate, tell opposing counsel whether his client is a
target, subject or just an informational witness.

5. Local rules may provide for additional secrecy

The local rules in a particular jurisdiction may provide for additional secrecy. For example, the
local rules of the South Dakota District Court contain particularly strict secrecy requirements for
subpoenaed documents. Consequently, the local rules regarding the disclosure of information
concerning the grand jury should be carefully reviewed before making any disclosures.

6. Access to ministerial grand jury records

Ministerial records that relate to the procedural aspects of the grand jury usually fall within the
scope of Rule 6(e). Such records may not be disclosed if the legitimate interests protected by
Rule 6(e) would be threatened.(34)

Rule 6(e)(6) provides that: "Records, orders and subpoenas relating to grand jury proceedings
shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of
matters occurring before a grand jury." Records, orders, and subpoenas relating to the grand jury
should not be disclosed so long as they remain under seal.

The scope of Rule 6(e)(6) is not entirely clear, as the term "records" is not defined. The notes of
the Advisory Committee on the Federal Rules of Criminal Procedure include the Department of
Justice authorization to a U.S. Attorney to apply to the court for a grant of immunity for a
witness as included within the scope of the rule. In re Grand Jury Impanelled March 8, 1983, 579
F. Supp. 189 (E.D. Tenn. 1984), one of the few cases to interpret Rule 6(e)(6), states, without
discussion, that motions to quash subpoenas are not covered by Rule 6(e)(6). However, the court
also held that motions, briefs and the like that tend to reveal the substance of grand jury records,
orders and subpoenas, nonetheless, should be sealed to protect the information contained in
them. The court in In re Donovan, 801 F.2d 409 (D.C. Cir. 1986), suggests that motions for
disclosure of grand jury information are subject to Rule 6(e)(6), but only to the extent that the
motion contains information that is subject to the general rule of secrecy.

Until there is further interpretation of Rule 6(e)(6), Division attorneys should file preindictment
motions, subpoenas, letters of authorization, immunity orders and the like under seal, unless
there are compelling reasons to the contrary.(35) Similarly, efforts to discover other ministerial
records, such as docket sheets and attendance and impaneling records, should be resisted if any
of the policy reasons behind Rule 6(e) are implicated.(36)

7. Names of witnesses
Rule 6(e) prohibits the disclosure of the identities of witnesses subpoenaed by or appearing
before the grand jury.(37)

8. Interview memoranda

According to the majority view and the general policy to be followed by Division attorneys, Rule
6(e) does not apply to witness interview memoranda, even if the statements contained therein are
later reported to the grand jury by the investigation staff or repeated to the grand jury by the
witness.(38) The local case law should be carefully reviewed before disclosing any interview
memoranda, as several courts have treated interview memoranda that were later presented to the
grand jury similarly to transcripts of grand jury testimony.(39)

9. Proffer memoranda

Proffer memoranda should be treated similarly to interview memoranda. As a general rule,

proffers should not be treated as covered by the secrecy requirements of Rule 6(e), because they
reflect information that is obtained independently of the grand jury.(40) This is particularly true
when the witness providing the proffer is not later called before the grand jury. Attorneys should
carefully consult the local case law as a few jurisdictions treat documents that reveal what will
happen before the grand jury in the future, such as proffers, as covered by the rule.(41)

C. Disclosure to Attorneys for the Government, Rule 6(e)(3)(A)(i)

Rule 6(e)(3)(A)(i) permits the disclosure of information covered by Rule 6(e) without a court
order to "an attorney for the government for use in the performance of such attorney's duty."(42)

1. Definition of "attorney for the government"

Rule 54(c) of the Federal Rules of Criminal Procedure defines "attorney for the government" as
"the Attorney General, an authorized assistant of the Attorney General, a United States Attorney,
[and] an authorized assistant of a United States Attorney." The definition includes not only those
attorneys who actually appear before the grand jury but also supervisory attorneys who are
working on the matter.(43) It also includes attorneys who are operating under a special
appointment.(44)

Those Division attorneys who actually appear before the grand jury receive letters signed by the
Assistant Attorney General for the Antitrust Division authorizing them to appear before the
grand jury as "an authorized assistant of the Attorney General." A letter of authorization is not
necessary prior to appearing before the grand jury and failure to obtain one will not invalidate a
subsequent indictment.(45)

Disclosure is not permitted to attorneys for federal administrative agencies,(46) Parole

Commission hearing officers,(47) or state governments.(48) However, a non-Department of Justice
attorney (including a state prosecutor or federal agency attorney), appointed under 28 U.S.C.
§ 515, as a Special Assistant United States Attorney or Special Assistant to the Attorney General,
is an "attorney for the government" for purposes of the rule.(49) While the definition would appear
to include attorneys working on civil and criminal matters, the Supreme Court held in United
States v. Sells Engineering, Inc., 463 U.S. 418 (1983), that Rule 6(e)(3)(A)(i) permits disclosure
only to attorneys working on criminal matters.

2. Policy after Sells

Prior to Sells, the Department interpreted Rule 6(e)(3)(A)(i) to permit an attorney conducting a
civil investigation to utilize, without obtaining prior judicial approval, Rule 6(e) material from a
prior or concurrent criminal investigation conducted by other Department attorneys. This
interpretation was rejected by the Supreme Court in Sells. The Supreme Court held that
Government attorneys may not automatically obtain grand jury materials for use in a civil matter
under Rule 6(e)(3)(A)(i), but must obtain a court order to secure such materials under Rule 6(e)
(3)(C)(i).(50)

Sells should not retroactively affect final judgments, pending litigation or ongoing civil
investigations in which grand jury materials have already been disclosed under either Rule 6(e)
(3)(A)(i) or a pre-Sells Rule 6(e)(3)(C)(i) order.(51) Chevron Oil Co. v. Huson, 404 U.S. 97, 105-
09 (1971), should govern the retroactivity of Sells.

Although Sells should not affect the past use of grand jury materials, it may restrict the continued
use of such materials. United States v. (Under Seal), 783 F.2d 450 (4th Cir. 1986), cert. denied,
481 U.S. 1032 (1987), permitted continued use in the context of that case; however, most courts
have not permitted such use.(52) Attorneys working on civil matters who want to continue to use
previously disclosed grand jury materials should file (C)(i) motions to preclude later motions for
sanctions.(53)

3. Use of grand jury materials for civil cases in the Antitrust Division

As a general rule, grand jury information may not be used for civil investigations or cases.
However, much of the material developed during the course of a criminal investigation is not
covered by Rule 6(e) and, consequently, may be disclosed to civil investigation staffs. It is
imperative that attorneys carefully distinguish between Rule 6(e) and non-Rule 6(e) materials. If
an attorney is uncertain whether the material to be disclosed is subject to Rule 6(e), he should file
a notice of use with the court. This will provide the court with an opportunity to respond to the
notice with an order to file a motion under Rule 6(e)(3)(C)(i), should one be necessary. In the
alternative, attorneys may file a motion for use, attaching a proposed order.

An attorney who was involved in a grand jury proceeding as a member of the prosecution team
(including supervisory attorneys) may, without prior authorization of the court, continue to use
materials subject to Rule 6(e) in a companion or related civil proceeding as long as such use does
not contravene Rule 6(e)'s purposes.(54) An attorney who so uses Rule 6(e) material should be
careful not to disclose the material to other members of the civil staff who were not members of
the prior criminal staff or to disclose the Rule 6(e) material in civil pleadings and the like.

Use of grand jury materials for civil matters by attorneys who were not members of the grand
jury staff after the close of the grand jury without indictment or concurrently with a criminal
matter involving the same party or parties is not permitted unless an appropriate order under
Rule 6(e)(3)(C)(i) is obtained from the court. However, there is no requirement to use separate
staffs to investigate or litigate similar matters or matters that may involve use of the staff
attorney's unrefreshed recollection of grand jury information.(55) Extreme caution should be
exercised by such staffs not to improperly disclose information subject to Rule 6(e).

Attorneys working on criminal matters may not use Civil Investigative Demands (CIDs) to
obtain information for criminal investigations.(56) However, a CID investigation may be
converted to a criminal investigation and information lawfully obtained during a legitimate civil
investigation may later be used for a criminal investigation.(57) Nonetheless, a common practice
within the Division is to issue a grand jury subpoena for documents or information previously
obtained by a CID.

D. Disclosure to Other Government Personnel; Rules 6(e)(3)(A)(ii) and 6(e)(3)(B)

1. Definition of Government personnel

Under Rule 6(e)(3)(A)(ii), grand jury information may be disclosed without a court order to
"such government personnel (including personnel of a state or subdivision of a state) as are
deemed necessary by an attorney for the government to assist an attorney for the government in
the performance of such attorney's duty to enforce federal criminal law." "Government
personnel" includes all federal Government employees who are assisting attorneys in the
investigation and prosecution of criminal violations.(58) Government "personnel" includes not
only members of the prosecution support staff, such as economists, secretaries, paralegals and
law clerks, and federal criminal investigators such as the FBI, but also employees of any federal
agency who are assisting the Government prosecutor.(59) At least one court includes temporary
Government personnel and independent contractors employed by the agency within the rule.(60)
However, individuals who are cooperating with the Government in connection with a particular
investigation without reimbursement for their services, such as informants, are not permitted
access to grand jury materials.(61)

Prior to the 1985 amendment to Rule 6(e)(A)(ii), the law was unclear as to whether state and
local government personnel were included within the "government personnel" exception to Rule
6(e). Most courts that had addressed the issue held that "government personnel" includes only
Federal Government employees.(62) The 1985 amendment to Rule 6(e)(3)(A)(ii) has resolved the
split by expressly including "personnel of a state or subdivision of a state" within the scope of
the rule. Because of the peculiar nature of the District of Columbia, its employees are included
within the Government personnel exception to Rule 6(e) as federal personnel.(63)

Strict precautions should be taken when disclosing information to Government employees who
have civil law enforcement functions, such as IRS agents, to ensure that grand jury materials are
not used improperly for civil purposes. Personnel assisting the grand jury investigation ordinarily
should not work on a related civil matter and should receive precautionary instructions,
preferably in writing, regarding the use and disclosure of grand jury materials.(64)

2. When necessary to assist in enforcing federal criminal laws

Disclosure to Government personnel under Rule 6(e)(3)(A)(ii) is permitted only when necessary
to assist in enforcing federal criminal laws. This rule does not permit disclosure for civil law
enforcement purposes.(65) Further, this rule requires that the disclosure be enforcement-related
and does not permit the disclosure of grand jury materials after the completion of prosecution.
One court has gone so far as to hold that probation officers who prepare presentence
investigation reports are not permitted access to grand jury materials because they do not assist
in either the investigation or the prosecution of the case.(66) The Division disagrees with this
holding and believes that attorneys may include grand jury information in presentence reports,
because partaking in the sentencing process is part of the Government attorneys' "duty to enforce
federal criminal law." In addition, disclosure to the District Court via its probation service as part
of the sentencing process embodied by Rule 32 should not be considered a disclosure as
contemplated by Rule 6(e).(67) Attorneys should consult the local U.S. Attorney's office to
determine the local practice as to whether Rule 6(e) information may be contained in presentence
reports.

There must be a need for assistance before disclosure may be made under Rule 6(e)(3)(A)(ii).
The determination of the need for assistance is within the discretion of the prosecutor and need
not be justified.(68) Nonetheless, Government prosecutors should be wary of abusing this
discretion and should limit the disclosure of grand jury materials as much as practicable.

Disclosure under Rule 6(e)(3)(A)(ii) to Government personnel for use in a separate investigation
is not permitted. Government personnel who are seeking discovery of grand jury material for use
in a different investigation must proceed under Rule 6(e)(3)(A)(i) or Rule 6(e)(3)(C)(i).

3. No need for court authorization

There is no need for court authorization to disclose grand jury materials under Rule 6(e)(3)(A)
(ii).(69) When in doubt as to the applicability of Rule 6(e)(3)(A)(ii), an attorney should consider
seeking a court order authorizing release under Rule 6(e)(3)(C)(i).

4. Notice--Rule 6(e)(3)(B)

Rule 6(e)(3)(B) provides that:

Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize
that grand jury material for any purpose other than assisting the attorney for the government in the
performance of such attorney's duty to enforce federal criminal law. An attorney for the government
shall promptly provide the district court, before which was impaneled the grand jury whose material has
been so disclosed, with the names of the persons to whom such disclosure has been made, and shall
certify that the attorney has advised such persons of their obligation of secrecy under this rule.

Under this rule, a list of all Government personnel to whom disclosure has been made must be
promptly provided to the supervising judge. While not required by the rule, whenever possible,
the list of names should be furnished to the court before the information is disclosed.(70) Such
prior notice is what Congress contemplated when it amended Rule 6(e) in 1977.(71) If prior notice
is not possible, then the court should be notified of disclosure as soon thereafter as possible. The
1985 amendments to Rule 6(e)(3)(A)(ii) also require certification that all persons to whom grand
jury material have been disclosed under this rule have been advised of their obligation of secrecy
under Rule 6(e).(72)

Standard Division policy is to list Division economists, contractors and agents of other
Government agencies in the disclosure notice. Secretaries, paralegals and clerical staffs need not
be listed as they may be considered the alter egos of the attorneys, economists, agents and others
whom they assist.

5. Record of disclosure/advice of secrecy

Attorneys conducting criminal investigations and prosecutions should keep detailed records of
disclosures made under Rule 6(e)(3)(A)(ii) and should advise all recipients of grand jury
materials of the secrecy requirements of Rule 6(e). Written precautionary instructions are
preferable as they can be used in any hearing challenging the grand jury procedures.(73)

E. Disclosure To Witness
1. Access to own transcript

The large majority of courts have held that neither the Federal Rules of Criminal Procedure(74)
nor the Freedom of Information Act(75) gives a grand jury witness a general right to a transcript of
his own testimony. The same standards governing disclosure of matters occurring before the
grand jury in general are applicable to a witness' access to a transcript of his testimony.

Under Rule 6(e)(3)(D), a witness who wishes to obtain a transcript of his grand jury testimony
must file a motion in the district where the grand jury was convened. Disclosure is permitted
only when ordered by a court "preliminarily to or in connection with a judicial proceeding" upon
a finding that a "particularized need" exists for the desired disclosure that outweighs the need for
maintaining the secrecy of the transcript.(76) As discussed in § H infra, particularized need is not a
standard easily met.

A few courts have granted witnesses pretrial access to grand jury transcripts absent a showing of
particularized need, reasoning that Rule 6(e) does not prohibit disclosure to a witness who
already has knowledge of his testimony.(77)

2. Antitrust Division policy regarding disclosure of grand jury transcript to a witness

Given the case law noted above, a witness is not entitled to automatic access to a transcript of his
grand jury testimony. However, as part of an attorney's preparation for trial, he may allow a
witness to review his prior grand jury testimony.(78)

In some jurisdictions, an attorney for the Government may need to obtain an order under Rule
6(e)(3)(C)(i) before disclosing the witness' transcript to the witness. The Government's motion
for disclosure should state that disclosure to a prospective witness of his grand jury testimony is
necessary to assist the witness in preparing for trial or an upcoming grand jury session and
involves minimal secrecy concerns.
Attorneys should consult the case law in their jurisdiction and discuss the local practice with the
United States Attorney's office before disclosing to a witness a transcript of his grand jury
testimony.

3. Disclosure to a witness of another's grand jury transcript or testimony

It is improper to disclose the grand jury testimony of one witness to another witness. In United
States v. Bazzano, 570 F.2d 1120, 1124-26 (3d Cir. 1977), cert. denied, 436 U.S. 917 (1978), the
court held that Rule 6(e) is violated whenever a Government attorney or agent discloses the
grand jury testimony of one witness to another in order to shape either or both witnesses' trial
testimony. The court, however, distinguished such improper disclosure from the acceptable
practice of a prosecutor who, in a pretrial interview (or in the grand jury room), restates in
general terms the evidence which other witnesses have given.

4. Disclosure to a witness of documents subpoenaed from another party

It may be necessary for the staff to disclose to a witness documents subpoenaed from another
party in order to impeach the witness, refresh the witness' recollection, authenticate a document,
identify handwriting or encourage truthful testimony. Before a witness is shown a document
subpoenaed from another party, attorneys should be thoroughly familiar with the case law and
the local rules governing the disclosure of subpoenaed documents in the jurisdiction in which
they are practicing.(79)

The case law on whether subpoenaed documents constitute matters occurring before a grand jury
is not settled.(80) Many courts have reasoned that when a particular subpoenaed document is
sought or disclosed for a lawful and independent purpose "for its own sake - for its intrinsic
value in the furtherance of a lawful investigation," it does not necessarily constitute a matter
occurring before the grand jury.(81)

The approach adopted by the Third, Seventh, and District of Columbia Circuits requires the court
to conduct a factual inquiry into whether disclosure of subpoenaed documents will reveal the
inner workings of the grand jury.(82) Several district courts have also used this approach to
various degrees.(83) Under this approach, only those subpoenaed documents revealing some secret
aspect of a grand jury's investigation would be governed by Rule 6(e) and would require a
showing of "particularized need" before disclosure would be permitted. Accordingly, a court
order allowing disclosure to a witness might not be necessary in these jurisdictions.

Other courts have held that subpoenaed documents and transcripts of grand jury testimony are
subject to the same degree of secrecy and that the court must balance the need of the party
seeking disclosure against the effect such disclosure would have on the policies underlying grand
jury secrecy.(84) In these jurisdictions, a court order would be necessary before showing a witness
documents subpoenaed from another party.

F. Disclosure to Defendant - Bases for Pre-Trial Discovery of Grand Jury Material

There are four commonly encountered bases for disclosure of grand jury material to a criminal
defendant. Three of these are covered by specific provisions of the Federal Rules of Criminal
Procedure; the fourth (Brady material) has its origin in due process analysis.

1. Disclosure to defendant of his own testimony

Rule 16(a)(1)(A) provides that, upon request, an individual defendant shall be permitted to
inspect and copy or photograph:

1. written or recorded statements by him;

2. oral statements made by the defendant to a person then known to the defendant to be a
Government agent; and
3. testimony of a defendant before a grand jury which relates to the events charged.

Grand jury testimony is producible to a defendant only if "relevant" to the case in which
production is requested.(85) With respect to corporate defendants, Rule 16(a)(1)(A) provides that,
upon request, the corporation may obtain transcripts of relevant grand jury testimony of its
officers or employees who had the authority to bind the corporation legally for the alleged
offense, either at the time of their testimony or when the alleged offense was committed.(86)
Division policy is to require a written representation from defendants' counsel that the employees
were in a position to bind the corporation before disclosing their statements.(87) The grand jury
witness whose testimony is to be produced should be notified of the Rule 16 motion since the
witness has standing to object to disclosure.(88)

The Government is not required by Rule 16 to disclose the transcript of a non-defendant witness
who reiterates what was said by a defendant.(89) Such a transcript, however, may have to be
disclosed under the Jencks Act and Rule 26.2, as discussed below.

2. Disclosure of grand jury transcripts of Government witnesses pursuant to the Jencks Act
and Rule 26.2

Both the Jencks Act, 18 U.S.C. § 3500, and Fed. R. Crim. P. 26.2,(90) provide that, upon motion, a
criminal defendant is entitled to the production of the prior statements of the prosecution
witnesses on relevant matters after such witnesses have testified on direct examination. Under
Rule 26.2(f)(3), which carries forward a provision that was added to the Jencks Act in 1970, "a
statement, however taken or recorded, or a transcription thereof, made by the witness to a grand
jury" is included in the definition of "statement." The Jencks Act applies only to criminal trials,
not to pretrial proceedings, such as suppression or preliminary hearings.(91)

The Government is required to produce only those transcripts that relate to the subject matter of
the witness' testimony.(92) When there is a dispute as to whether the transcript relates to the
subject matter, the court determines whether the transcript ought to be produced in whole or in
part. If, after reviewing the challenged transcript in camera, the court concludes that only part of
a witness' grand jury transcript relates to the subject matter concerning which the witness has
testified, the court will excise the unrelated portions and order the remainder of the transcript to
be produced to the moving party. This procedure is required by Rule 26.2(c) which provides:
If the other party claims that the statement contains matter that does not relate to the subject matter
concerning which the witness has testified, the court shall order that it be delivered to the court in
camera. Upon inspection, the court shall excise the portions of the statement that do not relate to the
subject matter concerning which the witness has testified, and shall order that the statement, with such
material excised, be delivered to the moving party. Any portion of the statement that is withheld from
the defendant over his objection shall be preserved by the attorney for the government, and, in the
event of a conviction and an appeal by the defendant, shall be made available to the appellate court for
the purpose of determining the correctness of the decision to excise the portion of the statement.

The Jencks Act and Rule 26.2 require that the court-ordered production of a witness' grand jury
transcript be made after the witness has completed his direct testimony;(93) however, if
appropriate concessions are made by defendants, arrangements may sometimes be made to
provide Jencks Act materials to the defendant in advance of trial. The trial court is without power
to order the early disclosure of Jencks Act materials.(94)

3. Disclosure of grand jury transcripts upon a showing of grand jury abuse - Rule 6(e)(3)(C)
(ii)

Under Rule 6(e)(3)(C)(ii), a court may allow the disclosure of matters occurring before a grand
jury at the request of a defendant "upon a showing that grounds may exist for a motion to dismiss
the indictment because of matters occurring before the grand jury." A presumption of regularity
attaches to grand jury proceedings,(95) and the party charging an abuse of the grand jury process
carries a heavy burden even to get a hearing on the allegations.(96) In response to such motions to
dismiss, courts are generally receptive to the Government's ex parte submission of the grand jury
matters at issue for in camera review.

A defendant seeking the production of grand jury transcripts must do more than make general
unsubstantiated or speculative allegations of impropriety concerning a grand jury's proceedings
to prevail under Rule 6(e)(3)(C)(ii).(97) The defendant's motion must establish that grounds truly
may exist and that the requested grand jury materials are necessary for a court to determine the
allegations of abuse. Defense counsel usually fail to make the requisite showing.(98)

4. Disclosure of Brady material

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that suppression by the
prosecution of evidence favorable to a defendant who has requested it violates due process if the
evidence is material either to guilt or punishment, regardless of the good or bad faith of the
Government attorneys in not producing it. Brady did not create an absolute right of access to
grand jury testimony of possible defense witnesses.(99)

To the extent that the Brady material is contained in grand jury materials other than transcripts of
witnesses who will testify, it should be produced. The Government satisfies its Brady obligation
so long as it discloses Brady material in sufficient time for the defendant to make effective use of
it.(100) When Brady material, either exculpatory or impeaching, is contained in Jencks Act
material, disclosure is timely if the Government complies with the Jencks Act.(101)
 G. Disclosure to Another Grand Jury--Rule 6(e)(3)(C)(iii)

Rule 6(e)(3)(C)(iii) permits the disclosure of grand jury material "when the disclosure is made by
an attorney for the government to another federal grand jury." This exception to Rule 6(e),
adopted in 1983, codified the existing case law that permitted, in some circumstances, the
disclosure of grand jury material from one grand jury to another.(102) No court order is required
prior to disclosure nor must the court be notified of the disclosure.(103) The rule applies to
transfers between grand juries in the same district and to transfers between grand juries in
different districts.

H. Disclosure Under Court Order-Rule 6(e)(3)(C)(i)

Rule 6(e)(3)(C)(i) provides that:

Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be
made - (i) when so directed by a court preliminarily to or in connection with a judicial proceeding.

1. Must be "preliminarily to or in connection with a judicial proceeding"

a. Definition of "judicial proceeding"

The leading definition of judicial proceeding was provided by Judge Learned Hand in Doe v.
Rosenberry, 255 F.2d 118, 120 (2d Cir. 1958):

[T]he term "judicial proceeding" includes any proceeding determinable by a court, having for its object
the compliance of any person, subject to judicial control, with standards imposed upon his conduct in
the public interest, even though such compliance is enforced without the procedure applicable to the
punishment of crime.

Under this definition, courts have held that the following qualify as judicial proceedings: the
grand jury's own proceedings,(104) other grand juries,(105) attorney and judicial disciplinary
proceedings,(106) police officer disciplinary proceedings,(107) Internal Revenue Service and Tax
Court proceedings,(108) impeachment hearings,(109) state grand jury proceedings(110) and state
criminal trials.(111) The critical factor common to these proceedings is that any post-investigation
use of the information would necessarily involve resort to the judicial system. Judicial
proceedings that are instituted solely to obtain grand jury materials, while technically meeting
the definition of "judicial proceeding", do not fall within the scope of Rule 6(e)(3)(C)(i).(112)

When a Government agency seeks disclosure for use in an administrative proceeding for which
no judicial action is planned, the majority of courts will not permit disclosure. For example, the
courts have held that the following ordinary administrative proceedings do not qualify as judicial
proceedings: parole revocation hearings,(113) Federal Energy Regulatory Commission preliminary
investigations,(114) Federal Maritime Commission adjudicatory hearings,(115) state medical board
investigations,(116) and Federal Trade Commission investigations.(117) The essential difference
between judicial proceedings and ordinary administrative proceedings is that in the former,
judicial review is clearly intended to be part of the decision-making process while in the latter,
judicial review remains speculative.
 b. Definition of "preliminarily to"

The Supreme Court in United States v. Baggot, 463 U.S. 476 (1983), held that a civil tax audit is
not preliminary to a judicial proceeding within the meaning of Rule 6(e)(3)(C)(i). In reaching
this conclusion, the Court enunciated a two-pronged definition of "preliminarily to." First, Rule
6(e)(3)(C)(i) "contemplates only uses related fairly directly to some identifiable litigation,
pending or anticipated."(118)118/ Disclosure is not "preliminarily to" a judicial proceeding "if the
primary purpose of disclosure is not to assist in preparation or conduct of a judicial
proceeding."(119) Second, litigation must be more than a remote contingency. The Court left open
the question of just "how firm an agency's decision to litigate must be before its investigation can
be characterized as "preliminar[y] to a judicial proceeding'."(120)

2. Must show particularized need

A court may permit disclosure of grand jury materials under Rule 6(e)(3)(C)(i) only when the
requesting party has demonstrated a "particularized need" for the material. The particularized
need standard was refined in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979).
Under the standard, the movant must demonstrate that the material is "needed to avoid a possible
injustice in another judicial proceeding, that the need for disclosure is greater than the need for
continued secrecy, and that [the] request is structured to cover only material so
needed. . . . [Moreover], in considering the effects of disclosure of grand jury proceedings, the
courts must consider not only the immediate effects upon a particular grand jury, but also the
possible effect upon the functioning of future grand juries."(121) Both private litigants and the
Government must show particularized need.(122) If the court concludes that disclosure is
warranted, it must be limited to only that material for which particularized need has been shown.
(123)
Further, any disclosure "may include protective limitations on the use of the disclosed
material."(124) The party seeking disclosure has the burden of proof with regard to establishing
particularized need.(125) The district court that determines whether there is "particularized need" is
vested with substantial discretion in resolving the matter that should not be disturbed absent a
showing of an abuse of that discretion.(126)

The Supreme Court has not provided a precise definition of particularized need. In general,
courts have focused on how the sought-after materials will be used. For example, disclosure may
be permitted when it is sought for use in refreshing the recollection, impeaching, or testing the
credibility of witnesses at trial.(127) Disclosure also has been permitted for the same purposes in
deposition settings.(128) However, there is no absolute right to the grand jury testimony of a
witness who later testifies in a different judicial proceeding.(129) Further, a request for disclosure
for refreshing the recollection of a witness may be premature if it is not yet known whether the
witness' recollection will, in fact, need to be refreshed.(130)

Several courts have examined the need for disclosure in terms of the ability of the party seeking
disclosure to obtain the requested material from some other source or by some other means.(131)
Courts have also found particularized need where one party has access to grand jury material and
the party seeking disclosure does not, because it would be inequitable not to allow disclosure to
the other party.(132) This last factor is rarely decisive but should be given some weight in
determining particularized need.
On the other hand, disclosure will not be allowed upon a mere showing of relevance nor for
general discovery.(133) Convenience, avoidance of delay, the complexity of the case, the passage
of time, and expense also are insufficient reasons to justify disclosure.(134) While these factors are
insufficient in and of themselves, they may, nonetheless, when coupled with other factors, be
used to demonstrate the requisite particularized need.

3. Particularized need must be balanced against need for maintaining grand jury secrecy

In determining whether disclosure is permitted under Rule 6(e)(3)(C)(i), the court must balance
the particularized need of the party seeking disclosure against the continuing need for secrecy.
As the need for secrecy declines, the burden of demonstrating need for the materials in question
is reduced.(135) The burden of demonstrating that the need for disclosure outweighs the need for
secrecy rests with the person seeking disclosure.(136)

By far the most important factor to be considered in weighing the need for continued secrecy is
whether the grand jury investigation has been completed. While the grand jury investigation is
pending, all of the reasons for secrecy are in full force and effect. Under these circumstances, it
is virtually impossible to demonstrate sufficient need to outweigh the secrecy concerns and
disclosure is virtually precluded.(137) Once the investigation is terminated and the grand jury is
discharged, many of the reasons for maintaining secrecy are no longer valid and disclosure is
more likely to be ordered.(138) Although the importance of secrecy may be reduced when the
grand jury investigation is concluded, it is far from eliminated.(139)

Generally, the most significant consideration that survives the termination of the grand jury
investigation is that secrecy encourages witnesses to testify fully and honestly without fear of
retribution. This consideration should be given significant weight regardless of the status of the
investigation.(140) This consideration may be limited, though not eliminated, by a showing that the
requested information already has been disclosed to a witness' corporate employer, as will often
be the case during discovery in a criminal proceeding. This is particularly true when the
disclosed information has been shared with the employer's co-defendants.(141) This consideration
may also be limited by a witness' consent to disclosure; however, this factor alone may not be
dispositive.(142)

Another factor to be considered in balancing the need for secrecy against the need for disclosure
is the type of information that is at issue. For example, there are fewer secrecy concerns raised
by the disclosure of subpoenaed documents than by the disclosure of grand jury transcripts.(143)

Other factors that decrease the need for secrecy include a public airing of the information at trial
and the passage of time.(144) Factors that increase the need for secrecy include the acquittal of
certain defendants and the possibility of further criminal trials.(145)

Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir.), cert. denied, 434 U.S. 889 (1977), is illustrative of
the balancing approach used to determine particularized need. The court held that the State of
Illinois' need for the grand jury transcripts in a private treble damage antitrust action outweighed
the need for secrecy and permitted disclosure of the transcripts. The secrecy concerns had been
dissipated by the termination of the grand jury investigation and the disclosure of the transcripts
to defendants during criminal discovery. The diminished secrecy concerns were outweighed by
the State of Illinois' need for the documents to refresh the recollection and to impeach the
credibility of witnesses at trial. In addition, fairness favored disclosure since the defendants in
the private action already had copies of the transcripts from the prior criminal case discovery.

4. Disclosure to Government agencies

Courts have recognized that the need for secrecy is less where disclosure is sought by a public
body for a public purpose; however, this reduced secrecy does not create a per se particularized
need.(146) In United States v. Sells Engineering, Inc., 463 U.S. 418 (1983), the Court held not only
that Rule 6(e)(3)(C)(i) governs disclosure of materials to Government attorneys for civil
purposes but, further, that the Government must show particularized need. However, the Court
acknowledged that the particularized need standard "accommodates any relevant considerations,
peculiar to Government movants, that weigh for or against disclosure in a given case".(147) Such
considerations include: 1) the public interest served by disclosure to the Government; 2) the
reduced risk of further disclosure or improper use posed by disclosure to Government attorneys
as opposed to private parties or the general public; 3) the burden and cost of duplicating an
extensive grand jury investigation; and 4) any independent legitimate rights that the Government
may have to the materials.(148)

A case that is illustrative of the balancing approach used to determine particularized need when
the Government is the party seeking disclosure is In re Grand Jury Proceeding GJ-76-4 & GJ-75-
3, 800 F.2d 1239 (4th Cir. 1986). In that case, the Civil Division of the Department of Justice
was seeking access to grand jury material concerning a Government contractor for use in a civil
proceeding against the contractor. The court found that the need for secrecy had been greatly
reduced because the grand jury had been terminated for four years, the resulting criminal
proceeding had been concluded by a jury verdict following a full airing of the entire controversy,
the defendant in both the criminal and civil proceedings had had unlimited possession of the
grand jury material for about eight years, no witness had come forward to protest disclosure and
there was less risk of further improper disclosure or improper use by disclosure to the
Government. Balanced against the minimal need for secrecy was the Government's need for the
grand jury materials to put it on equal terms with the civil defendant which had had access to the
materials for eight years and the lapse of a substantial amount of time which had necessarily
dimmed the memories of potential witnesses. Under these circumstances, the court held that
disclosure to the Civil Division was entirely appropriate.

5. Disclosure to State Attorneys General

a. For civil enforcement purposes

State Attorneys General seeking access to grand jury material under section 4F(b) of the Clayton
Act, 15 U.S.C. § 15f(b), are not relieved of the burden of demonstrating particularized need. In
Illinois v. Abbott & Associates, Inc., 460 U.S. 557 (1983), the Supreme Court held that the state
must show particularized need despite the language of section 4F(b). The Court's decision was
based primarily on the legislative history of section 4F(b) and the importance and deep-rooted
tradition of grand jury secrecy. The Court required an affirmative expression from Congress
before adopting any exception to Rule 6(e). However, the Court did emphasize that the
particularized need standard had sufficient flexibility to take into account any public interest
served by disclosure to a governmental body.

b. For criminal enforcement purposes

Subdivision 6(e)(3)(C)(iv), effective August 1, 1985, now permits disclosure otherwise

prohibited by Rule 6(e):

When permitted by a court at the request of an attorney for the government, upon a showing that such
matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision
of a state for the purpose of enforcing such law. If the court orders disclosure of matters occurring
before the grand jury, the disclosure shall be made in such manner, at such time, and under such
conditions as the court may direct.

It is the intent of the amended rule and the policy of the Department to share grand jury
information to assist states in the enforcement of state criminal law whenever it is appropriate to
do so. While there is no requirement for a state to demonstrate a particularized need for the grand
jury information, there should be a substantial need. The Assistant Attorney General of the
Division having jurisdiction over the matter that was before the grand jury, has decisional
authority for applying to the court for a disclosure order. Requests from Division staff attorneys
should be directed to the Assistant Attorney General through the Director of Operations. A copy
of this request should be sent to each investigative agency involved in the grand jury
investigation. The Department has suggested the information that should be included in a request
for authorization and the factors that should be considered by the Assistant Attorney General in
making a decision to seek disclosure.(149)

The Division usually will oppose disclosure of grand jury material to a state attorney general
while an investigation is pending but usually will request disclosure once an investigation has
closed. If authorization to seek a disclosure order is granted, the proposed order must include a
provision that further disclosures be limited to those required in the enforcement of state criminal
laws. If the motion for disclosure is denied, a copy of the order denying the motion must be sent
to the Assistant Attorney General who authorized the filing of the motion.(150)

6. Mechanics of obtaining disclosure orders

Rule 6(e)(3)(D) and 6(e)(3)(E) govern the mechanics of seeking and obtaining disclosure orders
under Rule 6(e)(3)(C)(i). These rules provide that:

(D) A petition for disclosure pursuant to subdivision (e)(3)(C)(i) shall be filed in the district where the
grand jury convened. Unless the hearing is ex parte, which it may be when the petitioner is the
government, the petitioner shall serve written notice of the petition upon (i) the attorney for the
government, (ii) the parties to the judicial proceeding if disclosure is sought in connection with such a
proceeding, and (iii) such other persons as the court may direct. The court shall afford those persons a
reasonable opportunity to appear and be heard.
(E) If the judicial proceeding giving rise to the petition is in a federal district court in another
district, the court shall transfer the matter to that court unless it can reasonably obtain sufficient
knowledge of the proceeding to determine whether disclosure is proper. The court shall order
transmitted to the court to which the matter is transferred the material sought to be disclosed, if
feasible, and a written evaluation of the need for continued grand jury secrecy. The court to
which the matter is transferred shall afford the aforementioned persons a reasonable opportunity
to appear and be heard.

These rules adopt the procedure suggested by the Supreme Court in Douglas Oil Co. v. Petrol
Stops Northwest, 441 U.S. 211 (1979), for resolving venue where disclosure is sought for use in
a judicial proceeding instituted in a different district from that in which the grand jury sat.(151) The
procedure requires the party seeking disclosure to file a motion for disclosure in the district
where the grand jury sat (the grand jury court). Next, the grand jury court must determine the
need for continued secrecy. Where the need for continued secrecy remains high, for example,
when the grand jury investigation is still active, the grand jury court may decide that disclosure is
inappropriate, regardless of need, and deny the motion. If the grand jury court decides that
disclosure may be appropriate, the grand jury court should transfer the requested materials with a
statement evaluating the need for continued secrecy to the court where the civil proceeding is
located (the civil court). Finally, the civil court should determine particularized need and balance
it against the need for continued secrecy as stated by the grand jury court.

Where the person seeking disclosure is not the Government, Rules 6(e)(3)(D) and (E) also
require notice to and the opportunity to be heard for the attorney for the Government, the parties
to the judicial proceeding and such other parties as the court may direct. The Notes of the
Advisory Committee for the Federal Rules of Criminal Procedure indicate that the last clause
should include all persons who might suffer substantial injury from disclosure.(152) If the party
seeking disclosure is the Government, then the proceeding may be ex parte, although the courts
have the discretion to conduct adversary hearings.(153) Division attorneys should ordinarily file
Rule 6(e)(3)(C)(i) motions ex parte whenever a public filing would result in a breach of grand
jury secrecy.

Under Rule 6(e)(5), hearings on motions for disclosure should be closed to the public. This is
necessary to prevent the disclosure of any grand jury information that may be discussed at the
hearing.

The law on whether disclosure orders are appealable is unclear. Generally, while the grand jury
is sitting, an order denying disclosure is not appealable because of the potential disruptions that
would occur.(154) A writ of mandamus may be available to review an order denying disclosure in
certain extraordinary circumstances, but such review is rare.(155) The grant or denial of a
disclosure order also may be appealable if the disclosure motion is the only matter pending
before the federal court and appellate review otherwise might be lost,(156) or if the controversy
over disclosure arose in an independent, plenary proceeding.(157) Finally, most courts have held
that orders transferring grand jury materials from the court where the grand jury sat to a court
that is conducting subsequent proceedings are not appealable.(158) Courts differ, however, on
whether an order by a court conducting a subsequent civil proceeding permitting disclosure is
appealable.(159)
 I. Use of Materials in Investigation
1. Quotation of transcripts in motions and briefs

It is often necessary to quote from transcripts in motions and briefs. Although staff attorneys
should keep this to a minimum, it may be unavoidable, for example, when defending against a
claim of prosecutorial abuse.

Precautions should be taken when filing motions and briefs that contain Rule 6(e) material.
Attorneys should consider filing a motion requesting the court to place the document -- or, at a
minimum, the portion with not previously disclosed Rule 6(e) material -- under seal. A
frequently followed practice is to place all of the Rule 6(e) material in a separate memorandum
for the court only, advising defense counsel of the filing but not providing them with a copy of
the memorandum.

The most commonly applied rule regarding the appropriateness of an in camera submission is
contained in In re Taylor, 567 F.2d 1183 (2d Cir. 1977), at 1188:

In order to determine, therefore, whether the in camera proceeding conducted by the district court
afforded appellant all of the process to which he was entitled, the nature of the Government interest
must be balanced against the private interests that are affected by the court's action. (160)

If the party objecting to the in camera submission is the target of an ongoing investigation, then
the balance should always be weighed in favor of the Government.(161)

2. Using subpoenaed documents to refresh recollection

The documents subpoenaed by the grand jury can be very useful in refreshing a witness'
recollection. Documents such as telephone records, pricing sheets, correspondence and
memoranda can help a cooperative witness recall specific details and place events in a proper
time sequence. Similarly, confronting a recalcitrant witness with hard documentary evidence
may prod the witness to remember, or at least admit to, things he might otherwise not recall or
deny.

The disclosure of subpoenaed documents raises concerns involving the secrecy requirements of
Rule 6(e) and, to a lesser extent, the proprietary nature of some company documents. As a
threshold matter, staff should consult the local rules, the case law, and the U.S. Attorney's office
in the jurisdiction where the grand jury is sitting to determine whether subpoenaed documents
are considered "matters occurring before the grand jury". As previously noted, this is an area in
which the courts differ widely.(162)

As a practical matter, most jurisdictions will neither explicitly allow nor prohibit the disclosure
of subpoenaed documents to witnesses. While the general rule is that individual documents
subpoenaed by the grand jury do not constitute "matters occurring before the grand jury,"
disclosure of a large number of documents could reveal the scope or direction of the grand jury
and, thus, implicate one of the secrecy concerns of the rule.
 a. Inside grand jury room

Attorneys often disclose subpoenaed documents to grand jury witnesses during the course of
their appearances to refresh recollection and elicit more detailed and accurate testimony.
Documents can pin down the dates and times of contacts, the attendance at meetings, the
movement of prices over time and -- in the case of some correspondence and memoranda -- the
substance of conversations. Disclosure of documents for these purposes is consistent with the
grand jury's obligation to elicit information and examine "every clue" to determine if a crime has
been committed.(163)

In the course of a witness' grand jury testimony, many attorneys take the opportunity to
authenticate and lay a foundation for a subpoenaed document if it is considered likely to become
a trial exhibit. This has been found helpful in: (l) obtaining stipulations to the document's
authenticity at trial; (2) identifying at an early stage a problem in establishing the document's
authenticity; and (3) locking a witness into a line of testimony concerning the exhibit for trial.
Particular care should be taken if the witness might not be available, because of identification
with a target, for interviews in a post-indictment context. However, because document
authentication may be time-consuming, it should be done only with important documents and
care must be taken not to waste precious grand jury time or unnecessarily bore grand jurors.

One issue arising in this context is whether documents subpoenaed from a company other than
the witness' employer may be shown to a witness.(164) As an initial matter, local practice and the
law in the district where the grand jury is sitting must be checked. Assuming that the practice is
not prohibited, it may be very helpful to disclose such documents on occasion to prod a witness'
memory and help elicit a more detailed account of pertinent events. As with the disclosure of
other documents, this disclosure is consistent with and, indeed, necessary for the grand jury to
discharge its obligation to investigate fully and ferret out all pertinent facts. Care must be taken
not to disclose needlessly the proprietary information from one company to the representative of
another and to be aware of any other legal restrictions that may govern disclosure.(165)

It is important that an accurate record be made whenever subpoenaed documents are disclosed to
a witness in the grand jury room. The document should be clearly identified and, when
appropriate, marked as a grand jury exhibit. This will help produce a clearer transcript and may
protect against charges of impropriety and unauthorized disclosure in the future.

b. Outside the grand jury room

There is often not enough grand jury time to show a witness all pertinent documents in the grand
jury room. Sometimes, with a cooperating witness, staff would like the witness to examine the
documents at his leisure so that he has ample time to fully supplement his memory and piece
together a detailed and chronological account of what occurred. This ensures maximum accuracy
and orderly testimony. In these instances, showing the witness documents during an interview
outside the grand jury room is most helpful and appropriate.

There is little problem in showing a witness his own company's documents outside the grand jury
room. The question becomes more difficult in the case of a former employee who, for example,
authored the documents, or a third-party witness. In these situations, great care must be taken to
safeguard the proprietary nature of the documents.

Various safeguards have been adopted in connection with the disclosure of documents to a third-
party witness. For example, some attorneys do not reveal the source of the document (i.e., which
company produced it to the grand jury), showing the witness a copy with all identifying codes
removed. Other attorneys have entered into confidentiality agreements pertaining to the
Government's use of the documents with subpoenaed parties. Such agreements contain language
to the effect that the Government would reveal the company's documents during interviews only
as necessary to conduct the investigation. The company thus implicitly approves reasonable
disclosure of their documents to third parties.

Finally, some courts and the U.S. Attorneys' offices have approved the practice of using an agent
to review subpoenaed documents outside the presence of the grand jury. The agent then presents
a summary, analysis or explanation of the documents to the grand jury.(166) This procedure
usually involves expert witnesses, such as Treasury or FBI agents or economists.

3. Using grand jury testimony to refresh recollection

Disclosing an individual's own prior testimony to a grand jury witness may be useful when he is
testifying before the grand jury for a second time (either to recant and correct prior testimony or
to provide additional information) or in the course of preparing him as a witness for trial.
Occasionally, an attorney may consider revealing the substance of one witness' testimony to
another in the hope of eliciting truthful testimony. However, the attorney should be careful not to
reveal any information that would identify the prior witness.

a. During grand jury session

It is often necessary for a witness to appear a second time before the grand jury. The witness may
have been untruthful during his first appearance and wish to recant or it may be useful to expand
on his initial testimony. In both cases, it is common for the witness (or his counsel) to seek
access to the transcript of the witness' testimony. In most jurisdictions, the witness is not entitled
to automatic access to his transcript.(167) In these jurisdictions, a Rule 6(e) order must be obtained
to allow disclosure of the transcript to the witness and his counsel.(168)

Sometimes, in seeking to refresh recollection or confront a witness with contradictory

information, staff may consider revealing the statements of or information provided by one
witness to another. Opinions differ as to the efficacy of such disclosure in eliciting a witness'
truthful testimony. Some attorneys do not find it useful and, instead, focus upon making as
detailed a record as possible to preserve a possible perjury charge. Others think that some
disclosure could prod a witness to change his testimony or remember something he might
otherwise "not recall." In these circumstances, most agree that little of the other evidence should
be revealed, for tactical reasons as well as Rule 6(e) concerns. Most attorneys reveal only that the
grand jury has heard contradictory evidence. Again, care should be taken not to reveal any
information that would disclose the identities of prior witnesses.
 b. Preparation for trial

Most attorneys find it very helpful to allow a prospective trial witness to see his grand jury
testimony when preparing for trial. This often requires a Rule 6(e) disclosure order that should be
obtained early in the pretrial stage. The order typically provides that the witness may be provided
a copy of his transcript which he may show his counsel, but that no copies or other disclosure
may be made. The copy of the transcript must be returned at the conclusion of the trial. In some
jurisdictions, a witness may read the transcript of his grand jury testimony without a Rule 6(e)
order.(169) In any case, the transcript provided to the witness should contain only his testimony,
with all colloquy between Government attorneys and grand jurors removed.

J. Disclosure to Computer Specialists

Lengthy criminal investigations that involve large volumes of testimony and documents often
require the assistance of computer specialists (e.g., computer programmers, document coders and
transcript keyers) to organize the accumulated information. When disclosing grand jury
information to computer specialists, attorneys should be sure to file the requisite notices or to
seek the appropriate orders.

If the computer specialist is a Federal Government employee, then no court order is necessary
because disclosure falls within Rule 6(e)(3)(A)(ii).(170) A notice of disclosure should be filed with
the court under Rule 6(e)(3)(B).

The computer specialists used by the Division usually are employed by private contractors.
There is some authority for treating private contractors the same as permanently employed
Government personnel under Rule 6(e)(3)(A)(ii).(171) Nonetheless, attorneys should check with
the U.S. Attorneys Office for the district in which the grand jury is sitting and follow the practice
used by that office. The practice followed by most U.S. Attorneys Offices is to seek a court order
under Rule 6(e)(3)(C)(i).(172) Samples of the necessary pleadings, including affidavits,
memoranda in support of motions, and proposed orders, may be obtained from the Division's
Information System Support Group. Also included in this package is the confidentiality
agreement entered into between the Division and the private contractor. This agreement should
be included in the papers filed with the court to demonstrate that the secrecy of the grand jury
will not be breached significantly by disclosure.

K. Non-Disclosure Orders
1. Restrictions on witnesses

Witnesses may not be put under any obligation of secrecy because Rule 6(e) specifically
prohibits any obligation of secrecy from being "imposed on any person except in accordance
with this rule."(173) Consequently, witnesses are free to discuss their testimony with their own
counsel, counsel for potential targets or anyone else they so choose. In appropriate
circumstances, the grand jury foreman or the Government attorney may request that a witness
not make any unnecessary disclosures because of possible interference with the investigation.
However, when making such a request, it should be extremely clear that it is a request only and
not a command and that the person making the request uses no express or implied coercion.
 2. Protective orders

The court may regulate the disclosure of materials turned over under court order to limit to the
maximum extent possible the invasion of grand jury secrecy.(174) The nature and scope of the
protective order will vary depending upon the circumstances of a given case. Generally, the
greater the need for secrecy and the greater the risks of subsequent disclosure, the more stringent
the protective order.

Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir.), cert. denied, 434 U.S. 889 (1977), illustrates a
particularly comprehensive protective order. The court permitted the disclosure of grand jury
transcripts to the State of Illinois but required the deletion of all transcript portions that were
irrelevant to the State's case. Secondly, the court permitted use of the transcripts in the pending
litigation only and then only for impeaching the credibility of witnesses, refreshing their
recollection, or discrediting them. Finally, the court permitted disclosure to a single attorney,
required that attorney to keep a log of all subsequent disclosures, prohibited the copying of the
transcripts and required the return of the transcripts once they were no longer needed.

L. Sanctions

Rule 6(e)(2) provides that a "knowing violation of Rule 6 may be punished as a contempt of
court." Thus, the court with appropriate jurisdiction may issue a contempt citation against a
Government attorney who knowingly discloses or uses information in violation of Rule 6(e).(175)
However, contempt is a severe sanction and Division attorneys should argue that lesser
sanctions, if any, would be appropriate to remedy improper disclosures. For example, attorneys
who have improperly used Rule 6(e) materials for civil law enforcement purposes may argue that
the appropriate remedy is a prohibition against continued disclosure or use(176) or an order
permitting disclosure of the Rule 6(e) materials to the opposing party.

Defendants may argue more onerous sanctions such as exclusion of the improperly obtained
evidence in the civil suit for which it was used, substitution of attorneys, quashing outstanding
subpoenas that are based on the improperly obtained evidence or dismissal of the criminal
indictment, civil case, or both.(177) Courts are unlikely to order such drastic remedies.

There should be no suppression of evidence if a Government employee acted in good-faith

reliance on a facially valid Rule 6(e) order.(178) Further, a subpoena should be quashed only when
there is a flagrant abuse of Rule 6(e).(179)

A remedy as drastic as dismissal of an indictment is clearly unwarranted, particularly when the

violation of Rule 6(e) is inadvertent. As stated in United States v. Rosenfield, 780 F.2d 10, 11
(3d Cir. 1985), cert. denied, 478 U.S. 1004 (1986):

An abuse of the grand jury by the prosecution merits dismissal of an indictment only where the
defendant is actually prejudiced, or "(t)here is evidence that the challenged activity was something
other than an isolated incident, unmotivated by sinister ends or that the type of misconduct has become
'entrenched and flagrant' in the circuit." (citations omitted) (180)
 M. Security of Grand Jury Information

Antitrust Division employees should be aware of the requirements for handling grand jury
information contained in DOJ Order 2600.4 (Safeguarding Grand Jury Information) and Security
Awareness Memorandum No.4 (October 26, 1981).(181) Employees working with grand jury
information must exercise special precautions when using, storing, transferring and/or destroying
such material.

1. Safeguards during use

When grand jury information is being used by Antitrust Division employees, it should be kept
under constant observation by an authorized person who is in a position to exercise direct
physical control over it. The material should be covered, turned face down, placed in storage
containers, or otherwise protected when persons who should not have access are present. As soon
as practical after use, the material should be returned to storage containers.

2. Storage requirements

Grand jury information should be stored in a lockbar file cabinet, secured with a GSA approved
combination lock or its equivalent. Documents subpoenaed by the grand jury do not need to be
stored in lockbar file cabinets, but should be stored in rooms with secure door locks. Entrances
and exits to rooms where grand jury information or subpoenaed grand jury documents are stored
must be locked during nonworking hours, or when no authorized individual is present, to insure
security of the material.

3. Safeguards during transfer

When grand jury information cannot be personally transmitted by an authorized Department of

Justice employee, it should be transferred by U.S. Postal Service certified mail with return
receipt. Documents subpoenaed by the grand jury can be transferred by mail or by a private
courier service or mover hired by the General Services Unit of the Antitrust Division's Executive
Office.

4. Return and destruction procedures

When grand jury information is no longer needed, it shall be treated in accordance with the
requirements of ATR Directive 2710.1 (Procedures For Handling Division Documents).
Documents subpoenaed by the grand jury should be returned to their owner when no longer
needed. If the owner does not wish them returned, they should be destroyed by burning,
shredding, or pulping. Other material that may contain grand jury information that is
inappropriate for permanent retention, such as copies, working papers or typewriter ribbons,
should be destroyed in the same manner as grand jury information. Magnetic tapes containing
grand jury information (such as computer or dictation tapes) must be erased electromagnetically
before they are reused or destroyed.

5. Safeguards for word processing equipment

To protect against unauthorized access, all documents containing grand jury information that are
stored in a word processing system should be password protected.

FOOTNOTES

1. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979); United States v. Procter
& Gamble Co., 356 U.S. 677, 681-82 (1958); Executive Sec. Corp. v. Doe, 702 F.2d 406 (2d
Cir.), cert. denied, 464 U.S. 818 (1983); United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.
1954); United States v. Jones, 766 F.2d 994 (6th Cir.), cert. denied, 474 U.S. 1006 (1985); In re
Special March 1981 Grand Jury, 753 F.2d 575 (7th Cir. 1985); United States v. Fischbach and
Moore, Inc., 776 F.2d 839, 843 (9th Cir. 1985); United States v. Eisenberg, 711 F.2d 959 (11th
Cir. 1983).

2. See United States v. Sells Eng'g, Inc., 463 U.S. 418 (1983).

3. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979); In re Bonanno, 344
F.2d 830 (2d Cir. 1965); In re Grand Jury Proceedings Northside Realty Assocs., 613 F.2d 501
(5th Cir. 1980); United States v. Fischbach and Moore, Inc., 776 F.2d at 844; In re Grand Jury
Proceedings in Matter of Freeman, 708 F.2d 1571 (11th Cir. 1983). But see In re Biaggi, 478
F.2d 489 (2d Cir. 1973) (court may disclose grand jury information if there is a sufficient public
interest).

4. See Memorandum from Stephen S. Trott, Assistant Attorney General, Criminal Division, to all
United States Attorneys, Jan. 10, 1984.

5. See In re Investigation Before April 1975 Grand Jury (Rosen), 531 F.2d 600 (D.C. Cir. 1976);
In re Grand Jury Proceedings, 814 F.2d 61 (1st Cir. 1987); Bast v. United States, 542 F.2d 893
(4th Cir. 1976); In re Eisenberg, 654 F.2d 1107, 1113 n.9 (5th Cir. Unit B Sept. 1981); United
States v. Radetsky, 535 F.2d 556 (10th Cir. 1976), cert. denied, 429 U.S. 820 (1977).

6. In re Grand Jury Subpoena Duces Tecum, 797 F.2d 676 (8th Cir.), cert. dismissed, 479 U.S.
1013 (1986); see also In re Swearingen Aviation Corp., 486 F. Supp. 9 (D. Md. 1979).

7. See In re Grand Jury Proceedings, 814 F.2d at 70; In re Castiglione, 587 F. Supp. 1210 (E.D.
Cal. 1984); In re Grand Jury Proceedings, 558 F. Supp. 532 (W.D. Va. 1983).

8. See Fund for Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856, 869
(D.C. Cir. 1981); United States v. Interstate Dress Carriers, Inc., 280 F.2d 52 (2d Cir. 1960); In
re Grand Jury Investigation, 630 F.2d 996 (3d Cir.), cert. denied, 449 U.S. 1081 (1980); In re
Grand Jury Investigation (Lance), 610 F.2d 202 (5th Cir. 1980); United States v. Stanford, 589
F.2d 285 (7th Cir. 1978), cert. denied, 440 U.S. 983 (1979); U.S. Indus., Inc. v. United States
Dist. Court, 345 F.2d 18 (9th Cir.), cert. denied, 382 U.S. 814 (1965); Anaya v. United States,
815 F.2d 1373 (10th Cir. 1987).
9. See In re Grand Jury Matter (Catania), 682 F.2d 61 (3d Cir. 1982).

10. See United States v. Sutton, 795 F.2d 1040 (Temp. Emer. Ct. App. 1986), cert. denied, 479
U.S. 1030 (1987); Sisk v. C.I.R., 791 F.2d 58 (6th Cir. 1986).

11. See United States v. Procter & Gamble Co., 356 U.S. 677 (1958); Douglas Oil Co. v. Petrol
Stops Northwest, 441 U.S. 211 (1979); Fund for Constitutional Gov't v. National Archives &
Records Serv., 656 F.2d 856 (D.C. Cir. 1981). But see In re Biaggi, 478 F.2d 489, 494 (2d Cir.
1973) (court may permit disclosure of grand jury testimony if disclosure is in public interest).

12. United States v. Alter, 482 F.2d 1016, 1029 n.21 (9th Cir. 1973). But see United States v.
Hart, 513 F. Supp. 657 (E.D. Pa. 1981).

13. See In re Grand Jury Matter (Catania), 682 F.2d 61 (3d Cir. 1982); In re Grand Jury
Subpoena, 920 F.2d 235 (4th Cir. 1990); In re Grand Jury Investigation (Lance), 610 F.2d 202
(5th Cir. 1980).

14. See Senate of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574 (D.C. Cir. 1987);
United States v. Weinstein, 511 F.2d 622, 627 n.5 (2d Cir.), cert. denied, 422 U.S. 1042 (1975);
In re Grand Jury Investigation, 630 F.2d 996 (3d Cir.), cert. denied, 449 U.S. 1081 (1980).

15. See SEC v. Dresser Indus., 628 F.2d 1368, 1382-83 (D.C. Cir.), cert. denied, 449 U.S. 993
(1980); United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960); In re
Grand Jury Investigation, 630 F.2d at 1000-01; United States v. Stanford, 589 F.2d 285 (7th Cir.
1978), cert. denied, 440 U.S. 983 (1979). But see In re Grand Jury Proceedings, 851 F.2d 860
(6th Cir. 1988); In re Grand Jury Disclosure, 550 F. Supp. 1171 (E.D. Va. 1982).

16. See United States v. Sutton, 795 F.2d 1040 (Temp. Emer. Ct. App. 1986), cert. denied, 479
U.S. 1030 (1987).

17. See Fund for Constitutional Gov't v. National Archives and Records Serv., 656 F.2d 856,
868-70 (D.C. Cir. 1981); see also United States v. Stanford, 589 F.2d at 291 n.6; In re Doe, 537
F. Supp. 1038 (D.R.I. 1982). But see United States v. Saks & Co., 426 F. Supp. 812 (S.D.N.Y.
1976).

18. See In re Grand Jury Disclosure, 550 F. Supp. supra. But see Senate of Puerto Rico v. United
States Dep't of Justice, 823 F.2d supra.

19. See In re Special February, 1975 Grand Jury, 662 F.2d 1232 (7th Cir. 1981), aff'd sub nom.
United States v. Baggot, 463 U.S. 476 (1983).

20. See United States v. Interstate Dress Carriers, Inc., 280 F.2d at 54; In re Grand Jury
Proceedings, 486 F.2d 85 (3d Cir. 1973); United States v. Penrod, 609 F.2d 1092 (4th Cir.), cert.
denied, 446 U.S. 917 (1979); In re Special March 1981 Grand Jury, 753 F.2d 575 (7th Cir.
1985).
21. See United States v. Interstate Dress Carriers, Inc., 280 F.2d at 54; Capitol Indem. Corp. v.
First Minnesota Constr. Co., 405 F. Supp. 929 (D. Mass. 1975); Davis v. Romney, 55 F.R.D. 337
(E.D. Pa. 1972).

22. See U.S. Department of Justice Guide on Rule 6(e) After Sells and Baggot, Jan. 1984, at 15-
16.

23. See U.S. Department of Justice Guide on Rule 6(e) After Sells and Baggot, Jan. 1984, at 53,
79.

24. See In re Special February 1975 Grand Jury, 662 F.2d 1232, 1238 (7th Cir. 1981), aff'd sub
nom. United States v. Baggot, 463 U.S. 476 (1983); U.S. Department of Justice Guide on Rule
6(e) After Sells and Baggot, Jan. 1984, at 17.

25. See In re Grand Jury Proceedings Northside Realty Assocs., 613 F.2d 501, 505 (5th Cir.
1980); U.S. Indus., Inc. v. United States Dist. Court, 345 F.2d 18 (9th Cir.), cert. denied, 382
U.S. 814 (1965); United States v. Armco Steel Corp., 458 F. Supp. 784 (W.D. Mo. 1978).

26. See In re Grand Jury Matter (Catania), 682 F.2d 61, 64 (3d Cir. 1982). But see In re Special
February 1975 Grand Jury, 662 F.2d at 1238; In re Grand Jury Proceedings (Daewoo), 613 F.
Supp. 672 (D. Or. 1985) (Memorandum of a post-grand jury appearance interview treated as
covered by Rule 6(e)).

27. See In re Grand Jury Matter, 697 F.2d 511 (3d Cir. 1982); In re Special February, 1975
Grand Jury, 662 F.2d at 1238.

28. See In re Grand Jury Matter (Catania), 682 F.2d at 64; Sisk v. C.I.R., 791 F.2d 58 (6th Cir.
1986).

29. In re Grand Jury Matter, 697 F.2d at 513.

30. In re Disclosure of Grand Jury Matters (Miller Brewing Co.), 518 F. Supp. 163 (D. Wis.),
modified on other grounds, 687 F.2d 1079 (7th Cir. 1981).

31. See United States v. Bazzano, 570 F.2d 1120, 1125 (3d Cir. 1977), cert. denied, 436 U.S. 917
(1978).

32. See United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 (1958); United States v.
Eisenberg, 711 F.2d 959 (11th Cir. 1983).

33. See U.S.A.M. 9-11.153.

34. In re Special Grand Jury (for Anchorage, Alaska), 674 F.2d 778 (9th Cir. 1982); see also
United States v. Alter, 482 F.2d 1016, 1029 n.21 (9th Cir. 1973) (the court's charge to the grand
jury is not covered by Rule 6(e)).
35. A time-saving procedure is to have the Impounding Order that is filed at the beginning of the
investigation contain language that provides for the automatic sealing of motions, subpoenas, etc.

36. See In re Special Grand Jury (For Anchorage, Alaska), 674 F.2d supra.

37. See Fund for Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856, 869
(D.C. Cir. 1981); United States v. White Ready-Mix Concrete Co., 509 F. Supp. 747, 750 (N.D.
Ohio 1981).

38. See Cullen v. Margiotta, 811 F.2d 698 (2d Cir.), cert. denied, 483 U.S. 1021 (1987); In re
Grand Jury Matter (Catania), 682 F.2d 61 (3d Cir. 1982); Anaya v. United States, 815 F.2d 1373
(10th Cir. 1987); In re Grand Jury Proceedings (Bath Iron Works), 505 F. Supp. 978, 980 (D.
Me. 1981); In re Search Warrant for Second Floor Bedroom, 489 F. Supp. 207, 211 (D.R.I.
1980).

39. In re Grand Jury Matter, 697 F.2d 511 (3d Cir. 1982) (interview memoranda should be
treated the same as grand jury transcripts); In re Special February, 1975 Grand Jury, 662 F.2d
1232, 1237-38 (7th Cir. 1981) (in certain very limited circumstances, a report of an interview
given in lieu of a grand jury appearance is covered by Rule 6(e)), aff'd sub nom. United States v.
Baggot, 463 U.S. 476 (1983); In re Grand Jury Proceedings (Daewoo), 613 F. Supp. 672 (D. Or.
1985) (post-appearance statements by witness of what transpired before grand jury covered by
Rule 6(e)).

40. Disclosure of interview and proffer memoranda may be resisted on other grounds; e.g., the
attorney work-product and informants' privileges.

41. See In re Grand Jury Investigation (Lance), 610 F.2d 202, 216-17 (5th Cir. 1980); United
States v. Armco Steel, 458 F. Supp. 784 (W.D. Mo. 1978).

42. See generally U.S. Department of Justice Guide on Rule 6(e) After Sells and Baggot, Jan.
1984.

43. United States v. Sells Eng'g, Inc., 463 U.S. 418, 429 n.11 (1983).

44. See In re Subpoena of Persico, 522 F.2d 41 (2d Cir. 1975); In re Perlin, 589 F.2d 260, 266
(7th Cir. 1978); United States v. Zuber, 528 F.2d 981 (9th Cir. 1976); United States v. Mitchell,
397 F. Supp. 166 (D.D.C.), aff'd, 559 F.2d 31 (D.C. Cir. 1974), cert. denied, 431 U.S. 933
(1977).

45. United States v. Balistrieri, 779 F.2d 1191 (7th Cir.), cert. denied, 475 U.S. 1095 (1985).

46. See United States v. Bates, 627 F.2d 349 (D.C. Cir. 1980); In re Grand Jury Proceedings, 309
F.2d 440 (3d Cir. 1962).

47. See Bradley v. Fairfax, 634 F.2d 1126 (8th Cir. 1980).
48. See Illinois v. Abbott & Assocs., Inc., 460 U.S. 557 (1983); In re Grand Jury Proceedings,
580 F.2d 13 (1st Cir. 1978); United States v. Colonial Chevrolet Corp., 629 F.2d 943 (4th Cir.
1980), cert. denied, 450 U.S. 913 (1981); Special February 1971 Grand Jury v. Conlisk, 490 F.2d
894 (7th Cir. 1973).

49. See In re Perlin, 589 F.2d at 265-67. Great care should be taken with the use of cross-
designated state attorneys since it is unclear how courts will apply existing disclosure law to all
aspects of the cross-designation program. See ATD Manual VII-10 for additional information on
this program.

50. The Court declined to address the issue of "continued use of grand jury materials, in the civil
phase of a dispute, by an attorney who himself conducted the criminal proceedings." 463 U.S. at
430 n.15. See § 3., infra.

51. See U.S. Department of Justice Guide on Rule 6(e) After Sells and Baggot, Jan. 1984, at 33-
40; United States v. (Under Seal), 783 F.2d 450 (4th Cir. 1986), cert. denied, 481 U.S. 1032
(1987).

52. See In re Grand Jury Proceedings (Kluger), 631 F. Supp. 1542 (E.D.N.Y. 1986), modified,
827 F.2d 868 (2d Cir. 1987).

53. See U.S. Department of Justice Guide on Rule 6(e) After Sells and Baggot, Jan. 1984 at 65.

54. United States v. John Doe, Inc., I, 481 U.S. 102 (1987).

55. See United States v. Archer-Daniels-Midland Co., 785 F.2d 206 (8th Cir. 1986), cert. denied,
481 U.S. 1028 (1987).

56. 15 U.S.C. § 1312(a).

57. 15 U.S.C. § 1313(d)(1).

58. See United States v. Lartey, 716 F.2d 955, 964 (2d Cir. 1983); United States v. Bazzano, 570
F.2d 1120 (3d Cir. 1977), cert. denied, 436 U.S. 917 (1978); United States v. Penrod, 609 F.2d
1092 (4th Cir.), cert. denied, 446 U.S. 917 (1979); In re Grand Jury, 583 F.2d 128 (5th Cir.
1978); In re Perlin, 589 F.2d 260 (7th Cir. 1978).

59. See United States v. Jones, 766 F.2d 994 (6th Cir.), cert. denied, 474 U.S. 1006 (1985);
United States v. Claiborne, 765 F.2d 784 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986);
United States v. Block, 497 F. Supp. 629 (N.D. Ga. 1980), aff'd, 660 F.2d 1086 (5th Cir. Unit B
Nov. 1981).

60. United States v. Lartey, 716 F.2d at 963-64; see also United States v. Anderson, 778 F.2d
602 (10th Cir. 1985). See § J. below for the Division's policy regarding disclosure to independent
contractors.
61. See United States v. Tager, 638 F.2d 167 (10th Cir. 1980).

62. See In re Grand Jury Proceedings, 580 F.2d 13 (1st Cir. 1978). But see In re 1979 Grand Jury
Proceedings, 479 F. Supp. 93 (E.D.N.Y. 1979).

63. United States v. McRae, 580 F. Supp. 1560 (D.D.C. 1984).

64. See Robert Hawthorne, Inc. v. Director of Internal Revenue, 406 F. Supp. 1098 (E.D. Pa.
1976); see also Fed. R. Crim. P. 6(e)(3)(B).

65. See In re Perlin, 589 F.2d 260, 268-69 (7th Cir. 1978); In re Grand Jury Investigation No. 78-
184, 642 F.2d 1184 (9th Cir. 1981), aff'd sub nom. United States v. Sells Eng'g, Inc., 463 U.S.
418 (1983).

66. United States v. Hogan, 489 F. Supp. 1035 (W.D. Wash. 1980); see also Bradley v. Fairfax,
634 F.2d 1126 (8th Cir. 1980).

67. It may be appropriate to file sentencing memoranda that contain grand jury information
under seal unless there is a specific need for public disclosure. See United States v. Alexander,
860 F.2d 508 (2d Cir. 1988).

68. See In re Perlin, 589 F.2d at 268.

69. See United States v. Sells Eng'g, Inc., 463 U.S. 418 (1983).

70. See United States v. Hogan, 489 F. Supp. 1035 (W.D. Wash. 1980).

71. S. Rep. No. 354, 95th Cong., 1st Sess., reprinted in 1977 U.S. Code Cong. & Admin. News
530.

72. A sample letter containing precautionary instructions is attached as Appendix II-1.

73. See Robert Hawthorne, Inc. v. Director of Internal Revenue, 406 F. Supp. 1098 (E.D. Pa.
1976).

74. See In re Bianchi, 542 F.2d 98 (1st Cir. 1976); Executive Sec. Corp. v. Doe, 702 F.2d 406
(2d Cir.), cert. denied, 464 U.S. 818 (1983); Bast v. United States, 542 F.2d 893 (4th Cir. 1976);
United States v. Fitch, 472 F.2d 548 (9th Cir.), cert. denied, 412 U.S. 954 (1973). But see In re
Sealed Motion, 880 F.2d 1367 (D.C. Cir. 1989); In re Braniff Airways, Inc., 390 F. Supp. 344
(W.D. Tex. 1975); United States v. Scott Paper Co., 254 F. Supp. 759 (W.D. Mich. 1966).

75. Thomas v. United States, 597 F.2d 656 (8th Cir. 1979); Valenti v. United States Dep't of
Justice, 503 F. Supp. 230 (E.D. La. 1980).
76. See Fed. R. Crim. P. 6(e)(3)(C)(i); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211
(1979); Dennis v. United States, 384 U.S. 855 (1966); United States v. Procter & Gamble Co.,
356 U.S. 677 (1958).

77. In re Sealed Motion, 880 F.2d 1367 (D.C. Cir. 1989); Bursey v. United States, 466 F.2d 1059
(9th Cir. 1972); United States v. Heinze, 361 F. Supp. 46, 57 (D. Del. 1973).

78. See United States v. Garcia, 420 F.2d 309 (2d Cir. 1970); United States v. Heinze, 361 F.
Supp. 46 (D. Del. 1973).

79. Staff should also be aware of any legal restrictions other than Rule 6(e) imposed on the
disclosure and use of subpoenaed documents, such as bank records. See Right to Financial
Privacy Act, 12 U.S.C. § 3420.

80. See § B.2., supra for a full discussion of the treatment of subpoenaed documents under Rule
6(e).

81. SEC v. Dresser Indus., 628 F.2d 1368, 1382-83 (D.C. Cir.), cert. denied, 449 U.S. 993
(1980); United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960).

82. Fund for Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856, 869-70
(D.C. Cir. 1981);n In re Grand Jury Investigation, 630 F.2d 996, 1001 (3d Cir.), cert. denied, 449
U.S. 1081 (1980); In re Grand Jury Proceedings (Miller Brewing Co.), 687 F.2d 1079, 1090 (7th
Cir. 1982), aff'd on rehearing, 717 F.2d 1136 (7th Cir. 1983).

83. E.g., In re Doe, 537 F. Supp. 1038 (D.R.I. 1982) (thorough review of case law on the
applicability of Rule 6(e) to grand jury documents).

84. In re Grand Jury Proceedings, 851 F.2d 860 (6th Cir. 1988); Petrol Stops Northwest v.
Continental Oil Co., 647 F.2d 1005, 1008-09 (9th Cir.), cert. denied, 454 U.S. 1098 (1981); In re
Grand Jury Investigation of Cuisinarts, Inc., 516 F. Supp. 1008, 1022 n.17 (D. Conn.), aff'd on
other grounds, 665 F.2d 24 (2d Cir. 1981), cert. denied, 460 U.S. 1068 (1982); In re Grand Jury
Disclosure, 550 F. Supp. 1171, 1177 (E.D. Va. 1982).

85. United States v. Disston, 612 F.2d 1035, 1037 (7th Cir. 1980).

86. At least one court has held that a corporate defendant is entitled to non-grand jury statements
to the same extent as an individual defendant. In re United States, 918 F.2d 138 (11th Cir. 1990).

87. Normally, an order is entered that restricts any further disclosure of such testimony by the
corporate defendant.

88. See United States v. RMI Co., 599 F.2d 1183 (3d Cir. 1979); United States v. White Ready-
Mix Concrete Co., 449 F. Supp. 808 (N.D. Ohio 1978).
89. See United States v. Callahan, 534 F.2d 763 (7th Cir.), cert. denied, 429 U.S. 830 (1976);
United States v. Walk, 533 F.2d 417 (9th Cir. 1975).

90. Rule 26.2, which became effective on December 1, 1980, transfers the substance of the
Jencks Act from Title 18 to the Federal Rules of Criminal Procedure and makes production of
"statements" of a witness to the opposing side an obligation of the defendant as well as the
prosecution.

91. United States v. Sebastian, 497 F.2d 1267, 1268-70 (2d Cir. 1974); United States v. Montos,
421 F.2d 215, 220-21 (5th Cir.), cert. denied, 397 U.S. 1022 (1970); Robbins v. United States,
476 F.2d 26, 32 (10th Cir. 1973).

92. United States v. Ferreira, 625 F.2d 1030, 1034 (1st Cir. 1980); United States v. Keller, 512
F.2d 182, 186 (3d Cir. 1975); United States v. Smaldone, 544 F.2d 456, 460 (10th Cir.), cert.
denied, 430 U.S. 967 (1976).

93. United States v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979); United States v. Callahan, 534
F.2d 763 (7th Cir.), cert. denied, 429 U.S. 830 (1976); United States v. Eisenberg, 469 F.2d 156
(8th Cir. 1972), cert. denied, 410 U.S. 992 (1973); see United States v. Troutman, 814 F.2d 1428
(10th Cir. 1987); United States v. Liuzzo, 739 F.2d 541 (11th Cir. 1984). But see United States v.
Short, 671 F.2d 178 (6th Cir.), cert. denied, 457 U.S. 1119 (1982).

94. See, e.g., United States v. Sebastian, 497 F.2d 1267 (2d Cir. 1974); United States v. Peterson,
524 F.2d 167, 175 (4th Cir. 1975), cert. denied, 423 U.S. 1088 (1976). But see United States v.
Evans & Assoc. Constr. Co., 857 F.2d 720 (10th Cir. 1988).

95. See United States v. DeVincent, 632 F.2d 147, 154 (1st Cir. 1980); In re Grand Jury
Proceedings, 632 F.2d 1033, 1041 (3d Cir. 1980); United States v. West, 549 F.2d 545, 554 (8th
Cir.), cert. denied, 430 U.S. 956 (1977).

96. See In re Special April 1977 Grand Jury, 587 F.2d 889, 892 (7th Cir. 1978); United States v.
Al Mudarris, 695 F.2d 1182, 1185 (9th Cir.), cert. denied, 461 U.S. 932 (1983). See generally
Ch. IV § I., infra for a discussion of grand jury abuse.

97. See United States v. Budzanoski, 462 F.2d 443 (3d Cir.), cert. denied, 409 U.S. 949 (1972);
United States v. Edelson, 581 F.2d 1290, 1291 (7th Cir.), cert. denied, 440 U.S. 908 (1979);
United States v. Harbin, 585 F.2d 904, 907 (8th Cir. 1978); United States v. Ferreboeuf, 632 F.2d
832, 835 (9th Cir. 1980), cert. denied, 450 U.S. 934 (1981).

98. See United States v. Williams, 644 F.2d 950 (2d Cir. 1981); United States v. Provenzano,
688 F.2d 194 (3d Cir.), cert. denied, 459 U.S. 1071 (1982); United States v. Fife, 573 F.2d 369
(6th Cir. 1976), cert. denied, 430 U.S. 933 (1977); United States v. Edelson, 581 F.2d at 1291;
United States v. Harbin, 585 F.2d at 907; United States v. Ferreboeuf, 632 F.2d at 835; United
States v. Cole, 755 F.2d 748 (11th Cir. 1985).
99. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Natale, 526 F.2d
1160 (2d Cir. 1975), cert. denied, 425 U.S. 950 (1976); United States v. Presser, 844 F.2d 1275,
1284 (6th Cir. 1988); Gollaher v. United States, 419 F.2d 520 (9th Cir.), cert. denied, 396 U.S.
960 (1969).

100. United States v. Smith Grading and Paving, Inc., 760 F.2d 527, 532 (4th Cir.), cert. denied,
474 U.S. 1005 (1985); United States v. Presser, 844 F.2d at 1283-84.

101. United States v. Martino, 648 F.2d 367, 384 (5th Cir. Unit B June 1981), cert. denied, 456
U.S. 943 (1982); see also United States v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979) (court
invalidated discovery order requiring pretrial disclosure of exculpatory Brady material contained
in Jencks Act statements).

102. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940); United States v. Garcia,
420 F.2d 309 (2d Cir. 1970); United States v. Penrod, 609 F.2d 1092 (4th Cir.), cert. denied, 446
U.S. 917 (1979).

103. See United States v. Claiborne, 765 F.2d 784 (9th Cir. 1985), cert. denied, 475 U.S. 1120
(1986).

104. See In re 1979 Grand Jury Proceedings, 479 F. Supp. 93 (E.D.N.Y. 1979).

105. See United States v. Stanford, 589 F.2d 285 (7th Cir. 1978), cert. denied, 440 U.S. 983
(1979); United States v. Mayes, 670 F.2d 126 (9th Cir. 1982). Contra United States v. Tager, 638
F.2d 167 (10th Cir. 1980). New Rule 6(e)(3)(C)(iii) eliminates this conflict.

106. In re Federal Grand Jury Proceedings, 760 F.2d 436 (2d Cir. 1985); In re Disclosure of
Testimony Before the Grand Jury (Troia), 580 F.2d 281 (8th Cir. 1978); In re Barker, 741 F.2d
250 (9th Cir. 1984). But see In re Grand Jury 89-4-72, 932 F.2d 481 (6th Cir. 1991).

107. See Special February 1971 Grand Jury v. Conlisk, 490 F.2d 894 (7th Cir. 1973), In re Grand
Jury Transcripts, 309 F. Supp. 1050 (S.D. Ohio 1970).

108. See Patton v. C.I.R., 799 F.2d 166 (5th Cir. 1986); Patrick v. United States, 524 F.2d 1109
(7th Cir. 1975).

109. See Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974).

110. See In re Disclosure of Evidence, 650 F.2d 599 (5th Cir. Unit B July 1981) (per curiam),
modified on other grounds, 662 F.2d 362 (5th Cir. Unit B Nov. 1981).

111. See In re Grand Jury Proceedings, 654 F.2d 268, 271-72 (3d Cir.), cert. denied, 454 U.S.
1098 (1981); In re Grand Jury Proceedings, 483 F. Supp. 422 (E.D. Pa. 1979).

112. See American Friends Serv. Comm. v. Webster, 720 F.2d 29 (D.C. Cir. 1983).
113. See Bradley v. Fairfax, 634 F.2d 1126 (8th Cir. 1980).

114. See In re J. Ray McDermott and Co., 622 F.2d 166 (5th Cir. 1980).

115. See United States v. Bates, 627 F.2d 349 (D.C. Cir. 1980).

116. See United States v. Young, 494 F. Supp. 57 (E.D. Tex. 1980).

117. See In re Grand Jury Proceedings, 309 F.2d 440 (3d Cir. 1962).

118. 463 U.S. at 480.

119. Id.

120. Id. at 482 n.6.

121. 441 U.S. at 222-23; see also United States v. Procter & Gamble, Co., 356 U.S. 677 (1958).

122. United States v. Sells Eng'g, Inc., 463 U.S. 418 (1983).

123. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. at 222; see also United States v.
Sobotka, 623 F.2d 764, 768 (2d Cir. 1980); Allis-Chalmers Mfg. Co. v. City of Fort Pierce, Fla.,
323 F.2d 233, 242 (5th Cir. 1963); United States v. Fischbach and Moore, Inc., 776 F.2d 839,
845-46 (9th Cir. 1985); United States v. Liuzzo, 739 F.2d 541 (11th Cir. 1984).

124. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. at 223.

125. Id.

126. See In re Sealed Case, 801 F.2d 1379 (D.C. Cir. 1986); In re Federal Grand Jury
Proceedings, 760 F.2d 436, 439 (2d Cir. 1985); In re Grand Jury Proceedings GJ-76-4 & GJ-75-
3, 800 F.2d 1293, 1299 (4th Cir. 1986); In re Antitrust Grand Jury, 805 F.2d 155 (6th Cir. 1986);
United States v. Peters, 791 F.2d 1270 (7th Cir.), cert. denied, 479 U.S. 847 (1986); United
States v. Benson, 760 F.2d 862 (8th Cir.), cert. denied, 474 U.S. 858 (1985); United States v.
Murray, 751 F.2d 1528 (9th Cir.), cert. denied, 474 U.S. 979 (1985).

127. See United States v. Procter & Gamble Co., 356 U.S. 677 (1958); In re Grand Jury Matter
(Catania), 682 F.2d 61 (3d Cir. 1982); United States v. McGowan, 423 F.2d 413 (4th Cir. 1970);
Texas v. United States Steel Corp., 546 F.2d 626, 631 (5th Cir.), cert. denied, 434 U.S. 889
(1977); Illinois v. Sarbaugh, 552 F.2d 768, 776 (7th Cir.), cert. denied, 434 U.S. 889 (1977);
United States v. Harbin, 585 F.2d 904 (8th Cir. 1978); Petrol Stops Northwest v. United States,
571 F.2d 1127, 1131 (9th Cir. 1978), rev'd on other grounds sub nom. Douglas Oil Co. v. Petrol
Stops Northwest, 441 U.S. 211 (1979); United States v. Parker, 469 F.2d 884 (10th Cir. 1972).

128. See Atlantic City Elec. Co. v. A.B. Chance Co., 313 F.2d 431 (2d Cir. 1963); United States
v. Fischbach and Moore Inc., 776 F.2d at 845; see also Illinois v. Sarbaugh, 552 F.2d at 776.
129. See In re Federal Grand Jury Proceedings, 760 F.2d at 439.

130. See In re Grand Jury Testimony, 832 F.2d 60 (5th Cir. 1987); Illinois v. F.E. Moran, Inc.,
740 F.2d 533 (7th Cir. 1984).

131. See United States v. Moten, 582 F.2d 654 (2d Cir. 1978); In re Disclosure of Evidence, 650
F.2d 599, 601-02 (5th Cir. Unit B July 1981) (per curiam), modified on other grounds, 662 F.2d
362 (5th Cir. Unit B Nov. 1981); In re Grand Jury Proceeding (Miller Brewing Co.), 717 F.2d
1136 (7th Cir. 1983).

132. See Dennis v. United States, 384 U.S. 855, 873 (1966); In re Grand Jury Proceedings GJ-
76-4 & GJ-75-3, 800 F.2d at 1302-03; Illinois v. Sarbaugh, 552 F.2d supra; U.S. Indus., Inc. v.
United States Dist. Court, 345 F.2d 18 (9th Cir.), cert. denied, 382 U.S. 814 (1965); United
States v. Evans & Assocs. Constr. Co., 839 F.2d 656 (10th Cir.), aff'd on rehearing, 857 F.2d 720
(10th Cir. 1988). But see Texas v. United States Steel Corp., 546 F.2d at 630-31.

133. See United States v. Procter & Gamble Co., 356 U.S. 677 (1958); Hernly v. United States,
832 F.2d 980 (7th Cir. 1987); Thomas v. United States, 597 F.2d 656 (8th Cir. 1979); Petrol
Stops Northwest v. United States, 571 F.2d at 1129.

134. See Smith v. United States, 423 U.S. 1303 (1975); United States v. Procter & Gamble Co.,
356 U.S. 677 (1958); United States v. Sobotka, 623 F.2d supra; In re Grand Jury Matter, 697
F.2d 511 (3d Cir. 1982); In re Disclosure of Evidence, 650 F.2d at 602; In re Holovachka, 317
F.2d 834 (7th Cir. 1963); In re Sells, 719 F.2d 985 (9th Cir. 1983); United States v. Liuzzo, 739
F.2d at 545.

135. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979); United States v.
Sobotka, 623 F.2d 764, 767 (2d Cir. 1980); In re Grand Jury Investigation, 630 F.2d 996 (3d
Cir.), cert. denied, 449 U.S. 1081 (1980); United States v. Colonial Chevrolet Corp., 629 F.2d
943, 949 (4th Cir. 1980), cert. denied, 450 U.S. 913 (1981); United States v. Tucker, 526 F.2d
279, 282 (5th Cir.), cert. denied, 425 U.S. 958 (1976); Illinois v. Sarbaugh, 552 F.2d 768 (7th
Cir.), cert. denied, 434 U.S. 889 (1977); In re Disclosure of Testimony, 580 F.2d 281 (8th Cir.
1978); United States v. Warren, 747 F.2d 1339 (10th Cir. 1984).

136. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979); United States v.
Moten, 582 F.2d 654, 662 (2d Cir. 1978).

137. See United States v. Moten, 582 F.2d at 662-63; United States v. Colonial Chevrolet Corp.,
629 F.2d at 949; In re Grand Jury Proceedings Northside Realty Assocs., 613 F.2d 501 (5th Cir.
1980); In re Antitrust Grand Jury, 805 F.2d 155 (6th Cir. 1986); United States v. Clavey, 565
F.2d 111 (7th Cir. 1977), cert. denied, 439 U.S. 954 (1978); In re Grand Jury Proceedings in
Matter of Freeman, 708 F.2d 1571 (11th Cir. 1983).

138. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940); United States v.
Sobotka, 623 F.2d at 767; United States v. Rose, 215 F.2d 617 (3d Cir. 1954); United States v.
Colonial Chevrolet Corp., 629 F.2d at 950; In re Grand Jury Proceedings Northside Realty
Assocs., 613 F.2d supra; Wisconsin v. Schaffer, 565 F.2d 961 (7th Cir. 1977); In re Disclosure of
Testimony Before the Grand Jury (Troia), 580 F.2d 281 (8th Cir. 1978); Petrol Stops Northwest
v. United States, 571 F.2d supra.

139. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979); Baker v. United States
Steel Corp., 492 F.2d 1074 (2d Cir. 1974); In re Grand Jury Testimony, 832 F.2d 60 (5th Cir.
1987); United States v. Fischbach and Moore Inc., 776 F.2d 839, 844 (9th Cir. 1985).

140. See United States v. Sobotka, 623 F.2d at 767; Illinois v. Sarbaugh, 552 F.2d at 775; Petrol
Stops Northwest v. United States, 571 F.2d 1127, 1128-29 (9th Cir. 1978), rev'd on other
grounds sub nom. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979).

141. See Illinois v. Sarbaugh, 552 F.2d at 775; U.S. Indus., Inc. v. United States Dist. Court, 345
F.2d 18 (9th Cir.), cert. denied, 382 U.S. 814 (1965).

142. See Executive Sec. Corp. v. Doe, 702 F.2d 406 (2d Cir.), cert. denied, 464 U.S. 818 (1983);
Illinois v. F.E. Moran, Inc., 740 F.2d 533 (7th Cir. 1984).

143. See In re Grand Jury Proceeding (Miller Brewing Co.), 687 F.2d 1079 (7th Cir. 1982), aff'd
on rehearing, 717 F.2d 1136 (7th Cir. 1983); In re Barker, 741 F.2d 250 (9th Cir. 1984).

144. See In re Grand Jury Proceeding GJ-76-4 & GJ-75-3, 800 F.2d 1293 (4th Cir. 1986).

145. See United States v. Fischbach and Moore Inc., 776 F.2d at 844.

146. See United States v. Sobotka, 623 F.2d 764 (2d Cir. 1980); In re Grand Jury Matter, 697
F.2d 511 (3d Cir. 1982); In re Disclosure of Evidence, 650 F.2d 599 (5th Cir. Unit B July 1981)
(per curiam), modified on other grounds, 662 F.2d 362 (5th Cir. Unit B Nov. 1981); In re
Disclosure of Testimony Before the Grand Jury (Troia), 580 F.2d 281 (8th Cir. 1978).

147. 463 U.S. at 445.

148. Id. at 445-46; see also United States v. John Doe, Inc. I, 481 U.S. 102 (1987); In re Sealed
Case, 801 F.2d 1379 (D.C. Cir. 1986); In re Grand Jury Proceedings GJ-76-4 & GJ-75-3, 800
F.2d 1293 (4th Cir. 1986); In re Grand Jury Proceeding (Miller Brewing Co.), 687 F.2d 1079
(7th Cir. 1982), aff'd on rehearing, 717 F.2d 1136 (7th Cir. 1983).

149. See December 9, 1985 memorandum from Stephen S. Trott, then Assistant Attorney
General, Criminal Division.

150. For a more complete discussion of Division policies and procedures in this area, see ATD
Manual, Ch. VII-18.

151. See also Bast v. United States, 542 F.2d 893 (4th Cir. 1976); In re 1975-2 Grand Jury
Investigation of Associated Milk Producers, Inc., 566 F.2d 1293 (5th Cir.), cert. denied, 437 U.S.
905 (1978); Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir.), cert. denied, 434 U.S. 889 (1977).
152. See also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979).

153. See In re Grand Jury Investigation, 774 F.2d 34 (2d Cir. 1985), rev'd on other grounds sub
nom. United States v. John Doe, Inc., 481 U.S. 102 (1987); In re Grand Jury Matter (Catania),
682 F.2d 61 (3d Cir. 1982).

154. See In re Grand Jury Proceedings, 580 F.2d 13, 15 (1st Cir. 1978).

155. See United States v. Weinstein, 511 F.2d 622, 624 (2d Cir.), cert. denied, 422 U.S. 1042
(1975); In re Grand Jury Subpoenas, April 1978, 581 F.2d 1103 (4th Cir. 1978), cert. denied, 440
U.S. 971 (1979); In re Moore, 776 F.2d 136 (7th Cir. 1985).

156. See United States v. Sobotka, 623 F.2d 764, 766 (2d Cir. 1980).

157. See Baker v. United States Steel Corp., 492 F.2d 1074, 1077-78 (2d Cir. 1974) (dictum); In
re Grand Jury Investigation, 630 F.2d 996, 999 (3d Cir.), cert. denied, 449 U.S. 1081 (1980); In
re 1975-2 Grand Jury Investigation of Associated Milk Producers, Inc., 566 F.2d at 1300
(dictum); Illinois v. Sarbaugh, 552 F.2d at 773.

158. See Baker v. United States Steel Corp., 492 F.2d at 1077-78; In re 1975-2 Grand Jury
Investigation of Associated Milk Producers, Inc., 566 F.2d at 1300. But see In re Grand Jury
Proceedings (Alpha Portland Indus. Inc.), 649 F.2d 387, 388 (6th Cir.), cert. dismissed, 453 U.S.
946 (1981).

159. See Baker v. United Steel Corp., 492 F.2d at 1077-78 (order for disclosure was
nonappealable); Illinois v. F.E. Moran, Inc., 740 F.2d 533 (7th Cir. 1984) (disclosure order in
subsequent civil case is appealable if appeal will not delay criminal proceeding); United States v.
Fischbach and Moore, Inc., 776 F.2d 839 (9th Cir. 1985) (order for disclosure is appealable).

160. See also In re John Doe Corp., 675 F.2d 482 (2d Cir. 1982); In re Antitrust Grand Jury, 805
F.2d 155, 161-62 (6th Cir. 1986); In re Special September 1978 Grand Jury, 640 F.2d 49 (7th
Cir. 1980).

161. In re Antitrust Grand Jury, 805 F.2d at 162.

162. See § B.2., supra for a discussion of the treatment of subpoenaed documents under Rule
6(e).

163. Blair v. United States, 250 U.S. 273, 282 (1919); Carroll v. United States, 16 F.2d 951 (2d
Cir.), cert. denied, 273 U.S. 763 (1927).

164. See § E.4., supra, for a discussion of disclosure to a witness of documents subpoenaed from
another party.

165. See, e.g., Right to Financial Privacy Act, 12 U.S.C. § 3420.

166. See In re April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir. 1957).

167. See §§ E.1. and E.2., supra concerning the witness' right of access to his own transcript and
the Division's policy regarding such disclosure.

168. See § H., supra. Attorneys should consult the case law in their jurisdiction and discuss the
local practice with the United States Attorney's Office as to whether a 6(e) order is necessary if
the transcript is disclosed to the witness alone.

169. See United States v. Garcia, 420 F.2d 309 (2d Cir. 1970).

170. See § D., supra.

171. See United States v. Lartey, 716 F.2d 955 (2d Cir. 1983).

172. See § H., supra.

173. See § A. 5., supra.

174. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979).

175. In re Grand Jury Investigation (Lance), 610 F.2d 202, 219 (5th Cir. 1980). One court has
held that a Rule 6(e) violation is punishable only as a criminal contempt and may be enforced
only by the court or United States Attorney, a defendant having no private right of action. In re
Grand Jury Investigation, 784 F. Supp. 1188 (E.D. Mich. 1990).

176. See In re Special March 1981 Grand Jury, 753 F.2d 575 (7th Cir. 1985).

177. See Barry v. United States, 865 F.2d 1317 (D.C. Cir. 1989).

178. See Graham v. C.I.R., 770 F.2d 381 (3d Cir. 1985); United States v. (Under Seal), 783 F.2d
450 (4th Cir. 1986), cert. denied, 481 U.S. 1032 (1987).

179. See Gluck v. United States, 771 F.2d 750 (3d Cir. 1985).

180. See also In re Grand Jury Investigation (Lance), 610 F.2d supra; United States v. Stone, 633
F.2d 1272 (9th Cir. 1979); United States v. Evans & Assocs. Constr. Co., 839 F.2d 656 (10th
Cir.), aff'd on rehearing, 857 F.2d 720 (10th Cir. 1988); United States v. Kabbaby, 672 F.2d 857,
863 (11th Cir. 1982).

181. Failure to follow these internal regulations should not result in any sanctions against the
Government.
 TABLE OF CONTENTS

III. Subpoenas, Part I

A. Scope of Subpoena Power

1. Subpoenas Must Seek Relevant Evidence
2. Scope of Subpoenas Duces Tecum
3. Scope of Subpoenas Ad Testificandum
4. Court has Power to Enforce Subpoena
5. Service of Subpoenas
B. Mechanics of Issuing and Serving Subpoenas
1. Issuance of the Subpoena
2. Service of the Subpoena and Return by Marshal
3. Time Necessary for Compliance
4. Place of Return of Subpoena
5. Scheduling of Witnesses
6. Witness Fees
C. Privileges
1. Common Law Privileges
2. Constitutional Privileges

III. SUBPOENAS

A. Scope of Subpoena Power

A grand jury's subpoena power is coextensive with its broad power to investigate. Accordingly,
it may subpoena all witnesses, nonprivileged documents and other physical evidence relevant to
its investigation, provided that the subpoenas are not unreasonably burdensome. Probable cause
is not a prerequisite to the issuance of a subpoena.(1) There is a strong presumption of regularity
that accompanies a grand jury subpoena.(2)

1. Subpoenas must seek relevant evidence

a. Subpoenas may not constitute a "fishing expedition"

The Government may not use a subpoena to conduct a "fishing expedition";(3) however, a
subpoena is rarely invalidated because of a finding that it sought information irrelevant to the
grand jury's investigation. In the face of general allegations that a subpoena seeks irrelevant
information, the standard of "relevance" is easy to meet.

In United States v. R. Enterprises, Inc., U.S. , (1991), the Supreme Court held that a grand jury
subpoena is valid "unless the district court determines that there is no reasonable possibility that
the category of materials the Government seeks will produce information relevant to the general
subject of the grand jury investigation."
Earlier circuit court opinions have articulated a variety of different standards to be used in
determining whether a subpoena is valid. In the Fourth Circuit, a subpoena is valid if it might aid
the grand jury in its investigation, despite a possibility that the prosecutor may use the subpoena
for some purpose other than obtaining evidence for the grand jury.(4) In the Third Circuit, the
Government must establish by affidavit that the subpoena seeks relevant information by stating
that: 1) the item that a subpoena seeks is relevant to a grand jury's investigation; 2) the
investigation is properly within the grand jury's jurisdiction; and 3) the Government does not
seek the item primarily for a purpose other than to contribute to the grand jury's investigation.(5)
In this circuit, once established by affidavit, a subpoena recipient may not challenge the
relevance of a subpoena. The Eleventh Circuit does not require the Government to make any
preliminary showing that a subpoena seeks relevant evidence; a validly-issued subpoena is
presumed to seek such evidence.(6) Likewise, the Second, Seventh, and Ninth Circuits do not
require an affidavit to establish relevance.(7)

The Third Circuit's affidavit requirement is highly suspect in light of the Supreme Court's
determination that an initial burden should not be placed on the Government and that the
Government should only be required to "reveal the general subject of the grand jury's
investigation."(8)

b. Subpoenas may not be used for trial discovery

The Government may not use the grand jury and its subpoena power after indictment of a
defendant for the gathering of evidence, or, otherwise, for pretrial discovery or trial preparation
for a trial against that defendant.(9) A prosecutor may, however, use the grand jury to gather
evidence at any time prior to indictment, though the prosecutor may believe that the grand jury
has already received evidence that will support an indictment.(10)

Following indictment, the Government may use grand jury subpoenas that might have some
relationship to a trial, if the Government's ongoing investigation is related to a possible later
indictment of additional defendants,(11) or to additional crimes for which the grand jury has not
issued indictments.(12) This is true even if such an inquiry might uncover further evidence against
a person whom the grand jury has already indicted.(13) Witnesses before the grand jury may
include prospective witnesses in a pending trial, provided that their testimony is directed at
offenses other than those upon which indictments have already been brought. Further, the
Government may utilize any collateral fruits of such testimony.(14) A former grand jury witness
may be recalled before the grand jury -- regardless of whether his testimony may relate to an
existing indictment -- for the purpose of having him recount his prior grand jury testimony.(15) In
any event, the return of an indictment, alone, does not provide a subpoena recipient with a legal
basis for refusing to comply with a subpoena.(16)

c. Grand jury may not be used to conduct a civil investigation

The Government may not use a grand jury to conduct a civil investigation.(17) Some courts have
held that a complainant may raise the question of improper use for a civil investigation only 1) if
a civil suit develops, and 2) in the context of an appropriate motion.(18) Some courts have
accepted an affidavit from prosecutors to satisfy questions of misuse of grand jury process for a
civil investigation.(19)

d. Subpoenas may not be used to harass or intimidate

Courts will refuse to enforce subpoenas used to harass or intimidate any person.(20) Prohibited
harassment includes the use of a grand jury subpoena to coerce a plea bargain, when such use has
no relation to a proper purpose of the grand jury.(21) To succeed in opposing a subpoena on the
grounds of alleged prosecutorial harassment, a complainant must show that the grand jury has
lost its independence.(22) This is a difficult burden to meet.(23)

2. Scope of subpoenas duces tecum

a. "Reasonableness"; overview

Provided that it is relevant to the grand jury's investigation, a subpoena duces tecum may seek all
nonprivileged documents and physical evidence,(24) including documents or information which
another party may have already produced,(25) or information which may readily be available other
than from the subpoenaed party.(26) Moreover, a subpoena duces tecum may require the
production of original documents.(27) This may be especially important; for example, where it is
important to capture notations, erasures, or colored markings on documents that may not show
up on copies. Physical evidence sought by a subpoena duces tecum may include handwriting
exemplars, photographs, and fingerprints.(28)

The subpoena duces tecum, however, must be "reasonable" in scope.(29) Moreover, subpoenas
may not seek documents or other physical evidence from some classes of persons (such as
foreign governments), and may only seek evidence from others (such as Congress and telephone
companies) if certain procedures are followed. The paragraphs that follow discuss the obligations
that a subpoena duces tecum places on its recipient and the persons and entities upon which a
subpoena duces tecum may be served.

b. Continuing obligation to provide documents

The recipient of a subpoena has a continuing obligation to produce all documents and other
evidence that fall within the time frame of the subpoena, including those which it discovers after
its response to the subpoena.(30)

c. Subpoenas duces tecum may be served on any natural person, legal entity or
corporation

Subpoenas duces tecum may be served on any natural person, legal entity, or corporation. A
grand jury's jurisdiction is coextensive with the court to which the grand jury is appended.(31)
Thus, any person within the court's jurisdiction may be served with a grand jury subpoena.

Documents or other tangible items may be obtained by subpoena duces tecum from any person
who is either in physical or constructive possession or control of them.(32) Once a subpoena duces
tecum is served on a person, another cannot claim to re-take possession of required evidence to
prevent the person served from complying with the subpoena.(33)

Service on a corporation may be secured by serving an officer or managing or general agent of

the corporation,(34) or, where state law permits, by serving the Secretary of the state in which the
corporation is located or transacts business.(35)

d. Foreign persons; persons in the U.S. related to foreign persons; U.S. corporate
entities located abroad

Subpoenas duces tecum may be served on 1) foreign corporations over which the supervising
court has jurisdiction, 2) all corporate presences within the United States (which have either
foreign or U.S. parents) to secure documents located in the United States or abroad, or 3)
foreign-located U.S. corporate affiliates. Separate considerations apply to each of these
categories; however, in all cases where a foreign entity is involved, the appropriate foreign
government must be notified prior to issuing the subpoena.

1. Documents located within the U.S. Documents of foreign corporations located within the United
States have the same general status as documents of United States corporations.
2. Foreign persons holding foreign-located documents. Documents in the possession of foreign
persons over whom a supervising court has jurisdiction, but which are located abroad, raise
difficult questions of comity and sovereignty. For example, courts may decline to require
production of documents on comity grounds. (36) Further, foreign blocking statutes, such as those
of Germany, Australia, France and Great Britain, may prohibit production of documents. There is
little that can be done if a foreign corporation, especially one with tenuous contacts with the
United States, declines to produce documents.
3. U.S. affiliates holding foreign-located documents. Subpoenas calling for documents from the
overseas offices or affiliates of U.S. corporations that are located abroad also present problems
involving comity and foreign blocking statutes. However, such subpoenas do not involve
enforcement problems since the U.S. corporation is within U.S. jurisdiction. Further, it may be
possible to avoid the application of foreign blocking statutes by obtaining the consent of the U.S.
corporation to the disclosure of the foreign-located documents. (37)
4. Notifications. A number of international agreements require signatory governments to notify
any other party to the agreement, which has jurisdiction over the party to be served with
judicial process, (including grand jury subpoenas), that the subpoena will be served. These
agreements include the following: 1) 1979 OECD Recommendation Concerning Cooperation
Between Member Countries on Restrictive Business Practices Affecting International Trade
(among OECD member countries; the U.S., United Kingdom, France, Belgium, Denmark, The
Netherlands, Luxembourg, Federal Republic of Germany, Italy, Norway, and Japan); 2) The
Agreement Between the Government of the United States of America and the Government of
the Federal Republic of Germany Relating to Mutual Cooperation Regarding Restrictive Business
Practices; 3) other Bilateral Agreements between the United States and Australia and the United
States and Canada; and 4) the November 1, 1977 Pliattsky/Shenefield Understanding.

Before a grand jury subpoena is served on any foreign corporation or United States subsidiary of
a foreign corporation, attorneys must notify the Chief of the Division's Foreign Commerce
Section. This Section will arrange for notification of the member governments under the various
agreements. No subpoena may be issued until proper notification has been made, and the Foreign
Commerce Section has so notified the attorneys involved. Moreover, the Foreign Commerce
Section can provide Division staffs with information concerning foreign blocking statutes and
other bilateral agreements.

e. Congressional documents

Congressional documents may only be subpoenaed with the consent of the Chamber subpoenaed.
(38)
This is consistent with the Speech and Debate Clause of the United States Constitution, that
protects certain activities within the Congress.(39) The documents of individual congressmen or
senators that do not come within their speech and debate privileges may be subpoenaed without
prior permission.(40) However, Division and Department directives require that the Attorney
General be notified of investigations involving public officials.(41)

f. Federal Government agencies

A grand jury may seek documents from Federal Government agencies.(42)

g. Foreign governments may not be subpoenaed

Under the doctrine of sovereign immunity, as embodied in the Foreign Sovereign Immunities
Act, 28 U.S.C. §§ 1602-1611, foreign governments may not be subpoenaed unless the subpoena
is directed at activities which are purely of a commercial nature.(43)

h. May subpoena state and local government documents

Grand jury subpoena power extends to state and local government documents, because of the
supremacy of federal law.(44) A state statute that limits disclosure of information, therefore, does
not exempt that information from production under a federal subpoena duces tecum.(45) However,
the Office of Operations should be notified before issuing a subpoena for state and local
government documents.

i. Telephone companies

It is common to subpoena records from telephone companies. Under 18 U.S.C. § 2703(c)(1)(B)

and (c)(2), the subscriber need not be notified of a grand jury subpoena. However, most
telephone companies require a certification that the subpoena is issued in connection with a
criminal investigation. A grand jury subpoena for toll records of members of the news media
may be sought only with the express approval of the Attorney General unless there are exigent
circumstances.(46)

j. Financial institutions: Right to Financial Privacy Act of 1978

Subpoenas duces tecum may seek a customer's financial records directly from his bank.(47) The
Right to Financial Privacy Act of 1978 ("Act"), 12 U.S.C. 1301, et seq. (1983) requires that all
such subpoenas be "returned and actually presented to the grand jury". The return may be made
by a representative of the financial institution or, with the financial institution's permission, by a
Division attorney.(48) When records of financial institutions are involved, Division attorneys must
assure that the records are presented to the grand jury on the return date or as soon as possible
thereafter. The Act does not entitle financial institutions to reimbursement for compliance with a
subpoena duces tecum.(49)

The Act also requires that after completion of the grand jury's investigation, all documents must
be destroyed or returned to the financial institution if not used in connection with an indictment
or disclosed under Fed. R. Crim. P. 6(e). During the grand jury's investigation, the financial
records must be maintained separately, sealed and marked as grand jury exhibits.

k. Consumer credit reporting agency: Fair Credit Report Act

The Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., authorizes a consumer reporting
agency, such as a credit agency, to furnish consumer reports only in response to "an order of the
court." There is a split among the courts as to whether a grand jury subpoena is "an order of the
court" under the Fair Credit Reporting Act.(50) If information is to be subpoenaed from a
consumer reporting agency, it may be advisable to seek a special court order under 15 U.S.C.
§ 1681 (b)(1) to obtain the information.(51)

l. Subpoenas to the media

The Attorney General has prescribed specific procedures for subpoenas to the media that are set
forth at 28 C.F.R. § 50.10. The requirements of 28 C.F.R. § 50.10 only apply to subpoenas
regarding news gathering functions and do not apply if the subpoena seeks only business
documents.(52) Nonetheless, Division policy provides that "no form of compulsory process should
be addressed to a news organization by the Antitrust Division . . . unless the Assistant Attorney
General in charge personally approves, following his determination that the request relates to
purely commercial or financial information."(53)

If the investigation involves media news gathering functions, the staff should first attempt to
obtain the necessary information from non-media sources before considering subpoenaing
members of the news media. If these attempts are unsuccessful and news media sources are the
only reasonable sources of the relevant information, the staff should attempt to negotiate with the
news media member or organization to obtain the information voluntarily. If such negotiations
fail, the staff must seek the express approval of the Attorney General before issuing a subpoena.
The standards applicable in seeking the approval of the Attorney General are set forth at 28
C.F.R. § 50.10.(54)

To obtain the Attorney General's approval, the staff should prepare a memorandum explaining
the circumstances of the subpoena request and forward it to the Office of Operations, together
with a memorandum to the Attorney General from the Assistant Attorney General, Antitrust
Division, setting forth the factual situation and the reasons for the request, in accordance with the
principles in 28 C.F.R. § 50.10. Upon approval by the Assistant Attorney General, Antitrust
Division, the memorandum will be forwarded to the Attorney General for his consideration.
During the time the Assistant Attorney General and the Attorney General are reviewing the
request, the staff should not take any steps to begin the process of subpoenaing or otherwise
interrogating the member of the news media. Staff should allow substantial review time for such
a request.

If the staff, or a section or field office Chief, have any questions as to the applicability of this
procedure, the matter should be discussed with the Office of Operations.

m. Subpoenas to attorneys

Because of the potential effect upon an attorney-client relationship that may result from the
issuance of a subpoena to an attorney for information relating to the representation of a client,
the Department has determined that all litigating divisions must obtain the authorization of their
respective Assistant Attorneys General before issuing such subpoenas in any matter, criminal or
civil.(55) The Assistant Attorney General must be satisfied that the following conditions are met
before approving the issuance of a grand jury subpoena:

1. that the information is reasonably necessary to investigate or prosecute a crime that is being or
has been committed by any person;
2. all reasonable attempts to secure the information from alternative sources have failed;
3. the need for the information outweighs the adverse impact on the attorney-client relationship;
and
4. the information is not protected by a valid claim of privilege. (56)

To obtain the approval of the Assistant Attorney General, the staff should submit a memorandum
to the Office of Operations setting forth the factual circumstances, reasons for the request, and
any information bearing on the standards the Assistant Attorney General must apply. The Office
of Operations will review the memorandum, and if appropriate, forward it to the Assistant
Attorney General for his approval.

3. Scope of subpoenas ad testificandum

a. May subpoena any witness with potentially relevant testimony

The grand jury "has the right to everyone's testimony".(57) Accordingly, with only rare
exceptions, the grand jury may subpoena any witness who has testimony that is potentially
relevant to the grand jury's investigation.(58)

b. Subpoenas may not be used to compel interviews

An attorney may not use a subpoena to compel a witness interview with no intention of having
the witness appear before the grand jury.(59) Nothing prohibits voluntary interviews with a
witness who has appeared before the grand jury.(60) Also, with the grand jury's authorization,
attorneys may use a subpoena to take a sworn statement of a witness who is unable to appear
physically before the grand jury.

An attorney often will interview a subpoenaed witness prior to his scheduled grand jury
appearance and, as a result of that interview, determine either that the witness could not offer
testimony of value to the grand jury, or that the witness' testimony would not best be heard by
the grand jury at that particular time. In such instances, attorneys may decide to excuse the
witness or to postpone his grand jury appearance. To establish that excusing or postponing a
witness appearance has been done properly, attorneys should generally advise the grand jury of
the reason for not calling a witness. This will give the grand jury the opportunity to request the
witness' appearance and there will be no question that the attorneys have withheld evidence from
the grand jury.

c. Subpoenas to investigation targets

Subpoenas may be issued to investigation targets.(61) The Department's policy, however, is to

subpoena targets to testify only if it is essential to the investigation to do so. A target should be
excused from testifying if his attorney advises, in a notarized letter, that the target intends to
assert the 5th Amendment privilege before the grand jury. Subjects or targets of an investigation
should be permitted to appear voluntarily before the grand jury if they wish, but they must agree
to answer all questions posed by the attorneys and the grand jury.(62) They may not merely read a
prepared statement and then leave the room.

It is also Division policy to inform someone who has been served with a subpoena that he is or is
not a target of a grand jury's investigation. This policy is not required by case law except in the
Second Circuit.(63)

4. Court has power to enforce subpoena

Failure to appear or testify before the grand jury can lead to either criminal contempt charges
under 18 U.S.C. § 401 or Fed. R. Crim. P. 42, or civil contempt charges under 28 U.S.C. § 1826.
Failure to comply fully with a subpoena duces tecum, moreover, may amount to obstruction of
justice.(64) Power to enforce a subpoena is vested in the United States district court, and not with
the prosecutor or with the grand jury.(65) A district court must be satisfied with the propriety of a
subpoena before it enforces the subpoena.(66)

5. Service of subpoenas

Grand jury subpoenas may be served anywhere within the United States, its commonwealths and
its possessions. Subpoenas may also be served on U.S. installations abroad.(67) Subpoenas may
also be served abroad on a United States national or resident.(68)

To subpoena aliens outside the United States, letters rogatory must be issued from the United
States District Court to the relevant court in which the alien witness is located. The Division's
policy is that if aliens appear before the grand jury, the grand jury gains jurisdiction over them,
and their appearance can be extended or the grand jury can require the aliens to appear again.

If a subpoena is to be issued to a foreign national residing outside the United States, INS may be
requested to institute a border watch. If the foreign national thereafter enters the United States,
INS will notify the Division so that the subpoena may be served. The Foreign Commerce Section
should be contacted to assist in instituting the border watch.(69)
 B. Mechanics of Issuing and Serving Subpoenas

Fed. R. Crim. P. 17 sets forth the basic rules for the use of subpoenas, including grand jury
subpoenas. Attorneys should also consult local court rules and determine the usual procedures of
the appropriate United States Attorney's Office with respect to the issuance of grand jury
subpoenas.

1. Issuance of the subpoena

a. Obtaining the subpoena

Rule 17(a) specifies that subpoenas are issued to counsel by the clerk of the court, signed and
imprinted with the seal of the court, but otherwise in blank. Counsel then completes the
subpoenas and causes them to be served, without requesting leave of the court.(70) Clerks in some
districts, however, issue only blank, unsigned subpoenas because the local practice is that only a
completed subpoena ready for service may be signed. In other districts, the staff obtains signed
subpoenas by executing a praecipe. Praecipes for subpoenas for witnesses are not required by
Fed. R. Crim. P. 17(a) and should not be prepared unless local rules or practice makes their use
mandatory.(71)

To avoid administrative delays, attorneys should obtain a supply of subpoenas for use throughout
the term of the grand jury. This practice requires the cooperation of the clerk in the district in
which the grand jury is sitting. It is particularly important to obtain such a supply when the grand
jury is sitting in a district distant from the office or section conducting the investigation. Most
field offices maintain supplies of signed blank subpoenas for those districts in which grand juries
are frequently held, particularly the district in which the field office is located.

b. Authority to issue subpoenas

Counsel may determine which persons and/or entities will be served with grand jury subpoenas.
Counsel need not obtain the grand jury's authorization for the issuance of subpoenas.(72)
However, some jurisdictions require that the grand jury be notified of subpoenas issued on their
behalf. Other jurisdictions require the foreman to initial a copy of each subpoena, signifying that
he has been notified of its issuance. Attorneys have no authority to issue subpoenas for other
than grand jury purposes.(73) For example, "request subpoenas", directing a witness to appear
before the United States Attorney or his assistants, are not permissible and are an abuse of the
subpoena power.(74)

c. Time for issuing the subpoena

Practice varies within the Division as to the issuance of subpoenas before a grand jury is actually
empanelled. Generally, the wiser rule is not to issue them beforehand. However, if a grand jury is
sitting to which the documents can be returned, or if a grand jury is to be empanelled on a date
certain and the subpoenas are made returnable on that or a later date, then motions attacking the
subpoena should be easily defeated. This practice is sometimes useful because conserving grand
jury time is often necessary for the efficient investigation of crime.(75)
Documents subpoenaed by one grand jury may be transferred to a subsequent grand jury without
a court order.(76) Frequently, this procedure expedites the investigation and may be critical in
those jurisdictions where the grand jury is empanelled for a comparatively short time.

Under certain circumstances, a forthwith subpoena may call for compliance within a particularly
short period of time. The following factors should be considered in determining whether a
forthwith subpoena is appropriate: 1) risk of flight; 2) the risk of destruction or fabrication of
evidence; 3) the need for the orderly presentation of evidence; and 4) the degree of
inconvenience to the witness.(77)

2. Service of the subpoena and return by marshal

a. The mechanics

Fed. R. Crim. P. 17(d), provides:

A subpoena may be served by the marshal, by his deputy or by any other person who is not a party and
who is not less than 18 years of age. . . .

Subpoenas are generally served by the U.S. Marshal, his deputies, or by FBI or other case agents.
The prohibition against service by a party applies in practice only to the defendant. "There is no
prohibition on service by a government attorney or other government employee, or by the
defense attorney."(78) The better practice is for Government attorneys not to serve subpoenas,
since some courts have frowned on this practice. The local practice should be checked with the
clerk because the district court may by local rule require that service be made only by the
marshal or his deputy.

Completed subpoenas, which are ready for service, generally are delivered in duplicate to the
marshal responsible for service. If they are mailed, they should be sent certified, return receipt
requested, so the staff can be sure they have been received. A follow-up phone call several days
after the subpoenas are mailed is suggested whether the subpoenas were sent certified mail or
otherwise. A letter of instruction should accompany the subpoenas. If time is of the essence or if
special problems are anticipated, this should be stated in the instruction letter. The staff may also
wish to call the marshal and alert him to the subpoena and any problems that may exist.

Practice varies from district to district as to the procedure to be followed when subpoenas are to
be served on witnesses residing outside the district in which the grand jury is sitting. In some
districts, the marshal in the district in which the grand jury is sitting will request that all
subpoenas be sent to him. He will then forward the subpoenas for service to the marshal in the
appropriate district. In other districts, the marshal will request that the subpoenas be sent directly
to the marshal in the district in which the witness resides. The latter is the preferred procedure
and the one generally followed within the Division. It expedites service of the subpoenas, gives
the staff greater control and assurance that the letters are being sent to the proper parties in the
proper fashion, and conserves time and work on the part of the marshal in the district in which
the grand jury sits. Generally, the marshal in the district where the grand jury is sitting will
request that he be kept informed in some manner of the issuance of subpoenas to out-of-district
witnesses since he is ultimately responsible for the payment of their fees, travel allowances, etc.
Frequently, a deputy marshal will have his office closer to the witness than will the marshal.
Notwithstanding this fact, the subpoena should be sent to the marshal unless different
arrangements have been made with him. Otherwise, the records which the marshal must keep
may be inaccurate or incomplete.

b. Who can be served

Fed. R. Crim. P. 17(d) states:

Service of the subpoena shall be made by delivering a copy thereof to the person named . . . .

This rule is strictly construed. For example, service of the subpoena on a former employer has
been held ineffective.(79) Similarly, service on counsel for a party, as opposed to the party
himself, is ineffective. Should the witness fail to appear, it is doubtful that the court would
impose penalties for contempt.(80) However, service of the subpoena may be made upon the
witness' attorney, subject to an agreement to that effect between the Government attorney and
counsel. A written record should be made of the alternate arrangements and the actual method
employed.

Occasionally, the attorney for a party will pick up the subpoena at the marshal's office. In still
other instances, the subpoena is mailed directly to the witness or his counsel. Where such
informal service is made, prior arrangements should be made, and a record kept of both the
arrangement and the method used.

A subpoena duces tecum directed to a corporation (or to a partnership or other unincorporated

association which is subject to suit under a common name) may be served on an officer, director,
or general manager of the business entity.(81) The officer or agent accepting the subpoena on
behalf of the business entity need not be explicitly authorized to accept service as prescribed in
Fed. R. Civ. P. 4(d)(3); an implicit authorization will suffice.(82)

c. Filing the served subpoena

In some districts, the clerk's office maintains files of grand jury subpoenas that have been served.
In these districts, if the marshal returns the executed subpoena to the staff's office, the subpoena
file copy should be conformed and the executed subpoena (with the service noted) promptly filed
with the clerk. Where the marshal does not return the subpoena to the staff's office, the staff
should check with the office of either the marshal or the clerk to be certain that service has been
made within a reasonable time and that the return is on file with the clerk.

In some districts, the clerk does not maintain files of grand jury subpoenas. In such instances, the
served subpoenas, with the marshal's return noted thereon, are kept on file in the United States
Attorney's office, or the Field or Section Office of the Antitrust Division.

3. Time necessary for compliance

Subpoenas ad testificandum should be mailed to the marshal approximately three weeks prior to
the time the witness is to appear, unless special circumstances require a different period of time.
Subpoenas duces tecum should generally be mailed one to two months prior to the submission
date. With either type of subpoena, consideration should be given to the workload of the
marshal's office and to the fact that the subpoena may have to be sent by the marshal to a deputy
in another office. In some districts, the workload is such that it will take the marshal two or three
weeks or longer to effectuate service.

If a corporation cannot comply with a subpoena duces tecum in the time specified, it may move
for an appropriate order of the court extending the time for compliance.(83) Generally, appropriate
extensions are granted on an informal basis by Government counsel after compliance difficulties
have been pointed out by counsel for the subpoenaed corporation.

4. Place of return of subpoena

Subpoenas are sometimes made returnable in the office of the United States Attorney. The
recommended practice, however, is that the subpoena be made returnable in either the office of
the clerk or the grand jury room. The Eastern District of Pennsylvania has specifically
disapproved of the practice of making subpoenas returnable in the United States Attorney's
office.(84) The court in that district pointed out in a 1962 informal and unwritten opinion that the
subpoena was the process of the court -- not the Government -- and should be made returnable
on premises under the control of the court and not the prosecuting attorney. Accordingly, in that
district, the practice has been adopted of having the witness report directly to the grand jury
room. After testifying, the witness is directed to the United States Attorney's office where the
necessary data is obtained by a clerk who has no connection with the matter under investigation.

Documents demanded by a grand jury subpoena duces tecum are returnable before the grand
jury. However, alternative arrangements can be made with the subpoena recipient to deliver the
documents directly to Division attorneys.(85)

For all practical purposes, the life of a grand jury subpoena is measured by the life of the grand
jury under which it was issued. If the investigation is continued before a succeeding grand jury, it
is recommended that a new subpoena be issued for any incomplete compliance under the old
subpoena. The documents received under the old subpoena would be resubpoenaed or held under
the authority of an impounding order.(86)

5. Scheduling of witnesses

Recipients of a grand jury subpoena are under a continuing duty to comply until they have been
excused by the court, the foreman of the grand jury or the Government attorney.(87) This duty
reflects each citizen's obligation to support the administration of justice by appearing in court and
giving testimony when properly summoned.(88)

As a practical matter, without issuing a second subpoena, there is no way to compel a witness to
appear prior to the date specified in the subpoena. If arrangements are made with counsel,
however, a witness may appear earlier than required. If the witness does not appear on the
agreed-upon earlier date, he remains under compulsion to appear on the later date specified in the
subpoena. However, an informal agreement to appear on a date earlier than the one specified
cannot be relied upon if the jury's term is about to expire or if more sessions cannot be
scheduled.

The time for compliance with the grand jury subpoena may be extended by the Government in
view of the witness' obligation to comply until excused by the court.(89) Rescheduling a witness to
appear after the date specified on the subpoena may be arranged subject to an informal
agreement with the witness or with counsel. Courts treat such agreements as binding and punish
as contempt the failure to appear at the agreed-upon time.(90) A written record of an agreement to
reschedule a witness should always be made. The written record may be either a letter of
acknowledgement signed by the witness or his counsel, or a letter from the Government
confirming the new date, sent by certified mail, return receipt requested.

If the witness refuses to change the date of appearance to a later time, a notification to appear at
the later date may be sufficient.(91) Two safer alternatives are to resubpoena the witness or bring
him before the grand jury on the originally-designated date and then request the foreman to
instruct him to return at the later date.(92)

A witness may be excused at the end of an appearance, required to return for further examination
or excused subject to recall under his initial subpoena. As stated in United States v. Germann,
370 F.2d 1019, 1021-22 (2d Cir.), vacated on other grounds, 389 U.S. 329 (1967):

Once the witness has appeared before the grand jury, whether pursuant to subpoena or of his own
volition, the witness is subject to the orders of the grand jury. The grand jury acts through its foreman or
deputy foreman; they have the power to direct the witness to return at a stated time just as they have
the power to administer an oath . . . .

If there is any possibility that it may be necessary to recall a witness, he should be excused
temporarily (through the foreman) so that he need not be resubpoenaed. A standard direction in
this regard is:

The Foreman: There being no further questions, you are excused for the present. However, I inform you
that you are subject to recall in the future under the same subpoena, pursuant to which you appeared
today, if and when this Grand Jury requires further testimony from you.

Note that the power of the foreman to direct a witness to return at a stated time is not dependent
on the convenience or consent of the witness.

After the grand jury has expired, a witness cannot be compelled to give testimony or produce
documents,(93) since there is no grand jury before which to present such evidence.(94) Further,
coercive imprisonment (where a witness is confined until compliance) cannot extend beyond the
term of the grand jury.(95)

6. Witness fees
a. Certificate of attendance
Form OBD-3-Revised (Witness Attendance Fees, Travel and Miscellaneous Expense Claim)
should be executed for each grand jury witness. A representative of the United States Attorney's
office, or the Department of Justice attorney who actually conducts the investigation, should
initial the witness' attendance daily in the appropriate block on the face of the form. After
discharge of the witness, the certificate should be signed by the attorney conducting the
investigation, the United States Attorney or an Assistant United States Attorney, depending upon
the practice in the district.(96)

Practice differs from district to district as to who completes the remainder of the certificate
which is signed by the witness. In some districts, it is done by a clerk in the U.S. Attorney's
office; in other districts, it is done by a clerk in the marshal's office; and, in still other districts, it
is completed, in part, by the Government attorney. In the last mentioned instance, the number of
miles travelled is usually completed by a representative of the United States Attorney's office or
the marshal's office.

The original should be forwarded to the marshal promptly or given to the witness for
presentation to the marshal as his claim for allowances.(97)

b. Fees and allowances

28 U.S.C. § 1821 provides for a witness attendance fee of $30.00 per day for each day's
attendance and for the time necessarily occupied in going to and returning from the place of
giving testimony. In addition, a witness is entitled to parking fees, airfare or mileage and
subsistence allowances (when the distance or other circumstances require an overnight stay)
equal to those to which Government employees would be entitled for official travel in the area of
attendance.

c. Advances to witnesses

Under Fed. R. Crim. P. 17(d), fees and mileage need not be tendered to a witness upon service of
a subpoena issued on behalf of the United States. This, of course, applies to grand jury witnesses.
However, if it becomes apparent that an important witness who is regularly subpoenaed, or
otherwise retained, on behalf of the United States and absolutely essential to the proper
presentation of the case, is unable to attend a grand jury session for want of sufficient funds with
which to defray expenses of travel and subsistence, counsel for the Government may request the
marshal for the district in which the witness resides to supply sufficient funds to enable the
witness to attend.(98) The marshal usually will only advance sufficient funds for one-way
transportation and lodging. The remaining expenditures will be covered when the witness
submits his attendance certificate. The subpoena itself should be transmitted through the marshal
in the issuing district. Counsel should also notify the marshal in the witness' district that the
request for an advance has been made, stating where the witness is to testify. Advances to
witnesses should not be requested as a matter of course.

C. Privileges
1. Common law privileges
a. Attorney-client
1. Definition of privilege. The attorney-client privilege protects confidential communications by a
client to an attorney for the purpose of obtaining legal advice. The primary policy justification
for the privilege is to encourage clients to be completely truthful with their attorneys, so that
attorneys can give effective and reliable advice. In addition, by promoting open communication
between the attorney and client, the privilege is said to foster voluntary compliance with laws.

The privilege applies only to the factual content of a communication by a client; it does
not protect the underlying facts if they can be learned from some other source. Thus, pre-
existing documents that would otherwise be discoverable do not become privileged
simply because they are delivered to an attorney for review or safe-keeping.(99)

The mere fact that the attorney-client relationship exists is not privileged; the general
nature of the legal services the attorney was to perform and the terms of the engagement
are not protected. Thus, courts have ordered disclosure of the identity of the client,(100) the
time period in which the representation occurred,(101) the whereabouts of the client,(102) the
nature of the legal services rendered,(103) the details of financial transactions between the
attorney and client, including the identity of the party paying the attorney's fees,(104) and
the demeanor or activities of the client about which the attorney has personal knowledge.
(105)

An exception to the rule that the identity of the client is not privileged is where disclosure
of the identity itself would necessarily reveal other privileged information that would
implicate the client in the very matter for which legal advice was sought. Under these
circumstances, a few courts have held that the identity of the client need not be disclosed.
(106)

The burden of establishing entitlement to the attorney-client privilege is on the party

claiming the privilege. The mere existence of an attorney-client relationship is not
sufficient; the applicability of the privilege must be demonstrated with respect to
particular documents and inquiries.(107)

2. Limitations. Not all communications between an attorney and client are privileged. There are
five essential elements that must be established for the privilege to apply: (a) the holder of the
privilege must be a client or have sought to be a client; (b) the person to whom the
communication was made must be an attorney or subordinate of an attorney; (c) the
communication must be made for the purpose of obtaining legal advice or assistance; (d) the
communication sought to be protected must be confidential; and (e) the privilege must not have
been waived.

Communications by a client: The privilege protects only communications by a client or

someone seeking to become a client. Communications between an attorney and third
parties are not protected by the privilege.(108) Communications by the attorney to the
client, however, are protected if their disclosure would reveal the substance of the client's
communication.(109) A few courts have gone further, holding that virtually all
communications by an attorney to a client in the course of giving legal advice are
privileged.(110)
The attorney-client privilege may be asserted by a corporation. In Upjohn Co. v. United
States, 449 U.S. 383 (1981), the Supreme Court adopted a "subject matter" test to
determine whether the communications of corporate employees are privileged.(111)
Applying that test, courts will consider the following factors in determining whether
employees' communications are privileged: whether the communications were made to
the corporation's counsel, acting as such; whether they were made at the direction of
corporate superiors for the purpose of obtaining legal advice; whether the communication
concerned matters within the scope of the employees' duties; and whether the employees
were aware that the communications were intended to enable the corporation to obtain
legal advice.(112)

Communications to an attorney: The communication must be made to a licensed member

of a bar who is acting as an attorney at the time the communication is made.
Communications to the agents or subordinates of an attorney, including law clerks, junior
attorneys, office clerks, and secretaries, may also be protected, provided the services
performed by the agent or subordinate are directly related to assisting the attorney in
providing legal services to the client.(113)

Communication for the purpose of obtaining legal advice: Communications to an

attorney acting in a capacity other than as a legal advisor are not privileged. This is
particularly important in cases involving in-house counsel, who may serve multiple
functions within the company. Attorneys are often involved in negotiating contracts or
giving business advice; communications to attorneys that concern largely business
matters are not protected.(114) Where an attorney's role in a particular matter involves both
legal and business matters, courts will generally look to the role that predominates to
determine whether the privilege applies.(115)

Confidentiality: Communications are privileged only if they are made in confidence and
are intended to remain confidential. Thus, information given to an attorney with the intent
that the attorney distribute it to others is not privileged.(116) The presence of third parties at
the time the communication is made may defeat the privilege. When two or more parties
have a common interest, however, such as joint defendants or targets of a grand jury
investigation, communications by one party to his attorney in the presence of another
party may nevertheless be considered confidential and, therefore, privileged.(117)

When the client is a corporation, it must establish that its internal security practices
would support a finding of confidentiality; privileged documents must have been made
available only to those employees who needed to know their contents.(118)

Waiver: The attorney-client privilege belongs to, and can only be waived by, the client,
or by the attorney acting with the client's express or implied consent.(119) As a practical
matter, if the attorney has control over the client's litigation, the attorney has an implied
authority to waive the privilege on behalf of his client.(120) Thus, the client usually will be
bound by the attorney's failure to assert the privilege.(121)
 Any voluntary disclosure of a communication by the holder of the privilege is
inconsistent with the confidentiality requirement and waives the privilege.(122) Inadvertent
disclosure of privileged communications may also constitute waiver of the privilege.(123)
Some courts have held that inadvertent disclosure does not destroy the privilege,
provided reasonable precautions against disclosure had been taken.(124) The court in In re
Grand Jury Investigation of Ocean Transport, 604 F.2d 672 (D.C. Cir.), cert. denied, 444
U.S. 915 (1979), refused to allow the attorney-client privilege to be successfully asserted
after it was explicitly, knowingly, albeit mistakenly, waived. The court further found that
the risk of an error by the attorney in producing privileged documents is the burden of the
client and that practical realities govern; if Government attorneys have studied the
materials, the mistaken waiver of the privilege cannot be remedied and the privilege will
be considered permanently destroyed. However, the inadvertent disclosure of documents
under an accelerated discovery schedule has been held to be "compelled," so that the
privilege could be claimed with respect to the same documents in subsequent litigation.
(125)

Once privileged communications concerning a particular issue have been disclosed, the
privilege is usually deemed waived for all communications concerning the same issue or
subject matter.(126) A limited number of courts have created an exception to this rule for
disclosures made in the course of settlement negotiations,(127) or when disclosure was
inadvertent and there would be no unfairness to the other party by the refusal to disclose
other communications.(128) In these cases, the privilege was deemed waived only with
respect to the communications that had been disclosed.

3. Exceptions
a. Ongoing or future crimes or frauds. The attorney-client privilege does not protect
communications that relate to ongoing or contemplated but not-yet-committed crimes
or frauds.(129) This is true even if the attorney was unaware that the services he
performed were not for a legitimate purpose. (130) One court has even suggested that if
co-conspirators agreed to provide an attorney's services if a member of the conspiracy
was arrested, the attorney's services would be in furtherance of the conspiracy and the
privilege would not apply.(131) The party challenging the applicability of the privilege on
this ground must make out a prima facie case of illegality.(132)

The court may review the allegedly privileged communications in camera to

determine whether the crime-fraud exception applies; however, the party
opposing the privilege must first "present evidence sufficient to support a
reasonable belief that in camera review may yield evidence that establishes the
exceptions applicability."(133)

b. Making privileged communications an issue. When a client puts communications with its
attorney at issue in a case, the privilege does not apply. (134) Thus, the client may not
disclose some communications with counsel in its own case without losing the privilege
as to other communications involving the same subject matter. (135) Similarly, if the client
asserts advice of counsel as a defense in a proceeding, the privilege is lost. (136)
4. Subpoenas to attorneys. Because of the potential effects on an attorney-client relationship that
may result from the issuance of a subpoena to an attorney to obtain information concerning his
 client, the Department has established guidelines governing the issuance of such subpoenas. No
attorney may be subpoenaed in any matter, criminal or civil, concerning the representation of a
client without the approval of the Assistant Attorney General in charge of the Criminal Division.
In a grand jury proceeding, no such subpoena will be approved unless the following conditions
are met:

a. The information sought is reasonably necessary to prosecute a crime that is being or has
been committed by any person;
b. all attempts to secure the information from alternate sources have failed;
c. the need for the information outweighs the adverse impact on the attorney-client
relationship; and
d. the information is not protected by a valid claim of privilege. (137)

Attorneys should also be aware that the Massachusetts Supreme Judicial Court has
adopted an ethical rule that states that it is unprofessional conduct for a prosecutor to
subpoena an attorney to appear before a grand jury without prior judicial approval.(138)
Similar rules have been proposed in other states.

b. Attorney work-product

1. Definition of privilege. The attorney work-product privilege, although often confused and
muddled with the attorney-client privilege, is separate, distinct and broader than the attorney-
client privilege.(139) It protects information assembled or created by an attorney in preparation
for litigation. The privilege was first recognized in Hickman v. Taylor, 329 U.S. 495 (1947), and
was subsequently codified for application in civil and criminal trials. Its application to grand jury
proceedings, however, is based solely on common law. (140) The purpose of the privilege is to
promote the adversary system by safeguarding the fruits of an attorney's trial preparations from
the discovery attempts of the opponent. (141)

The work-product privilege covers materials prepared or collected by an attorney "in the
course of preparation for possible litigation."(142) The interpretations of the phrase
"possible litigation" range from "a real and imminent threat of litigation"(143) to the
"motivating purpose behind creation or collection of the documents was to aid in possible
future litigation."(144) The privilege will not apply if the prospect of future litigation is
remote.(145) Similarly, the privilege will not apply if the materials were created
predominantly for business or economic purposes.(146) For example, business records
created to prepare tax returns(147) and routine business records which are subsequently
used in connection with litigation(148) are not within the privilege.

The materials covered by the privilege include tangible documents such as memoranda,
correspondence, and briefs, as well as intangible information such as personal
recollection and mental impressions.(149) The term "materials" has been interpreted
broadly to encompass all information collected or created by an attorney's investigative
and strategic efforts on behalf of a client in litigation.(150) This includes the attorney's
pattern of investigation, assembling of information, determination of the relevant facts,
preparation of legal theories, planning of strategy and recording of mental impressions.
 (151)
Nevertheless, non-privileged portions of an otherwise protected document must be
disclosed.(152)

2. Limitations
a. Qualified vs. absolute privilege. The materials covered by the work-product privilege fall
into two categories: fact work-product and opinion work-product. (153) Fact work-product
are materials collected or prepared by the attorney which do not reflect his mental
processes, conclusions, opinions or legal theories. The protection for fact work-product
is qualified and may be overcome by a showing of need and hardship. (154)

The protection afforded opinion work-product has been disputed by the courts.
Some courts have held the protection for opinion work-product is absolute.(155)
They base their holdings on the sanctity of the attorney's thought processes, the
unreliability of the evidence and the fear of turning the advocate into a witness.(156)
Other courts have held opinion work-product to be disclosable in rare situations.
(157)

b. Corporate attorneys - employee interviews. Materials collected and prepared by a

corporate attorney in connection with employee interviews are usually covered by the
corporation's attorney-client privilege.(158) Those materials that are not within the
attorney-client privilege may still be covered by the attorney work-product privilege.
The test is "not whether a particular employee comes within the ambit of the attorney-
client privilege, but whether the communication to the corporate attorney by the
employee is in furtherance of the attorney's duty to investigate the facts in order to
advise the corporate client in anticipation of litigation." (159)
c. Disclosure of work-product material. Unlike the attorney-client privilege which is based
on the need for confidentiality and is waived immediately upon disclosure of the
privileged material, the attorney work-product privilege is based on the need to protect
material from an opposing party in litigation and is not automatically waived upon
disclosure. The test for waiver focuses on whether the transferor has "common
interests" with the transferee.(160) Early cases construed "common interests" narrowly to
allow disclosure only to persons on the same side of litigation. (161) Recent cases,
however, have construed the phrase more broadly to allow disclosure to any person
unless such disclosure would substantially increase the possibility of an opposing party
obtaining the information.(162) For example, in GAF Corp. v. Eastman Kodak Co., 85 F.R.D.
46 (S.D.N.Y. 1979), the court held that the work-product privilege was not waived by
disclosure of trial preparation documents by a private antitrust plaintiff to the
Government. A middle ground was arrived at in United States v. AT&T, 642 F.2d 1285,
1299 (D.C. Cir. 1980), in which the court held that "common interests" should be
construed to allow disclosure "so long as transferor and transferee anticipate litigation
against a common adversary on the same issue or issues." This interpretation was
adopted and elaborated on in In re Doe, 662 F.2d 1073 (4th Cir. 1981), cert. denied, 455
U.S. 1000 (1982). In that case, the court held that release of otherwise protected
material without an intent to limit its future disposition might forfeit work-product
protection, regardless of the relationship between the attorney and the recipient of the
material. The court found that the attorney had waived the privilege by unconditionally
turning over the material to his client. (163)
 d. Waiver by misconduct. Misconduct by the attorney or his client may waive the work-
product privilege. This is often referred to as the crime-fraud exception. "Misconduct",
in this context, has been defined by one court to be "fraud on the judicial processes
perpetrated by a client or his attorney which could be something less than criminal
activity, but certainly encompasses criminal activity subverting or attempting to subvert
the judicial process."(164) To overcome an attorney's invocation of his work-product
privilege based on his client's misconduct, a showing must be made that the evidence is
relevant to the grand jury's investigation, there is prima facie evidence of misconduct,
and there is a connection between the documents and the alleged misconduct. (165) If
such a showing is made, then the court, in camera, must find a valid relationship
between the work-product subpoenaed and the prima facie misconduct.(166) Courts have
had little difficulty disclosing information which was either written or orally
communicated to the attorney.(167) But, the courts have refused to overcome the work-
product privilege for an attorney's mental impressions, conclusions, opinions, and legal
theories because of his client's misconduct. (168)

When the attorney is suspected of misconduct, the courts have been more willing
to compel disclosure of not only fact work-product, but opinion work-product as
well. In In re Doe, 662 F.2d 1073 (4th Cir. 1981), cert. denied, 455 U.S. 1000
(1982), the attorney was suspected of advising his client to testify falsely, alter or
destroy documents, and bribe witnesses. The court rationalized disclosure of his
opinion work-product by saying that the work-product privilege was "not
designed as a fringe benefit for protecting lawyers who would, for their personal
advantage, abuse it."(169) The court went on to say that the party seeking disclosure
of opinion work-product must show not only undue hardship and prima facie
misconduct, but also "a greater need" for the opinion work-product material than
was necessary to obtain the fact work-product.(170)

c. Spousal privilege

The marital privilege, as recognized by the federal courts, is in actuality two separate privileges
based on the marital relationship: the confidential communications privilege and the adverse
testimony privilege. The former privilege bars testimony of one spouse as to confidential
communications between the two; the latter provides that a witness can be neither compelled to
testify nor foreclosed from testifying against his spouse.(171)

Based in common law, the marital privilege was codified in Rule 501 of the Federal Rules of
Evidence. The marital privilege is applicable before the grand jury as well as at trial.(172)

Both the adverse spousal testimony privilege and the confidential communications privilege
require the existence of a valid marriage. Although the issue of whether the privilege exists in a
particular case is a matter decided under federal law, the determination as to the validity of the
marriage depends upon state law.(173) Thus, in a state which does not recognize common-law
marriages, living together does not permit one to invoke the marital privilege.(174) The privilege is
not conditioned on a judicial determination that the marriage is happy or successful, but only that
it is valid.(175) The court will, however, reject the privilege if based upon a fraudulent, spurious
marriage, not entered into in good faith.(176)
Since the modern justification for the adverse testimony privilege (fostering the harmony and
sanctity of the marriage relationship) differs from that of the confidential communications
privilege (encouraging full and frank communications between spouses), courts treat the two
privileges differently.

Under the adverse testimony privilege, the test is whether a valid marriage exists at the time the
testimony is sought. If met, the privilege then exists as to any testimony adverse to the other
spouse, even as to acts predating the marriage. Under the confidential communications privilege,
the test is whether a valid marriage existed at the time the communication was made. The
confidential communications privilege survives the termination of the marriage. The adverse
testimony privilege does not.(177) The ramification of what a legal separation would be upon the
adverse testimony privilege is unclear.

Under the confidential communication privilege, either spouse has the right to interpose the
privilege and preclude the testimony. Under the adverse testimony privilege, the witness spouse
alone has the privilege to refuse to testify adversely. The witness spouse may neither be
compelled to testify nor foreclosed from testifying.(178) Neither marital privilege encompasses
out-of-court statements made by a spouse and validly testified to by a third party.(179)

For the confidential communication privilege to exist, there must be a communication. The
taking of fingerprints, handwriting samples and records have been held not to be testimonial
communicative evidence in the context of the confidential communications privilege.(180)
Likewise, acts or observations made in confidence have not been included in this privilege.(181)
The privilege extends only to statements intended by one spouse to convey a message to the
other and does not reach evidence concerning "objective facts having no per se effect" on the
other spouse.(182) Similarly, the adverse testimony privilege does not extend to the production of
voluntarily produced records that would not amount to "testimony" under a 5th Amendment
analysis.(183)

The privilege also requires that the communication be made in confidence. Marital
communications are presumptively confidential. The burden is upon the party seeking to avoid
the privilege to overcome the presumption.(184) A confidential communication can lose this status
and thus the privilege if the communication is later disclosed by the spouse claiming the
privilege.(185)

The adverse testimony privilege requires that the testimony be adverse to the interest of the other
spouse in the case under consideration. The issue is whether the answers to the questions posed
would tend to incriminate the spouse.(186) Where the spouse is a target of an investigation, the
incrimination justifying invocation of the privilege may be indirect or direct.(187)

Certain exceptions exist to the general rule that confidential communications between spouses
are privileged. One exception is where both spouses are co-conspirators in the matter under
inquiry. For example, conversations between a husband and a wife about crimes in which they
are presently jointly participating are not within the protection of the privilege.(188)
The adverse testimony privilege also has certain exceptions. Where husband and wife are co-
conspirators, some courts have held that acts made in furtherance of the conspiracy are outside
the privilege.(189) Other courts have not recognized this exception.(190) If an offense has been
committed by a party against his spouse, the victim spouse's testimony as to that activity is also
outside the privilege.(191) This "offense against the spouse" exception includes an offense against
the child of either spouse.(192)

A properly invoked adverse testimony privilege may be overcome under certain circumstances.
In In re Snoonian, 502 F.2d 110 (1st Cir. 1974), the prosecutor stated to the grand jury that the
wife of the witness was not a target of this grand jury investigation and the Government had no
intent to prosecute the wife on the basis of the husband's testimony. The First Circuit held:

In the present case the speculative nature of the threat to the wife, coupled with the Government's
unequivocal and convincing promises not to use any of the testimony against her, nullifies any claim of
privilege as grounds for (the witness') refusal to testify. (193)

Lesser promises by the Government have been held inadequate to overcome the privilege. In In
re Malfitano, 633 F.2d 276 (3d Cir. 1980), the Government had promised not to use the wife's
testimony in future proceedings against her husband. The husband had previously been sent a
target letter. The court stated that the Government's promise was inadequate since the grand jury
was free to consider the testimony in deciding whether to indict the spouse.(194) At least one court
has specifically chosen not to extend the holding in Snoonian to the confidential communication
privilege.(195)

Granting immunity to both spouses would appear to overcome both marital privileges.(196)

d. Physician/patient

A physician-patient privilege has not been recognized by common law. Federal courts have
uniformly agreed that the physician-patient privilege is a statutory creation.(197)

e. Priest/penitent

Federal courts have recognized a priest-penitent privilege in very limited applications. The privilege
covers communications by a penitent, seeking spiritual rehabilitation, to a clergyman. The
communication must have been made in confidence to the clergyman in his capacity as a religious
counselor, with the expectation of receiving religious consolation and guidance. (198) Conversations
between penitent and priest that relate to a business rather than a spiritual relationship are not
privileged.(199) Similarly, communications about a third party or made with the intent of passing
information to a third party are not privileged. (200)

f. Accountant/client

Federal courts have refused to recognize an accountant-client privilege.(201) One court, however,
has held a client's confidential communication to his attorney's accountant, made for the purpose
of obtaining legal advice from his attorney, to be privileged. The court viewed the accountant as
the attorney's agent and found the communication to be within the attorney-client privilege.(202)

g. Intra-family

The majority of federal courts have refused to recognize a testimonial privilege between family
members.(203) In re Agosto, 553 F. Supp. 1298 (D. Nev. 1983), is the only federal court which has
recognized a family privilege. Nonetheless, Department and Division policy usually is not to
seek close family confidential communications unless they consist of business communications
among close family members.(204)

2. Constitutional privileges
a. 1st Amendment

The 1st Amendment provides little support for a refusal to honor a grand jury subpoena.
Important limitations are imposed on subpoenas, however, by Departmental regulations
concerning the issuance of compulsory process to members of the news media.

Procedures and standards regarding the issuance of subpoenas to members of the news media,
and subpoenas for the telephone toll record of members of the news media are set forth in 28
C.F.R. § 50.10.(205) Subject to limited exceptions, this section requires the express approval of the
Attorney General before a subpoena may be issued. 28 C.F.R. § 50.10 does not apply to CIDs or
subpoenas directed to news media organizations for purely commercial or financial information
related to an antitrust investigation.

Several litigants have raised 1st Amendment objections to a subpoena. In general, the courts
have refused to recognize a 1st Amendment testimonial privilege. A so-called "newsman's
testimonial privilege" was rejected in the case of Branzburg v. Hayes, 408 U.S. 665 (1972). The
Supreme Court, in a plurality opinion by Justice White, noted that "the administration of a
constitutional newsman's privilege would present practical and conceptual difficulties of a high
order."(206) The Court reasoned that a reporter was also a citizen and subject to the duty of citizens
generally to respond and testify, and that this, as well as the public interest in law enforcement,
was sufficient to override the consequential effect on the gathering of news.

Nonetheless, the plurality opinion in Branzburg did suggest that several factors might support the
quashing of a subpoena to a newsman on 1st Amendment grounds. These included harassment,
bad faith or grand jury abuse. Further, Justice Powell's concurrence in Branzburg suggests that
even absent such grounds, a limited 1st Amendment newsman's privilege exists, a view which
has received some support in the lower courts.(207)

Outside of the newsgathering area, the courts have recognized very limited 1st Amendment
privileges against subpoenas; in particular, those that may infringe on rights of free association.
In the antitrust context, challenges based on a possible "chilling effect" on the right of free
association may arise in response to subpoenas for documents showing communications or
attendance at meetings. The cases suggest, however, that unless such challenges are grounded on
allegations of serious potential or actual harassment of political or religious groups, or grand jury
abuse, they are unlikely to succeed.(208)

In cases not involving serious potential or actual harassment of political or religious groups, the
likelihood of quashing a subpoena on freedom of association grounds appears to be diminished.
Moreover, the cases suggest that under the balancing approach of NAACP v. Alabama, 357 U.S.
449 (1958), possible chilling effects or even substantial interference with the right of free
association will be tolerated if there is a significant Government interest implicated in
compelling disclosure.(209) Similarly, attempts to invoke Noerr-Pennington as grounds for a
motion to quash have also been unsuccessful.(210) The mere fact that activities may ultimately be
found to be exempt under Noerr-Pennington will not serve as grounds to quash a subpoena.(211)
Moreover, in the Noerr-Pennington context, courts have been unable to identify adverse
repercussions of the type that flow from compelled disclosure of membership information, such
as those identified in NAACP v. Alabama. Courts have, therefore, refused to limit the scope of
the Government's inquiry on the basis of a "chilling effect" on the exercise of Noerr-Pennington
rights.(212)

A 1st Amendment religious freedom ground has also been rejected.(213) Similarly, a "scholars'
privilege" -- essentially a variant of the newsman's privilege -- was rejected in United States v.
Doe, 460 F.2d 328 (1st Cir. 1972), cert. denied, 411 U.S. 909 (1973).

b. 4th Amendment

1. History of the applicability of the 4th Amendment to grand jury subpoenas. The courts have
used the 4th Amendment prohibition against "unreasonable searches and seizures", which is
applicable to corporations as well as individuals, to limit the scope of subpoenas duces tecum.
Fed. R. Crim. P. 17(c), which provides that a court "on motion made promptly may quash or
modify the subpoena if compliance would be unreasonable or oppressive," has also been used
to limit subpoenas duces tecum in conjunction with the 4th Amendment prohibition. Rule 17,
however, does not depend for its authority on the 4th Amendment. The authority of courts to
quash or modify subpoenas under Rule 17(c) may be broader in scope than that provided by the
4th Amendment.(214)

On its face, the 4th Amendment does not implicate the power of a grand jury to issue
subpoenas duces tecum for books and records. Nevertheless, in Boyd v. United States,
116 U.S. 616, 622 (1886), the Supreme Court extended the reach of the 4th Amendment
to "compulsory production of . . . private papers to be used as evidence . . . ." Several
subsequent cases have limited and questioned the application of the 4th Amendment to
grand jury subpoenas. But while the Supreme Court eventually may abandon its prior
view that the 4th Amendment applies to grand jury subpoenas, it probably will continue
to apply the reasonableness test that it used in cases subsequent to Boyd.(215)

For example, in Hale v. Henkel, 201 U.S. 43 (1906), the Supreme Court found that a
subpoena duces tecum issued by a grand jury investigating a Sherman Act violation was
too sweeping to be regarded as reasonable. The Court stated at pages 76-77:
 Applying the test of reasonableness to the present case, we think the subpoena duces tecum is
far too sweeping in its terms to be regarded as reasonable.

Doubtless many, if not all, of these documents may ultimately be required, but some
necessity should be shown, either from an examination of the witnesses orally, or from
the known transactions of these companies with the other companies implicated, or some
evidence of their materiality produced, to justify an order for the production of such a
mass of papers. A general subpoena of this description is equally indefensible as a search
warrant would be if couched in similar terms. . . .

In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), the Supreme Court
in upholding a subpoena duces tecum issued by the Office of Price Administration stated
at pages 208-209:

Without attempt to summarize or accurately distinguish all of the cases, the fair distillation,
insofar as they apply merely to the production of corporate records and papers in response to a
subpoena or order authorized by law and safeguarded by judicial sanction, seems to be that. . .
the 4th, [Amendment] if applicable, at the most guards against abuse only by way of too much
"indefiniteness or breadth in the things required to be "particularly described," if also the
inquiry is one the demanding agency is authorized by law to make and the materials specified
are relevant. The gist of the protection is in the requirement, expressed in terms, that the
disclosure sought shall not be unreasonable.

...

It is not necessary, as in the case of a warrant, that a specific charge or complaint of

violation of law be pending or that the order be made pursuant to one. It is enough that
the investigation be for a lawfully authorized purpose, within the power of Congress to
command. . . .Beyond this the requirement of reasonableness, including particularity in
"describing the place to be searched, and the persons or things to be seized," also literally
applicable to warrants, comes down to specification of the documents to be produced
adequate, but not excessive, for the purposes of the relevant inquiry. Necessarily, as has
been said, this cannot be reduced to formula; for relevancy and adequacy or excess in the
breadth of the subpoena are matters variable in relation to the nature, purposes and scope
of the inquiry.(216)

2. Limitations on subpoena duces tecum. The limitations on the scope of a subpoena duces tecum
may be generally summarized as follows. It must not be too broad and sweeping. (217) The
documents sought must have some relevance to the investigation being conducted. (218) The
subpoena must be limited to a reasonable time. (219) The documents requested must be described
with sufficient definiteness so that the entity subpoenaed may know what is wanted. (220) The
burden of complying with the subpoena must not be too great. (221) The subpoenas may not be
used to secure privileged communications, but trade secrets may be obtained. (222)
With the foregoing specific limitations in mind, more general limitations are described
below.

a. Particularity. Subpoenas duces tecum must adequately describe the documents sought
so that the subpoena recipient may know what he is being asked to produce. There is no
precise formula for determining this particularity. As stated by the Supreme Court in
Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946), the requirement of
particularity:

comes down to specification of the documents to be produced adequate, but not

excessive, for the purpose of the relevant inquiry. Necessarily, as has been said, this
cannot be reduced to formula; for relevancy and adequacy or excess in the breadth of
the subpoena are matters variable in relation to the nature, purpose and scope of the
inquiry.(223)

The requirement of particularity may be somewhat less stringent in antitrust

investigations because of the more complex nature of our inquiries, as stated in In
re Eastman Kodak Co., 7 F.R.D. 760, 763-64 (W.D.N.Y. 1947):

In this particular type of investigation [antitrust] it must be seen that a wider range of
inquiry is necessary than in the general run of criminal cases. In this particular instance it
is obvious that it normally would be necessary to examine many documents of the
Company.

Some courts have recognized that "older" records might need to be specified with
greater definiteness than would more recent records. In generally approving a
subpoena in a Sherman Act § 2 investigation which requested documents during a
multi-year period which itself was several years prior to the date of the subpoena,
the court in In re United Shoe Machinery Co., 73 F. Supp. 207, 211 (D. Mass.
1947), said:

No doubt a subpoena ordering the production of old records or old documents places a
far heavier burden on the corporation than does an order requiring the production of
recent ones.

...

The documents demanded by a subpoena covering a long period of time in the

past should, therefore, set forth the documents demanded with greater
particularity, and should not order the production of documents without some
showing that they contain information reasonably relevant to the subject matter of
the investigation.

b. Reasonableness. A subpoena for books and records is not subject to the 4th
Amendment's probable cause requirement. It is subject only to the general requirement
 of reasonableness. Reasonableness includes at least two basic elements: (1) that the
subpoena is not too broad and sweeping and (2) that the time covered period by the
subpoena is reasonable.(224) A grand jury subpoena is presumed to be reasonable, with
the burden of showing unreasonableness on the recipient who seeks to avoid
compliance.(225)

Factors to be considered in determining reasonableness include the type and

extent of the investigation, the materiality of the subject matter to the type of
investigation, the particularity of the subpoena, the good faith of the Government
and any showing of particular need.(226)

Because of the particular nature of antitrust investigations, courts have generally

had a more relaxed standard of reasonableness in connection with antitrust grand
juries. As stated in In re Household Goods Movers Investigation, 184 F. Supp.
689, 690 (D.D.C. 1960):

Investigations of possible antitrust violations almost invariably involve great amounts of

records, etc., either by reason of the size of the corporation, or the industry, or the
scope of inquiry. Also, since antitrust conspiracy cases are usually built on circumstantial
evidence . . . and because conspiracies "are seldom capable of proof by direct testimony
and may be inferred from the things done and from the circumstances" . . . and,
because the activity under investigation may only be meaningful if a pattern of activity
over a number of years is studied, the breadth and scope of subpoenas issued in
antitrust inquiries are perhaps necessarily greater than in other types of cases . . . . (227)

Courts have quashed subpoenas duces tecum that resemble "fishing expeditions"
into corporate records.(228) A demand in a subpoena duces tecum for all corporate
documents usually is unreasonable.(229) However, a demand for particularized
records that constitute all or most of the witness' records is not unreasonable.(230)

While materiality is relevant to the question of reasonableness,(231) lack of

materiality alone is not sufficient grounds for quashing a subpoena.(232)

The time period covered by a subpoena must have a reasonable relationship to the
alleged offense under investigation.(233) Generally, in antitrust investigations, a
subpoena duces tecum may extend beyond the applicable statute of limitations
because it is recognized that antitrust violations are difficult to prove and because
evidence from the period before the statute of limitations, in a continuing
conspiracy, can be introduced at trial (assuming, of course, that it can be shown
that some conspiratorial acts occurred within the statute of limitations). However,
this general rule does not permit unrestricted access to old corporate records.(234)

c. Relevance. A subpoena duces tecum must seek materials relevant to a grand jury
inquiry.(235) Relevancy is determined by examining the connection between the
requested documents and the subject matter of the investigation. (236) In United States v.
 R. Enterprises, Inc., U.S. (1991), The Supreme Court established a very low threshold for
satisfying the relevancy requirement. The Court stated at p. :

[W]here, as here, a subpoena is challenged on relevancy grounds, the motion to quash

must be denied unless the district court determines that there is no reasonable
possibility that the category of materials the Government seeks will produce
information relevant to the general subject of the grand jury investigation.

Some lower courts have held that the Government need make only a minimal
showing of relevance.(237) A standard of "no conceivable relevance" appears to
have been adopted in the Second Circuit before a witness can object to a subpoena
duces tecum on relevance grounds.(238) The relevancy of the entire subpoena may
be questioned(239), as well as particular paragraphs of the subpoena.(240)

c. 5th Amendment

The 5th Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be
a witness against himself . . . ." A person claiming the privilege must establish three elements (1)
personal compulsion; (2) of a testimonial communication; (3) that would incriminate the person
claiming the privilege.(241) As with any claim of privilege, the burden is on the person claiming
the privilege to establish that it is properly asserted.(242)

This privilege is often raised in an attempt to resist producing business records or other evidence
to the grand jury, but in most instances, the courts have held that the 5th Amendment privilege is
not a bar to obtaining almost any type of business record pursuant to a grand jury subpoena. In
general, corporations and other artificial entities, such as partnerships, have no 5th Amendment
privilege against self-incrimination.(243) Moreover, a corporation must produce its records even
though their contents or the act of production itself may incriminate the records custodian or
other corporate officials.(244) However, if the records are characterized as being purely personal or
the subpoena is directed to a sole proprietor, there may be both 5th and 4th Amendment
problems in obtaining such records. Each element of the privilege, and the leading cases dealing
with it, are discussed below.

1. Personal compulsion. The Supreme Court has repeatedly held that the 5th Amendment privilege
only applies when a person is compelled to make an incriminating statement. (245) Thus, if the
preparation of business records is voluntary, no compulsion is present since a subpoena that
calls for production of such records does not cause such records to be created. Nor does a
subpoena for business records require the person producing them to restate or affirm the truth
of their contents. Therefore, the Supreme Court has held that the 5th Amendment privilege
does not protect the contents of business records. (246) At least one court has suggested that a
similar rule might be appropriate for voluntarily created personal papers. (247) Although the
contents of business records are not privileged, the act of producing the documents may have
certain testimonial aspects that may not be used against the person producing the documents.
(248)

2. Incriminating communication. The 5th Amendment provides that no person shall be compelled
to incriminate himself in a criminal proceeding. This privilege applies to any testimony that
 would incriminate the person making the statement. It does not apply to statements that would
incriminate someone other than the person making the statement. (249) The privilege is not
limited to facially incriminating communications. Courts have uniformly held that the privilege
extends to any compelled communications that lead to an incriminating inference. (250)
3. Testimonial communication. The Supreme Court has held in a series of cases culminating in
Braswell v. United States, 487 U.S. 99 (1988), that generally the production of business
documents pursuant to a subpoena duces tecum is not a "testimonial communication"
protected by the 5th Amendment. In certain unique situations, the "act of production" may have
testimonial significance. In those cases, the act of production may not be used against the
person producing the documents. However, the production of the documents may nonetheless
be compelled, even absent a grant of immunity.

In general, the 5th Amendment privilege does not extend to artificial entities whose
records are held by a custodian or agent in a representative capacity. This includes
corporations,(251) unincorporated associations,(252) and partnerships.(253) According to Bellis
v. United States, 417 U.S. 85 (1974), this is true even if the records would incriminate the
custodian who is producing them. Thus, in most cases, not only can a corporate document
custodian be required to produce documents, he can also be forced to identify and
authenticate documents before the grand jury.(254)

A corporation cannot invoke the 5th Amendment privilege even where it is a mere alter
ego of its owner.(255) This also applies to doctors, lawyers, and other professionals doing
business as "professional corporations."(256) The rationale for this limitation of the 5th
Amendment privilege to natural persons was succinctly stated by the Supreme Court in
United States v. White, 322 U.S. 694, 700 (1944):

The scope and nature of the economic activities of incorporated and unincorporated
organizations and their representatives demand that the constitutional power of the federal and
state governments to regulate those activities be correspondingly effective. The greater portion
of evidence of wrongdoing by an organization or its representatives is usually to be found in the
official records and documents of that organization. Were the cloak of the privilege to be
thrown around these impersonal records and documents, effective enforcement of many
federal and state laws would be impossible.

In addition, courts have refused to look behind the particular organizational form chosen
in deciding whether to allow a 5th Amendment privilege claim. If a person chooses to
organize as a corporation even if he is the sole shareholder, he can not assert a 5th
Amendment privilege to shield his business records from production.(257)

A number of factors are relevant in determining whether a partnership is a collective

entity independent of its members or the individual business of a single partner, including
number of partners, type of partnership, whether it has held itself out to the public as a
collective entity, whether it holds property in the partnership name, and whether more
than one partner has access to the books and records.(258) Although small family
partnerships have been held to have no 5th Amendment privilege,(259) in one case, In re
Special Grand Jury No.1, 465 F. Supp. 800 (D. Md. 1978), a member of a family law
partnership was allowed to withhold documents based on the court's finding that the
actual structure more closely resembled private businesses operated by each brother than
a partnership.

Other collective entities have been denied the use of the privilege against self-
incrimination. The ultimate determination is whether, based on all the circumstances, the
particular organization "has a character so impersonal in the scope of its membership and
activities that it cannot be said to embody or represent the purely private or personal
interests of its constituents, but rather to embody their common or group interest
only."(260)

The treatment of business records of a sole proprietorship was determined in United

States v. Doe, 465 U.S. 605 (1984). In Doe, the Supreme Court held that the contents of
voluntarily prepared business records were not privileged since their creation was not
compelled. However, the act of producing the records of a sole proprietorship could
amount to a compelled incriminating testimonial communication. The Court noted that
the District Court had made a specific finding that "enforcement of the subpoenas would
compel [respondent] to admit that the records exist, that they are in his possession, and
that they are authentic."(261) Therefore, although the records themselves are not privileged,
the Government may have to grant use immunity for the "act of production" to obtain the
business records of a sole proprietorship.(262)

The "act of production" doctrine is limited to sole proprietorships and does not extend to
other artificial collective entities such as corporations. In Braswell v. United States, 487
U.S. 99 (1988), the Supreme Court distinguished Doe and held that the president and sole
shareholder of a corporation could not interpose a 5th Amendment objection to the
compelled production of corporate records, even if the act of production might prove to
be personally incriminating.(263) The Court did note, however, that the Government could
make no evidentiary use of the act of production in any prosecution against that
individual.(264)

There are two other areas where, in general, the 5th Amendment privilege is not
available. First, there is generally no 5th Amendment protection available for records
required to be kept by law.(265) For a particular class of documents to be deemed a
"required record", they must be kept pursuant to a law or regulation whose purpose is
essentially regulatory; they must be of the type customarily kept by the business and they
must have a "public aspect."(266) Second, there is no 5th Amendment protection for
demonstrative or physical evidence, since the privilege applies only to testimony. This
includes handwriting samples,(267) fingerprints and photographs,(268) voice exemplars,(269)
and blood samples.(270)

The nature of the documents themselves may also be an issue. In Grand Jury Subpoena
Duces Tecum v. United States, 657 F.2d 5 (2d Cir. 1981), the Second Circuit examined a
personal 5th Amendment claim asserted by a corporate executive concerning pocket and
desk calendars used to record business appointments. The Second Circuit remanded the
case to the district court for clarification of the nature of each item. It proposed a "non-
 exhaustive list of criteria" to be used in deciding whether production of the calendars
would amount to self-incrimination. These criteria included: "who prepared the
document, the nature of its contents, its purpose or use, who maintained possession and
who had access to it, whether the corporation required its preparation, and whether its
existence was necessary to the conduct of the corporation's business."(271) The district
court held that the desk calendar was a corporate document but that the pocket calendar
was more a personal paper and therefore within the scope of the 5th Amendment
privilege. Other circuits have applied a similar case-by-case analysis for the
determination of the issue.(272)

The few courts that have considered specifically whether documents are personal or
corporate find that mixed documents are corporate and outside the privilege. For
example, the Ninth Circuit in United States v. MacKey, 647 F.2d 898 (9th Cir. 1981),
held that a diary and desk calendar used to record business meetings and transactions,
kept in the office, and used in the daily management of the corporation were properly
discoverable corporate papers despite personal non-business notations and lack of
corporate possession or ownership.(273)

4. Disclosure of records held by third parties. On occasion, it may be necessary to compel a target
or subject of an investigation to execute a form consenting to the disclosure of documents held
by a third party, for example, in avoiding the application of a foreign blocking statute. The
Supreme Court in Doe v. United States, 487 U.S. 201 (1988), held that a court order compelling a
target of a grand jury investigation to authorize the disclosure of bank records without
specifically identifying those documents or acknowledging their existence does not violate the
target's 5th Amendment privilege against self-incrimination. (274) The Court reasoned that
execution of the consent form was not testimonial and, therefore, not within the privilege. The
holding in Doe should also apply to other third parties in addition to banks.

Personal documents protected by the 5th Amendment do not lose their privileged status
when turned over to an attorney if the production meets all the requirements of the
attorney-client privilege. The documents are protected by the attorney-client privilege,
not the 5th Amendment.(275) However, if possession goes to a person other than an
attorney, the Government may serve a subpoena on the third party, and thus avoid
compulsion on the person incriminated by the documents.(276) In addition, a person who is
incriminated by documents prepared by a third party may not validly claim a 5th
Amendment privilege as to the documents by taking possession of them or by
transferring them to his attorney.(277)

FOOTNOTES

1. United States v. R. Enterprises, Inc., U.S. , (1991); United States v. Sahley, 526 F.2d 913 (5th
Cir. 1976); In re Womack, 333 F. Supp. 479 (N.D. Ill. 1971), aff'd, 466 F.2d 555 (7th Cir. 1972).
2. United States v. R. Enterprises, Inc., U.S. at ; In re Grand Jury Subpoena, 920 F.2d 235, 244
(4th Cir. 1990); In re Grand Jury Proceedings, 896 F.2d 1267, 1278 (11th Cir. 1990).

3. United States v. R. Enterprises, Inc., U.S. , (1991); FTC v. American Tobacco Co., 264 U.S.
298, 305-06 (1924).

4. United States v. (Under Seal), 714 F.2d 347 (4th Cir.), cert. denied, 464 U.S. 978 (1983).

5. In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973); In re Grand Jury
Proceedings (Schofield II), 507 F.2d 963 (3d Cir.), cert. denied, 421 U.S. 1015 (1975).

6. In re Slaughter, 694 F.2d 1258 (11th Cir. 1982).

7. See In re Grand Jury Proceeding, 721 F.2d 1221 (9th Cir. 1983); In re Grand Jury Subpoena
Duces Tecum to John Doe Corp., 570 F. Supp. 1476 (S.D.N.Y. 1983); In re Grand Jury
Proceedings of June 6, 1981, 519 F. Supp. 791 (E.D. Wis. 1981).

8. United States v. R. Enterprises, Inc., U.S. at .

9. In re Grand Jury Proceedings, 814 F.2d 61 (1st Cir. 1987); United States v. Woods, 544 F.2d
242, 250 (6th Cir. 1976), cert. denied, 429 U.S. 1062 (1977); United States v. Star, 470 F.2d
1214 (9th Cir. 1972).

10. United States v. Picketts, 655 F.2d 837 (7th Cir.), cert. denied, 454 U.S. 1056 (1981).

11. See United States v. Gibbons, 607 F.2d 1320, 1323 (10th Cir. 1979).

12. United States v. Dyer, 722 F.2d 174 (5th Cir. 1983); In re Grand Jury Proceedings
(Pressman), 586 F.2d 724 (9th Cir. 1978); In re Grand Jury Proceedings, 896 F.2d 1267, 1279
(11th Cir. 1990).

13. In re Grand Jury Proceedings, 814 F.2d supra; In re Grand Jury Proceedings, 632 F.2d 1033
(3d Cir. 1980).

14. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974); United States v. Sellaro, 514 F.2d 114
(8th Cir. 1973), cert. denied, 421 U.S. 1013 (1975).

15. United States v. Beasley, 550 F.2d 261 (5th Cir.), cert. denied, 434 U.S. 863 (1977).

16. In re Grand Jury Proceedings, 632 F.2d supra.

17. United States v. Sells Eng'g Inc., 463 U.S. 418, 431-33 (1983).

18. See In re Grand Jury Subpoena Duces Tecum, 520 F. Supp. 253 (S.D. Tex. 1981).
19. In re Grand Jury Subpoenas, April 1978, 581 F.2d 1103 (4th Cir. 1978), cert. denied, 440
U.S. 971 (1979).

20. United States v. R. Enterprises, Inc., U.S. , (1991); In re Grand Jury Proceedings (Schofield
I), 486 F.2d 85 (3d Cir. 1973); In re Grand Jury Proceedings (Schofield II), 507 F.2d 963 (3d
Cir.), cert. denied, 421 U.S. 1015 (1975).

21. United States v. (Under Seal), 714 F.2d 347 (4th Cir.), cert. denied, 464 U.S. 978 (1983).

22. United States v. Doe, 541 F.2d 490 (5th Cir. 1976).

23. See, e.g., In re Borden, 75 F. Supp. 857 (N.D. Ill. 1948) (subpoena not harassing, despite
delivery of many files under prior subpoenas and fact that all previous investigations of
petitioner indicated innocence).

24. See In re Corrado Bros. Inc., 367 F. Supp. 1126 (D. Del. 1973).

25. United States v. Davis, 636 F.2d 1028 (5th Cir. Unit A Feb. 1981), cert. denied, 454 U.S. 862
(1981).

26. See In re Grand Jury Subpoena Duces Tecum Issued to S. Motors Carriers Rate Conference,
Inc., 405 F. Supp. 1192 (N.D. Ga. 1975).

27. See In re Certain Chinese Family B. & D. Ass'ns, 19 F.R.D. 97 (N.D. Cal. 1956).

28. United States v. Santucci, 674 F.2d 624 (7th Cir. 1982), cert. denied, 459 U.S. 1109 (1983).

29. United States v. R. Enterprises, Inc., U.S. (1991).

30. United States v. Barth, 745 F.2d 184, 189 (2d Cir. 1984), cert. denied, 470 U.S. 1004 (1985).

31. Hale v. Henkel, 201 U.S. 43, 55 (1906); In re May 1972 San Antonio Grand Jury, 366
F. Supp. 522, 530 (W.D. Tex. 1973).

32. Schwimmer v. United States, 232 F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833 (1956).

33. In re Grand Jury Empanelled February 14, 1978, 597 F.2d 851 (3d Cir. 1979).

34. In re Electric & Musical Indus. Ltd., Middlesex, England, 155 F. Supp. 892 (S.D.N.Y. 1957).

35. In re Canadian Int'l Paper Co., 72 F. Supp. 1013 (S.D.N.Y. 1947).

36. See Timberlane Lumber Co. v. Bank of Am., 749 F.2d 1378 (9th Cir.), cert. denied, 472 U.S.
1032 (1984).

37. See Doe v. United States, 487 U.S. 201 (1988).

38. Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971).

39. See Paisley v. CIA, 712 F.2d 686, 696 (D.C. Cir. 1983), modified, 724 F.2d 201 (D.C. Cir.
1984).

40. See Gravel v. United States, 408 U.S. 606, 626 (1972).

41. See ATD Manual III-81 and Division Directive ATR 3300.1.

42. In re Grand Jury Subpoenas Issued to United States Postal Serv., 535 F. Supp. 31 (E.D. Tenn.
1981).

43. Gadaby & Hannah v. Socialist Republic of Romania, 698 F. Supp. 483 (S.D.N.Y. 1988).

44. See In re Special 1977 Grand Jury, 581 F.2d 589 (7th Cir.), cert. denied, 439 U.S. 1046
(1978).

45. United States v. Blasi, 462 F. Supp. 373 (M.D. Ala. 1979); United States v. Grand Jury
Investigation, 417 F. Supp. 389 (E.D. Pa. 1976). Contra In re Grand Jury Subpoena for N.Y.
State Income Tax Records, 468 F. Supp. 575 (N.D.N.Y.), appeal dismissed, 607 F.2d 566 (2d
Cir. 1979).

46. See § C.2.a. and 28 C.F.R. § 50.10; see also ATD Manual III-82 and U.S.A.M. 9-2.161.

47. In re Seiffert, 446 F. Supp. 1153 (N.D.N.Y. 1978); United States v. Nelson, 486 F. Supp. 464
(W.D. Mich. 1980). The prescribed form for such subpoenas is found at Appendix III-1.

48. United States v. Kington, 801 F.2d 733 (5th Cir. 1986), cert. denied, 481 U.S. 1014 (1987);
United States v. A Residence Located at 218 3rd St., 805 F.2d 256 (7th Cir. 1986).

49. In re Grand Jury Proceedings, 636 F.2d 81 (5th Cir. Unit B Jan. 1981).

50. See In re Gren, 633 F.2d 825 (9th Cir. 1980) (grand jury subpoena is not an order); United
States v. Retail Credit Men's Ass'n of Jacksonville, 501 F. Supp. 21 (M.D. Fla. 1980) (grand jury
subpoena is an order).

51. See U.S.A.M. 9-11.141.

52. 28 C.F.R. § 50.10(m).

53. See Memorandum to Sanford M. Litvack, Assistant Attorney General, Antitrust Division,
from Benjamin R. Civiletti, Attorney General, "Subpoenas For Commercial Information
Addressed To The News Media." April 28, 1980.

54. See also U.S.A.M. 9-2.161 and § C.2.a., infra.

55. In general, there is no special judicially imposed requirement that need or relevance be
shown before a lawyer can be compelled to appear before a grand jury. See In re Grand Jury
Proceedings 88-9 (Mia.), 899 F.2d 1039 (11th Cir. 1990).

56. See U.S.A.M. 9-2.161(a) and § C.1.a., infra.

57. Garner v. United States, 424 U.S. 648, 658 n.11 (1976).

58. See In re Wood, 430 F. Supp. 41 (S.D.N.Y. 1977).

59. See Durbin v. United States, 221 F.2d 520 (D.C. Cir. 1954); ABA Project on Standards for
Criminal Justice Standards Relating to the Administration of Criminal Justice 71-98, § 3.1(d).

60. In re Possible Violations of 18 U.S.C. §§ 201, 371, 491 F. Supp. 211 (D. D.C. 1980); United
States v. Mandel, 415 F. Supp. 1033, 1039-40 (D. Md. 1976), vacated, 591 F.2d 1347 (4th Cir.),
aff'd on rehearing, 602 F.2d 653 (4th Cir. 1979) (en banc), cert. denied, 445 U.S. 961 (1980).

61. United States v. Mandujano, 425 U.S. 564, 572-75 (1976); see generally J. Holderman, Pre-
Indictment Prosecutorial Conduct in the Federal System, 71 J. Criminal Law and Criminology 1,
21-23 (1980).

62. See U.S.A.M. 9-11.151.

63. United States v. Jacobs, 547 F.2d 772 (2d Cir. 1977), cert. dismissed, 436 U.S. 31 (1978).

64. United States v. Weiss, 491 F.2d 460, 466 (2d Cir.), cert. denied, 419 U.S. 833 (1974).

65. See United States v. Ryan, 455 F.2d 728 (9th Cir. 1972); In re Grand Jury Subpoena Duces
Tecum (Dorokee Co.), 697 F.2d 277 (10th Cir. 1983).

66. In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973); In re Grand Jury
Proceedings (Schofield II), 507 F.2d 963 (3d Cir.), cert. denied, 421 U.S. 1015 (1975).

67. Fed. R. Crim. P. 17(e)(2).

68. Fed R. Crim. P. 17(e)(2); 28 U.S.C. § 1783; see U.S.A.M. 9-11.140.

69. See ATD Manual I-14 and VII-18 for additional information regarding border watches.

70. See United States v. Gel Spice Co., 601 F. Supp. 1214, 1224 (E.D.N.Y.), aff'd, 773 F.2d 427
(2d Cir. 1985), cert. denied, 474 U.S. 1060 (1986).

71. See U.S.A.M. 1-14.112.

72. See United States v. Kleen Laundry & Cleaners, Inc., 381 F. Supp. 519 (E.D.N.Y. 1974).
73. See United States v. O'Connor, 118 F. Supp. 248 (D. Mass. 1953); In re Pacific Tel. &
Telegraph Co., 38 F.2d 833 (N.D. Cal. 1930).

74. See Durbin v. United States, 221 F.2d 520 (D.C. Cir. 1954).

75. United States v. Miller, 508 F.2d 588, 593 (5th Cir. 1975); see also United States v. Culver,
224 F. Supp. 419 (D. Md. 1963).

76. Fed. R. Crim. P. 6(e)(3)(C)(iii); In re Grand Jury Proceeding (Sutton), 658 F.2d 782 (10th
Cir. 1981).

77. See § H., infra and U.S.A.M. § 9-11.140.

78. 8 Moore's Federal Practice, at ¶ 17.04.

79. Ferrari v. United States, 244 F.2d 132, 141 (9th Cir. 1957).

80. See Harrison v. Prather, 404 F.2d 267, 269 (5th Cir. 1968).

81. In re Electric & Musical Indus. Ltd., Middlesex, England, 155 F. Supp. 892 (S.D.N.Y. 1957);
In re Vankoughnet, 184 F. Supp. 819 (E.D. Mich. 1960).

82. See In re Grand Jury Subpoenas Issued to Thirteen Corps., 775 F.2d 43, 46 (2d Cir. 1985),
cert. denied, 475 U.S. 1081 (1986).

83. See, e.g., United States v. Morton Salt Co., 216 F. Supp. 250, 253 (D. Minn. 1962).

84. Cf. United States v. Johns-Manville Corp., 213 F. Supp. 65 (E.D. Pa. 1962).

85. See § E.1., infra.

86. See Ch. IV, § E.1. for a discussion of impounding orders.

87. United States v. Snyder, 413 F.2d 288, 289 (9th Cir.), cert. denied, 396 U.S. 907 (1969).

88. Blackmer v. United States, 284 U.S. 421 (1932).

89. Id. at 443.

90. United States v. Snyder, 413 F.2d at 289-90.

91. Blackmer v. United States, 284 U.S. 421 (1932).

92. See United States v. Germann, 370 F.2d 1019 (2d Cir.), vacated on other grounds, 389 U.S.
329 (1967).
93. Cf. In re Grand Jury Investigation (Gen. Motors Corp.), 1960 Trade Cas. (CCH) ¶ 69,796, at
77,133 (S.D.N.Y.).

94. It is not clear whether some other grand jury sitting in the district would be sufficient.

95. Shillitani v. United States, 384 U.S. 364, 371 (1966).

96. See 28 C.F.R. 21.7.

97. A sample witness certificate is appended as Appendix III-2.

98. See U.S.A.M., 1-14.122.

99. Fisher v. United States, 425 U.S. 391 (1976); Colton v. United States, 306 F.2d 633, 639 (2d
Cir. 1962), cert. denied, 371 U.S. 951 (1963).

100. In re Shargel, 742 F.2d 61, 62 (2d Cir. 1984); In re Grand Jury Investigation No. 83-2-35,
723 F.2d 447 (6th Cir. 1983), cert. denied, 467 U.S. 1246 (1984); In re Grand Jury Subpoenas,
803 F.2d 493, 496 (9th Cir. 1986), modified, 817 F.2d 64 (9th Cir. 1987); In re Grand Jury
Subpoenas, 906 F.2d 1485, 1488 (10th Cir. 1990); In re Grand Jury Proceedings 88-9 (Mia.), 899
F.2d 1039, 1042 (11th Cir. 1990).

101. Colton v. United States, 306 F.2d at 637.

102. Burden v. Church of Scientology, 526 F. Supp. 44 (M.D. Fla. 1981).

103. Colton v. United States, 306 F.2d at 638.

104. In re Grand Jury Matter (Doe I), 926 F.2d 348 (4th Cir. 1991); In re Grand Jury Subpoena
for Reyes-Requena, 913 F.2d 1118 (5th Cir. 1990); In re Grand Jury Proceedings, 803 F.2d at
498; In re Grand Jury Subpoenas, 906 F.2d at 1488.

105. In re Sealed Case, 737 F.2d 94, 99-100 (D.C. Cir. 1984) (overheard discussion between
client and competitor); In re Walsh, 623 F.2d 489, 494 (7th Cir.), cert. denied, 449 U.S. 994
(1980); In re Grand Jury Proceedings (85 Misc. 140), 791 F.2d 663, 665 (8th Cir. 1986)
(authenticity of client's signature).

106. See In re Grand Jury Proceedings (Jones), 517 F.2d at 1027; In re Grand Jury Proceedings,
Cherney, 898 F.2d 565, 569 (7th Cir. 1990); In re Grand Jury Subpoenas, 803 F.2d supra; In re
Grand Jury Proceedings, 896 F.2d 1267 (11th Cir. 1990).

107. In re Grand Jury Proceeding, 721 F.2d 1221, 1223 (9th Cir. 1983).

108. Hickman v. Taylor, 329 U.S. 495, 508 (1947); Brinton v. Department of State, 636 F.2d
600, 604 (D.C. Cir. 1980), cert. denied, 452 U.S. 905 (1981).
109. In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984); In re Fischel, 557 F.2d 209, 212 (9th
Cir. 1977); In re Ampicillin Antitrust Litig., 81 F.R.D. 395 (D.D.C. 1978).

110. In re LTV Sec. Litig., 89 F.R.D. 595, 602-03 (N.D. Tex. 1981).

111. The Court rejected the "control group" test that was first applied in City of Philadelphia v.
Westinghouse Elec. Corp., 210 F. Supp. 483 (E.D. Pa. 1962).

112. See Leucadia, Inc. v. Reliance Ins. Co., 101 F.R.D. 674, 678 (S.D.N.Y. 1983); In re Grand
Jury Subpoenas Dated Dec. 18, 1981 & Jan. 4, 1982, 561 F. Supp. 1247, 1253-54 (E.D.N.Y.
1982).

113. See United States v. Brown, 478 F.2d 1038 (7th Cir. 1973) (communications between
attorney, client, and accountant not privileged when purpose was to seek accounting services
rather than legal advice); United States v. Cote, 456 F.2d 142 (8th Cir. 1972) (privilege applied
to accountant hired to assist attorney in giving tax advice).

114. SEC v. Gulf & Western Indus., Inc., 518 F. Supp. 675, 683 (D.D.C. 1981).

115. United States v. International Business Machs. Corp., 66 F.R.D. 206, 212 (S.D.N.Y. 1974);
see also FTC v. TRW, Inc., 479 F. Supp. 160, 163 (D.D.C. 1979) (document prepared for
simultaneous review by legal and nonlegal personnel, but not prepared primarily to obtain legal
advice, is not privileged), aff'd, 628 F.2d 207 (D.C. Cir. 1980).

116. Colton v. United States, 306 F.2d 633, 637-38 (2d Cir. 1962), cert. denied, 371 U.S. 951
(1963); In re Ampicillin Antitrust Litig., 81 F.R.D. 395 (D.D.C. 1978).

117. Continental Oil Co. v. United States, 330 F.2d 347, 350 (9th Cir. 1964) (the "joint
defendant" exception applied even prior to indictment).

118. SEC v. Gulf & Western Indus., Inc., 518 F. Supp. at 681.

119. In re Grand Jury Investigation of Ocean Transp., 604 F.2d 672, 675 (D.C. Cir.), cert.
denied, 444 U.S. 915 (1979).

120. Drimmer v. Appleton, 628 F. Supp. 1249, 1251 (S.D.N.Y. 1986).

121. In re Grand Jury Investigation of Ocean Transp., 604 F.2d at 675; United States v.
Mierzwicki, 500 F. Supp. 1331, 1334 (D. Md. 1980).

122. United States v. American Tel. and Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980).

123. In re Grand Jury Investigation of Ocean Transp., 604 F.2d at 675; In re Grand Jury
Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984).
124. Lois Sportswear, USA, Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985);
Mendenhall v. Barber-Greene Co., 531 F. Supp. 951, 955 (N.D. Ill. 1982).

125. International Business Machs. Corp. v. United States, 471 F.2d 507, 511 (2d Cir. 1972),
rev'd en banc, 480 F.2d 293 (2d Cir. 1973), cert. denied, 416 U.S. 980 (1974).

126. In re Sealed Case, 877 F.2d 976, 980-81 (D.C. Cir. 1989); Hercules Inc. v. Exxon Corp.,
434 F. Supp. 136, 156 (D. Del. 1977).

127. Burlington Indus. v. Exxon Corp., 65 F.R.D. 26, 46 (D. Md. 1974).

128. Hercules Inc. v. Exxon Corp., 434 F. Supp. at 156; but see In re Sealed Case, 877 F.2d at
980-81.

129. United States v. Zolin, 491 U.S. 554 (1989); Clark v. United States, 289 U.S. 1, 14 (1933);
In re Sealed Case, 754 F.2d 395, 399-402 (D.C. Cir. 1985); In re Grand Jury Subpoena, 884 F.2d
124 (4th Cir. 1989).

130. In re Sealed Case, 676 F.2d 793, 812-13 (D.C. Cir. 1982); United States v. Calvert, 523
F.2d 895, 909 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976).

131. In re Witness-Attorney Before Grand Jury No. 83-1, 613 F. Supp. 394, 397 (S.D. Fla.
1984).

132. Clark v. United States, 289 U.S. 1, 14 (1933); In re Sealed Case, 676 F.2d at 812; In re
Grand Jury Subpoena, 884 F.2d at 127; In re International Sys. and Control Corp., 693 F.2d 1235
(5th Cir. 1982); In re Antitrust Grand Jury, 805 F.2d 155 (6th Cir. 1986). But see In re John Doe
Corp., 675 F.2d 482, 492 (2d Cir. 1982) (applying probable cause standard).

133. United States v. Zolin, 491 U.S. 554 (1989); see also In re John Doe Corp., 675 F.2d supra;
In re Special September 1978 Grand Jury, 640 F.2d 49 (7th Cir. 1980); In re Grand Jury
Proceedings, 857 F.2d 710 (10th Cir. 1988), cert. denied, 489 U.S. 1074 (1989); In re Grand Jury
Investigation, 842 F.2d 1223 (11th Cir. 1987).

134. United States v. Aronoff, 466 F. Supp. 855, 861-62 (S.D.N.Y. 1979).

135. United States v. Miller, 600 F.2d 498, 501-02 (5th Cir.), cert. denied, 444 U.S. 955 (1979).

136. Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 615 (2d Cir. 1964), cert. dismissed,
380 U.S. 248, 249 (1965); United States v. Miller, 600 F.2d at 501-02; United States v. Exxon
Corp., 94 F.R.D. 246 (D.D.C. 1981)

137. See U.S.A.M., 9-2.161(a) and § A.2.m., supra.

138. Rule 3:08, prosecution function 15. This rule was recently held applicable to federal
prosecutors in Massachusetts. United States v. Klubock, 639 F. Supp. 117 (D. Mass. 1986), aff'd,
832 F.2d 664 (1st Cir. 1987).

139. United States v. Nobles, 422 U.S. 225, 238 (1975); In re Antitrust Grand Jury, 805 F.2d
155, 162-63 (6th Cir. 1986).

140. See United States v. Nobles, 422 U.S. 225 (1975); In re Grand Jury Proceedings, 473 F.2d
840, 845 (8th Cir. 1973).

141. Hickman v. Taylor, 329 U.S. 495, 510-11 (1947).

142. Id. at 505.

143. Diversified Indus. Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977); In re Grand Jury
Investigation, 412 F. Supp. 943 (E.D. Pa. 1976).

144. United States v. Davis, 636 F.2d 1028 (5th Cir. Unit A Feb. 1981), cert. denied, 454 U.S.
862 (1981); In re Grand Jury Proceedings (Sutton), 658 F.2d 782 (10th Cir. 1981); see also In re
Natta, 48 F.R.D. 319 (D. Del.) (privilege extends to materials prepared in anticipation of
proceedings before the Patent and Trademark Office and the Board of Patent Interferences),
aff'd, 410 F.2d 187 (3d Cir.), cert. denied, 396 U.S. 836 (1969).

145. In re Special September 1978 Grand Jury, 640 F.2d 49 (7th Cir. 1980); In re Grand Jury
Investigation, 412 F. Supp. at 948.

146. Soeder v. General Dynamics Corp., 90 F.R.D. 253 (D. Nev. 1980).

147. United States v. Davis, 636 F.2d supra.

148. In re Grand Jury Proceedings, 601 F.2d 162 (5th Cir. 1979).

149. Hickman v. Taylor, 329 U.S. 495, 511 (1947).

150. In re Grand Jury Investigation (Sturgis), 412 F. Supp. 943, 949 (E.D. Pa. 1976); see also
Larkin, Federal Testimonial Privileges § 11.02 n.47 (1983).

151. In re Grand Jury Subpoena Dated Nov. 8, 1979, 622 F.2d 933, 935 (6th Cir. 1980).

152. Hickman v. Taylor, 329 U.S. 495, 511 (1947).

153. Id. at 512-13; In re Antitrust Grand Jury, 805 F.2d 155, 163-64 (6th Cir. 1986).

154. See Larkin, Federal Testimonial Privileges § 11.04 nn.88 & 89 (1983); In re Thompson, 624
F.2d 17, 19 (5th Cir. 1980) (insufficient showing).
155. In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir. 1973); In re Grand Jury
Investigation (Sturgis), 412 F. Supp. 943, 949 (E.D. Pa. 1976).

156. In re Grand Jury Investigation, 599 F.2d 1224, 1231 (3d Cir. 1979).

157. In re Grand Jury Subpoena, 599 F.2d 504, 511-12 (2d Cir. 1979); In re Natta, 410 F.2d 187,
192 (3d Cir.), cert. denied, 396 U.S. 836 (1969); In re Antitrust Grand Jury, 805 F.2d at 164; In
re Grand Jury Subpoena, 524 F. Supp. 357, 363 (D. Md.), aff'd sub nom. In re Doe, 662 F.2d
1073 (4th Cir. 1981), cert. denied, 455 U.S. 1000 (1982).

158. See Upjohn Co. v. United States, 449 U.S. 383 (1981).

159. In re Grand Jury Subpoena, 599 F.2d 504, 510 (2d Cir. 1979).

160. United States v. AT&T, 642 F.2d 1285, 1298 (D.C. Cir. 1980).

161. See Stix Prods., Inc. v. United Merchants & Mfg., 47 F.R.D. 334, 338 (S.D.N.Y. 1969).

162. In re Grand Jury Subpoenas Dated Dec. 18, 1981 and Jan. 4, 1982, 561 F. Supp. 1247, 1257
(E.D.N.Y. 1982).

163. In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981), cert. denied, 455 U.S. 1000 (1982); see also
In re Subpoenas Duces Tecum to Fulbright & Jaworski, 99 F.R.D. 582 (D.D.C. 1983), aff'd, 738
F.2d 1367 (D.C. Cir. 1984).

164. In re Doe, 662 F.2d at 1079 n.4.

165. In re Sealed Case, 676 F.2d 793, 814-15 (D.C. Cir. 1982); In re Grand Jury Proceedings
(FMC Corp.), 604 F.2d 798, 803 (3d Cir. 1979); In re Antitrust Grand Jury, 805 F.2d 155 (6th
Cir. 1986); In re Murphy, 560 F.2d 326, 338 (8th Cir. 1977).

166. In re Sealed Case, 676 F.2d at 814-15; In re International Sys. & Controls Corp., 693 F.2d
1235, 1242 (5th Cir. 1982).

167. In re Special September 1978 Grand Jury, 640 F.2d 49, 63 (7th Cir. 1980); cf. In re Grand
Jury Proceedings, 604 F.2d 798, 802, 803 n.5 (3d Cir. 1979) (if client's crime had been
completed before retaining attorney, then attorney privilege remains intact).

168. In re Special September 1978 Grand Jury, 640 F.2d at 63.

169. 662 F.2d at 1080.

170. Id. See In re Grand Jury Subpoena, 524 F. Supp. 357 (D. Md. 1981).

171. Trammel v. United States, 445 U.S. 40 (1980).

172. In re Snoonian, 502 F.2d 110 (1st Cir. 1974); In re Grand Jury Proceedings, 664 F.2d 423
(5th Cir. Unit B Nov. 1981), cert. denied, 455 U.S. 1000 (1982); Fed. R. Evid. 1101(d).

173. United States v. White, 545 F.2d 1129 (8th Cir. 1976); United States v. Lustig, 555 F.2d
737 (9th Cir.), cert. denied, 434 U.S. 926 (1977).

174. United States v. Snyder, 707 F.2d 139 (5th Cir. 1983).

175. United States v. Lilley, 581 F.2d 182 (8th Cir. 1978). But see United States v. Cameron,
556 F.2d 752, 756 (5th Cir. 1977).

176. United States v. Mathis, 559 F.2d 294 (5th Cir. 1977); United States v. Apodaca, 522 F.2d
568 (10th Cir. 1975).

177. United States v. Lilley, 581 F.2d supra; United States v. Bolzer, 556 F.2d 948 (9th Cir.
1977).

178. Trammel v. United States, 445 U.S. 40 (1980); United States v. Chapman, 866 F.2d 1326,
1332 (11th Cir.), cert. denied, 493 U.S. 932 (1989).

179. United States v. Chapman, 866 F.2d at 1332-33.

180. United States v. Thomann, 609 F.2d 560 (1st Cir. 1979); United States v. Cotton, 567 F.2d
958 (10th Cir. 1977), cert. denied, 436 U.S. 959 (1978).

181. United States v. Smith, 533 F.2d 1077 (8th Cir. 1976); United States v. Lustig, 555 F.2d
supra.

182. United States v. Klayer, 707 F.2d 892, 894 (6th Cir. 1983), cert. denied, 464 U.S. 858
(1984); United States v. Brown, 605 F.2d 389, 396 (8th Cir.), cert. denied, 444 U.S. 972 (1979).

183. See In re Steinberg, 837 F.2d 527, 530 (1st Cir. 1988).

184. In re Grand Jury Investigation, 603 F.2d 786, 788 (9th Cir. 1979).

185. United States v. Lilley, 581 F.2d at 189.

186. See In re Grand Jury Proceedings, 664 F.2d supra.

187. In re Grand Jury Matter, 673 F.2d 688 (3d Cir.), cert. denied, 459 U.S. 1015 (1982). But see
United States v. Armstrong, 476 F.2d 313 (5th Cir. 1973).

188. United States v. Cotroni, 527 F.2d 708 (2d Cir. 1975), cert. denied, 426 U.S. 906 (1976);
United States v. Ammar, 714 F.2d 238 (3d Cir.), cert. denied, 464 U.S. 936 (1983); United States
v. Mendoza, 574 F.2d 1373 (5th Cir.), cert. denied, 439 U.S. 988 (1978); United States v. Kahn,
471 F.2d 191 (7th Cir. 1972), rev'd on other grounds, 415 U.S. 143 (1974); United States v.
Price, 577 F.2d 1356 (9th Cir. 1978), cert. denied, 439 U.S. 1068 (1979).

189. United States v. Clark, 712 F.2d 299 (7th Cir. 1983); United States v. Trammel, 583 F.2d
1166 (10th Cir. 1978), aff'd, 455 U.S. 40 (1980).

190. In re Malfitano, 633 F.2d 276 (3d Cir. 1980).

191. United States v. Smith, 533 F.2d supra.

192. United States v. Cameron, 556 F.2d supra; United States v. Allery, 526 F.2d 1362 (8th Cir.
1975).

193. 502 F.2d at 113; see also In re Grand Jury Proceedings, 443 F. Supp. 1273 (D.S.D. 1978).

194. See also In re Grand Jury Matter, 673 F.2d supra, (promise not to bring an indictment was
inadequate because the Government was free to use the fruits of the testimony before a
subsequent grand jury).

195. In re Grand Jury Investigation, 603 F.2d supra. Given the language of this opinion, there is
some doubt that the Ninth Circuit would adopt Snoonian even for the adverse testimony
privilege.

196. United States v. Doe, 478 F.2d 194 (1st Cir. 1973); see also In re Lochiatto, 497 F.2d 803,
805 n.3 (1st Cir. 1974) (the marital privilege cannot be asserted where both spouses have
immunity and the sole claim is that inconsistent spousal testimony may result in a perjury
prosecution).

197. See Whalen v. Roe, 429 U.S. 589, 602 n.28 (1977).

198. See Mullen v. United States, 263 F.2d 275, 277 (D.C. Cir. 1958); United States v. Wells,
446 F.2d 2, 4 (2d Cir. 1971); In re Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990); United
States v. Webb, 615 F.2d 828 (9th Cir. 1980).

199. United States v. Gordon, 655 F.2d 478, 486 (2d Cir. 1981).

200. See 3 Wharton's Criminal Evidence § 527 (14th ed. 1987).

201. United States v. Arthur Young & Co., 465 U.S. 805 (1984); Couch v. United States, 409
U.S. 322, 335 (1973).

202. United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir. 1961).

203. See In re Grand Jury Subpoena of Santarelli, 740 F.2d 816 (11th Cir. 1984); see also In re
Matthews, 714 F.2d 223, 224 (2d Cir. 1983) (antitrust case -- no privilege against testifying
about in-laws); United States v. Jones, 683 F.2d 817, 819 (4th Cir. 1982) (no privilege for son
testifying about father); In re Grand Jury Proceedings (Starr), 647 F.2d 511, 512-13 (5th Cir.
Unit A May 1981) (no privilege for daughter testifying about mother and step-father); United
States v. Penn, 647 F.2d 876, 885 (9th Cir.), cert. denied, 449 U.S. 903 (1980) (no privilege for
children testifying about mother).

204. See U.S.A.M. 9-23.211 and Ch. V § L.

205. See § A.2.l., supra for a more detailed discussion of these procedures; see also U.S.A.M. 9-
2.161 and ATD Manual III-82 to 83.

206. 408 U.S. at 703-04.

207. See In re Possible Violations of 18 U.S.C. 371, 641, 1503, 564 F.2d 567 (D.C. Cir. 1977)
(Robinson, J., concurring); United States v. Criden, 633 F.2d 346 (3d Cir. 1980), cert. denied,
449 U.S. 1113 (1981).

208. Compare NAACP v. Alabama, 357 U.S. 449 (1958) (disclosure by the NAACP of its
membership rolls); United States v. Citizens State Bank, 612 F.2d 1091 (8th Cir. 1980) (focus of
inquiry on membership information for taxpayer protest groups); Bursey v. United States, 466
F.2d 1059 (9th Cir. 1972) (inquiry on Black Panther party membership information); In re 1st
Nat'l Bank, Englewood, Colo., 701 F.2d 115 (10th Cir. 1983) with United States v. Grayson
County State Bank, 656 F.2d 1070 (5th Cir. Unit A Sept. 1981) (I.R.S. subpoena to determine
tax liability of church minister is unlike subpoena to tax protest group in that it would not affect
church's ability to solicit members or support), cert. denied, 455 U.S. 920 (1982).

209. See Buckley v. Valeo, 424 U.S. 1 (1976); In re Rabbinical Seminary, 450 F. Supp. 1078
(E.D.N.Y. 1978).

210. See Eastern R.R. President's Conference v. Noerr Motor Freight Inc., 365 U.S. 127 (1961);
United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965).

211. Cf. Associated Container Transp. (Australia) Ltd. v. United States, 705 F.2d 53 (2d Cir.
1983) (CID upheld despite claim of Noerr-Pennington defense); SEC v. Wall St. Transcript
Corp., 422 F.2d 1371 (2d Cir.) (SEC subpoena upheld, in part to give Government opportunity to
determine whether target was "bona fide newspaper" under Act granting exemption from SEC
regulation), cert. denied, 398 U.S. 958 (1970).

212. Cf. Associated Container Transp. (Australia) Ltd. v. United States, 705 F.2d at 60.

213. United States v. Grayson County Bank, 656 F.2d supra.

214. See In re Radio Corp. of Am., 13 F.R.D. 167, 171 (S.D.N.Y. 1952).

215. In United States v. R. Enterprises, Inc., U.S. (1991), the Supreme Court provides a detailed
analysis of Rule 17(c)'s reasonableness requirement, yet does not mention the 4th Amendment.
216. See also United States v. Dionisio, 410 U.S. 1, 10-12 (1973) (subpoenas duces tecum are
subject only to the 4th Amendment requirement of reasonableness); United States v. Miller, 425
U.S. 435 (1976) (subpoenas duces tecum are subject to no more stringent requirement than are
"ordinary" subpoenas); Brown v. United States, 276 U.S. 134 (1928).

217. United States v. R. Enterprises, Inc., U.S. (1991); Brown v. United States, 276 U.S. 134
(1928); United States v. Dionisio, 410 U.S. 1 (1973); United States v. Universal Mfg. Co., 525
F.2d 808 (8th Cir. 1975).

218. Hale v. Henkel, 201 U.S. 43 (1906), Schwimmer v. United States, 232 F.2d 855 (8th Cir.),
cert. denied, 352 U.S. 833 (1956); United States v. Gurule, 437 F.2d 239, 241 (10th Cir. 1970),
cert. denied, 403 U.S. 904 (1971).

219. Brown v. United States, 276 U.S. 134 (1928); In re Grand Jury Subpoena Duces Tecum
Issued to S. Motors Carriers Rate Conference, Inc., 405 F. Supp. 1192 (N.D. Ga. 1975); In re
Eastman Kodak Co., 7 F.R.D. 760 (W.D.N.Y. 1947).

220. Brown v. United States, 276 U.S. 134 (1928); In re Eastman Kodak Co., 7 F.R.D. supra;
United States v. Medical Society, 26 F. Supp. 55 (D.D.C. 1938).

221. In re Harry Alexander, Inc., 8 F.R.D. 559 (S.D.N.Y. 1949); In re Borden, 75 F. Supp. 857
(N.D. Ill. 1948).

222. Schwimmer v. United States, 232 F.2d supra; United States v. Medical Society, 26 F. Supp.
supra; In re Borden, 75 F. Supp. supra; In re Radio Corp. of Am., 13 F.R.D. 167 (S.D.N.Y.
1952).

223. See also In re Corrado Bros., 367 F. Supp. 1126 (D. Del. 1973).

224. See Brown v. United States, 276 U.S. 134 (1934); In re Grand Jury Subpoenas Duces
Tecum, 391 F. Supp. 991 (D.R.I. 1975); In re Grand Jury Investigation (Gen. Motors Corp.), 174
F. Supp. 393 (S.D.N.Y. 1959).

225. United States v. R. Enterprises, Inc., U.S. , (1991)

226. In re Linen Supply Co., 15 F.R.D. 115, 118-19 (S.D.N.Y. 1953).

227. See also In re Linen Supply Co., 15 F.R.D. at 118-19.

228. In re Grand Jury Investigation (General Motors Corp.) 174 F. Supp. supra.

229. United States v. Alewelt, 532 F.2d 1165 (7th Cir.), cert. denied, 429 U.S. 840 (1976);
United States v. Gurule, 437 F.2d 239 (10th Cir. 1970), cert. denied, 403 U.S. 904 (1971); In re
Grand Jury Subpoena Duces Tecum, 203 F. Supp. 575 (S.D.N.Y. 1961).
230. Civil Aeronautics Bd. v. Hermann, 353 U.S. 322 (1957); Oklahoma Press Publishing Co. v.
Walling, 327 U.S. 186 (1946); In re 1980 United States Grand Jury Subpoena Duces Tecum, 502
F. Supp. 576 (E.D. La. 1980).

231. Hale v. Henkel, 201 U.S. 43 (1906).

232. United States v. United States Dist. Court, 238 F.2d 713 (4th Cir.), cert. denied, 352 U.S.
981 (1957).

233. United States v. Alewelt, 532 F.2d supra.

234. See In re Certain Chinese Family B. & D. Ass'ns, 19 F.R.D. 97 (N.D. Cal. 1956) (27-year
period unreasonable); In re Radio Corp. of Am., 13 F.R.D. 167 (S.D.N.Y. 1952) (18-year period
approved); In re Borden, 75 F. Supp. 857 (N.D. Ill. 1948) (20-year period approved); In re
United Shoe Mach. Corp., 7 F.R.D. 756 (D. Mass. 1947) (time period reduced from 27 years to
10 years); In re Eastman Kodak Co., 7 F.R.D. 760 (W.D.N.Y. 1947) (26-year period reduced
generally to 10 years).

235. See United States v. R. Enterprises, Inc., U.S. (1991); Hale v. Henkel, 201 U.S. 43 (1906);
see also United States v. Gurule, 437 F.2d at 241.

236. United States v. Loskocinski, 403 F. Supp. 75, 77 (E.D.N.Y. 1975).

237. See In re Grand Jury Subpoenas Duces Tecum, 391 F. Supp. 991, 995, 997 (D.R.I. 1975);
see also In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973).

238. See In re Horowitz, 482 F.2d 72, 79-80 (2d Cir.), cert. denied, 414 U.S. 867 (1973).

239. In re American Medical Ass'n, 26 F. Supp. 58 (D.D.C. 1938).

240. In re United Shoe Mach. Corp., 7 F.R.D. 756 (D. Mass. 1947).

241. See Ch. V § A. for a more detailed discussion of the 5th Amendment privilege against self-
incrimination.

242. In re Grand Jury Subpoena Duces Tecum, 697 F.2d 277, 279 (10th Cir. 1983); In re
September 1975 Special Grand Jury, 435 F. Supp. 538, 544 (N.D. Ind. 1977); United States v.
Quick, 336 F. Supp. 744, 745-46 (E.D.N.Y. 1972).

243. Bellis v. United States, 417 U.S. 85 (1974); United States v. White, 322 U.S. 694 (1944);
Hale v. Henkel, 201 U.S. 43 (1906).

244. Braswell v. United States, 487 U.S. 99 (1988); see United States v. Antonio J. Sancetta,
M.D., P.C., 788 F.2d 67, 74 (2d Cir. 1986); In re Grand Jury, 836 F.2d 150 (3d Cir. 1987);
United States v. Lang, 792 F.2d 1235, 1240-41 (4th Cir.), cert. denied, 479 U.S. 985 (1986); In
re Grand Jury Proceedings (Morganstern), 771 F.2d 143 (6th Cir.), cert. denied, 474 U.S. 1033
(1985); In re Grand Jury Subpoena (85-W-71-5), 784 F.2d 857, 861 (8th Cir. 1986), cert.
dismissed, 479 U.S. 1048 (1987); United States v. Vallance, 793 F.2d 1003, 1005-06 (9th Cir.
1986); In re Grand Jury Proceedings (Vargas), 727 F.2d 941, 946 (10th Cir.), cert. denied, 469
U.S. 819 (1984); In re Grand Jury No. 86-3 (Will Roberts), 816 F.2d 569, 570 (11th Cir. 1987).

245. See e.g., Andresen v. Maryland, 427 U.S. 463, 477 (1976); Fisher v. United States, 425 U.S.
391, 399 (1976); Olmstead v. United States, 277 U.S. 438, 462 (1928).

246. United States v. Doe, 465 U.S. 605 (1984).

247. See In re Steinberg, 837 F.2d 527, 530 (1st Cir. 1988).

248. Braswell v. United States, 487 U.S. 99 (1988); United States v. Doe, 465 U.S. 605 (1984);
In re Custodian of Records of Variety Distributing, 927 F.2d 244 (6th Cir. 1991).

249. Rogers v. United States, 340 U.S. 367 (1951).

250. See United States v. Doe, 465 U.S. 605 (1984) (Act of producing sole proprietor's business
records found to involve testimonial self-incrimination since production concedes the existence,
possession and authenticity of the documents); Andresen v. Maryland, 427 U.S. 463, 473-74
(1976) (act of production of subpoenaed personal records may constitute compulsory
authentication of incriminating information).

251. Wheeler v. United States, 226 U.S. 478 (1913); Wilson v. United States, 221 U.S. 361
(1911).

252. United States v. White, 322 U.S. 694 (1944).

253. Bellis v. United States, 417 U.S. 85 (1974).

254. United States v. O'Henry's Film Works, Inc., 598 F.2d 313, 318 (2d Cir. 1979).

255. Braswell v. United States, 487 U.S. 99 (1988); Hair Indus. Ltd. v. United States, 340 F.2d
510, 511 (2d Cir.), cert. denied, 381 U.S. 950 (1965); see United States v. Richardson, 469 F.2d
349, 350 (10th Cir. 1972).

256. United States v. Antonio J. Sancetta, M.D., P.C., 788 F.2d 67 (2d Cir. 1986); Reamer v.
Beall, 506 F.2d 1345 (4th Cir. 1974), cert. denied, 420 U.S. 955 (1975).

257. In re Two Grand Jury Subpoenae Duces Tecum, 769 F.2d 52, 59 (2d Cir. 1985).

258. Bellis v. United States, 417 U.S. at 86-88.

259. United States v. Mahady & Mahady, 512 F.2d 521 (3d Cir. 1975).
260. United States v. White, 322 U.S. 694, 701 (1944) (denying the 5th Amendment privilege to
an unincorporated labor union); see also Rogers v. United States, 340 U.S. 367 (1951) (treasurer
of Communist Party could not assert privilege as to books and records of party); In re Grand Jury
Proceedings, 633 F.2d 754 (9th Cir. 1980) (trust records are not personal records of trustee); In
re Witness Before the Grand Jury, 546 F.2d 825 (9th Cir. 1976) (no expectation of privacy as to
the records of investment-limited partnerships or joint ventures).

261. 465 U.S. at 613 n.11.

262. See U.S.A.M. 9-23.215; see also Fisher v. United States, 425 U.S. 391, 411 (1976)
(production of accountant's papers in the possession of a taxpayer would not be testimonial self-
incrimination, as the existence and location of the records was a "forgone conclusion").

263. See also In re Kave, 760 F.2d 343 (1st Cir. 1985); In re Grand Jury Subpoena (Lincoln),
767 F.2d 1130 (5th Cir. 1985); In re Grand Jury Proceedings (Morganstern), 771 F.2d 143 (6th
Cir.), cert. denied, 474 U.S. 1033 (1985); In re Grand Jury Subpoena (85-W-71-5), 784 F.2d 857
(8th Cir. 1986), cert. dismissed, 479 U.S. 1048 (1987); United States v. Malis, 737 F.2d 1511
(9th Cir. 1984); In re Grand Jury Proceedings (Vargas), 727 F.2d 941 (10th Cir.), cert. denied,
469 U.S. 819 (1984).

264. See also In re Custodian of Records of Variety Distributing, 927 F.2d 244 (6th Cir. 1991).

265. Grosso v. United States, 390 U.S. 62 (1968); Shapiro v. United States, 335 U.S. 1 (1948);
United States v. Rosenberg, 515 F.2d 190 (9th Cir.), cert. denied, 423 U.S. 1031 (1975).

266. Grosso v. United States, 390 U.S. at 67-68.

267. United States v. Mara, 410 U.S. 19 (1973).

268. Schmerber v. California, 384 U.S. 757, 764 (1966).

269. United States v. Dionisio, 410 U.S. 1 (1973).

270. Schmerber v. California, 384 U.S. 757 (1966).

271. 657 F.2d at 8.

272. See e.g., In re Grand Jury Proceedings United States, 626 F.2d 1051 (1st Cir. 1980); In re
Grand Jury Proceedings, 632 F.2d 1033 (3d Cir. 1980); United States v. MacKey, 647 F.2d 898
(9th Cir. 1981).

273. See also In re Steinberg, 837 F.2d 527 (1st Cir. 1988).

274. See also United States v. Ghidoni, 732 F.2d 814 (11th Cir.), cert. denied, 465 U.S. 932
(1984).
275. Fisher v. United States, 425 U.S. 391 (1976).

276. Couch v. United States, 409 U.S. 322 (1973); In re Grand Jury Subpoena Duces Tecum
Dated May 29, 1987 (Doe), 834 F.2d 1128 (2d Cir. 1987); In re Grand Jury Empanelled
February 14, 1978, 597 F.2d 851 (3d Cir. 1979).

277. Fisher v. United States, 425 U.S. 391 (1976).

 TABLE OF CONTENTS

III. Subpoenas, Part II

D. Boiler Plate/Drafting Tips

1. Forms and Pitfalls
2. Typical General Provisions
E. Compliance
1. Methods of Document Production
2. Government's Right to Original Documents
3. Government's Right to Entire Documents
4. Production in Original Files
5. Costs of Production are Borne by Subpoena Recipient
F. Motion to Quash
1. Grounds
2. Costs of Compliance
3. Burdens of the Parties
4. Time for Filing
5. Appeals
G. Enforcement of Subpoenas
1. What Constitutes Contempt
2. Distinction Between Civil and Criminal Contempt
3. Proof
4. Procedure and Forms
5. Defenses
6. Successive Contempt Citations
7. Appeals
8. Refusal to Testify or Refusal to Answer Certain Questions
H. Forthwith Subpoenas
1. Efficacy of Forthwith Subpoenas
2. Timing of a Forthwith Subpoena; Court Assessment of "Reasonableness"
3. 4th Amendment Questions Raised by Forthwith Subpoenas
4. Alternatives to Forthwith Subpoenas
I. Search Warrants
1. Factors to Consider in Using Warrants
2. Legal Standards
3. Mechanics of Obtaining a Search Warrant
4. Execution of the Search Warrant
5. Use of Seized Items/Chain of Custody
6. Challenges

III. SUBPOENAS

D. Boiler Plate/Drafting Tips

Every subpoena duces tecum should be drafted with the particular facts of the matter under
investigation in mind. The first step in preparing a subpoena duces tecum should be to analyze
the particular facts and necessary elements of the potential violation for use as a checklist and an
outline for the subpoena. This section attempts to point out some of the potential pitfalls in the
drafting of subpoenas and sets forth particular provisions which have been successfully used in
the past.

1. Forms and pitfalls

a. Subpoena form--pitfalls

There are several pitfalls in the printed subpoena form itself which must be avoided. ("Subpoena" here
means the printed form commanding appearance. The "Attachment" which is affixed to the subpoena
form and which is used to demand documents will be discussed in the next section.) (278)

The subpoena must be directed to the appropriate person or entity. The correct name and address
must be used. The subpoena may specify the custodian of the documents, especially in the case
of a partnership or association. However, to avoid any doubt, it should be clearly spelled out in
the heading that the individual specified is merely the custodian and not the subpoenaed party.

A reasonable time must be allowed for the document search.

The time for the document return must be specified as to time zone and/or daylight saving time.

The place (room number and building) for the document return must be clearly stated.

b. Attachment - pitfalls

While the grand jury subpoena form has space for a duces tecum ("and bring with you"), it is
only a few lines and, accordingly, resort must usually be had to an "Attachment" to the form,
noting on the form, "See Attachment," or words of similar purport.(279)

There are myriad substantive problems which arise in drafting an attachment, each of which will
have its own peculiarities depending on the nature of the violation suspected, the industry, the
past experience in this industry, the duration of the suspected conspiracy, etc. The following are
general pitfalls to be avoided which are common to most types of attachments.

In preparing to draft the attachment, it is self-evident that the nature and scope of the
investigation, as well as the primary purpose of the attachment, must be clear to the drafter. The
primary purpose of the attachment is to obtain documentary evidence of the possible violation,
together with other pertinent information, such as the names of persons and their responsibilities,
to be used as the basis for subpoenaing them and other personal information to be used to obtain
Criminal Division clearance if immunity becomes appropriate.

Assuming the staff has considered (and hopefully avoided) the pitfalls listed below (and
undoubtedly many others), the staff should not agonize over the myriad of potential problems it
cannot, at this stage, do anything about. Since the subpoena is usually prepared without
knowledge of the filing system (or lack thereof) of the subpoenaed company or problems
peculiar to its operations, the staff has to rely upon the subpoenaed party to present these
problems for negotiation.(280) Attempting to draft a subpoena to cover every imaginable
contingency could result in an overly long and complex subpoena which, at best, would be
unsatisfactory and, at worst, unreasonable and unclear.

The general pitfalls that may be encountered and can be avoided are discussed in the paragraphs
that follow.

1. Time period. The time period for the attachment should be limited where possible so that
practical compliance is not unnecessarily delayed and burdensomeness will not likely become an
issue.(281) Paragraphs relating to the production of conspiratorial documents should be drafted
with the statute of limitations in mind as a general guideline. Substantially longer time periods
may be justified by the nature of the violation being investigated, the necessity for background
documents and the continuing conspiracy doctrine.
2. Burdensomeness. While burdensomeness is a valid ground for quashing or modifying a
subpoena attachment, it is often impossible when drafting a subpoena to determine the exact
degree of burden which a particular paragraph may entail. The burdensomeness of a particular
paragraph will vary depending upon the time period covered, the nature of the information
requested, and the degree to which the documents are clearly described. When in doubt, it is
usually advisable to request more documents than fewer with the idea of modifying the
particular paragraph when opposing counsel substantiates the difficulty. If the initial subpoena is
too narrowly drawn, a second subpoena with a longer time period or new demands can be
issued.
3. Relevancy. A subpoena attachment may be attacked on the ground that some or all of the
documents requested are irrelevant. The principal pitfall here is that the subpoena requests
documents which would not be indicative either of a violation of the antitrust laws in general or
of those violations specified in the filed letters of authority. Thus, the scope of the letters of
authority should be kept in mind as the subpoena attachment is being drafted.
4. Definitions. Two principal pitfalls arise in the definitions section. First, if terms of art or trade
language are used in the subpoena, it is essential that their full meaning be known, or that they
be carefully defined to include all of the related practices or activities under investigation. In the
latter instance, there is a definite possibility that the person receiving the subpoena may
continue to apply his or the industry meaning to the defined term rather than using the
definition set forth in the subpoena attachment. Second, it is essential that if a common word is
defined in the definitions that it not be used, in a different sense, in the body of the attachment.
For instance, "team" was defined in a subpoena and later used in the subpoena attachment as a
general term rather than as a defined term with a resultant unintended meaning.
5. Repetition. It is important to draft a subpoena attachment so that all of the documents
necessary to establish the potential violation are requested. In drafting the attachment,
however, care should be taken to avoid, where possible, requesting the same documents in
different paragraphs.(282) The danger of "missing" documents can be avoided to some extent by
the use of a "catchall" paragraph which should be very general in scope but exclude all
documents previously requested.

2. Typical general provisions

The following provisions were taken from various subpoena attachments and are illustrative of
the various approaches taken.

a. Definitions of "company" and "association"

"The Company" means the addressee of this subpoena and each of its predecessors, parents,
subsidiaries (wholly-owned or otherwise), affiliates, and other entities controlled by it.
or

The term "the Company" means the business entity to which this subpoena is addressed, its
predecessors, successors, affiliates, subsidiaries, and its parent organization, if any.

or

"Company" means the corporation, partnership or individual proprietorship upon which this
subpoena is served, its predecessor organizations, and its divisions and subsidiaries.

or

The term "the Company" means the corporation upon which this subpoena is served and its
parents, subsidiaries, affiliates, divisions, and operating management and purchasing units or
organizational entities, and the predecessors of any of them.

or

"Your company" means the corporation on which this subpoena is served, successors, parent
organization, if any, and its affiliates and controlled subsidiaries and wholly-owned subsidiaries
engaged in the manufacture, sale, or distribution of       .

or

"Association" means (name) Association or any other affiliated or predecessor group of [describe
members], whether formal or informal.

b. Definitions of documents

The term "documents" means originals unless otherwise specified, and copies when originals are not
available, in the possession, custody, or control of the Company, or any officer, director, agent or
employee thereof, including but not limited to the following: correspondence, mailing lists, envelopes,
memoranda, notes, agenda of meetings, minutes of meetings, summaries, outlines, studies, surveys,
reports, catalogs, drafts of agreements and contracts, agreements, contracts, microfilm, magnetic tapes,
punch cards, recording discs, and any other instrument conveying information by mechanical, electronic,
photographic, or other means. The term "documents" also includes copies which are not identical
duplicates of the originals because of notes made upon the original or otherwise.
or
The term "documents" means all writings of every kind, including letters, telegrams,
memoranda, reports, studies, calendar or diary entries, minutes, pamphlets, notes, charts,
tabulations and records of meetings, conferences and telephone or other conversations or
communications in the possession, custody or control of the company, or any of its officers,
directors, employees, or agents, made, sent or received during the period from       to date of
service of this subpoena. The term "documents" also includes reproductions or film impressions
of any of the aforementioned writings as well as copies of documents which are not identical
duplicates of the originals, and copies of documents of which the originals are not in the
possession, custody or control of the company. The term "documents" further includes all punch
cards or other cards, tapes, disks or recordings used in data processing, together with the
programming instructions and other written material necessary to understand or use such punch
cards, tapes, disks or other recordings.

c. Time period

Each paragraph of this subpoena (unless otherwise specified herein) covers the period from date up to
and including the date of service hereof.

d. Claim of privilege by a subpoenaed party

While a subpoena duces tecum cannot compel the production of privileged documents, the staff
may be able to require the identification of the documents which are claimed to be privileged by
a subpoenaed party.(283) Different subpoena paragraphs seeking information with respect to
documents which are alleged by the subpoenaed party to be privileged are set forth below:

Any documents withheld on a claim of privilege must be preserved. If any document is withheld under
any such claim, the Company shall urnish an affidavit, signed by the person responsible for supervising
the Company's compliance with this subpoena, identifying each document by: (i) the author(s), (ii) the
addressee(s), (iii) each person to whom a copy was addressed, and all other persons to whom such
document or its substance was disclosed, together with their job titles, (iv) the date and the subject
matter of the document, (v) the number of pages, (vi) the current location of the document, (vii) the
basis on which the privilege is claimed, and (viii) the paragraph of the subpoena to which the document
responds.

or

Your firm is required to bring and produce before the grand jury all of the foregoing documents,
including any documents which your firm claims to be privileged. Your firm may assert such
privilege before the grand jury. If your firm elects to comply with this subpoena in the manner
set out in Note 1 (by mail), supra, please furnish a list identifying each document in respect to
which a claim of privilege is made, and setting out for it the following information: date, sender,
recipient, persons to whom copies were furnished, subject matter, and the bases on which
privilege is claimed.
 e. Documents to be produced - articles of inorporation and by-laws - company
identification

Such documents as will show the full Company name, home office address, formal organization, date
and place of its formation, any changes in the Company's name or structure and any additional names
used by the Company in the conduct of its business.
or

Such documents (or, in lieu thereof, a certified statement of the Company) as will show:

1. the full Company name, home office address, and form of organization (e.g., corporation,
partnership or individual proprietorship); and
2. the names and addresses of all divisions, subsidiaries, regional offices or other subdivision of the
Company responsible for the sale of [the product].

f. Documents to be produced--annual reports

Each annual report of the Company for the period from January l, 1965 to the date of this subpoena.

Drafting Tip: The annual reports of public corporations may not always contain the detailed
financial information which a thorough investigation may require. In such a case, the following
paragraph might be necessary:

Each annual report of the Company and each annual financial statement (including, but not limited to,
balance sheets, profit and loss statements, and income statements) of the Company for the period from
January l, 1980 to the date of this subpoena.

g. Documents to be Produced--Names and positions of people, officers and

directors
1. General

Such documents as will show:

The full name, current home and business addresses and telephone numbers, date of birth, social
security number, the account number of each Company credit card, positions, dates of service in each
position, duties and responsibilities in each position, termination date, if applicable, and the reasons for
such termination, of each officer and director of the Company;

2. Job Description

Such documents as will show the job description for each of the persons identified in documents
demanded by [preceding paragraph].

3. Certain Job Responsibilities

Such documents as will show the full name, current home and business addresses and telephone
numbers, date of birth, social security number, the account number of each Company credit card,
positions, dates of service in each position, duties and responsibilities in each position, annual salary and
bonuses, termination date, if applicable, and the reasons for such termination, of each officer, employee
or other representative of the Company whose duties and responsibilities have related, in whole or in
part, to the marketing, pricing, sale or distribution of      products;
or

Such documents (or, in lieu thereof, a certified statement of the Company) as will show the
names and addresses of the officers and directors and those general managers and sales managers
whose responsibilities include selling [the product] in the trading area, together with the dates of
their service in their respective positions for the period of time covered by this subpoena.

or

Such documents as will show the name, current home and business addresses, date of birth,
social security number, positions, dates of service in each position, termination date, if
applicable, and the reasons for such termination, of each employee of the Company who served
as a secretary to, or performed secretarial or stenographic services for, each of the persons
identified in response to Demand 11(b) of this subpoena;

h. Documents to be produced--day books, expense vouchers

1. Day Books, etc.(284)

All appointment books, desk calendars, and diaries, wherever located, of each person identified in
documents demanded by paragraph       for the period from       to the date of this subpoena.
or

All appointment records and books, reminders, note pads, telephone call books, calendars,
diaries, and day books maintained and used in connection with Company business by each
person named in response to paragraph       herein.

2. Expense Vouchers

Such documents as will show the transportation, hotel, entertainment, and other expenses incurred on
behalf of the Company by each person named in response to paragraph       herein.

The requests for day books and expense records may also be combined:

All appointment books and records, reminder pads, notepads, diaries, calendars, day books, telephone
directories, telephone call logs and travel and expense records (together with the documents attached
thereto or in support or explanation thereof) used by or maintained for, in whole or in part, by each
person identified in response to Demand       of this subpoena.
 i. Request for identification of documents

Please identify each document produced in response to this subpoena with the initials of the Company
and number each document consecutively, commencing with number 1. These markings should appear
in the lower right-hand corner of each document. It would also be appreciated if you would place the
documents called for by each paragraph of this subpoena in a separate file folder or other enclosure,
which should be marked with the name of your Company, date of the subpoena, and the paragraph of
the subpoena.

Experience has proven that this system of document control will insure the prompt return of the
documents to you when they are no longer required.

j. Requests for related or attached documents

In an effort to ensure that all documents that relate to a responsive document are produced so as
to put the demanded document in context, subpoenas may instruct the recipient that:

documents attached by staples, paper clips, tape or otherwise to each other should not be separated.

and that:

documents not otherwise responsive to the provisions of this subpoena shall be produced if such
documents are or were attached to, or related to, documents which are called for by this subpoena,
including, but not limited to, routing slips, transmittal memoranda or letters, comments, evaluations, or
similar documents.(285)

All documents that respond, in whole or in part, to any paragraph of this subpoena shall be
produced in their entirety. The documents submitted should be grouped according to the
individual paragraph or sub-paragraph of this subpoena to which they are responsive. Documents
that in their original condition were stapled, clipped or otherwise fastened together, shall be
produced in such form. To facilitate the maintenance and return of documents, please mark each
document (or the first page of the document if it consists of more than one page) with the letters
. These should be placed so as not to obscure any information on the document.

k. Optional means of supplying certain information

The staff may wish to offer the addressee the option of responding to certain demands with
certified written statements rather than by producing documents. Demands that often lend
themselves to this option include those relating to name, address, and organization of the
Company and identification of the Company's products, facilities, sales areas, personnel,
customers, and trade association affiliations. If this option is offered, it is important to preserve
your right to production of the demanded document in the future. Accordingly, the subpoena
may contain the following instruction:
In lieu of the documents called for in those paragraphs of this subpoena marked with an asterisk (*), a
written statement setting forth the information demanded, prepared by a duly authorized officer of the
Company and certified by him to be truthful and accurate, may be submitted, provided that the
documents demanded are maintained intact and available for possible later production under this
subpoena.

l. Methods of compliance

Frequently, a party is given the option of producing subpoenaed materials before the grand jury
by mail or in the office of the staff. Such an option is generally given in a letter to the
subpoenaed party.(286) However, the paragraphs set forth below have been used in subpoena
attachments and apparently have not been questioned by subpoena recipients or by the court.
Care should be taken to set forth the option in a separate section of the subpoena attachment and
to provide, in substance and beyond any doubt that, if compliance is made by mail or in the
office of the staff, such compliance is at the sole discretion of the subpoenaed party. Moreover,
staff must ensure that they do not waive the right to call an appropriate witness before the grand
jury to respond to questions concerning subpoena compliance if that should prove to be
necessary.

Compliance with this subpoena may be by either of the following methods, the election of which shall
be within addressee's sole discretion:

a. Compliance by the appearance of an authorized representative of Addressee before the grand

jury at the time and place stated, who will bring with him all documents required to be
produced by this subpoena, or
b. Compliance by delivery or mailing by certified mail all documents called for in this subpoena to:

[name and address]

This method of compliance may be used provided that: (a) notice of Addressee's election
to comply by this method is received by the above office at least ten (10) days prior to the
date for appearance before the grand jury; (b) the documents delivered or mailed are
accompanied by a notarized affidavit in the form attached hereto; and (c) documents must
be received at said office on or before the date for appearance before the grand jury. If
this method of compliance is elected by Addressee, personal appearance before the grand
jury at the time and place stated need not be made.

It is requested that the documents be numbered serially, each number to be preceded by at least
three capital letters from the initial letters of the words composing the exact name of Addressee.

or

The subpoena attached hereto and legal procedures thereunder require Addressee (1) through an
authorized knowledgeable representative, to appear before the grand jury at the time and place
set; (2) to produce before the grand jury all documents of Addressee described in Appendix A of
this subpoena (except that certain paragraphs of Appendix A by their express terms permit
Addressee at its sole election to submit a statement, certified by a proper official of Addressee,
setting forth the information shown in the documents called for by those paragraphs, in lieu of
production of the documents themselves); and (3) to identify and authenticate all documents so
produced.

The representative of Addressee appearing before the grand jury will be questioned under oath
regarding methods of compliance and whether all documents described in Appendix A have been
produced. Under this method of compliance, all documents described in Appendix A should be
brought before the grand jury, including any document with respect to which Addressee will
claim privilege. Addressee may then assert any such privilege before the grand jury and withhold
the specific documents involved or may waive its privilege and release such documents to the
grand jury.

If compliance before the grand jury is elected, all documents should be numbered consecutively,
with the symbol "      " preceding all said numbers, prior to Addressee's appearance. Numbering
in the suggested manner will properly identify the documents produced by Addressee, and will
facilitate their handling and return.

The following optional method of compliance is extended to Addressee: At its sole election, and
in lieu of a physical appearance and production of documents before the grand jury, Addressee
may comply with the subpoena by mail (or other delivery), providing each of the following
prerequisites are met:

a. Notice is given to the Antitrust Division 10 days prior to the date Addressee is scheduled to
appear before the grand jury;
b. Documents called for (full compliance) must reach the Antitrust Division on or before the date
Addressee is scheduled to appear before the grand jury (or on or before such other date agreed
upon by Addressee and attorneys for the Antitrust Division);
c. Documents produced by mail should be numbered in consecutive order with the symbol "      "
preceding all said numbers;
d. Documents produced must be accompanied by a notarized affidavit of the official of Addressee
responsible for the actual compliance with this subpoena by Addressee, identifying said
documents by number and certifying that they are all the documents called for, that they
constitute full compliance with the demands of the subpoena, and that no documents (except as
provided in subparagraph (e) below) have been withheld;
e. If Addressee withholds any document described in Appendix A under a claim of privilege,
Addressee must furnish a list signed by the attorney for Addressee, listing the following
information with respect to each document withheld upon the ground of privilege (furnishing
the information required in this subparagraph will not be asserted by the Department of Justice
to be in itself, a waiver by disclosure of any otherwise valid privilege):
i. the place, approximate date, and manner of recording or otherwise preparing the
document;
ii. the name and title of sender; and the name and title of recipient of the document;
iii. the name of each person or persons (other than stenographic or clerical assistants)
participating in the preparation of the document;
 iv. the name and corporate position, if any, of each person to whom the contents of the
document have heretofore been communicated by copy, exhibition, reading, or
substantial summarization;
v. a statement of the basis on which privilege is claimed and whether or not the subject
matter of the contents of the document is limited to legal advice or information
provided for the purpose of securing legal advice;
vi. the paragraph number of Appendix A to which the document is responsive;
vii. the identity and corporate position, if any, of the person or persons supplying the
attorney with the information requested in subsections (i) through (vi) above.
f. Documents produced under this optional method of compliance should be delivered or mailed
to the following address: (address)(287)

m. Substantive provisions

Since the nature of antitrust grand jury investigations varies so greatly from matter to matter, it is
not possible to cover the spectrum of substantive demands that would be applicable in each
conceivable type of matter. Examples of most types of demands are available in the Division
files.(288)

Each demand should be tested for every conceivable interpretation, and care should be taken not
to broaden the subpoena inadvertently to take in a multitude of unwanted documents. This most
often occurs in asking for pricing or sales documents, and unwittingly covering all invoices,
purchase orders, etc. If in doubt, it is better to err on the side of caution and inclusiveness, since
private counsel will, in most cases, call unforeseeable problems to the staff's attention and they
can be worked out at that time. If the subpoena is drawn too narrowly, it is unlikely that counsel
will call the loopholes to the staff's attention, and it is likely that counsel will, if given the
chance, employ an overly technical and narrow reading of the demand to exclude what he can
from compliance.

Finally, where the staff has knowledge of specifically identifiable substantive or conspiracy-
related documents, through prior investigation or otherwise, the broader demands of the
subpoena should not be relied on exclusively for their production. Such documents should be
identified clearly by date, description, addressor, addressee, etc., and demanded specifically,
since it is not uncommon for defense counsel, in interpreting a subpoena, to find in broad generic
type demands a vehicle for omitting production of crucial documents which do not fit four
square into the broad demand.

n. Document destruction provisions

1. Document Destruction Practices

Such documents as will show the Company's practice, procedure or policy with respect to the
destruction of documents, for the period from (date) to the date of this subpoena.

2. Removal and Alteration Definitions

In the event that the paragraphs set out in (3) below are used, the following should be inserted in
the "Definitions" Section:

"Removal" refers to the destruction or mutilation of documents previously in the possession, custody, or
control of the Company, and/or the taking and carrying away, whether authorized or not, of documents
from the possession, custody, or control of the Company.

"Alteration" refers to the alteration, modification, censorship, deletion, addition or the changing
in any other manner of documents which are in the possession, custody, or control of the
Company, or which have been subject to removal (as defined above).

3. Removal and Alteration

For the period from (date) to the date of this subpoena, all documents which relate to the removal (as
defined herein) of documents falling within the description of any paragraph of this subpoena, including,
but not limited to, the identity of the person or persons authorizing the removal, the identity of the
person or persons participating in the decision to effect such removal, the date of each such decision,
the date of each such removal, the identity of the persons carrying out such removal, the means used to
accomplish such removal, and any other circumstances concerning the removal.

For the period from (date) to the date of this subpoena, all documents which refer or relate in any
way to the alteration (as defined herein) of documents falling within the description of any
paragraph of this subpoena including, but not limited to, the identity of the person or persons
authorizing the alteration, the identity of the person or persons participating in the decision to
effect such alteration, the date of each such alteration, the identity of the persons carrying out
such alteration, the means used to accomplish such alteration, and any other circumstances
concerning the alteration.

For the period from (date) to the date of this subpoena, all documents which, but for alteration
(as defined herein), would have been produced pursuant to any paragraph of this subpoena.(289)

Paragraphs relating to destruction of documents and paragraphs concerning the removal or

alteration of documents may be combined.

All documents which refer or relate to any actual, suggested or contemplated policy, plan, procedure,
instruction, direction or request concerning the retention, destruction, alteration, removal, secrecy or
confidentiality of any documents or the non-commitment to writing of any type of information.

E. Compliance
1. Methods of document production (290)
a. To grand jury

Technically, compliance with a subpoena duces tecum is made by the presentation of the
documents called for by the subpoena to the grand jury at the place and time specified. Although
there has been some relaxation in submission procedures, as set forth below, a subpoenaed party
may insist that his documents be submitted only to the grand jury sitting as a whole.(291)

Some staffs prefer to have subpoenaed documents produced before the grand jury rather than in
the office of the staff conducting the investigation. This is most likely to be appropriate if a small
number of documents are involved. If the subpoenaed party is a prospective defendant or the
representative of a prospective corporate defendant, he may be more impressed with the serious
nature of the proceeding than would be the case if the documents were produced either in person
or by mail in the office of the staff. Further, the grand jury itself will have more of a feeling of
involvement.

Additionally, the staff will have an immediate opportunity to ascertain by appropriate

questioning whether complete subpoena compliance has been made and, where deficient, to learn
the reasons therefor and request that such additional compliance be made as is appropriate.
However, it is sometimes difficult to establish facts regarding the completeness of a search
before the staff has had an opportunity to review the subpoenaed documents. Therefore, it may
be more useful to save the questioning of the document custodian until after the staff has
conducted its document review.

The date upon which documents must be produced should be sufficiently beyond the date of
service of the subpoena to allow the subpoenaed party to make the required file search and
compile the documents demanded.(292)

b. To staff

The preferred practice in the Division is to give the subpoenaed party the option of producing the
documents before the grand jury or in the office of the staff conducting the investigation.(293) If
the latter procedure is followed, attorneys should request the subpoenaed party to number the
documents and to submit an affidavit setting forth in substance:

a. the name of the person or persons who made the search of the company's files for the
documents called for in the subpoena, and the location of the files searched;
b. that a complete and comprehensive search was made for the documents called for in the
subpoena;
c. that all documents which are responsive to the subpoena are included in the company's return;
d. that the documents submitted are authentic and genuine; and
e. which documents are produced under each paragraph of the subpoena, and under which
paragraphs of the subpoena no documents are produced.

In some instances, at the request of the staff, the affidavit has provided, in substance, that the
documents submitted were prepared in the regular course of business at the time of, or a
reasonable time after, the event, act, transaction, etc., recorded in the documents and were taken
from files maintained in the regular course of business. Such a provision may amount to
substantive testimony that goes beyond mere testimony as to subpoena compliance. Although
probably undesirable under the old Immunity Act, there appears to be no reason under the 1970
Act why a request for such a statement in the affidavit should not be made.
Production of the required documents in the staff's office generally saves time, inconvenience,
and expense -- both for the staff and the grand jury. This is particularly true where a large
volume of documents is anticipated. On the other hand, if a second or follow-up subpoena is
involved and staff has had compliance problems with the company with respect to the first
subpoena, then it may be preferable to have the documents delivered to the grand jury and to take
the testimony of the document custodian. But absent this type of situation or other misgivings by
the staff which would call into question good faith subpoena compliance, it is usually more
convenient and just as effective to permit the documents to be delivered to the staff's offices
under an affidavit of search compliance.

If production in the staff's office is permitted, it should be carefully explained that such
production is at the request or option of the subpoenaed party; a subpoena cannot compel the
production of documentary material except before the grand jury itself. In addition, the staff
should be sure to retain the right to have the custodian appear before the grand jury at a later
date, should that prove to be necessary.

If the documents are produced in the staff's office, the subpoenaed party will sometimes request a
written statement that the documents will be treated the same as if they had been physically
produced before the grand jury. There would seem to be no objection to such a limited
commitment by the staff.

c. Tabulations or compilations in lieu of documents

A subpoena often will require the production of statistics or other data which can be presented
more conveniently in a tabulation or compilation than by the production of documents containing
such information. In such instances, either in the attachment to the subpoena or in a conference
with counsel, the subpoenaed party may be given the option of producing the documents or a
certified statement that contains a tabulation or compilation.(294)

The propriety of this practice was upheld in United States v. Owens-Corning Fiberglass Corp.,
271 F. Supp. 561 (N.D. Cal. 1967). Among other things, the defendants' officers argued that they
were denied due process in that the Government purposely made the burden of complying with
the subpoenas so onerous that the defendants would have no choice but to submit compilations.
The court stated that the burden was on the defendants to object properly to an unreasonable
subpoena before complying in a manner designed to suit their convenience.(295)

d. File examination by Department

In lieu of production of subpoenaed documents before the grand jury or in the office of the staff,
in some limited instances the staff may offer to make a search of the subpoena addressee's files
to alleviate the burden of compliance. Two courts have refused to quash subpoenas as oppressive
when the Government attorney offered to make (or have made) file searches in the offices of the
addressee.(296) Depending upon the circumstances, the search may be made by the FBI or the staff
assigned to the matter.(297)

e. Discretion of staff as to method

The preferred method of subpoena compliance depends upon the facts and circumstances of each
grand jury investigation, including but not limited to the workload of the staff, the cost of travel
to the site of the grand jury, the expense of convening the grand jury and the cost of transcripts,
the attitude of the party subpoenaed, the nature and amount of material subpoenaed, etc. The
staff should take all pertinent factors into consideration and arrive at a decision based on the
exercise of its sound discretion.

If any concession is granted to a party under subpoena, care should be taken to treat other parties
in similar circumstances in the same manner. Although subpoenas are rarely contested on the
basis of denial of equal protection under the due process clause of the 5th Amendment, the
possibility of such an attack always exists. In the face of such a challenge, the Government
attorneys conducting the investigation must be prepared to show that either there has been no
discrimination in their enforcement of the subpoena, or, if so, that the discrimination is rationally
based on the differing circumstances of each party under investigation.

Any deviations from the usual manner of compliance before the grand jury, any changes in the
time and place of compliance shown on the face of the subpoena, and any modifications of the
subpoena attachment, should normally be covered in writing. A letter setting forth the
arrangements, to which there is no objection, is generally sufficient for this purpose.

2. Government's right to original documents

Corporate counsel often submit or offer to submit copies of documents rather than the originals
in compliance with a subpoena duces tecum. The practice is usually the result of a prior
agreement between corporate and Government attorneys or a recognition that the demand for
originals, after copies have been supplied, necessarily entails a delay in the grand jury
investigation.

Copies of documents are often unsatisfactory from a strictly investigative standpoint. Carbon or
photostatic copies in corporate files, or copies of documents on which red, yellow or lead pencil
notations have been made are frequently illegible or may be omitted entirely. Writing on the
back of originals may not be copied. Further, erasure of notations on original documents may not
be discernible on the copies. Opportunities for the alteration of documents are thus enhanced.
Copies may also prove unsatisfactory for the confrontation of grand jury witnesses. A witness
may more readily disavow knowledge of a copy than of the original.

Possession of copies of documents rather than originals may also pose additional evidentiary
problems at the time of trial. The originals in the control of the corporation during the grand jury
investigation, may be misplaced or, as happened in one case, "burglarized." In such cases,
Government attorneys must overcome the best evidence rule and problems of authentication
before the copies can be admitted at trial. Although the Government will generally prevail on
these issues if the loss is beyond the control of the Government, an additional burden and delay
is interjected into the process.

The staff should exercise its discretion as to whether it will demand originals or accept copies.(298)
Generally, original documents should be required in the absence of a strong showing by the
subpoenaed party for the necessity of submitting copies. If the staff determines that originals
rather than copies should be submitted, the subpoena duces tecum must unambiguously call for
the originals (either as a separate note or within the definition of "documents"). Then, if copies
are submitted to the grand jury, the Government attorneys should immediately demand the
originals.(299)

In In re Grand Jury Proceedings, 1972 Trade Cas. (CCH) ¶ 73,826, at 91, 483 (S.D. Ohio), the
court upheld the Government's right to the original documents based on Fed. R. Crim. P. 17(c).
The rule states generally that the Government is entitled to the books, records, etc., requested.
Therefore, the specific items must be produced if the demand calls for originals. The court
stated:

Rule 17 is intended to obtain witnesses and documents for use as evidence, 1 Federal Practice and
Procedure (Crim.) § 271, p. 539 (1969), and, generally, original documents must be produced, if available
at a criminal prosecution. The government points out other good reasons for requiring originals: to
inspect the color of the writing, penciled notations, stamps and other physical characteristics; for
authentication before the Grand Jury, and to refresh the recollection of witnesses before it; and to
safeguard the material for possible use at trial.

If the staff accepts copies, the subpoenaed party should be required to number and identify the
copies, by initials or otherwise, and to stipulate, in substance:

1. That the subpoenaed party will keep, maintain, and otherwise preserve the originals, and, upon
request, will submit such originals to Government counsel at any time during the course of the
investigation or in connection with any subsequent legal proceedings to which the United States
is a party arising from said investigation;
2. That the copies are authentic and genuine copies of original documents in the files of the
subpoenaed party; and
3. That the subpoenaed party will at no time in legal proceedings brought by the United States
contest or deny the authenticity and genuineness of such copies and will waive the "best
evidence" rules as to such copies.

Further, it is good practice to insist that the original documents be produced on a temporary basis
so that the copies can be checked for accuracy and completeness. This is a wise precaution since,
as pointed out earlier, written notations appearing on the original documents may have been
omitted in the copying process. Additionally, alterations are more readily ascertained when the
originals are compared with the copies.

3. Government's right to entire documents

Where the subpoena is reasonable, and the particular document called for by the subpoena is
relevant to the grand jury investigation, then the entire document must be produced.(300) A
subpoenaed party cannot require "a line-by-line justification for the production of a generally
relevant document."(301) Thus, it follows that even if the excised material pertains to trade secrets
or confidential corporate information, it must be produced.(302)
 4. Production in original files

On occasion, staffs have drafted subpoenas to require the production of the file folder or face of
the file in which each responsive document is contained. One method is to provide in the
definition section of the subpoena that "Documents" includes the files and folders tabs associated
with each original and copy. Reference to the title or other identification appearing on the file or
folder often serves to place the responsive document in context and provides some indication of
the manner in which the subpoena addressee's files are maintained.

Other staffs have included an instruction in their subpoenas that simply requires that subpoena
recipients divide and mark the responsive documents so as to identify the file from which the
documents were obtained. A typical instruction in this regard is:

. . . . The documents submitted should be grouped according to the individual paragraph or sub-
paragraph of this subpoena to which they are responsive and should be subdivided and marked so as to
identify the file from which the documents were obtained.

5. Costs of production are borne by subpoena recipient

The Government is generally not required to reimburse a subpoena recipient for its costs in
complying with the subpoena.(303)

6. Production by document custodian

The corporate representative who delivers the documents to the grand jury should be
knowledgeable as to the completeness of compliance and the search which was conducted and
able to answer questions, if any, relative to these areas. The corporation has an obligation to
designate a representative who does not have a 5th Amendment problem.

In addition, the custodian may be questioned about deficiencies in compliance and the reasons
therefore and instructed to make any appropriate additional compliance. As stated in In re
Chilcote Co., 9 F.R.D. 571, 573 (N.D. Ohio), aff'd sub nom. A.A. Chilcote v. United States, 177
F.2d 375 (6th Cir. 1949):

It was the duty and responsibility of the president as chief executive officer of the corporation either to
present himself or to send such officer or responsible representative of the corporation who could
respond to the requirements of the subpoena, and he or the one selected by him should have attended
the session of the Grand Jury on the date fixed by the subpoena and awaited questioning, dismissal or
other action by that body.

...

A corporation only can act or respond by and through its responsible executives and certainly not
through a messenger when a subpoena calls for attendance and testimony.
Although this case involved a corporation, its reasoning, of course, is equally applicable to other
types of organizations.

Obviously, where a person appears as a witness in a custodial capacity, the staff should limit its
interrogation to his custodial activities and responsibilities.

F. Motions to Quash
1. Grounds

A party may move under Fed. R. Crim. P. 17(c), to quash a grand jury subpoena on the grounds
that it lacks specificity or is burdensome or upon claims of constitutional or common law
privilege or Government misconduct or harassment.(304)

Courts have applied the 4th and 5th Amendments and Fed. R. Crim. P. 17(c), to limit subpoenas
duces tecum. Assuming the 4th Amendment is applicable to grand jury subpoenas,(305) the
principal limitation is the prohibition against "unreasonable searches and seizures" which is
applicable to corporations as well as individuals. The 5th Amendment's prohibitions against self-
incrimination generally protect only individuals and, to a limited extent, sole proprietorships.
Sole proprietorships are entitled to 5th Amendment protection only for purely private or
personal, as opposed to business, interests. Officers of a corporation, including closely-held
corporations, may not object to the disclosure of corporate records, even if the act of production
might prove to be personally incriminating.(306) Rule 17(c), which provides that a court "on
motion made promptly may quash or modify the subpoena if compliance would be unreasonable
or oppressive," can also be used to limit subpoenas duces tecum.

The limitations on the scope of a subpoena duces tecum may be generally summarized as

follows. It must not be too broad and sweeping.(307) The documents sought must have some
relevance to the investigation being conducted.(308) The subpoena must be limited to a reasonable
time.(309) The documents requested must be described with sufficient definiteness so that the
entity subpoenaed may know what is wanted.(310) The burden of complying with the subpoena
must not be too great.(311) The subpoenas may not be used to secure privileged communications.
(312)
Trade secrets may be obtained because the rules of secrecy of grand jury proceedings will
protect the confidentiality of such secrets.(313) In rare instances, a subpoena may be quashed
because it was being used to harass or intimidate the subpoena recipient or because of other
Government misconduct.(314)

Subpoena recipients have unsuccessfully asserted several other arguments in an attempt to avoid
compliance. In In re Dymo Industries Inc., 300 F. Supp. 532 (N.D. Cal. 1969), aff'd, 418 F.2d
500 (9th Cir.), cert. denied, 397 U.S. 937 (1970), the grand jury subpoena was attacked because
it was issued by the Antitrust Division. The court held that an investigation conducted at the
initiative of the Department of Justice is and always has been a proper function of the grand jury.
Grand jury subpoenas also have been attacked without success on the ground that no probable
cause existed supporting the demand.(315) A grand jury is authorized to investigate prior to a
determination of probable cause, and, in fact, in order to make this finding.(316)
Where Division attorneys, in the course of a preliminary investigation, interviewed persons who
were later subpoenaed in an ensuing grand jury investigation, the court refused to quash the
grand jury subpoenas on the ground that the witnesses' constitutional rights were allegedly
violated because they were not given Miranda warnings.(317) The court noted that the interviews
were voluntary and "part of a routine, preliminary inquiry." Further, the interviewees were not
entitled to a Miranda-type warning in any event because there was neither custody nor focus of
guilt.

2. Costs of compliance

The Government is generally not required to reimburse a person for his costs in complying with
a subpoena duces tecum.(318) However, the court in In re Grand Jury No. 76-3 (Mia.), Subpoena
Duces Tecum, 555 F.2d 1306, 1308 (5th Cir. 1977), noted that a court exercising its power under
Rule 17(c) of the Fed. R. Crim. P. may, in the appropriate circumstances, modify a grand jury
subpoena to require the cost of compliance to be borne by the Government. A showing of
financial burden entailed in complying with a subpoena, of course, may be considered by a court
in assessing the reasonableness or burdensomeness of a subpoena in the context of a motion to
quash.

3. Burdens of the parties

A presumption of regularity attaches to all grand jury subpoenas duces tecum.(319) Thus, the party
who seeks to quash a subpoena on the grounds that it is unreasonable or burdensome bears a
heavy burden.(320)

Once a motion to quash has been made, at least some courts may require that the Government
initially demonstrate the relevance of the subpoenaed documents to a legitimate grand jury
investigation. In the Third Circuit, the Government's initial burden may be met by the
Government's submission of a "Schofield" affidavit containing a very brief description of the
nature and/or purpose of the grand jury investigation and the general relevance of the
subpoenaed documents to the investigation.(321) The "Schofield" affidavit should be submitted to
the court in camera. Most other circuits do not require such an initial showing of relevancy and
have either declined to follow Schofield or have distinguished it.(322)

The Third Circuit's affidavit requirement may no longer be valid or may be severely limited in
light of the Supreme Court's recent decision in United States v. R. Enterprises, Inc., U.S. (1991).
Under R. Enterprises, the Government would, at most, have to reveal the general subject of the
grand jury's investigation before requiring the challenging party to carry its burden of persuasion.
(323)

4. Time for filing

Unlike Rule 45(b) of the Fed. R. of Civ. P., the criminal rule allows for the consideration of a
motion to quash a subpoena at any time up to and including the time set for compliance.(324)

5. Appeals
Under 18 U.S.C. § 3731, the Government may appeal an order quashing a grand jury subpoena.
(325)

One to whom a grand jury subpoena is directed may generally not appeal the denial of a motion
to quash the subpoena, but must either comply or refuse to comply with the subpoena. If he
refuses to comply, he may contest the validity of the subpoena on appeal, if he is subsequently
cited for contempt.(326) Appellate review may be appropriate in a limited class of cases where
denial of immediate review would render impossible any review at all.(327) For example, in
Perlman v. United States, 247 U.S. 7 (1918), immediate review of an order directing a third party
to produce documents that were Perlman's property was allowed because it was unlikely that the
third party would risk contempt to vindicate Perlman's rights.(328)

G. Enforcement of Subpoenas

A refusal or failure to produce documentary material in compliance with a subpoena or

incomplete or untimely compliance may require a motion to compel compliance and, if
necessary, initiating civil or criminal contempt proceedings.(329)

1. What constitutes contempt

Contempt by refusing or failing to comply with a subpoena may be either criminal or civil in
nature. Its constituent elements are found in Fed. R. Crim. P. 17(g) and 42;(330) 18 U.S.C. § 401;
(331)
and 28 U.S.C. § 1826 (Organized Crime Control Act).(332)

Simply stated, contempt is committed if a person is properly subpoenaed and willfully fails to
produce records which are in existence and under his control at the time the subpoena is issued.
(333)
Failure to appear is sufficient in itself to constitute contempt. A witness who appears but
refuses to produce the documents demanded is not yet in contempt of court (unless an order to
testify or produce is secured in advance from the court, as for example, with an immunity order).
The act of contempt does not occur until the witness refuses to obey a direct order of the court.
(334)
This means that the recalcitrant witness must be presented before the court, a proper
foundation must be established and the court must issue a direct order to the witness to produce.

To sustain a charge of contempt, whether the charge is criminal or civil, the following must
occur:

1. There must be valid service of the subpoena;

2. The recipient must fail to make production of the documents requested after a court order has
directed him to do so;
3. In the case of criminal contempt, the recipient's failure must be the result of his willful acts; (335)
4. The documents must be in existence at the time; and
5. The recipient must have control of the requested documents.

2. Distinction between civil and criminal contempt

The essential differences between criminal and civil contempt are the nature and purpose of the
relief sought. A contempt proceeding is civil if the purpose is remedial and intended to coerce
the person into doing what he is supposed to do.(336) The sanction for civil contempt is conditional
and must be lifted once the contemnor has complied with the court's order.(337) To more fully
realize the coercive effect of a possible contempt sanction, a witness expected to refuse to
produce (or testify) should be taken before a grand jury panel which has a period of time left to
serve, rather than a panel which is about to expire. If the purpose is to punish the wrongdoer,
however, the proceeding is one for criminal contempt and the sentence will be determinate.(338)

The Supreme Court, in Cheff v. Schnackenberg, 384 U.S. 373, 380 (1966), held that a sentence
for criminal contempt in excess of six months requires a jury trial.(339) Of course, the Government
cannot know in advance what penalty will be imposed. Nevertheless, the Government should not
press for imprisonment in excess of six months, and should be certain the court is aware of the
Cheff rule.

3. Proof

The fact of contempt is usually established by the Government by the following proof:

1. The affidavit or testimony of a deputy marshal that he served the subpoena upon the defendant
upon the date and at the time indicated by the return date;
2. The subpoena itself which may be submitted with the marshal's affidavit, or introduced
separately, showing that it was properly issued by the clerk of court upon application of the
United States;
3. If necessary, the affidavit or testimony of the clerk or a deputy clerk showing that issuance of
the subpoena was in conformity with Fed. R. Crim. P. l7;
4. The affidavit or testimony of the foreperson of the grand jury establishing the presence of a
quorum on the date and time in question. In this regard, the best evidence would be the
minutes of the grand jury as maintained by the secretary that a quorum was present.
(Authentication by the grand jury secretary and his testimony would be necessary if the grand
jury minutes are used.) The foreperson's affidavit or testimony should also include the fact that:
a. The defendant did not appear, or
b. Appeared and refused or failed to produce, or
c. Appeared and refused or failed to produce all the documents ordered by the subpoena.

Copies of appropriate parts of the grand jury transcript may be offered through the
testimony of the court reporter, the foreperson, or a Government attorney;

5. The testimony of the recipient or the appropriate representative of a corporate recipient before
the grand jury, as revealed by the transcript. This testimony would be admissible through the
foreperson, or the court reporter, or counsel for the Government by affidavit (340) and;
6. Whatever evidence is available to show the existence of the documents, their control by the
recipient, and his refusal to produce. For criminal contempt, failure to appear on the return date
is sufficient to establish the requisite willfulness, thus shifting the burden to the defendant to
show a good faith effort to comply.(341)

4. Procedure and forms

The procedure to be followed for failure or refusal to comply with a subpoena to produce
documents essentially is the same for both criminal and civil contempt.

Punishment for failure to produce is criminal in nature, and the procedure to be followed, the
refusal or failure not being in the actual presence of the court, must be in accordance with Fed.
R. Crim. P. 42(b).(342) Rule 42(b) provides:

Rule 42(b) Disposition Upon Notice And Hearing. A criminal contempt, except as provided in subdivision
(a) of this rule, shall be prosecuted on notice. The notice shall state the time and place of hearing,
allowing a reasonable time for the preparation of the defense, and shall state the essential facts
constituting the criminal contempt charged and describe it as such. The notice shall be given orally by
the judge in open court in the presence of the defendant or, on application of the United States attorney
or of an attorney appointed by the court for that purpose, by an order to show cause or an order of
arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. The
defendant is entitled to admission to bail as provided in these rules. If the contempt charged involves
disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing
except with the defendant's consent. Upon a verdict or finding of guilt, the court shall enter an order
fixing the punishment.

It is settled that the summary procedure provided for by Fed. R. Crim. P. 42(a), is not appropriate
for a refusal to produce evidence before a grand jury even though the refusal takes place directly
in the presence of the court and at the court's request. This rule is usually utilized where a party,
during a court hearing or trial, is abusive of the court or otherwise engages in contemptible
conduct.(343)

The courts have held that Rule 42(b) also applies to civil contempt proceedings, including those
brought under 28 U.S.C. § 1826, and, therefore, a recalcitrant witness is entitled to notice and a
reasonable opportunity to prepare a defense.(344) The notice should specify whether the
proceeding will be criminal or civil.(345)

Both criminal and civil contempt may be pursued by way of an Order to Show Cause. Criminal
contempt may alternatively be charged in an indictment. Actual criminal or civil contempt
proceedings may be preceded by a Motion to Compel Compliance.

1. Order to show cause.(346) As provided in Fed. R. Crim. P. 42(b), a show-cause order can be
requested by the Government. The request should take the form of a Petition by the United
States for an order to show cause why respondent should not be found in contempt. Affidavits
setting forth the foundational facts discussed above should be submitted to the court by the
Division attorney or attorneys presenting the matter. The affidavit of the deputy marshal who
served the subpoena should also be submitted with the petition.

In addition, the Third Circuit requires an affidavit by the Government setting forth the
general relevancy of the subpoenaed documents to the grand jury investigation.(347) Most
other circuits, however, have either declined to follow or have distinguished the Third
Circuit's approach.(348)
 2. Indictment. An alternative procedure which may be followed in pursuing criminal contempt
occurring before the grand jury (after direct order of the court) is for the grand jury to return an
indictment for violation of 18 U.S.C. § 401.(349)
3. 3) Motion to compel compliance. If a witness appears before the grand jury and refuses to
comply with the subpoena based on some objection to the subpoena, e.g., attorney-client
privilege, work-product privilege, 1st, 4th or 5th Amendments, 18 U.S.C. § 2515 (Prohibition of
use as evidence of intercepted or oral communications) or § 3504 (Evidence derived from an
unlawful act), the Government may wish to bring on a motion to compel compliance rather than
going directly to contempt proceedings. This affords the Government an opportunity to litigate
any issues of fact or law prior to any contempt proceedings.

The motion should be brought upon notice and should be accompanied by some
indication in writing to counsel that if the motion is granted and there is then a lack of
compliance with the court's order, the Government intends to proceed immediately
against the witness in a contempt proceeding under Rule 42(b) or 28 U.S.C. § 1826. The
witness should be required to raise all possible objections to the subpoena at the hearing
on the motion to compel, rather than litigating such issues at the contempt hearing. Care
should be taken to research the case law prior to the hearing on the motion to compel
regarding the particular objection because frequently the Government has an initial
burden to meet. For example, if a 1st Amendment objection is raised, the Government
may have to make certain showings as to the legitimacy of the grand jury investigation.

If a claim of privilege is made, the court will first determine whether the privilege, as a general
matter, exists. If so, the court may order an in camera inspection of the documents for which the
protection is sought.(350)

5. Defenses
a. 4th Amendment

The 4th Amendment's prohibition against unreasonable searches and seizures has been applied to
grand jury subpoenas but only to the extent that a subpoena that is unnecessarily broad in scope
will be held unreasonable.(351) A subpoena duces tecum is thus subject only to the general 4th
Amendment requirement of reasonableness, and need not be based on probable cause.

b. 5th Amendment

A corporation has no 5th Amendment privilege against self-incrimination.(352) This rule has been
extended to include all corporations, no matter how small, and most other "artificial entities",
such as partnerships.(353) Moreover, a corporation must produce its records even though their
contents or the act of production itself may incriminate the custodian of the records or other
corporate officials.(354)

Records required to be made or kept by the business, kept by employees within the business,
submitted to the business from time-to-time, or kept on the business premises and used in day-to-
day transactions of the business are considered business records for purposes of the 5th
Amendment.(355) Appointment calendars and diaries kept by employees of the business generally
are considered business records, even when they contain personal as well as business-related
notations.(356)

c. Illegal wiretaps

A grand jury witness is entitled, by reason of 18 U.S.C. §§ 2515 and 3504, to refuse to respond
to questions based on illegal interception of oral or wire communications.(357) However, a grand
jury witness does not have standing to suppress evidence before a grand jury. He merely has the
right not to testify in response to questions based on the illegal interception of his
communications.(358)

The Government's response to a claim of an illegal interception depends on whether any

interception occurred. If there was no interception, the Government will file an affidavit denying
that any interception took place. Under some circumstances, the affidavit must be reasonably
specific, and conform with the requirements set forth in United States v. Alter, 482 F.2d 1016
(9th Cir. 1973).

If an interception did occur, the Government must so indicate, and provide the court with
appropriate documents demonstrating that the interception was pursuant to court order.(359)

d. Improper Government motive

A subpoena recipient need not comply with a subpoena if it is issued for an improper motive, for
example, to obtain information for use at trial or for use in a civil investigation or to harass or
intimidate the subpoena recipient. The subpoena recipient has a heavy burden to justify non-
compliance on these grounds.(360)

e. Fear of retaliation

Fear of retaliation and for the physical safety of the witness does not constitute just cause to
refuse to testify or produce documents.(361) Even where fears are shown to be legitimate, courts
have refused to excuse the witness from testifying.(362) A few courts have recognized the
possibility that duress or coercion may be a defense to a contempt charge, but have found the
defense inapplicable to the facts presented.(363)

6. Successive contempt citations

If sanctions have been imposed on a witness found in contempt of the grand jury, that witness
may not be called before a second grand jury without prior approval from the Assistant Attorney
General, Criminal Division.(364) Although language in Shillitani v. United States, 384 U.S. 364,
371 n.8 (1966), may authorize successive contempts, the Department has taken a more restrictive
stance.

7. Appeals
Contempt adjudications are appealable as final decisions under 28 U.S.C. § 1291.(365) A contempt
adjudication is not final for purposes of appeal under § 1291 until a sentence or sanction has
been imposed.(366) An application for a show-cause order for criminal contempt is a "criminal
case" within the meaning of the Criminal Appeals Act, 18 U.S.C. § 3731, and a Government
appeal of the denial of a criminal contempt order is thus subject to the requirements of that
provision.(367)

8. Refusal to testify or refusal to answer certain questions

Once the problems of self-incrimination and immunity have been overcome,(368) the ingredients
of contempt and the procedures to be followed are the same as described above as to production
of documents.

H. Forthwith Subpoenas

A forthwith subpoena compels a witness to appear or to produce documents shortly after service
of the subpoena. Forthwith subpoenas are simply subpoenas whose return times are shorter than
what would otherwise be "reasonable" under normal circumstances. The term "forthwith"
describes the brief time period between service and appearance or production.

Only two circumstances merit issuing a forthwith subpoena. First, where a potential witness is
likely to flee; second, where there is a reasonable likelihood that documents will be destroyed,
concealed or fabricated. Decisions to issue a forthwith subpoena must also consider the need for
the orderly presentation of evidence before the grand jury, and the degree of inconvenience that
the forthwith subpoena might cause a subpoenaed witness.(369) Generally, "the issuance of a
'forthwith' subpoena may be justified by the facts and circumstances of a particular case."(370)

1. Efficacy of forthwith subpoenas

When considering whether to issue a forthwith subpoena, attorneys should be aware that even in
the extreme circumstances that would justify issuing it, a recipient's efforts to quash a forthwith
subpoena may sufficiently delay appearance or production so that the efforts successfully thwart
the goals of the "forthwith" nature of the subpoena. This, combined with the efforts necessary to
respond to motions to quash, may, in most circumstances, make other means of compelling
appearance or production (such as a subpoena with a longer return time, a material witness arrest
warrant, or a search warrant) more effective means of securing witness appearances or
minimizing document destruction.

A forthwith subpoena is especially susceptible to motions to quash, simply because the filing of
such motions will stay compliance. One court has suggested that prosecutors may not enforce a
forthwith subpoena until its recipient has the chance to file a motion to quash; the time for this
"chance" would seem to set a minimum return.(371) The time that it takes for a court to hear a
motion to quash may be such that, in the end, the time between service of the forthwith subpoena
and compliance approximates a "normal" subpoena return time. Thus, attorneys should consider
the relative efficacies of devoting prosecutorial resources to oppose a motion to quash, perhaps
filed simply to gain time, and avoiding such motions, perhaps achieving, in the end, the same
compliance time as the original forthwith subpoena.

A particular circumstance in which a forthwith subpoena is appropriate arises when the grand
jury is in session, and attorneys become aware of evidence (for example, through other
presentations before the grand jury, proffered evidence, witness interviews, or otherwise) that the
grand jury must consider during its session, and that such evidence would not likely be available
for a subsequent grand jury session. An attorney will have little time to secure a search warrant
from a court, thus, a forthwith subpoena may be the only way to put the necessary evidence
before the grand jury.

2. Timing of a forthwith subpoena; court assessment of "reasonableness"

Courts have approved the use of forthwith subpoenas served only minutes before, and on one
occasion, at the precise moment of the required return time before the grand jury.(372) While there
is no precise return time that sets apart a "forthwith" from a "normal" subpoena, "forthwith"
subpoenas are usually served during a session of the issuing grand jury, and call for a return
during the same grand jury session.

When courts consider a motion to quash a forthwith subpoena, they will balance the
circumstances under which a forthwith subpoena is issued with the alleged burden and
inconvenience that the subpoena may cause. For example, in United States v. Re, 313 F. Supp. at
449-50, the court stated that it would judge the reasonableness of a forthwith subpoena duces
tecum on the basis of the following factors: 1) whether the Government had a clear reason to fear
destruction and alteration of documents; 2) the prejudice to the subpoena recipient by
requirements that they produce documents forthwith; 3) the physical cumbersomeness of the
documents; 4) any grounds on which the addressee could quash the subpoena had he been given
more notice and thus more time to consult with counsel; 5) whether the documents were
burdensome in quantity; and 6) whether the subpoena was sufficiently specific.

In general, the shorter a subpoena's return time, the more burdensome and inconvenient the
subpoena becomes. Shortened time of return or production will especially compound burden
where a subpoena calls for a document search or for appearance by a witness who physically is
far removed from the grand jury. The circumstances that surround issuing a forthwith subpoena
must outweigh the burden and inconvenience that shortened time has added to the subpoena.
Attorneys should accordingly be as certain as possible that the circumstances warrant issuing a
forthwith subpoena, and be able to demonstrate the basis for that certainty in court.

3. 4th Amendment questions raised by forthwith subpoenas

Courts have been concerned with the misuse of forthwith subpoenas to effect warrantless
searches. The 4th Amendment protects against unreasonable "constructive" searches and
seizures,"(373) and the grand jury's power to issue forthwith subpoenas does not authorize the
server of a subpoena either to seize items that the subpoena requires, or to demand that such
items immediately be turned over to him. If the subpoena server coerces compliance with the
subpoena, the subpoena takes on the nature of a search warrant. The subpoena can never be the
basis of a valid search because it will not be issued as the result of a direct court order.(374) Misuse
of a forthwith subpoena to effect a warrantless search or arrest may lead a court to exclude at
trial the evidence, the witness' testimony, or the fruits of either sought by the forthwith subpoena,
even if the subpoena recipient initially complied with the subpoena.(375)

To minimize possible 4th Amendment questions, attorneys should make sure that the subpoena
server knows to tell the recipient that while the subpoena compels the recipient's return before
the grand jury, the subpoena is not a search or arrest warrant. Attorneys should further instruct
the server of the forthwith subpoena that he is only to serve the subpoena, and not suggest to
recipients that the subpoena allows him to seize or review the documents.

Subpoena recipients may consent to a search by the server of the subpoena.(376) Servers of
subpoenas, however, must immediately leave the recipient's premises if a recipient asks them to
do so.(377) In cases where consent to search is given, the authority for the search is not the
subpoena, but, instead, the consent to the search by the owner or the person in control of the
subject of the subpoena.(378) In such cases, acquiescence, not knowing and informed consent are
sufficient.(379) Questions of consent to search and authority to give consent are often difficult.
Accordingly, the best practice is for servers of forthwith subpoenas to promptly leave a
recipient's premises after service of the subpoena. Further, in anticipation of any 4th Amendment
questions, at least two persons should serve a forthwith subpoena. If necessary, one server may
appear as a witness, should the recipient try to quash the subpoena on the grounds that the
servers attempted to use the subpoena to effect a warrantless search.

Attorneys should also establish a proper foundation for a forthwith subpoena by arranging, prior
to issuing the forthwith subpoena, for witness testimony about the facts and circumstances that
would justify issuing the subpoena. Forthwith subpoenas should be issued with the grand jury's
approval and at the foreperson's direction.(380)

4. Alternatives to forthwith subpoenas

a. Subpoenas with longer return times

A subpoena with a "normal" return time that would be "reasonable" if there were no question of
a witness' appearance or document destruction, would have the same effect as a forthwith
subpoena of putting a witness on notice that the grand jury requires his appearance or his
documents. Noncompliance with the subpoena is still enforceable by contempt. Yet, enforcement
of the subpoena may, on the whole, be more certain, since its longer return time would likely
contribute to a court holding that it was, on the whole, reasonable. As discussed above, after a
court hears a motion to quash a forthwith subpoena, the time between service of and compliance
with a forthwith subpoena, and that between service and compliance with a subpoena with a
longer return time, may end up being identical.

b. Material witness arrest warrants to assure witness appearances

If a witness is likely to flee, attorneys should strongly consider applying to the court for a
material witness arrest warrant. 18 U.S.C. § 3149 specifically provides for a material witness
arrest warrant to assure a witness' grand jury appearance. Under a material witness arrest
warrant, a witness is arrested and held until his grand jury appearance.

c. Search warrants to curtail document destruction, concealment or fabrication

A search warrant is, in most cases, preferable to a subpoena where there is a reasonable
likelihood that documents will be destroyed, concealed or fabricated. A search warrant allows a
direct search for documents, while a subpoena depends on the recipient or its agents to conduct
the search and to produce the documents before the grand jury. Given that the basis for issuing
the warrant would be the likelihood of document destruction, concealment or fabrication, a
direct, warranted search is more likely to achieve the desired result of safeguarding documents
than merely relying on the subpoena recipient to produce the documents himself.

I. Search Warrants
1. Factors to consider in using warrants

In a limited set of circumstances, attorneys should consider the use of a search warrant to obtain
evidence of criminal activity. Generally, warrants should be viewed as an extraordinary method
of criminal discovery, and should be sought only when an attorney has a substantial basis for
doing so. Moreover, because of differing standards governing their issuance,(381) search warrants
cannot be viewed as substitutes for grand jury subpoenas duces tecum. Rather, warrants are
useful as complements to subpoenas in cases in which the investigation develops proof either: (a)
that material responsive to a previously-issued subpoena was not produced in response to the
subpoena; or (b) that there is already probable cause to charge a criminal offense (such as price-
fixing) and that evidence not already under subpoena which helps prove that offense can be
found at a specified location. In antitrust investigations, the former situation is the more likely
one in which a search warrant would be sought.

Where the prosecuting attorney can establish that the recipient of a grand jury subpoena duces
tecum has not complied fully with the subpoena, either by deliberately withholding responsive
documents or by recklessly searching for responsive materials, the prosecutor could proceed
either by search warrant or by follow-up subpoena. The search warrant may be the superior
alternative, for the following reasons.

First, if an individual deliberately or recklessly withheld documents responsive to an earlier

grand jury subpoena, it is unlikely that the same individual will produce the required documents
in response to a subsequent subpoena. The security of the documents is of paramount importance
to the prosecution, as the withheld materials are likely to be proof of both the original offense
under investigation (e.g., price-fixing or bid-rigging) and the separate offense (e.g., obstruction
of justice or criminal contempt) which was committed when the documents were withheld from
production under the original subpoena. Use of a search warrant in these circumstances may be
essential to prevent the further concealment or the possible destruction of this evidence. Warrants
are issued without notice to the person whose premises are to be searched and they are executed
by law enforcement officers who immediately take the evidence into their possession,
eliminating the opportunity for destruction of evidence.
Second, a search warrant is executed by law enforcement officers without any participation by
the owner or custodian of the seized property. Thus, the owner or custodian is not being
compelled to do anything which might be deemed "testimonial" and, for that reason, he has no
right to assert a 5th Amendment privilege to block execution of the warrant. On the other hand,
the courts have held under some circumstances that if the act of producing documents in
response to a subpoena can, itself (i.e., independent of the content of the documents), be said to
establish an element of a criminal offense,(382) the act of production is deemed "testimonial," and
5th Amendment self-incrimination interests are implicated.(383)

If an attorney conducting a grand jury investigation has a substantial reason to suspect that the
recipient of a subpoena duces tecum has withheld documents, use of a search warrant should be
considered. Some indicia of possible withholding of documents are: chronological gaps in a
company's production (particularly if those gaps coincide with significant events in the case,
such as bid opening dates, etc.); significant differences between the relative quantities of
documents produced by different offices of the same company; the existence of documents
prepared by, e.g., Company A in Company B's submission, where no counterpart documents
were submitted by Company A; and testimony by grand jury witnesses that a particular
individual prepared and kept a certain type of record (e.g., a diary or notebook of his activities)
and the absence of such records in his company's submission. To establish the requisite probable
cause to obtain a warrant, it may be necessary to systematically question grand jury witnesses
from the suspect company about the existence or destruction of subpoenaed documents. Staffs
should be cautious as, on occasion, such questioning may prematurely alert a company to our
suspicions and lead to further destruction of documents prior to the search.

2. Legal standards

The 4th Amendment of the Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.

The terms "probable cause" and "particularly describing" connote legal standards that must be
met before a valid search warrant can issue. Each of these terms has generated a large body of
case law, reflecting the case-by-case, fact-bound approach courts have taken in applying them.
The following discussion is intended to be only an overview of these two 4th Amendment
requirements. Treatises and case law should be consulted to determine whether the probable
cause and particularity requirements are met in specific factual situations and in specific
jurisdictions.

a. Probable cause

The Supreme Court has formulated several definitions of probable cause. The following is one of
the most commonly quoted:
Probable cause exists where "the facts and circumstances within their [the officers'] knowledge, and of
which they had reasonably trustworthy information, [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that" an offense has been or is being committed. (384)

The Court has also said that probable cause exists if there is a "substantial basis" for believing
that a crime has been committed and that a particular location contains evidence of that crime.(385)

In a typical criminal antitrust case, probable cause will have to be shown as to three things to
obtain a search warrant: (1) that a crime has been committed, (2) that documents (or other items)
evidencing the crime exist,(386) and (3) that the items to be seized are located at a specific
location.

The basis for establishing probable cause as to each of these three items usually must be set forth
in an affidavit. Under certain circumstances, a warrant may issue based on sworn oral testimony
rather than a written affidavit.(387) The standards are the same whether the warrant is based on an
affidavit or oral testimony. In antitrust cases, the warrant will usually be based on an affidavit.

The grounds for establishing probable cause can be based either on the personal knowledge of
the affiant or on hearsay.(388) Where probable cause is based on the affiant's personal knowledge,
the specific facts and circumstances constituting probable cause must be set forth in the affidavit.
A warrant cannot be based on the affiant's unsupported suspicions or beliefs.

Where probable cause is based on hearsay, the affidavit must contain sufficient information
about the informer's credibility and basis of knowledge to establish that his information is worthy
of belief. The Supreme Court has stated the standard as follows:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of
knowledge" of persons supplying hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. (389)

Veracity and basis of knowledge do not each need to be independently established; rather, they
are related factors relevant to "the common sense, practical question whether there is 'probable
cause' to believe that contraband or evidence is located in a particular place."(390) The basis of an
informer's knowledge should be set forth with specificity, as in the case of probable cause based
on personal knowledge.

The degree of information necessary to establish an informer's credibility varies according to the
likelihood that the informer will produce false or untrustworthy information.(391) Some common
reasons for determining that an informer is credible are that the informer has given reliable
information in the past,(392) the informer is a participant in the criminal activity under
investigation,(393) and the informer's information has been corroborated by other information.(394)
In an antitrust investigation, the basis for probable cause is likely to be an informer's grand jury
testimony. The fact that the information is obtained while the informer was under oath, and,
therefore, subject to criminal liability for perjury if the information is false, is a factor indicating
that the information is reliable.(395)
 b. Particularity

The 4th Amendment requires that the warrant describe with particularity both the place to be
searched and the items to be seized. The particularity requirement removes discretion from the
officer executing the warrant and prevents a "general, exploratory rummaging."(396)

A description of items to be seized is sufficiently particular if it supplies guidelines to the

searching officer so that he can reasonably ascertain and identify those items.(397) This
requirement is applied "with a practical margin of flexibility, depending on the type of property
to be seized, and . . . a description of property will be acceptable if it is as specific as the
circumstances and nature of activity under investigation permit."(398) A warrant describing
"corporate books and records evidencing a violation of 15 U.S.C. § 1" is not sufficiently
particular to meet the 4th Amendment's particularity requirement.(399) The warrant must provide
specific guidelines by identifying the documents sought,(400) but the degree of specificity required
will depend on the circumstances of the case.(401) It is permissible to inspect voluminous files in
search of documents sought under the search warrant.(402)

The premises to be searched must be described in sufficient detail to allow others to identify it
with reasonable effort.(403) For example, if the search is to take place in a large commercial office
building, the name of the tenant of the office to be searched should be included and, if possible,
the office number.(404) A physical description of the premises to be searched and a diagram of the
location may help meet the particularity requirement if other types of description are inadequate.

3. Mechanics of obtaining a search warrant

Rule 41 of the Federal Rules of Criminal Procedure sets forth the procedure for obtaining a
search warrant. Application for a warrant can be made to either a federal magistrate or a state
court judge within the district where the warrant is to be executed. The application consists of an
affidavit, which states the grounds for seeking the warrant, and the original warrant for the
magistrate to sign.

Rule 41(c)(2) also sets forth an alternative procedure for obtaining a search warrant upon oral
testimony where required by special circumstances. Circumstances of urgency requiring such
procedures would be rare in any application made by the Antitrust Division.

The warrant must include: a description of the property(405) to be seized (often as a schedule
attached to the warrant); a statement that the property is evidence of a stated criminal offense
(e.g., Sherman Act, 15 U.S.C. § 1; obstruction of justice, 18 U.S.C. § 1503); an exact description
of the location to be searched; the period of time during which the search is to be executed
(which under Rule 41(c)(1) cannot exceed ten days after issuance of the warrant); and whether
the search is to be conducted in the daytime (6:00 a.m. to 10:00 p.m., as defined by the Rule) or
at any time in the day or night. A search warrant must be executed in the daytime unless a
showing has been made by the applicant that there is reasonable cause for it to be executed at
night. Warrants sought by the Antitrust Division are not likely to necessitate execution at night.
The affidavit must include sufficient facts to establish probable cause that a crime has been
committed and that evidence of that crime is at the search location. The information in the
affidavit can be the personal knowledge of the affiant or it may be entirely hearsay.(406)

The affidavit in support of the warrant should be filed under seal to prevent the disclosure of
matters occurring before the grand jury, the identity of informants, or other facts the disclosure
of which would hinder an ongoing investigation. In some districts, the affidavit is automatically
filed under seal, while in others, the search warrant applicant must specifically request that it be
sealed. The local United States Attorney's Office should be consulted to determine whether an
application to seal is needed in the district involved. Such an application should be made
simultaneously with the presentation of the warrant to the magistrate.

The affiant may be required to appear before the magistrate or judge granting the warrant and
may, under Rule 41(c)(1), be examined along with any witnesses the affiant may want to
produce. If the magistrate or judge finds that the Government has established the requisite
probable cause for the issuance of the warrant, he signs the warrant and provides it to the
applicant for execution.

There are no legally required procedures for obtaining internal clearance to seek a search warrant
within the Antitrust Division. However, the practice within the Division is for the section or field
office seeking the warrant to obtain the approval of the Office of Operations by sending a
memorandum to the Director of Operations explaining the need to obtain the warrant and the
grounds on which it is being sought, along with a draft of the warrant and affidavit to be
presented to the magistrate. In emergency situations, the section or field office chief may call the
Director of Operations, explain the circumstances requiring the warrant, and obtain oral approval
for seeking the warrant.

4. Execution of the search warrant

Search warrants are executed by Federal Bureau of Investigation agents. Coordination with the
Bureau prior to the search is essential. Most FBI agents are well-versed in search warrant
procedures and will be of great assistance in assuring that the procedures required by Rule 41 are
followed. If the particular agent working with the Division on a matter is not familiar with the
procedures, the assistance of more experienced agents should be sought. To complete the search
within a reasonable time, numerous agents may be required. The staff attorneys should consult
with the Bureau to determine how many agents will be needed to conduct the search, based on
the scope and nature of the search.(407)

Prior to the search, the staff should brief all the agents who are to conduct the search, providing
them with a copy of the warrant and affidavit, explaining the background facts giving rise to the
search, reviewing the description of the property or documents to be seized, providing any other
information that will assist them in conducting the search, and answering any questions the
agents may have.

No staff attorney should be present at the search itself, as such attorney could later be required to
testify in a proceeding over the legality of the search. It is advisable, however, to have a
paralegal familiar with the case and the target documents present at the search for the agents to
consult if any questions arise. A staff attorney should be available throughout the search for
phone consultation with the agents or the paralegal who is assisting the agents. The staff may
want to suggest a procedure used by some FBI agents, who inform the local law enforcement
agency of the search and request a uniformed officer to be present when the warrant is first
presented to verify the identity of plain-clothes agents and to facilitate entry and cooperation.

An agent executing a warrant is required by Rule 41(d) to make a verified inventory of the items
seized. This inventory must be made in the presence of the person from whose possession or
premises the items are taken, or if such person is not present, in the presence of some credible
person (usually another agent). If requested in advance, the agents will photograph the search
premises to show where the items were seized. Such photographs can be useful in litigation
arising from the search. The agents must give the person whose premises were searched a copy
of the warrant and a receipt for the items taken. If such person is not present, the warrant and
receipt must be left at the premises. A copy of the required inventory is usually signed by an
agent and left as a receipt. The warrant and the completed return along with the inventory is then
returned promptly to the issuing magistrate, who files them with the clerk of the court.

5. Use of seized items/chain of custody

Once documents are seized, staff attorneys will probably be anxious to review and use them to
pursue the underlying antitrust investigation and to assess the possibility of an obstruction or
contempt case. However, it is important to realize that seized documents cannot be treated as
subpoenaed material and that a careful record of their chain of custody must be maintained. A
rigid document control system must be established before staff attorneys begin handling the
documents. This will be essential in any subsequent litigation arising from the search to prove
that the documents are in fact those that were seized. If the documents are relatively few in
number, the staff can make some arrangement with the FBI to review, copy, or microfilm the
documents, and allow the FBI to remain the document custodian and follow their standard chain
of custody procedures. If the documents are voluminous, the FBI and the Division attorneys may
find other procedures more practical.

One possible procedure is to make a paralegal (if one was present at the search, preferably that
person) custodian of the documents. An attorney should not be the custodian, as the custodian
may be required to testify in any litigation in which we seek to admit the documents as evidence.
Always follow the standard procedures used by the FBI to establish chain of custody. Documents
must be kept in a locked room or secure file cabinet to which only the custodian has access (i.e.,
the room or file locks must be secure against building and office master keys). Until the
documents are marked and numbered by the custodian or in some way identified in such a
manner as to insure that the custodian can testify that they are the documents that were seized,
any review, copying, or microfilming of the documents must be done in the presence and under
the direct observation of the custodian. Once the materials are adequately identified, the
custodian may check in and out specific documents to others for use or review. It is
recommended that the chain of custody forms used by the FBI be used for this procedure.(408)

6. Challenges
Challenges to the use of evidence obtained under a search warrant can be made under either Rule
12 or Rule 41 of the Federal Rules of Criminal Procedure. Challenges may be based on the
validity of the warrant or the manner of its execution.

Under Rule 12(b), evidence obtained through a search warrant can be challenged by a motion to
suppress. If the motion is granted, the seized evidence cannot be offered into evidence. A Rule
12(b) motion cannot be made until an indictment has been returned.

Under Rule 41(e), a motion for return of the seized property may be made at any time after the
seizure. If the motion is granted, the property must be returned and may not be used as evidence
at any hearing or trial, just as if it had been suppressed under a Rule 12(b) motion. After an
indictment has been returned, a Rule 41(e) motion for return of property will be treated as a Rule
12(b) motion to suppress.

The bases for challenges are the same under Rule 12 and Rule 41. Challenges to the validity of a
search warrant are of three general types: (1) that there was no probable cause for the issuance of
a warrant(409) (2) that the items to be seized or the location to be searched were not described with
sufficient particularity in the warrant(410) and (3) that the affiant deliberately provided false
information or exhibited a reckless disregard for the truth.(411) The seizure of property may also
be challenged on the ground that the warrant was not properly executed. For example, a warrant
would be improperly executed if the property were seized at a location other than the one
described in the warrant or if the property seized were not the property described in the warrant.

In determining whether there was probable cause to justify issuing the warrant, the court should
examine the supporting affidavits in camera. Prior to indictment, the movant should not be
provided access to the supporting affidavits because to do so would jeopardize grand jury
secrecy and could impede the effective completion of the ongoing investigation.(412) Orders
denying motions to suppress or return seized evidence, whether before or after indictment, are
interlocutory and, therefore, not appealable by defendants so long as a criminal prosecution or
investigation is in progress.(413) Thus, if a grand jury investigation is under way, an order denying
such a motion is not appealable.(414) An order denying a motion to return or suppress property is
appealable only if it "is in no way tied to a criminal prosecution" in progress.(415)

The Government, however, under 18 U.S.C. § 3731, may appeal an order granting a motion to
suppress or return seized evidence. The Government attorney must certify "to the district court
that the appeal is not taken for purpose of delay and that the [suppressed] evidence is a
substantial proof of a fact material in the proceeding."(416)

FOOTNOTES

278. A sample subpoena (AO Form No. 110) is attached as Appendix III-3.
279. The same form is generally used for a grand jury subpoena ad testificandum. In some
districts, however, trial subpoena forms, rather than grand jury forms, are used. In such districts,
the forms must be converted to grand jury forms by interlineation and crossing out certain words.

280. The courts have demonstrated little patience for motions to quash based on problems which
can obviously be worked out between the parties.

281. Generally, the further back the time period, the more likely the search will involve dead and
stored files -- and a ready excuse for compliance delay and closer court scrutiny of the subpoena.
See § C.2.b 2)b), supra.

282. This warning refers to obvious redundancies. Some overlap is unavoidable because,
inevitably, paragraphs with different purposes will sometimes require submission of the same
document. Counsel will generally submit the document under one of the two paragraphs.

283. When the field offices have pressed for the identification of privileged documents in court,
the parties have withdrawn the claim of privilege as to most of the allegedly privileged
documents and, at the court's urging, supplied the requested information on the balance. In any
event, the inclusion of such a provision is potentially valuable. See generally Sperry Rand Corp.
v. International Business Mach. Corp., 45 F.R.D. 287 (D. Del. 1968) (identification of privileged
documents ordered); Standard Pressed Steel Co. v. Astoria Plating Corp., 162 U.S.P.Q. (BNA)
441, 443 (N.D. Ohio 1969) (identification by interrogatory permitted); Stix Prods., Inc. v. United
Merchants & Mfgrs, Inc., 47 F.R.D. 334, 339 (S.D.N.Y. 1969) (identification held improper
where court had inspected documents and agreed on privilege).

284. Personal calendars maintained by the chief executive of a company are corporate property
subject to production in response to a subpoena duces tecum; the right against self-incrimination
of the executive is not violated. See § C.2.c., infra.

285. Another technique to establish the context of demanded documents is to provide at the end
of the "Document definition" paragraph of the subpoena that:

"Document" includes the file and folder tabs associated with each aforesaid original and copy.

Requests for identification of documents and for attached documents can be combined.

286. See § B.4., supra and § E.1., infra.

287. When this form has been used, it has been physically attached to and numbered as part of
the subpoena attachment, although the wording indicates it is not a part of the subpoena
attachment.

288. An example of a "price-fixing" subpoena attachment is contained in Appendix III-4.

289. This small paragraph may prove to be particularly useful in obtaining documents that were
altered to disguise the conspiracy.
290. See also Ch. IV § E.3.

291. In re Grand Jury Investigation (Gen. Motors Corp.), 1960 Trade Cas. (CCH) ¶ 69,796, at
77, 133 (S.D.N.Y.) (delivery to grand jury foreman, as a representative of grand jury, held
invalid).

292. See N.L.R.B. v. Duval Jewelry Co., 141 F. Supp. 860 (S.D. Fla. 1956), rev'd on other
grounds, 243 F.2d 427 (5th Cir. 1957), rev'd on other grounds, 357 U.S. 1 (1958).

293. See Appendix III-5 for a sample letter giving a subpoenaed party this option. See § D.,
supra, for an example of this option set forth in a subpoena attachment.

294. See § D., supra, for suggested language to be included in the subpoena attachment.

295. 271 F. Supp. at 568.

296. United States v. Linen Serv. Council, 141 F. Supp. 511 (D.N.J. 1956); In re Grand Jury
Investigation, 33 F. Supp. 367 (M.D.N.C. 1940).

297. The subpoena recipient must expressly and voluntarily consent to a search. Otherwise, there
may be 4th Amendment problems.

298. The staff should be consistent with all subpoenas and avoid any implication of favoritism or
unfair treatment.

299. See In re Grand Jury Proceedings, 1972 Trade Cas. (CCH) ¶ 73,826, at 91,483 (S.D. Ohio);
see also United States v. Re, 313 F. Supp. 442 (S.D.N.Y. 1970); cf. Canuso v. Niagara Falls, 7
F.R.D. 159, 161 (W.D.N.Y. 1945).

300. Steamship Co. of 1949 v. China Union Lines, Hong Kong, 123 F. Supp. 802 (S.D.N.Y.
1954).

301. In re Grand Jury Investigation (Gen. Motors Corp.), 1960 Trade Cas. (CCH) ¶ 69,729, at
76,843 (S.D.N.Y.).

302. In re Radio Corp. of Am., 13 F.R.D. 167 (S.D.N.Y. 1952).

303. See Hurtado v. United States, 410 U.S. 578, 588-89 (1973); In re Grand Jury Investigation,
459 F. Supp. 1335 (E.D. Pa. 1978).

304. For a more detailed discussion of the privileges applicable to grand jury subpoena
compliance, see § C., supra.

305. See § C.2.b., supra.

306. Braswell v. United States, 487 U.S. 99 (1988).

307. Brown v. United States, 276 U.S. 134 (1928); In re Special November 1975 Grand Jury,
433 F. Supp. 1094 (N.D. Ill. 1977); In re Harry Alexander, Inc., 8 F.R.D. 559 (S.D.N.Y. 1949).

308. United States v. R. Enterprises, Inc., U.S. (1991); Hale v. Henkel, 201 U.S. 43 (1906);
Schwimmer v. United States, 232 F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833 (1956).

309. Brown v. United States, 276 U.S. 134 (1928); In re Grand Jury Subpoena Duces Tecum,
405 F. Supp. 1192, 1198 (N.D. Ga. 1975); In re United Shoe Mach. Corp., 7 F.R.D. 756 (D.
Mass. 1947).

310. Brown v. United States, 276 U.S. 134 (1928); In re Grand Jury Subpoena Duces Tecum,
391 F. Supp. 991, 999 (D.R.I. 1975); In re United Shoe Mach. Corp., 73 F. Supp. 207 (D. Mass.
1947).

311. In re Harry Alexander, Inc., 8 F.R.D. supra; In re Borden, 75 F. Supp. 857 (N.D. Ill. 1948).

312. In re Grand Jury Subpoenas Duces Tecum, 773 F.2d 204 (8th Cir. 1985).

313. Schwimmer v. United States, 232 F.2d supra; In re Grand Jury Subpoenas Duces Tecum,
483 F. Supp. 1085, 1090 (D. Minn. 1979); In re Radio Corp. of Am., 13 F.R.D. 167 (S.D.N.Y.
1952).

314. See In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973); United States v.
(Under Seal), 714 F.2d 347 (4th Cir.), cert. denied, 464 U.S. 978 (1983); United States v. Doe,
541 F.2d 490 (5th Cir. 1976).

315. 300 F. Supp. at 534.

316. Id.; Bacon v. United States, 449 F.2d 933 (9th Cir. 1971).

317. In re Grand Jury Proceedings, 1972 Trade Cas. (CCH) ¶ 73,857, at 91,594-95 (W.D. Ky.).

318. See Hurtado v. United States, 410 U.S. 578, 588-89 (1973); In re Grand Jury Investigation,
459 F. Supp. 1335 (E.D. Pa. 1978).

319. United States v. R. Enterprises, Inc., U.S. , (1991); In re Grand Jury Subpoena, 920 F.2d
235 (4th Cir. 1990); Beverly v. United States, 468 F.2d 732 (5th Cir. 1972).

320. United States v. R. Enterprises, Inc., U.S. at   ; In re Grand Jury Subpoena Duces Tecum
(M.G. Allen and Assoc., Inc.), 391 F. Supp. 991 (D.R.I. 1975).

321. In re Grand Jury Proceedings, (Schofield I), 486 F.2d 85 (3d Cir. 1973); In re Grand Jury
Proceedings, (Schofield II), 507 F.2d 963 (3d Cir.), cert. denied, 421 U.S. 1015 (1975); see also
In re Special Grand Jury No. 81-1 (Harvey), 676 F.2d 1005 (4th Cir.), vacated, 697 F.2d 112 (4th
Cir. 1982) (en banc) (Subpoena directed to client's attorney).
322. Declined to follow: In re Pantojas, 628 F.2d 701 (1st Cir. 1980); In re Grand Jury
Investigation (McLean), 565 F.2d 318 (5th Cir. 1977); In re Grand Jury Proceedings (Hellman),
756 F.2d 428 (6th Cir. 1985); In re Grand Jury Proceedings (85 Misc. 140), 791 F.2d 663 (8th
Cir. 1986); In re Grand Jury Proceedings (Bowe), 694 F.2d 1256 (11th Cir. 1982). Distinguished:
United States v. Santucci, 674 F.2d 624 (7th Cir. 1982), cert. denied, 459 U.S. 1109 (1983);
United States v. Skipworth, 697 F.2d 281 (10th Cir. 1983).

323. U.S. at ; see also § A.2.a.

324. See Wright, Federal Practice and Procedure, Criminal Section 275.

325. See In re Grand Jury Investigation, 599 F.2d 1224 (3d Cir. 1979); United States v. Calandra,
455 F.2d 750 (6th Cir. 1972), rev'd on other grounds, 414 U.S. 338 (1974); In re Special
September 1978 Grand Jury (II), 640 F.2d 49 (7th Cir. 1980).

326. United States v. Ryan, 402 U.S. 530 (1971); see Cobbledick v. United States, 309 U.S. 323
(1940).

327. United States v. Ryan, 402 U.S. 530 (1971).

328. See also In re Gren, 633 F.2d 825 (9th Cir. 1980) (immediate appeal from an order denying
a motion to quash a subpoena permitted because subpoena recipient was subject to civil suit for
improperly divulging consumer credit information).

329. See Ch. V § M. for a discussion of contempt in the context of a refusal to testify.

330. Fed. R. Crim. P. l7(g):

Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a
contempt of the court from which the subpoena issued or of the court for the district in which it issued
if it was issued by a United States magistrate.

See also § G.4., infra.

331. 18 U.S.C. § 401:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such
contempt of its authority, and none other, as--

(1 Misbehavior of any person in its presence or so near thereto as to obstruct the administration of
) justice;

(2 Misbehavior of any of its officers in their official transactions;

)

(3 Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
 )

332. 28 U.S.C. § 1826:

(a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United
States refuses without just cause shown to comply with an order of the court to testify or provide other
information, including any book, paper, document, record, recording or other material, the court, upon
such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement
at a suitable place until such time as the witness is willing to give such testimony or provide such
information. . . .

333. Nilva v. United States, 352 U.S. 385 (1957); Goldfine v. United States, 268 F.2d 941 (1st
Cir. 1959), cert. denied, 363 U.S. 842 (1960).

334. Brown v. United States, 359 U.S. 41 (1959); United States v. Chandler, 380 F.2d 993 (2d
Cir. 1967).

335. Willfulness is not a necessary element of civil contempt. McComb v. Jacksonville Paper
Co., 336 U.S. 187 (1949); T.W.M. Mfg. Co. v. Dura Corp., 722 F.2d 1261 (6th Cir. 1983), cert.
denied, 479 U.S. 852 (1986).

336. Shillitani v. United States, 384 U.S. 364 (1966).

337. Id.; Newman v. Graddick, 740 F.2d 1513 (11th Cir. 1984).

338. United States v. United Mine Workers, 330 U.S. 258 (1947).

339. See also United States v. Twentieth Century Fox, 882 F.2d 656 (2d Cir. 1989) (organization
has a right to a jury trial when fine imposed for criminal contempt exceeds $100,000), cert.
denied, U.S. (1990).

340. If the recipient or corporate representative appears before the grand jury and fails or refuses
to produce the subpoenaed material, in whole or in part, counsel for the Government should take
the opportunity to adduce the necessary evidence at that time regarding the document's control,
custody or possession and the recipient's willfulness in failing or refusing to produce.

341. United States v. Johnson, 247 F.2d 5 (2d Cir.), cert. denied, 355 U.S. 867 (1957).

342. Harris v. United States, 382 U.S. 162 (1965).

343. See, e.g., Harris v. United States, 382 U.S. 162 (1965); United States v. Willett, 432 F.2d
202 (4th Cir. 1970).
344. Shillitani v. United States, 384 U.S. 364 (1966); In re Rosahn, 671 F.2d 690 (2d Cir. 1982);
United States v. Anderson, 553 F.2d 1154 (8th Cir. 1977); United States v. Hawkins, 501 F.2d
1029 (9th Cir.), cert. denied, 414 U.S. 1079 (1974).

345. Gompers v. Buck's Stove & Range Co., 221 U.S. 418 (1911); In re Dinnan, 625 F.2d 1146
(5th Cir. 1980); Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770 (9th Cir. 1983).

346. See United States v. National Gypsum Co., 1972 Trade Cas. (CCH) ¶ 74,173, at 92,870
(W.D. Pa.).

347. In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973); In re Grand Jury
Proceedings (Schofield II), 507 F.2d 963 (3d Cir.), cert. denied, 421 U.S. 1015 (1975); see also
In re Special Grand Jury No. 81-1 (Harvey), 676 F.2d 1005 (4th Cir.), vacated, 697 F.2d 112 (4th
Cir. 1982) (en banc). But see United States v. R. Enterprises, Inc., U.S. (1991).

348. See §§ A.1.a. and F.3., supra.

349. See United States v. Sternman, 415 F.2d 1165 (6th Cir. 1969), cert. denied, 397 U.S. 907
(1970).

350. In re Grand Jury Proceedings (Doe), 602 F. Supp. 603, 610 (D.R.I. 1985).

351. For a more detailed discussion of the application of the 4th Amendment to subpoenas, see
§ C.2.b.

352. Hale v. Henkel, 201 U.S. 43 (1906); United States v. White, 322 U.S. 694 (1944). For a
more detailed discussion of the application of the 5th Amendment to subpoenas, see § C.2.c.

353. Bellis v. United States, 417 U.S. 85 (1974).

354. See Braswell v. United States, 487 U.S. 99 (1988); United States v. Antonio J. Sancetta,
M.D., P.C., 788 F.2d 67, 74 (2d Cir. 1986); In re Grand Jury Empaneled March 17, 1987, 836
F.2d 150 (3d Cir. 1987); United States v. Lang, 792 F.2d 1235, 1240-41 (4th Cir.), cert. denied,
479 U.S. 985 (1986); In re Grand Jury Proceedings (Morganstern), 771 F.2d 143 (6th Cir.), cert.
denied, 474 U.S. 1033 (1985); In re Grand Jury Subpoena (85-W-71-5), 784 F.2d 857, 861 (8th
Cir. 1986), cert. dismissed, 479 U.S. 1048 (1987); United States v. Vallance, 793 F.2d 1003,
1005-06 (9th Cir. 1986); In re Grand Jury Proceedings (Vargas), 727 F.2d 941, 946 (10th Cir.),
cert. denied, 469 U.S. 819 (1984); In re Grand Jury No. 86-3 (Will Roberts), 816 F.2d 569, 570
(11th Cir. 1987).

355. United States v. MacKey, 647 F.2d 898 (9th Cir. 1981).

356. United States v. MacKey, 647 F.2d supra; In re Grand Jury Subpoena Duces Tecum, 522 F.
Supp. 977 (S.D.N.Y. 1981); United States v. Waltman, 394 F. Supp. 1393 (W.D. Pa.), vacated on
other grounds, 525 F.2d 371 (3d Cir. 1975); In re Grand Jury Proceedings, 349 F. Supp. 417
(N.D. Ohio 1972).
357. Gelbard v. United States, 408 U.S. 41 (1972); see Ch IV § D.4.

358. Id. at 47; see In re Marcus, 491 F.2d 901 (1st Cir.), vacated, 417 U.S. 942 (1974).

359. For a discussion as to what documents are necessary to prove a valid intercept, see
U.S.A.M. 9-7.110 and 7.113.

360. See § A.1., supra, for a more detailed discussion of the appropriate scope of grand jury
subpoenas.

361. Dupuy v. United States, 518 F.2d 1295 (9th Cir. 1975).

362. In re Grand Jury Proceedings (Taylor), 509 F.2d 1349 (5th Cir. 1975); Latona v. United
States, 449 F.2d 121 (8th Cir. 1971).

363. See In re Grand Jury Proceedings (Gravel), 605 F.2d 750 (5th Cir. 1979); United States v.
Patrick, 542 F.2d 381 (7th Cir. 1976), cert. denied, 430 U.S. 931 (1977).

364. See U.S.A.M. 9-11.160.

365. See Wright, Miller & Cooper, Fed. Prac. and Proc. 15 Jurisdiction § 3917 (1976); United
States v. Martin Linen Supply Co., 485 F.2d 1143 (5th Cir. 1973) (Government appeal of denial
of criminal and civil contempt), cert. denied, 415 U.S. 915 (1974); United States v. Metropolitan
Disposal Corp., 798 F.2d 1273 (9th Cir. 1986) (witness appeal of criminal contempt).

366. Weyerhaeuser Co. v. International Longshoremen's Union, 733 F.2d 645 (9th Cir. 1984).

367. United States v. Goldman, 277 U.S. 229 (1928); United States v. Sanders, 196 F.2d 895
(10th Cir. 1952).

368. See Ch. V.

369. See U.S.A.M. 9-11.140.

370. United States v. Lartey, 716 F.2d 955, 962 (2d Cir. 1983).

371. See United States v. Re, 313 F. Supp. at 449-50.

372. United States v. Lartey, 716 F.2d 955, 962 (2d Cir. 1983) (document returns required by
4:00 p.m.; subpoenas served at 3:50 p.m. and 4:00 p.m.); United States v. Re, 313 F. Supp. 442
(S.D.N.Y. 1970) (subpoena served on the morning before production was due).

373. United States v. International Business Machs. Corp., 83 F.R.D. 97 (S.D.N.Y. 1979).

374. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); United States v. Lartey, 716 F.2d
955, 962 (2d Cir. 1983).
375. United States v. Ryan, 402 U.S. 530, aff'g 444 F.2d 1095 (9th Cir. 1971).

376. See Consumer Credit Ins. Agency, Inc. v. United States, 599 F.2d 770 (6th Cir. 1979)
(totality of circumstances test to determine if consent was given), cert. denied, 445 U.S. 903
(1980).

377. Id. at 774.

378. Id.

379. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

380. See United States v. Hilton, 534 F.2d 556, 565 (3d Cir.) (forthwith subpoena issued when
grand jury is not in session is not a substitute for a proper search warrant), cert. denied, 429 U.S.
828 (1976).

381. A grand jury may issue subpoenas for evidence to discover whether there exists probable
cause to believe that a crime has been committed. By contrast, before a search warrant may
issue, the Government must establish probable cause to believe that an offense has been
committed.

382. In a prosecution for obstruction of justice, 18 U.S.C. § 1503, or criminal contempt, 18

U.S.C. § 401 or Fed. R. Crim. P. 42, the defendant's possession of documents responsive to a
grand jury subpoena is likely to be a link in the chain of evidence which will convict the
defendant.

383. United States v. Doe, 465 U.S. 605 (1984).

384. Carroll v. United States, 267 U.S. 132, 162 (1952); see Brinegar v. United States, 338 U.S.
160, 175-76 (1949).

385. Jones v. United States, 362 U.S. 257, 271 (1960); United States v. Melvin, 596 F.2d 492
(1st Cir.), cert. denied, 44 U.S. 837 (1979).

386. There are three categories of items that may be seized pursuant to a search warrant: (1)
items that are evidence of the commission of a crime; (2) contraband, the fruits of crime or things
otherwise criminally possessed; and (3) items that have been used to commit a crime or that are
designed or intended to commit a crime. Fed. R. Crim. P. 41(b). In an antitrust case, the search
warrants will usually be for documents that constitute evidence of a crime.

387. Fed. R. Crim. P. 41(c)(2).

388. Fed. R. Crim. P. 41(c)(1).

389. Illinois v. Gates, 462 U.S. 213, 238 (1983).

390. Id. at 230.

391. See Jaben v. United States, 381 U.S. 214, 224 (1965).

392. Jones v. United States, 362 U.S. 257, 271 (1960).

393. United States v. Long, 449 F.2d 288, 293 (8th Cir. 1971), cert. denied, 405 U.S. 974 (1972).

394. Draper v. United States, 358 U.S. 307, 313 (1959); United States v. Roman, 451 F.2d 579,
581 (4th Cir. 1971), cert. denied, 405 U.S. 963 (1972); United States v. Jiminez-Badilla, 434
F.2d 170, 172-73 (9th Cir. 1970).

395. See Illinois v. Gates, 462 U.S. 213, 233-34 (1983); Adams v. Williams, 407 U.S. 143, 146-
47 (1972).

396. Stanford v. Texas, 379 U.S. 476, 485 (1965); Coolidge v. New Hampshire, 403 U.S. 443,
467 (1971).

397. United States v. Wuagneux, 683 F.2d 1343, 1348 (11th Cir. 1982), cert. denied, 464 U.S.
814 (1983).

398. Id. at 1349.

399. See United States v. Cardwell, 680 F.2d 75, 77 (9th Cir. 1982).

400. United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982).

401. United States v. Wuagneux, 683 F.2d at 1349.

402. United States v. Tamura, 694 F.2d at 595.

403. See Steele v. United States, 267 U.S. 498, 503 (1925).

404. See United States v. Bedford, 519 F.2d 650, 654-55 (3d Cir. 1975), cert. denied, 424 U.S.
917 (1976).

405. "Property" is defined in Rule 41(h) to "include documents, books, papers and any other
tangible objects."

406. See § I.2.a., supra.

407. In a recent search in Portland, Oregon, the FBI assigned eight agents to conduct a search for
withheld documents at a single business location, a search which took approximately three hours.

408. An exemplar of this form is attached as Appendix III-6.

409. See discussion of probable cause, § 2.a., supra.

410. See discussion of particularity, § 2.b., supra.

411. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978).

412. See Shea v. Gabriel, 520 F.2d 879, 882 (1st Cir. 1975); Offices of Lakeside Non-Ferrous
Metals v. United States, 679 F.2d 778, 779-80 (9th Cir. 1982).

413. DiBella v. United States, 369 U.S. 121, 131 (1962).

414. Id.

415. Id. at 131-32.

416. 18 U.S.C. § 3731.

 TABLE OF CONTENTS

IV. Presenting Evidence to the Grand Jury

A. Initial Session
B. Note-Taking by Grand Jurors
C. Statements by the Prosecutor Before the Grand Jury
1. All Discussions with Grand Jurors must be Recorded
2. Opening
3. Legal Advice
4. Discussions of Strategy
5. Review of Plans for a Session
6. Responding to Grand Jurors' Questions
7. Advising Grand Jury on Hearsay
8. Advising Grand Jury on 5th Amendment
9. Use of Summaries
10. Presentation of Indictment
11. Disclosing Facts not in Evidence
12. Presenting Evidence from a Prior Grand Jury - Limitations and Requirements
13. Expressing Personal Opinions
14. Testimony by a Prosecutor
15. Discussions with Grand Jurors Outside of Session
D. Permissible Evidence
1. Admissible Evidence
2. Hearsay
3. Illegally Obtained or Incompetent Evidence
4. Recorded Communications
E. Use of Subpoenaed Documents
1. Impounding Order
2. Negotiating Strategy for Document Return
3. Return of Documents to the Grand Jury
4. Handling of Grand Jury Documents
5. Computerized Document Control
6. Access to Documents by Owner
7. Return of Documents at Close of Investigation
F. Witnesses
1. Target/Subject Definition
2. Rights of Witness
3. Department of Justice Policy re: Advice of Rights and Target Status
4. Subpoenaing a Subject or Target
5. Interviewing Grand Jury Witnesses
6. Questioning Witnesses
7. Access by Witness to Counsel
8. Note-Taking by Witness
9. Abuse of Witness
10. Advising Witness of Inconsistent Evidence
11. Opportunity to Correct or Racant Testimony
12. Advising Witness of Perjury Statute
 G. Exculpatory Evidence
1. Legal Standards
2. Department of Justice Policy
3. Requests by Subjects or Targets to Testify or Present Evidence to the Grand Jury
H. Grand Jury Abuse
1. Nature of the Problem and its Effect
2. Jurisdiction of the Court
3. Supreme Court Authority Limiting a Court's Ability to Dismiss Indictments Based on
Grand Jury Abuse
4. Typical Allegations of Misconduct
5. Preventative Measures

IV. PRESENTING EVIDENCE TO THE GRAND JURY

A. Initial Session

At the first grand jury session, the staff introduces itself to the grand jurors, explains the nature
of the investigation and the applicable antitrust laws, and, if appropriate, conducts a voir dire of
the grand jurors. Additionally, the staff should discuss housekeeping details, such as scheduling
future grand jury sessions.(1) Copies of the Federal Handbook for Grand Jurors are distributed at
this meeting, if they have not been received earlier. The first session also can be used to take
testimony or to have documents returned.

This initial session is critical because it is usually the first time the grand jurors meet the
Antitrust Division staff and form their first impressions of the staff's competence and
professionalism. This meeting also provides an opportunity for the staff to begin to develop a
rapport with the grand jurors(2) by letting them know that the staff works for them and
demonstrating concern for their needs.

At the beginning of a new grand jury investigation, the lead attorney should identify himself by
stating his name and purpose in appearing before the grand jury. For example:

My name is ______________. I am an attorney for the Antitrust Division of the United States
Department of Justice. I am here today to present for your consideration evidence regarding a possible
violation of the United States Code, committed by _____________.

All other Division attorneys appearing before the grand jury should be introduced and identified
for the record.(3) A brief explanation of the general makeup and function of the Antitrust Division
might also be appropriate. A short explanation that the grand jury's purpose is to investigate
alleged antitrust violations in a particular industry should be given. A description of the antitrust
laws, including their prohibitions and purposes, and the benefits of competition usually follows.
Then the elements of the relevant statute can be explained. For example, when discussing
Section 1, the concepts of "agreement", "two or more people", "conspiracy", and "interstate
commerce" should be discussed. It is also helpful to give examples of prohibited behavior such
as price-fixing, bid-rigging or allocation schemes. If the grand jury is being shared with a United
States Attorney, it is prudent to explain the difference between an antitrust investigation and
other matters, such as the large amount of documents antitrust cases typically involve and the
need to use the grand jury as an investigative tool.

Once the basic legal framework is set forth, the grand jurors can be told generally about the way
the investigation will proceed. They should understand that the evidence will consist of both
testimony and documents, and should be informed of any actions already taken, such as the
issuance of subpoenas duces tecum or ad testificandum, and the entry of impounding, transfer, or
any other orders. A copy of the subpoenas issued may be provided and the types of documents
requested may be discussed.(4) The jurors should be advised that they can review any documents
they wish and request that additional documents be obtained. This is also a good time to explain
that some witnesses may receive immunity. What immunity is, why it is necessary, the process
used for obtaining it, and its significance should be covered.

If it has not already been covered by the district court judge or the U.S. Attorney, the burden of
proof should be discussed, as well as the role of the grand jurors. Point out that their function is
different from that of a trial jury and that the burden of proof is different. Explain what they will
be asked to do at the completion of the investigation.

The grand jury should be told how and why the grand jury is important, and why attendance at
every session is critical. The attorney should explain that he is there to assist them in their jobs,
and that their help is essential to the process. A reminder about the secrecy of the proceeding is
usually appropriate.

If the investigation is being conducted by a previously-empaneled grand jury, or if the grand

jurors were not asked enough information before the empanelment to ensure that they can fairly
and impartially consider the evidence presented, a voir dire-like procedure may be used.
Practices vary in different districts, so consultation with the U.S. Attorney prior to the session is
necessary. One way of proceeding is for the attorney to ask questions about whether any grand
juror knows any of the anticipated subjects, is employed by a subject company, has knowledge
of any previous investigation or has any other interest which would prevent him from rendering a
fair, impartial and just verdict based solely upon the evidence presented. In some districts, this
questioning occurs outside the presence of the rest of the jury to minimize any embarrassment to
the potential juror. Also, in some districts, the foreperson or the supervising judge will do the
questioning. Any juror who indicates any interest that may interfere with a fair, impartial or just
verdict should be questioned at length, and if the staff is convinced a juror should be removed,
the appropriate steps should be taken.(5)

The staff should also address administrative matters at this initial session. A discussion of how
sessions will be scheduled and the anticipated length of the sessions is necessary. (Keep in mind
that the grand jury may be needed for other investigations, so coordination with the local U.S.
Attorney is essential.) To the extent that the judge, the clerk, or the U.S. Attorney have not
already established the schedule, the staff should discuss breaks, lunch hours, and any rules
about smoking, eating or drinking in the grand jury room. The grand jurors should be consulted
if the staff believes that some change in the schedule is needed. Whether there should be note-
taking, and any safeguards to be adopted to protect those notes should also be covered.

The grand jurors will want to know when and how they can ask questions. Most attorneys
request that the grand jurors hold their questions until after the attorney's examination has been
completed. Sometimes, however, especially during long examinations, questions are handled
after particular subject areas.

B. Note-taking by Grand Jurors

18 U.S.C. § 1508 forbids the recording of the proceedings of a grand jury while it is deliberating
or voting. However, the statute also states that "nothing in paragraph (a) of this section shall be
construed to prohibit the taking of notes by a grand or petit juror in any court of the United States
in connection with and solely for the purpose of assisting him in the performance of his duties as
such juror."

In essence, the statute does not expressly provide that grand jurors have a right to take notes
during a session; it only provides that the statute shall not be construed to say that they cannot do
so. Note-taking by grand jurors enhances the opportunities for a violation of grand jury secrecy(6)
and might lead some jurors to rely more on the notes than on their own recollection of the
evidence. On the other hand, note-taking can help jurors follow the testimony and formulate their
questions, particularly in complicated or lengthy investigations.

The court, in the exercise of its general supervisory power over the grand jury, has the authority
to regulate note-taking and actual practice varies among the districts. Any established note-
taking procedures in a particular district should be followed. If there are no set procedures or
policies and the grand jurors want to take notes, then the following procedure is recommended:
note-taking materials should be provided to the jurors at the beginning of each session and
collected at the end of the session, by either the foreman or the attorney conducting the
investigation, and deposited under lock with the court clerk. The grand jurors should be
instructed that their notes cannot be removed from the grand jury room, except for daily
transportation to and from the clerk's office. Upon expiration of the term of service of the grand
jury, all notes should be turned in to the clerk for prompt destruction.

It is essential that the grand jurors understand the importance of grand jury secrecy. However,
tact should be used in attempting to limit or restrain note-taking so that the grand jurors are not
alienated. In difficult situations, the court should always be consulted.

C. Statements by the Prosecutor Before the Grand Jury

The responsibility of the prosecutor is "to advise the grand jury on the law and to present
evidence for its consideration."(7) This section defines the parameters of permissible conduct by a
prosecutor before the grand jury.

1. All discussions with grand jurors must be recorded

Rule 6(e)(1) of the Federal Rules of Criminal Procedure provides, in pertinent part:

All proceedings, except when the grand jury is deliberating or voting, shall be recorded stenographically
or by an electronic recording device. . . . The recording or reporter's notes or any transcript prepared
therefrom shall remain in the custody or control of the attorney for the government unless otherwise
ordered by the court in a particular case.

Many United States Attorneys' offices have authorized the court reporter who reports grand jury
proceedings to act as an agent of the office in maintaining custody and control of all grand jury
stenographic notes, electronic tape recordings, and transcripts. The Division practice, however, is
to obtain the transcripts as soon as they are ready after a session. The court reporter should be
requested to transmit the stenographic notes and tape recordings to the appropriate Division
office upon completion of the investigation.

The court reporter should be advised that Rule 6(e)(1) requires that all proceedings and
statements made in the presence of the grand jury, whether or not a witness is present, be
recorded once the grand jury room door is closed and the foreperson of the grand jury has called
the grand jury into session. Prosecutors should not engage in any conversation or answer any
questions of grand jurors relating to the investigation until the grand jury session is called to
order and the conversations and questions can be recorded. If a grand juror asks a question prior
to the commencement of a session or after a session has been concluded, the Division attorney
should politely advise the grand juror that it is not proper for the attorney to answer the question
until the session is properly being recorded.(8) Attorneys should not state that they are going "off
the record" on non-case-related matters, such as lunch schedules. Doing so only invites abuse
motions by defense counsel. Instead, the court reporter should be instructed at the outset not to
transcribe colloquy with the grand jurors, although the colloquy must be recorded.

Any unintentional failure to record a "grand jury proceeding" would be a Rule 6(e)(1) violation
but should not result in the dismissal of an indictment. Rule 6(e)(1) specifically provides that:

An unintentional failure of any recording to reproduce all or any portion of a proceeding shall not affect
the validity of the prosecution.

2. Opening

Since most grand jurors are not familiar with the Division or the antitrust laws, it generally is
useful to describe where the Division fits in the Justice Department's organizational structure and
the laws the Division is primarily responsible for enforcing. Similarly, since the Division's grand
jury investigations tend to be more complex and last longer than the typical presentation by the
local U.S. Attorney's office, it may be useful to describe to the grand jury the nature of the
investigation and the way in which you expect to conduct it. For example, in a typical
investigation of bid-rigging in a specific industry, you might tell the grand jury that the first step
in the investigation will be issuance of subpoenas duces tecum to industry members; that the next
step will be general testimony from a knowledgeable individual about the bidding process; and,
thereafter, that more specific testimony from individual industry participants will be presented.
You should also tell the grand jury how long you expect the investigation to continue.
A brief general summary of the evidence may be given at the outset of an investigation to
introduce a case to the grand jury. If you decide to give such a statement, you should be careful
to treat this like an opening statement at trial. Do not overstate the evidence. You should caution
the grand jury that "you expect" they will hear certain evidence and that what you say is not
evidence and should not be considered by the grand jury in any subsequent voting on proposed
indictments.(9)

3. Legal advice

Although the purpose of the grand jury requires that it remain free, within constitutional and
statutory limits, to operate independently of either prosecuting attorney or judge,(10) the
prosecutor is authorized to assist the grand jury in conducting its inquiry by advising the grand
jury on the applicable law.(11) By advising the grand jury on the law and the elements of the
offense alleged in the proposed indictment, a prosecutor does not become an improper witness
before the grand jury.(12)

Since most grand jurors are not familiar with the Sherman Act or with conspiracy law, it
generally is useful to instruct the jury completely on the elements of each charged offense. If
improper instructions are given, the indictment should not be invalidated because courts
generally have held that if an indictment is valid on its face, there is no need to examine grand
jury minutes to determine if the prosecutor improperly instructed the grand jury.(13) Nonetheless,
Division attorneys should be careful to give accurate instructions.

4. Discussions of strategy

Because of the length of Division grand jury investigations, it often is advisable to discuss the
Government's strategy in subpoenaing documents and the order and nature of witnesses to be
called. Occasionally, the jury may have to decide certain questions, for example, whether they
want to hear live testimony or to have a transcript of prior testimony read to them. The Division
attorney conducting the investigation may discuss the alternatives in a non-argumentative way,
but the final decision as to how to proceed must be made by the jurors.

Attorneys should not initiate discussions of internal Division procedures and should as tactfully
as possible try to avoid answering questions about such procedures. If questions concerning
internal Division procedures should arise, the jurors should be cautioned that neither the internal
procedures nor any resulting delay in the grand jury proceedings should influence their vote on
any potential indictment.

5. Review of plans for a session

It is sometimes important, at the start of a session or a series of sessions, to review the evidence
to ensure that all jurors are fully informed. This is particularly true if a long time has elapsed
between sessions, a number of jurors were absent at the most recent sessions, or important
evidence was adduced at the last session. Following this recap, it generally is wise to advise the
grand jury of the day's witnesses and why they are being called. A brief background sketch of
each witness may be useful. While it is normally improper for an attorney to introduce facts not
already in the record, providing the grand jury with a brief background description of a witness
should not be objectionable.(14)

At the close of each session, the staff should advise the jurors when to return for the next session,
if this is known, and may wish to briefly advise the jurors as to what will occur at the next
session.

6. Responding to grand jurors' questions

Time should be set aside, either at the beginning or the end of each day, to permit the grand
jurors to ask questions of the staff and make observations. Staff may also find it useful to
respond to questions at the conclusion of each witness' testimony. Such questions may concern
either legal or factual matters and the staff should be fully prepared to answer them.

Responding to grand jurors' questions is clearly a permissible practice by the prosecutor.(15) The
prosecutor may explain the law and necessary burden of proof and weight of evidence issues.(16)
He may respond to questions by stating facts that are already part of the record.(17) If facts
responsive to the juror's question are not yet a matter of record but are likely to be introduced at a
later time, the juror should be so informed and the question deferred. The attorney should avoid a
response that is, in effect, new testimony.(18) If the question calls for an opinion, the attorney may
politely decline to respond to the question or respond, making it clear that the answer is only his
personal opinion based on evidence in the record and in no way binding on the grand jury.(19)

Occasionally, grand jurors will ask questions calling for irrelevant and possibly prejudicial
information. While jurors normally should be allowed the widest latitude in receiving evidence,
the prosecutor must also recognize his responsibility to prevent the introduction of irrelevant and
prejudicial information. In responding to such questions, Division attorneys should either
respond to the inquiry and explain the limited value of the response or should tactfully decline to
respond, explaining that the material is not relevant and its introduction could result in a claim of
grand jury abuse.

7. Advising grand jury on hearsay

Hearsay evidence is admissible in grand jury proceedings.(20) However, the Second Circuit in
United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972), established a rule that hearsay is
admissible only if "the prosecutor does not deceive grand jurors as to 'the shoddy merchandise
they are getting so they can seek something better if they wish'. . . or that the case does not
involve 'a high probability that with eyewitness, rather than hearsay testimony, the grand jury
would not have indicted.'" The Estepa rule is highly questionable in light of United States v.
Calandra, 414 U.S. 338 (1974), Costello v. United States, 350 U.S. 359 (1956), and Bank of
Nova Scotia v. United States, 487 U.S. 250 (1988), and has been met by a general lack of
enthusiasm by other circuits. Nonetheless, as a practical matter, Division attorneys can avoid
application of the Estepa rule by informing the grand jury of the hearsay nature of the testimony
it is hearing and by offering to present eyewitness testimony if necessary.(21) Further, when
transcripts from a prior grand jury are presented to a new grand jury, the grand jurors should be
advised of the hearsay nature of the transcripts and should be given the opportunity to recall any
witnesses.

The Department disagrees with the rule in Estepa. Nonetheless, Department policy provides that
"hearsay evidence should be presented on its merits so that jurors are not misled into believing
that the witness is giving his/her own personal account."(22)

8. Advising grand jury on 5th Amendment

Frequently, the subject of an investigation is given the opportunity to testify before the grand
jury but does not do so because of his 5th Amendment privilege against self-incrimination. If a
grand juror asks why a subject has not appeared to testify, he should be advised that the subject
has chosen not to appear and that the grand jury should make no inferences with regard to guilt
from this act.(23)

9. Use of summaries

Summarizing evidence for the grand jury is a common and useful practice. It is often important
to review and summarize the evidence at the start of a series of grand jury sessions. This is
particularly important if a long period has elapsed between sessions or if significant evidence
was adduced at a prior session at which a juror was absent. Using a witness, particularly an
expert witness, to present summaries of documentary evidence or evidence from a prior grand
jury may also be extremely useful in complex investigations. Finally, the evidence in general and
the evidence implicating each proposed defendant should normally be summarized at the final
grand jury session before the grand jury is requested to vote on the proposed indictment.

The practice of summarizing evidence produced before a grand jury has a long history of judicial
approval. In United States v. Rintelen, 235 F. 787 (S.D.N.Y. 1916), Judge Augustus Hand
concluded that an attorney before a grand jury "may question witnesses, advise as to the law and
explain the relation of the testimony to the law of the case. In doing this, he may review the
evidence." Judge Hand further noted that no reasonable objection could be urged against
allowing the man who prepared the case to refresh the recollection of the grand jurors by
summarizing the evidence taken perhaps over weeks or months, since in a complicated case,
such a practice would prevent confusion on the part of the jurors.(24)

Attorneys should be careful when summarizing evidence to refrain from unduly influencing or
coercing the grand jurors. Caution must be exercised to avoid becoming overzealous in
presenting the case to the grand jury. Remarks made by a prosecutor may justify dismissal where
"such remarks so biased the grand jurors that their votes were based upon their bias."(25) To avoid
any problems, attorneys should inform the grand jurors that their remarks are not evidence.

Defendants frequently object to the use of summaries in presenting testimony from prior grand
juries(26) or in presenting compilations of documentary evidence.(27) However, dismissal on such
grounds is extremely rare. Summaries are generally considered a form of hearsay testimony and
indictments based on such summaries will not be dismissed absent a showing that the use of the
summary amounted to a flagrant abuse of the grand jury process. As stated in United States v. Al
Mudarris, 695 F.2d 1182, 1187 (9th Cir.), cert. denied, 461 U.S. 932 (1983), a case upholding the
use of a summary witness:

The summary witness procedure is an economical and expedient means of presenting evidence to a
grand jury. But the evidence is necessarily derivative and abbreviated. The prosecutor must not abuse
the device by pressuring grand jurors into a precipitous decision or otherwise discouraging them from
evaluating the predicate evidence.

Attorneys should generally check with the U.S. Attorney's office in the district in which the
grand jury is sitting to determine whether there are any special requirements for the use of
summaries in that jurisdiction. For example, some courts have held that the use of summaries is
permissible provided that the individual presenting the summary is sworn.(28) Another court has
stated that the use of a summary is improper if it is "misleading or incomplete."(29) In any event,
the use of summaries of evidence should not invalidate an indictment unless there is a showing
of actual prejudice to the defendants.(30)

10. Presentation of indictment

When presenting a proposed indictment to a grand jury for its vote, care should be taken to
insure that the grand jurors are aware that the decision as to returning an indictment is their own
and that they are not obliged to follow any opinions or recommendations that may have been
expressed by the Government's attorneys. To avoid any later charge of improper influence,
attorneys should be careful to avoid stating any opinions as to guilt. If an opinion is unavoidable,
it should be clearly expressed only as the attorney's opinion based upon the evidence before the
grand jury.(31) The jurors also should be reminded that their duty is to determine only whether the
evidence is sufficient to convince them that "probable cause" exists of the guilt of any proposed
defendant. It is not their job to determine guilt beyond a reasonable doubt.

According to an April 17, 1969 memorandum of the Director of Operations, Division attorneys
are directed to use the following procedures when presenting an indictment to the grand jury:

1. Before the grand jury begins its final deliberations, the attorney for the Government should
either read verbatim, or summarize in some detail, the various charges contained in the
indictment under each count, including the defendants proposed for indictment, and the
interstate commerce allegations.
2. At the conclusion of the presentation, the attorney for the Government should leave the original
or a copy of the proposed indictment with the grand jury so that it is available to all the jurors
during the course of their deliberations.
3. The indictment should be signed by the foreman of the grand jury in the presence of the grand
jurors and the attorney for the Government, before presentment to the court.

There is some disagreement as to whether the grand jury should be presented with a signed or
unsigned indictment. The preferred practice in the Division is to provide the jurors with a copy
of the proposed indictment with the signature page omitted. The original of the indictment
containing the signatures of everyone except the foreman is not displayed to the jurors until after
a vote has been taken, on the theory that it will prevent any later contention that the jurors were
influenced by the prosecutors' signatures. After the foreman advises that a vote has been taken,
he is given the original indictment which he signs. Some Division attorneys leave the original
signed indictment with the jurors during their deliberations. This is not ordinarily a good practice
and is frowned upon in a number of jurisdictions.(32) Nonetheless, no court has dismissed an
indictment because of pre-signature by the prosecutor without a showing that the prosecutor
actually exerted undue influence on the grand jury.(33)

When leaving the grand jurors to allow them to deliberate, the staff normally should arrange to
have all grand jury transcripts and documentary evidence in the grand jury room. The grand
jurors should be advised that they are free to review this material during their deliberations.

11. Disclosing facts not in evidence

A prosecutor should not disclose facts not in evidence to the grand jury. By disclosing facts not
in evidence, the prosecutor, in effect, becomes an unsworn witness.(34)

As with other forms of inappropriate prosecutorial conduct, disclosure of facts not in evidence to
the grand jury should not result in the dismissal of an indictment unless the facts so biased the
grand jury that they were deprived of autonomous and unbiased judgment.(35) Courts generally
will not criticize the disclosure of facts not in evidence where the facts relate to insubstantial or
uncontested matters or where they concern a matter of formality rather than a matter
substantially material to the indictment.(36) The more substantial the fact, the more likely a court
will find fault and consider some form of sanction. Nonetheless, attorneys should caution the
grand jury that what they say is not evidence and should not be considered in any subsequent
voting on a proposed indictment.

12. Presenting evidence from a prior grand jury - limitations and requirements

Attorneys may present evidence from a prior grand jury to a subsequent grand jury in the same
district or a different district.(37) The procedures, limitations and requirements for presenting
evidence from a prior grand jury vary from jurisdiction to jurisdiction. Thus, the U.S. Attorney's
Office and the local case law should be consulted before presenting such evidence. The
discussion that follows is intended to highlight the major variables affecting the presentation of
evidence from prior grand juries.

The preferred practice in the Division is to present the new grand jury with all transcripts of
testimony and documentary evidence from the prior grand jury. Most jurisdictions prefer a
complete record to be presented to the subsequent grand jury but would not dismiss an
indictment for failing to do so.(38) A few jurisdictions permit the presentation of only a selected
amount of prior grand jury evidence.(39) Such jurisdictions usually permit this practice only if the
sitting grand jury will not be significantly misled.(40)

A frequently used practice of Division attorneys is to read selected grand jury transcripts or
portions thereof to a new grand jury. This generally is considered to be permissible. As stated in
United States v. Chanen, 549 F.2d 1306, 1311 (9th Cir.), cert. denied, 434 U.S. 825 (1977):
"Reading transcripts of sworn testimony, rather than presenting live witnesses, simply does not
constitute . . . fundamental unfairness or a threat to the integrity of the judicial process."
Nonetheless, attorneys should be aware of any local restrictions that apply to the reading of prior
grand jury transcripts. For example, in those jurisdictions that follow Estepa,(41) the attorney
should explain the hearsay nature of the prior transcript and should advise that live witnesses will
be called if desired.(42) Most jurisdictions permit the attorney for the Government to read the
transcripts,(43) while others prefer that the transcripts be read to the grand jury by someone other
than one of the presenting attorneys.(44) One Circuit urges that any reading of transcripts by a
Government agent be supervised by a presenting attorney.(45) A practice that is followed by other
components of the Department is to have the foreman or one of the other grand jurors read the
transcript.(46)

Another frequently used method of presenting evidence from prior grand juries is the use of
summaries. Summarizing prior grand jury testimony(47) or documentary evidence(48) is perfectly
acceptable. Some courts have suggested that the use of summaries would be improper if they
were misleading or incomplete(49) or unduly prejudicial.(50) The practice usually followed by the
Division and preferred by some courts is to have available for examination by the grand jury the
transcripts of those witnesses whose testimony is summarized.(51)

In general, attorneys are given fairly wide latitude in presenting evidence from one grand jury to
another, so long as the attorney's conduct is not so outrageous or prejudicial that his will is
substituted for the will of the grand jury. While dismissal of an indictment is rare, it does happen
and attorneys should be fully aware of the requirements in their jurisdiction.(52)

13. Expressing personal opinions

A prosecutor may explain the law and express an opinion on the legal significance of the
evidence, but otherwise should avoid making any statements or arguments that would improperly
influence the grand jurors. A prosecutor's personal opinion may be considered a form of
unsworn, unchecked testimony.(53) If a prosecutor expresses a personal opinion, he should
instruct the grand jury that they are in no way bound by this opinion and must exercise their own
independent judgment. In addition, any opinion expressed by a prosecutor should be based on
evidence already in the record. As stated in United States v. McKenzie, 678 F.2d 629, 632 (5th
Cir.), cert. denied, 459 U.S. 1038 (1982):

"It is not improper . . . for an attorney merely to state an opinion as to guilt or as to any fact at issue, as
long as it is clear to the jury that the opinion is based only on the evidence that is before the jury and the
jury itself can evaluate."

One practice that courts particularly dislike is that of vouching for or commenting on the
credibility of a witness.(54) On the other hand, commenting on the ultimate guilt or innocence of a
proposed defendant is not generally considered to be improper.(55) While many courts have
cautioned prosecutors about expressing personal opinions, few indictments have been dismissed
on this basis. As with other areas of grand jury abuse, an indictment will be dismissed only if the
expression of the prosecutor's personal opinions "so biased the grand jury that their votes were
based upon their bias."(56)
 14. Testimony by a prosecutor

A Division attorney may not be both an attorney before the grand jury and a witness. If an
attorney appearing before the grand jury must testify before the grand jury, he should
immediately cease performing his prosecutorial function. In United States v. Treadway, 445 F.
Supp. 959 (N.D. Tex. 1978), an attorney for the Division testified before the grand jury as a
witness and then remained in the grand jury room as the lead attorney presenting evidence to the
grand jury. The judge held that where a Government attorney provided independent substantive
testimony before the grand jury yet remained as presenting attorney, the resulting indictment
must be dismissed. The judge's decision was based in large part upon the questionable notion
that after the attorney testified and then remained in the grand jury room, he became an
unauthorized person before the grand jury.

At least one circuit has declined to automatically dismiss an indictment where the attorney's
testimony was procedural in nature. In United States v. Birdman, 602 F.2d 547 (3d Cir. 1979),
cert. denied, 444 U.S. 1032 (1980), an SEC attorney, who was designated as a special attorney
for purposes of appearing before the grand jury, made sworn statements before the grand jury,
summarizing parts of the investigation and outlining the proposed indictment. He later took the
witness stand and was questioned by another attorney. The court condemned this practice in
principle but refused to dismiss the indictment in the absence of any evidence of actual prejudice
to the defendants.(57) In light of recent Supreme Court decisions, it is unlikely that the conduct
admonished in Treadway would result in the dismissal of an indictment.(58)

Although a Division attorney should not act as a prosecutor and a witness, an attorney may
provide a variety of information to the grand jury without thereby becoming a witness. For
example, an attorney may provide basic identifying information to the grand jurors so that they
are clear as to the identity of the subject of an investigation,(59) summarize prior testimony,(60)
explain elements of the law and applicable legal theories,(61) and respond to grand jurors'
questions.(62) The key element that seems to determine whether a prosecutor's statements are
testimony is whether the prosecutor has placed his credibility on the line. If he has done so, then
he may have become an improper witness.(63)

15. Discussions with grand jurors outside of session

Division attorneys should be cordial with grand jurors both inside and outside the grand jury
room. However, they should be careful not to discuss any of the matters under consideration by
the grand jury except in the grand jury room. Failure to do so could be considered improper
conduct by the attorney and is potentially a violation of Rule 6(e)'s general rule of secrecy and
Rule 6(e)(1)'s requirement that all proceedings, except deliberations, shall be recorded. If a grand
juror asks a question outside of the session, the attorney should politely decline to answer the
question and suggest that the question be repeated when the grand jury is again in session.

If an attorney inadvertently makes off-the-record comments to a grand juror concerning the

matter under investigation, it is unlikely to result in dismissal of an indictment, absent other
prosecutorial misconduct, unless the comments were prejudicial and material to the grand jury's
decision to return an indictment. A wise practice is to have any off-the-record conversations
repeated for the record.(64)

D. Permissible Evidence
1. Admissible evidence

Grand juries may initiate and conduct investigations based on tips, rumors, hearsay, speculation,
evidence offered by the prosecutor, and the grand juror's own personal knowledge.(65) The nature
of the grand jury's function, unlike that of an adversary proceeding, "contemplates that it will
hear from many sources uninhibited by the strict rules of evidence applicable in a trial and
untested by the traditional adversary tools such as cross examination".(66) To allow attacks on
evidence would relax grand jury secrecy and complicate pretrial procedures. The clear import of
the Supreme Court cases dealing with this issue is that grand jury proceedings should not be
burdened with the delay and disruption that would result from recognizing a right to review the
evidence considered by the grand jury.(67) In addition, such attacks may impede the work of the
grand jury by limiting access to relevant evidence and may make witnesses more reluctant to
testify. Finally, the grand jury is permitted such broad discovery because it does not adjudicate
guilt or innocence but is purely an investigative body.(68) Consequently, the grand jury possesses
broad investigative power and may draw its information from a wide variety of sources to carry
out its function.(69)

The most frequently cited rule governing the range of evidence that may be considered by the
grand jury is contained in United States v. Calandra, 414 U.S. 338, 343 (1974), in which the
Supreme Court held that:

The grand jury may compel the production of evidence or the testimony of witnesses as it considers
appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary
rules governing the conduct of criminal trials. (70)

In further elaborating on the scope of permissible evidence, the Court stated:

The grand jury's sources of information are widely drawn, and the validity of an indictment is not
affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject
to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent
evidence . . . or even on the basis of information obtained in violation of a defendant's 5th Amendment
privilege against self-incrimination. . .(71)

Courts have permitted indictments to stand that were based largely, if not entirely, upon hearsay,
(72)
illegally obtained or incompetent evidence,(73) irrelevant or false testimony,(74) or other
evidence that would not otherwise be admissible at trial.(75)

2. Hearsay

As with other types of evidence that would be inadmissible at trial, hearsay evidence may be
presented to the grand jury even when eyewitnesses could have testified. Moreover, the Supreme
Court held in Costello v. United States, 350 U.S. 359 (1956), that a valid indictment may be
based solely on hearsay.(76) Nevertheless, some courts have cautioned that the use of hearsay
should be avoided when possible,(77) and a few courts have suggested that the excessive use of
hearsay may be viewed as a form of prosecutorial misconduct.(78)

In choosing to present hearsay evidence before the grand jury, Division attorneys should
appropriately consider factors such as efficiency and the burden on both the Government and the
witness of presenting eyewitness rather than hearsay evidence. This issue arises most often when
using investigative agents, economists or other experts to summarize evidence or when
summarizing evidence of or presenting transcripts from prior grand jury proceedings.

The Second Circuit attempted to limit the use of hearsay in United States v. Estepa, 471 F.2d
1132 (2d Cir. 1972). In Estepa, the only witness before the grand jury was a police officer who
testified in detail about the events surrounding an alleged drug transaction. Although the police
officer's actual observations were limited, the grand jury was not advised of the hearsay nature of
his testimony. In remanding the case with instructions to dismiss the indictment, the court
conceded that "there is no affirmative duty to tell the grand jury in haec verba that it is listening
to hearsay".(79) However, the court also stated that the grand jury must not be "misled into
thinking it is actually getting eye-witness testimony from the agent whereas it is actually being
given an account whose hearsay nature is concealed."(80) The court concluded that the grand jury
may be presented with hearsay "subject to only two provisos - that the prosecutor does not
deceive grand jurors as to 'the shoddy merchandise they are getting so they can seek something
better if they wish'. . . or that the case does not involve 'a high probability that with eyewitness
rather than hearsay testimony the grand jury would not have indicted'."(81) As a practical matter,
Division attorneys can avoid application of the Estepa rule by informing the grand jury of the
hearsay nature of the testimony it is hearing.(82)

The Second Circuit's use of its supervisory power to review the nature of the evidence presented
to a grand jury is highly questionable in light of the Supreme Court's decisions in United States
v. Calandra, 414 U.S. 338 (1974), United States v. Costello, 350 U.S. 359 (1956), and Bank of
Nova Scotia v. United States, 487 U.S. 250 (1988), and has been met by a general lack of
enthusiasm by other circuits. No other circuit has relied solely on Estepa to dismiss an
indictment. The First, Third, Seventh and Tenth Circuits have declined to decide whether they
would follow Estepa by distinguishing cases on factual grounds, primarily by focusing on the
first part of the Estepa rule and finding that the grand jury was not intentionally misled.(83) The
Eighth Circuit indicated that it might apply the Estepa rule but also focused on the first part of
the rule.(84) The Fifth Circuit has stated that it will dismiss an indictment based on hearsay only if
the use of hearsay has "impaired the integrity of the grand jury proceeding".(85) The Sixth and
Ninth Circuits have expressly rejected the Estepa rule.(86) The Sixth Circuit would permit a
challenge to an indictment because of the use of hearsay "only on a showing of demonstrated and
longstanding prosecutorial misconduct".(87)

Although the Department believes that the Estepa rule is an incorrect interpretation of the law, it,
nonetheless, has established the following policy regarding the use of hearsay evidence:
Hearsay evidence should be presented on its merits so that the jurors are not misled into believing that
the witness is giving his/her own personal account. . . The question should not be so much whether to
use hearsay evidence but whether, at the end, the presentation was in keeping with the professional
obligations of attorneys for the government and afforded the grand jurors a substantial basis for voting
upon an indictment.(88)

3. Illegally obtained or incompetent evidence

As a general rule, a grand jury may consider inadequate or incompetent evidence(89) or even
illegally obtained evidence.(90) The leading case in this area is United States v. Calandra, 414
U.S. 338 (1974), in which the Supreme Court considered whether evidence obtained by an illegal
search and seizure could be used as the basis for questioning a grand jury witness. The Court
held that the exclusionary rule, which in a trial context would not permit the use of such
evidence, is inapplicable to grand jury proceedings.(91) The Court explained that the exclusionary
rule was designed for its deterrent effect on overzealous prosecutors and that its extension to
grand jury proceedings would not greatly increase this deterrent effect. Balanced against the
minimal increase in the exclusionary rule's deterrent effect was the Court's belief "that allowing a
grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and
expeditious discharge of the grand jury's duties".(92)

In addition to permitting grand juries to hear evidence obtained in violation of a person's 4th
Amendment rights, courts have also permitted the use of evidence obtained in violation of a
person's 5th Amendment rights,(93) information covered by the Speech or Debate Clause,(94)
illegally obtained tax return information,(95) lie detector results,(96) information regarding a target's
prior convictions or his refusal to testify(97) and perjured testimony.(98) As to perjured testimony,
certain courts have suggested a rule similar to the rule in Estepa governing the use of hearsay
evidence: that the knowing use of perjured testimony by a prosecutor to obtain an indictment that
would not have been issued without it is grounds for dismissal.(99) Moreover, while a grand jury
may be presented with illegally obtained or incompetent evidence, the grand jury may not violate
a valid privilege itself.(100)

The current status of the law in this area is summarized in the U.S.A.M. 9-11.231:

The fact that illegally obtained, privileged, or otherwise incompetent evidence was presented to the
grand jury is no cause for abating the prosecution under the indictment, or for inquiring into the
sufficiency of the competent evidence before the grand jury, even if the defendant may be expected to
have the illegally obtained evidence suppressed or incompetent evidence excluded at trial.

Nonetheless, the Department has established a more exacting standard for its attorneys as
follows:

A prosecutor should not present to the grand jury for use against a person whose constitutional rights
clearly have been violated evidence which the prosecutor personally knows was obtained as a direct
result of the constitutional violation.(101)
 4. Recorded communications

The major exception to the general rule that the validity of an indictment is not affected by the
character of the evidence considered is the rule governing the use of recorded communications.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended,
18 U.S.C. §§ 2510-2520, created a comprehensive system for regulating the interception and
subsequent use of oral, wire and radio communications.(102) In general, Division attorneys may
use evidence derived from lawfully intercepted communications and may present such evidence
to the grand jury in the same manner the attorney would use any other item of evidence or
information. Under some circumstances, it may be necessary to obtain a disclosure order under
18 U.S.C. § 2517(5), before disclosing the contents of an intercepted communication to the grand
jury. Attorneys should check with the local United States Attorney's office before deciding to
make any such disclosure to the grand jury.

Recorded communications and evidence derived therefrom that were not lawfully obtained may
not be presented to a grand jury. 18 U.S.C. § 2515 provides:

Whenever wire or oral communication has been intercepted, no part of the contents of such
communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or
other proceeding in or before any court, grand jury, department, officer, agency, regulatory body,
legislative committee, or other authority of the United States, a state, or a political subdivision thereof if
the disclosure of that information would be in violation of this chapter.

Therefore, Division attorneys must carefully follow the requirements of Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 and should generally contact the local U.S. Attorney
to make sure that all recorded communications are lawful and admissible.

Because the suppression provisions of 18 U.S.C. § 2518(10) are not applicable to grand jury
proceedings,(103) the remedy normally available for improper use of recorded communications
before the grand jury is dismissal of the indictment.(104)

Occasionally, a grand jury witness will make a claim that his testimony is based on illegal
electronic surveillance and invoke the prohibition of 18 U.S.C. § 2515 as "just cause" for his
refusal to testify. In Gelbard v. United States, 408 U.S. 41 (1972), the Supreme Court held that a
witness has the right not to testify in response to interrogation based on the illegal interception of
his communication.(105) Most circuits require a positive statement by the witness with at least
some colorable basis to suggest that illegal electronic surveillance has occurred.(106)

Faced with a claim by a witness that his interrogation is based on the illegal interception of his
communications, the Government must either confirm or deny the allegation. The different
circuits vary as to the required specificity of a denial, but as a general rule, most circuits apply a
balancing test; the greater the specificity of the allegation, the more detailed the Government's
denial must be.(107) For example, a mere unsupported allegation of illegal surveillance requires
only a simple affidavit from Government counsel denying the allegation. A detailed allegation
might require affidavits from Government counsel and the investigatory agents that include,
among other items, a detailed description of the steps that were taken to determine that there was
no illegal surveillance. If there was in fact surveillance, the Department's view is that in camera
inspection of the court order authorizing the surveillance should preclude further inquiry into the
legality of the surveillance.(108) Since the circuits that have considered the question have applied
different criteria for responding to a witness' claim, Division attorneys should carefully examine
the case law in the circuit in which they are appearing before responding to a witness' illegal
surveillance accusation.

The most frequently-occurring form of electronic surveillance conducted by the Division is done
with the consent of one of the parties to the conversation or is performed by a party to the
communication without direct involvement by the Division. Such consensual monitoring is legal
and is not subject to Title III procedures; interception orders under 18 U.S.C. § 2518 are not
necessary.(109) Consensual monitoring of this type is governed by 18 U.S.C. § 2511(2)(c), (d).
The Attorney General issued policy guidance regarding consensual monitoring in a November 7,
1983 Memorandum which is contained in the United States Attorney's Manual 9-7.300. It should
be consulted whenever consensual monitoring is used.

E. Use of Subpoenaed Documents

1. Impounding Order

An impounding order commits the custody of grand jury documents to the Government attorneys
or other custodian, such as the FBI, and permits the documents to be removed for study and
review by the Government attorneys. Standard Division procedure is to move the court to
impound documentary material produced in response to subpoenas duces tecum so that the
Government attorneys may, in their offices, keep, study, analyze, and work with such materials.
(110)

a. Legal authority for impoundment

The power of the courts to impound is well established. As stated in United States v. Ponder, 238
F.2d 825, 827 (4th Cir. 1956):

The power to impound is inherent in a court as an institution of law enforcement; it may be exercised
originally, as well as auxiliary to pending suits or actions. . . .

Applications for impounding orders are almost always made on an ex parte basis. The
application should, of course, be made to the court in the district in which the grand jury is
sitting.(111)

b. Government attorneys may examine documents to assist grand jury

It is equally well-established that Government counsel, in the performance of their duties, may
assist the grand jury by examining, analyzing, and reviewing voluminous material produced
before the grand jury and that such assistance may form the basis for obtaining an impounding
order.(112)
In assisting the grand jury, Government counsel are entitled to examine documents outside the
presence of the grand jury.(113) To facilitate this examination process, the courts have permitted
removal of documents to Government counsel's office in another district.(114) In In re Grand Jury
Proceedings (General Dynamics Corp.), 1961 Trade Cas. (CCH) ¶ 70,027, at 78,091 (S.D.N.Y.),
Judge Ryan noted that in antitrust proceedings, an order of this kind is usually entered to
facilitate Government counsel's preparation of the proceedings.

c. Timing of impounding order

Although obtaining an impounding order for subpoenaed documents is standard procedure, the
time when one is obtained and the form thereof have varied considerably within the Division.
The preferred practice is to obtain the impounding order at the initiation of the grand jury
proceedings. An impounding order is sometimes obtained only when the documents are to be
removed from the jurisdiction in which the grand jury is sitting.

Despite the historical differences, it is strongly recommended that an impounding order be

obtained at the initiation of the grand jury investigation (or at least before the return of any
documents to the grand jury) and that it impound the documents at least for the life of that grand
jury. This will obviate any claim by a subpoena recipient that it has complied with the subpoena
by delivering the documents to the grand jury and has a right to remove the documents at the end
of that day's session.(115) If the documents are already impounded, especially if they are
impounded for the life of the grand jury, then such a claim cannot be sustained.

Obtaining an impounding order at the initiation of the grand jury proceeding also serves two
other purposes: First, it protects the Government attorney when he takes the documents out of the
grand jury room and to his office (which may be out of the district)(116) by notifying the court of
such a possibility. Thus, the court is made fully aware that the staff may remove the documents
from the room in which the grand jury is sitting (this may be new to the court if it has only dealt
with United States Attorney's grand juries in the past or has no experience with antitrust grand
juries), and examine and utilize such documents in the Field Office and/or in Washington. An
impounding order will eliminate surprise on the part of the court to any objections later raised by
any subpoenaed party regarding such removal.

Second, the application for an impounding order will acquaint the staff with the practice and
attitudes of the court vis-a-vis grand jury documents. Different judges may have different
practices and procedures regarding the custody and removal of grand jury documents (e.g., one
court required that an up-to-date index be supplied to the clerk).

Few problems have been experienced when seeking an impounding order early in the
investigation. At most, some courts have stated that an impounding order was not needed, but
usually signed one anyway. On the other hand, without an impounding order, later objections to
removal of documents have created problems which have required otherwise unnecessary staff
time.

d. An impounding order should specify who will have custody of documents and
where they will be maintained.
Many orders impound documents at a specific location. However, it may be necessary, during
the course of the investigation, to remove some or all of the documents from that location, such
as to the FBI for a handwriting analysis, or to Washington to prepare a price study. Language
precluding this possibility should be avoided, if possible; otherwise it may be necessary to obtain
a modification of the order.(117)

The application for an impounding order should clearly specify that the subpoenaed documents
may be removed from the district in which the grand jury is sitting if, in fact, that is the case.
Some orders contain a separate provision to this effect. Other orders merely set forth the location
where the documents are to be impounded. The location will show, on its face, whether it is out
of the district.

It is suggested that when documents are to be removed from the district, consideration be given
to including a provision in the order stating, in substance, that the documents will be returned
upon notice from the court. Such a provision may be superfluous. However, it may make the
order more acceptable to the court. Similarly, consideration should be given to including a
provision that the documents removed from the district remain subject to all provisions of the
order and the jurisdiction of the court.

e. Access to documents by their owners

1) Inspection of documents. Generally, impounding orders provide that the party producing the
impounded documents shall have the right to inspect them. It is suggested that if the documents
are impounded far from the site of the grand jury, consideration be given to the place of
inspection. Generally, the subpoenaed party is given the option, in the order, of inspecting the
documents in the staff's office or in the office of the United States Attorney for the district in
which the grand jury is sitting.

Care should be taken to insure that the order is worded so that a party producing impounded
documents may, at his request, allow designated third parties to inspect the documents. Not
infrequently, treble damage litigation will be instituted while the documents are impounded and
the plaintiff will make arrangements with the subpoenaed party to inspect his documents which
have been impounded; or, as sometimes happens, investigations will be instituted by other
Government agencies involving the subpoenaed party and the subpoenaed party will arrange to
have the documents examined by such agencies.

2) Return of documents. Most impounding orders contain a provision that the Government
attorneys may return impounded documents without further order of the court. Such a provision
should be simply worded and language such as "irrelevant and immaterial documents may be
returned" should be avoided. This language suggests that the subpoena was overbroad and
implies that all documents retained may be material and relevant and may possibly be used by
the defendants in a subsequent Fed. R. Crim. P. 16 motion.

f. FOIA issues
In general, Division policy is that documents produced to the grand jury are not subject to the
disclosure requirements of the Freedom of Information Act (FOIA). There are several reasons for
this. First, such documents may constitute matters occurring before the grand jury that are
subject to the secrecy requirements of Fed. R. Crim. P. 6(e). Second, the impounding order
should separately prevent disclosure to a third party, absent authorization by the subpoena
recipient. Third, other exemptions of the FOIA are likely to cover grand jury documents.
Obviously, the important business of the grand jury would be severely disrupted if grand jury
documents could be obtained by FOIA requests.(118)

g. Time period to be covered by impounding order

The impounding order should ordinarily cover the documents for the life of the grand jury then
sitting, any subsequent grand jury or juries which may continue the investigation, and for any
litigation to which the United States is a party arising from such investigation. The advantages of
such an impounding order are that (1) if the investigation is not concluded before the first grand
jury is discharged, the documents may be retained in the Government's possession without
obtaining a new impounding order while the second grand jury is being convened; (2) a second
impounding order is not necessary to retain the documents during the proceedings of the second
grand jury; and (3) it is not necessary to obtain an impounding order after the indictment has
been returned and the case is being prepared for trial.

In some instances, the possible use of a successor grand jury has been clearly spelled out in a
separate paragraph of the application; in other instances, the application has merely sought the
impoundment of documents for use by attorneys in connection with the investigation "before this
grand jury or any other grand jury in this district"; and in still other instances, the application has
merely sought to impound documents for use in conducting "grand jury proceedings." If the
possible use of a successor grand jury is emphasized by the use of a special paragraph, it may
convey an erroneous impression to the court that the investigation will extend an unusually long
time and thus create some doubt on its part as to whether the order should be granted.

Insofar as proceedings arising from the investigation are concerned, it is suggested that attorneys
use language impounding the documents for "legal proceedings to which the United States is a
party". Even with this language, it is by no means certain that a defendant cannot obtain the
return of his documents after the criminal case has been concluded and notwithstanding the fact
that a civil case is pending.

If the order impounds documents for legal proceedings arising from the grand jury investigation,
consideration should be given to including such proceedings in the reason for impoundment.
That is, language such as "it is necessary for the Government to work with the documents to
make an orderly presentation to the grand jury" should be broadened in scope to include the legal
proceedings.

h. Order should impound those documents produced to the offices of Division staff

A provision that the subpoenaed party may produce the documentary material by mail or in
person at the offices of the investigating staff is sometimes used in impounding orders. Such a
provision would not seem to be absolutely necessary since, if this procedure is followed, it will
be at the option of the subpoenaed party, and third parties would have no standing to object.
Nevertheless, it may be advisable to include such a provision where the court is unfamiliar with
grand jury proceedings in antitrust matters or where the court's feelings as to the procedure are
unknown.

In any event, the application and order should be drafted so that it is clear that documents
produced in the offices of the staff are impounded, as well as those physically produced before
the grand jury.

2. Negotiating Strategy for Document Return

Each staff attorney responsible for document returns to the grand jury should be thoroughly
familiar with all paragraphs of the subpoena, precisely what items are sought and why they are
sought. Invariably, counsel for the subpoena recipient will call the Government counsel contact
noted on the subpoena to discuss subpoena compliance. Typical topics include extensions of time
for production, whether originals or copies are called for, clarification of certain subpoena
requests, numbering of the documents, whether documents maintained by certain members of the
corporation are corporate or "personal" documents, burdensomeness, etc. Staff attorneys should
be prepared for such calls as they are an important aspect of obtaining good subpoena
compliance. It is recommended that the staff attorneys meet and discuss each paragraph of the
subpoenas in advance of their issuance. This discussion should include what documents are
sought, the importance of each category, what compromises or concessions you will make,
whether you will accept piecemeal production, etc. In other words, you should brainstorm
possible objections, problems and difficulties counsel may raise and be ready to address and
solve them.

Negotiating sessions with counsel for the subpoenaed company may be an important source of
information for you, particularly if you can get counsel to describe his problems specifically. In
doing so, you can frequently gain information about (a) the recipient's company; (b) how it
conducts its business; and (c) the industry in general.

Your approach should be cordial, firm and fair. Counsel will generally be more cooperative if
you can accommodate him or at least make the effort to do so. It may also avoid unnecessary
work such as litigating the scope and burdensomeness of the subpoena or some of its parts.
While Government counsel generally are successful in such matters, they can be time consuming
and generally should be avoided.

To the extent possible, you should attempt to treat each company the same. This will create
fewer problems for you not only in terms of keeping track of any modifications or compromises
in subpoena compliance(119) but also in avoiding complaints of uneven handed treatment by the
subpoena recipients.

Finally, you should consider stipulations, affidavits and admissions where you are only seeking
documents to establish a particular fact, such as interstate commerce. The number of documents
needed to establish interstate commerce may be voluminous. Frequently, the subpoena recipient
is willing to admit or stipulate to that issue rather than to produce all the underlying documents.
Such documents are generally of little probative value to other issues. Consequently, the chances
of missing a hot document by so stipulating are small. However, if this approach is used, make
sure that the stipulation/admission is in a form that will be usable at trial. If no such agreement
can be reached, then insist upon production of all the documents bearing on this issue called for
by the subpoena.

3. Return of Documents to the Grand Jury

The subpoena may require actual production of the subpoenaed documents before the grand jury
or it may permit return of the documents by production to the office of the Antitrust Division
attorneys conducting the investigation. The subpoena recipient has a right to produce its
documents before the grand jury. The Government may insist on the explanatory testimony of a
document custodian before the grand jury. The Government may not insist upon production to its
own offices if the subpoena recipient does not agree. However, the Government may give the
subpoena recipient the option of producing the documents to the Government's offices. This is
generally done for the convenience of both parties. When this option is chosen, it is generally
accompanied by the requirement that the subpoena recipient provide an affidavit of search and
production compliance in lieu of the grand jury testimony of a document custodian.(120)

Although an affidavit of compliance may not be as thorough and as illuminating as questioning

the document custodian before the grand jury, it is generally sufficient to protect the
Government's and the grand jury's interests at that early stage of document production. If after
reading the documents and conducting some further investigation, the staff believes the affidavit
is inadequate or inaccurate, it can always subpoena the document custodian to elaborate before
the grand jury. Moreover, the representations in the affidavit, if false, can be the basis for a
possible false statements or obstruction charge. Further, it is frequently much easier and more
productive to ask relevant questions of the document custodian after the staff has reviewed the
documents.

Where the option of a return to the offices of the Division is chosen, the grand jury should be
advised that that option has been selected and that the documents have been received, because
the power to subpoena documents resides in the grand jury, not in the Antitrust Division. Also,
timely disclosure to the grand jury can help defeat any subsequent claims of grand jury abuse.

4. Handling of grand jury documents

Once documents have been received in response to subpoenas duces tecum, the staff encounters
one of its most difficult and important tasks in developing a criminal investigation. This includes
the reading, selecting, numbering, filing, and segregating of the documents received.

a. Document identification - numbering

As documents are received during the grand jury investigation, they should be placed into
separate packets or boxes to prevent co-mingling with the documents of others. The documents
should then be clearly marked with different identification symbols (usually a letter) and
numbered consecutively.(121) Complex numbering (e.g., DB-21-C-150-2) should be avoided; it is
difficult to cite in the record and increases the chance of reporter error. Further, the initials of the
corporation submitting documents should not be used to identify that corporation if
confidentiality as to the ownership of the documents is desired.

The precise numbering system is usually left to the desires of the staff (e.g., some attorneys
prefer coding by paragraph number of the subpoena) unless a document control system has been
installed in a particular office or section. In the latter situation, the practice in the office or
section is followed. The important thing is to have an effective control over the documents.

The identification of documents, in a simplified manner, should eliminate any confusion as to

which company supplied particular documents. The numbering will also permit the examiner to
easily identify the document as he uses it to examine a witness.

Initially, a decision must be made as to whether to number all documents received, or just those
that appear, at first reading, to have any relevance to the subject matter of the investigation.
Numbering all documents will, of course, give the greatest control. However, in matters
involving the submission of huge amounts of documents, it may not be feasible to number every
document given the size of the staff and time required. In such huge submissions, those
documents that likely will not be used should be segregated and kept in a carefully identified file.

You can request (but not compel) the subpoena recipient to number the documents before they
are submitted. The company or its counsel are generally happy to oblige because it gives them a
measure of control over the submission and the ability to track and organize documents for their
own purposes. Generally, they will number the documents in whatever manner and with
whatever prefixes the staff suggests. The system the staff desires is usually set forth in the
subpoena schedule or in a cover letter accompanying service of the subpoena. It can also be
handled after service, either in writing or by telephone, with counsel for the recipient, but
delaying the matter runs the risk that the documents will be produced without numbering or that
the recipient will start to number in some way that is not useful to the staff.

The staff may be tempted to number the documents further after receipt for its own internal
organizational and working purposes, for example, to identify hot document topics. This practice
should be avoided. The better practice to accomplish the same objective is to use separate file
folders for each hot document topic. This avoids cluttering the documents with additional
symbols. If some of those symbols should have to be removed, it avoids the problem of having to
eradicate them.

b. Indexing/organization

To make effective use of the documents received, it is important to index and organize them as
early as possible. Upon receipt of the documents, it is good practice to make a quick index of the
nature and types of documents received and their location, particularly in the case of multi-box
submissions. This should be done on a company-by-company, box-by-box-basis. This will
facilitate ready access.
Thereafter, the staff may wish to organize the files along several lines, e.g.: (1) written by or
referring to particular persons; (2) relating to events in a chronological order; (3) pertaining to
different possible antitrust violations, e.g., horizontal price-fixing, vertical price-fixing, group
boycotts; (4) having to do with particular sections or areas of the country; (5) "hot documents";
or (6) referring to specific companies.

This type of organization may be company-by-company or for all the companies subpoenaed. In
either case and with whatever system used, it is good practice to handle the originals as little as
possible.

c. Copying/microfilming

As noted above, the staff should work with copies of the original submissions insofar as
practicable. The number of copies to be made depends on the files the staff wants to maintain.
For example, the staff may want to have a chronological file, a hot documents file and specific
individual files. In that case, you might make as many as three copies of certain documents.
Because of security and control problems, as well as expense, the staff should avoid an undue
proliferation of copies.

In certain cases, where the document submissions are particularly voluminous, the staff may
wish to microfilm the documents to conserve space. However, this is time-consuming and
expensive. It also requires the use of a microfilm printout machine when you want to use a copy
of a specific document, or retrieving the original for copying.

After copying, the original documents, as selected and marked, should be placed and maintained
in an "Original File" until such time as their use is necessary. Usually, such use is essential only
at trial or if a witness cannot identify or read a copied document or if he refuses to believe that
the copy represents a true copy of the original and his testimony with respect to the document is
believed vital.

d. Logs/document control

Some Division Field Offices and Sections have document clerks who receive and log in each
company's document submissions. Generally, a separate log book is maintained for each grand
jury or each grand jury matter. This log will give the name of the subpoena recipient, the number
of cartons of documents submitted, the date or dates they were subpoenaed; the date or dates the
documents were received; the storage location of these documents (e.g., Aisle B, Bins 3 and 4);
and whether the submission is partial or complete. It may also note additional information, such
as the addresses of the recipients; name, address and telephone number of the company's contact;
name, address and telephone number of counsel; the existence of search and compliance
affidavits; etc. Generally such control logs are arranged in alphabetical order.

Staff members may then be assigned to review the documents of certain of the subpoenaed
companies. With the above control system in place, the staff member can then sign for or log out
the documents he is to examine. This type of system provides maximum control over the
document review phase of the investigation.
 e. Exhibits

Once documents have been identified as exhibits or potential exhibits for either grand jury or
trial use, the originals should be pulled and replaced with copies. Additional copies should be
made for courtroom or grand jury use as needed. For trial use, it is recommended (and in most
courts required) that the exhibits be pre-marked. The practice may differ for grand jury use.
Since the grand jury is an investigative proceeding, staff may not be able to anticipate a witness'
testimony at this stage. Consequently, it may be necessary to mark the exhibits as they are used.
Whenever or however they are marked, they should be clearly identified for the record so that it
is clear that the witness is testifying about that particular document and no other. This is
especially important if you subsequently need to impeach that witness with respect to his
testimony about that document. It is also useful in refreshing recollections. Further, it will assist
the grand jurors and eliminate ambiguity.

The practice regarding the handling of grand jury exhibits varies widely within the Division.
Some attorneys attach the exhibit to the transcript of the witness who first discussed or identified
it. The disadvantage of this method is that the staff must remember to which transcript a
particular exhibit is attached. An alternative method is to keep all exhibits in separate numbered
folders at one location, either in the grand jury room or in the document storage area. As exhibits
are needed for subsequent grand jury sessions, they are easily located and retrieved. Some staffs
maintain the original exhibits in the document storage area and leave copies of each in the grand
jury room or with the U.S. Attorney's office so the originals do not have to be transported to each
session.

f. Chain of custody

Sometimes a subpoena recipient will produce a certain type of document which may later be the
subject of a chain of custody dispute. While any document may conceivably fall into this
category, some are more susceptible to such claims than others. For example, video, audio and
computer tapes or other materials about which claims of alteration or tampering may be lodged
are frequently the subject of chain of custody disputes. If you are not able to establish the chain
of custody and to account for all the time the materials were in your possession, such materials
may be excluded from trial. Consequently, it is important that the staff identify such materials
immediately upon receipt and establish appropriate safeguards for them. Logs and the testimony
of document custodians are the best safeguards.

5. Computerized document control

a. Description

The uses of computers for grand jury investigations vary with the type and size of the
investigation. Lower volume document indexing applications can usually be performed on the
Wang using data processing software. Larger document indexing applications and applications
requiring numeric computations must usually be performed on mainframe computers at the
Division's computer center. Data may be entered for both Wang and mainframe applications on
the Wang by section clericals or at contractor facilities by contract keying vendors.
Computerized data obtained in machine readable form from target companies must usually be
processed on a mainframe computer.(122) Applications which require minimal retrieval and
sorting capabilities can often be accomplished using Wang word processing sort utilities.
Examples of recent grand jury support applications include the following:

1. Expense report databases into which information from expense reports, credit card receipts,
diaries, and airline tickets are entered. Reports are generated showing the travel and expense
history of particular firms or groups of firms.
2. Bid tabulation databases are created from information, (often retained in machine readable
form), by states, municipalities, and federal agencies. Reports are generated showing the
bidding history of particular firms or groups of firms.
3. Price analysis databases are created by entering invoice information from invoices, price lists,
rate schedules or price quotation documents. Reports are generated showing the effective price
charged by or paid by each company on a daily basis.
4. Document index databases are created containing bibliographic information, (date, author,
recipients, source, document number, document type), and subject codes and/or brief
descriptions of content. Reports are generated to group all documents authored or received by
a witness in date order, sorted by subject code, or, in any useful grouping and order.
5. Telephone databases are created from selected calls appearing on target company telephone
bills. Reports are generated showing telephone activity between target phones numbers by
date. As this is a particularly time-consuming analysis, it is recommended that bills first be
processed for a highly suspect period for one company on a test basis. Only if it appears that
further analysis will be fruitful should larger sets of telephone bills be processed.
6. Transcript digest databases are created to allow searching for subject and witness information.
7. Full text transcript databases are created from machine readable copies of testimony provided
by court reporters who employ adaptable systems.
8. Screening of very large document productions has been accomplished by contract paralegals
dictating objective descriptions on a box-by-box basis. Descriptions were then transcribed and
KWIC (key word in context) listings and box digests provided for attorney review.
9. If only a simple reordering of information is required, information can be keyed in columns in a
word processing document and sorted with word processing software. Some invoice and pricing
applications are well-suited to this simplified approach.
10. Enlargements of computer-generated graphics created on a Division plotter and of maps and
subpoenaed documents have frequently been used to depict pricing and bidding information for
grand jury and trial presentation. Enlargements and color copies are provided by the FBI
graphics shop.

b. Advantages/caveats

The time/cost benefits of a computerized system are usually realized at the conclusion of a
process or series of processes. For example, a manual system of typing index cards and a
computerized index system may require equal staff resources to implement. However, if properly
implemented, the computerized system will provide faster, more reliable retrieval. In addition,
the computerized system will provide information based on more criteria and combinations of
criteria than a manual system can usefully employ. The reports described above are examples of
the useful tools generated by computer systems. The time and resources required to locate
pertinent information are greatly reduced and information can be compiled in ways not possible
with manual systems.
A computerized system requires attorney involvement in design and implementation to ensure
useful retrieval and to protect work-product claims should post-indictment discovery of a system
be sought. A computerized system usually will require substantial involvement of non-attorney
personnel as well and, in large applications, non-Government personnel. Training of appropriate
staff members is required. Application development and training will be more time-intensive for
the first application utilized by a staff.

As with manual systems, overly ambitious projects may be completed too late to be useful.
Attention must be given to planning resource requirements and realistic task schedules. Since a
computerized system is dependent on hardware and software reliability, attention to backup and
reporting procedures is required.

Use of a computerized system requires discipline and planning. While a system can provide
retrieval of information not considered significant at the beginning of an investigation, (for
example, all documents authored by James T. Smith), retrieval of those documents is precise
only if all authors are always entered in a standardized format, i.e., Smith, J.T.

Not all projects are candidates for computerized systems. Many can be accomplished efficiently
manually or with combinations of manual and computerized systems.

c. Availability of Division and contract resources

The Information Systems Support Group (ISSG) is the office within the Division responsible for
providing automated litigation support services. ISSG is an arm of the Executive Office of the
Division; the group consists of three units: Litigation Support, Systems Support, and Office
Automation. The three units work closely together to provide the Division automated litigation
support services.

In addition to professional Government personnel, ISSG has access to additional assistance

through various contracts for both systems and litigation support. Through these contracts, ISSG
can staff projects with both professional personnel (systems analysts, paralegals, etc.) and
clerical personnel (coders, keyers, etc.) on an "as needed" basis.

Antitrust Division Directive ATR 2850.1 outlines the formal procedures for obtaining litigation
support from ISSG. The procedures are discussed in detail below.

The initial request for litigation support should be made to the chief of the Litigation Support
Unit (LSU). The request should be made as soon as the staff has an idea of what types of
information they will receive. Often, the initial request is simply a phone call informing ISSG
that subpoenas have been served, and that ISSG support may be required to computerize sales or
bid data, or to abstract documents, or to process data received in computer form. In some
instances, ISSG advice is requested while the staff is drafting the subpoena, especially in those
instances when data is requested in computer form. In other cases, the initial phone call is just a
general discussion of "what the computer can do for you", and may result in the decision that
automated support is not required. In sum, an attorney should contact the chief of LSU whenever
he has any questions at all regarding litigation support for a particular investigation.
Once the initial phone call is made, and it is determined that support is warranted, the chief of
LSU will assign a case manager to the investigation. The case manager, with the chief of LSU,
will meet with the legal staff to discuss preliminary strategies and deadlines. The case manager
acts as a "consultant", with the legal staff as his "client". The case manager is not just another
paralegal assigned to the investigation. Each case manager is experienced in the logistical and
technical problems normally associated with Division matters. It is the case manager's
responsibility to determine the most cost efficient way to provide support for a particular
investigation. The case manager works very closely with the legal staff to determine the
methodology that best meets all budget and time constraints while providing a quality product. It
is important to remember that ISSG has no "standard" way of providing assistance. Each
investigation presents a different set of requirements and problems. For example, while it may be
feasible for section personnel to computerize sales information for one case, it may not be
feasible for another case because of workload or time constraints.

Initially, the case manager is responsible for preparing a "support plan". The plan should outline,
among other things, the type of assistance required and whether Government or contract
personnel, or both, will perform the required tasks. Once the case manager has prepared the
support plan, the contact attorney will receive an "estimate memo" from the chief of LSU, which
summarizes the support plan agreed upon and estimates the contract costs and Government time
necessary to complete the project requirements known at the time. If the estimate is under
$20,000 for contract costs and requires less than 320 hours of ISSG personnel time, section chief
approval is sufficient. If the estimate exceeds either the contract cost or ISSG personnel time
limit, the Director of Operations must approve the expenditure of resources. The preferred
method of receiving Operations' approval is via a short memo from the section chief, with the
estimate memo attached, justifying the expenditures. In most cases, work on the project does not
begin until a copy of the estimate, with the appropriate signatures, has been returned to the chief
of LSU. However, in those instances with severe time constraints, oral approval, or approval via
Wang Office, is sufficient.

Once the project begins, the case manager is responsible for directing and monitoring all aspects
of the litigation support process, and for keeping the legal staff apprised of potential problems
which may delay completion of the project. The case manager is also responsible for keeping the
legal staff apprised of the status of the project on a regular basis.

6. Access to Documents by Owner

The subpoenaed party should be accorded reasonable access to his own documents, although he
should not be permitted such access if to do so would seriously disrupt the grand jury
proceedings. Generally, these matters can be negotiated by telephone.

Generally, the subpoenaed party is given the option, in the impounding order, of inspecting the
documents in the staff's office or in the office of the United States Attorney for the district in
which the grand jury is sitting. In addition, the impounding order usually is worded so that a
party producing documents is not precluded, at his request, from having the documents inspected
by a third party.(123)
Sometimes a dispute may develop regarding whether or not a subpoena recipient was accorded
reasonable access to his documents. To meet such allegations, it is advisable to keep a record of
the date(s) and time(s) of such access. It is suggested that this record be maintained by the
document custodian or document clerk in your office or by someone else who can, if necessary,
testify on the subject. Clearly, the record should not be maintained by a staff attorney. The record
should also include the date of the request(s) for access and a notation of any reasons why access
had to be denied at that time.

7. Return of Documents at Close of Investigation

Documents are usually retained by the Government until the purpose for which they were
obtained has been accomplished. Documents lawfully obtained during a grand jury investigation
are normally kept until the conclusion of any civil actions arising out of the grand jury
proceedings. However, it should be noted that "documents, records or papers produced in
obedience to a subpoena duces tecum remain the property exclusively of the person who
produces them and they must be returned to him as soon as proper use and examination of them
for the purpose for which they were summoned has been completed."(124) A subpoenaed party can
demand the return of his documents at the conclusion of the grand jury investigation or at the
conclusion of any criminal proceedings arising therefrom. Accordingly, the importance of
obtaining an impounding order as discussed previously cannot be overemphasized.

Copies of subpoenaed documents may be made by the Government and retained.(125) However, if
the subpoenaed documents were obtained by an illegally constituted grand jury, the Division
may have to return the copies.(126)

Division policy is to return or destroy subpoenaed documents when they are no longer of use to
the Division, even absent a specific request from the document submitter.(127) When the
documents are to be returned, staff should contact counsel for the subpoena recipient and make
appropriate arrangements. Some companies may not want the documents back and will authorize
the staff to shred or otherwise destroy them. Obviously, this would save staff some time.
However, most companies will want their documents back. Some will pick them up. Others will
accept return by mail. The staff should keep accurate written records of the date and method of
return for each submission.

F. Witnesses
1. Target/subject definition

A "target" is defined as "a person as to whom the prosecutor or the grand jury has substantial
evidence linking him/her to the commission of a crime and who, in the judgment of the
prosecutor, is a putative defendant." A "subject" is defined as "a person whose conduct is within
the scope of the grand jury's investigation."(128)

2. Rights of witness
A grand jury witness does not have the same rights as someone who is arrested and then
interrogated by the police. As a result, a grand jury witness does not have to be advised of his
constitutional rights.

a. No right to refuse to answer questions

There is no right to refuse to answer questions unless the witness can assert the right against self-
incrimination or establish that some other privilege applies.(129) A witness may also refuse to
answer questions based on illegal electronic surveillance.(130)

b. No right to be advised of 5th Amendment (Miranda) rights

A witness has no recognized right to be advised of his 5th Amendment right not to be compelled
to be a witness against himself. However, the practice of not advising a witness of his 5th
Amendment privilege has not been expressly approved. The Supreme Court in United States v.
Washington, 431 U.S. 181 (1977), and United States v. Mandujano, 425 U.S. 564 (1976),
declined to decide whether a grand jury witness must have been warned prior to testifying of his
5th Amendment privilege against compulsory self-incrimination before such testimony can be
used against the witness in a later prosecution for a substantive criminal offense.(131) In
Mandujano, the Court took cognizance of the fact that federal prosecutors customarily warn
"targets" of their 5th Amendment rights before grand jury questioning begins. Similarly, in
Washington, the Court pointed to the fact that 5th Amendment warnings were administered as
negating "any possible compulsion to self-incrimination which might otherwise exist" in the
grand jury setting.(132)

Some lower courts appear to have developed the view that if the grand jury witness is a
defendant or virtually a defendant (i.e., target or prosecutor has reason to believe he may be
indicted), then warnings must be given.(133) But where the Government has not entertained the
idea of bringing criminal charges against a witness, it has no duty to warn him.(134)

Based on the above, it is the policy of the Department of Justice to advise a witness of his 5th
Amendment privilege, notwithstanding the lack of a clear Constitutional imperative. Division
attorneys typically attach an "advice of rights" form to each witness subpoena and reiterate those
rights before the grand jury.(135)

c. No right to be notified of status

A witness has no right to be told that he is a potential defendant or target of the investigation.(136)
The prosecutor has no duty to tell a grand jury witness what evidence it may have against him.
(137)
Again, however, it is the policy of the Department of Justice to advise a witness of his
"target" status if such is the case.

d. No right to be advised of right to recant testimony

A witness has no right to be advised that he may recant testimony and, thereby, avoid a perjury
charge under 18 U.S.C. § 1623.(138)
 e. No right to counsel in grand jury room

There is no right to have counsel present in the grand jury room.(139) A witness may leave the
grand jury room to consult with counsel.(140) Such consultations should not be allowed to interfere
unduly with the grand jury proceedings and may be appropriately regulated.(141)

f. No right to appointed counsel

The 6th Amendment right to counsel does not attach at the grand jury stage because no criminal
proceedings have been instituted, nor do the Miranda rights of appointed counsel attach because
the grand jury is not the equivalent of custodial police interrogation. Similarly, the Criminal
Justice Act, 18 U.S.C. § 3006A, authorizing appointment and payment of counsel in indigent
cases, does not provide for appointment of counsel for an indigent grand jury witness.

Often, it is to the advantage of the Government to seek counsel for the witness. The Federal
Defender's Office will represent the witness without appointment. In the unusual case where
Federal Defenders will not advise the witness because of a conflict or other reason, appointment
of a panel attorney may be made under the provisions of the Criminal Justice Act, allowing for
counsel when the witness faces loss of liberty (for example, potential contempt charges).

g. Newsmen have no special rights

There is no right, as a newsman, to refuse to testify concerning news sources.(142) However, the
Department of Justice has adopted a policy which restricts the authority to issue subpoenas to
newsmen. Departmental procedures are set forth in 28 C.F.R. 50.10.(143)

3. Department of Justice policy re: advice of rights and target status

The Department of Justice has an internal policy for advising grand jury witnesses of their 5th
Amendment rights and of their status as "targets," if that is the case.(144) Under Department of
Justice policy (U.S.A.M. 9-11.153), witnesses before the grand jury will generally be advised of
the following items:

a. Nature of the inquiry

This information should not be provided if it would compromise the investigation. For example,
if advising the witness that the grand jury is investigating a specific antitrust violation might
jeopardize the case, the Division attorney may more generally state that the investigation
concerns violations of federal antitrust law.

b. 5th Amendment rights

The witness is told that he may refuse to answer any question if a truthful answer would tend to
incriminate him.

c. Anything said may be used against the witness

 d. The witness may leave the room to consult with his attorney
e. If appropriate, that they are a target of the investigation
f. Advice concerning counsel's potential or actual conflict of interest

It is the Division's policy, where appropriate, to advise the witness that he is entitled to retain
counsel who does not suffer from a potential or actual conflict of interest.

g. Advice of rights attachment to subpoena

The rights set forth in Sections a.-d. above should be attached to the subpoena directing the
witness to appear.(145) The witness should acknowledge on the record that he understands his
rights. Although Division practice is to advise all witnesses who are expected to assert their 5th
Amendment privileges of their rights, only targets need be specifically advised of their rights on
the record.

4. Subpoenaing a subject or target

a. Department of Justice policy

The grand jury may subpoena and question a target or a subject.(146) However, because of
possible prejudice in requiring a target to invoke the 5th Amendment before the grand jury, a
target should not be subpoenaed unless the United States Attorney or appropriate Assistant
Attorney General specifically approves.(147) Moreover, if both the target and his attorney signify
in writing that the target will invoke his 5th Amendment privilege if called, then ordinarily, the
target should be excused from testifying.(148)

b. Target letters

In most cases, the Division attorney should notify a target of an antitrust investigation a
reasonable time prior to seeking an indictment to afford him an opportunity to testify before the
grand jury. The target notification letter should include the following:

(i) the date on which the target may appear; (ii) that the target is advised to consult with counsel about
the matter; (iii) that the target will have to waive his 5th Amendment privilege against self-incrimination
explicitly prior to testifying; (iv) that, should he testify, the target will have to consent to a full
examination under oath, to be conducted by attorneys for the Government and/or by the grand jurors
themselves; and (v) that anything the target says before the grand jury may be used against him. (149)

The Government is under no obligation to notify a target prior to indictment and, of course,
should not do so in the rare case where such action might jeopardize the investigation or
prosecution because of the likelihood of flight, destruction or fabrication of evidence,
endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends
of justice.(150)

c. Request by targets to testify

Although there is no legal duty to allow a target to testify before the grand jury,(151) as a matter of
policy, any such person so requesting should be permitted to testify, unless it will cause delay or
otherwise burden the grand jury.(152) Always advise the grand jury of this request.

If the target testifies, the record should reflect:

1. an explicit waiver of the privilege against self-incrimination (which may be shown by the target
himself or by a letter from his attorney);
2. waiver of counsel, if not represented; and
3. the fact of the voluntary appearance.

d. Request by target to read written or prepared statements

The Division will oppose a request by a target to submit a written statement to the grand jury.
Such statements are fundamentally self-serving, do not allow the jury to weigh the witness'
credibility, and cannot ordinarily be used to develop a case for perjury or false declaration,
unless the statement is made under penalty of perjury.(153) Advise the grand jury of your position
on any such request and seek their concurrence, for the decision whether to accommodate such a
request is left to the sound discretion of the grand jury.(154)

5. Interviewing grand jury witnesses

a. Timing/subject matter

It is often useful to interview a grand jury witness prior to his testimony. Such an interview,
however, must be voluntary. The witness' counsel often requests such an interview.

A grand jury witness interview is most helpful when the staff is not certain of the extent of a
witness' knowledge. For example, an estimator may be subpoenaed to testify about bidding on
public utility projects, when in reality he bids only private work. An interview in such a situation
may save time before the grand jury.

An interview's subject matter is left to the discretion of the staff. If a witness has an attorney
present, the subject matter may be limited so that the true direction or targets of the grand jury
are not disclosed. An attorney taking notes can recall much more than can a witness appearing by
himself before the grand jury.

The staff may also want to confront a potential witness with incriminating evidence to prevent
the witness from perjuring himself before the grand jury. There are drawbacks, however, to
confronting a witness with evidence in an interview. If a witness has knowledge of such evidence
before he appears before the grand jury, he will have time to fabricate a credible story. When
revealing information to a witness in an interview, keep in mind that "forewarned is forearmed."

The timing of witness interviews must balance several considerations. On the one hand, if an
interview is sought to determine whether a witness has evidence that is worth putting before the
grand jury, an interview obviously should be conducted well before the grand jury appearance
date. There are no savings of time, money or effort if the grand jury is assembled and the staff
decides not to require an appearance before the grand jury. On the other hand, if an interview is
conducted some time before a grand jury appearance, a witness will have the opportunity to think
about the subject matter. This may be a problem if it is thought the witness may not be candid. If
a witness is inclined to testify falsely, questioning him cold before the grand jury may result in
such obviously false testimony that he will be unattractive as a defense witness at any subsequent
trial.

b. Cannot subpoena a witness for an interview

A witness should never be subpoenaed for an interview. "Neither the FBI nor the Strike Force
nor the United States Attorney has been granted subpoena power for office interrogation outside
the presence of the grand jury."(155) Consistent with the case law, "request subpoenas" directing a
witness to appear before the United States Attorney or his assistants are not permissible under
departmental regulations.(156) Thus, while the execution of a subpoena ad testificandum may
result in an interview with a witness, such an interview must be voluntary.

It is suggested that when a grand jury witness is interviewed, arrangements for the interview be
memorialized in writing, showing the voluntary nature of the interview.(157) Otherwise, the staff
may be faced with claims of grand jury abuse.(158)

6. Questioning witnesses
a. By attorney

Typically, one attorney is designated as a witness' lead examiner. Before substantive questions
are posed, several preliminary matters should be addressed.

Initially, the witness should be sworn by the grand jury foreperson. If the staff wishes to make
the witness more comfortable, the nature of the proceeding may be explained and the individuals
present identified. While not legally mandated, the staff may choose to read a witness his rights.
Thus, each witness may be advised: (1) that his testimony is given under oath and is being
recorded; (2) that he can be prosecuted for perjury or for making false statements if he fails to
testify truthfully; and when extra emphasis is desired, (3) that perjury is a felony punishable by
up to five years imprisonment.

In the area of substantive questioning, preparation is vital. The staff should be fully aware of
every document that bears on the testimony of a witness, although for tactical purposes, a
witness may not be confronted with every document. The staff should also be familiar with prior
grand jury testimony connecting the witness to the matters under investigation and any
information about the witness gained from interviews or other sources.

The lead attorney should also develop an outline of areas that should be covered during the
questioning with references to relevant documentary material. The outline should fully develop
the witness' knowledge of the matters under investigation as well as all relevant implications and
inferences to be drawn from the documents. The outline should further elicit information in a
form that is both logical and easy for the grand jury to understand.(159) The outline is very
important since the testimony may not follow the order anticipated by the attorney. Use of an
outline will allow the attorney to pay close attention to the witness' answers instead of thinking
about the next line of inquiry. A witness' answers may suggest certain avenues that demand
immediate follow-up questions, regardless of whether they fit into the order of the outline. An
outline enables the attorney to consider and respond to every answer given by the witness, while
his checklist ensures that all desired areas are covered.

The attorney's questions should be clear and unambiguous and kept as short as possible. The
questions should not be leading unless the questioning is in preliminary areas or the witness
becomes evasive, recalcitrant or hostile. They should not be argumentative. Questions such as
"explain," "go on," "describe the meeting" are best. There are several reasons for this. First, the
witness cannot later claim he did not understand the question. Second, when used for
impeachment later at trial, a witness' narrative is far more compelling than a "yes" or "no"
answer to a leading question. Finally, the more a witness talks, the more difficult it is to lie.
There is no doubt that many witnesses make slips when answering questions in narrative form.

Questioning must be detailed and thorough in an effort to obtain all of the witness' affirmative
knowledge and to indicate the boundaries beyond which he is merely speculating. Thus, the
examining attorney should not be satisfied with generalized statements or conclusions of the
witness since such are of little use in establishing the foundation for an indictment and are
generally inadmissible in court. The examining attorney must follow through to obtain the who,
what, when, where, and how of matters. This is particularly true regarding statements of
conspiracy where the initial inclination may be to accept generalized admissions of culpability.
For example, if a witness is testifying concerning certain conspiratorial meetings, it is essential to
obtain his recollections of the dates and locations, the names of the participants, the exact nature
of the discussions, the specific decisions or agreements which were made, and the subsequent
actions of the participants.

If a hostile witness provides affirmative information as to events, it is usually best to develop the
details of these events to the fullest extent possible. If a hostile witness is not locked into who,
what, when, why and where answers in his grand jury testimony, it is unlikely that those details
can be developed for trial. The staff should know if a witness will not or cannot provide specifics
before an indictment is sought.

There are some situations, however, where it is unwise to press a witness to give too many
details to the grand jury. For example, in a long-term conspiracy, if each witness is pushed for
dates, times and places of every meeting, inconsistencies and errors are inevitable. Thus, if a
witness gives "good" testimony before the grand jury, it may be wise to delay asking specific
questions until the witness has had his memory refreshed in an interview. This approach depends
on how cooperative a witness is viewed. This is a judgment call that should be made by an
experienced attorney.

When examining the witness, the attorney should have in mind three general objectives. The first
and most important is to obtain from the witness all the affirmative knowledge that he has on the
events in question. Second, the attorney should make sure that if the witness disclaims
knowledge or claims lack of memory, all the areas involved are covered so that if the witness
subsequently testifies for the defense in any case, the transcript can be used on cross-examination
to confront any "improved memory" of the witness with his lack of memory before the grand
jury. Third, the questioning should proceed in a manner whereby the attorney and the jury can
evaluate the witness' credibility. When the attorney is satisfied that the witness has been
questioned sufficiently so that his credibility or lack thereof is apparent, and the other two
objectives have been satisfied, the witness should be excused. If a witness decides not to disclose
what he knows, it will be rare that even the most skillful questioning will change his decision.

To this end, some of the best aids available to an examining attorney are documents. Initially,
documents should be given grand jury exhibit numbers that the examining attorney should note
for the record immediately prior to showing them to the witness. The examining attorney should
then, as a preliminary matter, elicit from the witness sufficient identifying information
concerning the document so that it is clear to the grand jury and for the record exactly what
document is being discussed. For instance, in the case of a memorandum, the examining attorney
may ask the witness the date of the document, the names of the company and individual who
created the document, its general subject matter, and the identity of any addressees. When using
a complicated document or one that is of central importance to the investigation, the examining
attorney may also wish to distribute copies of the document to the grand jurors or use an
enlargement that can be easily followed by both the witness and grand jurors as questioning
progresses. Once these steps have been taken and the record is clear, substantive questioning can
begin.(160)

The examining attorney should, if at all possible, have another staff attorney with him during
grand jury sessions. This attorney should be present during all important witness interviews
conducted by the examining attorney prior to the grand jury session and should review the
examining attorney's grand jury outline of questions. Both attorneys should be satisfied that the
outline will elicit all relevant information. The attorneys should then agree on the procedures
they will follow during the examination. It is suggested that the attorney not doing the
examination closely follow the examining attorney's outline during questioning so that all areas
are covered. The listening attorney should make notes of answers and of any areas not fully
developed. He should then consult with the examining attorney either at the termination of an
area of questioning or at a break to suggest additional or clarifying questions so that any gaps in
the examination can be filled. The listening attorney should generally not interrupt the examining
attorney's questions or pass notes to him during questioning as this can interfere with the flow of
testimony and distract both the witness and the examining attorney.

Despite the best efforts of an examining attorney to elicit full and truthful testimony from a
witness, occasionally a witness will be intentionally evasive, misleading or untruthful on points
that are material to the investigation. The examining attorney must then be aware that his
questions may form the basis for a later charge of perjury (18 U.S.C. § 1621) or false
declarations (18 U.S.C. § 1623) and construct a record accordingly.(161)

Initially, all of the admonitions concerning proper questioning techniques apply to the
examination of a witness who may be committing perjury. The questions should be clear and
concise. They should center on issues material to the investigation. Moreover, the record must be
clear that the witness has not misunderstood a question or has been misled, so the examining
attorney may wish to define terminology again or ask the witness if he fully understands
particular questions. Examination must be fair but firm; vigorous, if necessary, but never
abusive. Non-responsive or evasive answers should not be accepted. The examining attorney
should not, however, engage in unnecessary repetition or other conduct in an effort to coax the
witness into the commission of perjury or false statements as such conduct may be abuse of the
grand jury process.(162)

b. By grand jurors

An attentive and interested grand jury will usually have questions for the witness. Whenever
possible, questions by members of the grand jury should be deferred until the attorney's
examination is completed.

There are at least two procedures that may be used in taking grand juror questions:

1. The attorney may allow the grand jurors to ask the questions without prior screening or
discussion.
2. The attorney may ask the witness to leave the room, discuss the questions with the grand jury,
and, if necessary, discuss why certain questions may be improper. Upon the witness' return,
either the grand jurors or the attorney may pose the question.

In some jurisdictions, it is the practice of the United States Attorney to prescreen grand juror's
questions. The following considerations should be kept in mind when determining whether a
question to a witness is appropriate:

a. whether the question discloses other facts in the investigation that should not become known
to the witness;
b. whether the witness is hostile;
c. whether the question may call for privileged, prejudicial, misleading or irrelevant evidence.

Even if not mandated by local practices, prescreening questions may be useful if a "runaway"
grand jury is adversely affecting the record.

In many cases, the jurors ask excellent questions and their participation may aid the attorneys.
Thus, the staff may also want to consider making copies of certain documents for the grand
jurors where it would be helpful to them in following the questioning or the line of testimony.
Grand jurors have expressed their appreciation for this practice as a help in their understanding
of the testimony. It also furthers their feeling of involvement.

7. Access by witness to counsel

An immunized witness has no clear-cut right to consult with counsel, but reasonable consultation
is usually permitted and looked upon with approval by the courts.(163) In the opening remarks to
the witness, the Government attorney will often tell the witness to ask for a brief recess if he has
a need to consult with counsel. It is prudent to ask the court reporter to note the time the witness
leaves the room and the time he returns in case these interruptions become disruptive of the
grand jury process.
An immunized witness who insists upon leaving the grand jury room frequently and consulting
with an attorney at length may be taken to the court for an order directing the witness to
discontinue such a practice and, if necessary, to establish ground rules for such consultations.(164)
A witness who has not been immunized presumably has a stronger reason and, therefore, a
greater right to consult with counsel, although the extent of this right is not clear.(165)
Unreasonable consultations should not be permitted to obstruct the orderly questioning of the
witness.

Alternatively, where there is abuse of the right to consult with counsel, the attorney in charge of
the grand jury may simply decline to permit consultation. If the witness then refuses to answer
questions, the attorney for the Government should take the matter before the court for a ruling on
the propriety of the questions. As stated in People v. Ianiello, 21 N.Y.2d 418, 235 N.E.2d 439,
cert. denied, 393 U.S. 827 (1968):

By requiring the matter to be taken to the presiding Justice, the proceeding is expedited and the danger
of stalling tactics reduced. The judge can rule on questions of pertinency, after argument of counsel. He
can determine whether a colorable claim of testimonial privilege is presented, and can inform the
defendant of the extent of his immunity from prosecution for prior offenses. Where a witness persists in
raising objections which are palpably not in good faith, the judge may compel him to desist from this
course under the sanction of [civil] contempt proceedings.

Questioning a witness about his conversations with counsel to ensure that he has been apprised
of rights and responsibilities is perfectly permissible.(166) Care should be taken not to examine the
witness as to these conversations with counsel in a manner that would violate the witness'
attorney-client privilege.

8. Note-Taking by witness

There are no cases addressing the question of whether a witness may take notes of the questions
asked during his grand jury appearance. It is preferable to discourage a witness from taking notes
for several reasons. First, it will lengthen and delay the grand jury proceedings if he takes notes
on every question he is asked before answering. This delay is compounded if the witness also
consults with his attorney before answering the question. Second, it undermines the secrecy of
the grand jury proceedings. It allows the witness and his attorney to track more accurately the
direction and progress of an investigation than if the witness only has his memory to rely on in
reporting what occurred during his appearance before the grand jury. Because the witness and his
attorney are under no secrecy obligation under Fed. R. Crim. P. 6(e), they are free to circulate
notes to other defense attorneys and prospective witnesses. Finally, verbatim notes essentially
provide a witness with a transcript of his testimony. Fed. R. Crim. P. 6(e)(1) provides that the
court reporter and Government attorneys are the only people authorized to make and maintain
the record of the grand jury's proceedings. Thus, a witness who prepares verbatim notes is
making an "unofficial" transcript of the proceedings. The rules do not authorize such a transcript
and it is inconsistent with the majority of case law that denies a witness automatic access to a
transcript of his own testimony before the grand jury.(167)
In attempting to prevent witness note-taking, it is best to consult with the U.S. Attorney's Office
in the district where the grand jury sits to see if they have encountered this problem before going
to the court. The best approach to use with most courts is to emphasize the delay the note-taking
is causing and the potential for compromising the secrecy of the grand jury's proceedings.

9. Abuse of witness
a. Appropriate treatment of witnesses

Every witness should be treated firmly but with courtesy and consideration. Each witness should
be examined as if his testimony and your examination will become public. In the event that it
becomes necessary to cross-examine a witness vigorously, do not be abusive. Such abuse is
improper, will not be productive and will alienate the grand jury. Do not examine the witness as
to his conversations with his counsel in a manner that would violate the witness' attorney-client
privilege.(168) Unnecessary, repetitious questioning should be avoided. If the court determines that
the purpose of repetitious questioning is to coax the witness into the commission of perjury or
contempt of court, such conduct will be held an abuse of the grand jury process.(169)

Do not attempt to "trick" the witness by asking his reaction to testimony that does not exist, or by
advising him that documents are available that demonstrate a certain point when, in fact, the
documents do not exist or the documents do not support the examiner's characterization. Should
the witness testify on the basis of such confrontation, he will be in a position to retract such
testimony at trial. Further, the Government will be embarrassed if the court and jury become
aware of the "trick."

b. What constitutes abuse?

Intimidation of the witness by actual threats of criminal proceedings (as distinguished from
"cautions" or reminding him of his legal obligation to be truthful) is abusive conduct. Bullying a
witness, that is, forcefully questioning in such a manner as to make it obvious that the witness
should give certain answers, could constitute abuse. Tone or inflection of the examiner's voice,
although not discoverable from the transcripts, can be abusive as well. Such conduct by the staff,
if sufficiently excessive, may so bias the jury as to deny a later-indicted defendant the right of
due process of law. It may also have the opposite effect of making the grand jury hostile to the
Government.

c. Appearance of abuse

Care should be taken to avoid even the appearance of abuse. Motions attacking the grand jury on
such grounds can only result in harm to the Government; for example, by delaying the
investigation. Further, the court, in the exercise of its inherent power to supervise the grand jury,
conceivably could halt the examination of any given witness who is allegedly being abused, or
even the investigation itself, in a flagrant case. While the court might be reversed on appeal, such
a ruling should be avoided.

Of course, the Government attorney should take care that he is not abused by the witness.
Obnoxious, recalcitrant witnesses should be dealt with firmly and the Government attorney
should make it clear that he is in control of the situation. While experience is the only true
teacher, where appropriate, the Government lawyer should not be afraid to cut off the witness,
admonish the witness or otherwise control the situation if the witness is not addressing the
questions posed.

d. Effect of abuse

Although rare, prosecutorial abuse of a non-defendant grand jury witness has resulted in the
dismissal of an indictment. Courts have used two distinct bases for dismissing indictments based
on this type of abuse. Some courts have dismissed an indictment on due process grounds if the
defendant can show he suffered actual prejudice because of the abuse of a witness before the
grand jury.(170) Even if the defendant makes no showing of prejudice, a few courts have dismissed
indictments in an exercise of their supervisory power to correct flagrant or persistent
prosecutorial abuse.(171) However, the continued validity of these cases is highly suspect in light
of Bank of Nova Scotia v. United States, 487 U.S. 250 (1988), in which the Supreme Court
required a showing of actual prejudice before dismissing an indictment based on alleged
misconduct before the grand jury.

An example of an unsuccessful motion alleging a denial of due process because of witness abuse
is found in United States v. Bruzgo, 373 F.2d 383 (3d Cir. 1967). Bruzgo moved for dismissal of
the indictment because the prosecuting attorney threatened a witness before the grand jury, who
was associated with Bruzgo, with loss of United States citizenship, five years imprisonment and
a $10,000 fine. The witness was also referred to as a "thief" and "racketeer" by the prosecuting
attorney. The court stated:

On this issue the case comes down to the point that the prosecutors improperly made threats or used
abusive language toward a witness connected with defendant in his business and thereby influenced the
grand jurors with such a bias toward the defendant that he was not afforded his constitutional right to
be indicted by an "unbiased" grand jury.

Without considering the full sweep of the term "unbiased" we turn to an evaluation of the
evidence on this question. The grand jurors knew of Miss Williams' business connection with
defendant. They also knew that she successfully invoked the 5th Amendment before them. They
had evidence which it is not denied was sufficient to support an indictment. In these premises the
threats could hardly have had independent material significance in the jurors' minds when they
considered whether they wanted to indict defendant. Their "hissing" does not nullify their action
in view of what they had properly before them . . .(172)

The thrust of the cases is that the courts will review grand jury transcripts provided that a
sufficient preliminary showing of grand jury abuse has been made, to determine if non-defendant
witnesses have been abused, but will not find the defendant's due process rights violated if there
is sufficient evidence to support the indictment. Under Bank of Nova Scotia and Bruzgo, a
defendant must show actual prejudice to prevail on a due process theory.

Prior to Bank of Nova Scotia, some courts had suggested that an indictment could be dismissed
even where the defendant had failed to show actual prejudice, for example, in United States v.
Serubo, 604 F.2d 807, 817 (3d Cir. 1979), the prosecutor impugned the testimony of witnesses
who failed to link the defendants to organized crime and threatened other uncooperative
witnesses. The court stated that "where a defendant can show actual prejudice resulting from the
misconduct of the prosecutor before the grand jury, suppression would be proper."(173) The court
also went on to say that:

. . . dismissal of the indictment may be proper even where no actual prejudice has been shown, if there
is evidence that the challenged activity was something other than an isolated incident unmotivated by
sinister ends, or that the type of misconduct challenged has become 'entrenched and flagrant' in the
circuit.(174)

Thus, under Serubo, an indictment may be dismissed based on witness abuse, even if there is
sufficient evidence to support the return of the indictment. Under this theory, the indictment is
dismissed not because of actual prejudice suffered by the defendant, but rather to uphold the
integrity of the grand jury process.

While the Serubo rationale is probably inconsistent with Bank of Nova Scotia, abusive conduct
toward grand jury witnesses is improper, unproductive and unnecessary whether or not it
provides the basis for subsequent dismissal of an indictment. Such conduct should always be
avoided.

10. Advising witness of inconsistent evidence

There is no obligation to advise the witness of evidence inconsistent with his testimony.
However, it is sometimes a good practice to tell the witness of such evidence. The witness may
not have understood the question and may take advantage of the opportunity to clarify his
answer. Additionally, it is often helpful for the attorney to be able to weigh the merits of
contradictory evidence at this stage of the investigation.

11. Opportunity to correct or recant testimony

A witness has no right to be advised that he may recant untruthful testimony and thereby avoid a
perjury charge under 18 U.S.C. § 1621 or a false declaration indictment under 18 U.S.C. § 1623.
(175)
A good practice, if the attorney suspects the witness may have perjured himself, is to ask the
witness if he wishes to retract or correct any testimony and, if appropriate, to advise the witness
of the contradictory evidence.

12. Advising witness of perjury statute

At the beginning of the session, it is the practice of the Antitrust Division to warn the witness
about the danger of prosecution for perjury and false statements. It is sometimes appropriate to
remind the witness that he is under oath and of the possible penalties for untruthful testimony. If
the attorney is convinced that the witness is lying, consideration should be given to developing a
record for possible indictment.

G. Exculpatory Evidence
 1. Legal standards

No provision of the Constitution, statute, or court rule imposes a legal obligation on the
prosecutor to present exculpatory evidence (substantial evidence which directly negates guilt) to
the grand jury. The majority of courts that have addressed the question have found no obligation
to present exculpatory evidence.(176) However, some courts have suggested that in some
circumstances a prosecutor has a limited duty to present exculpatory evidence to the grand jury,
based on constitutional, legal or ethical principles.

In United States v. Page, 808 F.2d 723, 727-28 (10th Cir.), cert. denied, 482 U.S. 918 (1987), the
court found that a prosecutor had a duty to disclose evidence that clearly negates the guilt of the
target of the grand jury investigation.(177) The Second Circuit, in United States v. Ciambrone, 601
F.2d 616, 622-23 (2d Cir. 1979), recognized that there is no obligation to present such evidence,
but advised that prosecutors should make exculpatory evidence known to the grand jury, citing
ABA Project on Standards for Criminal Justice - The Prosecution Function, § 3.6, pp. 90-91.(178)
More recently, the court in United States v. Dorfman, 532 F. Supp. 1118, 1131-33 (N.D. Ill.
1981), dismissed an indictment, holding that a prosecutor has a constitutional duty to present
evidence that clearly negates guilt. At least one panel of the Seventh Circuit has expressed its
concurrence with the principle enunciated in Dorfman.(179)

2. Department of Justice policy

Department of Justice policy regarding the presentation of exculpatory evidence is contained in

U.S.A.M. 9-11.233 which states:

[W]hen a prosecutor conducting a grand jury investigation is personally aware of substantial evidence
which directly negates the guilt of a subject of the investigation, the prosecutor must present or
otherwise disclose such evidence to the grand jury before seeking an indictment against such a person.

If it is unclear whether known evidence is exculpatory, a prosecutor should err on the side of
disclosure.

Division attorneys should carefully consider whether the grand jury should be advised of
inconsistent statements made by material witnesses. If appropriate, the grand jury should be
provided with the substance of such statements. The attorney should also evaluate any statements
made by the defendant to determine if they are exculpatory.

3. Requests by subjects or targets to testify or present evidence to the grand jury

In antitrust cases, where it is common practice to advise individuals of their status as targets of
the grand jury investigation, a defendant or defense counsel may request an opportunity to have
the target testify before the grand jury, have a third party testify, or have a statement or other
written information presented to the grand jury. While the prosecutor has no legal obligation to
permit this(180), such opportunities may be granted in some circumstances so as to obviate any
appearance of unfairness that a refusal would create. Target appearances may allow the
prosecutor to preview a potential defense case, as well.
As a matter of policy, any subject or target who requests the opportunity to personally testify
should be permitted to do so, unless it will cause delay or otherwise burden the grand jury.(181)
The grand jury should always be informed of such a request.(182)

Requests by a target to submit a written statement to the grand jury should be opposed. It may be
wise to advise the grand jury of such a request and the prosecutor's reasons for opposing it.(183)

If a subject or target wants to have the testimony of a third party presented to the grand jury and
the potential testimony is arguably relevant to the grand jury's inquiry, the prosecutor should
attempt to obtain a proffer of the testimony. When passing on such requests, it must be kept in
mind that the grand jury was never intended to be and is not properly either a first-stage
adversary proceeding, or the arbiter of guilt or innocence.(184)

H. Grand Jury Abuse

1. Nature of the problem and its effect

A grand jury possesses extraordinary investigative powers that are dependent on and supervised
by the prosecuting attorney. Prosecutors should not abuse this serious responsibility or otherwise
engage in prosecutorial misconduct before the grand jury. Attorneys should not violate the
Federal Rules of Criminal Procedure, the local rules nor the case law as it applies to grand jury
practice. Attorneys should also follow all appropriate Division and Department guidelines,
although, failure to do so does not create any enforceable rights for a defendant or putative
defendant.(185) Further, to the extent possible, attorneys should attempt to avoid even the
appearance of impropriety before the grand jury. Given the wide range of permissible conduct
that defendants allege as an abuse, the latter is often impossible.

As a general matter, the Department of Justice tries to maintain the highest standards for its
attorneys and, therefore, its attorneys should abide by all of the appropriate rules. More
specifically, misconduct before the grand jury can adversely affect the conduct of the grand jury
and any subsequent prosecution. Although there is a strong presumption of regularity
surrounding a grand jury proceeding,(186) sufficiently outrageous misconduct may lead a court to
dismiss an indictment on due process grounds(187) or as an exercise of its supervisory powers.(188)
Even if the misconduct is insufficient to justify dismissing an indictment, it may be sufficient to
delay a trial while abuse motions are resolved or to justify providing a defendant with discovery
of grand jury materials under Fed. R. Crim. P. 6(e)(3)(C)(ii), to which the defendant would not
otherwise be entitled. Other sanctions used by the courts to remedy grand jury abuse include:
quashing subpoenas or issuing protective orders,(189) suppressing grand jury testimony,(190)
expunging prejudicial language from indictments,(191) and recommending disciplinary actions
against the prosecutor.(192) In any event, engaging in abusive conduct inevitably leads to
defending abuse motions and puts a prosecutor's credibility in issue at the outset of a case.

2. Jurisdiction of the court

Judicial review of grand jury proceedings is extremely limited for several reasons. First, the
grand jury is traditionally an independent body that is unrestricted by the technical rules of
evidence and procedure. Second, the general rule of secrecy of grand jury proceedings,
particularly while an investigation is ongoing, makes courts reluctant to interfere with grand jury
proceedings. Third, courts are unwilling to impede or obstruct the grand jury's vital law
enforcement function by questioning the grand jury's conduct. Finally, the doctrine of separation
of powers limits the court's ability to supervise the conduct of prosecutors who are members of
the Executive branch. Nonetheless, courts have on occasion dismissed indictments on either due
process grounds or as an exercise of their supervisory powers.

a. Due process

A few courts have dismissed indictments because of prosecutorial abuse before the grand jury on
due process grounds. Dismissal on due process grounds is rare because most courts view grand
jury proceedings as outside of the scope of the due process clause, the indictment being a mere
technical instrument to bring on the trial.(193) A very few courts have dismissed indictments on
due process grounds because of the knowing use of perjured testimony.(194) However, the weight
of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.(195)
As discussed more fully below, the Supreme Court's decision in Bank of Nova Scotia v. United
States, 487 U.S. 250 (1988), has, at a minimum, established that a due process claim requires a
showing that the alleged abuse "substantially influenced the grand jury's decision to indict."(196)

b. Supervisory powers

On occasion, courts have dismissed an indictment based on grand jury abuse as an exercise of
the court's inherent supervisory powers. Courts have reasoned that, as inherent supervisor of the
grand jury process, they are empowered to establish standards of justice and fair play in grand
jury proceedings that are not specifically required by the Constitution or federal statutes. In
exercising these supervisory powers, courts must not encroach on the legitimate prerogatives and
independence of the grand jury and the prosecutor.(197)

Courts have exercised their supervisory power to dismiss indictments based on grand jury abuse
to remedy the abuse, to preserve the integrity of the grand jury and to deter similar conduct in the
future.(198) Courts have dismissed indictments or reversed convictions where the prosecutor's
conduct before the grand jury was flagrant and extremely prejudicial;(199) where the particular
misconduct had become repetitive and entrenched;(200) where the result of the misconduct was
unequal treatment of the accused;(201) or where there was a need to formulate procedural rules
governing proper prosecutorial conduct.(202)

The case law noted above has always been suspect because there is no clear authority for the
courts' exercise of their supervisory powers and because grand juries are inherently independent
bodies. This case law has become even more suspect in light of the decision in Bank of Nova
Scotia in which the Supreme Court required a showing of actual prejudice to the defendant
before an indictment could be dismissed on non-constitutional grounds.(203)

3. Supreme Court authority limiting a court's ability to dismiss indictments based on grand
jury abuse
The Supreme Court has been reluctant to interfere with grand jury proceedings by permitting
challenges to indictments based on prosecutorial misconduct. The Supreme Court has been
unwilling to subject grand jury proceedings with the delay and disruption that would be the
inevitable result of judicial review.

Typical of this attitude are the Supreme Court's decisions in Costello v. United States, 350 U.S.
359 (1956), and United States v. Calandra, 414 U.S. 338 (1974). In Costello, the Supreme Court
refused to allow a challenge to the nature or sufficiency of the evidence presented to the grand
jury. The Court held that "[a]n indictment returned by a legally constituted and unbiased grand
jury . . . if valid on its face is enough to call for trial of the charge on the merits."(204) In Calandra,
the Supreme Court declined to apply the 4th Amendment exclusionary rule to grand jury
proceedings. The Court reaffirmed its view as expressed in Costello and stated that any rule that
would "'saddle the grand jury with minitrials and preliminary showings would assuredly impede
its investigation and frustrate the public's interest in the fair and expeditious administration of the
criminal laws.'"(205) Combined, Costello and Calandra, would seem to bar any challenge to an
indictment based on the nature or sufficiency of the evidence presented to the grand jury.

More recently, the Supreme Court has further curtailed a defendant's or putative defendant's
ability to challenge prosecutorial misconduct before the grand jury. In United States v.
Mechanik, 475 U.S. 66 (1986), the Supreme Court held that certain violations of the Federal
Rules of Criminal Procedure were rendered harmless beyond a reasonable doubt by the
defendant's subsequent conviction by a petit jury. The holding and logic of Mechanik should
prevent most post-conviction attacks based on prosecutorial misconduct before the grand jury.

Following Mechanik, defense counsel argued that if procedural errors became moot after
conviction, then they should be afforded earlier and greater access to grand jury materials so that
they could pursue relief from grand jury abuses by seeking dismissal of the indictment before
trial. However, the Supreme Court in Midland Asphalt Corp. v. United States, 489 U.S. 794
(1989), refused to create an additional basis for immediate appeal in criminal cases based on
Mechanik's limitations on post-conviction relief.

Substantial limitations were placed on the court's ability to dismiss indictments based on its
supervisory powers over prosecutors and the grand jury in Bank of Nova Scotia v. United States,
487 U.S. 250 (1988). In Bank of Nova Scotia, the district court dismissed the indictment because
of a host of violations of Rule 6(d) and (e), as well as other types of prosecutorial misconduct.
The Tenth Circuit reversed and the Supreme Court affirmed holding that, for a non-constitutional
grand jury challenge, a dismissal of an indictment is appropriate only if the violation
"substantially influenced the grand jury's decision to indict." In other words, the Supreme Court
established a requirement of actual prejudice before dismissal could be considered an appropriate
remedy.

The combined effect of the Supreme Court cases noted above is to severely limit a defendant's
ability to attack the validity of an indictment, valid on its face, that is returned by a legally
constituted grand jury.

4. Typical allegations of misconduct

Although the case law severely limits a defendant's ability to successfully attack an indictment
based on a prosecutor's misconduct before the grand jury, such attacks are frequently made based
either on true misconduct or allegations of misconduct. The following is a listing of typical
allegations of misconduct. Additional information on each allegation can be found elsewhere in
this manual. Other valuable sources of information in this area include: Criminal Antitrust
Litigation Manual, American Bar Association, 1983; Grand Jury Law and Practice, Beale and
Bryson, Ch. 10; and Moore's Federal Practice, Volume 8, ¶ 6.04.

a. Allegations relating to nature of evidence

1) hearsay evidence

2) use of perjured testimony

3) lack of exculpatory evidence

4) use of inadmissible evidence

5) illegal use of recorded communications

6) use of privileged information

b. Allegations relating to conduct of prosecutor

1) abusing witnesses

2) presenting summaries of evidence

3) improperly instructing grand jury in the law

4) improperly inflaming or influencing the grand jury

5) presenting a signed indictment to the grand jury

6) stating personal opinion

7) use of grand jury agents

8) having an unauthorized person in the grand jury room

9) improperly disclosing grand jury information

c. Allegations involving abuse of the grand jury process

1) use of grand jury for a civil investigation

 2) delay in presenting indictment or selective prosecution

3) obtaining evidence against defendants that have already been indicted

5. Preventative Measures

The most important practice to follow to avoid allegations of prosecutorial misconduct is for the
prosecuting attorney to be fully aware of the rules in the jurisdiction in which he is practicing
and conforming his behavior to those rules. Further, as discussed in § F.9., supra, witnesses
should be treated firmly but politely. They should never be abused, harassed or improperly
influenced.

Limiting instructions should be liberally used. When appropriate, the grand jurors should be
cautioned that statements made by the prosecutor and any opinions expressed by the prosecutor
are not evidence and should not be considered in returning an indictment. In those jurisdictions
that have special evidentiary requirements, special instructions to the grand jury should be used.
For example, in those jurisdictions that follow Estepa, the grand jurors should be informed
whenever they are receiving hearsay evidence and should be instructed that they have the right to
hear live witnesses.

Special care should be exercised as to any local requirements regarding exculpatory evidence.
Where appropriate, it should be solicited from defense counsel and presented to the grand jury.

Finally, if an attorney becomes aware of significant prosecutorial misconduct that would not
prejudice a new grand jury, he should consider the possibility of dismissing the pending
indictment and seeking a superceding indictment. This will avoid a motion to dismiss and a
possible issue on appeal. If an indictment is dismissed because of prosecutorial misconduct, there
is usually no prohibition against seeking a new indictment so long as the new grand jury would
not be tainted by the prior misconduct.(206)

FOOTNOTES

1. These details will vary by district, requiring careful coordination with the clerk, the marshal,
the court, and the United States Attorney.

2. Obtaining a list of the names, addresses and telephone numbers of the grand jurors is useful, if
that is permissible in the district.

3. Although not required by statute or case law, at the beginning of each session and each time
the grand jury reconvenes, the foreperson should state on the record that only the authorized
jurors, Government attorneys and reporters are present, and that a quorum of grand jurors is
present.
4. Staff must be familiar with local practices regarding the issuance of subpoenas and document
returns. For example, in some districts the grand jury foreman must initial a copy of each
subpoena issued, signifying his approval of its issuance.

5. See Chapter I § C.4.

6. A grand juror taking notes and deliberately releasing them would violate grand jury secrecy
and be subject to punishment by contempt. However, such a breach of secrecy should not
invalidate any subsequent indictment. Cf. United States v. Thomas, 593 F.2d 615 (5th Cir.),
modified, 604 F.2d 450 (5th Cir. 1979), cert. denied, 449 U.S. 841 (1980); United States v.
Hoffa, 349 F.2d 20 (6th Cir. 1965), aff'd on other grounds, 385 U.S. 293 (1966).

7. U.S.A.M. 9-11.020.

8. See § C.15., infra.

9. See § C.11., infra.

10. Stirone v. United States, 361 U.S. 212, 218 (1960).

11. United States v. Sells Eng'g, Inc., 463 U.S. 418 (1983).

12. See United States v. Singer, 660 F.2d 1295 (8th Cir. 1981), cert. denied, 454 U.S. 1156
(1982).

13. See United States v. Linetsky, 533 F.2d 192, 200 (5th Cir. 1976); United States v. Busic, 472
F. Supp. 880 (E.D.N.Y.), rev'd on other grounds, 549 F.2d 252 (2d Cir. 1977).

14. See United States v. Civella, 666 F.2d 1122, 1127 (8th Cir. 1981).

15. United States v. Ogden, 703 F.2d 629, 636-37 (1st Cir. 1983); United States v. Ciambrone,
601 F.2d 616 (2d Cir. 1979); United States v. Sears, Roebuck & Co., 719 F.2d 1386 (9th Cir.
1983); United States v. Troutman, 814 F.2d 1428 (10th Cir. 1987).

16. United States v. Linton, 502 F. Supp. 861 (D. Nev. 1980).

17. United States v. Ogden, 703 F.2d at 636-37.

18. United States v. Bettencourt, 614 F.2d 214 (9th Cir. 1980).

19. United States v. Ciambrone, 601 F.2d 616 (2d Cir. 1979).

20. See § D.2., infra.

21. See United States v. Bari, 750 F.2d 1169 (2d Cir. 1984), cert. denied, 472 U.S. 1019 (1985).
22. U.S.A.M. 9-11.232.

23. See Bank of Nova Scotia v. United States, 487 U.S. 250 (1988).

24. 235 F. at 791-92; see also Costello v. United States, 350 U.S. 359 (1956); United States v.
Ogden, 703 F.2d 629, 636-37 (1st Cir. 1983); United States v. Birdman, 602 F.2d 547 (3d Cir.
1979), cert. denied, 444 U.S. 1032 (1980); United States v. United States Dist. Court, 238 F.2d
713 (4th Cir.), cert. denied, 352 U.S. 981 (1957); United States v. Heffington, 682 F.2d 1075
(5th Cir. 1982), cert. denied, 459 U.S. 1108 (1983).

25. United States v. Heffington, 682 F.2d at 1080; see also United States v. Al Mudarris, 695
F.2d 1182 (9th Cir.), cert. denied, 461 U.S. 932 (1983); United States v. Pabian, 704 F.2d 1533
(11th Cir. 1983).

26. See Costello v. United States, 350 U.S. 359 (1956); United States v. Schlesinger, 598 F.2d
722 (2d Cir.), cert. denied, 440 U.S. 880 (1979); United States v. Litton Sys., Inc., 573 F.2d 195
(4th Cir.), cert. denied, 439 U.S. 828 (1978); United States v. Brown, 574 F.2d 1274 (5th Cir.),
cert. denied, 439 U.S. 1046 (1978); United States v. Barone, 584 F.2d 118 (6th Cir. 1978), cert.
denied, 439 U.S. 1115 (1979); United States v. Long, 706 F.2d 1044 (9th Cir. 1983).

27. See United States v. Dunham Concrete Prods. Inc., 475 F.2d 1241, 1247-49 (5th Cir.), cert.
denied, 414 U.S. 832 (1973); United States v. Universal Mfg. Co., 525 F.2d 808 (8th Cir. 1975).

28. See United States v. Hodge, 496 F.2d 87 (5th Cir. 1974). But see United States v.
Schlesinger, 598 F.2d supra; United States v. Birdman, 602 F.2d supra.

29. United States v. Long, 706 F.2d at 1050.

30. See Bank of Nova Scotia v. United States, 487 U.S. 250 (1988).

31. See United States v. McKenzie, 678 F.2d 629, 632-33 (5th Cir.), cert. denied, 459 U.S. 1038
(1982); United States v. Cederquist, 641 F.2d 1347 (9th Cir. 1981).

32. See United States v. Civella, 666 F.2d 1122, 1129-30 (8th Cir. 1981).

33. See United States v. McKenzie, 678 F.2d at 632-33; United States v. Frantze, 655 F.2d 128,
130-31 (8th Cir. 1981); United States v. Cederquist, 641 F.2d at 1353; United States v. Levine,
457 F.2d 1186 (10th Cir. 1972); United States v. Brown, 684 F.2d 841 (11th Cir. 1982); United
States v. Climatemp, 482 F. Supp. 376 (N.D. Ill. 1979), aff'd sub nom. United States v. Reliable
Sheet Metal Works, Inc., 705 F.2d 461 (7th Cir.), cert. denied, 462 U.S. 1134 (1983).

34. See United States v. Hogan, 712 F.2d 757 (2d Cir. 1983).

35. See United States v. Cathey, 591 F.2d 268 (5th Cir. 1979); United States v. Al Mudarris, 695
F.2d 1182, 1185 (9th Cir.), cert. denied, 461 U.S. 932 (1983); United States v. Pabian, 704 F.2d
1533 (11th Cir. 1983).
36. See United States v. Civella, 666 F.2d 1122 (8th Cir. 1981), United States v. Troutman, 814
F.2d 1428 (10th Cir. 1987).

37. See Chapter II § G., Rule 6(e)(3)(iii); United States v. Contenti, 735 F.2d 628 (1st Cir. 1984);
In re Grand Jury Proceedings (Sutton), 658 F.2d 782 (10th Cir. 1981); United States v. Kabbaby,
672 F.2d 857 (11th Cir. 1982).

38. See United States v. Phillips, 664 F.2d 971 (5th Cir. Unit B Dec. 1981), cert. denied, 457
U.S. 1136 (1982); United States v. Al Mudarris, 695 F.2d 1182, 1185-86 (9th Cir.), cert. denied,
461 U.S. 932 (1983).

39. See United States v. West, 549 F.2d 545 (8th Cir. 1977).

40. See United States v. Jacobson, 691 F.2d 110 (2d Cir. 1982).

41. See §§ C.7., supra and D.2., infra.

42. See United States v. Schlesinger, 598 F.2d 722, 726 (2d Cir.), cert. denied, 440 U.S. 880
(1979); United States v. Flomenhoft, 714 F.2d 708 (7th Cir. 1983), cert. denied, 465 U.S. 1068
(1984).

43. See United States v. Blitz, 533 F.2d 1329 (2d Cir.), cert. denied, 429 U.S. 819 (1976); United
States v. Wander, 601 F.2d 1251 (3d Cir. 1979); United States v. Anzelmo, 319 F. Supp. 1106
(E.D. La. 1970).

44. See United States v. Chanen, 549 F.2d 1306 (9th Cir.), cert. denied, 434 U.S. 825 (1977).

45. United States v. Kilpatrick, 821 F.2d 1456, 1467-68 (10th Cir. 1987), aff'd sub nom. Bank of
Nova Scotia v. United States, 487 U.S. 250 (1988).

46. See Federal Grand Jury Practice, Narcotics and Dangerous Drug Section monograph Chapter
I § F.2, p. 17.

47. See United States v. Kington, 801 F.2d 733 (5th Cir. 1986), cert. denied, 481 U.S. 1014
(1987).

48. See United States v. Schlesinger, 598 F.2d supra; United States v. Litton Sys., Inc., 573 F.2d
195 (4th Cir.), cert. denied, 439 U.S. 828 (1978); United States v. Brown, 574 F.2d 1274 (5th
Cir.), cert. denied, 439 U.S. 1046 (1978); United States v. Al Mudarris, 695 F.2d at 1185-86;
United States v. Kilpatrick, 821 F.2d at 1470.

49. See United States v. Long, 706 F.2d 1044 (9th Cir. 1983); United States v. Kouba, 632 F.
Supp. 937 (D.N.D. 1986).

50. See United States v. Dunham Concrete Prods., Inc., 475 F.2d 1241, 1247-49 (5th Cir.), cert.
denied, 414 U.S. 832 (1973); United States v. Donohue, 574 F. Supp. 1263 (D. Md. 1983).
51. See United States v. Schlesinger, 598 F.2d at 725; United States v. Al Mudarris, 695 F.2d at
1186.

52. See United States v. Samango, 607 F.2d 877 (9th Cir. 1979).

53. See United States v. Wells, 163 F. 313 (D. Idaho 1908).

54. See United States v. Al Mudarris, 695 F.2d 1182, 1187-88 (9th Cir.), cert. denied, 461 U.S.
932 (1983).

55. See United States v. McKenzie, 678 F.2d 629 (5th Cir.), cert. denied, 459 U.S. 1038 (1982);
United States v. Sears, Roebuck & Co., 719 F.2d 1386 (9th Cir. 1983).

56. United States v. Cathey, 591 F.2d 268, 273-74 (5th Cir. 1979); see also United States v. Al
Mudarris, 695 F.2d at 1185.

57. See also United States v. Hogan, 712 F.2d 757 (2d Cir. 1983); and ABA Code of
Professional Responsibility (1975) Disciplinary Rule 5-101(b) and Ethical Consideration 5-9.

58. See § I., infra.

59. See United States v. Civella, 666 F.2d 1122 (8th Cir. 1981).

60. See United States v. Blitz, 533 F.2d 1329 (2d Cir.), cert. denied, 429 U.S. 819 (1976); United
States v. Heffington, 682 F.2d 1075 (5th Cir. 1982), cert. denied, 459 U.S. 1108 (1983).

61. See United States v. Singer, 660 F.2d 1295 (8th Cir. 1981), cert. denied, 454 U.S. 1156
(1982).

62. See United States v. Troutman, 814 F.2d 1428 (10th Cir. 1987). But see United States v.
Martin, 561 F.2d 135 (8th Cir. 1977).

63. See United States v. Blitz, 533 F.2d at 1344.

64. See United States v. Venegas, 800 F.2d 868 (9th Cir. 1986), cert. denied, 479 U.S. 1100
(1987).

65. See United States v. Dionisio, 410 U.S. 1, 15 (1972); In re Grand Jury Proceedings,
Harrisburg Grand Jury, 658 F.2d 211, 214 (3d Cir. 1981); United States v. McKenzie, 678 F.2d
629, 632 (5th Cir.), cert. denied, 459 U.S. 1038 (1982); In re Special February 1975 Grand Jury,
565 F.2d 407, 411 (7th Cir. 1977).

66. Coppedge v. United States, 311 F.2d 128, 132 (D.C. Cir. 1962), cert. denied, 373 U.S. 946
(1963); see also United States v. McKenzie, 678 F.2d at 632.
67. See United States v. Calandra, 414 U.S. 338 (1974); Costello v. United States, 350 U.S. 359
(1956).

68. See United States v. Calandra, 414 U.S. 338, 349 (1974).

69. See Lawn v. United States, 355 U.S. 339 (1958); United States v. Ciambrone, 601 F.2d 616,
622 (2d Cir. 1979); In re Grand Jury Proceedings, Harrisburg Grand Jury, 658 F.2d 211, 214 (3d
Cir. 1981); United States v. Wilson, 732 F.2d 404, 409 (5th Cir.), cert. denied, 469 U.S. 1099
(1984).

70. See also United States v. Ciambrone, 601 F.2d at 622; United States v. Wilson, 732 F.2d at
409; United States v. Lame, 716 F.2d 515, 518 (8th Cir. 1983); United States v. Reed, 726 F.2d
570, 579 (9th Cir.), cert. denied, 469 U.S. 871 (1984).

71. 414 U.S. at 344-45; see also Costello v. United States, 350 U.S. 359, 362 (1956); United
States v. Friedland, 444 F.2d 710, 713 (1st Cir. 1971); United States v. Wilson, 732 F.2d at 409;
In re Grand Jury Investigation, 696 F.2d 449, 450 (6th Cir. 1982); United States v. Malsom, 779
F.2d 1228, 1241 (7th Cir. 1985); United States v. Levine, 700 F.2d 1176, 1179 (8th Cir. 1983);
United States v. Tham, 665 F.2d 855, 863 (9th Cir. 1981), cert. denied, 456 U.S. 944 (1982);
United States v. Beery, 678 F.2d 856, 859 (10th Cir. 1982), cert. denied, 471 U.S. 1066 (1985);
United States v. DiBernardo, 775 F.2d 1470, 1478 (11th Cir. 1985), cert. denied, 476 U.S. 1105
(1986).

72. See § D.2.

73. See § D.3.

74. See United States v. DiBernardo, 775 F.2d supra.

75. See United States v. Camporeale, 515 F.2d 184, 189 (2d Cir. 1975) (evidence of prior
convictions); United States v. Levine, 700 F.2d at 1179 (evidence of prior convictions and
targets refusal to talk to police officers).

76. See also United States v. Jett, 491 F.2d 1078, 1081 (1st Cir. 1974); United States v.
Ginsberg, 758 F.2d 823 (2d Cir. 1985); United States v. Steele, 685 F.2d 793 (3d Cir.), cert.
denied, 459 U.S. 908 (1982); United States v. Alexander, 789 F.2d 1046 (4th Cir. 1986), United
States v. Dunham Concrete Prods., Inc., 475 F.2d 1241, 1248 (5th Cir.), cert. denied, 414 U.S.
832 (1973); United States v. Markey, 693 F.2d 594 (6th Cir. 1982); United States v. Murphy,
768 F.2d 1518, 1533-34 (7th Cir. 1985), cert. denied, 475 U.S. 1012 (1986); United States v.
Boykin, 679 F.2d 1240 (8th Cir. 1982); United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th
Cir.), cert. denied, 461 U.S. 932 (1983); United States v. Rogers, 652 F.2d 972, 975 (10th Cir.
1981).

77. See United States v. Jett, 491 F.2d at 1081-82; United States v. Hogan, 712 F.2d 757 (2d Cir.
1983); United States v. Cruz, 478 F.2d 408 (5th Cir.), cert. denied, 414 U.S. 910 (1973); United
States v. Flomenhoft, 714 F.2d 708 (7th Cir. 1983), cert. denied, 465 U.S. 1068 (1984).
78. See United States v. Umans, 368 F.2d 725 (2d Cir. 1966), cert. dismissed, 389 U.S. 80
(1967).

79. 471 F.2d at 1136.

80. Id.

81. Id. at 1137.

82. United States v. Bari, 750 F.2d 1169 (2d Cir. 1984), cert. denied, 472 U.S. 1019 (1985).

83. See United States v. Rodriguez-Ramos, 704 F.2d 17 (1st Cir.), cert. denied, 463 U.S. 1209
(1983); United States v. Wander, 601 F.2d 1251 (3d Cir. 1979); United States v. Murphy, 768
F.2d at 1533-34; United States v. Rogers, 652 F.2d at 975.

84. See United States v. Smith, 552 F.2d 257, 261 (8th Cir. 1977).

85. See United States v. Cruz, 478 F.2d 408 (5th Cir.), cert. denied, 414 U.S. 910 (1973).

86. See United States v. Barone, 584 F.2d 118 (6th Cir. 1978), cert. denied, 439 U.S. 1115
(1979); United States v. Al Mudarris, 695 F.2d at 1185.

87. United States v. Markey, 693 F.2d at 596.

88. U.S.A.M. 9-11.232.

89. See Bank of Nova Scotia v. United States, 487 U.S. 250 (1988); United States v. Flaherty,
668 F.2d 566 (1st Cir. 1981); United States v. Myers, 635 F.2d 932 (2d Cir.), cert. denied, 449
U.S. 956 (1980); United States v. Johnson, 419 F.2d 56, 58 (4th Cir. 1969), cert. denied, 397
U.S. 1010 (1970); United States v. Johnson, 615 F.2d 1125 (5th Cir. 1980); United States v.
Adamo, 742 F.2d 927, 939 (6th Cir. 1984), cert. denied, 469 U.S. 1193 (1985); United States v.
Roth, 777 F.2d 1200 (7th Cir. 1985); United States v. Levine, 700 F.2d 1176 (8th Cir. 1983);
United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir.), cert. denied, 461 U.S. 932 (1983);
United States v. Gutierrez, 696 F.2d 753, 754-55 (10th Cir. 1982), cert. denied, 461 U.S. 909
(1983); United States v. DiBernardo, 775 F.2d 1470 (11th Cir. 1985), cert. denied, 476 U.S. 1105
(1986).

90. See Lawn v. United States, 355 U.S. 339 (1958); United States v. Ocanas, 628 F.2d 353, 357
(5th Cir. 1980), cert. denied, 451 U.S. 984 (1981); In re Grand Jury Investigation, 696 F.2d 449
(6th Cir. 1982); United States v. Roth, 777 F.2d at 1203; United States v. Fultz, 602 F.2d 830,
833 (8th Cir. 1979).

91. See also United States v. Blue, 384 U.S. 251 (1966); United States v. Busk, 730 F.2d 129 (3d
Cir. 1984); United States v. Ocanas, 628 F.2d at 357; United States v. Fultz, 602 F.2d at 833.

92. United States v. Calandra, 414 U.S. at 350.

93. See United States v. Blue, 384 U.S. 251 (1966).

94. See United States v. Myers, 635 F.2d 932 (2d Cir.), cert. denied, 449 U.S. 956 (1980); United
States v. Helstoski, 576 F.2d 511, 519-20 (3d Cir. 1978), aff'd sub nom. Helstoski v. Meanor,
442 U.S. 500 (1979); United States v. Johnson, 419 F.2d at 58.

95. See In re Grand Jury Investigation, 696 F.2d supra.

96. See United States v. Morano, 697 F.2d 923 (11th Cir. 1983).

97. See United States v. Levine, 700 F.2d supra.

98. See Coppedge v. United States, 311 F.2d 128 (D.C. Cir. 1962), cert. denied, 373 U.S. 946
(1963); United States v. Adamo, 742 F.2d at 939-42; United States v. Roth, 777 F.2d 1200,
1203-04 (7th Cir. 1985).

99. See United States v. Roth, 777 F.2d at 1203-04; United States v. Thompson, 576 F.2d 784,
786 (9th Cir. 1978).

100. See United States v. Flaherty, 668 F.2d 566 (1st Cir. 1981); In re Grand Jury Investigation,
696 F.2d 449 (6th Cir. 1982); United States v. Garrett, 797 F.2d 656 (8th Cir. 1986).

101. U.S.A.M. 9-11.231.

102. See U.S.A.M. 9-7.000, et seq.

103. See Gelbard v. United States, 408 U.S. 41, 54 (1972).

104. See United States v. Brodson, 528 F.2d 214 (7th Cir. 1975).

105. See also United States v. Yanagita, 552 F.2d 940 (2d Cir. 1977); In re Grand Jury Matter
(Doe), 798 F.2d 91 (3d Cir. 1986); In re Grand Jury Proceedings, 664 F.2d 423 (5th Cir. Unit B
Nov. 1981), cert. denied, 455 U.S. 1000 (1982); In re Grand Jury Proceedings, 773 F.2d 1071
(9th Cir. 1985).

106. See United States v. James, 609 F.2d 36, 51 (2d Cir. 1979), cert. denied, 445 U.S. 905
(1980); United States v. Rubin, 559 F.2d 975, 989 (5th Cir. 1977), cert. denied, 444 U.S. 864
(1979); United States v. Alter, 482 F.2d 1016 (9th Cir. 1973); In re Baker, 680 F.2d 721, 722
(11th Cir. 1982).

107. See United States v. Yanagita, 552 F.2d supra; In re Grand Jury Proceedings, 664 F.2d at
427; In re DeMonte, 667 F.2d 590, 599 (7th Cir. 1981); In re Grand Jury Proceedings, 773 F.2d
at 1072-73; United States v. Alvillar, 575 F.2d 1316 (10th Cir. 1978).

108. U.S.A.M. 9-7.410.

109. United States v. White, 401 U.S. 745 (1971); United States v. Haimowitz, 725 F.2d 1561,
1582 (11th Cir.), cert. denied, 725 U.S. 1561 (1984).

110. See Appendix IV-1 for an example of an application for an impounding order.

111. In re Bendix Aviation Corp., 58 F. Supp. 953, 954 (S.D.N.Y. 1945).

112. United States v. United States Dist. Court, 238 F.2d 713 (4th Cir.), cert. denied, 352 U.S.
981 (1957).

113. United States v. United States Dist. Court, 283 F.2d at 720.

114. See, e.g., In re Petroleum Indus. Investigation, 152 F. Supp. 646 (E.D. Va. 1957).

115. See In re Mesta Mach. Co., 184 F.2d 375 (3d Cir. 1950); In re Bendix Aviation Corp., 58 F.
Supp. 953, 954 (S.D.N.Y. 1945).

116. This would in effect remove the documents from the court's jurisdiction. An impounding
order should always be obtained in such cases at the initiation of the investigation.

117. See In re Grand Jury Proceedings, 1973 Trade Cas. (CCH) ¶ 74,389 (S.D. Cal.), where
Chief Judge Schwartz denied a motion of respondent to impound documents in the custody of
the Clerk of Court and granted the Government's motion permitting Government counsel to
remove the grand jury documents to their Los Angeles office. In response to respondent's
demand, Government counsel agreed to keep a record of every grand jury document sent outside
the Los Angeles Field Office.

118. See Ch. II § B.2. for a more detailed discussion of the application of Fed. R. Crim. P. 6(e) to
subpoenaed documents.

119. Obviously, all modifications or compromises must immediately be reduced to writing.

120. See Ch. III § E.1. for a discussion of the relative merits of production directly to the grand
jury or to the staff and the contents of the compliance affidavit.

121. This presupposes that the documents are not identified and numbered by the party
submitting them. That is frequently done at the request of the staff.

122. Staff members from the Division's Information Systems and Support Group (ISSG), with
the assistance of Division attorneys, have drafted a "Schedule of Documents" specifically for
machine readable data. ISSG should be contacted whenever it is anticipated that machine
readable data will be included within the scope of a subpoena.

123. See § E.1.e., supra.

124. In re Bendix Aviation Corp., 58 F. Supp. 953, 954 (S.D.N.Y. 1945); In re Petroleum Indus.
Investigation, 152 F. Supp. 646 (E.D. Va. 1957).

125. In re Petroleum Indus. Investigation, 152 F. Supp. supra; Maryland and Virginia Milk
Producers Ass'n v. United States, 250 F.2d 425 (D.C. Cir. 1957).

126. United States v. Wallace & Tiernan Co., 336 U.S. 793, 800 (1949).

127. Division Directive ATR 2710.1.

128. U.S.A.M. 9-11.150.

129. United States v. Mandujano, 425 U.S. 564, 581 (1976) (grand jury witness has absolute
duty to answer all questions, subject only to a valid 5th Amendment claim).

130. See § D.4., supra.

131. A grand jury witness who was not advised of his 5th Amendment right may, however, have
his grand jury testimony used against him in a subsequent perjury prosecution. United States v.
Wong, 431 U.S. 174 (1977).

132. 431 U.S. at 188.

133. United States v. Luxenberg, 374 F.2d 241 (6th Cir. 1967).

134. See United States v. DiMichele, 375 F.2d 959 (3d Cir.), cert. denied, 389 U.S. 838 (1967);
Robinson v. United States, 401 F.2d 248 (9th Cir. 1968).

135. See § G.3., infra.

136. United States v. Washington, 431 U.S. 181 (1977) (witness testified following a Miranda-
type warning at the grand jury and these statements were later used against him at trial; there was
no right to be told that he was a putative or potential defendant); see also United States v.
Swacker, 628 F.2d 1250, 1253 (9th Cir. 1980) (witness advised of 5th Amendment privilege but
not advised of target status).

137. See United States v. Del Toro, 513 F.2d 656, 664 (2d Cir.), cert. denied, 423 U.S. 826
(1975).

138. See United States v. Gill, 490 F.2d 233 (7th Cir. 1973), cert. denied, 417 U.S. 968 (1974).

139. Fed. R. Crim. P. 6(d).

140. See United States v. Mandujano, 425 U.S. 564, 606 (1976) (Brennan, J. concurring) (may
consult with attorney at will).
141. In re Tierney, 465 F.2d 806, 810 (5th Cir. 1972) (witness allowed to consult only after every
two or three questions; court has power to prevent disruption of proceedings by frivolous
departure from grand jury room), cert. denied, 410 U.S. 914 (1973); In re Lowry, 713 F.2d 616
(11th Cir. 1983) (no right to consult after each question); United States v. Soto, 574 F. Supp. 986
(D. Conn. 1983) (immunized witness may leave grand jury room every 20 minutes to consult
with counsel for ten minutes, although witness may write down neither questions nor his answers
to them).

142. Branzburg v. Hayes, 408 U.S. 665 (1972).

143. See Ch. III § A.2.l. and U.S.A.M. 9-2.161; see also ATD Manual III-82.

144. Division attorneys should also check the local rules in the district where the grand jury is
sitting and consult with the U.S. Attorney about any local policies.

145. See Appendix IV-2 for a sample advice of rights attachment.

146. See United States v. Washington, 431 U.S. 181 (1977).

147. U.S.A.M. 9-11.151.

148. See Ch. V § D.3.

149. See Appendix IV-3 for a sample target letter; see also ATD Manual III-0.

150. U.S.A.M. 9-11.163.

151. See United States v. Gardner, 516 F.2d 334 (7th Cir.), cert. denied, 423 U.S. 861 (1975);
United States v. Leverage Funding Sys., Inc., 637 F.2d 645 (9th Cir. 1980), cert. denied, 452
U.S. 961 (1981).

152. U.S.A.M. 9-11.152.

153. See 18 U.S.C. §§ 1621, 1623.

154. U.S.A.M. 9-11.152.

155. United States v. DiGilio, 538 F.2d 972, 985 (3d Cir. 1976), cert. denied, 429 U.S. 1038
(1977); see also Durbin v. United States, 221 F.2d 520 (D.C. Cir. 1954) (the statutes do not
recognize the United States Attorney's Office as a proper substitute for the grand jury room).

156. U.S.A.M. 1-14.111.

157. See Ch. V § H.

158. See, e.g., Durbin v. United States, 221 F.2d 520, 522 (D.C. Cir. 1954); United States v.
Johns-Manville Corp., 213 F. Supp. 65 (E.D. Pa. 1962).

159. At this stage, the examining attorney should be alert to any technical terminology or phrases
unique to a particular trade or profession that will be used during the questioning for such will
have to be clearly defined so that both the witness and the grand jury understand the
examination.

160. It is extremely helpful in fully developing grand jury testimony to interview cooperating
witnesses beforehand and to review with them not only their expected testimony, but also the
documents they will be asked to identify. In cases where a number of documents will be used,
they should be reviewed with the witness in the order in which the examining attorney intends to
use them during questioning. Such a procedure not only allows the witness to understand the
interrelationship of the documents and the full import of the attorney's questions concerning
them, but frequently reassures the witness concerning his appearance so that the testimony is
more coherent and complete.

161. For elements of these offenses, see Ch. VIII.

162. Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972).

163. United States v. Mandujano, 425 U.S. 564, 606 (1976); In re Tierney, 465 F.2d 806, 810
(5th Cir. 1972), cert. denied, 410 U.S. 914 (1973); see also In re Lowry, 713 F.2d 616 (11th Cir.
1983) (witness has no right to disrupt grand jury to consult with counsel after every question).

164. See United States v. Soto, 574 F. Supp. 986 (D. Conn. 1983) (the witness was allowed to
consult with counsel for ten minutes after a 20-minute question period before the grand jury).

165. Compare United States v. Mandujano, 425 U.S. at 606 (Brennan, J., concurring) (may
consult with attorney at will) with In re Tierney, 465 F.2d at 810 (witness allowed to consult
only after two or three questions).

166. United States v. E.H. Koester Bakery Co., 344 F. Supp. 377 (D. Md. 1971).

167. See Ch. II § E.1.

168. Questioning designed merely to ensure that a witness has been apprised of his rights and
responsibilities is permissible. United States v. E.H. Koester Bakery Co., 334 F. Supp. 377 (D.
Md. 1971).

169. Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972).

170. United States v. Serubo, 604 F.2d 807, 816-17 (3d Cir. 1979).

171. Id. See also United States v. DiGregorio, 605 F.2d 1184, 1189 (1st Cir.), cert. denied, 444
U.S. 937 (1979); United States v. Estepa, 471 F.2d 1132, 1136-37 (2d Cir. 1972).
172. 373 F.2d at 386; see also Beck v. Washington, 369 U.S. 541, 555 (1962); Beatrice Foods
Co. v. United States, 312 F.2d 29 (8th Cir.), cert. denied, 373 U.S. 904 (1963).

173. 604 F.2d at 817.

174. Id.

175. United States v. Gill, 490 F.2d 233 (7th Cir. 1973), cert. denied, 417 U.S. 968 (1974).

176. See United States v. Wilson, 798 F.2d 509 (1st Cir. 1986); United States v. Adamo, 742
F.2d 927, 936-38 (6th Cir. 1984), cert. denied, 469 U.S. 1193 (1985); United States v. Boykin,
679 F.2d 1240, 1246 (8th Cir. 1982); United States v. Al Mudarris, 695 F.2d 1182, 1185-86 (9th
Cir.), cert. denied, 461 U.S. 932 (1983); see also United States v. Hyder, 732 F.2d 841, 844-45
(11th Cir. 1984).

177. See also United States v. Flomenhoft, 714 F.2d 708, 712 (7th Cir. 1983), cert. denied, 465
U.S. 1068 (1984).

178. See also United States v. Raineri, 521 F. Supp. 16, 19 (W.D. Wis. 1980) (possible duty to
present evidence that clearly negates guilt); United States v. Boffa, 89 F.R.D. 523, 530 (D. Del.
1980) (citing Ciambrone, prosecutor may be obligated to make known substantial evidence
negating guilt).

179. See United States v. Flomenhoft, 714 F.2d at 712; see also United States v. Prevor, 583 F.
Supp. 259, 261 (D.P.R. 1984).

180. United States v. Leverage Funding Sys., Inc., 637 F.2d 645 (9th Cir. 1980), cert. denied,
452 U.S. 961 (1981); United States v. Gardner, 516 F.2d 334 (7th Cir.), cert. denied, 423 U.S.
861 (1975).

181. U.S.A.M. 9-11.152.

182. See § F.4. for a more detailed discussion of procedures to be followed when a target
testifies.

183. See U.S.A.M. 9-11.262

184. See, e.g., United States v. Calandra, 414 U.S. 338, 343 (1974).

185. United States v. Caceres, 440 U.S. 741 (1979).

186. See In re Inzirillo, 542 F.2d 90, 91 (1st Cir. 1976); In re Grand Jury Proceedings, Johanson,
632 F.2d 1033, 1041 (3d Cir. 1980); United States v. Ruppel, 666 F.2d 261, 268 (5th Cir.), cert.
denied, 458 U.S. 1107 (1982); United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert.
denied, 430 U.S. 969 (1977).
187. See United States v. Basurto, 497 F.2d 781 (9th Cir. 1974).

188. See United States v. Cruz, 478 F.2d 408 (5th Cir.), cert. denied, 414 U.S. 910 (1973).

189. In re Grand Jury Subpoena Duces Tecum (Model Magazine), 829 F.2d 1291 (4th Cir.
1987), cert. denied, U.S. (1990).

190. United States v. Jacobs, 531 F.2d 87 (2d Cir.), vacated, 429 U.S. 909 (1976).

191. United States v. Briggs, 514 F.2d 794 (5th Cir. 1975).

192. United States v. Serubo, 604 F.2d 807 (3d Cir. 1979).

193. See Bracy v. United States, 435 U.S. 1301, 1302 (1978) (Rehnquist, J., on application for
stay).

194. See United States v. Basurto, 497 F.2d 781 (9th Cir. 1974).

195. See United States v. Richman, 600 F.2d 286 (1st Cir. 1979) (prosecutorial negligence in not
knowing of false testimony is insufficient for dismissal); United States v. Cathey, 591 F.2d 268
(5th Cir. 1979) (use of perjured testimony does not automatically require dismissal); United
States v. Kennedy, 564 F.2d 1329 (9th Cir. 1977) (indictment should be dismissed only in
flagrant case of knowing use of perjury relating to a material matter), cert. denied, 435 U.S. 944
(1978); Coppedge v. United States, 311 F.2d 128 (D.C. Cir. 1962) (Burger, J.) (perjury does not
require dismissal if sufficient competent evidence is presented), cert. denied, 373 U.S. 946
(1963).

196. 487 U.S. at 256.

197. United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir.), cert. denied, 434 U.S. 825 (1977).

198. See United States v. Samango, 607 F.2d 877, 884 (9th Cir. 1979).

199. See United States v. Hogan, 712 F.2d 757 (2d Cir. 1983); United States v. Serubo, 604 F.2d
807 (3d Cir. 1979); Brown v. United States, 245 F.2d 549 (8th Cir. 1957); United States v.
Samango, 607 F.2d supra.

200. See United States v. Broward, 594 F.2d 345, 351 (2d Cir.), cert. denied, 442 U.S. 941
(1979); United States v. Birdman, 602 F.2d 547, 559 (3d Cir. 1979), cert. denied, 444 U.S. 1032
(1980).

201. See United States v. Jacobs, 531 F.2d 87 (2d Cir.), vacated, 429 U.S. 909 (1976).

202. See United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972); In re Grand Jury Proceedings
(Schofield I), 486 F.2d 85 (3d Cir. 1973).
203. See generally Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional
and Statutory Limits on the Authority of the Federal Courts, Colum. L. Rev. 1433 (1984); cf.
United States v. Payner, 447 U.S. 727, 735 (1980) ("Supervisory powers does not authorize a
federal court to suppress otherwise admissible evidence on the ground that it was seized
unlawfully from a third party not before the court").

204. 350 U.S. at 363.

205. 414 U.S. at 350.

206. United States v. Serubo, 604 F.2d 807, 818-19 (3d Cir. 1979).
 TABLE OF CONTENTS

V. Immunity

A. 5th Amendment Privilege

1. Who Can Assert?
2. The Witness' Assertion of the Privilege
3. What Questions are Incriminating?
4. Waiver of the 5th Amendment Privilege
5. Advising the Grand Jury About Immunity
B. Statutory Basis for Immunity
C. Scope of Protection
D. Criteria for Granting Immunity
1. Public Interest Standards for Granting Immunity
2. Exercise of the Privilege
3. Prospective Immunity
E. Internal Procedures for Obtaining Immunity
1. Approval Authority
2. Procedures for Obtaining Division Approval
3. Procedures for Obtaining Criminal Division Clearance
4. Circumstances where Criminal Division Clearance is Not Required
5. Obtaining U.S. Attorney's Approval
F. Obtaining and Using a Court Order
1. Written Application and Proposed Order
2. What Division Attorney Does
G. What to Ask the Immunized Witness in the Grand Jury Room
1. Record that Witness is Testifying Pursuant to Immunity Order
2. Order Becomes a Grand Jury Exhibit
H. Proffers and Interviews
I. Informal Immunity
1. Situations in Which Informal Immunity May Be Appropriate
2. Procedures for Obtaining Clearance to Grant Informal Immunity
3. Informal Immunity Letters -- Form and Scope
4. Advising United States Attorneys of Informal Immunity Grants
5. Reporting of Informal Immunity Grants
J. Corporate "Amnesty"
K. Immunity Under Plea Agreements
L. Immunizing Close Family Relative of Defendant or Target
1. The Criteria
2. The Relative May Not Claim a Privilege to Quash a Subpoena to Testify
M. Refusal to Comply with Compulsion Order
1. Contempt
2. Mechanics
N. Defense Witness Immunity
O. When the Immunized Witness is Prosecuted
1. Introduction
2. Constitutionality and Limitations of Protection Granted Under 18 U.S.C. § 6002
3. Department of Justice Procedures
 4. Scope of Protection
5. Taint Hearing
6. Use of the Grand Jury Which Heard Immunized Testimony to Indict

V. IMMUNITY

A. 5th Amendment Privilege

1. Who can assert?

The 5th Amendment privilege against self-incrimination is personal, applying only to natural
individuals. For documents, it protects only the compelled production of self-incriminating
documents which are the personal property of the person claiming the privilege or papers in the
person's possession in a purely personal capacity.(1) For testimony, it applies only to a compelled
testimonial communication by the person claiming the privilege that incriminates that person. It
does not prescribe the compulsion of all incriminating evidence.(2)

Corporations have no 5th Amendment privilege.(3) The number of owners or operators and the
structural organization of a corporation do not alter its rights under the 5th Amendment. Courts
have denied the availability of the 5th Amendment privilege to corporations with a sole
stockholder(4) subchapter S corporations(5), professional corporations(6), and dissolved
corporations.(7) The custodian of corporate records may be required to testify as to the
authenticity of documents produced in response to a subpoena duces tecum and that the
documents produced are those called for by the subpoena.(8) A custodian of corporate records
may not assert the 5th Amendment privilege on the ground that the act of production of the
documents is itself incriminatory.(9) However, he cannot be compelled to testify as to the current
location of documents not produced and not in his possession if such testimony would be
incriminating.(10)

In general, partnerships and other collective entities have been denied the use of the privilege
against self-incrimination.(11) The ultimate determination is whether, based on all the
circumstances, the particular organization "has a character so impersonal in the scope of its
membership and activities that it cannot be said to embody or represent the purely private or
personal interests of its constituents, but rather to embody their common or group interest
only."(12)

Non-personal business records of a sole proprietorship are treated differently because of the lack
of a collective entity apart from the owner. In United States v. Doe, 465 U.S. 605 (1984), the
Supreme Court differentiated between the contents of the documents and the act of producing
them. There is no 5th Amendment privilege as to the contents of voluntarily-prepared business
documents as there is no compelled self-incrimination. However, the act of producing these
documents could, in some circumstances, be privileged.(13) When a sole practitioner submits
documents in response to a subpoena, he is asserting that the documents exist and that he has
possession and control. It also reveals the sole proprietor's belief that the documents are those
called for by the subpoena.(14) The majority opinion in Doe suggests that even in cases where the
production of business records by a sole proprietor is privileged, the Government could obtain
the documents by granting immunity limited to the act of production, or by introducing evidence
to establish that the documents called for by the subpoena exist and are in the possession of the
person who received the subpoena.(15) In cases where immunity has been granted, attorneys
would need an outside source to authenticate the documents if they intend to introduce them at
trial.(16)

2. The witness' assertion of the privilege

The privilege against self-incrimination can be claimed in any proceeding whether it is civil or
criminal, administrative or judicial. The privilege may also be asserted at a deposition taken in a
civil case.(17) However, the compelled testimony must expose the claimant to possible criminal
prosecution.(18) A witness may not refuse to answer a question because it would place him in
danger of physical harm(19), degrade him(20), or incriminate a third party.(21)

A person may invoke his 5th Amendment privilege when he has a good faith belief that a direct,
truthful answer would either furnish evidence of a crime or lead to the discovery of evidence
needed to prosecute him.(22) The witness need not demonstrate that a prosecution based on the
incriminating answer would be successful. It is enough if it would "furnish a link in the chain of
evidence needed to prosecute the claimant for a federal crime"(23) or a state crime.(24) The
claimant must face a real and substantial hazard of self-incrimination, not an imaginary or
insubstantial one.(25) This is an easy standard to satisfy in the context of most antitrust grand jury
investigations involving conspiracies to restrain trade since conspiracies can be proved by a
"course of conduct,"(26) and only a single act is needed to connect an individual to a conspiracy
once its existence is shown.(27)

No appellate court has explicitly decided the constitutional question of whether a witness granted
immunity may refuse to testify based on a real and substantial fear of foreign prosecution. In the
cases litigated to date, the lower courts have held that the fear of foreign prosecution was
"remote and speculative," i.e., the witness claiming the privilege had failed to show any real or
substantial risk of foreign prosecution.(28)

A judge, not the witness, makes the final determination of the availability of the 5th Amendment
based upon the facts of the case and the "implications of the questions in the setting" in which
asked.(29) If the witness' basis for asserting the 5th Amendment is not clear from the questions
posed or types of documents demanded, the claimant may be required to establish in camera the
basis for the assertion by describing the nature of the criminal charge for which he would be
providing evidence or by allowing a judge to examine the documents to determine whether they
are of the type protected by the privilege.(30)

If an attorney believes that, based upon the questions posed or documents demanded, a claimant
is not entitled to assert the 5th Amendment or has asserted a claim that is broader than necessary
to protect his rights, the attorney may challenge the assertion by a motion to compel. A
Government attorney should not accept the word of the claimant but should make an independent
evaluation based upon the facts of the particular case.(31)
 3. What questions are incriminating?

In general, the assertion of the privilege against self-incrimination must be made as to specific
questions or document requests.(32) Blanket refusals are usually not acceptable and a witness
subpoenaed to testify before a grand jury cannot refuse to appear because he intends to assert the
5th Amendment.(33) In some cases where the witness was a potential target, courts have allowed a
blanket refusal to testify or produce documents because the claimant appeared to have a valid 5th
Amendment claim as to virtually all questions or documents.(34)

As a rule, a witness appearing before a grand jury should supply his name, home address, and
place of business. In some cases, supplying a business address may provide a link connecting the
person with the criminal activity under investigation and would, therefore, properly be protected
by the 5th Amendment.(35)

In many cases, a witness or his attorney will inform the Government attorney that the witness
intends to assert his 5th Amendment privilege. After the nature and extent of the claim is
discussed, the Government attorney can decide whether to call the witness, waive his appearance
or consider a grant of immunity. If the Government intends to challenge the assertion of the
privilege,(36) the witness must be called. The witness need not be asked all questions, but once he
asserts the privilege, the Government attorney should ask if the witness intends to assert the
privilege as to all questions on the same topic or about the same transaction. Once it is clear the
witness does not intend to answer any other questions, he may be excused.

4. Waiver of the 5th Amendment privilege

A witness who fails to invoke the 5th Amendment as to questions to which the privilege would
have applied has waived the privilege as to all questions on the same subject.(37) Once a witness
voluntarily reveals incriminating facts, he may not refuse to disclose the details related to those
facts.(38) Once the waiver has occurred, for each question asked, the appropriate determination for
a court is whether the answer demanded would subject the witness to a "real danger of further
incrimination".(39)

A witness who has previously discussed facts relevant to a grand jury investigation with an FBI
agent, investigator or Government attorney may still assert the 5th Amendment privilege before
the grand jury as to testimony concerning those same facts.(40) Such statements do not constitute a
waiver of the privilege since intervening events may have created apprehension of potential
criminal prosecution or the statements before the grand jury may be an independent source of
evidence against the witness.(41)

5. Advising the grand jury about immunity

In a criminal trial, a defendant's failure to testify based on the 5th Amendment cannot be used as
evidence against him.(42) Likewise, Government attorneys should advise grand jurors that they
are not to infer anything from the fact that a witness has refused to answer questions based upon
his privilege against self-incrimination. Once a subpoenaed witness asserts an intent to refuse to
testify based on the 5th Amendment and is, therefore, excused from testifying, the grand jurors
should be informed not to infer any guilt based upon the witness' excusal.

B. Statutory Basis For Immunity

An immunized witness cannot refuse to testify on the ground that his testimony will incriminate
him. Immunity is a useful investigative tool, particularly in antitrust conspiracy cases where
there is usually little probative physical evidence and few, if any, uninvolved witnesses. All
Division attorneys should have a working knowledge of the relevant law and internal
Department and Division policies and procedures before seeking immunity for any witness.

Two broad categories of immunity have been used in the federal system: "transactional"
immunity and "use" immunity. Transactional immunity precludes the Government from
prosecuting a witness for any offense (or "transaction") related to the witness' compelled
testimony. Use immunity precludes the Government from using, directly or indirectly, a witness'
compelled testimony in a prosecution of that witness.

Before 1970, prosecutors of antitrust offenses (as well as most other federal crimes) relied on
transactional immunity to compel self-incriminating testimony.(43) Transactional immunity was
of only limited usefulness to prosecutors because it provided no incentive for witnesses to be
fully cooperative. Once a witness testified about any matter relating to an offense, he achieved
full protection from prosecution for that offense, and had little to gain from providing additional
details about it. Recognizing that problem, in 1970, Congress repealed the pre-existing federal
antitrust immunity statute and other transactional immunity statutes, and adopted a general use
immunity statute for all federal crimes. The new statute, commonly called the Witness Immunity
Act of 1970, was part of the Organized Crime Control Act of 1970. It is codified at
18 U.S.C. §§ 6001-05(44) and should be read by all Division attorneys staffing grand jury
investigations.

The constitutionality of the new immunity statute was upheld in Kastigar v. United States, 406
U.S. 441 (1972). The Supreme Court held that the statute was compatible and coextensive with
the 5th Amendment because it provided immunized witnesses with substantially all the
protection accorded by the 5th Amendment privilege. A witness testifying under the statute
cannot incriminate himself by his testimony because the statute absolutely proscribes any direct
or indirect use of the witness' testimony against the witness. Hence, the prosecutor is left in
precisely the same position vis-a-vis the witness as if the witness had not testified. The Court
observed that transactional immunity provides considerably broader protection than the 5th
Amendment, and thus was not constitutionally required. The Court emphasized, however, that if
an immunized witness is later prosecuted, the Government has the affirmative duty of proving
that the incriminating evidence it proposes to use is "derived from a legitimate source wholly
independent of the compelled testimony."(45)

The federal immunity statute is an attempt by Congress to accommodate two crucial yet
competing interests: the Government's need to obtain testimony from culpable individuals to
prosecute more culpable individuals, and the witness' right to refrain from incriminating himself.
It grants the prosecutor a powerful tool for obtaining testimony, and imposes stringent limits on
the use of such testimony.

C. Scope of Protection

18 U.S.C. §§ 6001-6005 is the only immunity statute used by the Division. Its constitutionality is
settled beyond any doubt. Requests for transactional immunity should be opposed automatically.

Use immunity is much more useful to prosecutors than transactional immunity. As noted above,
witnesses testifying with transactional immunity have little incentive to provide detailed
incriminating testimony concerning offenses for which they have exposure.(46) Use immunity,
however, gives the witness an incentive to be as forthcoming as possible because the witness is
guaranteed only that the information he supplies cannot be used against him. For every new
piece of information he supplies, it may become more difficult for a prosecutor to demonstrate
that a future prosecution of the witness is based entirely on independent evidence. If this is
properly explained to immunized witnesses, considerable detailed inculpatory testimony can
often be elicited.(47)

Use immunity is also useful to prosecutors because, unlike transactional immunity, it permits
prosecution of immunized witnesses based on independent evidence. The Division is undertaking
such prosecutions with increasing frequency. For example, where an immunized witness denies
involvement in a conspiracy but is subsequently linked to the conspiracy by other evidence, the
Division has prosecuted the witness both for the substantive offense and perjury.(48)

The immunity statute specifically states that immunized testimony cannot be used against the
witness in any criminal case, "except a prosecution for perjury, giving a false statement, or
otherwise failing to comply with the order." Clearly, a witness who testifies falsely under an
immunity order can be prosecuted for perjury or other false statement offenses. The perjury is
not compelled testimony about a past crime that is subject to 5th Amendment protection. Rather,
the false testimony is itself the crime, and is not subject to any conceivable constitutional
protection. However, if a witness testifies with immunity and confesses that he committed
perjury on a previous occasion, his confession cannot be used to prosecute him for the previous
testimony.

It should be noted that the immunity statute not only bars use of a witness' testimony as
substantive evidence against that witness but also bars use of the immunized testimony to
impeach the witness at trial.(49)

The immunity statute only protects a witness from prosecution for offenses committed before the
date of the witness' immunized testimony.(50) The witness' immunized testimony can always be
used to prosecute him for crimes committed after the date of his testimony.

A grant of immunity before a federal grand jury will preclude use of that testimony in a state
criminal prosecution just as a grant of state immunity will foreclose use by federal criminal
prosecutors.(51) The second prosecution may, however, go forward, provided the second
prosecutor is able to establish that all of the evidence he had against the defendant was derived
from sources independent of the earlier immunized testimony.(52) The best practice to follow
when there is a state criminal grand jury investigation running simultaneously with the federal
antitrust grand jury investigation is to erect a "Chinese wall" to ensure that Division attorneys are
not foreclosed from prosecuting an individual immunized by the state by having access to any of
the state's evidence.

D. Criteria for Granting Immunity

Division attorneys are bound by the Attorney General's Guidelines, dated January 14, 1977,
concerning use of federal immunity statutes. The guidelines are reprinted in the United States
Attorneys' Manual, 9-23.000, et seq., and should be consulted by every Division attorney seeking
an immunity order.

A request for an immunity order must be authorized by the Assistant Attorney General or any
Deputy Assistant Attorney General.(53) An order may not be sought unless two preconditions are
satisfied: First, that the testimony or information sought may be in the public interest; and,
second, that the potential witness has refused or is likely to refuse to testify or provide
information based on the privilege against self-incrimination.

1. Public interest standards for granting immunity

The Attorney General's immunity guidelines set out six standards to be used in evaluating
whether an immunity order would be in the public interest. Those standards are not considered to
be all-inclusive and should not be applied slavishly, but they are a concise statement of the
factors the Assistant Attorney General or Deputy Assistant Attorney General will apply in
weighing an immunity request.(54) A brief discussion of the six standards follows.

a. The seriousness of the offense, and the importance of the case in achieving
effective enforcement of the criminal laws

Violation of the Sherman Act is a felony and obviously is considered a serious crime. However,
care should be taken not to seek immunity orders to pursue de minimus secondary violations.

b. The value of the potential witness' testimony or information to the investigation

or prosecution

This is one of the most crucial factors, because an immunity order will foreclose prosecution of
the witness in the majority of cases. Thus, for the immunity order to be in the public interest, the
expected value of the testimony must outweigh the likely damage of allowing a culpable
individual to escape prosecution. This requires delicate balancing, and the decision often must be
made based on incomplete information. It is usually helpful to obtain a "proffer" of the witness'
expected testimony from the witness' counsel, or, if counsel will permit, from the witness
himself.(55) If a proffer is unavailable, the Division attorney must scrutinize the witness' position,
job responsibilities, known involvement in the conspiracy, and all other available information to
gauge the witness' knowledge and likely degree of cooperation with the investigation. Prior to
calling a to-be-immunized witness, it is advisable to gather as much information about the
witness as possible through voluntary interviews with others, public sources, subpoenaed
documents, and the prior testimony of less culpable individuals. Such information greatly
facilitates substantive questioning, and frequently enables the questioner to know at an early
stage if the witness is lying or holding information back.

c. The likelihood of the witness promptly complying with the immunity order and
providing useful testimony

If the witness has a history of lack of cooperation, seeking a compulsion order against him could
greatly delay the investigation and provide little useful information.

d. The person's culpability relative to other possible defendants

This is essentially the "flip side" of the second factor, in the sense that the witness' relative
culpability must be weighed against the likely value of his testimony in deciding whether
immunity would be in the public interest. The Attorney General's Guidelines state that, in the
absence of "unusual circumstances," it would not be in the public interest to compel the
testimony of a high-level or extremely culpable witness to convict a lower-level or less culpable
individual. However, in appropriate investigations, immunizing such a witness can be justified if
the witness offers his cooperation at an early stage of the investigation, or is an unattractive
potential defendant because of factors such as advanced age or demonstrably poor health.

The staff should be aware of the pitfalls of immunizing a highly culpable individual. If the
investigation culminates in an indictment and the case goes to trial, an extremely culpable
immunized witness is not likely to incur the jury's sympathy, and may severely damage the
Division's case. The jury may, with defense counsel's help, focus on the inequity of giving the
witness a pass while less involved individuals stand trial. A perceived inequity of that sort can
often facilitate a jury's search for a reasonable doubt. As the Guidelines emphasize, it is far
preferable that guilty individuals plead guilty to their crimes. If a factual basis for a guilty plea
exists and if the individual may be involved in other violations, the possibility of a plea
agreement that contains appropriate cooperation and non-prosecution provisions should be
considered.(56)

e. The possibility of successfully prosecuting the witness without immunizing him

This is closely related to the fourth factor. For example, a witness may be highly culpable, even a
ringleader, but if his involvement is entirely outside the statute of limitations period, an
immunity order may be warranted.

f. The possibility of adverse harm to the witness if he testifies pursuant to a

compulsion order

Retaliation against a witness can be both economic and physical, and can occur even when
investigating antitrust or other white-collar crimes. Where serious potential harms exist, Division
attorneys should seriously consider taking advantage of the Department's Witness Security
Program. Clearly, it is preferable to err on the side of excess caution.(57) In addition, the
obstruction of justice statutes, which prohibit attempts to influence or intimidate witnesses and
retaliation against witnesses, are available to deter abuse of witnesses.(58)

2. Exercise of the privilege

The second criteria for the grant of immunity is that the witness has refused or is likely to refuse
to testify on the basis of his privilege against self-incrimination. Accordingly, requests for
authorization should only be made when there is a reasonable expectation that the witness will
assert the privilege (or has already done so) and when there is a reasonable expectation that the
court would recognize assertion of the privilege. Thus, attorneys should not merely accept at face
value an assertion of privilege. Rather, an independent assessment should be made, based on the
law and the known facts, as to whether the privilege is available. If the attorney believes there is
no sound basis for invocation of the privilege, consideration should be given to have the validity
of the assertion determined by the court. In short, requests for authorization to immunize a
witness should not be made solely as a matter of "insurance" to cover a remote contingency.

3. Prospective immunity

As previously indicated, the statutory framework authorizes the grant of immunity for witnesses
who indicate that they will invoke their 5th Amendment privilege if called to testify. These
"likely to refuse", or prospective immunities are subject to the same standards and procedures as
immunities for witnesses who have already invoked their privileges before the grand jury.(59)

There is one situation in which attorneys should be cautious in using prospective immunity.
When two witnesses from the same company have been subpoenaed and each is in a position to
implicate the other in criminal activity, the first witness to appear should assert his privilege
before the grand jury, and be immunized by the court, before any action is taken with respect to
immunity for the second witness. If the attorney decides that the first witness' testimony was
strong enough to justify cancelling the appearance of the second witness and, instead, seeking his
indictment, the second witness will have no grounds on a motion to dismiss to claim that he
believed that he had already been granted immunity.(60)

Another question that may arise in connection with a witness who has indicated that he will
invoke the privilege if called before the grand jury is whether the prosecutor may call that
individual before the grand jury without granting that witness immunity. The ABA Standards on
Criminal Justice, Standard 3-3.6(e), provides as follows:

(e) The prosecutor should not compel the appearance of a witness before the grand jury whose activities
are the subject of the inquiry if the witness states in advance that if called he or she will exercise the
constitutional privilege not to testify, unless the prosecutor intends to seek a grant of immunity
according to law.

The Department's position is that this standard is overbroad, making it too convenient for
witnesses to avoid testifying truthfully to their knowledge of relevant facts. Moreover, once
compelled to appear, the witness may be willing and able to answer some or all of the grand
jury's questions without incriminating himself. Accordingly, the Department's policy is that a
non-target witness may be called before the grand jury even if the prosecutor is unwilling to
grant that witness immunity. The Department's policy with respect to "targets", as defined in
U.S.A.M 9-11.150, is that if both the target and his attorney signify in writing that the target will
assert the privilege if called, then ordinarily, the target should be excused from testifying.(61)
However, the attorney may insist on an appearance by the target if the information sought from
the target is not subject to the 5th Amendment. In determining the desirability of insisting on
such an appearance, the attorney should consider the factors which justified issuing a subpoena
to the target in the first place, i.e., the importance of the expected testimony, its unavailability
from other sources and the possible applicability of the 5th Amendment.(62)

E. Internal Procedures for Obtaining Immunity

1. Approval authority

Under the statutory framework for formal immunity, the Attorney General is given authority to
approve all requests for authority to immunize witnesses. In 28 C.F.R. § 0.175(b), the Attorney
General's authority has been specifically delegated to the Assistant Attorney General or any
Deputy Assistant Attorney General of the Antitrust Division. This regulation imposes a
requirement that the Assistant Attorney General or Deputy Assistant Attorney General may not
approve an immunity request without obtaining the approval of the Criminal Division
(commonly referred to as "Criminal clearance"). Finally, the U.S. Attorney for the district in
which the grand jury is sitting must sign the application for the necessary court order.

2. Procedures for obtaining Division approval

All requests for statutory immunity must be reviewed by the Director of Operations and the
appropriate Deputy Assistant Attorney General. Requests for immunity must be forwarded to the
Office of Operations more than two weeks before the date that the staff wants to have the
authorization letter available for use, i.e., physically in the staff's possession.(63)

The staff should prepare an original and one copy of Form OBD-111 for each witness and submit
them to the Office of Operations, together with a memorandum (and one copy) stating the status
of the investigation and a detailed statement of the reasons why immunity is being requested for
the witness. The memorandum should include: (a) a statement of the witness' present position
and position(s) held during the period under investigation; (b) identification of the witness'
superiors and subordinates and a summary of the testimony they gave, if any; (c) a statement
describing any proffer the witness or counsel has given, or if none has been obtained, a statement
of whether arrangements have been made to obtain a proffer; (d) a description of any particular
circumstances justifying immunity, such as age, health and personal problems, and any equity
considerations; and (e) additional information as to how the witness can further the investigation.

In cases where the individual may have engaged directly in the conduct under investigation,
Operations usually will require that the witness or counsel give a proffer and that the substance
of the proffer be communicated to Operations before the witness' testimony is compelled.
Finally, the staff should include with its package a letter from the appropriate Deputy Assistant
Attorney General to the U.S. Attorney in the appropriate district, requesting that the U.S.
Attorney apply to the court for an immunity order. The text of the letter is as follows:

Dear ______________:

Pursuant to the authority vested in me by 18 U.S.C. § 6003(b) and 28 C.F.R. 0.175(b), you are
authorized to apply to the United States District Court for the District of ______________ for
[an order] [orders] pursuant to 18 U.S.C. §§ 6002-6003 requiring [name of witness or witnesses]
to give testimony or provide other information in the above matter and in any further
proceedings resulting therefrom or ancillary thereto.

              Sincerely,

    Deputy Assistant Attorney General

There should be a separate authorization letter for each witness, unless the practice of the local
U.S. Attorney's office is to include all witnesses for whom immunity will be requested at a
particular session in one letter.(64)

3. Procedures for obtaining Criminal Division clearance

The Office of Operations will handle obtaining Criminal Division clearance for the staff.
Clearance is based on the information contained in the OBD-111s which are sent from
Operations to the Witness Records Unit of the Criminal Division. Witness Records transmits the
relevant information to approximately ten other law enforcement organizations, including the
FBI and the Tax and Criminal Divisions for their approval. Only after all of those other
organizations have searched their investigative files and have signified their approval will
Witness Records prepare a memorandum to the Assistant Attorney General in charge of the
Antitrust Division, clearing the witnesses for immunity.(65)

The rationale for this process is to ensure that the Antitrust Division does not immunize someone
who is a target or subject of another group's criminal investigation. The difficulty in the system is
that it is time-consuming. The Witness Records Unit requires a full ten working days (exclusive
of holidays) to process the OBD-111s. Attorneys in the field offices must allow a few extra days
for mailing. In extraordinary circumstances, a request may be processed through Witness
Records on an emergency basis. The procedures for handling emergencies are detailed in
U.S.A.M. 1-11.101. However, if immunity is being sought for a low level employee, it is the
Division's practice to use informal immunity in those situations where shortness of time does not
permit regular Criminal Division clearance.(66)

All Division attorneys should be aware that OBD-111s cannot be processed without, at a
minimum, the witness' full name (nicknames and initials are not adequate), an address that
includes at least the city and state in which the witness works or resides, and a date of birth. A
Social Security number is helpful, but it is not an adequate substitute for the date of birth.

4. Circumstances where Criminal Division clearance is not required

In a few circumstances, clearance from the Witness Records Unit is not required. Any attorneys
who are unsure whether clearance is required should consult with the Office of Operations.

a. Recalled witness

If a witness has been cleared and immunized in an investigation, new clearance is not required if
the witness is being recalled. The attorney should simply read the old immunity order into the
record, or, if the old order is not available, state clearly on the record that the witness is
appearing under his original compulsion order. This rule applies whether it is the original grand
jury hearing the testimony or a successor grand jury.

b. Immunized witness testifying at trial

If a witness was cleared and immunized for the grand jury phase of a matter, new clearance is
not required for the witness' appearance as a trial witness in a case that stems from that grand
jury investigation. However, the attorney must obtain a new DAAG letter, application and order
for use at trial. The witness' name should be included in the immunity request memorandum sent
to Operations with a notation that Criminal Division clearance is not required. A copy of the
Criminal Division clearance memorandum should be attached to the immunity request
memorandum.

c. Cleared witness who was not immunized

If a witness was cleared for immunity but not in fact immunized, e.g., staff decided not to call the
witness at that time or the witness appeared but did not assert the 5th Amendment privilege, new
clearance will be required if the witness is being called more than six months after the original
clearance was granted. In other words, a clearance lapses after six months if it is not "perfected"
by the grant of immunity.

d. No need for district-by-district clearances

Under prior practice, clearances were obtained on a district-by-district basis. For example, an
attorney conducting an investigation in two judicial districts that involved significant overlap,
had to clear witnesses twice, once for each district. Similarly, if the investigation was moved to a
different district, all the witnesses had to be re-cleared. Those procedures were recently revised.
Clearance is now granted for the investigation as a whole, regardless of where the grand jury is
sitting. Accordingly, if a witness has been cleared and immunized, the witness does not have to
be re-cleared if, for example, the investigation moves from one district to another.(67) However,
the staff will need to submit to the Office of Operations all of the other necessary paperwork for
obtaining immunity for that witness (excluding the OBD-111), including a copy of the Criminal
Division clearance memorandum.

5. Obtaining U.S. Attorney's approval

Division attorneys are responsible for notifying the U.S. Attorney in the district in which the
grand jury sits of their intention to seek immunity authorization. Attorneys should send a copy of
each OBD-111 to the U.S. Attorney at the same time as the immunity package is sent to the
Office of Operations. This will afford the U.S. Attorney an adequate opportunity to make his
own independent assessment, as is required by the statute, that it is necessary and desirable for
him to seek a compulsion order.(68) It is also convenient, though not necessary, to send the U.S.
Attorney all the applications and orders at the same time as the OBD-111s.

F. Obtaining and Using a Court Order

1. Written application and proposed order

After obtaining clearance from the Criminal Division and authorization from the appropriate
Deputy Assistant Attorney General, the staff attorney must prepare a written application under
18 U.S.C. § 6003, to obtain a compulsion order and a form of proposed order to be signed by the
judge assigned to the grand jury matter.

18 U.S.C. § 6003(b) authorizes only the United States Attorney for the district in which the order
is to be issued to file the application. Thus, the application should be prepared for the U.S.
Attorney's signature. It is wise to include the staff attorney's signature under the U.S. Attorney's
signature block. The application is sent to the U.S. Attorney along with the letter of authorization
from the Deputy Assistant Attorney General to that U.S. Attorney to apply for the order. It is also
suggested that you provide the U.S. Attorney with the proposed order and a copy of the Criminal
Division clearance memo. Moreover, certain judges may want to review all the above papers
before signing the immunity order.

Note also that the judge who is assigned to a particular grand jury is not necessarily the same
judge who empanelled the grand jury. For example, in the Eastern District of Pennsylvania, they
are routinely different. Consequently, upon receiving a grand jury number, check with the clerk's
office to see what judge has been assigned to your matter. It is that judge to whom you will
submit your application and proposed order after the U.S. Attorney has signed and returned them
to you. If that judge is unavailable at the time you need your order signed, then the papers should
be presented to the designated emergency judge for that day.

After first checking with the local U.S. Attorney to find out what practice he wishes you to
follow, you should find out what particular practices and procedures the judge follows in issuing
compulsion orders.
 a. 18 U.S.C. § 6003

18 U.S.C. § 6003 describes generally the content of the application and form of proposed order
you should submit to the court.(69) 18 U.S.C. § 6003(b)(2) authorizes the U.S. Attorney to seek a
compulsion order when the witness (1) "has refused" or (2) "is likely to refuse" to testify on the
basis of his privilege against self-incrimination. Thus, the statute authorizes seeking and
obtaining a compulsion order prospectively, as well as after the witness has already refused to
testify. The language of your application and proposed compulsion order should reflect whether
the witness "has refused" or "is likely to refuse" to testify.

b. The compulsion order should usually be sought prospectively to avoid

disruption, but consult with U.S. Attorney regarding local practice

If you are satisfied in advance that the witness will not testify voluntarily (such as when you
have been advised by the witness or his counsel that he will invoke his 5th Amendment privilege
before the grand jury), you usually should seek the compulsion order in advance to avoid
disruption of the grand jury proceedings. If you wait until the witness appears before seeking the
compulsion order, you must then postpone that witness' appearance to a later date or suspend the
proceedings to try to get the order signed (assuming one is prepared). In either case, the grand
jury proceeding will be disrupted. Sometimes this is unavoidable, such as when you have been
advised that the witness will not assert his 5th Amendment privilege and you have no reason to
believe otherwise or because of some local practice against seeking immunity orders
prospectively. If you have other witnesses scheduled, you may still be able to proceed with a
minimum of disruption.(70)

2. What Division attorney does

a. Limited scope of court's role

18 U.S.C. § 6003 requires a court to issue a compulsion order upon proper application of the
U.S. Attorney. The sole function of the court is to ascertain that there has been compliance with
the statute; the court is not empowered to inquire into the merits of the application.(71)
Accordingly, once Departmental authorization has been obtained, the matter of actually seeking
a compulsion order lies in the discretion of the Division attorney and the U.S. Attorney.

b. Who presents application, order, authorization; when to give to court

The staff attorney presents the application (signed by the U.S. Attorney for that district), the
proposed order, and the authorization (from the DAAG of the Antitrust Division to that U.S.
Attorney) to the judge assigned to that grand jury matter.(72) This is normally done ex parte, as
contemplated by the statute. In situations where you are satisfied in advance that the witness "is
likely to refuse" to testify, these papers should be presented sufficiently in advance of the
witness' grand jury appearance to allow the judge to review the papers and sign the order. In
situations where the witness already "has refused" to testify, the papers should be presented as
soon as practicable. In both situations, the aim is to avoid disruption of the grand jury
proceedings.
How quickly you can get an order signed once the papers have been presented to the judge
depends in part on the personality of the judge and what other matters he has before him. A good
rapport with the judge's law clerks can prove invaluable.(73) Moreover, although the orders
contemplated by 18 U.S.C. § 6003 are ex parte in nature and although the court really has no
discretion whether or not to sign them once it is satisfied as to compliance with the statute, some
judges routinely require hearings on immunity orders. Further, a witness can sometimes obtain a
hearing by filing a motion or having his counsel informally attempt to have the order changed.
Any such hearings should be in camera and the records should be sealed to prevent any breach of
grand jury secrecy.

c. Possible defense counsel objections/challenges

Any attempt by counsel to challenge the validity of a compulsion order should be vigorously
opposed. Set forth below are some arguments which might be raised and some suggested
answers.

1. Inadequate notice. The statute contemplates that the proceeding be ex parte. Consequently, no
notice at all need be given.(74) However, in cases where the witness is expected to be hostile or
might defy the order, it may be productive and protective of a later contempt action to have
witness and lawyer, if any, present so that the judge can explain the consequences of not
testifying.(75)
2. Insistence on an affidavit. Government attorneys should oppose requests for affidavits
concerning the authenticity of signatures on Department authorizations. Compliance with such
requests would place an unnecessary burden on the Department and require approval by a
Departmental official who is not present in the district. In any event, neither the compulsion
statute nor the pertinent regulations require an Assistant Attorney General's authorization to be
in writing.
3. Invalid order. As long as there has been compliance with the statute in obtaining the order, the
order is valid even though obtained ex parte and the court is not empowered to inquire into the
merits of the request.
4. Discovery of prior statements to avoid unintentional conflicting statements. Although this is not
a valid objection to the court issuing a compulsion order, on motion, a court can order that a
witness be given a copy of his current or prior grand jury testimony before he is compelled to
testify further. A witness before a grand jury has no inherent right to a transcript of his
testimony,(76) but it is within the discretion of the court to provide a witness with such a
transcript under Rule 6(e) of the Federal Rules of Criminal Procedure where the witness
demonstrates a particularized need for the transcript that outweighs the policy of grand jury
secrecy.(77) A strong particularized need must be shown before a transcript of testimony will be
given to a grand jury witness.(78)
5. Constitutionality. The constitutionality of the immunity provisions of 18 U.S.C. §§ 6002-6003 was
upheld in Kastigar v. United States, 406 U.S. 441 (1972).

G. What to Ask the Immunized Witness in the Grand Jury Room

1. Record that witness is testifying pursuant to immunity order
After obtaining the immunity order from the judge, the next step is compelling the testimony of
the witness in return for the grant of use immunity. The record must clearly reflect this process.
The suggested procedure follows.

a. Initial inquiry and advice of rights

Where you have obtained the compulsion order prospectively or where you anticipate a witness
asserting his 5th Amendment rights at the outset of his testimony, it is wise to advise the witness
of his rights on the record. Inquire whether he is represented by counsel; the attorney's name;
whether counsel has explained his rights, privileges and duties before the grand jury; whether he
has been advised of his 5th Amendment rights and whether he understands them; that he has a
right not to answer incriminating questions but that if he does answer, anything he says may be
used against him; and that he has a duty to testify truthfully.

b. Reading the compulsion order and conferring immunity

Immunity may be conferred in one of two ways.

First, the Government attorney may state that it is his understanding that the witness intends to
assert his 5th Amendment rights in response to any questions asked and then ask the witness to
affirm that. The foreperson of the grand jury then reads the order to the witness.

Alternatively, the witness may be asked questions until he refuses to answer on the basis of his
5th Amendment rights. You may consider asking the witness if his answer would be the same to
any other questions asked of him. You can then have the foreperson read the compulsion order.

In general, the second method is usually preferable both for you and the witness since it is more
in line with the literal language of the statute. If you have a hostile witness or if there is any
thought that you may have to seek a contempt order, then the second method is clearly preferred.
The immunity authorized by the statute is not self-executing. The witness must physically appear
and claim the privilege and be advised of the order before he can be held in contempt for
refusing to testify.(79)

c. Questioning immediately after the compulsion order is read

After the immunity order has been read to the witness, it is advisable to inquire whether he
understands it. Specifically, ask whether he understands that he no longer has a right to refuse to
answer any questions, but that what he does say cannot be used against him; that he does not
receive immunity for anything about which he does not testify; and that, notwithstanding the
order, he may still be prosecuted for perjury or giving a false statement if he does not testify
truthfully. This last provision is normally part of the immunity order, but it is wise to repeat it.

2. Order becomes a grand jury exhibit

In certain jurisdictions, the immunity order is made an exhibit to the witness' grand jury
testimony. Of course, the order is part of the record by virtue of the foreperson reading it into the
record. Once the order is used, it is filed with the clerk of court under seal.

H. Proffers and Interviews

It is the policy of the Antitrust Division to try to obtain full and candid proffers of expected
testimony concerning culpable subjects or potential targets prior to seeking immunity
authorization. This permits the Deputy Assistant Attorney General and the United States
Attorney for the district to make an independent judgment that the grant of immunity is
necessary to the public interest. During the proffer procedures, Division attorneys should be
careful not to indicate to counsel for the potential witness that immunity will be granted since
that decision must ultimately be made by the Deputy Assistant Attorney General and the United
States Attorney.

Proffers may be taken from the attorney representing the individual or from the individual
himself. Usually, the best practice is to obtain an attorney proffer first which then must be
confirmed in its essential details by the individual before immunity is sought. This practice
protects both the individual and the Government from becoming involved in inadequate proffers.
It also has the advantage of establishing a degree of trust between opposing counsel that is
essential for successful negotiations. Before engaging in such proffers, the attorney for the
Government should make clear to opposing counsel that immunity will not be sought unless the
attorney proffer is confirmed.

Frequently, the attorney will proffer by giving hypothetical facts which form the basis of the
expected testimony. If this approach is taken, it is vital that the proffer encompasses all the
relevant facts to which the witness can testify and that it be given in sufficient detail so that the
attorney for the Government is fully able to evaluate the nature and quality of the expected
testimony. As part of this procedure, the attorney for the Government should also review all
relevant documents that the witness can identify and obtain outlines of the expected testimony as
to each.

Lastly, counsel for the Government and opposing counsel should discuss and agree upon the
ground rules under which the witness' confirming proffer will be taken, for absent a legally
binding contrary agreement, the witness' statements may be used as substantive evidence against
him.(80) This would also be the case if the initial proffer was taken directly from the individual.

The ground rules for the witness proffer should be reduced to letter form and signed by the
attorney for the Government, counsel for the witness, and the witness. Generally, such letters
permit the Government only to make use of the information for the purpose of pursuing leads or
as a basis for cross-examination or rebuttal, should the witness in any subsequent proceeding to
which the United States is a party testify inconsistently with the information provided.(81) Such
written assurances are legally binding upon the Government.(82)

It is essential that culpable subjects or potential targets give interviews prior to a grant of
immunity. The interview assures the prosecution that the witness will in fact confirm an earlier
attorney proffer. It also permits the attorney for the Government to judge the credibility of the
witness, expand the factual basis of earlier proffers and fully review appropriate documents.
During the interview, the witness should be asked if he has given any statement concerning his
testimony to other counsel involved in the investigation or has testified or given a sworn
statement concerning the matters under investigation in any other proceeding.

I. Informal Immunity

Although there are often strong reasons for using statutory immunity, judicious use of informal
immunity can enhance the effectiveness and efficiency of our investigations and curtail the use
of grand jury time. This section sets forth the situations in which informal immunity may be
appropriate and the procedures for obtaining authority to grant informal immunity.

1. Situations in which informal immunity may be appropriate

There are two general categories of situations in which it may be appropriate or necessary to use
informal immunity as an alternative or adjunct to the statutory immunity process.

a. Routine situations--interviews and testimony

Oftentimes, the staff may wish to conduct interviews with witnesses before determining whether
it is appropriate or necessary to subpoena them to testify. Conducting such interviews may
permit the staff to assess more accurately the need to take sworn testimony from a witness, or it
may permit the staff to determine the scope of a witness' knowledge of relevant facts. During
grand jury investigations, for example, such interviews can be valuable in selecting witnesses to
appear before a grand jury or in limiting the scope of interrogation of a witness, thereby
conserving grand jury time.

In addition to the interview situation, it may also be appropriate, in some situations, to grant
informal immunity to a witness for his testimony, either before a grand jury or at trial. Some
witnesses may be willing to testify before a grand jury if they receive assurances from the
prosecution that their testimony will not be used against them in subsequent criminal
proceedings. Similarly, some trial witnesses, particularly those who have received statutory
immunity for their prior grand jury testimony, may be willing to testify at trial with informal
immunity.

b. Emergency situations

There are a number of situations in which time constraints make obtaining statutory immunity
impossible. Some examples include:

1. Where the Criminal Division is unable to provide timely final clearance to obtain formal
immunity and a witness' appearance before the grand jury (and perhaps the grand jury session)
would have to be cancelled as a result;
2. Where the staff learns about an important witness whose testimony is essential, either before a
grand jury or at a trial, and it is too late to obtain clearance for formal immunity; and
 3. Where the staff unexpectedly finds it necessary to call at a trial a witness who previously
received formal immunity before the grand jury, (83) but for whom no formal trial immunity order
has been obtained, and the witness refuses to testify without being immunized for his trial
testimony.

2. Procedures for obtaining clearance to grant informal immunity

The procedures for obtaining authority to grant informal immunity to witnesses in Antitrust
Division investigations and cases are designed to make the investigative and litigation process
more effective and efficient, without reducing the necessary safeguards to assure adequate
review. The considerations in balancing efficiency against more detailed, formal review vary
depending upon the position of the individual witness in his organization and the likelihood that
individuals at higher levels might be more culpable in a given case. Accordingly, both the
procedure for obtaining authority to grant informal immunity and the level of approval required
under these Guidelines vary depending upon the position of the witness in his organization.

a. Low-level employees

This group includes secretaries, other people with essentially clerical or routine administrative
positions, and sales department employees with "order taking" or "price quoting" responsibilities
but no authority to grant discounts, adjust prices or submit bids. Section and field office Chiefs
and Assistant Chiefs have authority to approve staff requests for informal immunity to low-level
employees after receiving such approval from the Office of Operations. Such approval, generally
given on a category-by-category basis rather than for specific individuals, may be obtained orally
from Operations by calling the Special Assistant who will convey the request to the Director of
Operations. If oral approval is obtained, a confirming written memo should be sent to
Operations. Thereafter, no further authority is necessary unless unusual circumstances arise.

b. Mid-level employees

This group includes non-management employees who might have some input into price
determination, but no final pricing or bidding authority. It includes most salesmen, estimators
and project engineers. As with low-level employees, Chiefs and Assistant Chiefs may approve
staff requests for informal immunity to mid-level employees after receiving approval from
Operations, using the procedures outlined above. In some cases, the Director of Operations may
withhold approval for certain categories of people, such as sales managers and chief estimators
or for specific individuals in this mid-level group. For those persons for whom approval has been
reserved, Chiefs should seek approval for the specific individuals within the group on a case-by-
case basis. In all but emergency situations, that request for approval should be in writing.

c. High-level employees

This group includes officers, directors, owners or management-level employees likely to be

identifiable targets of an investigation, regardless of official title, who have bidding or pricing
authority for, or culpable knowledge of the illegal acts under investigation. Ordinarily, staffs
should seek only statutory immunity authority for these individuals because of their significance
in the investigation. In some situations, however, such as the emergency situations described
above, the use of informal immunity may be appropriate, but only with the approval of the
Assistant Attorney General or the appropriate Deputy Assistant Attorney General. The
procedures for obtaining authority to grant informal immunity to high-level employees is the
same as for obtaining statutory immunity authority. Unless time constraints are such to preclude
it, a written memorandum must be submitted to Operations. If a request for oral approval is
unavoidable, a confirming written memorandum must be submitted.

3. Informal immunity letters -- form and scope

a. Form of informal immunity grant

The informal immunity conferred under these Guidelines will be in the form of a letter addressed
to the witness and signed, in most cases, by the appropriate Chief or Assistant Chief.(84) In
emergency situations, where by reason of the location of the witness or other factors making it
impossible for the Chief or Assistant Chief to sign the letters, a staff attorney may sign an
immunity letter, when specifically authorized to do so and in an approved form.

b. Scope of immunity

In the normal case, the letter conferring immunity will contain the following provisions:

1. The Division will forebear making direct (and where necessary, derivative) use of any of the
witness' statements in his/her interview (or testimony) against him/her in any subsequent
criminal prosecution of the witness for violations:
a. of the Sherman Act (and only such other specified statutes as are appropriate to the
case);
b. arising out of the witness' conduct in a specified geographic area; and
c. during a specified time period.
2. The statements of the witness in the interview or testimony may be used against the witness:
a. to impeach his/her testimony in any subsequent proceeding, including any subsequent
prosecution of the witness; and
b. either for impeachment or as substantive evidence in any subsequent case against the
witness for perjury (18 U.S.C. § 1621) or making a false statement under oath (18 U.S.C.
§ 1623) [in the case of sworn testimony] or making a false statement (18 U.S.C. § 1001)
[in the case of interviews not under oath].
3. There are no other agreements between the United States and the witness regarding his/her
prosecution or non-prosecution for statements made in the interview or testimony.

The witness and his counsel should sign and date our file copy of the letter.

No proposed immunity letter containing substantive provisions different from those outlined
above shall be issued by, or under the authority of, a Chief or Assistant Chief without express,
prior approval of the Director of Operations.

4. Advising United States Attorneys of informal immunity grants

Section and field office Chiefs or Assistant Chiefs or the lead staff attorney should notify the
appropriate U.S. Attorney or his designated representative in advance of conferring informal
immunity. We will not be circulating the usual copy of the OBD-111 to the U.S. Attorneys, as
we do when seeking statutory immunity. Therefore, to avoid conferring immunity upon
individuals who are subjects of local criminal investigations, the U.S. Attorney or his designated
representative in the relevant district (which ordinarily would be the district in which the witness
will appear before the grand jury) should be contacted and advised that we propose to confer
informal immunity on the witness(es).

Ordinarily, this advance notification should be in writing. In certain circumstances, where time is
an important consideration, oral notice may be given, but this oral notice should be confirmed by
a brief written letter or memorandum.

Where we have also applied contemporaneously for statutory immunity clearance for the same
witness, the U.S. Attorney will receive copies of the OBD-111 in connection with the formal
immunity clearance procedure. In these situations, no additional notice will be necessary.

5. Reporting of informal immunity grants

Chiefs or Assistant Chiefs shall report, monthly, all grants of informal immunity to the Director
of Operations. The purpose of this report is to ensure adequate record-keeping for all grants of
informal immunity; to permit analysis of the circumstances under which informal immunity has
been used in various investigations and cases; and to facilitate evaluation of the informal
immunity program. The monthly report shall be on the form "Report of Informal Immunity
Grants." This form shall be maintained cumulatively, for each pending investigation, and should
be updated each month with the addition of all names of witnesses for whom immunity was
cleared and submitted to Operations. Copies of all letters issued under this program should be
maintained by each section or field office in a separate file.

J. Corporate "Amnesty"

The Division has a policy of giving serious consideration to according lenient treatment to
corporations voluntarily reporting their illegal activity prior to our detection of it. "Lenient
treatment" means not indicting such a firm. (The policy is known variously as the corporate
amnesty, immunity or leniency policy.)

There are several factors that are weighed in arriving at the decision to grant leniency. First, only
the first corporation to come forward will be considered for leniency. If other corporations
involved in the same conspiracy subsequently come in to confess wrongdoing, or if all of the
involved corporations come forward as a group, they cannot be given the same consideration.
Their cooperation can be given some weight, of course, at the sentencing stage.

Second, in order to redound to the benefit of the corporation, the voluntary confession of
wrongdoing must be truly a corporate act, as opposed to the confessions of individual executives
or officials. If individual executives cooperate with the Government in the same manner as the
corporation, they may also be given serious consideration for immunity.

Other factors that must bear on any decision regarding leniency include the following:
 1. whether the Division could have reasonably expected that it would have become aware of the
conspiracy in the near future if the corporation had not reported it;
2. whether the corporation, on discovery of the illegal activity previously unknown to it, took
prompt and effective action to terminate its part in the conspiracy;
3. the candor and completeness with which the corporation reports the wrongdoing and continues
to assist the Division throughout the investigation;
4. the nature of the violation and the confessing party's role in it, e.g., was the corporation's
conduct coercive toward its co-conspirators, was it the originating party, and did it have actual
exclusionary effects on others in the marketplace; and
5. whether the corporation has made, or stated its intention to make, restitution to injured parties.

If the attorney who receives the request for amnesty believes the corporation qualifies for, and
should be accorded lenient treatment, he should forward a favorable recommendation to the
Office of Operations, setting forth the reasons why leniency should be granted. Staff should not
delay making such a recommendation until a fact memo recommending prosecution of others is
prepared. The Director of Operations will review the request, and forward it to the Assistant
Attorney General for final decision. If the staff attorney recommends against lenient treatment,
corporate counsel may wish to seek an appointment with the Director of Operations to make his
views known. Counsel are not entitled to such a meeting as a matter of right, but the opportunity
will generally be afforded.

K. Immunity Under Plea Agreements

The Division attorney negotiating immunity or non-prosecution provisions in a plea agreement

should be aware of certain principles.(85) Generally, defendants should not be granted immunity
absent a plea of guilty to some violation. Plea agreements may provide for no further prosecution
of defendants for antitrust, mail fraud, wire fraud or related violations committed prior to the
date of the plea agreement involving the subject product or industry within the specific
geographic area in which the defendants have admitted to unlawful conduct. If part of that area is
within the territory of another Division office or section, that office or section should be
consulted prior to any commitment.

Where a defendant has provided information as to one or more violations but it is believed that
additional information is being withheld, it may be desirable to use a sealed appendix to the
agreement. This would set forth all the information provided by the defendant and any immunity
given would be limited to that information and information derived therefrom. Where, however,
there is specific reason to believe that the defendant has information relating to other violations,
the Division should generally not enter into an immunity agreement.

Non-prosecution provisions for mail fraud or wire fraud should be specifically limited to
violations committed in connection with Sherman Act violations. The agreement should
specifically state that the defendant can still be prosecuted for perjury or giving false statements.

L. Immunizing Close Family Relative of Defendant or Target

Attorneys should consult the U. S. Attorneys' Manual, § 9-23.211, when seeking to immunize an
individual to compel that individual to testify about a close family relative. That section
describes the factors that should be considered in determining whether to compel an individual to
testify against a close family relative. That section reads as follows:

Consideration should be given to whether the witness is a close family relative of the person against
whom the testimony is sought. A close family relative is a spouse, parent, child, grandparent, grandchild
or sibling of the witness. Absent specific justification, we will ordinarily avoid compelling the testimony
of a witness who is a close family relative of the defendant on trial or of the person upon whose conduct
grand jury scrutiny is focusing. Such justification exists, among other circumstances, where (i) the
witness and the relative participated in a common business enterprise and the testimony to be elicited
relates to that enterprise or its activities; (ii) the testimony to be elicited relates to illegal conduct in
which we have reason to believe that both the witness and the relative were active participants; or (iii)
the testimony to be elicited relates to a crime involving overriding prosecutorial concerns.

As this provision makes clear, the ordinary course is to avoid compelling the testimony of a close
family relative of a grand jury target or trial defendant. However, many of the Division's criminal
investigations focus on family-owned businesses, thus it may be necessary to immunize one of
the family members involved in the business to testify against another member also involved in
the business.(86)

1. The criteria
a. Definition of close family relative

The initial guidelines in this area were set forth in the Attorney General's guidelines, published in
January, 1977, which provided:

Only in exceptional circumstances will authorization be granted to compel the testimony of a witness
who is a close family relative of the defendant on trial or of the person upon whose conduct grand jury
scrutiny is focusing.(87)

This exceptional circumstances standard was interpreted by the Criminal Division of the
Department of Justice in a letter, dated August 9, 1982, from Deputy Assistant Attorney General
John Keeney to Assistant United States Attorney Walter Mack in New York City.(88) The Keeney
letter set forth certain policy considerations and interpreted the term "relative" to include
husbands and wives, despite the lack of blood relationship and the term "'close' family relative"
to include grandparents, grandchildren, fathers, mothers, sons, daughters, brothers and sisters.
Excluded were aunts, uncles, nephews, nieces, cousins and in-laws. The letter states that the
degree of culpability or participation by the witness is an important factor to consider in
determining whether the public interest outweighs the family relationship. The present
Department of Justice position incorporates this interpretation of "close family relative."

b. Prospective testimony relating to common business activities

A second letter setting forth a factor to be considered under the "exceptional circumstances"
standard was sent on November 23, 1982 from Deputy Associate Attorney General Kenneth A.
Caruso to attorney William W. Taylor of Washington, D.C., in connection with Mr. Taylor's
representation of a client. The Caruso letter set forth a policy that "where, through a familial
relationship, an individual learns of illegal conduct by that individual's close family relative," the
Department normally would not compel that individual to testify. However, where an individual,
"because of his business or corporate position, becomes aware of illegal conduct by a family
business or by a business associate who happens also to be a close family relative," the
Department may compel that individual's testimony. The Caruso letter stated that, under such
circumstances, there was a likelihood that the Department would compel the individual to testify
"as a corporate official of the company under investigation" about "the business activities of
business associates who happen to be the witness' close family relatives."

The U.S. Attorneys Manual incorporates the rationale of the Caruso letter. Testimony may be
compelled when the prospective witness and relative participate, or have participated, during all
or part of the period under scrutiny, in a "common business enterprise" and the questions to be
asked and expected testimony relate to the common business enterprise or its activities. Thus, the
attorney should set forth in a memorandum the reasons for the belief that the witness will be able
to testify based on business association with the relative and why the testimony will not be based
exclusively on the familial or marital relationship.

c. Prospective testimony relating to joint participation in the commission of a

crime

The U.S. Attorneys Manual recognizes that when an individual participates with a close family
relative in the illegal conduct, such an individual may be compelled to testify. Thus, when an
attorney is considering whether it is appropriate to recommend a relative of a target or a subject
for immunity under a compulsion order, the attorney should set forth the reason(s) for the belief
that the prospective witness will be able to testify about the relative's and the witness' joint
participation in a crime.

A brief discussion of the marital privileges is useful to understand the current state of the law as
to whether joint participation in a crime will override the assertion of the marital privilege.(89)
Although there are no general privileges protecting an individual when compelled to testify
against a close family relative, when compelling a witness to testify about his spouse, two
marital privileges may be asserted. First, the confidential marital communications privilege
protects privately disclosed statements or communications made in confidence during the
marriage. This privilege may be asserted by either spouse, and the privilege survives the
deterioration of the marriage. The communications, however, must be made during the marriage,
and not before or after, to come within the privilege. The privilege protects the privacy of the
marital communications. Second, the testifying spouse may claim the privilege against adverse
spousal testimony which applies to all testimony against the spouse, including testimony on non-
confidential matters or matters that occurred prior to the marriage. Although this privilege covers
a greater range of potential information, it may be asserted only by the spouse called or
compelled to testify and not by the spouse against whom the testimony is sought.(90) Furthermore,
this privilege does not survive the deterioration of the marriage, as it is intended to protect the
sanctity of the marriage as it exists at the time of the trial or grand jury proceeding.
In their attempts to reconcile the policies underlying the privileges against the public interest in
obtaining the testimony, the courts have come to a consensus in deciding that there should be a
joint participation exception to the confidential marital communications privilege, but are
divided on this exception as to the privilege against adverse spousal testimony.

The weight of the law is that joint participation in a crime creates an exception to the confidential
marital communications privilege.(91) With respect to the privilege against adverse spousal
testimony, the courts which uphold the privilege emphasize the public policy of preserving the
harmony of the marriage. In In re Malfitano, 633 F.2d 276 (3d Cir. 1980), the court held that
there was no joint participation exception to the privilege and upheld the assertion of the
privilege, the grant of immunity notwithstanding.(92) Two circuits recognize a joint participation
exception to the claim of privilege against adverse spousal testimony because to uphold the
privilege would allow one spouse to enlist the aid of the other spouse in a criminal enterprise
and, by doing so, protect against having the spouse compelled to testify about the crime.(93)

d. Prospective testimony regarding crimes involving overriding prosecutorial

concerns

The U.S. Attorneys Manual also states that a compulsion order may be sought when "the
testimony to be elicited [from the prospective witness concerning the relative] relates to a crime
involving overriding prosecutorial concerns." Such crimes are not specifically defined. The
recommendation will be considered on a case-by-case basis. Thus, the attorney's memorandum
should set forth any facts that demonstrate particular prosecutorial concerns.

2. The relative may not claim a privilege to quash a subpoena to testify

Once the criteria for deciding that immunity is appropriate under the above guidelines are
satisfied, the witness to be immunized should not prevail on a motion to quash the subpoena on
the ground of testimonial privilege. There is no recognized privilege that protects a prospective
witness from having to testify against a close family relative,(94) other than the confidential
marital communications or the adverse spousal testimony privileges.

M. Refusal to Comply with Compulsion Order

1. Contempt

The refusal of a witness to testify or to produce other information after the issuance of an order
of compulsion under 18 U.S.C. § 6002 is punishable by contempt.(95) An immunized witness who
refuses to testify before a federal grand jury may be held in civil or criminal contempt.(96)

a. Civil contempt (28 U.S.C. § 1826; Fed. R. Crim. P. 17(g))

28 U.S.C. § 1826, a codification of preexisting practices, was enacted in 1970 to provide a

statutory basis for the application of summary civil contempt powers to recalcitrant witnesses. It
provides that a witness may be held in contempt when he refuses to comply with a court order
"without just cause shown."(97) Also pertinent to the contempt power and its exercise, whether
civil or criminal, are Rules 17(g) and 42 of the Federal Rules of Criminal Procedure.
Ordinarily, the district courts should first consider the feasibility of effecting compliance with
compulsion orders through the imposition of civil contempt under 28 U.S.C. § 1826. "The judge
should resort to criminal sanctions only after he determines, for good reason, that the civil
remedy would be inappropriate."(98) The court, however, is not required to consider civil
contempt on the record expressly prior to the institution of criminal contempt proceedings
against recalcitrant witnesses.(99)

The purpose of civil contempt is not to punish the witness by imprisonment, but rather to secure
testimony or other evidence through the creation of an incentive for compliance. On the other
hand, the purpose of criminal contempt is to punish the witness for his refusal to obey the court's
order, thus vindicating the court's authority.(100)

Confinement for civil contempt is limited to the life of the court proceeding or the term of the
grand jury, but in no event may the confinement exceed 18 months. When the potential duration
of civil coercive confinement is severely limited, a court may consider civil contempt a futile
sanction.(101) Moreover, civil contempt may not be sufficient where "the contemnor is already
incarcerated and is, therefore, unlikely to respond to a threat of summary civil contempt."(102)

A witness can purge himself of civil contempt at any time. Thus, when the witness complies with
the order, he must be released. When the grand jury has expired, civil contempt is not available.
(103)
The witness cannot purge himself before a no-longer-existent grand jury.

b. Criminal contempt (18 U.S.C. § 401; Fed. R. Crim. P. 42)

Where it is appropriate to impose punishment upon a recalcitrant witness, the court may invoke
the provisions of 18 U.S.C. § 401 and Rule 42 of the Federal Rules of Criminal Procedure.
Criminal contempt is punishable under 18 U.S.C. § 401, by fine or imprisonment. Courts may
not impose both a fine and imprisonment, nor a fine coupled with probation.(104) Unlike civil
contempt, the confinement or fine imposed is for a definite period or amount. The witness cannot
purge himself of the contempt and thereby avoid the sentence.

Sentences of up to and including six months may be given after the notice and hearing required
by Fed. R. Crim. P. 42(b). The Supreme Court has ruled, however, that sentences exceeding six
months may not be imposed absent a jury trial or waiver thereof.(105) After a jury trial, there is no
limit to the length of the sentence as there is no maximum set for punishing criminal contempt
under Rule 42(b). The Government cannot know in advance the penalty to be imposed.
Nevertheless, the Government should not press in a non-jury hearing for imprisonment in excess
of six months and should be certain that the court is aware that any sentence longer than six
months requires that the defendant be allowed a jury trial.

In one case involving criminal contempt occurring before the grand jury, a sentence of three
years was imposed.(106) Prosecution was by grand jury indictment for violation of 18 U.S.C.
§ 401.

A sentence for another criminal offense may be interrupted to compel the witness to serve an
intervening contempt sentence so that an adjudication of criminal contempt not be deprived of its
efficacy.(107) However, in In re Liberatore, 574 F.2d 78 (2d Cir. 1978), the court held that a
federal court does not have the authority to interrupt a preexisting state-imposed criminal
sentence during the period of confinement to compel the witness to serve the contempt sentence.

2. Mechanics
a. Civil

Federal Rule of Criminal Procedure 42 is applicable to both civil and criminal contempt
proceedings. However, the summary procedure provided for by Rule 42(a) is not appropriate for
a refusal to testify before a grand jury. Rule 42(a) deprives the contemnor of procedural
safeguards and is available only when immediate punishment is necessary to put an end to acts
disrupting the proceedings. "Rule 42(b) prescribes the procedural regularity for all contempts in
the federal regimes [footnote omitted] except those unusual situations envisioned by Rule 42(a)
where instant action is necessary to protect the judicial institution itself."(108)

Rule 42(b) applies to civil contempt proceedings initiated under 28 U.S.C. § 1826, which permits
a court to "summarily" order the confinement of a grand jury witness who refused to comply
with an order to testify.(109) Thus, a potential contemnor is entitled to notice, a hearing, and a
reasonable time to prepare his defense as prescribed by Rule 42(b), despite the use of the word
"summarily" in § 1826(a).

It is not required that a potential contemnor have formal notice. Rule 42(b) only requires a
reasonable time for the preparation of a defense; that is, to show "just cause" for refusing to
respond. The determination of how much time is reasonable is within the discretion of the district
court and will vary according to the circumstances of each case. One court, noting that contempt
proceedings against grand jury witnesses often present complex issues of law and/or fact, was of
the opinion that a five-day notice period should be adopted as the standard, absent a showing of
some compelling need to shorten the time or of some reason why a longer time is needed.(110)
Two days have been held adequate where no showing of just cause appeared to have been
available.(111) Where the issues have been considered at an immunity hearing, the witness may
have had adequate time to prepare, even though very little time elapses between the alleged
contempt and the contempt hearing.

A witness who appears and refuses to testify before a grand jury is not yet in contempt. The
refusal must be of a direct order of the court, such as a compulsion order under 18 U.S.C. § 6002.
(112)
It should be clear, however, that the witness understands his obligation to testify and that, if
he refuses, he can be held in contempt. If there is any doubt about this, or if the immunity order
was obtained without the witness being present, it may be advisable to present the recalcitrant
witness to the court, reading the relevant questions and responses, and secure a direct order of the
court with an appropriate warning; thereafter, the witness should be returned to the grand jury
and the request renewed. If the witness again refuses, contempt clearly occurs.

The hearing required under Rule 42(b) and 28 U.S.C. § 1826(a) may conceivably take place the
same day and may depend on the nature of the defense, if any, offered by the witness. It may be
advisable to consult with the local United States Attorney to ascertain the court's attitude in this
regard. As discussed above, courts generally appear reluctant not to grant notice of at least
several days when substantial issues are raised. In that event, the courts require an "uninhibited
advisory hearing" that, at the very least, allows the witness to pursue all nonfrivolous defenses to
the contempt charge. On the other hand, evidentiary hearings are not required in the absence of
solid allegations that raise genuine issues. Material issues that have been raised include
electronic surveillance of the witness or his counsel(113) and being subpoenaed for an improper
purpose, e.g., to gather evidence in connection with a pending indictment.(114) A defendant is not
entitled to a jury trial in a civil contempt proceeding.

Whether or not such issues are raised, the Government should be prepared to lay a foundation to
establish the contempt, e.g., to establish the presence of a quorum on the date and time in
question. This may be shown by an affidavit or testimony of the grand jury foreperson or
secretary or by properly authenticated grand jury minutes. In establishing the contempt, it is
probably best to read the relevant questions and responses from a properly authenticated
transcript of the grand jury proceeding.

Section 1826(b) prohibits granting bail while an appeal from an order of confinement is pending
if the appeal appears to be frivolous or taken for delay. An appeal from a confinement order
under this section is to be disposed of "as soon as practicable" but not later than thirty days from
the filing date. These provisions lend a certainty to the sanction consistent with the urgent public
need to obtain testimony.(115) Thus, the statute, itself, affords a sound predicate for Government
opposition to an application for bond pending appeal.

b. Criminal

Rule 42 of the Federal Rules of Criminal Procedure governs the procedures as to notice and
hearing for both criminal and civil contempt. These procedures are discussed above under civil
contempt.

Bail for a defendant found in criminal contempt of court is controlled by the provisions of Fed.
R. Crim. P. 46.

The obstruction of justice statute (18 U.S.C. § 1510) was designed to deter coercion or
intimidation of potential witnesses or informants from giving information to federal criminal
investigators prior to initiation of judicial proceedings. It is not used in connection with contempt
proceedings.

N. Defense Witness Immunity

The provisions of 18 U.S.C. §§ 6001-6003 are not to be used to compel testimony or production
of other information on behalf of a defendant except in extraordinary circumstances where the
defendant would be deprived of a fair trial without such testimony or other information.
Attorneys for the Government should almost always oppose attempts to use compulsion statutes
on behalf of defendants.(116)
The immunity statute gives the prosecutor sole discretion to grant immunity. The court's role in
the immunity process is purely ministerial, and a court may neither grant statutory immunity nor
force the prosecutor to grant immunity.(117)

Defendants frequently seek immunity for their witnesses from the court. The most common
arguments in favor of such grants are that denial of immunity would violate the due process
clause of the 5th Amendment or the compulsory process clause of the 6th Amendment. Although
there is general agreement among the circuits that defense witness immunity is justified in a few
exceptional cases, there is a strong presumption against such immunity. First, judicial immunity
decisions inevitably involve encroachment into areas of prosecutorial discretion. An immunized
witness can still be prosecuted, but the Government bears a heavy burden of showing that the
evidence is not derived from immunized testimony.(118) Thus, granting defense witnesses
immunity may seriously impair the Government's ability to prosecute these witnesses later.
Second, defense witness immunity would invite cooperative perjury by enabling codefendants to
obtain immunity for each other and then exonerate each other in their testimony. For these
reasons, courts have held there is no general right to defense witness immunity.(119)

The only case in which a guilty verdict has been reversed for failure to grant immunity to a
defense witness is United States v. Morrison, 535 F.2d 223 (3d Cir. 1976). However, Morrison
involved highly unusual circumstances, including allegations of prosecutorial abuse. Other
circuits have also held that there may be cases in which Government abuse justifies dismissal if
the witness is not immunized.(120) Three circuits have indicated that courts may have the inherent
power to grant use immunity in cases of Government abuse.(121) None of these courts has ever
ordered that such judicial immunity be granted. The Sixth and Tenth Circuits, while rejecting any
inherent power on the part of the courts to grant immunity, have left open the question of
whether prosecutorial misconduct might require the Government to choose between granting
immunity to a defense witness and acquittal.(122)

In addition to situations involving prosecutorial misconduct, the Third Circuit in Government of

the Virgin Islands v. Smith, 615 F.2d 964, 970-74 (3d Cir. 1980), held that defendants have a due
process right to present exculpatory evidence and that judicial immunity may be granted to a
witness who will provide exculpatory testimony.(123) Defense witness immunity is proper under
Smith where immunity is properly sought in the district court, the witness is available to testify,
the proffered testimony is essential and clearly exculpatory, and there is no strong Governmental
interest against granting immunity.(124) The court stated that granting immunity is usually
"virtually costless" to the Government because it can still prosecute the witness if it segregates
the existing evidence against the witness or seeks a delay in the defendant's trial until sufficient
evidence against the witness can be gathered.(125)

The only other circuit to hold that defense witness immunity can be used to make exculpatory
evidence available to the defendant is the Second. Under the Second Circuit standard, immunity
can be granted to defense witnesses if the Government has made discriminatory use of immunity
to gain tactical advantage, and the testimony is material, exculpatory and not available
elsewhere.(126) If the witness is a current or potential target of prosecution, there is no
discrimination.(127)
 O. When the Immunized Witness is Prosecuted
1. Introduction

A witness who has provided testimony at a grand jury or trial pursuant to a grant of immunity
under 18 U.S.C. § 6001, et seq. or pursuant to a promise of informal immunity or in a state
investigation pursuant to a state grant of immunity may nonetheless be prosecuted, even for a
crime about which the witness testified. The witness can be prosecuted only if the Government
can affirmatively prove that it did not use the witness' immunized testimony against the witness,
for example, as direct evidence of the witness' involvement; and that it did not use information
directly or indirectly derived from the testimony, for example, as a lead to developing evidence
against the witness or in focusing the investigation on the witness.

2. Constitutionality and limitations of protection granted under 18 U.S.C. § 6002

The protection granted to the witness by 18 U.S.C. § 6002, has been upheld as constitutional in
the face of a challenge that use and derivative use immunity was violative of a witness' 5th
Amendment privilege against self-incrimination. The Court in Kastigar v. United States, 406
U.S. 441 (1972), held that "immunity from use and derivative use is coextensive with the scope
of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a
claim of privilege."(128) Prior to the passage of 18 U.S.C. § 6001, et seq., a witness was protected
by transactional immunity. Under transactional immunity, a witness could not be prosecuted for
the events about which he testified, even if the Government had independent evidence of the
witness' participation in the crime. The use and derivative use immunity statute, however,
confers a less sweeping protection. A witness may be prosecuted for the very activities about
which he testifies if the Government can prove that it did not use the testimony.(129)

In Kastigar, the Court stated that the witness should be "in substantially the same position" after
testifying under immunity as that witness would have been had the 5th Amendment privilege
been claimed.(130) The key term here is "substantially." The immunity protection does not mean
that "in order for a grant of immunity to be 'coextensive with the 5th Amendment privilege,' the
witness must be treated as if he had remained silent."(131)

As the Court pointed out in United States v. Apfelbaum, 445 U.S. 115, 124-25 (1980), the
statutory grant of immunity does not "bar the use of the witness' statements in civil proceedings,
but only protects against use in subsequent criminal proceedings. Thus, testimony given under a
statutory grant of immunity may be used against the witness in a subsequent civil proceeding.
Further, the immunity granted for testimony before the grand jury or at the criminal trial does not
cover the same individual if he is subpoenaed to testify at a civil deposition.(132) Thus, a private
litigant cannot compel a witness' testimony at a civil deposition if the witness

a. Use of immunized testimony in a perjury or false statements prosecution

By its very language, the immunity statute does not protect the witness from a prosecution for
perjury, 18 U.S.C. § 1621, or false statements to the grand jury or court, 18 U.S.C. § 1623.(133)
The untruthful statements which form the basis of the indictment, the corpus delicti, may be used
against the witness in the perjury or false statement prosecution.(134) In addition, uncharged
statements in the immunized testimony of the witness may be used, for instance, to place the
charged statements in context. As the Supreme Court stated in United States v. Apfelbaum, 445
U.S. 115, 131 (1980): "neither the immunity statute nor the 5th Amendment precludes the use of
[the witness'] immunized testimony at a subsequent prosecution for making false statements, so
long as that testimony conforms to otherwise applicable rules of evidence."

Furthermore, the immunity statute may not protect a witness who "otherwise fail[s] to comply
with the order [of immunity]." In one case, a witness who testified falsely, both to the grand jury
and at trial under a grant of immunity, was charged with not only false statements but a
conspiracy to commit other crimes, to obstruct justice and to give false testimony. The court
upheld the conspiracy count, stating that "the sweep of the exception against the use of
immunized testimony . . . extends to any conduct aimed at frustrating the purpose of the grant of
immunity."(135)

Division attorneys should be aware that if they intend to prosecute an immunized witness for
perjury or false statements, only the regular case approval procedures must be met. If the
prosecution is for a substantive offense, attorneys must follow the procedures for obtaining the
Attorney General's approval, outlined in § 3, below.

b. Prosecution of witness granted transactional immunity by operation of state

statute

Quite often, states have antitrust statutes that provide a witness who is subpoenaed to testify in
the state investigation with an automatic grant of transactional immunity. The federal prosecutor
is not bound by the "transactional" language of the state statute. The witness' state immunity is
honored in the federal courts only to the extent that the federal statutory immunity gives the
witness protection. The federal prosecution may be brought if the federal Government can show
that it made no direct or indirect use of the immunized testimony or of any leads derived
therefrom.(136) Thus, a witness who received state transactional immunity is protected from
federal prosecution only to the extent that use and derivative use immunity protects him.(137) Of
course, a witness who has been compelled to testify under the federal immunity statute may be
prosecuted by a state only if the state can show it used evidence independent of the immunized
testimony.(138)

c. Prosecution following a grant of informal immunity

Under a grant of informal immunity, a witness may be protected by use and derivative use
immunity, even though the prosecutor has not invoked the formal immunity process by seeking a
court order compelling the witness' testimony under 18 U.S.C. § 6001, et seq. The prosecutor
should carefully draft an informal immunity grant, in the form of a letter to the witness or
counsel for the witness, so as to grant only the minimal immunity required by the Constitution,
i.e., use and derivative use immunity.(139) Some courts have interpreted the prosecutor's language
granting informal immunity to give that constitutional protection despite arguments by
defendants that they were granted transactional immunity.(140)

d. Witness must claim privilege

A witness can receive constitutional immunity co-extensive with the 5th Amendment only when
the witness has been compelled to testify following an assertion of the witness' 5th Amendment
privilege (or an announcement of the intention to so claim). If, for example, the witness testifies
voluntarily after receiving an explicit promise only of use immunity, then the Government is free
to prosecute on the basis of evidence derived from the immunized testimony.(141) Such a promise
ought to be in writing and unambiguous to be enforceable. Otherwise, a court may interpret the
promise of immunity to bestow the full Constitutional protection.(142)

e. No entitlement to pre-indictment relief

Pre-indictment relief for an immunized witness is generally not granted. An immunized witness
who has not been indicted is not likely to prevail on a motion for a preliminary injunction to stop
another grand jury investigation from focusing on him and returning an indictment. In Brennick
v. Hynes, 471 F. Supp. 863 (N.D.N.Y. 1979), the plaintiff, who had been immunized and gave
testimony under the Bankruptcy Act,(143) sought to enjoin state prosecutors from conducting any
further grand jury proceedings directed against him and from seeking to indict him. The court
found the motion to be premature and held that it was impossible to determine that any
indictment returned by the grand jury would be tainted.(144)

3. Department of Justice procedures

The procedures required for prosecution of a witness immunized under 18 U.S.C. § 6001, et seq.,
are set forth at U.S.A.M. 9-23.400. The prosecutor must obtain the express written authorization
of the Attorney General.(145) The Division attorney must set forth in the fact memo to the
Assistant Attorney General in charge of the Antitrust Division the following:

1. the unusual circumstances that justify prosecution of the witness, e.g., the witness did not
inculpate himself in his immunized testimony or other witnesses provided testimony that serves
as the basis for the indictment.
2. the method by which the attorney will affirmatively establish either:
a. that all evidence necessary for a conviction was in the hands of the Government prior to
the date of the witness' compelled testimony, or
b. that all evidence has come from sources independent of the witness' testimony and was
not the result of focusing the investigation on the witness because of compelled
disclosures.
3. how the attorney will show affirmatively that no other "non-evidentiary" use has been made or
will be made of the compelled testimony in connection with the proposed prosecution, e.g.,
having the prosecution handled by an attorney unfamiliar with the substance of the compelled
testimony.

The various policies inherent in the immunity provisions, as well as in the granting of informal
immunity, are also detailed in the U.S. Attorney's Manual. The immunity statutes are to
encourage free and full disclosure by a witness; thus, the attorney in deciding whether to
prosecute the immunized witness should consider the extent to which the witness testified freely
and fully in compliance with the order. The U.S. Attorney's Manual states that "less than
complete testimony should not appear to be rewarded by a declination of prosecution in a case
where independent evidence clearly exists and the situation otherwise warrants prosecution."
This is a strong policy to argue to a court in a brief or oral argument responding to a motion to
dismiss.

Because any case recommended against an immunized witness (other than a case for perjury or
false statements) requires the approval of the Attorney General, Division attorneys should submit
to Operations, with the fact memo, a draft "Action Memorandum" from the Assistant Attorney
General to the Attorney General for the latter's signature that addresses the relevant issues
discussed above. Staff should contact the Special Assistant in Operations regarding the format of
the "Action Memorandum."

4. Scope of protection

The protection conferred by 18 U.S.C. § 6001, et seq., is a "sweeping proscription of any use,
direct or indirect, of the compelled testimony and any information derived therefrom."(146) The
proscription is twofold: 1) the prosecutor cannot use the testimony against the witness, e.g., as
the basis for an indictment, as evidence at trial or to impeach the witness if he takes the stand;(147)
and 2) the prosecutor cannot use the testimony to derive evidence against the witness, e.g., to
obtain the name of a co-conspirator from the testimony and to use that co-conspirator's testimony
as a basis for indictment.(148)

a. Indirect and derivative use

Clearly, the prosecutor cannot use the witness' immunized testimony as evidence to charge or try
the witness. Nor can the prosecutor glean a lead from the testimony and then use the lead to
charge or try the witness. But, the courts have come to differing conclusions as to what other
uses are prohibited under the terms "direct and indirect" derivative use.

In Kastigar, the petitioners argued that the immunity statute did not provide adequate protection
against derivative or indirect use of the immunized testimony because "enforcement officials
may obtain leads, names of witnesses, or other information not otherwise available that might
result in a prosecution."(149) The Supreme Court, however, held that the use and derivative use
protection was sufficient protection and bars "the use of compelled testimony as an 'investigatory
lead,' and . . . the use of any evidence obtained by focusing investigation on a witness as a result
of his compelled disclosures."(150)

1. The McDaniel case. Some circuits read Kastigar to mean that the prosecuting attorney's access
to incriminatory immunized testimony of the witness makes it virtually impossible for the
Government to show no indirect derivative use of that testimony. To these courts, once the
information from the immunized testimony is read or heard, it cannot be eradicated from the
prosecutor's mind. In the leading case supporting this position, United States v. McDaniel, 482
F.2d 305, 311 (8th Cir. 1973), the court held that the prohibition against indirect use "could
conceivably include assistance in focusing the investigation, deciding to initiate prosecution,
refusing to plea bargain, interpreting evidence, planning cross-examination, and otherwise
generally planning trial strategy."(151)

Some salient facts about McDaniel should be noted when confronted with the case. The
witness testified under an automatic state grant of transactional immunity and gave three
 volumes of self-incriminating testimony which was read by the United States Attorney.
(152)
McDaniel was indicted by the state and twice by the Federal Government, although
the state indictment was dismissed before trial. McDaniel was tried and, convicted twice.
On appeal, the convictions were vacated with an order remanding for an evidentiary
hearing to determine if the prosecution was related to the subject matter of the immunized
state testimony. Prior to this hearing, the Supreme Court decided Kastigar, and the
Government therefore sought to show its independent evidentiary basis for the
indictment, which request was denied at the hearing. The only issue on the second appeal
was whether the Government had used the immunized testimony. Even though the
district court's opinion upon remand stated that had the court considered the question of
use, it would have found that the Government sustained its burden of showing
independent evidence, the Eighth Circuit rejected the district court's position that the
Government had met its burden. The Eighth Circuit agreed that there was an independent
source of the evidence, but held that such evidence did not satisfy the Government's
burden that it "did not use [the testimony] in some significant way short of introducing
tainted evidence."(153) The court found: 1) the witness fully confessed in the transcripts,
2) these transcripts were read in their entirety three and eight months, respectively, before
the indictments, and 3) when he read the transcripts, the U.S. Attorney was unaware of
the immunity and thus had "no reason to segregate McDaniel's testimony from his other
sources of information."(154) The court stated that the district court had not taken into
account "the immeasurable subjective effect" and concluded that "the testimony could not
be wholly obliterated from the prosecutor's mind in his preparation and trial of the
case."(155)

2. Cases contra to McDaniel. Relying upon language in McDaniel, defendants have argued that
once the prosecutor has read the transcript, such a reading imparts a confidence or other
benefit that the prosecutor otherwise would not have and thus constitutes an impermissible
indirect use. However, most courts have refused to apply such a broad rule that in effect creates
a per se rule that exposure to immunized testimony, alone, results in an impermissible use. (156)

Some circuit courts that do not follow McDaniel reason that McDaniel goes too far and
creates, in effect, transactional immunity.(157) The reasoning of McDaniel and the cases
relying on McDaniel is that under Kastigar, the use and derivative use immunity grant
should leave the witness in the same position as if the witness had claimed the 5th
Amendment privilege. The Kastigar decision, however, reaffirms the language of
Murphy v. Waterfront Commissioner, 378 U.S. 52 (1964), that the witness be left "'in
substantially the same position as if the witness had claimed his privilege.'"(158)

In United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985), the witness had given
incriminating testimony pursuant to a grant of use and derivative use immunity under 18
U.S.C. § 6001, et seq., before Assistant United States Attorney ("AUSA") Stubbs, and
AUSA Stubbs participated in the decision to prosecute Byrd. The grand jury that voted
the indictment at issue heard only the testimony of an FBI Agent, who had read the
immunized testimony, but who summarized both the testimony of witnesses, excluding
Byrd, who had appeared before a previous grand jury and the contents of interviews
conducted prior to the time Byrd testified. The district court dismissed the indictment.
The court of appeals held that the district court incorrectly applied a test stricter than that
 required by Kastigar. The court held that the Government need not prove as part of its
burden that its "decision to indict was not induced by the content of Byrd's immunized
testimony," and that Kastigar did not require inquiry into the prosecutors' motives.(159)
The court found that as long as all the independent evidence presented to the grand jury
was sufficient to establish probable cause, the existence of such evidence is "deemed to
raise a presumption that the decision to indict was not tainted."(160) To require the
Government to prove that the immunized testimony did not enter into the decision to
prosecute would be tantamount to treating the grant of use immunity as transactional
immunity and would create an impenetrable barrier against prosecution.

b. Use of the fact of testimony

The prohibition against use and derivative use of immunized testimony precludes use of any of
the content or substance of the testimony, but does not necessarily preclude use of the fact that a
witness testified.(161)

5. Taint hearing

The fact that a witness testified under a grant of immunity does not in itself present an
insurmountable barrier to prosecution.(162) The Government, however, bears an affirmative
burden. The Supreme Court in Murphy v. Waterfront Commission, 378 U.S. 52 (1964),
recognized the necessity for the Government to bear the burden of showing that the "evidence is
not tainted by establishing that they had an independent, legitimate source for the disputed
evidence."(163) In Kastigar, the Supreme Court held that the Government's burden of proof "is not
limited to the negation of taint, rather it imposes on the prosecution the affirmative duty to prove
that the evidence it proposes to use is derived from a legitimate source wholly independent of the
compelled."(164) Thus, once the defendant makes a prima facie showing that he gave immunized
testimony, the Government must be prepared to go forward to show no use of that testimony and
its independent evidence. However, the Government is not required to negate all abstract
possibilities of taint.(165)

a. Need for an evidentiary hearing

An evidentiary hearing on a Kastigar issue is not required, the decision lying within the sound
discretion of the trial court.(166) In some cases, courts decide the question of whether the
Government made any direct or indirect use or derivative use of the testimony on the pleadings
and exhibits attached and made part of the record.(167) The district court in a case brought by the
Antitrust Division, United States v. Beachner Construction Co., 538 F. Supp. 718 (D. Kan.
1982), denied the witness' motion for an evidentiary hearing after reading the affidavits and
transcripts. The court, relying on United States v. Provenzano, 620 F.2d 985 (3d Cir.), cert.
denied, 449 U.S. 899 (1980), found "that the documentary evidence produced by the
Government pursuant to the Court's order conclusively shows that the Government previously
possessed all material facts revealed by defendant's immunized testimony."(168) Nevertheless,
some courts require an evidentiary hearing although there is no constitutional requirement for a
hearing.(169)
 b. The Government's burden of proof to show independent evidence

Whether or not a hearing is mandated, the Government still bears an affirmative and heavy
burden of proof.(170) Several courts have reiterated this standard without trying to fit it into the
traditional categories.(171) Other circuits have held that the Government's burden is a
preponderance of the evidence.(172)

The issue as to whether any use has been made of the immunized testimony is a question of fact.
(173)
Therefore, the trial court's findings can be reversed on appeal only if clearly erroneous.(174)

c. Meeting the burden of proof

The burden on the Government is to prove the following: 1) the Government had independent
evidence that served as a basis for the indictment; 2) the Government did not use the immunized
testimony as a basis for indictment; 3) the Government will not use any of the testimony of the
witness against him at trial; 4) the Government did not obtain any leads from the witness'
testimony to obtain a basis for the indictment or as potential proof at trial; and 5) the
Government has not made use of the witness' immunized testimony in focusing the investigation
on the witness, in making the decision to prosecute(175) or in formulating its strategy in its
preparation for trial.

To meet its burden, the Government can submit to the court, in camera, the evidence obtained
prior to the grant of immunity. This evidence should be considered independently.(176) In United
States v. Romano, 583 F.2d 1 (1st Cir. 1978), the Government submitted a memorandum it had
prepared prior to the immunized testimony summarizing all the evidence the Government had
prior to the defendant's immunized testimony before a United States Senate Subcommittee.(177)
Where the Government was able to show that the witness was a target of the investigation prior
to his immunized testimony, this has weighed in favor of the Government.(178)

The Government may also rely upon the amount of information contained in the questions it
asked of the witness. In United States v. Catalano, 491 F.2d 268 (2d Cir.), cert. denied, 419 U.S.
825 (1974), the court found that the Government met its affirmative burden, in part, because
most of the questions asked of the immunized witness by the prosecutor in the grand jury session
were leading, which indicated that the prosecutor already knew the answers and thus already had
the evidence.

The quality and quantity of a witness' testimony is relevant to the court's determination of
whether such testimony was used to indict, provide leads, or to prepare for trial or plea
bargaining. Where the defendant provides little or no information in his immunized testimony,
and the Government can show that it had substantial incriminating information prior to, or apart
from, defendant's immunized testimony, some courts have found it impossible for the
Government to have gained any substantive information from defendant's testimony. This is
especially the case where the defendant claims lack of recollection or exculpates himself.(179)

In addition to showing that the defendant was already the focus of an investigation and that the
Government had prior evidence against the defendant, the Government also may need to show
that the substance of the defendant's immunized testimony did not lead to the decision of other
witnesses to testify against the defendant.(180) The attorney for the Government may introduce
affidavits with its papers or at the taint hearing in which co-defendants or witnesses who have
pled and cooperated certify that the defendant's immunized testimony did not lead to their
decision to plead and cooperate.

At a minimum, the Government must offer the transcript of the defendant's immunized testimony
and an affidavit of the prosecuting attorney setting forth what evidence he had prior to such
testimony, the independent sources of evidence, and what effort was made to segregate the
immunized testimony from the prior and other independent evidence.(181) The attorney may
supplement this showing with affidavits of investigators, and possibly co-defendants or potential
witnesses who have pled guilty or otherwise have cooperated, and the court reporter (e.g., as to
the sequence of witnesses). Where courts have relied on Government affidavits, as well as
transcripts of the immunized testimony and other prior testimony, the affidavits have contained
more than conclusory statements from the Government. Thus, the Government should be
prepared with an affidavit of the prosecutor, setting forth specific facts and the sequence of
events.

d. Meeting the burden of proof with respect to immunized state testimony

When the immunized testimony was given before a state grand jury, a showing that a "Chinese
wall" existed between the state and federal investigations is a factor, but may not be sufficient in
itself. In United States v. Smith, 580 F. Supp. 1418, 1422-23 (D.N.J. 1984), evidence that the
state and federal investigations co-existed but that no information passed from state sources to
federal investigators together with the Federal Government's claim that it never saw the witness'
immunized testimony was but one element of the Government's burden of proof. The court in
Smith held a 26-day pre-trial evidentiary hearing in which "federal officials from all phases of
the Government's investigation of the defendant testified and were fully cross-examined by
defendant's counsel."(182) The prospective trial attorney testified to the evidence that would be
introduced at trial and the sources of that evidence, the witnesses to be called at trial, the
substance of their testimony, the exhibits that the witnesses would identify, any contact the
witnesses had with the defendant's immunized testimony, the time when the trial attorney
decided to use particular evidence and the basis for each decision. Clearly, such an extensive
hearing is a discovery tool for the defendant. The attorney for the Government should, therefore,
consider the possibility that such discovery may occur when deciding to prosecute an immunized
witness.

In United States v. Komatz Construction Co., Inc., et al., Crim. No. 85-40007 (D.S.D. 1985),
however, the court relied upon the Government's affidavit that it had gained no information other
than that made publicly available and had had no access to defendants' immunized testimony in a
concurrent state investigation and denied the defendants' motions to dismiss.(183)

e. Who must testify at the taint hearing

The Government is not required to call each prospective trial witness at a taint hearing. The
defense in United States v. Smith, 508 F. Supp. 1418 (D.N.J. 1984), argued that the Government
should do so; however, the court rejected that argument: "The focus of a Kastigar hearing is
necessarily on the federal investigators and prosecutors and the question of their use or derivative
use of defendant's immunized testimony."(184) This reasoning should apply as well when the
witness' immunized testimony was given before a federal grand jury.

f. Timing of the hearing

The timing of the taint hearing is discretionary with the trial court; the resolution of the immunity
issue may be "at a pre-trial hearing, during trial or at a post-trial hearing or 'a combination of
these alternatives.'"(185) Some courts, however, read Kastigar to require a pre-trial hearing.(186) An
argument for a post-trial hearing is that the court can compare the evidence admitted at trial with
the subject matter of the defendant's immunized testimony. The court in United States v.
Deerfield Specialty Papers, Inc., 501 F. Supp. 796, 803 (E.D. Pa. 1980), ruled that the Kastigar
hearing should be deferred until the completion of the trial "notwithstanding the suggestion made
in Kastigar that such matters should be considered on a pretrial basis." The court set forth a
number of factors to be considered: 1) whether the Government will have to expose its entire
case during the hearing, 2) whether fragmentation of the trial will occur, 3) whether a delay in
the trial will be required, and 4) whether and to what degree prejudice will accrue.(187)

If there is a problem of extensive pre-trial publicity arising from a Kastigar hearing, it has been
suggested that the court hold the taint hearing in camera.(188)

6. Use of the grand jury which heard immunized testimony to indict

Some courts, most notably the Second Circuit in United States v. Hinton, 543 F.2d 1002 (2d
Cir.), cert. denied, 429 U.S. 980 (1976), have held as a matter of law, and fundamental fairness,
that an indictment voted by the same grand jury that heard the witness' immunized testimony
must be dismissed.(189) Other circuits have declined to follow such a flat prohibition. In United
States v. Zielezinski, 740 F.2d 727 (9th Cir. 1984), the court pointed out that Hinton, on its facts,
was an extreme case and that its rule "was not constitutionally compelled."(190) The court went on
to say, however, that the better course was for a prosecutor to present the indictment to a new,
untainted grand jury to "avoid the appearance of impropriety".(191)

Even in the Second Circuit, there are recognized exceptions to the Hinton rule. In United States
v. Tucker, 495 F. Supp. 607 (E.D.N.Y. 1980), the court made an exception to the "same grand
jury" prohibition when at the time of the witness' first appearance, the grand jury was
investigating other substantive offenses and the witness was asked no questions related to the
offenses charged. In addition, Tucker recognized an exception when the charge against the
witness is perjury or making false statements to the grand jury.

The prudent course for the attorney who wants to present an indictment charging a person who
has testified under a grant of immunity, formal or informal, is to make that presentation to a
different grand jury from that which heard the immunized testimony.
 FOOTNOTES

1. United States v. White, 322 U.S. 694, 698-99 (1944); see also In re Steinberg, 837 F.2d 527
(1st Cir. 1988). For a detailed discussion of the application of the 5th Amendment to the
production of documents, see Ch. III § C.2.c.

2. Fisher v. United States, 425 U.S. 391, 408 (1976).

3. Wilson v. United States, 221 U.S. 361 (1911).

4. Braswell v. United States, 487 U.S. 99 (1988); Hair Indus. Ltd. v. United States, 340 F.2d 510
(2d Cir.), cert. denied, 381 U.S. 950 (1965).

5. United States v. Richardson, 469 F.2d 349 (10th Cir. 1972).

6. Reamer v. Beall, 506 F.2d 1345 (4th Cir. 1974), cert. denied, 420 U.S. 955 (1975).

7. Wilson v. United States, 221 U.S. at 378-79, Wheeler v. United States, 226 U.S. 478 (1913);
Grant v. United States, 227 U.S. 74 (1913).

8. United States v. O'Henry's Film Works, Inc., 598 F.2d 313 (2d Cir. 1979); In re Custodian of
Records of Variety Distributing, 927 F.2d 244 (6th Cir. 1991).

9. Braswell v. United States, 487 U.S. 99 (1988). However, the act of production may not be
used against the custodian in a subsequent criminal prosecution of the custodian. 487 U.S. at
118.

10. Curcio v. United States, 354 U.S. 118 (1957).

11. Bellis v. United States, 417 U.S. 85 (1974); United States v. Allshouse, 622 F.2d 53 (3d Cir.
1980); United States v. Alderson, 646 F.2d 421 (9th Cir. 1981).

12. United States v. White, 322 U.S. 694, 701 (1944) (denying the 5th Amendment privilege to
an unincorporated labor union); see also Rogers v. United States, 340 U.S. 367 (1951) (treasurer
of Communist Party could not assert privilege as to books and records of party); In re Grand Jury
Proceedings, 633 F.2d 754 (9th Cir. 1980) (trust records are not personal records of trustee); In
re Witness Before the Grand Jury, 546 F.2d 825 (9th Cir. 1976) (no expectation of privacy as to
the records of investment-limited partnerships or joint ventures).

13. The act of producing records required to be kept by law or disclosed to a public agency is not
privileged. United States v. Grosso, 390 U.S. 62 (1968).

14. See Curcio v. United States, 354 U.S. 118 (1957).

15. See Fisher v. United States, 425 U.S. 391, 411 (1976) (existence and location of documents
was a "foregone conclusion").
16. See U.S.A.M. 9-23.215 for more information regarding "act of production" immunity for
sole proprietors.

17. See Pillsbury Co. v. Conboy, 459 U.S. 248 (1983) (deponent's testimony could not be
compelled over the assertion of his privilege without a grant of immunity even though he was to
be questioned about his previously immunized testimony before a grand jury); see also In re
Corrugated Container Antitrust Litig., 620 F.2d 1086 (5th Cir. 1980), cert. denied, 449 U.S. 1102
(1981).

18. In re Gault, 387 U.S. 1, 47 (1976).

19. United States v. Gomez, 553 F.2d 958 (5th Cir. 1977).

20. United States v. Frascone, 299 F.2d 824 (2d Cir. 1962).

21. United States v. Seewald, 450 F.2d 1159 (2d Cir. 1971), cert. denied, 405 U.S. 978 (1972).

22. See Hoffman v. United States, 341 U.S. 479, 486-87 (1951) (privilege validly invoked if any
possibility that response will be self-incriminating); United States v. Neff, 615 F.2d 1235, 1240-
41 (9th Cir.) (privilege invalidly invoked when defendant declined to answer questions on tax
return because of desire to protest taxes, not fear of self-incrimination), cert. denied, 447 U.S.
925 (1980).

23. Hoffman v. United States, 341 U.S. 479, 486 (1951).

24. Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964).

25. Marchetti v. United States, 390 U.S. 39, 53 (1968); In re Folding Carton Antitrust Litig., 609
F.2d 867 (7th Cir. 1979); United States v. Neff, 615 F.2d 1235, 1239 (9th Cir.), cert. denied, 447
U.S. 925 (1980).

26. Glasser v. United States, 315 U.S. 60, 80 (1942); Eastern States Lumber Ass'n v. United
States, 234 U.S. 600, 612 (1914).

27. United States v. Vega, 860 F.2d 779, 792-95 (7th Cir. 1988); Nye and Nissen v. United
States, 168 F.2d 846, 852 (9th Cir. 1948), aff'd, 366 U.S. 613 (1949). This is sometimes referred
to as the "slight evidence" test.

28. See, e.g., In re Grand Jury Subpoena of Flanagan, 691 F.2d 116 (2d Cir. 1982); In re Baird,
668 F.2d 432 (8th Cir.), cert. denied, 456 U.S. 982 (1982).

29. Hoffman v. United States, 341 U.S. at 486.

30. In re Horowitz, 482 F.2d 72 (2d Cir.), cert. denied, 414 U.S. 867 (1973); In re Morganroth,
718 F.2d 161 (6th Cir. 1983).
31. See U.S.A.M 1-11.220.

32. United States v. Neff, 615 F.2d 1235, 1238 (9th Cir.), cert. denied, 447 U.S. 925 (1980).

33. United States v. Pilnick, 267 F. Supp. 791 (S.D.N.Y. 1967).

34. See Maffie v. United States, 209 F.2d 225 (1st Cir. 1954); In re Grand Jury Empanelled
March 19, 1980, 680 F.2d 327 (3d Cir. 1982), modified, 465 U.S. 605 (1984); Marcello v.
United States, 196 F.2d 437 (5th Cir. 1952).

35. Hoffman v. United States, 341 U.S. 479 (1951).

36. Ordinarily, a target's assertion of the privilege should not be challenged before the grand
jury. See U.S.A.M. 9-11.154.

37. Courts are often hesitant to determine that a waiver has occurred. See, e.g., In re Hitchings,
850 F.2d 180 (4th Cir. 1988).

38. Rogers v. United States, 340 U.S. 367, 373 (1951).

39. Id. at 374.

40. United States v. Miranti, 253 F.2d 135, 139 (2d Cir. 1958).

41. In re Morganroth, 718 F.2d 161, 165 (6th Cir. 1983).

42. Carter v. Kentucky, 450 U.S. 288 (1981).

43. Counselman v. Hitchcock, 142 U.S. 547 (1892), appeared to hold that use immunity would
violate the 5th Amendment.

44. Reprinted in ATD Manual at II-80 to 82.

45. 406 U.S. at 460.

46. Culpable witnesses often have an incentive to testify as little as possible about crimes in
which they were involved, to minimize the public's and the prosecutor's knowledge of their
involvement and to avoid possible retribution by other culpable individuals.

47. It is the job of the witness' counsel, not the prosecutor, to explain the immunity statute to the
witness. When dealing with inexperienced or unsophisticated counsel, it may be useful for the
Division staff to summarize the statute's provisions for counsel. In addition, the requirements of
the immunity statute should be described to the witness at the beginning of his testimony. See §
G., infra.
48. See United States v. Dynalectric Co., 859 F.2d 1559 (11th Cir. 1988) (substantive offense),
cert. denied, 490 U.S. 1006 (1989) and United States v. Paxson, 861 F.2d 730 (D.C. Cir. 1988)
(perjury).

49. New Jersey v. Portash, 440 U.S. 450 (1979); United States v. Pantone, 634 F.2d 716, 722 (3d
Cir. 1980)

50. See United States v. Freed, 401 U.S. 601 (1971); Mackey v. United States, 401 U.S. 667
(1971); Glickstein v. United States, 222 U.S. 139 (1911).

51. See Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964); Ullmann v. United States, 350 U.S.
422 (1956); Reina v. United States, 364 U.S. 507 (1960); Adams v. Maryland, 347 U.S. 179
(1954). Some courts have held that the possibility of prosecution under a foreign government's
laws is so remote that it is an insufficient basis to justify a refusal to testify after the grant of
immunity. See In re Tierney, 465 F.2d 806 (5th Cir. 1972), cert. denied, 410 U.S. 914 (1973).

52. Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964); United States v. McDaniel, 449 F.2d
832 (8th Cir. 1971), cert. denied, 405 U.S. 992 (1972).

53. 28 C.F.R. § 0.175.

54. The standards are set out and discussed at length in the U.S. Attorneys' Manual 9-23.210 and
Division attorneys should consult them as needed.

55. Procedures for obtaining a proffer are set out in § H., infra.

56. See Ch. IX § E.2.b.

57. See Departmental Order OBD 2110.2; U.S.A.M. 9-21.000, et seq.; Victim and Witness
Protection Act of 1982, Pub. L. No. 97-291, dated October 12, 1982.

58. 18 U.S.C. §§ 1510, 1512, 1515.

59. Attorneys must check local practice and procedure. Some judges and U.S. Attorneys are
unwilling to grant prospective immunity.

60. See Memorandum Opinion in U.S. v. Bobby J. Surface, Crim. No. 82-0114-A (E.D. Va.--
Alexandria, June 25, 1982) attached to Memorandum from Joseph H. Widmar, Director of
Operations, to all Chiefs, dated July 6, 1982.

61. Since the Department's distinction between target and non-target witnesses appears to
conform with the commentary to ABA Standard 3-3.6(e), which refers only to "potential
defendants" and not to all witnesses, Department policy would appear to be consistent with ABA
Standard 3-3.6(e).

62. See U.S.A.M. 9-11.151, Ch. III § A.3.c.

63. The significant amount of lead time is necessitated by the Criminal Division. See discussion
in § E.3., infra.

64. The latter approach has potential difficulties. See discussion of Prospective Immunity, in
§ D.3., supra, and Memorandum from Joseph H. Widmar to all Chiefs, dated July 6, 1982.

65. See U.S.A.M. 9-23.130.

66. See § I. for a discussion of informal immunity.

67. Under Division practice, the witness has to be re-immunized in the second district, because
the old immunity order from a judge in a different district is probably not valid in the second
district.

68. See U.S.A.M. 9-23.120.

69. It is recommended that you closely follow the forms used by the local U.S. Attorney's Office
unless there is some compelling reason to modify them.

70. See also § D.3., above, for a discussion of some of the problems that may arise with the use
of prospective immunity.

71. In re Kilgo, 484 F.2d 1215, 1219 (4th Cir. 1973); see S. Rep. No. 617, 91st Cong., 1st Sess.
145 (1969), H.R. Rep. No. 1549, 91st Cong., 2d Sess. 43 (1970); see also Bursey v. United
States, 466 F.2d 1059 (9th Cir. 1972).

72. As noted above, some judges may also ask to see the Criminal Division clearance memo.

73. If the papers are for prospective immunity and the Division attorney has developed a good
working relationship with the U.S. Attorney's Office, the AUSA assigned as the Division's
liaison may be willing to present the pleadings to the court on staff's behalf well in advance of
the session.

74. 18 U.S.C. § 6003(a), (b); see United States v. Pacella, 622 F.2d 640 (2d Cir. 1980); Ryan v.
C.I.R., 568 F.2d 531, 539-40 (7th Cir. 1977), cert. denied, 439 U.S. 820 (1978).

75. See, e.g., Goldberg v. United States, 472 F.2d 513, 514 (2d Cir. 1973)

76. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959).

77. See Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979).

78. See Ch. II § H.2.; In re Bianchi, 542 F.2d 98, 100 (1st Cir. 1976); Bast v. United States, 542
F.2d 893, 895 (4th Cir. 1976); United States v. Fitch, 472 F.2d 548, 549 (9th Cir.), cert. denied,
412 U.S. 954 (1973).
79. United States v. DiMauro, 441 F.2d 428 (8th Cir. 1971); see Proving Federal Crimes at 3-15
to 17.

80. See § I.3.b., infra.

81. See sample letter attached as Appendix V-I.

82. United States v. Carter, 454 F.2d 426 (4th Cir. 1971), cert. denied, 417 U.S. 933 (1974).

83. A trial witness who previously received formal immunity before the grand jury does not
require Criminal Division clearance before testifying with either formal or informal immunity at
trail.

84. A sample letter is attached as Appendix V-2.

85. See Ch. IX for a more detailed discussion of plea agreements.

86. See United States v. (Under Seal), 714 F.2d 347 (4th Cir.) (appellant compelled to testify
before grand jury concerning brother's suspected bid-rigging), cert. denied, 464 U.S. 978 (1983).

87. U.S.A.M. 1-11.214.

88. See Appendix V-3.

89. See Ch. III § C.1.c. and United States v. Byrd, 750 F.2d 585 (7th Cir. 1984), for a discussion
of the two marital privileges.

90. Trammel v. United States, 445 U.S. 40 (1980).

91. United States v. Picciandra, 788 F.2d 39 (1st Cir.), cert. denied, 479 U.S. 847 (1986); United
States v. Estes, 793 F.2d 465 (2d Cir. 1986); United States v. Ammar, 714 F.2d 238, 257-58 (3d
Cir.), cert. denied, 464 U.S. 936 (1983); United States v. Broome, 732 F.2d 363 (4th Cir.), cert.
denied, 469 U.S. 855 (1984); United States v. Mendoza, 574 F.2d 1373 (5th Cir.), cert. denied,
439 U.S. 988 (1978); United States v. Sims, 755 F.2d 1239 (6th Cir.), cert. denied, 473 U.S. 907
(1985); United States v. Kahn, 471 F.2d 191 (7th Cir. 1972), rev'd on other grounds, 415 U.S.
143 (1974); United States v. Price, 577 F.2d 1356 (9th Cir. 1978), cert. denied, 439 U.S. 1068
(1979).

92. See also In re Grand Jury Subpoena United States, 755 F.2d 1022 (2d Cir.), vacated as moot
sub nom. United States v. Koecher, 475 U.S. 133 (1986).

93. United States v. Van Drunen, 501 F.2d 1393 (7th Cir.), cert. denied, 419 U.S. 1091 (1974);
United States v. Trammel, 583 F.2d 1166 (10th Cir. 1978), aff'd on other grounds, 445 U.S. 40
(1980).

94. See Ch. III § C.1.g., supra.

95. See Ch. III § G. for the text of the relevant contempt statutes and for a discussion of contempt
in the context of subpoena enforcement.

96. See United States v. Petito, 671 F.2d 68 (2d Cir.), cert. denied, 459 U.S. 824 (1982).

97. Where non-frivolous defenses are alleged, an evidentiary hearing is required, as discussed
below.

98. United States v. Wilson, 421 U.S. 309, 317 n.9 (1975), quoting Shillitani v. United States,
384 U.S. 364, 371 n.9 (1966).

99. In re Grand Jury Proceedings, Harrisburg Grand Jury, 658 F.2d 211, 217-18 (3d Cir. 1981).

100. In re Grand Jury Investigation, 600 F.2d 420 (3d Cir. 1979).

101. United States v. North, 621 F.2d 1255, 1263 (3d Cir.), cert. denied, 449 U.S. 866 (1980).

102. Id. at 1261 n.9, citing United States v. Wilson, 421 U.S. at 317 n.9.

103. In re Grand Jury Proceedings Harrisburg Grand Jury, 658 F.2d at 218.

104. MacNeil v. United States, 236 F.2d 149 (1st Cir.), cert. denied, 352 U.S. 912 (1956).

105. Cheff v. Schnackenberg, 384 U.S. 373, 380 (1966); see also United States v. Twentieth
Century Fox, 882 F.2d 656 (2d Cir. 1989) (organization has a right to a jury trial when fine
imposed for criminal contempt exceeds $100,000), cert. denied, 493 U.S. 1021 (1990).

106. United States v. Sternman, 415 F.2d 1165 (6th Cir. 1969), cert. denied, 397 U.S. 907
(1970).

107. United States v. Liddy, 510 F.2d 669, 672-73 (D.C. Cir. 1974), cert. denied, 420 U.S. 980
(1975).

108. Harris v. United States, 382 U.S. 162, 167 (1965).

109. In re Sadin, 509 F.2d 1252 (2d Cir. 1975); In re Grand Jury Investigation (Bruno), 545 F.2d
385 (3d Cir. 1976); United States v. Alter, 482 F.2d 1016 (9th Cir. 1973).

110. United States v. Alter, 482 F.2d 1016, 1023-24 (9th Cir. 1973).

111. In re Sadin, 509 F.2d 1252, 1255-56 (2d Cir. 1975).

112. Such an order would be lacking if the witness were appearing pursuant to informal
immunity.
113. United States v. Alter, 482 F.2d 1016 (9th Cir. 1973); see Gelbard v. United States, 408
U.S. 41 (1972).

114. In re Grand Jury Investigation (Bruno), 545 F.2d 385 (3d Cir. 1976).

115. See United States v. Coplon, 339 F.2d 192 (6th Cir. 1964).

116. See U.S.A.M. 9-23.214.

117. United States v. Heldt, 668 F.2d 1238, 1282 (D.C. Cir. 1981), cert. denied, 456 U.S. 926
(1982); United States v. Davis, 623 F.2d 188, 192 (1st Cir. 1980); United States v. Berrigan, 482
F.2d 171 (3d Cir. 1973); United States v. Tindle, 808 F.2d 319, 325 (4th Cir. 1986), cert. denied,
490 U.S. 1114 (1989); United States v. Thevis, 665 F.2d 616, 638 (5th Cir. Unit B), cert. denied,
456 U.S. 1008 (1982); United States v. Pennell, 737 F.2d 521, 526 (6th Cir. 1984), cert. denied,
469 U.S. 1158 (1985); United States v. Taylor, 728 F.2d 930, 934 (7th Cir. 1984); United States
v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977); United States v. Mendia, 731 F.2d 1412, 1414
(9th Cir.), cert. denied, 469 U.S. 1035 (1984); United States v. Chalan, 812 F.2d 1302, 1310
(10th Cir. 1987).

118. Kastigar v. United States, 406 U.S. 441, 461 (1972).

119. See United States v. Turkish, 623 F.2d 769, 775-76 (2d Cir. 1980), cert. denied, 449 U.S.
1077 (1981); United States v. Thevis, 665 F.2d at 639-40; United States v. Pennell, 737 F.2d at
527-28; United States v. Gottesman, 724 F.2d 1517, 1523-24 (11th Cir. 1984).

120. See, e.g., United States v. Todaro, 744 F.2d 5, 8-10 (2d Cir. 1984) (prosecutorial
overreaching to force the witness to assert the 5th Amendment), cert. denied, 169 U.S. 1213
(1985); United States v. Taylor, 728 F.2d 930, 935-36 (7th Cir. 1984) (clear abuse of discretion,
intentional distortion of fact-finding process); United States v. Lord, 711 F.2d 887, 891-92 (9th
Cir. 1983) (prosecutorial misconduct that prevents the witness from testifying).

121. See United States v. Davis, 623 F.2d at 193; United States v. Thevis, 665 F.2d at 640-41;
United States v. Sawyer, 799 F.2d 1494, 1506-07 (11th Cir. 1986), cert. denied, 479 U.S. 1069
(1987); see also United States v. Gravely, 840 F.2d 1156, 1160 (4th Cir. 1988) (no requirement
for Government to provide immunity to defense witnesses unless there is a "decisive showing of
prosecutorial misconduct or overreaching").

122. United States v. Pennell, 737 F.2d at 526-27; United States v. Chalan, 812 F.2d at 1310.

123. See also rUnited States v. Herman, 589 F.2d 1191, 1204 (3d Cir. 1978), cert. denied, 441
U.S. 913 (1980).

124. 615 F.2d at 972.

125. Id. at 973; United States v. Nolan, 540 F. Supp. 234 (W.D. Pa. 1982), is the only reported
decision in which a court granted immunity under the Smith test.
126. United States v. Shandell, 800 F.2d 322, 324 (2d Cir. 1986).

127. Id.

128. 406 U.S. at 453.

129. A witness derives no protection by way of the grant of immunity for criminal acts
committed subsequent to the date of the immunized testimony. United States v. Quatermain,
Drax, 613 F.2d 38, 42 (3d Cir.), cert. denied, 446 U.S. 954 (1980); United States v. Phipps, 600
F. Supp. 830 (D. Md. 1985). Only if the subsequent act is part of the criminal occupation or
conspiracy as to which the testimony is compelled will that act be protected. See Marchetti v.
United States, 390 U.S. 39, 54 (1968).

130. 406 U.S. at 458-59.

131. United States v. Apfelbaum, 445 U.S. 115, 124 (1980).

132. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983).

133. The statute protects the witness from prosecution for prior perjury or false statements. See
United States v. Soto, 574 F. Supp. 986, 991-92 (D. Conn. 1983), and cases cited therein.

134. The statute may protect the witness against use of allegedly perjurious or false testimony in
proceedings other than a prosecution. In United States v. Glover, 608 F. Supp. 861 (S.D.N.Y.
1985), aff'd, 779 F.2d 39 (2d Cir.), cert. denied, 475 U.S. 1026 (1986), the Government could not
use alleged false testimony given by the witness under immunity at another's trial in the
sentencing proceedings against the witness. In that case, however, the sentencing court had not
observed the witness giving the testimony. In United States v. Martinez-Navarro, 604 F.2d 1184
(9th Cir. 1979), cert. denied, 444 U.S. 1084 (1980), the court which had heard testimony did
consider immunized false testimony at the sentencing.

135. United States v. Gregory, 611 F. Supp. 1033, 1037 (S.D.N.Y. 1985).

136. Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 (1964); see also United v. States v.
Helmsley, F.2d (2d Cir. 1991).

137. Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964); see also United States v. Nemes, 555
F.2d 51, 53 (2d Cir. 1977).

138. In re Grand Jury Proceedings, No. 84-4 (Hartmann), 757 F.2d 1580 (5th Cir. 1985), and
cases cited therein.

139. See § I., supra.

140. See Kastigar v. United States, 406 U.S. 441 (1972); United States v. Kurzer, 534 F.2d 511,
513 n.3 (2d Cir. 1976); see also United States v. Lipkis, 770 F.2d 1447 (9th Cir. 1985) (informal
immunity grant immunized statements given at a December, 1980 interview but not statements
made voluntarily at a May, 1980 interview, even though the interviews covered the same subject
matter).

141. See United States v. Dornau, 491 F.2d 473 (2d Cir.) (witness testified voluntarily under the
former Bankruptcy Act which explicitly granted only use immunity), cert. denied, 419 U.S. 872
(1974).

142. But see United States v. Gutierrez, 696 F.2d 753 (10th Cir. 1982), cert. denied, 461 U.S.
909 (1983), where a witness voluntarily made a statement in return for protection from
prosecution for those transactions about which she testified. The court found that she was not
granted the minimal constitutional protection, stating that "[b]ecause [the witness], with full
knowledge of her rights, voluntarily, agreed to make a statement, the constitutional principles
enunciated in Kastigar v. United States [citations omitted], are inapplicable to her claim." 696
F.2d at 756 n.6.

143. At the time the Brennick case arose, the Bankruptcy Act granted automatic use and, in the
opinion of some courts, derivative use, immunity. The Act has been amended to require that an
immunity order under 18 U.S.C. § 6001, et seq. be sought.

144. But see United States v. Rice, 421 F. Supp. 871 (E.D.Ill. 1976), wherein the court in the
particular circumstances of that case did grant pre-indictment relief.

145. No such authorization is necessary where the witness was granted act of production
immunity only. See Ch. III § C.2.c.

146. Kastigar v. United States, 406 U.S. 441, 460 (1972).

147. New Jersey v. Portash, 440 U.S. 450 (1979); cf. United States v. Pantone, 634 F.2d 716,
722-23 (3d Cir. 1980) (following Portash that a defendant cannot be impeached by his own
immunized grand jury testimony).

148. See United States v. Kurzer, 534 F.2d 511 (2d Cir. 1976).

149. 406 U.S. at 459.

150. Id. at 460.

151. See also United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983); United States v. Carpenter,
611 F. Supp. 768 (N.D. Ga. 1985).

152. Apparently, at the time the witness testified and at the time the U.S. Attorney read the
transcript, neither the State's Attorney nor the U.S. Attorney was aware of the automatic grant of
statutory immunity.

153. 482 F.2d at 311.

154. Id. at 311.

155. Id. at 312; see also In re Grand Jury Proceedings, 497 F. Supp. 979 (E.D. Pa. 1980).

156. See United States v. Mariani, 851 F.2d 595 (2d Cir. 1988), cert. denied, 490 U.S. 1011
(1989); United States v. Pantone, 634 F.2d 716 (3d Cir. 1980); United States v. Jones, 542 F.2d
186 (4th Cir.), cert. denied, 426 U.S. 922 (1976); United States v. Crowson, 828 F.2d 1427 (9th
Cir. 1987), cert. denied, 488 U.S. 831 (1988).

157. See United States v. Mariani, 851 F.2d supra; United States v. Byrd, 765 F.2d 1524 (11th
Cir. 1985).

158. 441 U.S. at 458-59; see also discussion in United States v. Apfelbaum, 445 U.S. 115, 124-
27 (1980), in which the Supreme Court expressly states that for protection of the grant of
immunity to be "'coextensive' with . . . the Fifth Amendment, it need not treat the witness as if he
had remained silent."

159. 765 F.2d at 1530.

160. Id. at 1530-31.

161. See United States v. Jones, 590 F. Supp. 233 (N.D. Ga. 1984).

162. United States v. Catalano, 491 F.2d 268 (2d Cir.), cert. denied, 419 U.S. 825 (1974); United
States v. Pantone, 634 F.2d 716 (3d Cir. 1980); United States v. Zielezinski, 740 F.2d 727 (9th
Cir. 1984); United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985).

163. 378 U.S. at 79 n.18.

164. 406 U.S. at 460.

165. United States v. Dynalectric Co., 859 F.2d 1559, 1578 (11th Cir. 1988), cert. denied, 490
U.S. 1006 (1989).

166. Id. at 1580.

167. Id.

168. See also United States v. Komatz Construction Co., Inc., et al., Crim. No. 85-40007 (D.S.D.
1985); United States v. Thanasouras, 368 F. Supp. 534, 537 (N.D. Ill. 1973); cf. United States v.
Lipkis, 770 F.2d 1447 (9th Cir. 1985).

169. In United States v. DeDiego, 511 F.2d 818 (D.C. Cir. 1975), the court held that the district
court had no discretion to dismiss the indictment without giving the Government the opportunity
to prove lack of taint and that the failure to hold an evidentiary hearing was "clear error."
511 F.2d at 822 n.4. The court in United States v. Zielezinski, 740 F.2d 727 (9th Cir. 1984),
remanded for an evidentiary hearing on the basis of the court's supervisory power and, therefore,
did not reach the issue of whether a taint hearing was constitutionally required. In United States
v. Tantalo, 680 F.2d 903, 908 (2d Cir. 1982), the court suggests that the due process clause of the
Constitution demands an evidentiary hearing on the issue of the use of the witness' immunized
testimony and held that a hearing is required. Cf. United States v. Nemes, 555 F.2d 51, 55 (2d
Cir. 1977); United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983).

170. Kastigar v. United States, 406 U.S. 441 (1972).

171. See United States v. Catalano, 491 F.2d 268 (2d Cir.), cert. denied, 419 U.S. 825 (1974);
United States v. McDaniel, 482 F.2d 305 (8th Cir. 1973).

172. United States v. Romano, 583 F.2d 1, 7 (1st Cir. 1978); United States v. McDonnel, 550
F.2d 1010 (5th Cir.), cert. denied, 434 U.S. 835 (1977); United States v. Zielezinski, 740 F.2d
727, 734 (9th Cir. 1984); United States v. Dynalectric Co., 859 F.2d 1559, 1578 (11th Cir. 1988);
see also United States v. Smith, 580 F. Supp. 1418 (D.N.J. 1984) (citing United States v.
Hossbach, 518 F. Supp. 759 (E.D. Pa. 1980)).

173. United States v. Romano, 583 F.2d 1, 7 (1st Cir. 1978); United States v. Kurzer, 534 F.2d
511, 517 (2d Cir. 1976); United States v. Dynalectric, 859 F.2d at 1578.

174. United States v. Romano, 538 F.2d supra; United States v. Provenzano, 620 F.2d 985, 1005
(3d Cir.), cert. denied, 449 U.S. 899 (1980); United States v. Jones, 542 F.2d 186, 199 (4th Cir.),
cert. denied, 426 U.S. 922 (1976); United States v. Shelton, 669 F.2d 446, 464 (7th Cir.), cert.
denied, 456 U.S. 934 (1982); United States v. Rogers, 722 F.2d 557 (9th Cir. 1983), cert. denied,
469 U.S. 835 (1984); United States v. Dynalectric, 859 F.2d at 1578.

175. See, however, discussion of United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985), in
§ 0.4.a, supra and United States v. Helmsley, F.2d (2d Cir. 1991).

176. See United States v. First W. State Bank of Minot, N.D., 491 F.2d 780, 783 (8th Cir.)
(Federal Bureau of Investigation reports made prior to the date of the testimony and the minutes
of two prior grand jury sessions were "independent sources"), cert. denied, 419 U.S. 825 (1974);
see also United States v. Lipkis, 770 F.2d 1447 (9th Cir. 1985).

177. See also United States v. Willis, 583 F.2d 203 (5th Cir. 1978); United States v. Byrd, 765
F.2d 1524 (11th Cir. 1985). But see United States v. Carpenter, 611 F. Supp. 768 (N.D. Ga.
1985).

178. See United States v. Beachner Constr. Co., 538 F. Supp. 718 (D. Kan. 1982).

179. See United States v. Catalano, 491 F.2d supra; United States v. Pantone, 634 F.2d 716, 722
(3d Cir. 1980); United States v. Jones, 542 F.2d 186 (4th Cir.), cert. denied, 426 U.S. 922 (1976);
United States v. Dynalectric Co., 859 F.2d 1559, 1579-80 (11th Cir. 1988).
180. See United States v. Kurzer, 534 F.2d 511, 517 (2d Cir. 1976); United States v. Beachner,
583 F. Supp. supra; United States v. Jones, 590 F. Supp. 233 (N.D. Ga. 1984).

181. Where the prosecutor is aware that the proposed defendant has testified under immunity, the
prosecutor can segregate the immunized testimony from other sources of evidence. Where an
attorney is unaware that he read testimony that was immunized, this segregation may be almost
impossible. See United States v. McDaniel, 482 F.2d 305, 311 (8th Cir. 1973). But see United
States v. Byrd, 765 F.2d 1524 (11th Cir. 1985).

182. 580 F. Supp. at 1425.

183. See also United States v. Helmsley, F.2d (2d Cir. 1991).

184. 580 F. Supp. at 1431 n.11; see also United States v. Romano, 583 F.2d 1 (1st Cir. 1978);
United States v. Seiffert, 357 F. Supp. 801 (S.D. Tex. 1973), aff'd, 501 F.2d 974 (5th Cir. 1974).

185. United States v. DeDiego, 511 F.2d 818, 824 (D.C. Cir. 1975); United States v. Tantalo,
680 F.2d 903, 909 (2d Cir. 1982); United States v. Jones, 542 F.2d 186, 198 (4th Cir.), cert.
denied, 426 U.S. 922 (1976).

186. United States v. First W. State Bank of Minot, N.D., 491 F.2d 780 (8th Cir.), cert. denied,
419 U.S. 825 (1974); United States v. Smith, 580 F. Supp. 1418, 1424-25 (D.N.J. 1984).

187. United States v. First W. State Bank of Minot, N.D., 491 F.2d 780 (8th Cir.), cert. denied,
419 U.S. 825 (1974); United States v. Smith, 580 F. Supp. 1418, 1424-25 (D.N.J. 1984).

188. See United States v. DeDiego, 511 F.2d 818, 824 (D.C. Cir. 1975).

189. See also United States v. Bloom, 586 F. Supp. 939 (S.D. Fla. 1984).

190. Id. at 729; see also United States v. Garrett, 797 F.2d 656 (8th Cir. 1986).

191. Id. at 733.

TABLE OF CONTENTS

VI. Multiple Representation/Conflicts of Interest

A. Introduction
 B. The Law Regarding Multiple Representation
1. Leading Cases
2. Code of Professional Responsibility
3. Waiver and Other Defenses
C. Resolving Conflicts of Interest
D. Appeals
1. Appeals by Defense Counsel
2. Appeals by the Government

VI. MULTIPLE REPRESENTATION/CONFLICTS OF INTEREST

A. Introduction

Multiple or dual representation (i.e., when a lawyer or law firm represents more than one client
in the same case or investigation) occurs frequently in antitrust grand jury investigations and may
lead to conflicts of interest. Conflicts may arise when an attorney represents a corporation and all
or several individuals employed by the corporation. Not infrequently, more than one of a target
company's officers are also targets and represented by the same lawyer. Even when each target
has a different lawyer, the target company may pay all the legal fees. Occasionally, two
individual targets from different companies are represented by the same lawyer or law firm, and
less frequently, there may be a conflict between a lawyer's present client and his former client
who are both subjects or targets of the same investigation.(1)

Multiple representation and attendant conflicts of interest create problems for the Government,
the lawyer, the clients and the court. Among the problems created by multiple representation are
improper impediments to the grand jury investigation by inhibiting cooperation that might
otherwise be forthcoming, and violations of an attorney's ethical obligations to his client and to
the court. Finally, and perhaps most significantly, since "[n]o man can serve two masters" (Matt.
6:24), an attorney serving two clients may favor one at the expense of another.

Initially, multiple representation may impede the grand jury investigation by rendering
cooperation less likely. For example, under the immunity statute, 18 U.S.C. § 6003, the
testimony of a witness may be compelled where it "may be necessary to the public interest".
Commonly, a prosecutor relies on a proffer of the prospective witness' testimony to make this
public interest determination based on the importance of the proffered testimony and the relative
culpability of the witness, among other factors. But if an attorney is representing multiple clients
some of whom are targets of the investigation, he might be unwilling to advise his clients to
cooperate with the Government by proffering testimony in the hope of obtaining immunity. As a
result, the prosecutor will have to determine whether to grant immunity without the benefit of a
proffer. Thus, those with greater culpability may receive immunity and escape prosecution.(2)

Multiple representation inhibits grand jury cooperation in other ways and also creates an ethical
dilemma for defense counsel that may result in one client's interests being favored over another's.
Although most employees view the company's interest as their own, this may not always be true.
For example, if a non-target employee is represented by his employer's lawyer, the lawyer may
not advise the employee to consider cooperation with the Government as an option, and the
employee may be reluctant to request another attorney, who might offer such advice, if he thinks
he will have to pay the fee. Thus, the Government loses a cooperative witness.

Even where the employee has criminal exposure, his interests may be sacrificed for those of his
employer as a result of dual representation. For example, a middle level corporate employee
(e.g., chief estimator or branch manager) might become a target of an investigation but also
might be able to avoid prosecution by agreeing to cooperate with the Government in exchange
for a grant of immunity. The defense lawyer representing this individual as well as the target
company or other targets is faced with a dilemma: cooperation with the Government is preferable
to being prosecuted from the individual's perspective, but that cooperation may enable the
Government to prosecute other clients of the attorney.(3) Under these circumstances, an attorney
simply cannot be expected to provide objective advice to the individual concerning his legal
options. The damage caused by multiple representation is particularly difficult to assess because
the evil frequently "is in what the advocate finds himself compelled to refrain from doing."(4)

B. The Law Regarding Multiple Representation

Resolution of conflict of interest problems resulting from multiple representation turns on the
facts of each case, on the particular jurisdiction where the grand jury is sitting, and on the
individual district judge. Attorney disqualification is within the discretion of the district judge
supervising the grand jury and that decision will not be reversed on appeal in the absence of
abuse.(5) In determining whether to move to disqualify counsel because of multiple
representation, two principal legal sources should be consulted -- the case law and the Model
Code of Professional Responsibility.(6)

1. Leading cases

The case law regarding multiple representation is still evolving and varies from jurisdiction to
jurisdiction. Thus, if a multiple representation problem arises, the law of the particular
jurisdiction should be consulted. Some common principals may be gleaned from the cases,
however, and some representative cases described below may serve as a useful starting point for
researching this problem. In addition, the Supreme Court recently provided some guidance in
conflict of interest cases in Wheat v. United States, 486 U.S. 153 (1988). The principles of
Wheat were applied to multiple representation in the grand jury stage in In re Grand Jury
Proceedings, 859 F.2d 1021 (1st Cir. 1988).

Initially, the Government has standing to request a hearing to determine the existence of a
conflict of interest to protect the integrity of any prosecution,(7) and to fulfill its obligation to
advise the court regarding matters concerning the Code of Professional Responsibility.(8) A
hearing similar to that contemplated under Fed. R. Crim. P. 44(c)(9) should be requested so that
the court can explore any conflict of interest, and if such a conflict exists, the court can inquire
whether the clients knowingly, intelligently and voluntarily have waived their right to conflict-
free representation.(10) To avoid allegations of impropriety or reversal of a disqualification order,
all affected parties and their counsel should be present at the hearing.(11)
A district court is endowed with supervisory powers to regulate the professional conduct of
lawyers who represent clients in criminal trials and the court need not wait for an actual conflict
to arise but may "nip any potential conflict of interest in the bud" by disqualifying the offending
attorney.(12) The Supreme Court's decision in Wheat specifically held that:

a presumption in favor of [defendant's] counsel of choice . . . may be overcome not only by a

demonstration of actual conflict but by a showing of serious potential for conflict. The evaluation of the
facts and circumstances of each case under this standard must be left primarily to the informed
judgment of the trial court.(13)

There is no real consensus on what constitutes an actual or potential conflict sufficient to require
separate counsel. But if a court can be convinced that a conflict is actual, disqualification is
almost assured. For example, in In re Grand Jury Investigation, 436 F. Supp. 818 (W.D. Pa.
1977), aff'd, 576 F.2d 1071 (3d Cir.), cert. denied, 439 U.S. 953 (1978), the supervising court
found an actual conflict where one of the lawyer's clients (some of whom were prospective
defendants) was offered immunity. While the court ordered the immunized witness to obtain
separate counsel, it believed that disqualification was premature with respect to the other non-
immunized witnesses since there was only a potential conflict. In In re Grand Jury Proceedings,
428 F. Supp. 273 (E.D. Mich. 1976), an attorney was disqualified where he represented several
subjects and four non-subjects before the grand jury. The attorney had an actual conflict of
interest in representing the non-subjects (two of whom were offered immunity) because their
testimony could be detrimental to others represented by the attorney. In In re Investigative Grand
Jury Proceedings, 480 F. Supp. 162 (N.D. Ohio 1979), appeal dismissed, 621 F.2d 813 (6th Cir.
1980), cert. denied, 449 U.S. 1124 (1981), the court found an actual conflict where an attorney
represented two individual targets, the target union and 16 subjects of the grand jury
investigation. While no witness had been offered immunity, the court believed that it would be a
burden and cause significant delay to allow each witness to assert the 5th Amendment privilege.
Moreover, if any witness was offered immunity, a conflict was assured.

Some courts have held disqualification proper where there is only a potential conflict. For
example, in In re Gopman, 531 F.2d 262 (5th Cir. 1976), the court disqualified an attorney from
representing a union and several union officials before a grand jury investigating possible
violations of the Labor Management Reporting and Disclosure Act (Landrum-Griffin, 29 U.S.C.
§§ 401, et. seq.). None of the clients was a target although each asserted his 5th Amendment
privilege and refused to produce subpoenaed union documents. The court found that there was a
potential conflict sufficient to warrant disqualification because the union's interest in full
disclosure of the records conflicted with the individual's interest, and thus the lawyer could not
"aggressively and diligently pursue the [union's interest] while advising the union's own officials
on whether to produce the records."(14) In In re Investigation Before Feb. 1977 Lynchburg Grand
Jury, 563 F.2d 652 (4th Cir. 1977), two attorneys (one of whom was a target) represented ten
witnesses, three of whom were targets of the grand jury investigation. The court believed that the
attorneys could not adequately represent the interests of each witness because, while cooperation
with the prosecution might benefit one client, such cooperation might not benefit others. The
court also found that several witnesses were improperly asserting the 5th Amendment privilege
to protect others, rather than themselves. Therefore, the court held that "the public's right to the
proper functioning of a grand jury investigation, and the judge's duty to maintain the integrity of
the grand jury he supervised" justified disqualification.(15) In ordering disqualification, other
courts have similarly relied on the public interest, the need for witness cooperation before the
grand jury, and the need to protect generally the integrity of the grand jury.(16)

Other courts, however, have been less willing to order disqualification in the absence of an actual
conflict.(17) For example, in In re Investigation Before April 1975 Grand Jury, 531 F.2d 600 (D.C.
Cir. 1976) (Washington Post), the court held that an attorney retained by a target union to advise
21 union employees, who were not subjects of the grand jury investigation, was prematurely
disqualified. The court rejected the Government's contention that the investigation was
obstructed because several witnesses made unwarranted assertions of the 5th Amendment
privilege or because the Government was unable to discuss the possibility of immunity with
these witnesses. The court noted that, rather than seeking disqualification, the Government could
and should grant immunity to those witnesses who properly invoke the privilege. The court was
unmoved by the Government's protestations that this procedure would require it to grant blind
immunity. Similarly, in In re Grand Jury Impaneled Jan. 21, 1975, 536 F.2d 1009 (3d Cir. 1976),
the court reversed an order disqualifying an attorney who represented nine non-target witnesses,
each of whom asserted the 5th Amendment privilege. The court held that the multiple
representation and assertions of privilege alone were insufficient to interfere with the witnesses'
choice of counsel. Nor was it persuaded by the Government's argument that multiple
representation interfered with offers of immunity and plea negotiations.(18)

Unfortunately, there seems to be no agreement on when a conflict is actual as opposed to

potential. What some courts consider potential conflicts (e.g., In re Special Feb. 1977 Grand
Jury, 581 F.2d 1262, 1265 (7th Cir. 1978) (only a potential conflict where two of the lawyer's
clients were immunized)), others consider actual conflicts (e.g., In re Grand Jury Proceedings,
428 F. Supp. at 277 (an actual conflict exists where attorney represented four witnesses, two of
whom were offered immunity)).(19) Some points do seem clear, however. Multiple representation
combined with assertions of privilege is probably insufficient to disqualify.(20) Nor is multiple
representation funded by a common source, without more, sufficient to disqualify.(21) However, a
grant of immunity and the possibility that one witness might have information potentially
incriminating of other witnesses represented by the same counsel will probably suffice.(22) The
dividing line on when disqualification will be ordered may well be the strength of the record of
possible adverse consequences flowing from multiple representation.(23)

2. Code of Professional Responsibility

In determining how to handle conflicts of interest before the grand jury, the 1970 Model Code of
Professional Responsibility (Code) also provides guidance on lawyers' duties and obligations to
their clients.(24) Described below are relevant sections of the Code (with citations to equivalent
sections in the New Code) that should be consulted in cases of actual or potential conflicts of
interest.

Canon 1, DR 1-102(A)(5)(25) provides that a lawyer shall not "engage in conduct that is
prejudicial to the administration of justice."(26) Canon 4 provides that a lawyer should preserve
the confidences and secrets of clients,(27) while DR 4-101(B) prohibits the disclosure of the same
to the disadvantage of the client. A lawyer representing multiple clients before the grand jury
risks violating this rule when interviewing and debriefing his client. Canon 4(28) could also be
applied to successive representation because of a lawyer's duty not to disadvantage a former
client with knowledge obtained from that relationship.(29)

With respect to conflicts of interest, Canon 5 is perhaps the most important Canon.(30) It provides
that a "lawyer should exercise independent professional judgment on behalf of a client", and
mandates that a lawyer avoid representing "differing interests", which include "every interest that
will adversely affect either the judgment or loyalty of a lawyer to a client, whether it be a
conflicting, inconsistent, diverse or other interest." In addition, a lawyer may represent two or
more clients only if "it is obvious that he can adequately represent the interest of each" and only
after "the possible effect of such representation" has been fully disclosed to the client.(31) Canon 5
also regulates compensation from third parties. DR 5-107 allows compensation from a third party
only after full disclosure and with the consent of the client.(32) Further, under DR 5-107(b), that
third party may not "direct or regulate [the lawyer's] professional judgment."(33)

A person or organization paying a lawyer has the potential to exert strong pressure against the
independent judgment of the lawyer and "some employers may be interested in furthering their
own economic goals without regard to the professional responsibility of the lawyer to his
client."(34) On the other hand, a lawyer retained by a corporation "owes his allegiance to the
entity" and not to any officer or employee of the entity.(35) Thus, there is a risk that either the
corporation or the employee represented by the same lawyer might suffer from the lawyer's
conflicting obligations. Other Ethical Considerations of Canon 5 may also come into play in
certain circumstances, such as where the lawyer may be a witness or target of the grand jury
investigation.(36)

Canon 7, which requires a lawyer to "represent a client zealously within the bounds of the law",
(37)
and Canon 9, which admonishes lawyers to avoid the appearance of impropriety, also may be
applicable to cases of multiple representation.(38)

While the Sections of the Code discussed above should be consulted in cases of multiple
representation, they are not meant to be exhaustive and other Canons should be considered
depending on the particular facts of each case. For example, Canon 1 and DR 1-102(a)(5) and
Canon 7 and DR 7-102 taken together support the proposition that it is unethical to advise a
client to invoke the 5th Amendment privilege to protect others.(39) There are additional sources
that may also prove useful. For example, the American Bar Association's (ABA's) Standards
Relating to the Defense Function § 3.5(b)(1980) notes that the "potential for conflict of interest
in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for
more than one of several codefendants except in unusual situations." And, with respect to
appointed counsel, the Criminal Justice Act, 18 U.S.C. § 3006A(b), provides that separate
counsel must be appointed "for defendants who have such conflicting interests that they cannot
properly be represented by the same counsel."

3. Waiver and other defenses

Attorneys representing multiple clients may assert a number of defenses when the Government
seeks disqualification. First, they frequently argue that their clients have a 6th Amendment right
to counsel of their choice and a 1st Amendment right to associate for purposes of obtaining
counsel. Neither of these arguments has merit. The Supreme Court's decision in Wheat v. United
States, 486 U.S. 153 (1988), held that the "6th Amendment right to choose one's own counsel is
circumscribed", and "[f]ederal courts have an independent interest in ensuring that criminal trials
are conducted within ethical standards of the profession." Thus, where a court finds a conflict of
interest resulting from multiple representation, "it may . . . insist that defendants be separately
represented."(40) 1st Amendment claims have been similarly unsuccessful.(41)

Defense counsel also assert that a client can waive any potential or actual conflict. Waiver
arguments have had mixed results. Some courts have held that there can be no waiver of a
conflict,(42) while other courts have accepted waivers if they were made knowingly and
intelligently, with an understanding of all relevant facts.(43) In any event, the decision in Wheat
makes clear that a district court

must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare
cases where an actual conflict may be demonstrated before trial, but in the more common cases where
a potential for conflict exists which may or may not burgeon into an actual conflict as the trial
progresses.(44)

Whether a lay defendant has intelligently waived any objections to conflicts of interest(45) is
inherently difficult to determine, and generally, the district court is not in a position to educate
the defendant fully regarding the possible conflicts.(46) Nor can conflict-ridden counsel be relied
on to obtain an informed waiver.(47)

Finally, defense counsel will frequently emphasize the advantages of multiple representation
(e.g., economy of legal fees, centralized information and grand jury monitoring that facilitates a
unified defense effort), and suggest that the Government is not prejudiced by multiple
representation because it can grant immunity, compel testimony, and has the tools (e.g.,
prosecutions for contempt, perjury or obstruction of justice) to obtain whatever information it
needs. While a district court may consider these factors in making a decision to disqualify,(48)
they will frequently be outweighed by the need to avoid ethical violations and assure the proper
functioning of the judicial system.(49)

C. Resolving Conflicts of Interest

The first step when confronted with dual representation is to contact the defense lawyer and
determine who he represents, the scope of his representation and who is paying the legal fees.
These factors are important in initially assessing whether there is a conflict. For example, if the
lawyer only represents the company and is merely giving limited advice to company employees
regarding grand jury matters, that is, explaining the duty to testify when subpoenaed or
explaining the 5th Amendment privilege and when it may be asserted, then there is probably no
conflict at that point.

Attorneys should require the defense counsel to describe in writing the basis on which he
purports to represent various individuals and to document his authority. You should ordinarily
require from corporate counsel a list of employees who have agreed to be represented rather than
accept the attorney's blanket assertion that he represents everyone. You may also wish to have
the lawyer's assurance that he has discussed the multiple representation issue with his clients, as
well as potential problems, for example, your desire to obtain a proffer from one of his clients
and the untenable position of the lawyer advising that client. Counsel should be willing to
represent that he has communicated your specific requests, for example, for a proffer, to his
client and that the client is aware of the potential conflict, but nonetheless desires counsel's
representation. If some of the attorney's clients are targets, you should explicitly advise counsel
of the actual and potential conflicts that may result from his continued multiple representation.
To the extent that you can tell counsel which of his clients are targets, subjects and nonsubjects,
you should ordinarily do so, since this will assist him in evaluating any conflicts.

These initial discussions may be sufficient to convince defense counsel that it is inappropriate for
him to continue to engage in multiple representation. If new counsel is hired, you should keep in
mind that the company may still be paying the legal fees, in which case the individual's loyalty
may still be to the company, and the hiring of separate counsel may not result in more
cooperation with the investigation.

If defense counsel declines to cease his multiple representation, your next step will be to analyze
the facts, build an adequate record, and consider a disqualification motion. For example, if the
lawyer represents multiple targets who can incriminate one another, a disqualification motion
may be appropriate and successful.(50) In addition, if defense counsel has advised clients to
invoke the 5th Amendment privilege, you should consider which of his clients you are prepared
to immunize. If you can offer immunity to a particular client, that may be enough either to
convince the lawyer of the conflict or to support a motion to disqualify.(51) You should also
consider whether there are alternative sources of information for the testimony of the witness you
are considering immunizing.

If defense counsel is still unwilling to cease representing multiple clients, you should next
attempt to obtain additional factual information from one or more of the attorney's clients that
might support a motion to disqualify. This information might be obtained by interviewing the
client (presumably with his counsel present), or, in appropriate circumstances, by questioning the
client before the grand jury. In the event that the witness does not assert his 5th Amendment
privilege or invoke the attorney-client privilege,(52) the witness should be asked about how he met
counsel and any arrangements, including fee arrangements, regarding the attorney's
representation. The witness should also be asked about who else is represented by the same
counsel and any arrangements the witness is aware of with those clients. Finally, the witness
should be asked about whether he understood that his counsel represented others and that as a
result, there may be conflicts of interest. Care should be taken to avoid asking questions that may
elicit confidential information protected by the attorney-client privilege. To the extent that you
decide to compel the witness to testify before the grand jury without separate counsel and
without moving to disqualify, you should consider getting the witness to waive on the record his
right to conflict-free representation.

If, after having built a record, you decide to move for disqualification, the motion should be
accompanied by an affidavit setting forth supporting facts.(53) You should set forth the record of
your contacts with opposing counsel and attach your correspondence as exhibits. The affidavit
should only set forth the minimum necessary to establish a conflict, and should avoid disclosing
facts prematurely (e.g., the basis for your belief that the lawyer's clients can incriminate one
another).

At the hearing on the motion, you should ask the court's permission to interrogate the witness,
again with a view toward establishing a conflict. For example, the witness should be questioned
about his understanding of the attorney-client relationship, the lawyer's obligation to other
clients, possible conflicts and the fee arrangement. You might want to question the witness
specifically about the 5th Amendment, immunity, and the benefits of cooperation. Where there is
an employer-employee relationship between clients, you should seek answers establishing
coercion, i.e., that the witness is in no position to ask for separate counsel.(54) Again, caution
should be exercised to avoid infringing on the attorney-client privilege.

D. Appeals
1. Appeals by defense counsel

An order disqualifying counsel for a witness in a grand jury investigation is not a final judgment,
and, therefore, generally is not immediately appealable. While several courts have permitted
appeals from such orders on the grounds that they are "collateral orders",(55) the Supreme Court's
decision in United States v. Flanagan, 465 U.S. 259 (1984), establishes that the "collateral order"
exception to the final judgment rule does not apply to attorney disqualification orders.(56) Relying
on these more recent Supreme Court decisions, the Seventh Circuit in In re Schmidt, 775 F.2d
822 (7th Cir. 1985), has expressly held that an order disqualifying an attorney for a grand jury
witness is not appealable. Under Schmidt, to obtain appellate review of such an order, a witness
would have to be held in contempt and then appeal from the contempt judgment. Alternatively,
rather than filing a direct appeal, defense counsel might seek review of a disqualification order
by filing a mandamus petition. Mandamus, however, is an extraordinary remedy that is rarely
granted.ifc Cf. United States v. Diozzi, 807 F.2d 10 (1st Cir. 1986) (court refused to review
pretrial disqualification order by writ of mandamus, but reversed the convictions on appeal from
the judgment of conviction because the Government failed to justify disqualification). (57)

2. Appeals by the Government

It is unclear whether the Government may appeal from the denial of a motion to disqualify. The
Criminal Appeals Act, 18 U.S.C. § 3731, does not include orders denying motions to disqualify
in the list of orders from which the Government may appeal.(58) Nor is it clear whether the
Government can argue that the "collateral order" exception applies.(59) Finally, like defense
counsel seeking review of a disqualification order, the Government may file a petition for a writ
of mandamus, although this remedy is rarely granted.

FOOTNOTES

1. See Lowenthal, Successive Representation by Criminal Lawyers, 93 Yale L.J. 1 (1983).

2. Since virtually all Sherman Act cases require the testimony of co-conspirators, the
Government's objective is to use the least culpable individuals to prosecute the most culpable
ones.

3. At the grand jury stage, the client has not yet been indicted and counsel's primary duty is to
prevent his indictment. If a witness represented by an attorney with a conflict ultimately is
indicted and convicted, he may claim that he was denied effective assistance of counsel due to
the conflict of interest. See United States v. Canessa, 644 F.2d 61 (1st Cir. 1981); United States
v. Lutz, 621 F.2d 940 (9th Cir. 1980), cert. denied, 449 U.S. 859 (1981). These claims rarely will
be successful, however, since the 6th Amendment right to counsel does not apply to grand jury
proceedings. See, e.g., United States v. Mandujano, 425 U.S. 564, 581 (1976) (dictum) (plurality
opinion); Kirby v. Illinois, 406 U.S. 682 (1972); Hannah v. Larche, 363 U.S. 420 (1960); In re
Groban, 352 U.S. 330 (1957); United States v. DeRosa, 438 F. Supp. 548, 551 (D. Mass. 1977),
aff'd, 582 F.2d 1269 (1st Cir. 1978).

4. Holloway v. Arkansas, 435 U.S. 475, 490 (1978) (emphasis added). See generally Geer,
Representation of Multiple Criminal Defendants: Conflicts of Interest and Professional
Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119, 125-35 (1978); Lowenthal, Joint
Representation in Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939, 941-50 (1978).

5. See Wheat v. United States, 486 U.S. 153 (1988); In re Taylor, 567 F.2d 1183, 1191 (2d Cir.
1977); In re Gopman, 531 F.2d 262, 266 (5th Cir. 1976).

6. Attorneys should also check the local rules as they may contain provisions that relate to
multiple representation.

7. See United States v. Duklewski, 567 F.2d 255 (4th Cir. 1977).

8. In re Gopman, 531 F.2d 262, 265 (5th Cir. 1976).

9. Rule 44(c) outlines procedures for avoiding circumstances that may give rise to post-
conviction 6th Amendment claims (See United States v. Akinseye, 802 F.2d 740, 744 (4th Cir.
1986), cert. denied, 482 U.S. 916 (1987)) and provides in pertinent part that:

the court shall promptly inquire with respect to such joint representation and shall personally advise
each defendant of the right to effective assistance of counsel . . . unless it appears that there is good
cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be
appropriate to protect each defendant's right to counsel.

10. See United States v. Duklewski, 567 F.2d 255, 257 (4th Cir. 1977).

11. Id. at 256-57 (disqualification of defense counsel after ex parte hearing with the Government
and without providing the defendant with the factual basis for disqualification was improper);
see also United States v. Garcia, 517 F.2d 272 (5th Cir. 1975); In re Paradyne Corp., 803 F.2d
604, 607, 612 (11th Cir. 1986). But cf. United States v. Akinseye, 802 F.2d at 745 (no
disqualification hearing was held but the trial court discussed joint representation with the
defendants during an appeal of a magistrate's bond order).

12. In re Gopman, 531 F.2d at 265-66 (quoting Tucker v. Shaw, 378 F.2d 304, 307 (2d Cir.
1967)); see Pirillo v. Takiff, 462 Pa. 511, 520, 341 A.2d 896, 905 (1975), cert. denied, 423 U.S.
1083 (1976).

13. 486 U.S. at 164; see also United States v. Moscony, 927 F.2d 742 (3d Cir. 1991).

14. 531 F.2d at 266.

15. 563 F.2d at 655-57.

16. See, e.g., Pirillo v. Takiff, 341 A.2d at 904 (allowing two attorneys to represent all members
of the Philadelphia Fraternal Order of Police, which paid the lawyers' fees and espoused a policy
of not cooperating with an investigation, had a "chilling effect" on cooperation).

17. The Supreme Court's decision in Wheat, which explicitly sanctions disqualification where
there is a potential conflict, might persuade more courts to grant disqualification even where
there is only a potential conflict.

18. In both Washington Post and In re Grand Jury Impaneled Jan. 21, 1975, one of the principal
difficulties was the lack of a record sufficient to justify disqualification. In Washington Post, the
court noted the absence of any evidence regarding the nature of the conflict, the clients'
awareness of the conflict, and whether the clients would have acted differently if separate
counsel were retained. 531 F.2d at 607. In In re Grand Jury Impaneled Jan. 21, 1975, the court
intimated that disqualification might have been appropriate if there was evidence in the record
that the attorney's fees were being paid by the target union or if some witnesses had been offered
immunity and others had not. See also In re Taylor, 567 F.2d 1183, 1188-90 (2d Cir. 1977).

19. Compare In re Grand Jury Impaneled Jan. 21, 1975, 536 F.2d at 1013 (where witnesses only
invoked the privilege but were not granted immunity, disqualification was improper), and In re
Taylor, 567 F.2d at 1188-90 (same), with In re Investigative Grand Jury Proceedings, 480 F.
Supp. supra (while no witness had been offered immunity, the court found an actual conflict
warranting disqualification).

20. See, e.g., In re Investigation Before April 1975 Grand Jury, 531 F.2d supra; In re Taylor, 567
F.2d supra; In re Grand Jury Impaneled Jan. 21, 1975, 536 F.2d supra; In re Special Feb. 1977
Grand Jury, 581 F.2d supra.

21. See In re Special Grand Jury, 480 F. Supp. 174 (E.D. Wis. 1979); In re Special Feb. 1975
Grand Jury, 506 F. Supp. 194 (N.D. Ill. 1975); but cf., In re Grand Jury Impaneled Jan. 21, 1975,
536 F.2d supra.
22. See, e.g., In re Investigation Before Feb. 1977 Lynchburg Grand Jury, 563 F.2d at 655-57; In
re Grand Jury Investigation, 436 F. Supp. at 823; In re Grand Jury Proceedings, 428 F. Supp. at
277.

23. See, e.g., In re Investigation Before April 1975 Grand Jury, 531 F.2d supra; In re Grand Jury
Impaneled Jan. 21, 1975, 536 F.2d supra; In re Taylor, 567 F.2d supra; In re Special Grand Jury,
480 F. Supp. supra.

24. While the original Model Code was adopted in 1970, the ABA adopted a new code in 1983
(See 52 U.S.L.W. 1 (Aug. 16, 1983) (New Code)). The New Code does not apply until the states
individually adopt those rules; therefore, in many jurisdictions, the 1970 Code continues to
govern the conduct of lawyers.

25. Canons are statements enunciating a lawyer's responsibilities, while Disciplinary Rules (DR)
are "mandatory in character", setting forth the minimal standard of ethical conduct which must
be observed to avoid disciplinary action. Finally, Ethical Considerations (EC), while potentially
useful, are nonetheless only aspirational in character.

26. See Moore, Disqualification of an Attorney Representing Multiple Witnesses Before a Grand
Jury: Legal Ethics and the Stonewall Defense, 27 UCLA L. Rev. 1, 67-69 (1979).

27. See also New Code, Rule 1.6.

28. See New Code, Rule 1.9.

29. See United States v. Agosto, 538 F. Supp. 1149 (D. Minn. 1982).

30. See also New Code, Rule 1.7.

31. DR 5-105(A)-(D).

32. See also New Code, Rules 1.8(f), 1.13, 5.4(c).

33. Cf. New Code, Rule 1.13(e) (allowing a lawyer to represent both a corporation and its
officers provided there is no conflict).

34. EC 5-23.

35. EC 5-18.

36. See In re Investigation Before Feb. 1977 Lynchburg Grand Jury, 563 F.2d 652 (4th Cir.
1977).

37. See Moore, Attorney Disqualification, at 55-56.

38. See In re Grand Jury Investigation Before Feb. 1977 Lynchburg Grand Jury, 563 F.2d at 657
(Canon 9 discussed); In re Abrams, 56 N.J. 271, 276, 266 A.2d 275, 278 (1970) (same). But see
In re Special Feb. 1977 Grand Jury, 406 F. Supp. 194, 199 (N.D. Ill. 1975) (Canon 9
inapplicable).

39. See, e.g., United States v. Fayer, 523 F.2d 661 (2d Cir. 1975).

40. 486 U.S. at 159-62; accord In re Grand Jury Subpoena Served upon Doe, 781 F.2d 238, 250-
51 (2d Cir.), cert. denied, 475 U.S. 1108 (1986); In re Investigation Before Feb. 1977 Lynchburg
Grand Jury, 563 F.2d 652 (4th Cir. 1977); In re Paradyne Corp., 803 F.2d 604, 611 n.16 (11th
Cir. 1986).

41. See In re Gopman, 531 F.2d 262, 268 (5th Cir. 1976).

42. See, e.g., In re Grand Jury Investigation, 436 F. Supp. 818, 821 (W.D. Pa. 1977) (a witness
could not waive the right to conflict-free counsel since a waiver was "likely a function in large
part of one's natural hesitancy to alienate their employer rather than a product of free
unrestrained will"), aff'd, 576 F.2d 1071 (3d Cir.), cert. denied, 439 U.S. 953 (1978); In re Grand
Jury Proceedings, 428 F. Supp. 273, 278 (E.D. Mich. 1976) (a witness cannot "waive the right of
the public to an effective functioning grand jury investigation"); In re Grand Jury, 446 F. Supp.
1132, 1140 (N.D. Tex. 1978) (in dictum court stated that witness could not waive actual conflict
of interest).

43. See, e.g., In re Taylor, 567 F.2d 1183, 1191 (2d Cir. 1977); see also In re Special Feb. 1977
Grand Jury, 581 F.2d 1262, 1265 (7th Cir. 1978) (trial court apprised witnesses of potential
conflict and each still desired joint representation).

44. 486 U.S. at 163; see also United States v. Moscony, 927 F.2d 742 (3d Cir. 1991).

45. See, e.g., United States ex rel. Tonaldi v. Elrod, 716 F.2d 431, 437-39 (7th Cir. 1983).

46. See Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and
Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119, 142-52 (1978).

47. Id. at 145.

48. See, e.g., In re Paradyne Corp., 803 F.2d at 611 n.16; United States v. James, 708 F.2d 40, 45
(2d Cir. 1983).

49. Wheat v. United States, 486 U.S. at 160-61; United States v. Dolan, 570 F.2d 1177, 1183-84
(3d Cir. 1978); see also United States v. Diozzi, 807 F.2d 10, 12 (1st Cir. 1986); United States v.
O'Malley, 786 F.2d 786, 792 (7th Cir. 1986); United States v. Carrigan, 543 F.2d 1053, 1056 (2d
Cir. 1976); United States v. Provenzano, 620 F.2d 985, 1004 (3d Cir.), cert. denied, 449 U.S. 899
(1980); In re Gopman, 531 F.2d at 255.
50. See In re Special Feb. 1977 Grand Jury, 581 F.2d 1262 (7th Cir. 1978); In re Grand Jury
Investigation, 436 F. Supp. 818, 820 (W.D. Pa. 1977), aff'd, 576 F.2d 1071 (3d Cir.), cert.
denied, 439 U.S. 953 (1978).

51. In re Grand Jury Investigation, 436 F. Supp. at 823; In re Grand Jury Proceedings, 428 F.
Supp. 273, 277 (E.D. Mich. 1976).

52. While questions concerning a witness' legal representation are not likely to incriminate him, a
witness who has not been immunized might nevertheless erroneously assert the 5th Amendment
privilege, thus requiring Government counsel to file a motion to compel or obtain an immunity
order. Similarly, the attorney-client privilege should not prevent disclosure of the identity of the
lawyer representing the client, the scope or object of the employment and other background
information that does not disclose confidential communications. See generally Ch. III § C.1.a.;
Ch. IV § A.; E. Cleary, McCormick on Evidence §§ 89-90 (3d ed. 1984).

53. There are several benefits that may be derived from a motion to disqualify. First, if
successful, one or more targets thereafter may be willing to cooperate (as a result of conflict-free
advice from a new attorney). Second, even if unsuccessful, the attorney will be sensitive to the
potential conflict and more likely to obtain separate counsel for the client should later
developments make the conflict more apparent.

54. The Government has generally taken the position that a witness cannot waive the public's
right to a proper functioning grand jury. Nonetheless, you should advise the court that any
waiver must be knowingly and intelligently made.

55. See, e.g., In re Investigation Before April 1975 Grand Jury, 531 F.2d 600 (D.C. Cir. 1976);
In re Gopman, 531 F.2d 262 (5th Cir. 1976).

56. See also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) (order denying motion
to disqualify counsel in civil case not appealable).

57. Cf. United States v. Diozzi, 807 F.2d 10 (1st Cir. 1986) (court refused to review pretrial
disqualification order by writ of mandamus, but reversed the convictions on appeal from the
judgment of conviction because the Government failed to justify disqualification).

58. Government appeals are not necessarily limited to those expressly listed in 18 U.S.C. § 3731.
See United States v. Wilson, 420 U.S. 332, 337 (1975) (while the language of the Criminal
Appeals Act is "not dispositive, the legislative history makes it clear that Congress intended to
remove all statutory barriers to Government appeals and to allow appeals whenever the
Constitution would permit"); see also United States v. Hetrick, 644 F.2d 752, 755 (9th Cir.
1980); United States v. Prescon Corp., 695 F.2d 1236 (10th Cir. 1982). But see Government of
the Virgin Islands v. Douglas, 812 F.2d 822, 829 (3d Cir. 1987) (Government appeals limited by
express language of the Criminal Appeals Act).
59. See In re Special Feb. 1977 Grand Jury, 581 F.2d 1262, 1264 (7th Cir. 1978) (Government
may appeal under the collateral order exception). But see In re Schmidt, 775 F.2d 822, 825 (7th
Cir. 1985).
 TABLE OF CONTENTS

VII. INDICTMENT AND INFORMATION

A. Sherman Act Indictments or Informations

1. Distinction Between Indictment and Information
2. Function and Purpose of An Indictment or Information
3. Standard Format for Sherman Act Offenses
B. Requirements for Non-Sherman Act Indictments
1. Mail Fraud, 18 U.S.C. § 1341
2. Wire Fraud, 18 U.S.C. § 1343
3. False Statements, 18 U.S.C. § 1001
4. False, Fictitious or Fraudulent Claims Against the Government, 18 U.S.C. § 287
5. Conspiracy to Defraud the Government with Respect to Claims, 18 U.S.C. § 286
6. Conspiracy to Commit Offense or to Defraud United States, 18 U.S.C. § 371
7. Major Frauds Act, 18 U.S.C. § 1031
8. False Declarations and Perjury
9. Obstruction of Justice, 18 U.S.C. § 1503
10. RICO
11. Sherman Act Misdemeanor
12. Bribery
C. Defendant Selection
D. Drafting Pitfalls
1. Intent
2. Vagueness
3. Surplusage
E. Statute of Limitations
F. Charging Single or Multiple Conspiracies
1. Single vs. Multiple Conspiracies
2. Variance and Double Jeopardy Problems in Charging Conspiracies
G. Duplicitous and Multiplicitous Indictments
H. Other Enforcement Matters
1. Companion Civil Complaint
2. State Civil/Criminal Actions
3. Damage Actions
4. Suspension and Debarment
I. Pre-Indictment Procedures
1. Target Notifications and Meetings with Opposing Counsel
2. U.S. Attorney's Signature
3. Grand Jury Review of Testimony/Documents
4. Summary of the Evidence
5. Summary of Law
6. Presentation of Indictment
7. Return of Indictment in Court
8. Administrative Procedures After Return
J. Re-Presentation
K. Superseding Indictments
1. Caption
 2. Advice to the Grand Jury
3. Speedy Trial Act Considerations
L. No Bills
M. Defense Motions Relating to the Indictment
N. Press
O. Closing the Investigation

VII. INDICTMENT AND INFORMATION

A. Sherman Act Indictments or Informations

1. Distinction between indictment and information

Indictments and informations are written, formal criminal charges on which the accused is
brought to trial. Fed. R. Crim. P. 7(c)(1) requires that the indictment or information be a "plain,
concise and definite written statement of the essential facts constituting the offense charged." An
offense punishable by imprisonment for a term exceeding one year or at hard labor shall be
prosecuted by indictment, unless indictment is waived, in which case it may be prosecuted by
information.(1) A violation of 15 U.S.C. § 1, which is punishable by a maximum of three years
imprisonment, must be prosecuted by indictment, unless waiver of indictment is obtained from
the defendant.(2) A waiver of indictment must be obtained from the defendant in open court after
he has been advised of the nature of the charge and of his rights. While indictments must be
returned by a grand jury,(3) informations may be returned by the Department of Justice on its own
authority.

The language of an information differs from an indictment only slightly. The opening sentence
of the information will read "The United States of America, acting through its attorneys,
charges" rather than "the grand jury charges". If the exact dates are unknown, the information
will state "the exact dates being unknown to the United States"; an indictment will state "the
exact dates being unknown to the grand jury." An information will not contain a signature line
for the grand jury foreperson.

An information will be presented to the presiding judge or magistrate by the prosecuting

attorneys rather than by the grand jury. It saves time to have the waiver of indictment form
executed by the defendant prior to the hearing at which the information is presented to the court.
Some courts, however, require that the execution of the waiver occur in open court. Therefore,
you must ascertain the preferred procedure from the local U.S. Attorney's Office.

In most cases, an information will be accompanied by a plea agreement, which will be presented
to the court at the time the information is presented.(4) Informations may also be accompanied by
a press release similar to that used for the return of an indictment.

Unlike the return of an indictment, the defendant pleading to an information will have been given
an opportunity to review the information before it is presented to the court. The charge contained
in the information to which the defendant is pleading will have been negotiated between the
parties as part of the plea agreement. Within certain constraints, the nature of the charge is an
appropriate subject for plea negotiation. However, the terms of the information, like the
indictment, should rest exclusively with the prosecuting attorney.

It is not necessary for the grand jury to have any involvement in the return of an information, but
you should usually inform the grand jury when an information has been or is being presented. In
most circumstances, this will require an explanation of the accompanying plea agreement. Often,
this occurs when the defendant, in the case of an individual, is testifying before the grand jury
under the terms of the plea agreement. The grand jury should be advised that the information is
simply a substitute for an indictment and that it was still the product of their hard work.

When the information is being filed against a corporation, the waiver of indictment must be
executed by an officer empowered to act for the corporation. You should ascertain from the U.S.
Attorney's Office in the local jurisdiction what proof the court will require that the officer is so
empowered. Some judges will require written confirmation of a vote by the board of directors
authorizing the officer to execute the waiver of indictment and to enter any accompanying plea.
Some courts will permit counsel for the corporation to perform these acts. However, the deterrent
effect of requiring a high-ranking officer of a corporation to appear in court for the purpose of
executing a waiver of indictment and entering a plea should not be ignored.

The court may permit an information to be amended at any time before verdict or finding, if no
additional or different offense is charged and the substantial rights of the defendant are not
prejudiced.(5)

A sample information and indictment are contained in Appendices VII-1 and VII-2.

2. Function and purpose of an indictment or information

The indictment or information, hereafter referred to as indictment, serves as the initial pleading
filed by the Government in criminal litigation. It should set forth the facts evidencing the
elements of the offense sought to be charged. Each indictment will require a varying amount of
factual detail. In general, it should tell the story of who the defendants are, what their roles were,
what they did, when and where they did it, the scheme they used to commit the offense and a
description of the offense with which they are charged.

Your goal in drafting an indictment is to tell the Government's story in a simplified and
persuasive manner, keeping in mind that the document itself will be seen and scrutinized by the
trial judge, the jury, defense counsel, the press, the probation officer and the court of appeals.

The indictment must adequately apprise the defendant of what theories he must be prepared to meet
at trial. Further, the indictment serves as a basis for determining a defendant's 5th Amendment right
against double jeopardy. The 5th and 6th Amendments to the U.S. Constitution require that the
indictment must describe the crime allegedly committed, every essential element of that crime, and the
acts of the defendant alleged to constitute the crime. The description must be in sufficient detail to
permit the defendant to understand the nature of the charges against him, to prepare a defense, and to
invoke the double-jeopardy provision of the 5th Amendment, if appropriate. (6)
The 6th Amendment provides in pertinent part: In all criminal prosecutions, the accused shall
enjoy the right. . . to be informed of the nature and cause of the accusation . . . . Fed. R. Crim. P.
7(c)(1) gives effect to these requirements by providing the following:

The indictment or the information shall be a plain, concise and definite written statement of the
essential facts constituting the offense charged. It shall be signed by the attorney for the government. It
need not contain a formal commencement, a formal conclusion or any other matter not necessary to
such statement. Allegations made in one count may be incorporated by reference in another count. It
may be alleged in a single count that the means by which the defendant committed the offense are
unknown or that he committed it by one or more specified means. The indictment or information shall
state for each count the official or customary citation of the statute, rule, regulation, or other provision
of law which the defendant is alleged therein to have violated.

In reviewing the sufficiency of an indictment, the courts will construe the document as a whole
to ascertain whether or not the foregoing requirements have been met.(7) An indictment is likely
to be found legally sufficient if it describes with reasonable particularity the acts or practices
alleged to constitute the offense. What is required are factual allegations rather than a simple
recitation of the acts or practices proscribed by the law allegedly violated. There is no
requirement, however, that the indictment set forth the Government's evidence to support the
factual allegations, or describe in detail the contents of any documents to which reference may be
made.(8)

3. Standard format for Sherman Act offenses

The Division prefers the use of a standard format for indictments charging violations of Section
1 of the Sherman Act. The purpose of this format is to communicate more effectively the nature
of the criminal charges to judges, trial juries, and the general public, while fully satisfying the
requirements of Rule 7(c) of the Federal Rules of Criminal Procedure. Utilizing a standard
Division-wide format has at least two advantages: it permits the development of a body of
caselaw on the sufficiency of the standard Section 1 indictment which helps ensure that
individual indictments will be upheld by district and appellate courts; and it facilitates the review
of proposed indictments at each level within the Division. Reprinted below is a sample
indictment followed by comments for each section of the indictment.(9) Section 1 indictments
should be drafted in the form of this sample, subject to the exceptions noted in the comments.

a. Sample Sherman Act indictment

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA
WILMINGTON DIVISION

| Criminal No.
|
|
UNITED STATES OF AMERICA,       |
 |
                  Plaintiff,
|
                  v. |
|
XYZ COMPANY, INC. and     |
15 U.S.C. § 1
JOHN W. DOE, |
|
                  Defendants. |
|       

INDICTMENT

The Grand Jury charges:

I
DESCRIPTION OF THE OFFENSE

1. XYZ Company, Inc. and John W. Doe, its Executive Vice President, are hereby indicted and
made defendants on the charge stated below.

2. Beginning at least as early as 1983 and continuing at least through September 1988, the exact
dates being unknown to the Grand Jury, the defendants and others entered into and engaged in a
combination and conspiracy to suppress and eliminate competition by rigging bids for the award
and performance of dredging construction projects. The dredging projects were awarded from
time to time by the United States, through the United States Army Corps of Engineers ("Corps")
or the United States Navy ("Navy"), on the Southeast Atlantic Coast and were set aside for
qualified small businesses under the Small Business Set Aside ("SBSA") program. The
combination and conspiracy, engaged in by the defendants and co-conspirators was an
unreasonable restraint of interstate [and foreign] trade and commerce, in violation of Section 1 of
the Sherman Act (15 U.S.C. § 1).

3. During the period covered by this indictment, the United States, through the Corps or the
Navy, from time to time invited dredging contractors to submit sealed competitive bids on
dredging projects on the Southeast Atlantic Coast, including those projects which are the subject
of this indictment. Each such bid was required to be submitted to the appropriate Corps District
Office or Navy Office before the time, and at the place, indicated on the bid proposal form. The
receipt, opening, and reading aloud of the bids constitute a process known as a bid letting.
Following a bid letting, the Corps or the Navy awards a contract for the performance of the
specified dredging project to the lowest responsible bidder.
4. The charged combination and conspiracy consisted of a continuing agreement, understanding,
and concert of action among the defendants and co-conspirators, the substantial terms of which
were:

(a) to allocate among themselves SBSA dredging projects let by the Corps and the Navy on the
Southeast Atlantic Coast; and

(b to submit collusive, noncompetitive, and rigged bids, and to refrain from submitting bids, to
) the Corps and the Navy for such dredging projects.

5. For the purpose of forming and carrying out the charged combination and conspiracy, the
defendants and co-conspirators did those things that they combined and conspired to do,
including, among other things:

(a) discussing the submission of prospective bids on SBSA dredging projects let by the Corps and
the Navy on the Southeast Atlantic Coast;

(b agreeing not to compete by designating the corporate defendant or co-conspirator to be the

) successful bidder on such dredging projects;

(c) submitting intentionally high bids and refraining from submitting bids on such dredging
projects; and

(d submitting bid proposals to the Corps and the Navy on such dredging projects containing false,
) fictitious, and fraudulent statements and entries.

II
DEFINITIONS

6. "Southeast Atlantic Coast" means the geographic areas served by the Corps District Offices in
Norfolk, Virginia; Wilmington, North Carolina; Charleston, South Carolina; Savannah, Georgia;
and Jacksonville, Florida.

7. "Dredging" means the creation or maintenance of harbors, navigable channels, and other
waterways through the underwater excavation of material from the bottom of such waterways
and the disposal of that material.

III
DEFENDANTS AND CO-CONSPIRATORS

8. Defendant XYZ Company, Inc. is a corporation organized and existing under the laws of the
Commonwealth of Virginia, with its principal place of business in Norfolk, Virginia. During the
period covered by this indictment, XYZ Company, Inc. engaged in the business of dredging as a
contractor on the Southeast Atlantic Coast, including the Eastern District of North Carolina.
9. Defendant John W. Doe is, and was during the period covered by this indictment, the
Executive Vice President of XYZ Company, Inc.

10. Various corporations and individuals, not made defendants in this indictment, participated as
co-conspirators in the offense charged and performed acts and made statements in furtherance of
it.

11. Whenever in this indictment reference is made to any act, deed, or transaction of any
corporation, the allegation means that the corporation engaged in the act, deed or transaction by
or through its officers, directors, employees, agents, or other representatives while they were
actively engaged in the management, direction, control or transaction of its business or affairs.

IV
TRADE AND COMMERCE

12. The business activities of the defendants and co-conspirators that are the subject of this
indictment were within the flow of, and substantially affected, interstate [and foreign] trade and
commerce.

V
JURISDICTION AND VENUE

13. The combination and conspiracy charged in this indictment was [formed and] carried out, in
part, within the Eastern District of North Carolina within the five years preceding the return of
this indictment.

DATED:

A TRUE BILL

_______________________________ _______________________________
FOREPERSON [Lead Attorney]
JAMES F. RILL
Assistant Attorney General
Antitrust Division
_______________________________
[Staff Attorney]
_______________________________
[Name]
United States Attorney _______________________________
Eastern District of [Staff Attorney]
North Carolina Attorneys, Antitrust Division
U.S. Department of Justice
 [Section or Office Address]
Tel: (000) 000-0000

b. Comments
2. Caption and page format. The standard caption and page format should be modified only as
necessary to comply with the local rules and practice of the U.S. Attorney. The defendants do
not have to be listed in any particular order. Usually corporations are listed before individual
defendants; however, with multiple defendants, greater clarity may be provided if the individual
is listed right after the corporation by which that individual was employed.
3. Paragraph 1 - list of defendants. The defendants should be listed in the same order as they are
listed in the caption. The identification should include the full name of each corporate
defendant and the name and title of each individual defendant. If the list of defendants is
significantly longer than in the sample, the titles of the individual defendants may be omitted as
they are more fully described later in the indictment. In some cases, it may be appropriate to
note parenthetically any alias or nicknames used by an individual defendant.
4. Paragraph 2 - main charging paragraph. This is the main charging paragraph of the indictment. It
should usually contain: the approximate beginning and ending dates of the conspiracy; the
specific type(s) of per se offense(s) involved; the industry involved; and, in bid-rigging cases, the
letting authority. The last sentence of this paragraph should be substantially the same in all
indictments.

This section should include the time period during which the offense was committed.
However, there is no requirement that the beginning and ending dates of the arrangement
be pled with precision. The indictment may charge that the exact dates when the alleged
offense began and ended are unknown but are believed to have commenced as early as a
specified year and to have continued through a specified date that is within the statute of
limitations.(10)

5. Paragraph 3 - explanation of industry or competitive structure. A paragraph of this type should

be inserted before the "substantial terms" and "means and methods" paragraphs only when it is
essential to explain some aspect of the industry or competitive structure involved so that the
reader can fully understand the following paragraphs describing the conspiracy.

This paragraph of the indictment may, when necessary, contain a general description of
the uses for a product or service and the types of customers for it. In a bid-rigging
indictment, such as the sample indictment, it may be appropriate to explain the bidding
process. Any discussion of the industry or the competitive structure important enough to
be included in the indictment, but not essential to an understanding of the initial charging
paragraphs, should be included in the "Trade and Commerce" section.

6. Paragraphs 4 and 5 - the "substantial terms" and "means and methods" paragraphs. Although
the introductory portions of the "substantial terms" and "means and methods" paragraphs
should be virtually the same in every indictment, the subparts will obviously differ widely in
number and structure, depending on the specific facts. Staffs will be given substantial latitude to
tailor these paragraphs to fit each case.
 In general, these paragraphs should describe the terms of the allegedly unlawful
agreement and list how the defendants formed and carried out the unlawful combination
and conspiracy. Since overt acts need not be proven in Sherman Act cases, there is no
requirement that they be alleged in an indictment.(11)

7. Paragraphs 6 and 7 - definitions. A "Definitions" section is not mandatory and should be

included only when the ordinary dictionary definitions of terms used in the indictment will not
suffice or when terms, though adequately defined in the dictionary, are not familiar to the
general public. If the charging paragraph contains numerous terms that may not be familiar to
the general public, then it may be advisable to have the definitions section precede the charging
paragraph.(12)

Terms frequently defined in this section include the geographic area where the alleged
illegal action occurred, the product or service that was the subject of the conspiracy, and,
if federal funding was involved, the federal agency that was involved. Failure to describe
such terms is not fatal to an indictment, but doing so may make practical sense in some
cases.(13)

8. Paragraph 8 - corporate defendant descriptions. For each corporate defendant, the

identification should include the full name, main business address and state of incorporation.
When there are multiple corporate defendants, the paragraph should contain language similar
to the following:

Each of the defendant corporations is organized and exists under the laws of the state, and has
its principal place of business in the city, identified below:

State of Principal Place

Corporation Incorporation of Business

ABC Corporation Florida Jacksonville, FL

Acme Corporation Georgia Savannah, GA

Dredging, Inc. South Carolina Charleston, SC

XYZ Company, Inc. Virginia Norfolk, VA

During all or part of the period covered by this indictment, the defendant corporations
engaged in the business of dredging as contractors on the Southeast Atlantic Coast,
including the Eastern District of North Carolina.
 In some cases, the principal place of business may not be the relevant location, and staffs
may want to use another title or a narrative format to explain that corporation's
geographic nexus to the charge.

9. Paragraph 9 - individual defendant descriptions. Individual defendants should be identified by

full name, business affiliation and title. When there are multiple individual defendants, language
similar to the following should be used for this paragraph:

During all or part of the period covered by this indictment, each of the individual defendants
was associated with the designated defendant corporation in the position or positions indicated:

Individual Position(s) Corporation

John W. Doe Executive Vice President XYZ Company, Inc.

James T. Smith General Manager Dredging, Inc.

William R. Thompson Vice President ABC Corporation

Robert J. Wilson Manager Acme Corporation

10. Paragraph 10 - co-conspirator paragraph. Whenever there are non-defendant co-conspirators,

this paragraph should be included in the indictment. In cases in which there are co-conspirator
organizations other than corporations, an appropriate term such as "firms" or "companies"
should be used in lieu of "corporations". Under Department and Division policy, alleged co-
conspirators should not be identified by name unless there are compelling reasons to do so. (14)
Several courts have condemned the practice of naming unindicted co-conspirators as a violation
of due process and have ordered that those portions of the indictment be expunged. (15)
11. Paragraph 11 - This paragraph should be included in all indictments in which a corporation is a
defendant.
12. Paragraph 12 - trade and commerce paragraph. This section of the sample indictment
represents a minimally sufficient allegation of the "flow" and "effects" theories of the interstate
commerce element. If there is any concern that the local court may dismiss an indictment for
failure to set out the specific commerce restrained, a brief additional allegation should be
added, such as follows:

The interstate [and foreign] trade and commerce included:

1. the movement of substantial quantities of goods on dredged waterways;

2. the movement of substantial quantities of equipment and other essential materials for
use on dredging projects; and
3. payment for dredging projects with funds from the Treasury of the United States.
 Any necessary description of the industry or the competitive structure should be included
here or, as previously noted, in Paragraph 3. It is not necessary to list all of the methods
by which interstate trade and commerce will be proved at trial.

b. Paragraph 13 - Jurisdiction, venue and statute of limitations. A legally sufficient indictment

should contain an allegation that the offense charged was formed or carried out, at least in part,
within the jurisdiction of the federal district court where the indictment is filed. There is,
however, case law to the effect that failure of an indictment to allege venue does not require
dismissal.(16) The indictment should contain an allegation that the offense charged was formed
or carried out, at least in part, within the statute of limitations period for the offense involved.
c. Signature format. The signature format may be modified as necessary to comply with the local
rules and practice of the U.S. Attorney, but all indictments must contain the signature of the
Assistant Attorney General and the lead attorney.
d. Effects. There should be no "Effects" section or other description of anticompetitive harms in
the indictment.
e. Number of counts. A legally sufficient indictment should charge only one offense per count. (17)
Generally, counts should be averred in order of the significance of the offense, such as the
Sherman Act count followed by any mail fraud counts. Mail fraud counts should be averred in
chronological order. Fed. R. Crim. P. 7(c)(1) permits an allegation made in one count to be
incorporated by reference in another count. Normally, this is done by introducing such a count
with the language:

The grand jury (or if in an information, the United States) further charges: Each and every
allegation of Paragraphs 1 through of this indictment is here realleged with the same force and
effect as though each paragraph was set forth in full detail.

f. Language and tone. A well-drafted indictment should avoid legalese wherever possible and use
instead commonly understood language. Naturally, when following the form of typical Sherman
Act indictments, it is best to use language that courts have approved. When there is evidence of
payoffs, concealment or the signing of false statements of noncollusion, it is good practice to
incorporate language describing such practices in the indictment. An indictment should avoid
the use of prejudicial or inflammatory language. (18)

B. Requirements for non-Sherman Act Indictments

1. Mail fraud, 18 U.S.C. § 1341

Increasingly, the Division will bring one or more counts of mail fraud in an indictment when a
violation of the Sherman Act has been alleged.(19) Because an antitrust violation is a form of
fraud, including a mail fraud count often helps to focus juror attention on the fraud aspects of the
conspiracy.

An indictment for mail fraud under 18 U.S.C. § 1341, must sufficiently allege the two necessary
elements of an offense within the statute:

1. The accused devised or intended to devise a scheme and artifice to defraud, and
2. Used or caused the use of the mails in execution or attempted execution of the scheme. (20)
The indictment must contain a reasonably detailed description of the particular scheme with
which the defendant is charged.(21)

A mail fraud count added to a Sherman Act indictment will begin with the language "The grand
jury further charges" and will contain an introductory paragraph that realleges the appropriate
paragraphs, such as the identification of the defendants, the reference to corporate defendants
acting through its officers and those portions of the trade and commerce sections that describe
the industry or the bid process which are relevant to the mail fraud count. Thereafter, a legally
sufficient mail fraud indictment will contain language similar to the following:

Beginning as early as ___________ and continuing thereafter until approximately ______________ the
exact dates being unknown to the Grand Jury, the defendants, together with other persons known and
unknown to the Grand Jury, devised and intended to devise a scheme and artifice to defraud (company)
of:

a. money; and
b. property

It was part of said scheme and artifice to defraud that the defendants, and others known and unknown
to the Grand Jury, would and did:

a. allocate to one defendant the monthly scrap metal contract at (company)'s plants and allocate
to another defendant the monthly scrap metal contract at (company)'s plant; and
b. submit collusive, noncompetitive and rigged bids at (company)'s plants in connection with the
award of monthly scrap metal contracts.

On or about the dates of mailing set forth below, for the purpose of executing said scheme and
artifice to defraud, and attempting to do so, the defendants did knowingly cause the following
bids for (company's) plants' scrap metal contracts to be delivered by mail in (location), by the
United States Postal Service, according to the directions thereon, each such use of the mails
being a separate Count of this Indictment and each constituting a separate violation of Title 18,
United States Code, Section 1341:

Count Sender Addressee Approx. Date

of Mailing

2      

3      

In McNally v. United States, 483 U.S. 350 (1987), the Supreme Court held that the mail fraud
statute did not apply to schemes to defraud citizens of their intangible right to honest
government. Subsequently, in Carpenter v. United States, 484 U.S. 19 (1987) , the Supreme
Court clarified that the mail fraud statute did apply to schemes to defraud a victim of intangible
property rights.(22) In 1988, Congress amended the mail fraud statute to expressly extend its
coverage to include "a scheme or artifice to deprive another of the intangible right of honest
services",(23) thus expressly overruling McNally. As a consequence, the mail fraud statute applies
to any fraudulent scheme involving a monetary or property interest, whether that interest is
tangible or intangible, and to the intangible right to honest services.

In drafting a mail fraud charge, it is not necessary to allege that the scheme or artifice
contemplated a use of the mails in its execution.(24) It is only necessary to prove that the use of
the mails was reasonably foreseeable.(25) Each separate use of the mails constitutes a separate and
distinct offense.(26)

Other forms of mail fraud frequently alleged in antitrust indictments, aside from the mailing of
bids, include the mailing of executed contracts from the owner to the low bidder and the mailing
of payments or proceeds from the contract that was awarded to the low bidder.(27) It is necessary
to draft the indictment so that the item that is mailed can be proven to have been mailed in
furtherance of the scheme and not after the scheme was already completed. In any bid-rigging or
price-fixing conspiracy, the object of the conspiracy is not just to rig bids or to fix the prices, but
to obtain financial remuneration.(28) Therefore, mailing of bids, mailing of contracts or the
mailing of financial proceeds in payment of contractual work fall within the object of the
scheme, and the mailings can be proven to have been in furtherance thereof.(29)

Frequently, the mailing of a bid that contains a fraudulent representation, such as a false non-
collusion affidavit will constitute the basis of a mail fraud charge. It is important to note,
however, that the existence of such a false representation is not necessary to a mail fraud charge.
(30)
A scheme to defraud may be actionable even though no actual misrepresentation is contained
in the mailing.(31)

2. Wire Fraud, 18 U.S.C. § 1343

As with mail fraud, wire fraud is another non-antitrust violation that is found with increasing
frequency in indictments stemming from antitrust investigations.(32) The essential elements of a
wire fraud offense are:

1. The devising of a scheme and artifice to defraud, and

2. A transmittal in interstate or foreign commerce by means of wire, radio or television
communications of writings, signs, signals, pictures, or sounds for the purpose of executing the
scheme or artifice to defraud.(33)

Since the wire fraud statute was patterned after the mail fraud statute, mail fraud principles have
been applied to wire fraud prosecutions. Each use of an interstate instrumentality constitutes a
separate offense.(34) The Division has successfully charged what amounted to attempted bid-rigs
or price-fixes as a wire fraud where interstate telephone calls were used to attempt to set up the
conspiracy.(35)
An indictment under 18 U.S.C. § 1343, must sufficiently charge the two necessary elements of
the offense -- that the accused devised and intended to devise a scheme and artifice to defraud
and transmitted by means of wire, radio or television communication in interstate or foreign
commerce, any writings, signs, signals, pictures or sounds for the purpose of executing such
scheme. One indictment prosecuted by the Division charged the defendants with bid-rigging and
with three counts of wire fraud based upon the transmission of bid prices from the defendants to
the owner by use of telexes. The wire-fraud-charging paragraphs of the indictment were as
follows:(36)

Beginning sometime in or about February 1980 and continuing thereafter until at least September 1981,
the exact dates being unknown to the Grand Jury, the defendants and co-conspirators, devised and
intended to devise a scheme and artifice to defraud Nash of:

a. money; and
b. its right to free and open competition for the bidding on the Smallville job, such bidding to be
conducted honestly, fairly, and free from craft, trickery, deceit, corruption, dishonesty and
fraud.

It was part of the aforesaid scheme and artifice to defraud that the defendants and co-conspirators
would and did:

a. allocate the Smallville job to XYZ Company; and

b. submit collusive, noncompetitive, and rigged bids to Nash for the Smallville job.

On or about the dates set forth below, the defendants named in each count listed below, for the
purpose of executing and carrying out the scheme and artifice to defraud, did knowingly and
willfully transmit and cause to be transmitted, by means of wire communication in interstate
commerce, certain signs, signals, and sounds; namely telexes containing bids, from the locations
listed below to Nash in Metropolis, New York. Each such use of the wire constitutes a separate
count of this indictment and a separate violation of Title 18, United States Code, Section 1343.

COUNT TWO

Defendants: XYZ Company  

  John Jones  

Transmitted from: Gotham, Indiana  

Transmitted to: Metropolis, New York  

Wired on or about: April 21, 1980  

COUNT THREE

Defendants: XYZ Company  

  John Jones  

Transmitted from: Gotham, Indiana  

Transmitted to: Metropolis, New York  

Wired on or about: July 23, 1980  

COUNT FOUR

Defendant: Richard Doe  

Transmitted from: Littletown, Ohio  

Transmitted to: Metropolis, New York  

Wired on or about: April 21, 1980  

The aforesaid scheme and artifice to defraud was carried out, in part, within the Southern District
of Indiana within five years preceding the return of this indictment.

3. False statements, 18 U.S.C. § 1001

Another statute that has been used successfully as a companion criminal count to a Sherman Act
indictment is 18 U.S.C. § 1001, False Statements.(37) Proof of five elements is essential to sustain
a conviction under this statute: (1) a statement, (2) falsity, (3) materiality, (4) specific intent and
(5) agency jurisdiction.(38) A violation requires proof that the defendant had the specific intent to
make a false or fraudulent statement.(39) This requires that the statement be made knowingly or
willfully. This element must, of course, be alleged in the indictment.

In a case involving the Oklahoma Department of Transportation, the indictment charged a

Sherman Act violation in count 1. In the definitions section, federal aid highway was defined. In
the trade and commerce paragraph, the role of the Federal Aid Highway Act, the bidding process
of the Oklahoma Department of Transportation, the non-collusion affidavit required by the
Oklahoma Department of Transportation and the federal highway administration and the
Oklahoma statute requiring competition on public contracts were all set forth. In the false
statement count of the indictment, these paragraphs were realleged. The charging portion of the
false statement count then continued:
On or about October 26, 1979, in the Western District of Oklahoma, (company) and (Defendant),
defendants herein, willfully and knowingly made and caused to be made a false, fictitious and fraudulent
statement as to material facts in a matter within the jurisdiction of the United States Department of
Transportation, Federal Highway Administration, an agency of the United States, in an affidavit
submitted to the Oklahoma Department of Transportation as part of (company)'s bid proposal on
Federal-Air Project F-91(15) in which the defendants stated and represented that:

John Doe, of lawful age, being first duly sworn, on oath says, that (s)he is the agent authorized
by the bidder to submit the attached bid. Affiant further states that the bidder has not been a part
of any collusion among bidders in restraint of freedom of competition by agreement to bid at a
fixed price or to refrain from bidding; or with any state official or employee as to quantity,
quality or price in the prospective contract, or any other terms of said prospective contract; or in
any discussions between bidders and any state official concerning exchange of money or other
thing of value for special consideration in the letting of a contract.

when in truth and in fact, as the defendants then knew, (defendant) and (company) had
participated in collusion in connection with the bid proposal for the aforesaid Federal-Aid
highway construction project, let by the State of Oklahoma on October 26, 1979, in violation of
Title 18, United States Code, Section 1001.

4. False, fictitious or fraudulent claims against the government, 18 U.S.C. §  287

Section 287 is very similar in form and content to § 1001, discussed above. Section 1001
involves falsification of any matter within the jurisdiction of a department or agency of the
United States but does not require the presentation of a false claim against the United States or
the presentation of fraudulent forms or documents in aid of making such claims. Section 287
does involve the presentation of false claims against the United States. In most respects, § 287's
purpose is similar to and can be construed in the same manner as § 1001. However, in contrast to
§ 1001, § 287 requires proof of two additional elements: (1) a claim on the United States for
money or property; (2) a presentation of a claim.(40)

Under § 287, it is a violation if defendants directly present a false claim or "cause" a false claim
to be presented. A violation can be found whenever a person submits a false or fraudulent claim
to an individual, municipality, or state government knowing that funds for the goods or services
involved come, at least in part, from the Federal Government.

Section 287 is applicable whenever antitrust violations cause an increase in the cost to the United
States of goods or services, whether the goods or services are purchased directly or indirectly, in
whole or in part,and where defendant submits false or fraudulent claims knowing that part of the
funds they will be receiving come from the United States.(41)

5. Conspiracy to defraud the Government with respect to claims, 18 U.S.C. §  286

Section 286 is a specific conspiracy statute designed to make conspiring to commit acts which
violate § 287 illegal. As with § 287, § 286 requires a scheme to present a false claim to the
United States for money or property. The difference, of course, is that § 286 does not require the
actual presentation of the claim, merely the formation of the scheme.(42) Though not widely used,
the advantage to § 286 is that it carries a ten-year prison sentence, twice that of a § 287, § 1001
or mail or wire fraud conviction.

6. Conspiracy to commit offense or to defraud United States, 18 U.S.C. §  371

Section 371 is the general conspiracy statute of the criminal code. This section covers two
different conspiracies: (1) conspiracy to commit any offense against the United States and (2)
conspiracy to defraud the United States. Because the Sherman Act itself requires concerted
action on the part of the defendants, it is not possible on double jeopardy grounds to charge a
conspiracy to commit a conspiracy. It is proper, however, to charge the general § 371 violation in
connection with violation of other statutes, such as mail fraud and false statements.

The second clause of § 371, conspiracy to defraud the United States, is an independent crime in
and of itself not involving the violation of another substantive offense. As such, it is very broad
in scope. Fraud as used in § 371 encompasses not only conspiracies that might involve loss of
Government funds but also "any conspiracy for the purpose of impairing, obstructing, or
defeating the lawful function of any department of Government."(43) In the antitrust context,
§ 371 could be used in those cases where federal contracts are inflated due to bid-rigging or other
antitrust violations. It might also be used in cases where use of the "interstate commerce"
element of a Sherman Act violation is problematic. Since § 371 does not require pecuniary loss
to the United States, § 371 could be charged whenever antitrust activity results in the impairment
or obstruction of any Government agency's function.(44)

7. Major Frauds Act, 18 U.S.C. § 1031

The Major Frauds Act, 18 U.S.C. § 1031, enacted in 1988, provides in pertinent part that:
(a Whoever knowingly executes, or attempts to execute any scheme or artifice with the intent --
)
(1 to defraud the United States; or
)

(2 to obtain money or property by means of false or fraudulent pretenses,

) representations, or premises, in any procurement of property or services as a prime
contract or with the United States or as a subcontractor or supplier on a contract in
which there is a prime contract with the United States, if the value of the contract,
subcontract, or any constituent part thereof, for such property or services is
$1,000,000 or more shall . . . be fined not more than $1,000,000, or imprisoned not
more than 10 years or both.

18 U.S.C. § 1031 applies to Sherman Act procurement conspiracies where the United States is a
party to the procurement contract and the value of the contract is $1,000,000 or more. It applies
to both executed and attempted frauds. Pleading of a § 1031 count is similar to that for the
second clause of a § 371 count with the added requirement that an allegation be made that the
United States was a party to a contract involving $1,000,000 or more.

8. False declarations and perjury

There are two principal federal perjury statutes, 18 U.S.C. § 1621 and § 1623. The elements of
both statutes are substantially the same.(45)

Since virtually all perjury prosecutions brought by the Division will occur in a court proceeding
or before the grand jury, only the elements of 18 U.S.C. § 1623 will be described. There are five
such elements that should be addressed in an indictment:

1. the testimony was given under oath;

2. the testimony was given in a proceeding before or ancillary to a court or grand jury;
3. the testimony was false in one or more of the respects charged in the indictment;
4. the false testimony was knowingly given; and
5. the false testimony was material.(46)

The identity of the oath giver and proof that such person was competent or authorized to
administer the oath are not essential elements of § 1623 and need not be included in the
indictment. Instead, § 1623 merely requires the prosecution to prove that the defendant was
under oath at the time the false statement was made.(47)

The third element of the offense is established through extrinsic proof that the testimony given
by the accused was false in one or more of the respects charged, and is subject to the same
standard of proof, beyond a reasonable doubt, that applies in any criminal case.(48) In a false
statement count that avers several allegedly false statements in the same count, proof of any one
of the specifications is sufficient to support a guilty verdict.(49) Generally, the Division's practice
is to have a separate count for each separate fraudulent statement. However, related statements
that are in essence the same answer to a rephrased question should be contained in the same
count.

The fifth element, materiality of the false declaration, is a legal question for the court's
determination.(50) Materiality has been defined broadly to include anything "capable of
influencing the tribunal on the issue before it."(51) Before drafting the indictment, consult the law
of the circuit for the jurisdiction you will be in for cases defining materiality.

It is not a defect to omit a specific allegation in the indictment that defendant did in fact recall
something to which he falsely responded he did not recall(52) as long as the court instructs the jury
that in order to convict, it must find that defendant did in fact recall one or more of the matters in
question. Nonetheless, the better practice is to include language in the charging paragraph that
defendant did in fact recall the matter or matters to which he responded he didn't recall.(53)

9. Obstruction of justice, 18 U.S.C. § 1503

An obstruction of justice charge is appropriate when prosecutors believe that there has been
interference with the grand jury's investigative process.(54) The bases for such a charge stem most
commonly from destruction or alteration of documents that were called for in a grand jury
subpoena, or that were material to the investigation, or from an attempt to influence someone's
grand jury testimony.(55) Such charges are usually prosecuted under the broader parameters of the
omnibus clause of 18 U.S.C. § 1503.(56)

In charging that the defendant "endeavors" to influence, obstruct or impede, success by the
defendant is not necessary.(57) As the Fifth Circuit noted in United States v. Howard, 569 F.2d
1331, 1337 (5th Cir.), cert. denied, 439 U.S. 834 (1978): "Section 1503 is a contempt statute . . .
and as such is directed at disruptions of orderly procedure. Thus, it is wholly irrelevant whether
defendants' actions had no ultimate effect on the outcome of the grand jury investigation: the
question is whether they disturbed the procedure of the investigation."(58)

Several courts of appeal have addressed the issue of whether perjured testimony can form the
basis of an obstruction of justice prosecution. While the courts have held that "mere perjury"
does not amount to obstruction, the great weight of authority holds that the giving of false
testimony can amount to obstruction of justice when the testimony has impeded the
administration of justice.(59) For example, the Fourth Circuit in United States v. Caron, 551 F.
Supp. 662 (E.D. Va. 1982), aff'd mem., 722 F.2d 739 (4th Cir. 1983), cert. denied, 465 U.S. 1103
(1984), upheld (without an opinion) a false testimony-based § 1503 indictment and a concurrent
indictment for perjury under § 1623 which had as its basis the same false testimony.

Because of the similarity in the evidence required to prove violations of §§ 1623 and 1503, staffs
can expect that a defendant may make a multiplicity motion and argue that false statements and
obstruction of justice merge into the same offense on the facts of the case. However, two courts
of appeal have rejected the argument that concurrent convictions under §§ 1503 and 1623
constitute double jeopardy on the grounds that the statutory elements of each offense are "clearly
distinct" and thus each statute requires proof that the other does not.(60)

In addition to prohibiting the intimidation of and retaliation against grand and petit jurors and
judicial officers, 18 U.S.C. § 1503 contains a catch-all, or omnibus clause prohibiting corrupt
"endeavors to influence, obstruct or impede, the due administration of justice." In an omnibus
clause prosecution, the Government must prove:

1. there was a pending judicial proceeding;

2. the defendant knew that there was a pending judicial proceeding;
3. the defendant endeavored to influence, obstruct or impede the due administration of justice;
and
4. the defendant's acts were done knowingly and corruptly. (61)

Each of these elements must be addressed in the indictment.

10. RICO
The elements of a RICO violation are: (1) the existence of an enterprise; (2) that the enterprise
affected interstate commerce; (3) that defendant was employed by or associated with the
enterprise; (4) that defendant participated, either directly or indirectly, in the conduct of the
affairs of the enterprise; and (5) that defendant participated through a pattern of racketeering
activity; i.e., through commission of at least two racketeering acts.(62)

The crux of a RICO offense is that the defendant participated in the conduct of the affairs of the
enterprise through a pattern of racketeering activity. Proof of such participation requires a
showing that the defendant committed at least two predicate acts of "racketeering activity" as
defined in 18 U.S.C. § 1961(1). In addition, a showing must be made that the acts of racketeering
were related to the conduct of the affairs of the enterprise and to the defendant's position within
the enterprise.(63) Proof that the enterprise benefited from such conduct is not required.(64) The
predicate acts of racketeering which may be charged include mail fraud, which appears
specifically as a predicate offense under 18 U.S.C. § 1961(1). Sherman Act violations are not
predicate acts, but mail fraud or other Title 18 offenses that are committed along with Sherman
Act violations are predicate acts.(65) The Division must obtain prior approval from the Criminal
Division before seeking the return of an indictment that includes a RICO charge.(66)

11. Sherman Act Misdemeanor

Section 14 of the Clayton Act, 15 U.S.C. § 24, prescribes misdemeanor penalties for corporate
officers participating in antitrust violations. Since 1974 when violations of the Sherman Act
became felonies, this misdemeanor charge has never been used, and it continues to be the
Division's policy that all antitrust violations shall be prosecuted as felonies.

12. Bribery

Occasionally, grand jury investigations will yield evidence of non-antitrust violations, such as
commercial bribery. In United States v. Ross, 86-80323 (E.D. Mich.), a former purchasing agent
for General Motors was charged with mail fraud stemming from a bribery/payoff scheme which
was uncovered during the course of an investigation into bid-rigging by electrical contractors.
Because the bribe involved the payment of money by a contractor to the purchasing agent, the
agent was charged with having engaged in a scheme and artifice to deprive General Motors of
money, its right to the loyal services of the agent and of its right to a bid process free from
dishonesty. The Division will prosecute such a case that is discovered during a grand jury
investigation even if there is no connection to an antitrust violation.

The Travel Act, 18 U.S.C. § 1952, has also successfully been used to prosecute commercial
bribery in the jurisdictions which have defined "bribery" as used in the Act to include instances
of commercial bribery.(67)

C. Defendant Selection

Defendant selection is an area where prosecutorial discretion will most require careful
consideration. The Principles of Federal Prosecution state that, ordinarily, the attorney for the
Government should initiate or recommend federal prosecution if the attorney believes that the
person's conduct constitutes a federal offense and that the admissible evidence probably will be
sufficient to obtain and sustain a conviction. Thus, under the Principles, the standard is one of
"probable conviction."

Internally, it is the Division's policy to prosecute corporations that have engaged in criminal
activity and also their officers and agents when the evidence so warrants. Because a corporation
cannot be sentenced to jail, prosecution of individuals who commit the illegal acts is one of the
most potent deterrents to antitrust violations. The case law on corporate liability for the illegal
acts of its agents in the antitrust context has uniformly been favorable.(68)

One of the most important considerations in defendant selection will be the impact a prosecutor's
decision will have on the outcome at trial. Unless the evidence is quite strong, inclusion of
marginal or "fringe" defendants will not help with conviction before a jury. The lack of factual
strength as to marginal defendants will often weaken the overall strength of the case against
other defendants. In addition, it must be remembered that for every defendant added to an
indictment, the trial judge will accord that many more jury selection strikes, each Government
witness will face additional cross-examination, and the jury will hear that many more opening
statements and closing arguments in favor of the defense.

Division attorneys must strive to apply a consistent standard that will result in fairness and even-
handed treatment for all potential defendants. The prosecutor must be guided by the Principles of
Federal Prosecution and see to it that cases are brought when warranted and that appropriately
culpable defendants are included within the prosecution.

D. Drafting Pitfalls
1. Intent

In bid-rigging and price-fixing indictments, words such as "intentionally" should not appear
because the criminal intent required to violate the Sherman Act is defined as general intent, not
specific intent. That is, in a per se case, the prosecution may establish the requisite criminal
intent by demonstrating that the defendants knowingly joined or participated in a conspiracy to
engage in the prohibited activity.(69) The prosecution does not need to prove that a defendant had
a specific intent to restrain trade.(70) Accordingly, proof that the defendant knowingly joined or
participated in a conspiracy to fix prices sufficiently establishes defendant's "conscious purpose"
to restrain trade.(71) No additional evidence of intent is required.

In indictments charging non-Sherman Act offenses, you should track the language of the statute
involved in the charging paragraphs. What you must be aware of is case law concerning intent
that is engrafted onto certain statutory charges that must be reflected in the indictment. For
instance, the statutory elements of obstruction of justice, 18 U.S.C. § 1503, require only that the
defendant endeavored to influence, obstruct or impede the due administration of justice.
However, when the obstruction of justice charge is based on defendant's perjury, the Government
must allege that defendant "did influence, obstruct and impede" justice as well as "endeavored to
influence, obstruct and impede" justice.(72)

2. Vagueness
An indictment is legally sufficient if it sets forth the elements of the offense, informs the
defendant of the nature of the charges against him, apprises the defendant of what he must be
prepared to meet at trial and protects the defendant against double jeopardy.(73) A valid antitrust
indictment need not list specific transactions nor name all co-conspirators.(74) Nonetheless, a
standard defense practice has been to file motions to dismiss based upon lack of specificity in
indictments charging an antitrust offense. Courts have routinely denied such motions as long as
the indictment carefully followed the language of the Sherman Act.(75) Specifically, motions to
dismiss because an indictment fails to allege an overt act fail because no overt acts need be
alleged or proved in Sherman Act cases.(76)

3. Surplusage

Surplusage refers to language in an indictment that is unnecessary to its meaning, and does not
affect its validity. Language in an indictment that is neither material nor relevant to the charges
contained in the indictment may be deemed to be surplusage.(77)

In drafting indictments, attorneys should try to avoid surplusage. The trial court has discretion to
strike language from an indictment because it is surplusage. A court should do so only if the
language is irrelevant, inflammatory and prejudicial.(78)

E. Statute of Limitations

A properly pled charge must contain an allegation that the offense charged was formed or carried
out, at least in part, within the jurisdiction of the federal district court where the indictment is
filed and within the period of limitations for the offense involved. A typical jurisdiction and
venue paragraph reads: "The conspiracy charged in this indictment was carried out, in part,
within the __________ District of ________ within the five years preceding the return of this
indictment."

Bid-rigging and price-fixing conspiracies prohibited by the Sherman Act are subject to a five-
year statute of limitations.(79) Such conspiracies begin when the parties agree to rig bids or fix
prices.(80) In prosecutions under the Sherman Act and other conspiracy statutes that do not require
proof of an overt act,(81) the statute of limitations begins to run only when the conspiracy
terminates, either because the offense has been abandoned or it has been completed.(82)

A bid-rigging conspiracy continues, and the statute of limitations does not start to run, until each
conspirator receives the benefits contemplated by the conspiracy. These benefits have included
payoffs among the conspirators as well as payments by the owner to the conspirator who
performs the rigged contract.(83) When relying on a payoff or payments theory for statute of
limitations purposes, the indictment should reference the date the payment occurred in the
"offense charged" paragraph as follows: "On or about ___________ and continuing thereafter
until at least (date of final payment)." Also, it should be alleged that receipt of payment under the
contract was one of the conspiracy objectives. The following is an example: "For the purpose of
forming and effectuating the aforesaid combination and conspiracy, the defendants and co-
conspirators did those things which, as hereinbefore charged, they combined and conspired to do,
including among other things: (d) having defendant _____________ perform the electrical
construction portion of the _________________ project and receive payments from
______________ for said performance."

F. Charging Single or Multiple Conspiracies

1. Single vs. multiple conspiracies

When drafting an indictment, the allegations must mirror what the evidence demonstrates -- if
more than one conspiracy was involved, a defendant may properly be charged with more than
one violation.(84) If, on the other hand, the evidence supports one overall conspiracy with several
subparts, it is entirely appropriate to charge a single conspiracy.(85) It is likely that no matter
which path you choose, you will be challenged by defense counsel for having chosen the wrong
path.

Whether to charge the defendants' conduct as a single conspiracy or as multiple conspiracies may
be difficult to evaluate, primarily because it is a mixed question of law and fact. In general, the
final charging decision rests on an analysis of the facts; as the facts change, so may conclusions
differ.(86) Thus, making the correct charging decision often consists of attempting to fit the facts
of the instant case within the facts of a previously-decided case, preferably within the same
circuit. Nevertheless, this section gives an overview of the legal aspect of the single vs. multiple
conspiracies issue. The consequences of making the wrong charging decision are dealt with in
the next section, which covers variance and double jeopardy. However, the law on determining
whether certain conduct forms the basis for a single vs. multiple conspiracies charge and the law
on variance and double jeopardy are so bound together that this section and the next are best
considered as a unit.

There is a consensus as to what constitutes a conspiracy, what is required to establish a

conspiracy, and how to connect a particular defendant to a given conspiracy. "Agreement is the
primary element of a conspiracy."(87) and ". . . the precise nature and extent of the conspiracy
must be determined by reference to the agreement which embraces and defines its objects."(88)
Consequently, distinct agreements constitute distinct violations of the law and may be the subject
of distinct prosecutions. Regardless of whether the Government proves those agreements by
direct evidence of written agreements, by statements made by the parties, or by inference from
the actions of the defendants, the conduct prosecuted in a conspiracy case is the agreement and
not any particular action taken by the defendants.

To establish the existence of a conspiracy and connect a defendant to it, three elements must be
proved:(89) (1) knowledge of the object of the conspiracy, (2) knowledge of the composition of
the conspiracy, and (3) intent to join the conspiracy. "The agreement may be shown if there be
concert of action, all the parties working together understandingly, with a single design for the
accomplishment of a common purpose."(90) While the Government is required to prove that the
defendant knows the essential nature of the conspiracy, it is not required to prove that he knows
all of the conspirators or all of the details of the conspiracy, or even all of the means by which
the objects of the conspiracy will be accomplished.(91)

Given the necessarily covert nature of a criminal conspiracy, none of these elements is likely to
be provable by direct evidence. Thus, proof of an illegal agreement often depends on inferences
drawn from circumstantial evidence.(92) "Often [such] crimes are a matter of inference deduced
from the acts of the persons accused and done in pursuance of a criminal purpose."(93) Indeed, it
is not even necessary to prove a formal agreement existed to prove a conspiracy. The Supreme
Court has long held that an agreement could be based on a tacit understanding, created by a long
course of conduct. "Not the form or manner in which the understanding is made, but the fact of
its existence . . . [is] the crucial matter[ ]. The proof, by the very nature of the crime, must be
circumstantial and therefore inferential. . . ."(94)

It is the need to prove conspiracies by inference that makes determining the existence of single
vs. multiple conspiracies so difficult. The scope of an agreement must be deduced from the
conduct that can be proved. Courts are continually struggling to find some means to analyze the
facts in conspiracy cases that will lead to an objective, rather than totally subjective,
determination of the scope of conspiracies. In part, the inferences that courts have been willing to
draw depend upon the structure of the conspiracy, what has sometimes been called the "nature of
the enterprise."

The starting point of any discussion of the scope of a conspiracy where only one conspiracy
statute is involved,(95) as would be the case in the overwhelming majority of Antitrust Division
prosecutions, is Braverman v. United States, 317 U.S. 49 (1942). In Braverman, the Government
indicted certain defendants on seven separate conspiracy counts, each to violate a separate
substantive section of the Internal Revenue Code. All of the counts were brought under the
general criminal conspiracy provision of the criminal code, what today would be 18 U.S.C.
§ 371. It was proved at trial that there was a single continuing agreement among the defendants
that had as its objectives the violation of the several substantive revenue laws, and the issue to be
resolved was whether each object could be punished as a separate conspiracy under the general
conspiracy law. The Court held that they could not:

[T]he precise nature and extent of the conspiracy must be determined by reference to the agreement
which embraces and defines its objects. Whether the object of a single agreement is to commit one or
many crimes, it is in either case that agreement which constitutes the conspiracy which the statute
punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies
because it envisages the violation of several statutes rather than one. (96)

Braverman stands for the proposition that the scope of a conspiracy is determined by what the
parties agreed to do rather than by how many overt acts were involved or what the objects of the
agreement might have been. However, while Braverman squarely focuses the single vs. multiple
conspiracies issue on the scope of the agreement, it does little to illuminate the question of how
to determine that scope.

Historically, most conspiracies were classified as either "chain" conspiracies or "wheel"

conspiracies. Although it is important to understand the basics of chain and wheel conspiracies,
antitrust conspiracies often do not conveniently fit either model and must be independently
analyzed to determine the scope of the conspiracy.

"Chain" conspiracies are basically those where various people are engaged at different levels of
an enterprise involving the same subject matter, the paradigm being a conspiracy to import and
distribute narcotics. There is a chain of individual agreements between growers, manufacturers,
exporters, importers, distributors, and "retailers" in a typical narcotics conspiracy, but the courts
have chosen to ignore the individual agreements and consider all those involved in the overall
scheme to have agreed together to a single conspiracy.

An individual associating himself with a 'chain' conspiracy knows that it has a 'scope' and that for its
success it requires an organization wider than may be disclosed by his personal participation. Merely
because the Government in this case did not show that each defendant knew each and every
conspirator and every step taken by them did not place the complaining appellants outside the scope of
the single conspiracy. Each defendant might be found to have contributed to the success of the overall
conspiracy, notwithstanding that he operated on only one level. (97)

So long as a defendant knows that he is part of a "chain" conspiracy that depends for its success
on more than his own agreement, he will be considered a party to all that is necessary for the
broader conspiracy's success. He does not have to know the exact scope or composition of the
conspiracy.(98)

Unlike the "chain" conspiracy, where people are performing various tasks at different levels to
accomplish what amounts to one illegal purpose, "wheel" conspiracies consist of a central person
or persons (the "hub") performing basically the same illegal acts with separate other groups (the
"spokes") who are not otherwise engaged in unlawful conduct. The issue is whether the hub is
engaged in separate conspiracies with each spoke or whether the hub and all of the spokes are
engaged in a single conspiracy.

In Kotteakos v. United States, 328 U.S. 750 (1946), one man assisted various other persons to
file fraudulent applications for Federal Housing Administration loans. There was no evidence
that any of the spokes knew that the others existed, nor did any spoke profit in any way from the
loans granted to another. This total lack of interdependence and knowledge easily convinced the
Court that there was no single conspiracy.

The Court reached the opposite conclusion in Blumenthal v. United States, 332 U.S. 539 (1947).
The crime involved was selling wholesale liquor at a higher price than the law allowed. Two
wholesale dealers working together obtained the liquor. Three middlemen, each working
independent of the others, sold the liquor to various retailers. When the liquor was delivered, the
middlemen collected the cash from the retailers and paid the cash to the wholesalers.

The Government charged that all five men were involved in a single conspiracy. At trial, the
wholesalers alleged that they were not the brains behind the scheme, that another man actually
owned the wholesale liquor, and that they merely received a commission for selling what they
did. None of the middlemen had known this; they all believed that the wholesalers owned the
liquor they were selling. It was also proved that each middleman, though working independently,
knew in a general sense that more middlemen existed and that more liquor was being sold
illegally by the wholesalers than each individual was selling.

The Court found a single conspiracy. It was sufficient to show that each conspirator knew the
essential nature of the scheme that he was joining without a need to prove that he knew the exact
details of the plan or of the participation of others. Knowledge of the general outline of the
overall scheme and knowing participation in that scheme were sufficient where each defendant's
actions were in furtherance of the same goal, even though the middlemen were indifferent to the
success of any but their individual part of the scheme. In this sense, the reasoning is similar to
"chain" conspiracy reasoning where knowledge of a broader scheme plus participation is enough
to make a defendant a party to the overall conspiracy, even though he is only concerned with his
individual part, where success of the overall goal is dependent on the success of each of the
parts.

Perhaps the best known example of an antitrust case that fits the model of a wheel conspiracy is
Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939). In Interstate Circuit, the manager of
a group of motion picture exhibitors sent copies of a letter to eight motion picture distributors,
each letter naming all of the distributors as addressees, setting forth certain demands (largely
restrictions on later-run exhibitors) that would have to be met before Interstate would continue to
show the distributors' films in its theaters. Subsequently, all eight distributors substantially
complied with Interstate's demands. The Government charged the distributors with conspiring
among themselves to impose the restrictions on later-run exhibitors, and the district court agreed.
On appeal, the Supreme Court affirmed.

While the Court found sufficient evidence in the record to support a finding of overt agreement
among the distributors, it held that an overt agreement was not essential to prove an unlawful
conspiracy in that case.

It was enough that, knowing that concerted action was contemplated and invited, the distributors gave
their adherence to the scheme and participated in it. . . . Acceptance by competitors, without previous
agreement, of an invitation to participate in a plan, the necessary consequence of which, if carried out,
is restraint of interstate commerce, is sufficient to establish unlawful conspiracy under the Sherman Act.
(99)

Thus, the Court found that knowledge of the general contours of a conspiracy, acting with intent
to further the goals of the conspiracy, and actual interdependence between the members in the
success of the overall scheme would suffice to prove the existence of an agreement regardless of
lack of perceived interdependence or explicit agreement among the spokes of the wheel.

In addition to obvious "chain" and "wheel" conspiracies, there are some agreements that have
characteristics of both "wheel" and "chain" conspiracies and some that really look like neither,
and the federal courts have long recognized this. Indeed, more recent conspiracy cases in the
federal courts have generally abandoned the older "wheel" and "chain" type of analysis.(100)
Nevertheless, much of the law on single vs. multiple conspiracies was developed using the
"wheel" and "chain" analyses, and the principles involved in those analyses are useful in
analyzing all types of conspiracies.

Recent cases have used a "totality of the circumstances" test to resolve the single/multiple
conspiracy question.(101) This test requires the consideration of all of the available evidence to
determine whether there is one conspiracy or several. While nothing is beyond the bounds of
consideration under a "totality of the circumstances" test, those courts that have adopted this test
have developed checklists of the most important factors to consider before reaching a decision.
Such factors include: (1) the number of alleged overt acts in common, (2) the overlap in
personnel, (3) the time period during which the alleged acts took place, (4) the similarity in
methods of operation, (5) the locations in which the alleged acts took place, (6) the extent to
which the purported conspiracies share a common objective, and (7) the degree of
interdependence needed for the overall operation to succeed.(102) The weight to be accorded each
of these factors varies from court to court and case to case, and it is entirely possible for two
different people to analyze the same fact situation using this list and, depending on the weight
they assign to the different factors, reach contradictory conclusions. Nevertheless, this is the test
that courts are adopting in considering whether a given course of conduct is one or several
conspiracies.

The "totality of the circumstances "test is particularly useful in most Division prosecutions
because the fact patterns do not fit comfortably into either the "wheel" or "chain" conspiracy
model. There is no central core of conspirators as in a "wheel" conspiracy, nor are various groups
of conspirators working for the same objective at different levels as in a "chain" conspiracy.
These conspiracies, perhaps typified by the Division's road-building cases, involve diffuse
agreements spread out over time, territory, and personnel. They may involve conduct occurring
in several states or regions, there may appear to be both national and local aspects to the
violations, and there may be various degrees of overlap in personnel. Although such complicated
fact patterns make the determination of single vs. multiple conspiracies difficult, the basic
questions that must be answered remain the same: Were the defendants generally aware of the
objectives and composition of the larger conspiracy, and was the success of the various parts of
the conspiracy necessary to the success of the whole and vice versa? Mere knowledge of a broad
conspiracy is not enough. But knowledge and a stake in the success of the broad conspiracy may
be enough to be considered a part of the broad conspiracy. And, once the outer boundaries of an
agreement have been determined, that becomes the conspiracy that must be charged; it may not
be broken down into numerous lesser conspiracies because it embraced numerous lesser
objectives.(103)

A case brought by the Division that has had a significant impact in this area is United States v.
Consolidated Packaging Corp., 575 F.2d 117 (7th Cir. 1978), a part of the Division's folding
carton litigation. The Government proved a longstanding industry practice whereby folding
carton manufacturers could clear bids on new contracts in advance and get authorization to raise
prices to existing customers. Consolidated made use of this system on a number of occasions,
and the Government alleged that Consolidated was a member of a nationwide conspiracy.
Consolidated claimed on appeal that the Government had either not proved a single nationwide
conspiracy or, if it had, had failed to prove that Consolidated had joined.

The court found that a single conspiracy was shown by the evidence and, in effect, that this had
been admitted by 70 other defendants. Thus, the opinion deals primarily with the issue of
whether Consolidated had joined the conspiracy. The court's reasoning on the issue of single vs.
multiple conspiracies is as follows:

This illegitimate business practice appears to have flourished among so many of the conspirators for so
long that it could reasonably be considered the customary way of doing business. All the facts and
circumstances fully justify the view that a custom-made conspiratorial understanding had been
developed and fashioned in a size and style most suited to their particular needs. Whenever the needs
of any conspirator might require it, the conspirator had only to plug into the system, get 'on the phone,'
and make the necessary arrangements. This system which developed and remained viable among them
to be available for use by any conspirator was a pervasive aspect of the conspiracy. The many minor
individual or particular conspiracies which the system fostered and spawned were evidence of the
effectiveness of the general conspiracy. The conspiracy was in the nature of an industry utility, operated
totally for the benefit of its shareholders, the carton producing conspirators, and to the detriment of its
customers and the public.

...

Because of the nature of this conspiracy, it could not reasonably be expected that any one
conspirator would have full knowledge. Consolidated did not need full knowledge to participate
in the benefits of the conspiracy and therefore proof that Consolidated had some knowledge that
activities of the same type as practiced by them for the same mutual purposes must have been
widespread in the industry. We believe it may reasonably be inferred from the evidence that the
overall design, purpose and functioning of the conspiracy were within the reasonable
contemplation of Consolidated when it engaged in the episodes. Consolidated endeavored to
abide by and assist in the enforcement of the rules of the conspiracy. By its behavior,
Consolidated demonstrated it knew enough about the conspiracy to use it to serve its own
purposes when needed. There is more than suspicion; there was interested cooperation with a
stake in the venture.

The Consolidated court found that while, subjectively, each conspirator was only interested in its
own particular bid, there was such an established, interconnected bid-rigging system that,
objectively, each bid was facilitated by the overall agreement and the overall agreement was
strengthened by each rigged bid that made use of it. Thus, the court found a single agreement.

The court also stated that it would have been permissible for the Government to charge
numerous separate conspiracies rather than the overall conspiracy actually charged. If there was
a single nationwide agreement, Braverman holds that it is improper to charge individual
objectives of that single agreement as separate conspiracies. However, the Government is not
obligated to charge the fullest extent of a given conspiracy. It is free to charge different
defendants with being parties to different aspects of a larger conspiracy so long as each
defendant is charged with only one violation.

The broad language of Consolidated Packaging must be interpreted in light of the specific facts
of that case to avoid confusing a passive understanding that certain illegal conduct is an
acceptable way of business with an actual conspiratorial agreement. For example, a bank robber
might have a passive understanding that several of his friends would be willing and able, if
asked, to drive the getaway car, and that other friends would be willing and able, if asked, to
crack the safe the next time he robs a bank. That understanding does not amount to a conspiracy
between the bank robber and his friends. If the bank robber calls on two of his friends (one driver
and one safecracker) to help him rob Bank A and later calls on the same or different friends to
help him rob bank B, the Government may prosecute both conspiracies separately, as long as
both arrangements were negotiated "from scratch."(104)

The key issue in this area is whether the bid-rigging conspiracy is limited to the individual
rounds of bidding on each new contract. If individual negotiations concerning quid pro quos
must be engaged in by the persons interested in each award to determine whether an agreement
can be reached with respect to rigging that particular bid, and if the award will be bid
competitively if those negotiations fail, then each separately negotiated agreement is best viewed
as a separate conspiracy and not as part of some overreaching, on-going bid-rigging conspiracy.
(105)

A rather thorough examination of separate indictments brought by the Antitrust Division as part
of its road-building investigation, using the "totality of the circumstances" test to determine
whether they involved the same conspiracy, can be found in United States v. Ashland-Warren,
Inc., 537 F. Supp. 433 (M.D. Tenn. 1982). The defendant had pled guilty to rigging bids on
several highway construction contracts in Virginia, and was trying to have the instant
indictments -- alleging bid-rigging on several Tennessee highway construction contracts --
dismissed on double jeopardy grounds as part of the same conspiracy.

In a thoughtful analysis, the court first held that the Virginia and Tennessee conspiracies were
separate as a matter of law because the firms involved in each state were not in competition with
each other. The two sets of companies may have been aware of each other, and may have used
the same method of rigging bids, "[b]ut price-fixing by means of bid-rigging is flatly impossible
where the alleged conspirators are not also competitors."(106) The court then went on to apply the
"totality of the circumstances" test to the facts -- examining such factors as overlap in personnel
and time, methods of operation, degree of interdependence, etc. -- and concluded that the
conspiracies were separate as a matter of fact.(107)

The Tenth Circuit reached a different conclusion in United States v. Beachner Construction Co.,
729 F.2d 1278 (10th Cir. 1984), in which the court held a la Consolidated Packaging, that a
pattern of bid-rigging on construction contracts in Kansas going back several decades was but a
single conspiracy, with individual contract lettings separate objects of the one conspiracy. The
court was undoubtedly influenced by the existence of evidence -- unusual in a road-building case
-- that a statewide clearing agent had presided over bid-rigging meetings for several years. Those
meetings ended many years before the return of the indictment but the court may have believed,
incorrectly in the Division's view, that a single conspiracy continued into the period covered by
the indictment. Moreover, other parts of the court's opinion appear to confuse a passive
understanding with an actual agreement.(108)

While the Division generally has been successful in limiting Beachner to its particular facts,
attorneys can anticipate being second-guessed regardless of how an indictment is framed. If a
single broad conspiracy is charged, the defendant will argue that there were multiple
conspiracies. If multiple conspiracies are charged, the defendant will argue that there was only a
single conspiracy. All that can be done is to keep the essentials of single vs. multiple
conspiracies in mind when deciding how to charge. The key is the scope of the agreement.
However, this is not agreement in a subjective, contract sense of the word, for this would often
result in extremely narrow conspiracies. If the general contours of a conspiracy are known, all
those that interact with any other conspirators in such a way as to further the goals of the
conspiracy are parties to the conspiracy, and the sum of the interactions becomes the scope of the
agreement. Where groups of people interact in such a way as to further objectively independent
goals, they are not conspiring together and the individual groups may be prosecuted as multiple
conspiracies. That is the law. Inferring the true state of affairs from the facts is the problem.

2. Variance and double jeopardy problems in charging conspiracies

As noted in the previous section, in a complex factual situation whether the Government charges
a single conspiracy or multiple conspiracies, its decision is likely to be challenged by the
defendant. This section discusses those challenges.

The issue of single vs. multiple conspiracies can be raised by a defendant in two ways: the
Government charges a single conspiracy and the proof at trial reveals multiple conspiracies, or
the Government charges multiple conspiracies and the proof at trial reveals a single conspiracy.
The first scenario will be discussed under the rubric of variance; the second under double
jeopardy.

a. Variance

When the Government alleges a single conspiracy and its evidence shows multiple conspiracies,
the problem is a variance between the indictment and the Government's proof at trial. However,
the Supreme Court has clearly held that the real issue is not whether there is a variance in proof
but whether the variance is harmless or fatal -- the mere fact that there has been a variance is not
sufficient to overturn a conviction in the absence of prejudice. The seminal case on this point is
Berger v. United States, 295 U.S. 78 (1935), where the Court stated:

The true inquiry . . . is not whether there has been a variance in proof, but whether there has been such
a variance as to "affect the substantial rights" of the accused. The general rule that allegations and proof
must correspond is based upon the obvious requirements (1) that the accused shall be definitely
informed as to the charges against him, so that he may be enabled to present his defense and not be
taken by surprise by the evidence offered at trial; and (2) that he may be protected against another
prosecution for the same offense.(109)

As a practical matter, both of these conditions are met whenever the multiple conspiracies
proved at trial are fully contained within the single conspiracy charged. However, while the
Court's direction that a variance is fatal only when it "affects the substantial rights" of the
accused remains the law, the issues to be considered in making a decision on this point have been
broadened to cover more than the issues of surprise and double jeopardy specifically noted by
the Court in Berger.

The most common additional issue presented by a variance is the jury's ability to keep straight
the evidence presented with respect to the various defendants and the various conspiracies
actually proved, i.e., the jury's ability to avoid transferring guilt among separate conspiracies. In
deciding whether jury confusion has resulted from the variance, courts look at two key areas:
First, if the conspiracies ultimately proved had been charged separately, could they have been
joined together for trial; and second, was the jury properly instructed on the multiple
conspiracies issue. If joinder would, in fact, have been proper, then the existence of a jury
instruction requiring separate consideration of the conspiracies actually proved and each
defendant's connection to each conspiracy "largely attenuate[s] any prejudice flowing from the
establishment of a variance."(110)

In Berger, for example, the Government charged a single conspiracy involving five persons, and
the proof at trial showed two conspiracies with a common figure (who was not the defendant).
Although the Court did not discuss the jury instruction issue, it examined the record below and
expressly found that the defendant suffered no prejudice resulting from the variance.(111)

At the opposite extreme is Kotteakos v. United States, 328 U.S. 750 (1946), a classic "wheel"
conspiracy case. Thirty-two persons were indicted, 19 went to trial, and 13 had their cases
considered by the jury. At least eight separate conspiracies were shown at trial. The Court found
the connection between the conspiracies so slight and the risk of improper transference of guilt
so high that joinder would have been improper. The Court also noted the lack of a proper jury
instruction. Under these circumstances, the Court held that the variance was fatal.(112)

In between these two cases is United States v. Varelli, 407 F.2d 735 (7th Cir. 1969), cert. denied,
405 U.S. 1040 (1972), also a "wheel" conspiracy. As in Berger, the Government charged one
conspiracy but proved two at trial, each conspiracy having defendants in common. The court
found that the conspiracies were sufficiently close that joinder would have been proper.
Nevertheless, as a result of the lack of a proper jury instruction on guilt transference in multiple
conspiracies, the court found a fatal variance.

Notwithstanding the simple logic of these cases that a variance in proof is harmless unless a
defendant's substantial rights are adversely affected, a few courts of appeals have gone beyond
this reasoning and held the Government to a stricter standard. For example, in United States v.
Tramunti, 513 F.2d 1087, 1107 (2d Cir.), cert. denied, 423 U.S. 832 (1975), the court, in essence,
held that if the Government charges a single conspiracy ABCD, and proves at trial conspiracies
AB and CD but not ABCD, the defendants must be acquitted, regardless of the fact that AB and
CD are both unlawful conspiracies and there is clear proof that a given defendant was a member
of one or both, and regardless of whether the defendant's rights were adversely affected or the
jury confused.(113) This is clearly not the law. Further, the logic of Tramunti would appear to have
been overruled by United States v. Miller, 753 U.S. 19 (1985), discussed more fully below.

Another issue that courts sometimes note in dealing with the question of harmless vs. fatal
variance is whether the variance may have deprived the defendant of his right to be tried only on
indictment by a grand jury. This issue may arise where the Government has proved, not the
entire conspiracy charged in the indictment, but what might be considered a "lesser included"
conspiracy. For example, the Government charges conspiracy ABC and only proves conspiracy
AB. In addition to the standard issues of surprise, double jeopardy, and juror confusion, some
courts have also asked whether a grand jury would have indicted solely on AB.
This issue was confronted in United States v. Miller, 471 U.S. 130 (1985), wherein the Supreme
Court unanimously held that the 5th Amendment's grand jury clause only prohibits convicting a
defendant of an offense that is either not charged or that is broader than any offense charged in
the indictment. With respect to convicting a defendant of an offense narrower than, but
completely encompassed by, the offenses charged in the indictment, the Court stated:

The Court has long recognized that an indictment may charge numerous offenses or the commission of
any one offense in several ways. As long as the crime and the elements of the offense that sustain the
conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated
by the fact that the indictment alleges more crimes or other means of committing the same crime.
Indeed, a number of longstanding doctrines of criminal procedure are premised on the notion that each
offense whose elements are fully set out in an indictment can independently sustain a conviction. (114)

Thus, Miller firmly lays to rest any question of the propriety of a conviction where the
Government charges conspiracy ABC and proves AB, or charges conspiracies AB and CD and
proves AB. Accordingly, attorneys should strongly resist any jury instruction that suggests that
the Government must prove every offense charged in the indictment or each means charged for
committing a given offense to win a conviction.

Unfortunately, clearing away the confusion created by cases decided before Miller on the issue
of a defendant's grand jury rights does not automatically help in overcoming a Tramunti-type
charge. Defendants will no doubt continue to raise Tramunti in those instances where the
Government charges conspiracy ABCD and proves conspiracies AB and CD. Although Miller
did not specifically address this issue, it does reaffirm the Berger and Kotteakos reasoning that it
is not the existence of a variance, but whether the variance actually prejudiced the fairness of the
defendant's trial, that is the relevant consideration.(115) It is incorrect to instruct a jury that it must
always acquit where the Government charges a single conspiracy and proof at trial establishes
multiple conspiracies (unless one of the conspiracies proved is the overall conspiracy); this
makes the very fact of a variance in proof fatal. Where the multiple conspiracies proved are fully
contained within the overall conspiracy charged, longstanding Supreme Court precedent holds
that whether such a variance is fatal turns on the complexity of the case (i.e., the appropriateness
of joinder) and the presence or absence of proper jury instructions.

In general, the judge should be requested to charge that defendants should be convicted if the
jury finds them a party to any unlawful conspiracy or conspiracies within the bounds of the
indictment, with proper limiting instructions given as to transference of guilt. If a court instructs
the jury that notwithstanding the Government's charging conspiracy ABCD, defendants can be
convicted if they are found to have engaged in illegal conspiracy AB or CD or ABC, the court
should make clear that the jury must unanimously find a defendant guilty of being a party to the
same conspiracy to convict, i.e., it is not sufficient that six jurors find defendant X a party to
conspiracy AB while the other six find him a party to conspiracy CD. While this seems an
obvious point, several courts have mentioned it in reviewing jury instructions.(116)

b. Double jeopardy
When the Government charges multiple conspiracies -- whether in the same, simultaneous, or
wholly distinct indictments -- but proves only one, double jeopardy issues are raised. The Double
Jeopardy Clause(117) prohibits the imposition of multiple punishments for the same offense,
prosecution for the same offense after acquittal, and prosecution for the same offense after
conviction.(118)

In determining whether a single act can be punished under two different statutes, the Supreme
Court, in Blockburger v. United States, 284 U.S. 299, 304 (1932), has stated that "the test to be
applied to determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not." Thus, a single act may violate two statutes,
and as long as each statute requires proof of an additional fact that the other does not, an
acquittal or conviction under one does not exempt a defendant from prosecution and punishment
under the other, "notwithstanding a substantial overlap in the proof offered to establish the
crimes."(119) In Brown v. Ohio, 432 U.S. 161, 166 (1977), the Supreme Court stated that the
Blockburger holding was the ". . . established test for determining whether two offenses are
sufficiently distinguishable to permit the imposition of multiple punishments. . . ."

Over time, the Blockburger test came to be reformulated by lower courts to focus more on
allegations in indictments and proofs at trial, and less on the elements of crimes set down in
statutes. As reformulated, the test became known as the "same evidence" test.(120) In fact, the
Blockburger test as formulated by the Supreme Court is not particularly useful in conspiracy
cases. While the Blockburger test can determine whether a defendant can be separately
prosecuted under the double jeopardy clause for a single act that violates more than one statute,
(121)
it is of little help in determining whether a course of conduct can constitutionally be treated
as multiple violations of the same statute. Thus, the Blockburger test is not helpful in resolving
the double jeopardy issue that arises when a defendant who has already been prosecuted for a
Sherman Act conspiracy is prosecuted for another Sherman Act conspiracy. Such cases raise a
"unit of prosecution" issue; i.e., they raise the question of whether a particular course of conduct
constitutes discrete violations of the same statute that appropriately are characterized as separate
offenses for purposes of double jeopardy analysis.

In any event, to refer to the Blockburger test as a "same evidence test" is a misnomer. The
Blockburger test has nothing to do with the evidence presented at trial. It is concerned solely
with the statutory elements of the offenses charged.(122) Thus, the better approach to the double
jeopardy problems that arise in conspiracy cases is to apply a totality of the circumstances test.
(123)
As already noted in the preceding section, most courts have adopted a "totality of the
circumstances" test to distinguish one conspiracy from another where the same statutory
violation is charged.(124)

Grady v. Corbin, U.S. (1990) is a recent double jeopardy case that could potentially affect
successive conspiracy prosecutions. In Grady, the defendant pled guilty to two traffic violation
missdemeanors. He was later indicted for several more serious felonies relating to a death that
had resulted from the traffic violations. The Supreme Court affirmed the lower court's dismissal
of the indictment on double jeopardy grounds. The Court held:
[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish
an essential element of an offense charged in that prosecution, will prove conduct that constitutes an
offense for which the defendant has already been prosecuted. . . . . The critical inquiry is what conduct
the State will prove, not the evidence the State will use to prove the conduct. (125)

The lower courts have just begun to apply the Grady holding to other fact patterns, including
successive conspiracy prosecutions.(126) Consequently, how the holding in Grady will affect our
prosecutions has yet to be clearly determined.

The law on double jeopardy in the multiple conspiracies context may be summarized as follows:
The Government may not try to sentence a defendant twice for the same conspiracy. Whether
there are multiple conspiracies depends on the nature of the agreement or agreements involved,
and in most circuits, the court will consider all aspects of the conspiracies charged by the
Government to determine, as a matter of fact, the scope of the agreements. Unfortunately, there
is nothing beyond common sense and reading as many conspiracy cases as possible to serve as a
guide to resolving the factual inquiry at the charging stage of a grand jury investigation.

G. Duplicitous and Multiplicitous Indictments

Indictments charging two or more distinct offenses in a single count are duplicitous.(127) Such
indictments may violate constitutional protections, including the defendant's right to notice of the
charges against him and prevention of exposure to double jeopardy in a subsequent prosecution
by obscuring the specific charges on which the jury convicted the defendant.(128) Duplicitous
indictments may also prevent the jury from deciding guilt or innocence on each offense
separately and lead to uncertainty as to whether the defendant's conviction was based on a
unanimous jury decision.(129) A single count of an indictment alleging that the means used by the
defendant to commit an offense are unknown or that the defendant committed the offenses by
more than one specified means is not duplicitous.

Since the rule prohibiting duplicity is a rule of pleading, a violation is generally not fatal to the
indictment.(130) The Government may correct a duplicitous indictment by electing the basis upon
which it will continue.(131) A corrective instruction to the jury may also cure the violation.(132) A
duplicitous indictment, however, that is found prejudicial to the defendant may be dismissed.(133)
By failing to challenge a duplicitous indictment before trial, a defendant risks waiver.(134)

Indictments charging a single offense in different counts are multiplicitous.(135) Such indictments
may result in multiple sentences for a single offense or otherwise prejudice the defendant.(136)
Multiplicity does not exist if each count of the indictment requires proof of facts that the other
counts do not require.(137) When deciding whether an indictment is multiplicitous, courts must
consider whether Congress unambiguously intended to provide for the possibility of multiple
convictions and punishments for the same act.(138)

Since the rule prohibiting multiplicity is a rule of pleading, the defect is not necessarily fatal to
the indictment.(139) When multiplicity becomes apparent before trial, the court may order the
Government to choose the count on which it will continue.(140) The court may require the
Government to dismiss or consolidate multiplicitous counts when the violation becomes apparent
after the trial has begun.(141) A multiplicitous indictment will not necessarily be dismissed after
trial, especially if the error did not result in an increased sentence or can be remedied by vacating
duplicative convictions.(142) The defendant risks waiver by failing to challenge a multiplicitous
indictment before trial.(143) The court may grant relief from waiver for good cause.(144)

To avoid duplicitous or multiplicitous indictments, Division attorneys should carefully examine

the charges to be contained in the indictment and the facts supporting them. Then, applying the
basic principles contained in the preceding section, Division attorneys should carefully draft an
indictment that accurately and adequately describes the offense to be charged in the indictment.

H. Other Enforcement Matters

1. Companion civil complaint

The Division sometimes files a companion civil injunctive case with an indictment or a damage
action under Section 4A of the Clayton Act, 15 U.S.C. § 15a. These cases are generally filed
against the same defendants named in an indictment or information. Because of differing
standards of proof, among other considerations, occasionally defendants other than those
indicted may be named in civil cases.(145) The civil complaint charges will ordinarily track the
substantive charges of the indictment or information.

While prosecuting the criminal case, the prosecution will usually seek to have the companion
civil cases stayed. Staying the civil cases preserves the more restrictive discovery rules of
criminal prosecutions and comports with the requirements of the Speedy Trial Act of an early
trial date. In Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert. denied, 371 U.S. 955
(1963), the leading decision on this point, the Fifth Circuit cautioned trial judges to be sensitive
to the differences in allowable discovery in civil and criminal cases, and warned against the use
of civil discovery rules to expand the more restrictive criminal rules.(146) Moreover, courts will
carefully examine any attempt by Government litigators to utilize information obtained during
the grand jury investigation in civil cases.(147) Sensitivity over the primary use to which grand
jury material will be put favors the staying of companion civil cases until the criminal case is
completed.

2. State civil/criminal actions

Because the penalties for criminal violations of the federal antitrust laws generally are more
severe than state criminal penalties, most criminal prosecutions will be conducted in the first
instance by the Division. State enforcement has come primarily in the form of civil cases, which
also will follow federal enforcement because of the prima facie benefit that will flow from
criminal conviction.

In those instances where states seek to pursue criminal investigations simultaneously with the
federal criminal investigation, care must be taken to ensure that any immunity conferred by state
prosecutors in no way binds federal prosecutors. This is usually taken care of by requesting state
enforcers to specifically state the immunity limits in the written immunity documents they use.
Rule 6(e) was recently amended to permit disclosure of federal grand jury material to state
prosecutors for the purpose of enforcing state criminal law.(148) The amendment requires court
approval before disclosure, and Department of Justice internal guidelines require the approval of
the Assistant Attorney General prior to requesting court approval.(149)

Division attorneys should also be familiar with the Department's Dual Enforcement (or Petite)
Policy which, under certain circumstances, prohibits federal criminal enforcement following
state criminal enforcement for the same violations of law.(150)

3. Damage actions

Again, because of the benefit to plaintiffs in civil damage actions of awaiting federal criminal
convictions, most damage actions will follow federal prosecutions. Prosecutors should be aware,
however, of the keen interest plaintiffs' counsel will have in keeping apprised of the federal
prosecution's developments.(151) It is the Division's policy to provide plaintiffs with information
whenever it is appropriate to do so. At the conclusion of grand jury proceedings, plaintiffs will
frequently request access to grand jury materials such as documents and transcripts. When this
does not interfere with any ongoing investigation or prosecution, the Division will inform the
court of such so that the court may consider this in determining whether a plaintiff has met the
particularized need showing.(152) It is also the Department's policy not to file matters under seal
during pretrial criminal proceedings so that the public, including plaintiffs who believe they have
suffered damages, may have access to the public record. In summary, the Division does not
promote civil damage actions and cannot inappropriately disclose information to plaintiffs, but
whenever disclosure is appropriate, the Division's policy is to assist the public to obtain redress
for damages suffered by antitrust violators.

4. Suspension and debarment

Upon indictment, many agencies, both federal and state, will seek to suspend defendant
contractors or suppliers from bid lists until the trial's outcome. The Division takes no part in
these proceedings and requests from agencies for an opinion by the Division as to what the
agency should do must be turned aside. To act otherwise would not only be unfair to the
defendants who have only been charged and not yet convicted, but will pose evidentiary
problems as well. For instance, if contractor A has entered into a plea agreement or its officers
have received immunity and will testify at trial for the prosecution against contractor B, you do
not want to be put in the position of recommending suspension for B but not for A, because A is
cooperating. If you do make such a recommendation, your favorable treatment to contractor A
must be disclosed as Brady material, and your witness, contractor A, will be impeached upon this
at trial. It will appear that A has the incentive to keep B off the bid list as long as possible and
has thus tailored the testimony accordingly.

Upon conviction, agencies may renew their request for an opinion from the Division as to how
long a contractor should be debarred. Again, you should resist any request for such a
recommendation and limit your remarks at this stage, consistent with the secrecy requirements of
Rule 6(e), to the nature of the violation, its seriousness, the relative culpability of the contractors
involved and whether or not anyone has cooperated. These are all factors the agency will want to
consider, and you can certainly provide facts that will assist them, but it is generally the policy of
the Division not to make recommendations about what an agency should do.

I. Pre-Indictment Procedures
1. Target notifications and meetings with opposing counsel

As the grand jury investigation concludes, Antitrust Division attorneys will usually inform
counsel for potential defendants of the status of the investigation. In most instances, potential
individual defendants will be sent a letter identifying the individual as a target of that
investigation, i.e., one who may be considered for indictment. Counsel for corporations normally
will be advised by the investigating attorneys that they are about to recommend action against a
corporation to their superiors. Antitrust Division attorneys customarily will not disclose the
specifics of their final recommendations to counsel. Even though an individual or a company is a
target of the investigation, or may be recommended for prosecution, this does not automatically
mean they will be prosecuted. The final decision is made by the Assistant Attorney General.

The notification of a potential defendant's status triggers two events: first, it advises counsel that
his client may be able to appear before the grand jury voluntarily, without immunity, if desired;
and, second, it provides counsel with notice that this is the time to meet with the prosecution
team to make whatever arguments seem appropriate before a final decision concerning
indictment is made. It is up to counsel to take the initiative and request a meeting once the staff
informs him of his client's position. If counsel wants such a meeting, the staff attorneys who
have conducted the investigation and their section chief ordinarily will meet with counsel. The
purpose of this meeting is not for the prosecution to disclose its case against a particular
defendant; rather, it is a vehicle for counsel to explain to the staff the reasons why a corporation
or an individual should not be prosecuted. Division attorneys can provide a very general
statement of the charges that are being considered. However, because of the requirements of Fed.
R. Crim. P. 6(e), Division attorneys cannot give counsel any detailed information about a case
without compromising the secrecy of the grand jury process.

The meeting is intended to provide counsel with a full and fair opportunity to address the
substance of the evidence against his client as well as mitigating circumstances that should be
considered in deciding whether to prosecute. For an individual, such mitigating considerations
include the individual's status in the company, personal and health problems, age and other
circumstances that may lead the prosecutor to conclude that indictment of the individual would
not be in the public interest. Similarly, counsel for a corporation may discuss, among other
possibly mitigating circumstances, the financial condition of a company and the adverse
consequences of an indictment. These meetings are often helpful in focusing more sharply on
issues that were not clearly defined or fully developed during an investigation and which, on
occasion, may affect the final decision whether to prosecute.

After meeting with the staff, counsel is usually given an opportunity to make a similar
presentation to the Office of Operations. The Director of Operations (or, on occasion, the Deputy
Director of Operations) and his staff will have reviewed the recommendations of the staff and
section chief. As with the investigating staff, the Director of Operations and his subordinates will
not disclose any detailed information concerning the evidence in the case, nor are they likely to
engage in a debate with counsel over specific matters that are part of the grand jury record. The
meeting should be considered as an opportunity to make a presentation by defense counsel which
is not likely to result in any specific commitment other than the fact that the Division will
evaluate all information counsel has presented.(153) Counsel's final meeting with the Division is
usually with the Office of Operations. Only in extraordinary circumstances or cases that present
unique factual or policy issues will the Assistant Attorney General meet counsel for proposed
defendants.

The prosecution strategy at these meetings is simply to listen to relevant matters that may have a
bearing on a decision to prosecute in a particular situation. Usually, counsel will argue against
the prosecution of his client rather than against the indictment of all parties that may be targets of
the investigation. In this way, counsel can differentiate the conduct and the particular
circumstances of his client from those of others. This information is generally helpful to the
Division, not only from the perspective of making a decision whether to prosecute, but for other
considerations that may arise later, such as the Division's sentencing recommendation or a
decision to bring a companion civil suit or a damage suit against the parties.

The Assistant Attorney General must review each recommendation for indictment. If an
indictment is approved, the staff will summarize the evidence for, and present the indictment to,
the grand jury.

Since no action can be taken before the grand jury makes its decision, Division attorneys usually
will not inform counsel of the Division's final recommendation to prosecute. The staff may,
however, inform counsel when the grand jury will be meeting unless this practice is precluded by
the local rules. If the grand jury votes a true bill, staff attorneys usually inform counsel of the
indictment as soon as it is returned.

If the Assistant Attorney General follows the staff recommendation to indict, a grand jury
session will be scheduled for the return of the indictment. It is not unusual for defense counsel to
request advance notification of when the indictment will be returned. It is safest to provide only a
generalized time frame of when you expect the indictment, if any, to be returned, for several
reasons. First, last minute exigencies may require a change in the grand jury schedule, matters
over which you have no control. Second, defense counsel in highly publicized cases may use the
information you provide to make premature statements to the press that are prejudicial to the
Government's case. Third, precise notice to defense counsel about when an indictment will be
returned provides them the window of opportunity to seek to have the grand jury proceedings
stayed before an indictment can be returned.(154) Finally, local rules may prohibit notice as to
when an indictment is likely to be returned.

2. U.S. Attorney's signature

As with the signatures of the other attorneys for the Government, as a courtesy, you should
obtain the signature of the U.S. Attorney for the district you are in prior to the return of the
indictment. In the absence of the U.S. Attorney's signature, however, the signature of the
Assistant Attorney General of the Antitrust Division is sufficient to validate the indictment.(155)
 3. Grand jury review of testimony/documents

Before your last session with the grand jury, you want to ensure that all document subpoenas
have been fully complied with. If counsel have not produced documents, you want to insist upon
production prior to the return of the indictment to avoid any basis for a motion to dismiss the
indictment because of post-indictment abuse of the grand jury process. If production of such
documents is not immediately necessary to your case, and insistence upon pre-indictment
production would be burdensome to the subpoena recipient, you will want written assurance that
your continued cooperation in not insisting upon immediate production will not form the basis of
an abuse motion. This assurance must come not only from the subpoena recipient, but defendants
and co-defendants as well.(156) If you cannot obtain such assurance, you should insist upon
compliance prior to the indictment's return.

On the day of indictment, you should have in the grand jury room all transcripts of testimony
taken that is relevant to the indictment and all relevant grand jury exhibits. You should note for
the record that all the transcripts and exhibits are available for review by the grand jurors. This
will establish two important facts. First, that the accurate record of the testimony itself was
available to the grand jury so they were not operating on the basis of the prosecutor's summary of
the evidence alone when returning the indictment. Second, it establishes that any juror who may
have missed some portion of the live testimony had access to the transcript of proceedings prior
to voting on the indictment. This will help neutralize a post-indictment attack on the indictment
based upon the allegation that some jurors who voted on the indictment did not hear all of the
evidence. Such an attack should be unsuccessful in any event, since an indictment is valid even
though some jurors voting to indict did not attend every session.(157)

4. Summary of the evidence

You will want to briefly summarize the evidence for the grand jury prior to the indictment. The
case law that exists on this issue indicates that there is no impropriety in the prosecutor
summarizing the evidence or making a closing statement.(158) Your summary must be accurate
and you should remind the jurors several times that it is their recollection, not your summary,
that controls. Your summary should include the facts you have marshalled against each
defendant, and you should remind the jurors of any inconsistent or exculpatory evidence they
have heard. When appropriate, interstate commerce and background evidence (e.g., a description
of the bidding process) should also be summarized.

5. Summary of law

You should briefly cover the elements of the offenses charged in the indictment and the standard
of proof -- probable cause to believe an offense has been committed by the prospective
defendants -- that covers the return of an indictment. You should remind the grand jury that the
defendants will have the benefit of the "beyond a reasonable doubt" standard at trial and that
more rigorous standard does not govern their proceeding. When referring to the elements of the
offense and any other question of law, you should use the case law of the circuit in which you are
returning the indictment. Note, however, that even if improper instructions are given, the
indictment is not invalidated.(159) In all comments to the grand jury, you should be guided by
principles of fairness and the knowledge that what you are saying is being recorded -- if your
comments to the grand jury are reviewed by a court, you want the comfort of knowing that you
said nothing inflammatory or prejudicial.

A Government prosecutor who explains to the grand jury the elements of the offense under
investigation does not act as an improper witness before the grand jury in violation of Rule 6(d).
Such conduct falls within the prosecutor's role as the "guiding arm of the grand jury" and is
consistent with the prosecutor's responsibility for an orderly and intelligible presentation of the
case.(160)

6. Presentation of indictment

The original indictment should be left with the grand jurors for their deliberation. No one other
than the jurors, not even the court reporter, is to be present during deliberation.

Fed. R. Crim. P. 7(c)(1) states the indictment "shall be signed by the attorney for the
government." It does not state when the indictment should be so signed, and for all practical
purposes, you will have obtained all the appropriate signatures before presentation to the grand
jury. However, it is common practice to present the jury with a substitute final page that contains
only the signature line for the grand jury foreperson, even though courts have regularly held that
presentation of a signed indictment to the grand jury is insufficient ground for dismissal.(161)

Before leaving the grand jury to begin their deliberations, you should inquire whether there are
any questions. You should advise the foreman to call you back into the grand jury room if any
problems arise during deliberations that you may be able to resolve.(162) If the grand jury has any
questions once they have begun their deliberation, you should carefully state that you do not
want the question in any way to indicate the status of their deliberation or any kind of head-count
as to where the deliberation stands. And, of course, any colloquy between you and the grand
jurors must be recorded. Answering questions once deliberation has begun would seem to be
consistent with the prosecutor's role as the "guiding arm of the grand jury."(163)

Rule 6(f) requires concurrence of 12 jurors for the return of a true bill. The existence of a proper
vote is determined from the record kept by the foreperson or other designated grand juror which
is filed with the clerk of the court pursuant to Rule 6(c). This record, according to Rule 6(c)
"shall not be made public except on order of the court." There need be no separate vote on each
count of the indictment,(164) though it is better practice to have the jurors vote on each count. It is
not necessary that the record disclose that 12 or more grand jurors concurred on each count for
each defendant.(165) After return of the indictment, it shall be signed by the foreperson or deputy
foreperson.(166) The foreperson's signature attests that the bill is an official act of the grand jury (a
"true bill"). Failure of the foreperson to sign or endorse the indictment is an irregularity but is not
fatal.(167)

7. Return of indictment in court

The grand jury returns the indictment to a federal magistrate in open court.(168) The jurors usually
accompany the foreperson into court so that the court may inquire whether the jury concurs in
the indictment. How this is done, however, will depend upon local practice, so be sure to consult
the U.S. Attorney's office.

8. Administrative procedures after return

Once the indictment has been returned, you should inform your section office and the Office of
Operations. This will trigger notification of the Press Office. You should also notify counsel for
defendants of the indictment's return.

Neither the Criminal Rules nor the Speedy Trial Act, 18 U.S.C. § 3161, et. seq., require that
arraignment take place within a set period of time after indictment. However, in most cases,
defendants will voluntarily appear for arrest at the arraignment, and this operates as their first
appearance before a judicial officer, triggering the 70-day Speedy Trial Act period.(169)
Accordingly, you do not want an unduly long period to elapse between indictment and
arraignment.

J. Re-presentation

Rule 6(e)(3)(c)(iii) provides that no court order is necessary to transfer one grand jury's material
to a successor grand jury. Such language "contemplates that successive grand juries may
investigate the same or similar crimes."(170) Usually, all documents and testimony before the first
grand jury should be presented to the new grand jury.(171) Nevertheless, a prosecutor has some
discretion, particularly where numerous witnesses were called before the first grand jury, and
only a small percentage were actually necessary for the proposed indictment. A successor grand
jury need not hear all of the direct testimony presented to the predecessor grand jury, but rather
may choose to rely on transcripts or on accurate summaries.(172) Caution must be exercised,
however, because the use of incomplete or misleading summaries of prior testimony can bias a
grand jury and void the indictment.(173) To avoid any appearance of unfairness, all exculpatory
evidence should be re-presented to the new grand jury.(174)

K. Superseding Indictments

The procedures for preparing and presenting superseding indictments to the grand jury are the
same as for original indictments, with the following exceptions:

1. Caption

The caption should reflect that it is a superseding indictment, and should reference the case
number of the original indictment.

The superseding indictment should be presented to the same grand jury that returned the original
indictment. Under exceptional circumstances (i.e., the original grand jury panel has expired, etc.)
the case can be re-presented to a new grand jury.

2. Advice to the grand jury

The grand jury should be advised that a superseding indictment is being presented, the date of
the original indictment, the nature of the intended change in the indictment, and the manner in
which the case will be re-presented.(175)

3. Speedy trial act considerations

Under 18 U.S.C. § 3161(h)(6), the running of the "trial clock" is suspended from the date the
indictment is dismissed upon motion of the Government until a charge is filed against the
defendant for the same offense, or any offense required to be joined with the offense charged in
the original indictment. As explained in the original Senate Report on the Speedy Trial Act,
§ 3161(h)(6) provides that only the time period during which the prosecution has actually been
halted is excluded from the 70-day time limit. For example, if the Government decides 50 days
after indictment to dismiss charges against the defendant, then waits six months and reindicts the
defendant for the same offense, the Government has only 20 days in which to prepare for trial,
absent other excludable time periods.(176) Since the exclusion begins only with the dismissal of
the original charges, once a superseding indictment is intended, it is important to obtain dismissal
of the original charge as soon as possible to stop the clock.

Section 3161(h)(6) applies only when the Government obtains dismissal of charges contained in
the indictment. If the defendant successfully moves to dismiss the indictment, 18 U.S.C.
§ 3161(d) applies, and all time limits on the new charges are computed without regard to the
existence of the original charge.(177)

Note also that even where the Government obtained dismissal of the original indictment, time
limits on new offenses charged in the superseding indictment -- i.e., those which are not the
"same offense" or "offenses which are required to be joined with" the offense charged in the
original indictment -- would be computed without reference to the time limits on the original
charge. Consequently, where the Government dismisses an indictment and returns superseding
charges, different time limits for trial will apply to different charges in the same indictment if the
superseding charges are new or if the superseding indictment adds new defendants. 18 U.S.C.
§ 3161(h)(7) can be used to equalize the trial date for multiple defendants charged in the same
indictment. Where multiple charges with different time limits are contained in an indictment
against a single defendant, a continuance under 18 U.S.C. § 3161(h)(8) might be appropriate, to
avoid the need for either multiple trials or trial of all charges by the earliest date.

L. No Bills

Occasionally, a grand jury will refuse to return an indictment recommended by the Division.
This is referred to as a "No Bill." If a grand jury refuses to indict, the prosecutor may resubmit
evidence to a different grand jury.(178) 178/ However, once a grand jury declines to return an
indictment on the merits, an internal Justice Department policy requires approval of the
responsible Assistant Attorney General prior to resubmitment. Approval for resubmitment will
"ordinarily not be granted, absent additional or newly-discovered evidence or a "clear
miscarriage of justice."(179)

M. Defense Motions Relating to the Indictment

Grand jury proceedings receive a strong presumption of regularity;(180) the burden of proving
irregularity is on the person, usually? the defendant, alleging it.(181) Accordingly, indicted
defendants face great difficulty challenging the grand jury or the indictment. However, that does
not mean that defense motions will not be filed.

Attorneys should consult the appropriate sections of this Manual for guidance in responding to
these motions. In addition, some of the most common defense motions relating to the indictment
are discussed in Chapter 9 of the Criminal Antitrust Litigation Manual, American Bar
Association, 1983.

N. Press

When preparing the indictment or information for submission to the Office of Operations, you
should also prepare a draft press release.(182) After review and editing by Operations, the press
release is forwarded to the Department's Public Affairs office, along with a recommendation as
to whether the press release should be issued.(183) Upon return of the indictment or information,
you should immediately call the Office of Operations, thus triggering their call to Public Affairs
and the publication of the press release, if any.

As soon as the indictment becomes public, you will no doubt be contacted by the press seeking
more information. Only Section Chiefs may talk to the press, absent express authority otherwise.
If authorized, it is important that your comments be circumspect, referring only to the charges in
the indictment and whatever else is already on the public record, such as whether the AAG has
said the investigation is continuing. When in doubt about whether to answer a question, the best
route is to refer the reporter to Public Affairs for additional information or comment.

Allegations of prejudicial pretrial publicity will most commonly occur in motions for a change of
venue under Fed. R. Crim. P. 21. The standard a defendant must meet is high, the Rule itself
specifying that a change in venue is proper only when there exists "so great a prejudice against
the defendant that he cannot obtain a fair and impartial trial. . . ." Routine press reports that are
not inflammatory will not occasion a change of venue.(184) When the prosecution is the source of
the complained-of publicity, a court may look more closely at the venue motion.(185) Where non-
prosecutorial Government officials are the source of the publicity, their status has not been held
relevant.(186)

O. Closing the Investigation

When an investigation has been closed, all files and grand jury documents that are appropriate
for retention should be sent for safekeeping to the Federal Records Center in case retrieval
becomes necessary.(187) A short closing memorandum should be forwarded to the Office of
Operations, requesting authority to close the matter. In criminal cases, this will occur after
sentencing upon convictions or acquittal after trial. If no indictment is returned and none is
expected, the matter can be closed at that time.
 FOOTNOTES

1. Fed. R. Crim. P. 7(a).

2. The Ninth Circuit has held that an indictment need not be returned against a corporation since
the corporation can be punished only by fine. United States v. Armored Transp., Inc., 629 F.2d
1313, 1317-20 (9th Cir. 1980), cert. denied, 450 U.S. 965 (1981). The court reasoned that a
crime punishable only by fine is not an "infamous crime" within the terms of the 5th
Amendment. The Ninth Circuit is the only circuit to have adopted this approach.

3. Fed. R. Crim. P. 6(f).

4. See Chapter IX for a discussion of plea agreements.

5. Fed. R. Crim. P. 7(e).

6. Russell v. United States, 369 U.S. 749, 763-72 (1962).

7. United States v. Hand, 497 F.2d 929, 934-35 (5th Cir. 1974), cert. denied, 424 U.S. 953
(1976); Moore's Federal Practice ¶ 7.04 (1982).

8. See Brown v. United States, 143 F. 60, 65 (8th Cir.), cert. denied, 202 U.S. 620 (1906); United
States v. Mobile Materials, Inc., 871 F.2d 902, 906-10 (10th Cir.), modified on other grounds,
881 F.2d 866 (10th Cir. 1989), cert. denied, U.S. (1990).

9. An alternative sample indictment is contained in Appendix VII-3. This format may be used
when the charging paragraph contains numerous terms that may not be familiar to the general
public.

10. See Devitt & Blackmar, § 55.02; see also United States v. Kissel, 218 U.S. 601, 608 (1910);
United States v. Walker, 653 F.2d 1343, 1345-50 (9th Cir. 1981), cert. denied, 455 U.S. 908
(1982).

11. See United States v. Socony Vacuum Oil Co., 310 U.S. 150, 252 (1940); Nash v. United
States, 229 U.S. 373, 378 (1913).

12. See Appendix VII-3 for a sample of this alternative.

13. Ordinarily, a court will take judicial notice of terms for which there is a common, undisputed
understanding. See Fed. R. Evid. 201. However, some terms would not be subject to judicial
notice, for example, the defendant's unique term to describe a geographic area that is different
from the commonly understood term.

14. See U.S.A.M. 9-11.230

15. See United States v. Briggs, 514 F.2d 794 (5th Cir. 1975); see also United States v.
Chadwick, 556 F.2d 450 (9th Cir. 1977). The American Bar Association (ABA) has adopted a
principle that "the grand jury shall not name a person in an indictment as an unindicted co-
conspirator in a criminal conspiracy."

16. United States v. Votteller, 544 F.2d 1355 (6th Cir. 1976); see also United States v. Branan,
457 F.2d 1062 (6th Cir. 1972). 18 U.S.C. § 3237 provides that an offense begun in one district,
continued in another, and completed in yet another may be prosecuted in any of those districts.

17. See United States v. Warner, 428 F.2d 730 (8th Cir.) (where two distinct crimes are charged
in one count, the count is void since defendant is denied right to a unanimous concurrence of jury
on each offense charged before conviction), cert. denied, 400 U.S. 930 (1970).

18. See Fed. R. Crim. P. 7(d); United States v. Saporta, 270 F. Supp. 183 (E.D.N.Y. 1967);
United States v. Bonanno, 177 F. Supp. 106 (S.D.N.Y. 1959), rev'd on other grounds sub nom.
United States v. Bufalino, 285 F.2d 408 (2d Cir. 1960).

19. See U.S.A.M. 9-43.000, et seq.

20. United States v. Young, 232 U.S.155 (1914).

21. United States v. Curtis, 506 F.2d 985 (10th Cir. 1974).

22. See United States v. Italiano, 837 F.2d 1480 (11th Cir. 1988), for an extensive discussion of
McNally and Carpenter and the ramifications of these cases on the application of the mail fraud
statute.

23. 18 U.S.C. § 1346.

24. United States v. Young, 232 U.S. 155 (1914).

25. Schmuck v. United States, 489 U.S. 705 (1989); Pereira v. United States, 347 U.S. 1, 8
(1954); United States v. Young, 232 U.S. 155 (1914).

26. Durland v. United States, 161 U.S. 306 (1896); Badders v. United States, 240 U.S. 391
(1916).

27. See Indictments in United States v. Sachs Electric Company, et al., 85-168 CR(4) and United
States v. Washita Construction Company, et al., 84-146 W.D. Okla.

28. If staff is relying on the mailing of payments, it is useful to include language in the "means
and methods" or "charging" paragraph that the conspirators had the expectation that the low
bidder would be awarded the contract and would be paid over the course of the contract.

29. United States v. Northern Improvement Co., 814 F.2d 540, 542 (8th Cir.), cert. denied, 484
U.S. 846 (1987).
30. United States v. Watson-Flagg Electric Company, et al., (CR IP 84-103, S.D. Indiana).

31. Linden v. United States, 254 F.2d 560 (4th Cir. 1958); Silverman v. United States, 213 F.2d
405 (5th Cir. 1954); Henderson v. United States, 202 F.2d 400 (6th Cir. 1953).

32. See U.S.A.M., 9-44.000, et seq.

33. United States v. Patterson, 534 F.2d 1113 (5th Cir.), cert. denied, 429 U.S. 942 (1976);
United States v. Freeman, 524 F.2d 337, 339e (7th Cir. 1975), cert. denied, 424 U.S. 920 (1976);
United States v. Wise, 553 F.2d 1173 (8th Cir. 1977); Lindsey v. United States, 332 F.2d 688,
690 (9th Cir. 1964); United States v. O'Malley, 535 F.2d 589, 592 (10th Cir.), cert. denied, 429
U.S. 960 (1976).

34. Henderson v. United States, 425 F.2d 134, 138 (5th Cir. 1970); United States v. Calvert, 523
F.2d 895, 903 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976).

35. See, e.g., United States v. Ames Sintering Co., 927 F.2d 232 (6th Cir. 1990).

36. Identifying details from this indictment and other indictments quoted in this section have
been charged.

37. See Chapter VIII § C.

38. United States v. Lange, 528 F.2d 1280, 1283 n.2 (5th Cir. 1976); Ogden v. United States, 303
F.2d 724, 742 (9th Cir. 1962), cert. denied, 376 U.S. 973 (1964).

39. United States v. Lange, 528 F.2d supra.

40. See U.S.A.M. 9-42.200 and .210 and cases cited therein.

41. See United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943).

42. See United States v. Downey, 257 F. 364 (D.R.I. 1919).

43. United States v. Johnson, 383 U.S. 169, 172 (1966); Haas v. Henkel, 216 U.S. 462, 479
(1910); see United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826 (1975).

44. See U.S.A.M. 9-42.300

45. See Chapter VIII § A.

46. United States v. Whimpy, 531 F.2d 768, 770 (5th Cir. 1976).

47. United States v. Molinares, 700 F.2d 647, 651-52 (11th Cir. 1983).

48. United States v. Parr, 516 F.2d 458, 464 (5th Cir. 1975); 18 U.S.C. § 1623(e).
49. United States v. Bonacorsa, 528 F.2d 1218, 1222 (2d Cir.), cert. denied, 426 U.S. 935 (1976);
Vitello v. United States, 425 F.2d 416, 418 (9th Cir.), cert. denied, 400 U.S. 822 (1970).

50. Weinstock v. United States, 231 F.2d 699, 703 (D.C. Cir. 1956); United States v. Crocker,
568 F.2d 1049, 1056 (3d Cir. 1977); United States v. Paolicelli, 505 F.2d 971, 973 (4th Cir.
1974); United States v. Bell, 623 F.2d 1132, 1134 (5th Cir. 1980); United States v. Raineri, 670
F.2d 702, 718 (7th Cir.), cert. denied, 459 U.S. 1035 (1982); United States v. Ostertag, 671 F.2d
262, 265 (8th Cir. 1982).

51. Accord United States v. Lardieri, 497 F.2d 317, 319 (3d Cir. 1974); United States v. Cosby,
601 F.2d 754, 756 (5th Cir. 1979); United States v. Ostertag, 671 F.2d at 264; United States v.
Molinares, 700 F.2d at 653.

52. See, e.g., United States v. Chapin, 515 F.2d 1274 (D.C. Cir.) (the falsity of an "I don't recall"
answer may be proven by circumstantial evidence that tends to show that defendant really knew
the things he claimed not to know), cert. denied, 423 U.S. 1015 (1975).

53. A sample indictment for false declarations before a grand jury is included in Appendix VII-4.

54. See Chapter VIII § B.

55. Attempts to influence another's grand jury testimony can also be brought under 18 U.S.C. §
1512(b).

56. A sample obstruction of justice indictment is included in Appendix VII-5.

57. United States v. Tedesco, 635 F.2d 902 (1st Cir. 1980), cert. denied, 452 U.S. 962 (1981);
United States v. Shoup, 608 F.2d 950 (3d Cir. 1979); United States v. Roe, 529 F.2d 629, 632
(4th Cir. 1975); United States v. McCarthy, 611 F.2d 220 (8th Cir. 1979), cert. denied, 445 U.S.
930 (1980).

58. See United States v. Buffalano, 727 F.2d 50 (2d Cir. 1984) ("endeavor" means less than
attempt); United States v. Silverman, 745 F.2d 1386 (11th Cir. 1984) ("endeavor" means any
effort to accomplish an evil purpose the statute is designed to prevent).

59. See United States v. Cohn, 452 F.2d 881 (2d Cir. 1971), cert. denied, 405 U.S. 975 (1972);
United States v. Griffin, 589 F.2d 200 (5th Cir.), cert. denied, 444 U.S. 825 (1979); United States
v. Gonzales-Mares, 752 F.2d 1485 (9th Cir.), cert. denied, 473 U.S. 913 (1985); United States v.
Perkins, 748 F.2d 1519 (11th Cir. 1984); United States v. Cortese, 568 F. Supp. 119 (M.D. Pa.
1983), aff'd sub nom. United States v. Osticco, 738 F.2d 426 (3d Cir. 1984), cert. denied, 469
U.S. 1158 (1985). Contra United States v. Essex, 407 F.2d 214 (6th Cir. 1969).

60. United States v. Bridges, 717 F.2d 1444 (D.C. Cir. 1983), cert. denied, 465 U.S. 1036 (1984);
United States v. Langella, 776 F.2d 1078 (2d Cir. 1985), cert. denied, 475 U.S. 1019 (1986).
61. United States v. Neiswender, 590 F.2d 1269, 1273 (4th Cir.), cert. denied, 441 U.S. 963
(1979); United States v. Solow, 138 F. Supp. 812, 816-17 (S.D.N.Y. 1956).

62. United States v. Sinito, 723 F.2d 1250 (6th Cir. 1983), cert. denied, 469 U.S. 817 (1984);
United States v. Kopituk, 690 F.2d 1289 (11th Cir. 1982), cert. denied, 463 U.S. 1209 (1983).

63. United States v. Scotto, 641 F.2d 47 (2d Cir. 1980), cert. denied, 452 U.S. 961 (1981).

64. United States v. Provenzano, 688 F.2d 194 (3d Cir.), cert. denied, 459 U.S. 1071 (1982).

65. See Indictment in United States v. Evans & Associates Construction Co., Inc., et al., (86-77-
E, W.D. Okla.).

66. See U.S.A.M. 9-110.101 and 110.210

67. United States v. Pomponio, 511 F.2d 953 (4th Cir.), cert. denied, 423 U.S. 874 (1975);
United States v. Perrin, 580 F.2d 730 (5th Cir. 1978), aff'd on other grounds, 444 U.S. 37 (1979).
But see United States v. Brecht, 540 F.2d 45 (2d Cir. 1976), cert. denied, 429 U.S. 1123 (1977).

68. See United States v. Koppers, 652 F.2d 290 (2d Cir.), cert. denied, 454 U.S. 1083 (1981);
United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 204 (3d Cir.
1970), cert. denied, 401 U.S. 948 (1971); United States v. Automated Medical Laboratories, 770
F.2d 399, 406-08 (4th Cir. 1985); United States v. Hilton Hotels Corp., 467 F.2d 1000, 1004 (9th
Cir. 1972), cert. denied, 409 U.S. 1125 (1973).

69. United States v. Koppers Co., 652 F.2d 290, 294-95 (2d Cir.), cert. denied, 454 U.S. 1083
(1981); United States v. Continental Group, Inc., 603 F.2d 444, 461-62 (3d Cir. 1979), cert.
denied, 444 U.S. 1032 (1980); United States v. Portsmouth Paving Corp., 694 F.2d 312, 317-18
(4th Cir. 1982); United States v. Cargo Serv. Stations Inc., 657 F.2d 676, 683-84 (5th Cir. Unit B
Sept. 1981), cert. denied, 455 U.S. 1017 (1982).

70. United States v. Brighton Bldg. & Maintenance Co., 598 F.2d 1101, 1106-07 (7th Cir.), cert.
denied, 444 U.S. 840 (1979).

71. United States v. Koppers Co., 652 F.2d at 294-95; United States v. Portsmouth Paving, 694
F.2d at 317-18.

72. United States v. Griffin, 589 F.2d 200, 204 (5th Cir.), cert. denied, 444 U.S. 825 (1979);
United States v. Perkins, 748 F.2d 1519, 1528-29 (11th Cir. 1984); United States v. Caron, 551
F. Supp. 662, 670 (E.D. Va. 1982), aff'd mem., 722 F.2d 739 (4th Cir. 1983), cert. denied, 465
U.S. 1103 (1984).

73. Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. Mobile Materials, Inc.,
871 F.2d 902, 906 (10th Cir.), modified on other grounds, 881 F.2d 866 (10th Cir. 1989), cert.
denied, U.S. (1990). Mobile Materials contains a particularly good discussion on the necessary
detail for a valid indictment.
74. United States v. Mobile Materials, Inc., 871 F.2d at 907.

75. See Criminal Antitrust Litigation Manual, 9:2.1[8-2], p. 160.

76. United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940); United States v. Mobile
Materials, Inc., 871 F.2d at 909.

77. See United States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988).

78. Fed. R. Crim. P. 7(d); Wright, Federal Practice and Procedure, Criminal 2d § 127 at 426-27;
United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971); United States v. Climatemp, Inc.,
482 F. Supp. 376, 391 (N.D. Ill. 1979); United States v. Ahmad, 329 F. Supp. 292, 297 (M.D.
Pa. 1971), aff'd, 705 F.2d 461 (7th Cir.), cert. denied, 462 U.S. 1134 (1983).

79. 18 U.S.C. § 3282.

80. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224 n.59 (1940); United States v.
Trenton Potteries Co., 273 U.S. 392, 397-99 (1927); Nash v. United States, 229 U.S. 373, 378
(1913).

81. Such as RICO conspiracies, 18 U.S.C. § 1962(d).

82. United States v. Kissel, 218 U.S. 601, 608-10 (1910); Hyde v. United States, 225 U.S. 347,
369 (1912).

83. United States v. A A A Elec. Co., 788 F.2d 242 (4th Cir. 1986); United States v. Girard, 744
F.2d 1170 (5th Cir. 1984); United States v. Northern Improvement Co., 814 F.2d 540 (8th Cir.),
cert. denied, 484 U.S. 846 (1987); United States v. Inryco, Inc., 642 F.2d 290 (9th Cir. 1981),
cert. dismissed, 454 U.S. 1167 (1982); United States v. Evans & Assocs. Constr. Co., 839 F.2d
656, 661 (10th Cir. 1988).

84. United States v. Sargent Elec. Co., 785 F.2d 1123 (3d Cir.), cert. denied, 479 U.S. 819
(1986).

85. United States v. Vila, 599 F.2d 21, 24 (2d Cir.), cert. denied, 444 U.S. 837 (1979); United
States v. Ruggles, 782 F.2d 1044 (6th Cir. 1985); Koolish v. United States, 340 F.2d 513, 525
(8th Cir.), cert. denied, 381 U.S. 951 (1965).

86. United States v. Lurz, 666 F.2d 69, 74 (4th Cir. 1981), cert. denied, 459 U.S. 843 (1982).

87. United States v. Varelli, 407 F.2d 735, 741 (7th Cir. 1969), cert. denied, 405 U.S. 1040
(1972); see United States v. Broce, 488 U.S. 563, 570 (1989) (agreement "is all but synonymous"
with conspiracy).

88. Braverman v. United States, 317 U.S. 49, 53 (1942).

89. See Note, "Single v. Multiple" Criminal Conspiracies: A Uniform Method of Inquiry for Due
Process and Double Jeopardy Purposes, 65 Minn. L. Rev. 295, 297-98 (1981) (hereinafter
"Student Note").

90. United States v. Varelli, 407 F.2d supra; see Direct Sales Co. v. United States, 319 U.S. 703,
711 (1943); United States v. Continental Group, Inc., 603 F.2d 444, 462-63 (3d Cir. 1979), cert.
denied, 444 U.S. 1032 (1980); United States v. Lemm, 680 F.2d 1193, 1204 (8th Cir. 1982), cert.
denied, 459 U.S. 1110 (1983).

91. Blumenthal v. United States, 332 U.S. 539, 559 (1947); United States v. Gomberg, 715 F.2d
843, 846 (3d Cir. 1983), cert. denied, 465 U.S. 1078 (1984); United States v. Lemm, 680 F.2d at
1204.

92. United States v. Marable, 578 F.2d 151, 153 (5th Cir. 1978); United States v. Mulherin, 710
F.2d 731, 737-38 (11th Cir.), cert. denied, 464 U.S. 964 (1983).

93. American Tobacco Co. v. United States, 328 U.S. 781, 809 (1946); see also Interstate
Circuit, Inc. v. United States, 306 U.S. 208, 226-27 (1939); United States v. Nolan, 718 F.2d
589, 595 (3d Cir. 1983).

94. Direct Sales Co. v. United States, 319 U.S. 703, 714 (1943).

95. Where more than one conspiracy statute is involved, the issue is basically a double jeopardy
issue, which is discussed in the following section.

96. 317 U.S. at 54.

97. United States v. Agueci, 310 F.2d 817, 827 (2d Cir. 1962) (citations omitted), cert. denied,
372 U.S. 959 (1963); see United States v. Bastone, 526 F.2d 971, 981 (7th Cir. 1975), cert.
denied, 425 U.S. 973 (1976).

98. United State v. Andolschek, 142 F.2d 503, 507 (2d Cir. 1944) (L. Hand, J.). For a rare
example of a chain conspiracy where the court refused to extend the chain to its furthest limits,
see United States v. Peoni, 100 F.2d 401 (2d Cir. 1938).

99. 306 U.S. at 226-27.

100. See United States v. Perez, 489 F.2d 51 (5th Cir. 1973), cert. denied, 417 U.S. 945 (1974).

101. See United States v. Chagra, 653 F.2d 26, 29 (1st Cir. 1981), cert. denied, 455 U.S. 907
(1982); United States v. Marable, 578 F.2d at 153-54; United States v. Jabara, 644 F.2d 574, 577
(6th Cir. 1981); United States v. Castro, 629 F.2d at 461; United States v. Tercero, 580 F.2d 312,
315 (8th Cir. 1978); United States v. Bendis, 681 F.2d 561, 564-65 (9th Cir. 1981), cert. denied,
459 U.S. 973 (1982). Three circuits have moved toward a "totality of the circumstances" test
without expressly adopting it. United States v. Mallah, 503 F.2d at 971, 985-86 (2d Cir. 1974);
United States v. Lurz, 666 F.2d 69, 74 (4th Cir. 1981), cert. denied, 455 U.S. 1005 (1982);
Ward v. United States, 694 F.2d 654, 662-63 (11th Cir. 1983). The Tenth Circuit has expressly
rejected the "totality of the circumstances" test in favor of the "same evidence" test. United
States v. Hines, 713 F.2d 584, 586 (10th Cir. 1983).

102. See Note, "Single v. Multiple" Criminal Conspiracies: A Uniform Method of Inquiry for
Due Process and Double Jeopardy Purposes, 65 Minn. L. Rev. 295, 297-78 (1981).

103. Of course, the overall conspiracy may be broken down into numerous lesser conspiracies so
long as no defendant is charged more than once, since there would then be no ground on which
to challenge the Government's actions.

104. See United States v. Varelli, 407 F.2d 735 (7th Cir. 1969), cert. denied, 405 U.S. 1040
(1972); In re Grand Jury Proceedings, 797 F.2d at 1384-85 (although the court's use of the term
"superconspiracy" may be confusing, its distinction between a passive understanding and an
agreement is correct).

105. In re Grand Jury Proceedings, 797 F.2d at 1384-85.

106. 537 F. Supp. at 445; see also United States v. Korfant, 771 F.2d 660, 663 (2d Cir. 1985).

107. Id. at 445-47; see also United States v. Sargent Elec. Co., 785 F.2d 1123 (3d Cir.), cert.
denied, 479 U.S. 819 (1986); United States v. Wilshire Oil Co., 427 F.2d 969, 975-77 (10th Cir.),
cert. denied, 400 U.S. 829 (1970).

108. See In re Grand Jury Proceedings, 797 F.2d at 1384-85 (criticizing Beachner analysis).

109. 295 U.S. at 82; see also United States v. Miller, 471 U.S. 130 (1985); United States v. Cina,
699 F.2d 853 (7th Cir.), cert. denied, 464 U.S. 991 (1983); Fed. R. Crim. P. 52(a).

110. United States v. Griffin, 464 F.2d 1352, 1357 (9th Cir.), cert. denied, 409 U.S. 1009 (1972).

111. The fact that the number of defendants and conspiracies is small does not necessarily
preclude a finding of juror confusion. In United States v. Coward, 630 F.2d 229 (4th Cir. 1980),
the court reversed the conviction of two men charged with conspiring with an unindicted co-
conspirator, where the proof at trial showed that each had conspired with the unindicted co-
conspirator separately, on the ground of juror confusion.

112. See also United States v. Bertolotti, 529 F.2d 149, 157-58 (2d Cir. 1975).

113. See also United States v. Gomberg, 715 F.2d 843, 846-47 (3d Cir. 1983), cert. denied, 465
U.S. 1078 (1984); United States v. Abushi, 682 F.2d 1289, 1300 (9th Cir. 1982). An earlier case
in the Ninth Circuit, United States v. Griffin, 464 F.2d supra, had approved a jury instruction
permitting conviction notwithstanding proof of conspiracies different from the one charged in the
indictment. Griffin is not cited in Abushi.

114. 471 U.S. at 136 (citations omitted).

115. Id. at 134-35.

116. United States v. Mastelotto, 717 F.2d at 1247-50; United States v. Barlin, 686 F.2d 81, 88-
89 (2d Cir. 1982); United States v. Lyons, 703 F.2d 815, 821-22 (5th Cir. 1983).

117. U.S. Const. amend. V states, in part: "No person shall be . . . subject for the same offense to
be twice put in jeopardy of life or limb. . . ."

118. North Carolina v. Pearce, 335 U.S. 711, 717 (1969). The issue of whether the Double
Jeopardy Clause applies to corporations has apparently never been directly decided by the
Supreme Court. One court of appeals has expressly held that it does apply, United States v.
Hospital Monteflores, Inc., 575 F.2d 332 (1st Cir. 1978), and the Supreme Court on several
occasions has applied the Double Jeopardy Clause to corporations without addressing the issue.
See United States v. Martin Linen Supply Co., 430 U.S. 564 (1977); Fong Foo v. United States,
369 U.S. 141 (1962).

119. Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975).

120. A description of the "same evidence" test can be found in United States v. Marable, 578
F.2d 153 (5th Cir. 1978).

121. See also United States v. Albernaz, 450 U.S. 333 (1981) (central issue in deciding whether
one act can be punished under separate statutes is legislative intent).

122. Grady v. Corbin, U.S. , n. 12 (1990).

123. See, e.g., United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985) (finding separate price-
fixing conspiracies); In re Grand Jury Proceedings, 797 F.2d at 1380 (separate bid-rigging
conspiracies found); but see United States v. Calderone, 917 F.2d 717 (2d Cir. 1991) (holding
that Korfant is "no longer good law" to the extent that it conflicts with Grady v. Corbin, U.S.
(1990)). The Solicitor General has filed a petition for a writ of certiorari in the Calderone case.

124. See United States v. Chagra, 653 F.2d 26, 29 (1st Cir. 1981), cert. denied, 455 U.S. 907
(1982); United States v. Marable, 578 F.2d at 153-54; United States v. Jabara, 644 F.2d 574, 577
(6th Cir. 1981); United States v. Castro, 629 F.2d at 461; United States v. Tercero, 580 F.2d 312,
315 (8th Cir. 1978); United States v. Bendis, 681 F.2d 561, 564-65 (9th Cir. 1981), cert. denied,
459 U.S. 973 (1982). Three circuits have moved toward a "totality of the circumstances" test
without expressly adopting it. United States v. Mallah, 503 F.2d 971, 985-86 (2d Cir. 1974)
United States v. Lurz, 666 F.2d 69, 74 (4th Cir. 1981), cert. denied, 455 U.S. 1005 (1982);
Ward v. United States, 694 F.2d 654, 662-63 (11th Cir 1983). The Tenth Circuit has expressly
rejected the "totality of the circumstances" test in favor of the "same evidence" test. United
States v. Hines, 713 F.2d 584, 586 (10th Cir. 1983).

125. ____ U.S. at ____

126. See United States v. Calderone, 917 F.2d 717 (2d Cir. 1990); United States v. Felix, 926
F.2d 1522 (10th Cir. 1991). The Government has requested certiorari in both cases.

127. United States v. Wood, 780 F.2d 955, 962 (11th Cir.) (indictment in question struck
appropriate balance and not duplicitous), cert. denied, 476 U.S. 1184 (1986); see United States v.
Kimberlin, 781 F.2d 1247, 1250-51 (7th Cir. 1985), cert. denied, 479 U.S. 938 (1986); cf. United
States v. Hawks, 753 F.2d 355, 357-58 (4th Cir. 1985); United States v. Morse, 785 F.2d 771,
774 (9th Cir.), cert. denied, 476 U.S. 1186 (1986); United States v. Alvarez, 735 F.2d 461, 465
(11th Cir. 1984); Fed. R. Crim. P. 7(c)(1).

128. See United States v. Kimberlin, 781 F.2d at 1250; United States v. Morse, 785 F.2d at 774.

129. See United States v. Kimberlin, 781 F.2d at 1250; United States v. Morse, 785 F.2d at 774;
cf. United States v. Margiotta, 646 F.2d 729, 732-33 (2d Cir. 1981) (dictum), cert. denied, 461
U.S. 913 (1983).

130. See Wright, Federal Practice and Procedure, Criminal 2d § 142, at 475.

131. Id. § 145, at 523; cf. United States v. Elam, 678 F.2d 1234, 1251 (5th Cir. 1982) (when
duplicity objection not raised in timely manner, defendant's motion to require Government to
elect between two conspiracy statutes properly denied).

132. See United States v. Kimberlin, 781 F.2d at 1250; United States v. Moran, 759 F.2d 777,
784 (9th Cir. 1985), cert. denied, 474 U.S. 1102 (1986); United States v. Wood, 780 F.2d at 962.

133. See United States v. Bowline, 593 F.2d 944, 947-48 (10th Cir. 1979); cf. United States v.
Drury, 687 F.2d 63, 66 (5th Cir. 1982), cert. denied, 461 U.S. 943 (1983); United States v.
Kimberlin, 781 F.2d at 1250-51.

134. Fed. R. Crim. P. 12(b)(2); see United States v. Leon, 679 F.2d 534, 539 (5th Cir. 1982);
United States v. Mosley, 786 F.2d 1330, 1333 (7th Cir.), cert. denied, 474 U.S. 1004 (1986); cf.
United States v. Price, 763 F.2d 640, 643 (4th Cir. 1985) (dictum) (though holding that appellant
waived right to challenge duplicitous indictment by failure to raise claim before trial, court
indicated that for proper showing of cause, consequences of waiver might be relieved); United
States v. Kimberlin, 781 F.2d at 1251-52 (considering post-trial challenge to duplicitous
indictment, court applied practical, not "hypertechnical," standard).

135. See United States v. Love, 767 F.2d 1052, 1062-63 (4th Cir. 1985), cert. denied, 474 U.S.
1081 (1986); United States v. Maggitt, 784 F.2d 590, 599 (5th Cir. 1986); United States v. Gann,
732 F.2d 714, 721 (9th Cir.), cert. denied, 469 U.S. 1034 (1984); United States v. Swingler, 758
F.2d 477, 491-92 (10th Cir. 1985); United States v. Pierce, 733 F.2d 1474, 1476 (11th Cir.
1984).

136. See United States v. Gullett, 713 F.2d 1203, 1211-12 (6th Cir. 1983), cert. denied, 464 U.S.
1069 (1984); United States v. Marquardt, 786 F.2d 771, 778 (7th Cir. 1986). But see United
States v. Brown, 688 F.2d 1112, 1120 (7th Cir. 1982) (rejecting claim that allowing
multiplicitous indictments to go to jury exaggerated defendant's alleged criminality).

137. See Lovgren v. Byrne, 787 F.2d 857, 863 (3d Cir. 1986); United States v. Maggitt, 784 F.2d
at 599; rUnited States v. Marquardt, 786 F.2d 771, 778-79 (7th Cir. 1986); United States v.
Roberts, 783 F.2d 767, 769 (9th Cir. 1985); see also United States v. Blakeney, 753 F.2d 152,
154-55 (D.C. Cir. 1985).

138. See United States v. Grandison, 783 F.2d 1152, 1156 (4th Cir. 1986); United States v.
Kimberlin, 781 F.2d at 1252; United States v. Wilson, 781 F.2d 1438, 1439-40 (9th Cir. 1986)
(per curiam); see also United States v. Long, 787 F.2d 538, 539 (10th Cir. 1986) (ambiguity in
definition of activity to be punished by criminal statute must be evaluated against turning a
single transaction into multiple offenses); cf. United States v. Woodward, 469 U.S. 105, 108-10
(1985) (per curiam) (no indication of congressional intention not to allow separate punishment
for distinct offenses of making false statements to federal agency and intentionally failing to
report transporting over $5,000 into country); United States v. Shaw, 701 F.2d 367, 396-97 (5th
Cir. 1983) (in absence of congressional directive indicating otherwise, defendant can be charged
and convicted of two separate offenses resulting from one action provided each offense requires
proof of fact not necessary to other), cert. denied, 465 U.S. 1067 (1984).

139. See generally Wright, § 142, at 475.

140. Id. § 142, at 525; see United States v. Anderson, 709 F.2d 1305, 1306 (9th Cir. 1983), cert.
denied, 465 U.S. 1104 (1984).

141. See United States v. Molinares, 700 F.2d 647, 653 n.11 (11th Cir. 1983).

142. See United States v. Lewis, 716 F.2d 16, 23 (D.C. Cir.), cert. denied, 464 U.S. 996 (1983);
United States v. Wilson, 721 F.2d 967, 971 (4th Cir. 1983); United States v. Kimberlin, 781 F.2d
at 1254; United States v. Long, 787 F.2d at 540; United States v. Fiallo-Jacome, 784 F.2d 1064,
1067 (11th Cir. 1986).

143. Fed. R. Crim. P. 12(b)(2); see United States v. Price, 763 F.2d at 643 (dictum); United
States v. Mosely, 786 F.2d at 1333; United States v. Mastrangelo, 733 F.2d 793, 800 (11th Cir.
1984).

144. Fed. R. Crim. P. 12(f); see United States v. Marino, 682 F.2d 449, 454 n.3, 455 (3d Cir.
1982).

145. See ABA Criminal Antitrust Litigation Manual, 8:3.1[1-1].

146. Id.

147. See Ch. II § C.

148. Rule 6(e)(3)(C)(iv).

149. See, Ch. II § H.5.; ATD Manual VII-18; Notes of Advisory Committee on Rules, 1985
amendment.

150. See ATD Manual III-81 for a complete discussion of this policy and its applicability.

151. A defendant in our criminal case, who is also a defendant in a private civil damage case,
may try to use civil discovery in the private case to get information relevant to the criminal case.
The Division may be able to get discovery enjoined in the private case.

152. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979).

153. In the past, counsel have attempted to create a right to obtain information from the Division
through the use of these meetings. By characterizing the meeting with the Office of Operations
as an "administrative" hearing, counsel have argued unsuccessfully that they are entitled to a
statement of issues relating to a proposed indictment as well as other pertinent information
developed before the grand jury. In In re Grand Jury Proceedings, (Northside Realty Assoc.
Inc.), 613 F.2d 501 (5th Cir. 1980), the Fifth Circuit held that an order that required the
Government to provide such information violates the principle of separation of powers and
compromises the secrecy of the grand jury. The court also held that the Department's refusal to
provide such information was consistent with its established procedures for pre-indictment
conferences. The court stated that the standard by which such pre-indictment conferences are
granted is within the discretion of the Antitrust Division. Indeed, they need not be granted at all.

154. See Deaver v. Seymour, 822 F.2d 66 (D.C. Cir. 1987).

155. Rule 7(c) specifies that an indictment "shall be signed by the attorney for the government."
In relevant part, Rule 54(c) defines "attorney for the government" to be: the Attorney General, an
authorized assistant of the Attorney General, a U.S. Attorney, an authorized assistant of a U.S.
Attorney. . . ." But see United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied, 381 U.S. 935
(1965); United States v. Panza, 381 F. Supp. 1133 (W.D. Pa. 1974).

156. Division attorneys should be carefull not to disclose any information covered by Rule 6(e)
of the Fed. R. Crim. P. when seeking such assurances.

157. Neither the Constitution nor the Federal Rules require that all jurors voting to indict be
present at every session. An indictment is valid if a quorum is present and at least 12 jurors vote
to indict. See United States ex rel. McCann v. Thompson, 144 F.2d 604, 607 (2d Cir.), cert.
denied, 323 U.S. 790 (1944); United States v. Provenzano, 688 F.2d 194, 202-03 (3d Cir.), cert.
denied, 459 U.S. 1071 (1982); United States v. Mayes, 670 F.2d 126, 128-29 (9th Cir. 1982);
United States v. Cronic, 675 F.2d 1126, 1130 (10th Cir. 1982), rev'd on other grounds, 466 U.S.
648 (1984).

158. See Ch IV § C.9.; United States v. United States Dist. Court, 238 F.2d 713, 721 (4th Cir.
1956), cert. denied, 352 U.S. 981 (1957).

159. United States v. Linetsky, 533 F.2d 192, 200-01 (5th Cir. 1976).
160. See Ch IV § C.3.; United States v. Singer, 660 F.2d 1295 (8th Cir. 1981), cert. denied, 454
U.S. 1156 (1982).

161. United States v. Boykin, 679 F.2d 1240, 1246 (8th Cir. 1982); United States v. Levine, 457
F.2d 1186, 1189 (10th Cir. 1972); United States v. Brown, 684 F.2d 841, 842 (11th Cir. 1982);
United States v. Climatemp, Inc., 482 F. Supp. 376, 386 (N.D. Ill. 1979); United States v.
Tedesco, 441 F. Supp. 1336, 1342 (M.D. Pa. 1977). But see United States v. Gold, 470 F. Supp.
1336 (N.D. Ill. 1979) (presentation of a signed indictment to a grand jury cited as one of many
reasons for dismissal of an indictment due to prosecutorial abuse). Gold has been labeled "an
unusual case", In re November 1979 Grand Jury, 616 F.2d 1021, 1023 (7th Cir. 1980).

162. Federal Grand Jury Practice, Narcotic and Dangerous Drug Section Monograph, March
1983, p. 14.

163. See United States v. Singer, 660 F.2d 1295 (8th Cir. 1981), cert. denied, 454 U.S. 1156
(1982).

164. United States v. Felice, 481 F. Supp. 79 (N.D. Ohio), aff'd, 609 F.2d 276 (6th Cir. 1978);
United States v. Winchester, 407 F. Supp. 261 (D. Del. 1975).

165. United States v. Bally Mfg., 345 F. Supp. 410 (E.D. La. 1972).

166. Fed. R. Crim. P. 6(c).

167. Hobby v. United States, 468 U.S. 339, 344 (1984) (citing Frisbie v. United States, 157 U.S.
160, 163-65 (1985)); United States v. Perholtz, 662 F. Supp. 1253 (D.D.C. 1985); see also Notes
of Advisory Committee of Rules, Note 1 to Subdivision (c), 6.

168. Fed. R. Crim. P. 6(f).

169. 18 U.S.C. § 3161(c)(1).

170. United States v. Claiborne, 765 F.2d 784, 794 (9th Cir. 1985), cert. denied, 475 U.S. 1120
(1986); cf. In re Grand Jury Proceedings (Sutton), 658 F.2d 782, 783 (10th Cir. 1981) (dictum)
(second subpoena may be required when party contends documents are incomplete or subpoena
orders witness to testify).

171. See United States v. Samango, 607 F.2d 877, 881 (9th Cir. 1979); United States v. Gallo,
394 F. Supp. 310 (D. Conn. 1975).

172. United States v. Flomenhoft, 714 F.2d 711 (7th Cir. 1983) (reliance on transcripts
permissible), cert. denied, 450 U.S. 1068 (1984); United States v. Long, 706 F.2d 1044 (9th Cir.
1983) (summaries permissible); see also United States v. Ciambrone, 601 F.2d 616, 623 (2d Cir.
1979) (prosecutor may exercise some discretion in choosing evidence to bring before grand jury
so long as grand jury is not misled); United States v. Fogg, 652 F.2d 551, 558 (5th Cir. Unit B
Aug. 1981); United States v. Chanen, 549 F.2d 1036, 1311 (9th Cir.), cert. denied, 434 U.S. 825
(1977).

173. United States v. Mahoney, 495 F. Supp. 1270 (E.D. Pa. 1980).

174. See Federal Grand Jury Practice, Narcotic and Dangerous Drug Section Monograph, p. 17.

175. See Federal Grand Jury Practice, Narcotic and Dangerous Drug Section Monograph, p. 18.

176. S. Rep. No. 1021, 93d Cong., 2d Sess. 38 (1974).

177. United States v. Sebastian, 428 F. Supp. 967, 973 (W.D.N.Y.), aff'd, 562 F.2d 211 (2d Cir.
1977).

178. United States v. Thompson, 251 U.S. 407, 413-14 (1920); United States v. Claiborne, 765
F.2d 784, 794 (9th Cir. 1985), cert. denied, 457 U.S. 1120 (1986); United States v. Radetsky, 535
F.2d 556, 565 (10th Cir.), cert. denied, 429 U.S. 820 (1976).

179. U.S.A.M. 9-11.120.

180. See, e.g., Costello v. United States, 350 U.S. 359, 363-64 (1959); United States v. Jones,
766 F.2d 994, 1001 (6th Cir.), cert. denied, 474 U.S. 1006 (1985).

181. See, e.g., United States v. Battista, 646 F.2d 237 (6th Cir.), cert. denied, 454 U.S. 1046
(1981).

182. A sample press release is contained in Appendix VII-6.

183. Press releases are not issued if a case is not of sufficient general public interest.

184. Northern California Pharmaceutical Ass'n v. United States, 306 F.2d 379 (9th Cir.), cert.
denied, 371 U.S. 862 (1962).

185. Silverthorne v. United States, 400 F.2d 627, 633 (9th Cir. 1968), cert. denied, 400 U.S.
1022 (1971); United States v. Bonanno, 177 F. Supp. 106 (S.D.N.Y. 1959), rev'd on other
grounds, 285 F.2d 408 (2d Cir. 1960).

186. See, e.g., People v. Atoigue, 508 F.2d 680 (9th Cir. 1974) (elected officials); Northern
California Pharmaceutical Ass'n v. United States, 306 F.2d supra (trial judge).

187. See Division Directive ATR 2710.1.

 TABLE OF CONTENTS

VIII. Perjury and Obstruction of Justice

A. Perjury
1. Text of Perjury Statutes
2. Elements of Perjury
3. Principal Differences between § 1623 and § 1621
4. Section 1622 - Subornation of Perjury
5. Investigative Responsibility
6. Supervisory Jurisdiction
7. Special Problems
8. Defenses and Bars to Prosecution
B. Obstruction of Justice
1. Text of 18 U.S.C. § 1503
2. The Nature of the Crime
3. Elements of the Crime
4. Venue
C. False Statements 18 U.S.C. § 1001
1. Text of 18 U.S.C. § 1001
2. The Nature of the Offense
3. The Elements of the Offense
4. Venue
5. Defenses

VIII. PERJURY AND OBSTRUCTION OF JUSTICE

A. Perjury

This section describes the two principal perjury statutes, 18 U.S.C. §§ 1621 and 1623.(1)
Although Title 18 of the United States Code contains over 150 statutes that proscribe perjury,(2)
virtually all perjuries occurring in the course of Governmental inquiries, proceedings, and the
Federal judicial process are prosecuted under §§ 1621 or 1623.(3) A third statute, 18 U.S.C.
§ 1622, subornation of perjury, is dealt with in passing.

1. Text of perjury statutes

a. 18 U.S.C. § 1621 - perjury generally

Whoever--

(1 having taken an oath before a competent tribunal, officer or person, in any case in which a law
) of the United States authorizes an oath to be administered, that he will testify, declare,
depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by
him subscribed, is true, willfully and contrary to such oath states or subscribes any material
 matter which he does not believe to be true; or

(2 in any declaration, certificate, verification, or statement under penalty of perjury as permitted

) under Section 1746 of Title 28, United States Code, willfully subscribes as true any material
matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise
expressly provided by law, be fined not more than $2,000 or imprisoned not more than five
years, or both. This section is applicable whether the statement or subscription is made within
or without the United States.

b. 18 U.S.C. § 1623 - false declarations before grand jury or court

(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty
of perjury as permitted under § 1746 of Title 28, United States Code) in any proceeding before
or ancillary to any court or grand jury of the United States knowingly makes any false material
declaration or makes or uses any other information, including any book, paper, document,
record, recording, or other material, knowing the same to contain any false material
declaration, shall be fined not more than $10,000 or imprisoned not more than five years or
both.

(b This section is applicable whether the conduct occurred within or without the United States.
)

(c) An indictment or information for violation of this section alleging that, in any proceedings
before or ancillary to any court or grand jury of the United States, the defendant under oath
has knowingly made two or more declarations which are inconsistent to the degree that one of
them is necessarily false, need not specify which declaration is false if (1) each declaration was
material to the point in question, and (2) each declaration was made within the period of the
statute of limitations for the offense charged under this section. In any prosecution under this
section, the falsity of a declaration set forth in the indictment or information shall be
established sufficient for conviction by proof that the defendant while under oath made
irreconcilably contradictory declarations material to the point in question in any proceeding
before or ancillary to any court or grand jury. It shall be a defense to an indictment or
information made pursuant to the first sentence of this subsection that the defendant at the
time he made each declaration believed the declaration was true.

(d Where, in the same continuous court or grand jury proceeding in which a declaration is made,
) the person making the declaration admits such declaration to be false, such admission shall bar
prosecution under this section if, at the time the admission is made, the declaration has not
substantially affected the proceeding, or it has not become manifest that such falsity has been
or will be exposed.

(e) Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be
 necessary that such proof be made by any particular number of witnesses or by documentary
or other type of evidence.

2. Elements of perjury

There are four essential elements of perjury that are substantially the same under § 1623 as under
§ 1621.

a. The actor must be under oath

First, the actor must be under oath during his testimony, declaration, or certification (except in
the case of unsworn declarations under penalty of perjury as permitted by 28 U.S.C. § 1746). So
long as the oath is of sufficient clarity that the actor is aware that he is under oath and that he is
required to speak the truth, no particular form of oath is required.(4) However, some courts have
held that prosecutions under § 1621 require proof of who administered the oath and the
competency and authorization of the oath giver.(5) On the other hand, the identity of the person
administering the oath is not an essential element under § 1623, nor is proof that such person was
competent or authorized to administer the oath. Section 1623 only requires that the Government
prove that the maker of a knowingly false declaration be under oath at the time the statement is
made.(6) Under § 1623, the testimony of the foreperson of the grand jury before which the
defendant appeared is sufficient to establish that the requisite oath was taken.(7) Although it
would be better practice to have the person who administered the oath to the defendant, or at
least another grand juror, testify that the oath was given, the transcript of the defendant's grand
jury testimony should be sufficient to prove that he testified under oath.(8) Further, although
§ 1623 does not specify, as does § 1621, that the oath must be taken "before a competent
tribunal," false swearing before a court having no jurisdiction would undoubtedly not be
prosecutable under § 1623.(9)

b. The actor must make a false statement

The second necessary element of perjury is that the actor make a false statement. This element is
subject, under § 1621, to the "two-witness rule".(10) Falsity is a question of fact for the jury to
decide.(11) In determining the falsity of the defendant's answer, neither the court nor jury must
accept the defendant's interpretation of a question or answer.(12) Words clear on their face are to
be understood in their common sense and usage unless it is clear in the context in which they are
used that a different sense or usage was intended.(13)

c. False statement must be material

The third necessary element is that the false statement must be material to the proceedings.
Materiality has been broadly defined to include anything "capable of influencing the tribunal on
the issue before it,"(14) or which "has a natural tendency to influence, impede or dissuade a grand
jury from pursuing its investigations."(15) Thus, the testimony need not actually have influenced,
misled, or impeded the proceeding.(16) A potential interference with the grand jury's line of
inquiry is sufficient to establish materiality.(17) The statement need not be material to any
particular issue, but may be material to the subject of the inquiry in general.(18) The statement
may be material to collateral matters that might influence the outcome of decisions before the
grand jury.(19) Thus, a statement is material if it is relevant to a subsidiary issue under
consideration,(20) or to an issue of credibility.(21) Furthermore, the statement need not be relevant
to an offense that is ultimately prosecutable by the grand jury so long as it is a proper subject for
investigation by the grand jury.(22) Materiality is not negated if the information sought is
cumulative or the grand jury does not believe the answer.(23)

The issue of materiality is a question of law to be decided by the court.(24) Materiality need only
be shown as of the time the false statement was made.(25) The Government need not prove
materiality beyond a reasonable doubt but must show it by a preponderance of the evidence.(26)
Materiality may be proven in various ways. The Government may introduce a transcript of the
grand jury proceedings; produce testimony from the foreperson of the grand jury or another
grand juror; produce the testimony of the defendant before the grand jury; produce other
indictments returned by the grand jury; or produce the testimony of the prosecutor concerning
the scope of the grand jury's investigation, and the relationship to it of the questions that elicited
the perjury.(27)

d. Statement must be made with knowledge of its falsity

The fourth necessary element is that the actor make the false statement with knowledge of its
falsity.(28) Perjury requires a showing of specific intent.(29) It cannot be the result of inadvertence,
honest mistake, carelessness, misunderstanding, mistaken conclusions, or unjustified inferences
testified to negligently, or even recklessly.(30) Actual knowledge of falsity may be proven from
circumstantial evidence.(31) If the defendant believed his statement to be true when he made it,
even though it was, in fact, false, an essential element of the crime cannot be proven and a
charge of perjury will be defeated.(32)

3. Principal differences between § 1623 and § 1621

There are four principal differences between § 1623 and § 1621. First, § 1623 applies only to
perjury occurring "before or ancillary to any court or grand jury. . . ."(33) The Supreme Court in
Dunn v. United States, 442 U.S. 100, 113 (1979), interpreted this language to preclude
prosecution under § 1623 for any false statement made in circumstances less formal than a
deposition. False statements made in affidavits in anticipation of their being submitted to a court
or grand jury cannot be prosecuted under § 1623. Subsection (a) of the statute, however, does
provide for prosecution of statements to a grand jury or court made in reliance on documents
which the witness knows are false.(34)

Second, under § 1623, the Government's evidentiary burden is reduced as subsection (e) does
away with the two-witness rule which still hampers prosecutions under § 1621.(35) In addition,
§ 1623(c) allows a conviction for making two or more statements which are inconsistent to the
degree that one of them is necessarily false.(36) The Government does not have to prove which
statement is false, but it is a defense to such a prosecution that, at the time each statement was
made, the defendant believed he was speaking the truth.(37)
Third, § 1623 is different from § 1621 in that under the former, in certain circumstances, a
recantation is a bar to prosecution for perjury.(38)

Finally, both § 1621 and § 1623 provide for maximum prison terms of five years, but the
maximum fine under § 1621 is $2,000, while under § 1623, it is $10,000.

4. Section 1622 - subornation of perjury

Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined
not more than $2,000 or imprisoned not more than five years, or both.

Prosecution for subornation of perjury requires that the perjury sought must actually have been
committed.(39) But a conspiracy to suborn perjury may be prosecuted whether or not perjury has
been committed.(40) Where perjured testimony is solicited, either by an individual or through a
conspiracy, an obstruction of justice has occurred whether or not the perjured testimony has
taken place.(41) It is quite common to join both obstruction of justice and subornation of perjury
counts in a single indictment when they arise from the same transaction.(42) Because the crime of
subornation of perjury is distinct from that of perjury, the suborner and perjurer are not
accomplices.(43)

The gravamen of the offense of subornation is the procuring of perjury with knowledge that the
testimony to be given is false, and that the one testifying is aware of the falsity of his statement.
(44)
To establish a prima facie case for subornation of perjury, a prosecutor must show:

1. that perjury was committed;

2. that the defendant procured the perjury corruptly, knowing, believing or having reason to
believe it to be false testimony; and,
3. that the defendant knew, believed or had reason to believe that the perjurer had knowledge of
the falsity of his testimony.

The existence of the perjury must be proved under the same standards as required by the
applicable perjury statute. Thus, if § 1621 applies to the underlying perjury, the demands of the
two-witness rule must be met.(45) If § 1623 is applicable to the perjury, the two-witness rule does
not apply.(46) If the charge consists only of conspiracy to suborn perjury, compliance with the
two-witness rule is not necessary.(47)

5. Investigative responsibility

The Federal Bureau of Investigation has primary investigative responsibility for perjury
violations in all cases and matters involving departments and agencies of the United States,
except those arising out of a substantive matter being investigated by the Secret Service, Internal
Revenue Service, Immigration and Naturalization Service, Bureau of Customs, Bureau of
Narcotics and Dangerous Drugs, Bureau of Alcohol, Tobacco and Firearms, and the Postal
Inspection Service.(48)

6. Supervisory jurisdiction
Generally, perjury is under the supervisory jurisdiction of the Division and Section of the
Department having responsibility for the basic subject matter. Where such subject matter
responsibility cannot be identified, supervisory responsibility is with the General Litigation and
Legal Advice Section of the Criminal Division.

The General Litigation and Legal Advice Section should be notified in any perjury case
involving exceptional circumstances, regardless of the subject matter of the underlying offense,
particularly when a question of statutory construction is involved.

Because perjury affects the integrity of the judicial fact-finding process, all offenders should be
vigorously prosecuted. Cases may be submitted to the grand jury for its consideration or an
information may be filed without prior authorization from the Criminal Division, except with
regard to Congressional matters.(49)

7. Special problems
a. Prosecutorial discretion to indict under 18 U.S.C. § 1621 or § 1623

There is a latent problem in the area of prosecutorial discretion and 18 U.S.C. § 1623, that has
surfaced in two decisions by different panels of the Second Circuit and decisions of the Seventh
and Ninth Circuits. In United States v. Ruggiero, 472 F.2d 599, 606 (2d Cir.), cert. denied, 412
U.S. 939 (1973), appellant argued that he was denied equal protection of the law by the
prosecutor's decision to proceed against him under § 1623 rather than under § 1621 because the
evidentiary burden of the prosecution is lesser and the penalty more severe under the former
statute. The court, citing Yick Wo v. Hopkins, 118 U.S. 356 (1886), held that "where criminal
statutes overlap the government is entitled to choose among them provided it does not
discriminate against any class of defendants." The court found no discrimination because
Ruggiero had failed to demonstrate membership in a specific class of defendants.

In United States v. Kahn, 472 F.2d 272 (2d Cir.), cert. denied, 411 U.S. 982 (1973), however, the
specter of such a class was raised in dictum. Kahn was charged under § 1621 and claimed that,
had he been charged under § 1623, his subsequent "recantation" would have barred a perjury
prosecution. The court failed to confront the issue directly by holding that Kahn's subsequent
"recantation" would not have barred prosecution under § 1623 because at the time it was made, it
had become manifest that Kahn's original falsity was exposed. However, the court said "we find
not a little disturbing the prospect of the government employing § 1621 whenever a recantation
exists, and § 1623 when one does not, simply to place perjury defendants in the most
disadvantageous trial position."(50) Thus, defendants charged under § 1621 whose perjury would
not be prosecutable under § 1623 because of a valid "recantation", might constitute a class
denied equal protection under Ruggiero.

In addition to Ruggiero's equal protection argument seeking to limit the prosecutor's discretion,
attorneys for Kahn advanced the proposition that a statute aimed at specific conduct (i.e., § 1623)
must prevail over an otherwise applicable general statute (i.e., § 1621).(51) The Second Circuit did
not reach this question in Kahn. However, in dictum in United States v. Devitt, 499 F.2d 135 (7th
Cir. 1974), cert. denied, 421 U.S. 975 (1975), the Seventh Circuit disagreed with Kahn's
proposition. The court, in rejecting the defendant's equal protection argument, also stated:
"Defendant cites no case in support of the novel proposition that where conduct is proscribed by
two or more separate criminal statutes, the government must elect to prosecute under the statute
imposing the greatest burden of proof."(52)

In United States v. Clizer, 464 F.2d 121, 125 (9th Cir.), cert. denied, 409 U.S. 1086 (1972), a
different approach was taken by the Ninth Circuit. Although appellant had been charged with
making false statements before a grand jury, the indictment was under § 1621. The court
disregarded the statutory reference in the indictment and considered it as an indictment under
§ 1623: "The government, despite its reference to 18 U.S.C. § 1621, in fact charged Clizer with a
violation of 18 U.S.C. § 1623."

While it appears from the case law that it may be advisable to use 18 U.S.C. § 1623 when it
applies to a given factual setting, it is clear that "when an act violates more than one criminal
statute, the Government may prosecute under either so long as it does not discriminate against
any class of defendants. . . . Whether to prosecute and what charge to file or bring before the
grand jury are decisions that generally rest in the prosecutor's discretion."(53)

b. Venue

Venue for perjury actions lies in the district where the false oath was made, or, where the perjury
is committed in an ancillary proceeding,(54) in the district in which the parent proceeding is
pending.(55)

c. Unresponsive answers: the case against Samuel Bronston

Occasionally, a witness under oath will try to deceive the questioner and mislead the inquiry by
giving answers to questions which, although literally true, are evasive or unresponsive. This
occurred in Bronston v. United States, 409 U.S. 352 (1973), in which the Supreme Court
unanimously held that such conduct does not violate 18 U.S.C. § 1621.(56) The Court rejected the
Government's effort to expand the scope of the perjury statute, noting that "if a witness evades, it
is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark,
to flush out the whole truth with the tools of adversary examination."(57) Thus "any special
problems arising from the literally true but unresponsive answer are to be remedied through the
questioner's acuity and not by a federal perjury prosecution."(58)

d. The "I don't remember" syndrome

Prosecutors are often faced with witnesses who, rather than deny a fact, claim that they do not
remember it. These witnesses may be prosecuted for perjury.(59) To prove that a witness actually
remembered something, it is necessary to prove both that the witness at one time knew the fact
and that he must have remembered it at the time he testified.

For example, a witness testifies that he does not remember having ever paid money to a police
officer. The first element of proof in a perjury prosecution against him would be that he had, in
fact, paid money to a police officer. It would then be necessary to prove that he must have
remembered that payment when he testified. If the dates of the transaction and testimony are
sufficiently close, memory may be inferred. Probative of his memory at the time of his testimony
would be evidence that he mentioned such payments either before or after his testimony or that
he remembered other events that occurred at the same time or earlier than the event in question.

It has been held in perjury prosecutions under § 1621 that proof that a defendant lied when he
stated that he could not remember an event need not be by direct evidence or meet the standards
of the two-witness rule.(60) These cases reason that since no direct evidence as to what the
defendant actually believed is possible, circumstantial evidence is sufficient.

e. "Two-witness rule"

The so-called "two-witness rule" applies only to prosecutions for perjury brought under 18
U.S.C. § 1621.(61) Congress has eliminated the rule for prosecutions under § 1623 and since the
rule is not of constitutional dimension, the courts have deferred to legislative judgment.(62) Thus,
because § 1623 is the preferred vehicle for prosecutions of perjury occurring before a court or
grand jury,(63) the handicap of the two-witness rule is generally avoided.

The two-witness rule is somewhat of a misnomer. It provides that the falsity of a statement
alleged to be perjurious must be established either by the testimony of two independent
witnesses, or by one witness and independent corroborating evidence which is inconsistent with
the innocence of the accused.(64) Thus, the rule is satisfied by the testimony of a second witness
who has given testimony independent of another which, if believed, would prove that what the
accused said under oath was false. In this case, it is immaterial whether such witness
corroborates the first witness.(65) Alternatively, the rule is satisfied by one witness and
independent corroborating evidence which is inconsistent with the innocence of the accused and
of a quality to assure that a guilty verdict is solidly founded.(66)

It should be emphasized that the two-witness rule applies only to proof that a given statement
was objectively false. Circumstantial evidence may be used to establish that a perjury defendant
made the false statement willfully or with knowledge of its falsity.(67)

The two-witness rule does not apply to § 1621 prosecutions where the defendant is prosecuted
for falsely testifying that he was unable to remember a certain event.(68) Neither does it apply to
prosecutions for obstruction of justice (18 U.S.C. §§ 1503, 1505), even if the gravamen of the
obstruction is that the defendant perjured himself.(69)

f. The "use" of material containing false statements

In addition to prohibiting the making of false statements, § 1623 applies to one who:

. . . under oath in any proceeding . . . makes or uses any other information, including any book, paper,
document, record, recording, or other material, knowing the same to contain any false material
declaration. . . .

The legislative history of § 1623 is silent as to what type of conduct the "makes or uses" part of
the statute is intended to cover. In United States v. Pommerening, 500 F.2d 92 (10th Cir.), cert.
denied, 419 U.S. 1088 (1974), the prosecutor subpoenaed defendants and their corporate records.
The defendants altered the records, brought them to the grand jury and "relied upon these false
documents in answering the United States Attorney's questions. . . ." The appellate court found
such conduct to be "use" of the documents before the grand jury.(70) In United States v. Dudley,
581 F.2d 1193, 1197 (5th Cir. 1978), the court held that physical delivery by the alleged user is
not a necessary prerequisite to use under § 1623. It is sufficient that the testimony of the accused
tended to give verity to the document.

Other conduct that may constitute perjury is the use of false affidavits submitted in federal court
proceedings. In Dunn v. United States, 442 U.S. 100 (1979), the Supreme Court held that a false
affidavit submitted to a federal court in support of a motion to dismiss an indictment could not be
prosecuted as perjury under § 1623 since such an affidavit lacked the formality required of court
proceedings or depositions and therefore was not given in a "proceeding before or ancillary to
any court or grand jury of the United States" as required by § 1623(a). However, prosecutions for
false affidavits submitted in federal court proceedings can be prosecuted under § 1621. Venue
for such prosecutions is in the district where the affidavit is sworn. Thus, in those cases in which
an affidavit filed in United States District Court in one district was sworn in another district, the
perjury prosecution under § 1621 must be brought in the latter district.

g. Indictments(71)

Based on current case law, the Government has some discretion as to how to charge separate, but
related, false statements. Courts have held that all of the false declarations pertaining to a
particular subject matter may be embraced in one count.(72) This includes minor questions which
assign falsity to a witness' denial of knowledge about the general line of inquiry.(73) Charging the
crime in this manner does not render the indictment infirm for duplicity as only one offense is
contained in the count.(74) In such a situation, proof of the falsity of any one statement charged
will sustain the count.(75) On the other hand, false statements made during one grand jury session
which are separate and distinct can be charged in multiple counts with separate sentences
imposed for a conviction on each count.(76) For instance, in United States v. Scott, 682 F.2d at
698, the court held that separate and distinct false declarations which require different factual
proof of falsity may be charged in separate counts even though they are related and arise out of
the same transaction.(77) Furthermore, the fact that a single piece of evidence may be used to
prove two counts does not make an indictment multiplicitous.(78) Two counts are considered to be
separate offenses if the proof of one requires an additional fact that proof of the other does not
require.(79)

A perjury indictment must set forth the precise falsehoods alleged and the factual basis of their
falsity with sufficient clarity to permit a jury to determine their verity and to allow meaningful
judicial review of the materiality of those falsehoods.(80) However, the materiality requirement of
a perjury indictment may be satisfied by a general statement that the matter was material.(81)

There is no requirement that the perjury occur before the grand jury that issues the indictment(82)
and it is the preferred Division practice to present a perjury indictment to a grand jury that did
not hear the perjured testimony. Nor is there a requirement that the grand jury must be able to
indict for the substantive offense inquired into. A grand jury may ask questions about events
outside of the statute of limitations, or about acts that otherwise would not lead to indictments.(83)
However, the courts will strictly scrutinize for fairness any indictment and conviction for perjury
before a grand jury that rests upon a defendant's responses to leading questions.(84)

8. Defenses and bars to prosecution

a. In general

A primary defense to an indictment for perjury is that the defendant believed his statement to be
true at the time he made it. Belief that a declaration was true when made is specifically a defense
to prosecution under § 1623(c). The major element the Government must prove under § 1621
and § 1623 is that the defendant made a false statement knowing it to be false. If the Government
is unable to prove this element beyond a reasonable doubt, the defendant is entitled to a directed
verdict. Proof that a defendant believed a declaration was true defeats a charge of perjury even if
the statement was, in fact, false.(85) The defense of advice of counsel usually may only be
considered by the jury in determining whether the defendant willfully or knowingly gave false
testimony.(86)

b. Collateral estoppel

Collateral estoppel(87) "means simply that when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again be litigated between the same
parties in any future law suit."(88) Collateral estoppel has been an established rule of federal law at
least since United States v. Oppenheimer, 242 U.S. 85 (1916), and is now viewed as an integral
part of the 5th Amendment ban against double jeopardy.(89)

A prosecutor encounters no double jeopardy or collateral estoppel problem when prosecuting a

convicted defendant for perjury committed during his former trial on a substantive offense.(90)
Nor is there any collateral estoppel problem when prosecuting a trial witness for perjury, since a
witness is not a party to the suit.

The question of whether collateral estoppel bars prosecution for perjury usually arises where a
defendant who has taken the stand and perjured himself has been acquitted of the substantive
offense and is charged with perjury for testimony given at his trial. The collateral estoppel claim
is that the jury, by acquitting the defendant, adjudicated the truthfulness of his testimony in his
favor and that the Government is barred from litigating that issue again.

The problem with such a claim is that since the Government must prove every element of its case
beyond a reasonable doubt and since the jury's general verdict does not indicate which elements
it found lacking in proof, it is difficult to determine whether the jury's acquittal was based on a
finding that the defendant's testimony was credible or whether, even though it disbelieved the
defendant, the jury found the Government's case deficient in some other respect.

Clearly, if the defendant's only testimony is a general denial of guilt, an acquittal would be a bar
to a perjury prosecution. In most situations, however, an inquiry must be made into what issues
the jury's acquittal "necessarily" adjudicated. In Sealfon v. United States, 332 U.S. 575, 579
(1948), the Supreme Court held that the determination "depends upon the facts adduced at each
trial and the instructions under which the jury arrived at its verdict at the first trial."

In confirming this point, the Court in Ashe v. Swenson, 397 U.S. 436, 444 (1970),(91) held:

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this
approach requires a court to examine the record of a prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have
grounded its verdict upon an issue other than that which defendant seeks to foreclose from
consideration.

Thus, the acquittal of a defendant following a trial on criminal charges does not necessarily bar
his subsequent prosecution for perjury committed during the course of the trial. It is only when
an issue of ultimate fact or an element essential to conviction has once been determined by a
final judgment in a criminal case that the same issue cannot be relitigated.(92) In such situations,
the collateral estoppel doctrine requires: (1) an identification of the issues in the two actions to
determine whether they are sufficiently similar and material; (2) an examination of the record of
the prior case to decide whether the issue was litigated in the first case; and (3) an examination of
the record of the prior proceeding to ascertain whether the issue was necessarily decided in the
first case.(93) Significantly, the burden is on the defendant to establish that the verdict in the prior
trial necessarily determined in his favor the issue which he contends should not be considered.(94)

The prosecutor must make a thorough analysis of each case to determine if collateral estoppel
dictates that an acquittal in a prior trial forecloses a subsequent perjury indictment. Before an
indictment of an acquitted defendant for perjury based upon his testimony at trial is sought, the
possibility that such a prosecution has been foreclosed should be explored fully so the
Government will avoid the appearance of vindictive prosecution or waste of Government
resources. In appropriate cases, the Criminal Division may be consulted prior to bringing such
prosecutions to avoid development of restrictive precedents.

c. Lack of Miranda warning

Generally, an indictment for perjury before a grand jury will not be dismissed for failure to
advise the witness of his right not to incriminate himself.(95) There is also no duty to warn the
witness of the consequences of committing perjury before the grand jury.(96) However,
Department of Justice guidelines require prosecutors to give grand jury witnesses warnings
resembling Miranda warnings and to advise putative defendants of their status as such,(97)
although failure to do so does not constitute grounds for dismissal of an indictment.(98)

d. Recantation
2. In general. 18 U.S.C. § 1623(d) provides that, in certain limited circumstances, a retraction and
correction of false testimony by a witness will act as a bar to prosecution for the initial perjury.
Before the enactment of § 1623, the federal law, under § 1621, was that the crime of perjury
was complete as soon as the false statement was made, (99) and that a subsequent retraction and
correction of the testimony did not erase the perjury, but was only relevant as an affirmative
defense in showing the absence of intent to commit perjury. (100) Since recantation is a bar to
prosecution under § 1623 rather than an affirmative defense, the issue of recantation is an issue
of law to be decided by the court. (101) This defense must be raised before trial under Fed. R. Crim.
P. 12(b)(2), as a jurisdictional bar to prosecution. (102)

18 U.S.C. § 1623(d), which was adopted in modified form from the New York Penal
Code § 210.5,(103) provides:

Where, in the same continuous court or grand jury proceeding in which a declaration is made,
the person making the declaration admits such declaration to be false, such admission shall bar
prosecution under this section if, at the time the admission is made, the declaration has not
substantially affected the proceeding, or it has not become manifest that such falsity has been
or will be exposed.

It is clear from the above that a witness' admission of the falsity of his declarations does
not automatically bar prosecution, but that prosecution is barred only if the admission
occurs at a time when the false declarations have "not substantially affected the
proceeding, and it has not become manifest that such falsity has been or will be
exposed."(104) Thus, if either of these conditions has already occurred prior to the time of
the witness' reappearance to correct his testimony, the recantation provisions of § 1623(d)
are inapplicable and cannot be invoked to bar prosecution.(105) Moreover, the burden is on
the defendant to show that he is within the protection of the recantation exemption.(106)

In ruling on the timeliness of claimed recantation by a witness, the courts have generally
interpreted the "manifest" proviso of § 1623(d) as applying specifically to the witness'
knowledge, derived either from independent sources or directly from the Government
prosecutor, that the falsity of his prior statements "has been or will be exposed." In the
cases where the witness possesses such knowledge, the courts have consistently held that
no effective recantation can thereafter be made.(107)

At least one case, however, suggests, by implication, that "manifest" can also be
interpreted to mean that the falsity of the witness' statements has merely become known
to the Government or the grand jury, as opposed to the witness. In United States v. Kahn,
472 F.2d 272 (2d Cir.), cert. denied, 411 U.S. 982 (1973), the Second Circuit held that a
§ 1623(d) defense was not available to the defendant since at the time of his alleged
recantation, several other witnesses had already testified concerning the bribes,
knowledge of which he had falsely denied during his initial- grand jury appearance.
There is no indication in the opinion of a finding by the court that at the time of the
defendant's attempted recantation, he had any knowledge of the contradictory testimony
heard by the grand jury.

There is also some question as to the standards to be applied in determining when the
false declarations of a witness will be considered as having "substantially affected the
proceedings", thereby precluding an effective recantation. Certainly, a timely recantation
would be precluded in any case where the grand jury has already acted.(108)
 Further, in United States v. Crandall, 363 F. Supp. 648 (W.D. Pa. 1973), aff'd, 493 F.2d
1401 (3d Cir.), cert. denied, 419 U.S. 852 (1974), the court found that the defendant's
false declarations had substantially affected the proceedings since the grand jury had been
deprived initially of relevant testimony as to the guilt of other individuals which resulted
in a several month delay in the grand jury's investigation.

While the cases offer some guidance, the determination of whether a given proceeding
has been substantially affected by the witness' false declarations can only be made after a
consideration of the facts and circumstances of the particular court or grand jury
proceeding.

Since the statutory language of § 1623(d) requires both conditions to be satisfied for a
valid recantation, reappearance before a grand jury to correct testimony after one of the
conditions has occurred does not preclude prosecution for false declarations under
§ 1623.(109)

3. Necessity of advising a witness of recantation provision of § 1623(d). A prosecutor is under no

duty to advise a witness of the possibility of recanting under § 1623(d).(110) This is so even if the
prosecutor advises the witness of the penalties for perjury. (111) In addition, there is no
requirement that the Government reveal to a perjurer that it has evidence of the untruthfulness
of his statements, nor must the Government delay revealing incriminating evidence to allow the
witness to reflect on his perjury.(112)

A heretofore unraised problem exists when a prosecutor gives a witness an opportunity to

"straighten out" his testimony by recanting at a point in time when a recantation will not
be valid. As set forth above, a recantation is effective only if made before it is clear that
the perjury will be exposed or before the perjurious statement has misled the proceeding.
It would seem that an argument could be made that the Government is estopped from
challenging a witness' eligibility to recant if it solicits the recantation. Therefore, a
prosecutor usually should not solicit a recantation unless he is willing to forego a
prosecution for perjury and, normally, no perjury prosecution should be undertaken
subsequent to a solicited recantation even if the defendant was technically ineligible
under § 1623(d).

4. Witness' right to recant. If a witness who has completed his testimony requests that he be
allowed to reappear before the grand jury for the purpose of recantation, the prosecutor should
grant the request, if timely made, in keeping with the legislative intent of § 1623(d) -- promotion
of truthful testimony.(113)

To recant, the witness must, as a condition precedent to giving truthful testimony, admit
that his perjurious testimony was false.(114) An outright retraction and repudiation of the
false testimony is essential to a recantation within the meaning of the statute.(115)
Ambiguous statements regarding confusion of the witness or requests to add to and
clarify testimony are not sufficient. "Unless he admits that he gave false testimony, there
is no occasion for a recantation."(116)
 It is clear, however, that the reappearance by the witness after it has become "manifest"
that the falsity of his previous testimony "has been or will be exposed" does not preclude
the Government from prosecuting the witness for his prior false declarations before the
grand jury.(117)

d. Immunity

The fact that the defendant testified with immunity before the grand jury or in a trial does not
protect him from prosecution for perjured testimony made during the giving of the immunized
testimony.(118) Perjury prosecutions based on immunized testimony are permissible and all
statements made during the giving of the immunized testimony, both true and false, may be
admitted in the course of a subsequent perjury action if such use is not otherwise prohibited by
the 5th Amendment.(119)

B. Obstruction of Justice

Obstruction of justice is covered by a number of overlapping statutes generally found within

Chapter 73 of Title 18 of the U.S. Code, "Obstruction of Justice." These statutes are result
oriented and most activities that would obstruct or impede the administration of justice can be
addressed by one or more of them. Perjury (18 U.S.C. § 1621), false declarations (18 U.S.C. §
1623), and false statements (18 U.S.C. § 1001), which are also methods by which justice can be
obstructed, are discussed elsewhere in this chapter. This section will focus primarily on 18
U.S.C. § 1503, and touch only in passing on the narrow statutes.(120)

1. Text of 18 U.S.C. § 1503

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to

influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United
States, or officer who may be serving at any examination or other proceeding before any United States
commissioner or other committing magistrate, in the discharge of his duty, or injures any such grand or
petit juror in his person or property on account of any verdict or indictment assented to by him, or on
account of his being or having been such juror, or injures any such officer, commissioner, or other
committing magistrate in his person or property on account of the performance of his official duties, or
corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or
impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined
not more than $5,000 or imprisoned not more than five years, or both.

18 U.S.C. § 1503 is one of three broadly drawn statutes prohibiting conduct that would obstruct
justice. The other two, 18 U.S.C. § 1512, tampering with a witness, victim, or an informant, and
18 U.S.C. § 1513, retaliating against a witness, victim, or an informant, became effective in
October of 1982 as part of the Victim and Witness Protection Act of 1982 (VWPA).(121)

2. The nature of the crime

18 U.S.C. § 1503 is comprised of two parts. The first part generally prohibits endeavors to
"corruptly, or by threats or force, influence, intimidate, or impede. . ." any grand or petit juror, or
court official. The second part -- the so-called omnibus clause -- punishes anyone, who
"corruptly, or by threats or force, influences, obstructs, or impedes, the due administration of
justice," or endeavors to do so. The omnibus clause extends to "those means of interference the
draftsmen were not prescient enough to enumerate."(122) It is not limited by the concept of
ejusdem generis to actions accomplished by means of coercion or intimidation.(123) Nor are
actions taken against witnesses outside of its purview.(124)

Courts have not been particularly concerned with defining the conduct that constitutes
interference with the "due administration of justice." A definition put forth by the Ninth Circuit
is "conduct designed to interfere with the process of arriving at an appropriate judgment in a
pending case and which would disturb the ordinary and proper functions of the court."(125)

a. Civil as well as criminal proceedings can be obstructed

The great majority of cases under § 1503 have involved endeavors to obstruct witnesses, jurors
or officials in grand jury investigations or criminal trials. But the handful of courts that have
addressed the issue directly have held that the statute also covers endeavors to obstruct pending
civil proceedings.(126) Furthermore, the United States need not be a party to the case, as the justice
being administered is that of the United States.(127)

b. "Endeavors" as well as actual obstructions prohibited

The statute speaks of "endeavors" rather than "attempts" to obstruct. The term "endeavor" has
been held to be broader than "attempt." As stated in United States v. Russell, 255 U.S. 138, 143
(1921):

The word of the section is "endeavor," and by using it the section got rid of the technicalities which
might be urged as besetting the word "attempt," and it describes any effort or essay to accomplish the
evil purpose that the section was enacted to prevent. . . .(128)

IndUnited States v. Tedesco, 635 F.2d 902, 907 (1st Cir. 1980), cert. denied, 452 U.S. 962
(1981), the court observed, "'endeavor' connotes a somewhat lower threshold of purposeful
activity than 'attempt,'. . .'the fact that the effort to influence was subtle or circuitous' made no
difference," (quoting United States v. Roe, 529 F.2d 629, 632 (4th Cir. 1975)).

An endeavor "can be committed merely by words" (129) and need not be successful to be criminal. (130)
Factual impossibility is not a defense.(131)

c. Endeavors to influence jurors or officials

The first clause of § 1503 prohibits endeavors to influence, intimidate or impede any grand or
petit juror, or officer of any court whether these endeavors are by threat or force or are "corrupt".
The term "officer" has been held to include veniremen,(132) federal district judges,(133) and U.S.
Attorneys.(134)
 d. Endeavors to obstruct the due administration of justice

The omnibus clause of § 1503 has been interpreted very broadly to cover actions that, whether or
not taken with respect to jurors, officials, or witnesses, or by means of threats, force or
intimidation, tend to impede the due administration of justice. Thus, it covers destruction of
documents sought by a federal grand jury,(135) presenting fraudulent documents at a civil
attachment proceeding,(136) attempts to sell grand jury transcripts,(137) concealment, destruction or
alteration of documents subpoenaed by a federal grand jury,(138) and falsifying a report likely to
be submitted to a grand jury.(139)

An indictment charging an endeavor to impede the work of a grand jury by destroying,

concealing or altering documents must allege that the defendant knew, or had reason to know,
that the documents would be called for by the grand jury.(140) The documents, however, need not
be subject to a subpoena.(141) It does not matter whether the administration of justice is actually
hindered.(142)

The Second Circuit in United States v. Weiss, 491 F.2d at 466, approved the trial court's
instruction that a § 1503 conviction "requires proof of more than mere failure to produce. . .
documents. . ." and that ". . . some affirmative conduct. . . such as destruction, concealment or
removal of the documents" must be shown.

The omnibus clause of § 1503 has also been held to cover endeavors to suborn perjury or
influence a witness not to testify,(143) giving false denials of knowledge and memory,(144) giving
false and evasive testimony,(145) and endeavoring to influence a judge(146) or a juror through a third
party.(147)

3. Elements of the crime

To prove the defendant guilty of a violation of 18 U.S.C. § 1503, the Government must prove
that he knew or had reason to know that a judicial proceeding was pending in a federal court,(148)
and that the effect of his act would be to obstruct justice.(149) Furthermore, the Government must
show that the defendant acted with specific intent, or "corruptly."(150)

a. A pending proceeding

The Government must prove that a proceeding was pending in a federal court and that the
defendant in the § 1503 action had reason to know of it before he acted to or endeavored to
obstruct justice.(151) The proceeding may be civil(152) or criminal, including a grand jury
investigation.(153) The United States need not be a party to the proceeding as the justice being
administered is that of the United States.(154)

A civil proceeding is pending once a complaint has been filed with a United States
Commissioner.(155) A grand jury proceeding is pending once a subpoena has been "issued in
furtherance of an actual grand jury investigation, i.e., to secure a presently contemplated
presentation of evidence before the grand jury".(156) No testimony need have been taken by the
grand jury.(157) In fact, the grand jury need not be aware that subpoenas have been issued.(158)
A criminal action continues to be pending "in the district court until disposition is made of any
direct appeal taken by the defendant assigning error that could result in a new trial."(159)

b. An act, the effect of which would be to obstruct justice

Any conduct "designed to interfere with the process of arriving at an appropriate judgment in a
pending case and which would disturb the ordinary and proper functions of the court" can
constitute an act which violates 18 U.S.C. § 1503.(160) The acts held to constitute obstructive
conduct have varied so widely that one court observed that the reach of § 1503 is only limited by
the imagination of the criminally inclined.(161)

c. The act was done "corruptly", or with specific intent

The state of mind required to violate 18 U.S.C. § 1503, is that of specific intent.(162) The act
forming the basis for the obstruction charge must have been knowingly and deliberately done for
an improper or evil purpose.

The use of the word "corruptly" in the statute has been widely held to connote specific intent.(163)
The specific intent standard goes not only to the act itself but also to proving that the defendant
knew that a federal judicial proceeding was pending and that he acted with the purpose of
interfering with it.(164) Only one case, United States v. Neiswender, 590 F.2d 1269 (4th Cir.), cert.
denied, 441 U.S. 963 (1979), deviates from the specific intent standard. In Neiswender the
defendant offered to "guarantee" a jury acquittal in return for a bribe from defense counsel.
During his trial for obstruction of justice, the defendant argued that he had only intended to
defraud defense counsel, not to cause him to reduce his efforts on behalf of his client and thus
obstruct justice. The court held:

[a] defendant who intentionally undertakes an act or attempts to effectuate an arrangement, the
reasonably foreseeable consequence of which is to obstruct justice, violates § 1503 even if his hope is
that the judicial machinery will not be seriously impaired. (165)

Specific intent may be proved by circumstantial evidence.(166) It may not, however, be presumed
as a matter of law.(167)

4. Venue

Where the act forming the basis of the obstruction charge and the proceeding at which it is aimed
are in the same district, there is no question as to where venue lies. When they are in different
districts, however, the circuits are split on whether venue lies where the proceeding is pending or
where the act occurred. The greater weight of authority is that venue lies where the proceeding is
pending.(168) The D.C. Circuit, Seventh Circuit, and the Eastern District of Pennsylvania hold that
venue is only proper where the act occurred.(169)

C. False Statements 18 U.S.C. § 1001

1. Text of 18 U.S.C. § 1001
Whoever, in any matter within the jurisdiction of any department or agency of the United States
knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or
makes any false, fictitious or fraudulent statements or representations, or makes or uses any false
writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry,
shall be fined no more than $10,000 or imprisoned not more than five years or both.

18 U.S.C. § 1001, the general false statements statute, is aimed at "protect[ing] the authorized
functions of governmental departments and agencies from the perversion which might result
from . . . deceptive practices. . . ."(170) The statute overlaps with a myriad of other false statements
statutes that are keyed to specific federal agencies or federally-assisted activities.(171) The courts
have held that the making of a false statement may be prosecuted under § 1001 even if another,
more specific false statement statute applies to the alleged conduct.(172) The fact that the more
specific statute authorizes less severe penalties than § 1001 is of no consequence.(173)

2. The nature of the offense

The forerunner of the present § 1001 proscribed the making of false pecuniary claims to the
Federal Government, but not the furnishing of false information. In 1934, the statute was
amended to substantially its present form.(174)

Section 1001 applies to three types of conduct: (1) falsifying, concealing, or covering up a
material fact by any trick, scheme, or device; (2) making false, fictitious or fraudulent statements
or representations; and (3) making or using any false document or writing. It has been said that
§ 1001 "encompasses two distinct offenses, false representation and concealment of a material
fact."(175)

3. The elements of the offense

The elements of a § 1001 violation are generally stated to be: (1) a statement (2) that is false, (3)
material, (4) made knowingly and willfully, and (5) made in relation to a matter within the
jurisdiction of a department or agency of the United States.(176)

a. Statements

The courts agree that § 1001 covers both oral and written statements.(177) The statement need not
be sworn.(178) Writing "N/A" in response to a question may be considered an "answer" and thus a
statement within the meaning of § 1001.(179)

A person who leaves the space provided on a form for an answer blank may be deemed to
represent implicitly that he has no relevant information to supply. If the contrary is true, the
failure to disclose may be punishable under the "concealing" clause of § 1001.(180) Note, however,
that with respect to a charge under the "concealing" clause of § 1001, the Government may be
required to show that "the defendant had a duty to disclose the material facts at the time he was
alleged to have concealed them."(181) It is not always easy to draw clear distinctions between the
"making a false statement" and "concealing" clauses of § 1001 because falsifying one fact may
serve to conceal another fact that should have been disclosed.(182)
 b. Falsity

The element of falsity is satisfied either by the making of a false statement or the concealing of a
material fact. "A statement is 'false' or 'fictitious' if untrue when made and known to be untrue by
the person making it or causing it to be made."(183)

The rule is that "absent [a] fundamental ambiguity, the question of what a defendant meant when
he made his representation will normally be for the jury."(184) If a statement objectively admits of
more than one interpretation, the Government sustains its burden of proof only if it "negative[s]
any reasonable interpretation that would make the defendant's statement factually correct."(185)

The courts have held that the making of false statements concerning future intentions is
actionable under § 1001.(186)

c. Materiality

Section 1001 does not contain an explicit materiality requirement for the offenses of making a
false statement or using a false writing or document, but does contain such a requirement for the
offense of falsifying, concealing, or covering up a material fact. Nevertheless, the great weight of
authority holds that § 1001 should be read to require a showing of materiality regardless of
which clause the defendant has been charged with violating.(187) The question of the materiality of
a false statement under § 1001 is one of law.(188)

The materiality requirement of § 1001 has been liberally construed. A statement is "material"
within the meaning of the statute if it has "a natural tendency to influence, or [is] capable of
affecting or influencing, a government function."(189) To establish materiality, it is not necessary
to show that a federal agency relied upon the false statement,(190) that the false statement
influenced a federal agency,(191) that a federal agency was misled by the false statement,(192) or
that the Federal Government sustained a loss on account of the false statement.(193) A false
statement may be material under § 1001 even if it is not required to be made by statute or
regulation,(194) and even if it is not made directly to a federal agency.(195) These issues are usually
discussed by the courts in connection with the federal agency jurisdiction element of § 1001. The
courts have recognized that the materiality and jurisdictional elements of § 1001 "are logically
related."(196)

d. Intent

To violate § 1001, a false statement must be made knowingly and willfully. A statement is made
"knowingly" if it is made with knowledge or awareness of the true facts, and is not prompted by
mistake, accident, or other innocent reason.(197) The Government is not required to show that the
defendant had actual knowledge of federal agency jurisdiction, or of the statutory provision
proscribing the alleged conduct.(198)

The Supreme Court in United States v. Yermian, 468 U.S. 63 (1984), noted that § 1001 "contains
no language suggesting any. . . requirement that false statements be. . . [made] with the intent to
deceive the federal government."(199) However, some pre-Yermian cases hold that § 1001 extends
only to conduct undertaken with the intent to deceive.(200) The legislative history of § 1001
clearly supports the conclusion that the intent to defraud is not an element of the offense.(201)

The knowledge requirement of § 1001 may be satisfied by proof that the defendant made a false
statement with "reckless disregard of the truthfulness of the statement and with a conscious
purpose to avoid learning the truthfulness of the statement."(202)

An act is committed "willfully" under § 1001 if it is done "deliberately and with knowledge."(203)
The willfulness element of § 1001 has been construed to require proof that the defendant had
"the intent of 'bringing about' the forbidden act."(204) The element of willfulness does not require a
showing of evil intent.(205)

e. Federal agency jurisdiction

2. Department or agency.(206) In United States v. Bramblett, 348 U.S. 503, 509 (1955), the Supreme
Court stated that the term "department" as used in § 1001 "was meant to describe the
executive, legislative, and judicial branches of the Government." Hence, a host of governmental
units have been found to constitute "departments or agencies" within the meaning of § 1001.

Although the Supreme Court in Bramblett expressly included the judicial branch of the
Government in the definition of the term "department" for the purposes of § 1001, the
lower courts have tended to construe the statute more narrowly in prosecutions based
upon the making of false statements in judicial proceedings. The prevailing view is that
§ 1001 protects the "'administrative' or 'housekeeping' functions, not the 'judicial
machinery' of the court[s]."(207) Thus, the courts have extended the reach of § 1001 to
providing false identifying information to a magistrate(208), filing false affidavits with the
court clerk in connection with a bail related transaction(209) and filing fraudulent
appearance bonds in a bankruptcy action.(210). However, courts have refused to extend
§ 1001 to the giving of false testimony before a grand jury,(211) the making of false
representations to a United States Magistrate at a removal and bail hearing,(212) the filing
of an affidavit containing false statements in a private civil action in federal court,(213) the
introduction of a false document at a federal criminal trial,(214) and the falsification of a
judicial order in a federal civil action.(215)

3. Jurisdiction. The issue of whether a false statement was made "in any matter within the
jurisdiction of any department or agency of the United States" is ordinarily treated as a question
of fact.(216) Some circuits hold, however, that this question may properly be decided by the trial
judge.(217)

The Supreme Court has stated that the "term 'jurisdiction' should not be given a narrow or
technical meaning for purposes of § 1001."(218) In United States v. Rodgers, 466 U.S. 475,
479 (1984), the Supreme Court defined the rule as follows:

A department or agency has jurisdiction [under § 1001] when it has the power to exercise
authority in a particular situation. . . .Understood in this way, the phrase "within the jurisdiction"
merely differentiates the official, authorized functions of an agency or department from matters
peripheral to the business of that body.
 The defendant in Rodgers allegedly made false crime reports to the FBI and the Secret
Service. The Court held these facts stated an offense under § 1001 because there was a
"'statutory basis' for the authority of the FBI and the Secret Service over investigations
sparked by [the defendant's] false reports."(219)

Federal agency jurisdiction under § 1001 has been found to exist in a wide variety of
circumstances. The statute reaches statements not required to be made by statute or
regulation,(220) as well as statements not made directly to a federal agency.(221) False
statements made to federal agencies possessing only police or investigatory powers are
also covered.(222)

It is settled that the making of a false statement may be prosecuted under § 1001 even
when "the federal agency's role is limited to financial support of a program it does not
directly administer."(223) When a false statement is made to a non-federal entity that
administers or implements a program that is funded by a federal agency, jurisdiction has
been found to exist under § 1001 on the theory that:

The necessary link between deception of the non-federal agency and effect on the federal
agency is provided by the federal agency's retention of "the ultimate authority to see that
federal funds are properly spent."(224)

Consistent with this approach, the courts have upheld a finding of federal agency
jurisdiction when a false statement is made in connection with a federally-assisted
program that is subject to auditing by a federal agency.(225)

When a federal agency acts in an essentially regulatory as opposed to funding capacity,

agency jurisdiction has been found to exist when a false statement is made in a document
that bears a reasonable relationship to an authorized function of the agency.(226) In
addition, § 1001 punishes the making of a false statement to a private party who submits
the information to a federal agency for use in connection with an authorized function of
that agency.(227)

4. Venue

The general rule is that venue to prosecute a violation of § 1001 lies either in the district where
the false statement is prepared, executed, mailed or physically delivered to a federal agency, or in
the district where the false statement is filed for final agency action.(228) However, when a false
document is filed under a statute that makes the filing of the document a condition precedent to
the exercise of federal jurisdiction, venue is proper only in the district where the document was
filed for final agency action.(229)

5. Defenses
a. Exculpatory denial defense

The courts disagree on the applicability of § 1001 to exculpatory "no" statements -- false denials
of culpability unaccompanied by other false statements. Some courts have suggested that the
exculpatory denial defense is necessary to preserve the protection afforded by the privilege
against self-incrimination.(230) Although several courts recognize the exculpatory denial defense,
at least to some extent, the proper way to exercise the privilege against self-incrimination is to
remain silent, not to lie.(231)

The Fifth Circuit was the first court of appeals to recognize the exculpatory denial defense.(232)
The First, Sixth, Eighth and Ninth Circuits have also approved this defense to a limited extent.
(233)
The extent to which the exculpatory denial defense will be recognized outside these Circuits
is unclear.(234) It is clear, however, that the courts will refuse recognize the defense where a
truthful statement by the defendant "would not have involved possible self-incrimination."(235)

b. Multiplicity

An indictment charging separate violations of § 1001 for each false document submitted is not
multiplicitous,(236) even if all the false documents are submitted at one time.(237)

FOOTNOTES

1. Sample indictments are contained in Appendices VII-4 and VII-5.

2. For a complete list of these statutes, see "Working Papers of the National Commission on
Reform of Federal Criminal Laws, Vol. I" (cited hereafter as "Working Papers") p. 675, et seq.

3. In the past, several important political figures have been charged with violating 18 U.S.C.
§ 1001. This statute is discussed in § C., infra.

4. Holy v. United States, 278 F. 521 (7th Cir. 1921).

5. United States v. Molinares, 700 F.2d 647, 651 (11th Cir. 1983).

6. Id. at 651-52.

7. United States v. Prior, 546 F.2d 1254, 1257-58 (5th Cir. 1977).

8. United States v. Picketts, 655 F.2d 837, 840 (7th Cir.), cert. denied, 454 U.S. 1056 (1981);
United States v. Arias, 575 F.2d 253, 254-55 (9th Cir.), cert. denied, 439 U.S. 868 (1978).

9. United States v. Young, 113 F. Supp. 20 (D.D.C. 1953), aff'd, 212 F.2d 236 (D.C. Cir.), cert.
denied, 347 U.S. 1015 (1954); United States v. Cuddy, 39 F. 696 (S.D. Cal. 1889); see "Working
Papers" at 664.

10. See § A.7.e., infra.

11. United States v. Sampol, 636 F.2d 621, 655 (D.C. Cir. 1980); United States v. Lighte, 782
F.2d 367, 372 (2d Cir. 1986).

12. United States v. Chapin, 515 F.2d 1274, 1280 (D.C. Cir.), cert. denied, 423 U.S. 1015
(1975); Bednar v. United States, 651 F. Supp. 672, 674 (E.D. Mo. 1986), aff'd, 855 F.2d 859 (8th
Cir. 1988).

13. United States v. Nixon, 816 F.2d 1022, 1030 (5th Cir. 1987), cert. denied, 484 U.S. 1026
(1988).

14. United States v. Moreno Morales, 815 F.2d 725, 747 (1st Cir.), cert. denied, 484 U.S. 966
(1987); United States v. Friedhaber, 826 F.2d 284, 286 (4th Cir. 1987); United States v.
Giarratano, 622 F.2d 153, 156 (5th Cir. 1980); United States v. Swift, 809 F.2d 320, 324 (6th
Cir. 1987); United States v. Anderson, 798 F.2d 919, 929 (7th Cir. 1986); United States v.
Sablosky, 810 F.2d 167, 169 (8th Cir.), cert. denied, 484 U.S. 833 (1987); United States v. Vap,
852 F.2d 1249, 1253 (10th Cir. 1988); United States v. Molinares, 700 F.2d 647, 653 (11th Cir.
1983).

15. United States v. Friedhaber, 826 F.2d at 286; United States v. Thompson, 637 F.2d 267, 268
(5th Cir. Unit B Jan. 1981); United States v. Drape, 753 F.2d 660, 663 (8th Cir.), cert. denied,
474 U.S. 821 (1985); United States v. Prantil, 764 F.2d 548, 557 (9th Cir. 1985); United States v.
Neal, 822 F.2d 1502, 1506 (10th Cir. 1987).

16. United States v. Whimpy, 531 F.2d 768, 770 (5th Cir. 1976); United States v. Harrison, 671
F.2d 1159, 1162 (8th Cir.), cert. denied, 459 U.S. 847 (1982); United States v. Anfield, 539 F.2d
674, 677-78 (9th Cir. 1976); United States v. Vap, 852 F.2d at 1253.

17. United States v. McComb, 744 F.2d 555, 563 (7th Cir. 1984).

18. United States v. Ostertag, 671 F.2d 262 (8th Cir. 1982).

19. United States v. Thompson, 637 F.2d at 268 n.2; United States v. Sablosky, 810 F.2d at 169.

20. United States v. Sisack, 527 F.2d 917, 920 (9th Cir. 1975).

21. United States v. Moreno Morales, 815 F.2d at 747; United States v. Anderson, 798 F.2d at
926; United States v. Sablosky, 810 F.2d at 169.

22. United States v. Paxson, 861 F.2d 730, 734 (D.C. Cir. 1988); United States v. Vap, 852 F.2d
at 1253.

23. United States v. Berardi, 629 F.2d 723 (2d Cir.), cert. denied, 449 U.S. 995 (1980); United
States v. Brown, 666 F.2d 1196, 1200 (8th Cir. 1981), cert. denied, 457 U.S. 1108 (1982).

24. United States v. Paxson, 861 F.2d at 731; United States v. Stackpole, 811 F.2d 689, 695 (1st
Cir. 1987); United States v. Weiss, 752 F.2d 777, 786 (2d Cir.), cert. denied, 474 U.S. 944
(1985); United States v. Bailey, 769 F.2d 203 (4th Cir. 1985); United States v. Nixon, 816 F.2d
1022, 1029 (5th Cir. 1987), cert. denied, 484 U.S. 1026 (1988); United States v. Seltzer, 794
F.2d 1114, 1123 (6th Cir. 1986), cert. denied, 479 U.S. 1054 (1987); United States v. Raineri,
670 F.2d 702, 718 (7th Cir.), cert. denied, 459 U.S. 1035 (1982); United States v. Ostertag, 671
F.2d 262, 265 (8th Cir. 1982); United States v. Laranaga, 787 F.2d 489, 494 (10th Cir. 1986);
United States v. Carter, 721 F.2d 1514, 1535 n.29 (11th Cir.), cert. denied, 469 U.S. 819 (1984).

25. United States v. Gremillion, 464 F.2d 901, 904-05 (5th Cir.), cert. denied, 409 U.S. 1085
(1972).

26. United States v. Watson, 623 F.2d 1198 (7th Cir. 1980); United States v. Armilio, 705 F.2d
939 (8th Cir.), cert. denied, 464 U.S. 891 (1983).

27. United States v. Berardi, 629 F.2d at 727; United States v. Farnham, 791 F.2d 331, 333 (4th
Cir. 1986); United States v. Thompson, 637 F.2d at 268; United States v. Anderson, 798 F.2d at
926; United States v. Ashby, 748 F.2d 467, 470 (8th Cir. 1984).

28. Section 1621 punishes one who "willfully . . . states . . . any material matter which he does
not believe to be true. . . ." Section 1623 punishes one who "knowingly makes any false material
declaration. . . ." There does not appear to be any effective difference between these two
definitions of the mens rea of the offense. In its report on the Organized Crime Control Act of
1969, the Senate Judiciary Committee stated that in § 1623(a), "[l]anguage changes have been
made in the provision as introduced to achieve economy of words . . ." (Senate Report No. 91-
617, at 149).

29. United States v. Dudley, 581 F.2d 1193, 1198 (5th Cir. 1978).

30. Government of the Canal Zone v. Thrush, 616 F.2d 188, 190-91 (5th Cir. 1980); United
States v. Martellano, 675 F.2d 940, 942 (7th Cir. 1982); United States v. Joseph, 651 F. Supp.
1346, 1347 (S.D. Fla. 1987); Dale v. Bartels, 552 F. Supp. 1253, 1266 (S.D.N.Y. 1982),
modified, 732 F.2d 278 (2d Cir. 1984).

31. United States v. Chapin, 515 F.2d 1274 (D.C. Cir.), cert. denied, 423 U.S. 1015 (1975);
United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir. 1987), cert. denied, 484 U.S. 1026 (1988);
United States v. Kelly, 540 F.2d 990, 994 (9th Cir. 1976), cert. denied, 429 U.S. 1040 (1977);
United States v. Watson, 623 F.2d 1198, 1206-07 (7th Cir. 1980).

32. United States v. Winter, 348 F.2d 204 (2d Cir.), cert. denied, 382 U.S. 955 (1965).

33. 18 U.S.C. § 1623(a).

34. See United States v. Pommerening, 500 F.2d 92 (10th Cir.), cert. denied, 419 U.S. 1088
(1974).

35. See § A.7.e., infra.

36. United States v. Flowers, 813 F.2d 1320, 1324 (4th Cir. 1987); United States v. Harvey, 657
F. Supp. 111, 113-14 (E.D. Tenn. 1987).

37. United States v. Flowers, 813 F.2d at 1324.

38. Section 1623(d). See § A.8.d., infra.

39. United States v. Brumley, 560 F.2d 1268, 1278 n.5 (5th Cir. 1977); United States v. Tanner,
471 F.2d 128 (7th Cir.), cert. denied, 409 U.S. 949 (1972); United States v. Silverman, 745 F.2d
1386, 1394 n.7 (11th Cir. 1984).

40. Williamson v. United States, 207 U.S. 425 (1908); Outlaw v. United States, 81 F.2d 805 (5th
Cir.), cert. denied, 298 U.S. 665 (1936).

41. 18 U.S.C. §§ 1503, 1512.

42. See, e.g., United States v. Kahn, 366 F.2d 259 (2d Cir.), cert. denied, 385 U.S. 948 (1966);
United States v. Root, 366 F.2d 377 (9th Cir. 1966), cert. denied, 386 U.S. 912 (1967).

43. Segal v. United States, 246 F.2d 814, 821 (8th Cir.), cert. denied, 355 U.S. 894 (1957).

44. Boren v. United States, 144 F. 801 (9th Cir. 1906).

45. Hammer v. United States, 271 U.S. 620, 626 (1926).

46. United States v. Gross, 375 F. Supp. 971, 975 (D.N.J. 1974), aff'd, 511 F.2d 910 (3d Cir.),
cert. denied, 423 U.S. 924 (1975).

47. United States v. Gross, 511 F.2d 910 (3d Cir.), cert. denied, 423 U.S. 924 (1975); Hall v.
United States, 78 F.2d 168 (10th Cir. 1935).

48. See 28 C.F.R. 0.85(a).

49. See U.S.A.M. 9-69.230.

50. 472 F.2d at 283.

51. See Kepner v. United States, 195 U.S. 100, 125 (1904); Shelton v. United States, 165 F.2d
241, 244 (D.C. Cir. 1947); Wechsler v. United States, 158 F. 579, 581 (2d Cir. 1907).

52. 499 F.2d at 139.

53. United States v. Batchelder, 442 U.S. 114, 123-24 (1979); United States v. Nixon, 418 U.S.
683, 693 (1974); United States v. Swainson, 548 F.2d 657, 665 (6th Cir.), cert. denied, 431 U.S.
937 (1977).
54. See Dunn v. United States, 442 U.S. 100, 108-10 (1979) (depositions are considered ancillary
proceedings); United States v. Scott, 682 F.2d 695, 698 (8th Cir. 1982) (same).

55. United States v. Reed, 773 F.2d 477, 483 (2d Cir. 1985) (distinguishing and departing from
its prior decision in United States ex rel. Starr v. Mulligan, 59 F.2d 200 (2d Cir. 1932)).

56. The Court's opinion is equally applicable to 18 U.S.C. § 1623, since the elements of the
crime of perjury are substantially the same in each statute. See, e.g., United States v. Slawik, 548
F.2d 75, 83 (3d Cir. 1977); United States v. Abrams, 568 F.2d 411, 422 n.54 (5th Cir.), cert.
denied, 437 U.S. 903 (1978); United States v. Eddy, 737 F.2d 564, 571 (6th Cir. 1984).

57. 409 U.S. at 358-59.

58. Id. at 362; see also United States v. Earp, 812 F.2d 917 (4th Cir. 1987).

59. United States v. Chapin, 515 F.2d 1274, 1284 (D.C. Cir.), cert. denied, 423 U.S. 1015
(1975); United States v. Swainson, 548 F.2d 657, 662 (6th Cir.), cert. denied, 431 U.S. 937
(1977); United States v. Nicoletti, 310 F.2d 359 (7th Cir. 1962), cert. denied, 372 U.S. 942
(1963); In re Battaglia, 653 F.2d 419, 421 (9th Cir. 1981).

60. United States v. Chapin, 515 F.2d at 1284; United States v. Swainson, 548 F.2d at 662;
United States v. Nicoletti, 310 F.2d at 363.

61. United States v. Diggs, 560 F.2d 266, 269 (7th Cir.), cert. denied, 434 U.S. 925 (1977).

62. See Weiler v. United States, 323 U.S. 606 (1945); Hammer v. United States, 271 U.S. 620
(1926); United States v. Ruggiero, 472 F.2d 599, 606 (2d Cir.), cert. denied, 412 U.S. 939
(1973); United States v. Jessee, 605 F.2d 430, 431 (9th Cir. 1979).

63. See § A.7.a., supra.

64. United States v. Maultasch, 596 F.2d 19, 25 n.9 (2d Cir. 1979); United States v. Forrest, 639
F.2d 1224, 1226 (5th Cir. Unit B Mar. 1981).

65. United States v. Maultasch, 596 F.2d at 25.

66. United States v. Maultasch, 596 F.2d at 25 n.9; United States v. Forrest, 639 F.2d at 1226.

67. United States v. Hagarty, 388 F.2d 713, 716 n.2 (7th Cir. 1968).

68. See § A.7.d, supra.

69. United States v. Alo, 439 F.2d 751 (2d Cir.) (prosecution for obstruction of justice, rather
than for perjury, is not an improper evasion of the two-witness rule), cert. denied, 404 U.S. 850
(1971).
70. See also United States v. Larranaga, 787 F.2d 489 (10th Cir. 1986); United States v. Norton,
755 F.2d 1428 (11th Cir. 1985).

71. See Ch. VII § B.8.

72. United States v. Edmondson, 410 F.2d 670, 673 n.6 (5th Cir.), cert. denied, 396 U.S. 966
(1969); United States v. Isaacs, 493 F.2d 1124, 1155 (7th Cir.), cert. denied, 417 U.S. 976
(1974); Vitello v. United States, 425 F.2d 416, 418 (9th Cir.), cert. denied, 400 U.S. 822 (1970).

73. See Arena v. United States, 226 F.2d 227 (9th Cir. 1955), cert. denied, 350 U.S. 954 (1956).

74. United States v. Ramos, 666 F.2d 469, 473 (11th Cir. 1982); see also United States v. Wood,
780 F.2d 955, 962 (11th Cir.), cert. denied, 476 U.S. 1184 (1986).

75. United States v. Kehoe, 562 F.2d 65, 69 (1st Cir. 1977); United States v. De La Torre, 634
F.2d 792, 794-95 (5th Cir. Unit A Jan. 1981); United States v. Isaacs, 493 F.2d at 1155; Vitello
v. United States, 425 F.2d at 418.

76. United States v. De La Torre, 634 F.2d at 794-95.

77. See also United States v. Harrelson, 754 F.2d 1182, 1184 (5th Cir.), cert. denied, 474 U.S.
908 (1985); United States v. Wood, 780 F.2d at 962.

78. United States v. Stanfa, 685 F.2d 85, 88 (3d Cir. 1982).

79. Id. at 87; see also Blockburger v. United States, 284 U.S. 299, 304 (1932); United States v.
Doulin, 538 F.2d 466, 471 (2d Cir.), cert. denied, 429 U.S. 895 (1976). Chapter VII § G contains
a more detailed discussion of multiplicity.

80. United States v. Slawik, 548 F.2d 75 (3d Cir. 1977); see also United States v. Ryan, 828 F.2d
1010, 1015 (3d Cir. 1987).

81. United States v. Ponticelli, 622 F.2d 985, 989 (9th Cir.), cert. denied, 449 U.S. 1016 (1980).

82. United States v. Sun Myung Moon, 532 F. Supp. 1360, 1371 (S.D.N.Y. 1982).

83. United States v. Picketts, 655 F.2d 837, 841 (7th Cir.), cert. denied, 454 U.S. 1056 (1981);
United States v. Reed, 647 F.2d 849, 853 (8th Cir. 1981).

84. United States v. Vesaas, 586 F.2d 101, 105 (8th Cir. 1978).

85. United States v. Winter, 348 F.2d 204, 210 (2d Cir.), cert. denied, 382 U.S. 955 (1965).

86. United States v. Becker, 203 F. Supp. 467 (E.D. Va. 1962).
87. Res judicata, though sometimes used interchangeably with collateral estoppel, has a distinct
meaning and refers to "the preclusion of a claim or cause of activity where that claim has been
fully litigated and decided in prior suit." United States v. Drevetzki, 338 F. Supp. 403, 405 (N.D.
Ill. 1972).

88. Ashe v. Swenson, 397 U.S. 436, 443 (1970); see also United States v. Hernandez, 572 F.2d
218, 220 (9th Cir. 1978).

89. Harris v. Washington, 404 U.S. 55, 56 (1971).

90. United States v. Williams, 341 U.S. 58, 62 (1951); United States v. Nixon, 634 F.2d 306, 309
(5th Cir.), cert. denied, 454 U.S. 828 (1981).

91. See United States v. Williams, 341 U.S. 58 (1951).

92. United States v. Fayer, 573 F.2d 741, 745 (2d Cir.), cert. denied, 439 U.S. 831 (1978); United
States v. Giarratano, 622 F.2d 153, 155 (5th Cir. 1980); United States v. Sarno, 596 F.2d 404,
407-08 (9th Cir. 1979).

93. United States v. Sarno, 596 F.2d at 408.

94. United States v. Fayer, 573 F.2d at 745; United States v. Giarratano, 622 F.2d at 156 n.4.

95. United States v. Prior, 553 F.2d 381, 383 (5th Cir. 1977).

96. United States v. Babb, 807 F.2d 272, 277 (1st Cir. 1986).

97. See U.S.A.M. 9-11.150; United States v. Jacobs, 547 F.2d 772, 774-75 (2d Cir. 1976) (court
may exercise supervisory power to suppress perjured testimony when prosecutor fails to advise
grand jury witness of putative defendant status in accordance with practice of United States
attorneys in circuit), cert. dismissed per curiam, 436 U.S. 31 (1978).

98. United States v. Catino, 735 F.2d 718, 725 (2d Cir.), cert. denied, 469 U.S. 855 (1984). For a
more complete discussion of the rights of witnesses before the grand jury, see Ch. IV § F.2.

99. United States v. Norris, 300 U.S. 564, 574 (1937).

100. United States v. Goguen, 723 F.2d 1012, 1020 (1st Cir. 1983); United States v. Kahn, 472
F.2d 272, 284 (2d Cir.), cert. denied, 411 U.S. 982 (1973).

101. United States v. Goguen, 723 F.2d at 1017; United States v. D'Auria, 672 F.2d 1085, 1091
(2d Cir. 1982); United States v. Denison, 663 F.2d 611, 618 (5th Cir. Unit B Dec. 1981).

102. United States v. Goguen, 723 F.2d at 1017; United States v. D'Auria, 672 F.2d 1085, 1091
(2d Cir. 1982); United States v. Denison, 663 F.2d 611, 618 (5th Cir. Unit B Dec. 1981).
103. See People v. Ezaugi, 2 N.Y.2d 439, 141 N.E.2d 580 (1957).

104. See United States v. Dworkin, 116 F.R.D. 29, 30 n.1 (E.D. Va. 1987).

105. United States v. Moore, 613 F.2d 1029, 1039-40 (D.C. Cir. 1979), cert. denied, 446 U.S.
954 (1980); United States v. Goguen, 723 F.2d at 1018 n.7; United States v. Denison, 663 F.2d at
615.

106. United States v. Moore, 613 F.2d at 1044; United States v. Scrimgeour, 636 F.2d at 1024.

107. United States v. Moore, 613 F.2d at 1039; United States v. Scivola, 766 F.2d 37, 45 (1st
Cir. 1985); United States v. Del Toro, 513 F.2d 656, 666 (2d Cir.), cert. denied, 423 U.S. 826
(1976); United States v. Dennison, 663 F.2d supra.

108. See United States v. Baldwin, 506 F. Supp. 300, 301 (M.D. Tenn. 1980); United States v.
Krogh, 366 F. Supp. 1255, 1256 (D.D.C. 1973).

109. United States v. Del Toro, 513 F.2d supra; United States v. Mitchell, 397 F. Supp. 166
(D.D.C. 1974), aff'd, 559 F.2d 31 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977).

110. United States v. D'Auria, 672 F.2d 1085, 1092 (2d Cir. 1982); United States v. Scrimgeour,
636 F.2d 1019, 1026 (5th Cir. Unit B), cert. denied, 454 U.S. 878 (1981); United States v.
Anfield, 539 F.2d 674, 679 (9th Cir. 1976).

111. United States v. Lardieri, 506 F.2d 319, 322 n.2 (3d Cir. 1974).

112. United States v. D'Auria, 672 F.2d at 1093; United States v. Denison, 663 F.2d 611, 616-17
(5th Cir. Unit B Dec. 1981).

113. See Congressional Record - Senate, June 9, 1970, S. Rep. No. 8656.

114. United States v. Vesich, 724 F.2d 451, 460 (5th Cir. 1984).

115. United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985); United States v. D'Auria, 672 F.2d
1085, 1091-92 (2d Cir. 1982); United States v. Vesich, 724 F.2d at 460.

116. United States v. D'Auria, 672 F.2d at 1092; accord United States v. Goguen, 723 F.2d 1012
(1st Cir. 1983).

117. United States v. Del Toro, 513 F.2d 656, 666 (2d Cir.), cert. denied, 423 U.S. 826 (1975);
United States v. Mitchell, 397 F. Supp. 166, 177 (D.D.C. 1974), aff'd, 559 F.2d 31 (D.C. Cir.
1976), cert. denied, 431 U.S. 933 (1977); United States v. Crandall, 363 F. Supp. 648, 655 (W.D.
Pa. 1973), aff'd, 493 F.2d 1401 (3d Cir.), cert. denied, 419 U.S. 852 (1974).
118. See 18 U.S.C. §§ 6002, 6003; United States v. Wong, 431 U.S. 174, 178-79 (1977); United
States v. Martinez-Navarro, 604 F.2d 1184, 1187 (9th Cir. 1979), cert. denied, 444 U.S. 1084
(1980).

119. United States v. Apfelbaum, 445 U.S. 115, 130 (1980); In re Corrugated Container Antitrust
Litig., 661 F.2d 1145, 1158 (7th Cir. 1981), aff'd sub nom. Pillsbury v. Conboy, 459 U.S. 248
(1983).

120. For a more detailed exposition of these statutes, see U.S.A.M. 9-69.100, et seq.

121. Prior to the passage of the VWPA, actions affecting witnesses were also specifically
covered by § 1503.

122. United States v. Bonanno, 177 F. Supp. 106, 114 (S.D.N.Y. 1959).

123. United States v. Walasek, 527 F.2d 676 (3d Cir. 1975).

124. See the legislative history of the VWPA, particularly S. 2420, 97th Cong., 2d Sess., 128
Cong. Rec. S11430 (daily ed. Sept. 14, 1982), S. Rep. No. 532, 97th Cong., 2d Sess. 17-19,
reprinted in 1982 U.S. Code Cong. & Ad. News 2515, 2523-25, and 128 Cong. Rec. S13063
(daily ed. Oct. 1, 1982) (remarks of Senator Heinz). Initially, an omnibus clause such as that in
§ 1503 was included within § 1512; it was taken out of the bill because it was beyond the scope
of the witness protection legislation, and probably duplicative of other obstruction of justice
statutes. But see United States v. Hernandez, 730 F.2d 895 (2d Cir. 1984), interpreting 18 U.S.C.
§§ 1512 and 1503.

125. Haili v. United States, 260 F.2d 744, 746 (9th Cir. 1958).

126. Wilder v. United States, 143 F. 433, 440 (4th Cir. 1906) (construing Rev. Stat. §§ 5399 and
5440, precursors of § 1503), cert. denied, 204 U.S. 674 (1907); Sneed v. United States, 298 F.
911, 912 (5th Cir.) (construing 18 U.S.C. § 241, another precursor of § 1503), cert. denied, 265
U.S. 590 (1924); Roberts v. United States, 239 F.2d 467, 476 (9th Cir. 1956).

127. Pettibone v. United States, 148 U.S. 197 (1893); Wilder v. United States, 143 F. supra;
Sneed v. United States, 298 F. supra.

128. Accord Osborn v. United States, 385 U.S. 323, 333 (1966).

129. United States v. Fasolino, 586 F.2d 939, 941 (2d Cir. 1978).

130. Overton v. United States, 403 F.2d 444, 446 (5th Cir. 1968); Catrino v. United States, 176
F.2d 884, 886 (9th Cir. 1949).

131. See generally Osborn v. United States, 385 U.S. 323, 332-33 (1966); United States v.
Lazzerini, 611 F.2d 940, 941-42 (1st Cir. 1979); United States v. Rosner, 485 F.2d 1213, 1228-
29 (2d Cir. 1973), cert. denied, 417 U.S. 950 (1974); United States v. Roe, 529 F.2d 629, 631-32
(4th Cir. 1975); Knight v. United States, 310 F.2d 305, 307 (5th Cir. 1962) (per curiam).

132. United States v. Jackson, 607 F.2d 1219, 1222 (8th Cir. 1979), cert. denied, 444 U.S. 1080
(1980).

133. United States v. Margoles, 294 F.2d 371, 373 (7th Cir.), cert. denied, 368 U.S. 930 (1961).

134. United States v. Polakoff, 112 F.2d 888, 890 (2d Cir.), cert. denied, 311 U.S. 653 (1940).

135. United States v. Walasek, 527 F.2d 676 (3d Cir. 1975); United States v. Siegel, 152 F.
Supp. 370 (S.D.N.Y. 1957).

136. United States v. Coven, 662 F.2d 162, 170 (2d Cir. 1981), cert. denied, 456 U.S. 916
(1982).

137. United States v. Howard, 569 F.2d 1331 (5th Cir.), cert. denied, 439 U.S. 834 (1978).

138. United States v. Weiss, 491 F.2d 460 (2d Cir.), cert. denied, 419 U.S. 833 (1974); United
States v. Simmons, 591 F.2d 206 (3d Cir. 1979); United States v. Faudman, 640 F.2d 20 (6th Cir.
1981); United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981), cert. denied, 454 U.S. 1157
(1982).

139. United States v. Shoup, 608 F.2d 950 (3d Cir. 1979).

140. United States v. Faudman, 640 F.2d at 21; United States v. Siegel, 152 F. Supp. at 376;
United States v. Fineman, 434 F. Supp. 197, 202 (E.D. Pa. 1977), aff'd, 571 F.2d 572 (3d Cir.),
cert. denied, 436 U.S. 945 (1978).

141. United States v. Solow, 138 F. Supp. 812, 814 (S.D.N.Y. 1956).

142. Osborn v. United States, 385 U.S. 323, 333 (1966); United States v. Russell, 255 U.S. 138,
143 (1921); United States v. Nicosia, 638 F.2d 970, 975 (7th Cir. 1980), cert. denied, 452 U.S.
961 (1981).

143. United States v. Partin, 552 F.2d 621 (5th Cir.), cert. denied, 434 U.S. 903 (1977).

144. United States v. Griffin, 589 F.2d 200 (5th Cir.), cert. denied, 444 U.S. 825 (1979).

145. United States v. Cohn, 452 F.2d 881 (2d Cir. 1971), cert. denied, 405 U.S. 975 (1972).

146. United States v. Glickman, 604 F.2d 625 (9th Cir. 1979), cert. denied, 444 U.S. 1080
(1980).

147. United States v. Ogle, 613 F.2d 233 (10th Cir. 1979), cert. denied, 449 U.S. 825 (1980).
148. Pettibone v. United States, 148 U.S. 197, 206 (1893).

149. United States v. Solow, 138 F. Supp. 812, 816 (S.D.N.Y. 1956).

150. A sample indictment is contained in Appendix VII-5.

151. Pettibone v. United States, 148 U.S. 197 (1893); United States v. Johnson, 605 F.2d 729,
730 (4th Cir. 1979), cert. denied, 444 U.S. 1020 (1980); United States v. Baker, 494 F.2d 1262,
1265 (6th Cir. 1974).

152. Wilder v. United States, 143 F. 433, 440 (4th Cir. 1906) (construing Rev. Stat. §§ 5399 and
5440, precursors of § 1503), cert. denied, 204 U.S. 674 (1907); Roberts v. United States, 239
F.2d 467, 476 (9th Cir. 1956).

153. United States v. Campanale, 518 F.2d 352, 356 (9th Cir. 1975) (per curiam), cert. denied,
423 U.S. 1050 (1976).

154. Pettibone v. United States, 148 U.S. 197 (1893); Wilder v. United States, 143 F. supra.

155. United States v. Metcalf, 435 F.2d 754, 756 (9th Cir. 1970).

156. United States v. Walasek, 527 F.2d 676, 678 (3d Cir. 1975).

157. Id.

158. United States v. Simmons, 591 F.2d 206, 210 (3d Cir. 1979).

159. United States v. Johnson, 605 F.2d 729, 731 (4th Cir. 1979), cert. denied, 444 U.S. 1020
(1980).

160. Haili v. United States, 260 F.2d 744, 746 (9th Cir. 1958).

161. Falk v. United States, 370 F.2d 472, 476 (9th Cir. 1966), cert. denied, 387 U.S. 926 (1967).

162. United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981), cert. denied, 454 U.S. 1157
(1982); United States v. Ogle, 613 F.2d 233, 238 (10th Cir. 1979), cert. denied, 449 U.S. 825
(1980).

163. United States v. Haas, 583 F.2d 216, 220 (5th Cir. 1978), cert. denied, 440 U.S. 981 (1979);
United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981), cert. denied, 454 U.S. 1157 (1982);
United States v. Ogle, 613 F.2d 233, 238 (10th Cir. 1979), cert. denied, 449 U.S. 825 (1980).

164. See Pettibone v. United States, 148 U.S. 197, 207 (1893); United States v. Baker, 494 F.2d
1262, 1265 (6th Cir. 1974); United States v. White, 557 F.2d 233, 235-36 (10th Cir. 1977) (per
curiam). But see United States v. Yermian, 468 U.S. 63 (1984), where the Supreme Court held
that 18 U.S.C. § 1001 did not require actual knowledge that the matter was under federal agency
jurisdiction.

165. 590 F.2d at 1274.

166. United States v. White, 557 F.2d at 235.

167. United States v. Haldeman, 559 F.2d 31, 116 (D.C. Cir. 1976), cert. denied, 431 U.S. 933
(1977).

168. United States v. Tedesco, 635 F.2d 902 (1st Cir. 1980), cert. denied, 452 U.S. 962 (1981);
United States v. Kibler, 667 F.2d 452 (4th Cir.), cert. denied, 456 U.S. 961 (1982); United States
v. O'Donnell, 510 F.2d 1190 (6th Cir.), cert. denied, 421 U.S. 1001 (1975); United States v.
Barham, 666 F.2d 521 (11th Cir.), cert. denied, 456 U.S. 947, reh'g denied, 456 U.S. 1012
(1982). Kibler, Barham, Tedesco and O'Donnell all reserve decision on the question of whether
venue only lies where the proceeding is pending.

169. United States v. Swann, 441 F.2d 1053 (D.C. Cir. 1971); United States v. Nadolny, 601
F.2d 940 (7th Cir. 1979) (§ 1510); United States v. Bachert, 449 F. Supp. 508 (E.D. Pa. 1978).

170. United States v. Gilliland, 312 U.S. 86, 93 (1941) (construing predecessor statute to §
1001).

171. E.g., 18 U.S.C. § 1012 (Department of Housing and Urban Development transactions); 18
U.S.C. § 1020 (Highway projects).

172. E.g., United States v. Gilliland, 312 U.S. at 95; United States v. Anderez, 661 F.2d 404,
407-08 (5th Cir. Unit B Nov. 1981).

173. Id.

174. For a discussion of the legislative history of the Act, see United States v. Yermian, 468 U.S.
63 (1984).

175. United States v. Tobon-Builes, 706 F.2d 1092, 1096 (11th Cir. 1983). But see United States
v. Uco Oil Co., 546 F.2d 833, 838 (9th Cir. 1976) (concluding that § 1001 does not create
distinct offenses and that the Government cannot charge separate offenses under the "making a
false statement" and "concealing" clauses of the statute based on the same false document), cert.
denied, 430 U.S. 966 (1977).

176. See, e.g., United States v. Jackson, 714 F.2d 809, 812 (8th Cir. 1983).

177. See United States v. Beacon Brass Co., 344 U.S. 43, 46 (1952).

178. See United States v. Isaacs, 493 F.2d 1124, 1157 (7th Cir.), cert. denied, 417 U.S. 976
(1974).
179. United States v. Mattox, 689 F.2d 531, 532 (5th Cir. 1982).

180. United States v. Muntain, 610 F.2d 964, 971-72 (D.C. Cir. 1979); United States v. Irwin,
654 F.2d 671, 676 (10th Cir. 1981), cert. denied, 455 U.S. 1016 (1982). But see United States v.
London, 550 F.2d 206, 213 (5th Cir. 1977) (to sustain a charge under concealing clause, the
Government must "demonstrat[e] not merely that the [defendants] failed to disclose the existence
of [material facts], but rather that the defendants committed affirmative acts constituting a trick,
scheme, or device by which they sought to conceal material facts.").

181. United States v. Irwin, 654 F.2d at 678-79.

182. See United States v. Private Brands, Inc., 250 F.2d 554, 555-56 (2d Cir. 1957), cert. denied,
355 U.S. 957 (1958); Coil v. United States, 343 F.2d 573, 576 (8th Cir.), cert. denied, 382 U.S.
821 (1965).

183. United States v. Milton, 602 F.2d 231, 233 (9th Cir. 1979).

184. United States v. Diogo, 320 F.2d 898, 907 (2d Cir. 1963).

185. United States v. Anderson, 579 F.2d 455, 460 (8th Cir.), cert. denied, 439 U.S. 980 (1978).

186. See, e.g., United States v. Diggs, 613 F.2d 988, 999 (D.C. Cir. 1979), cert. denied, 446 U.S.
982 (1980); Russell v. United States, 222 F.2d 197, 198 (5th Cir. 1955).

187. See, e.g., United States v. Lichenstein, 610 F.2d 1272, 1278 (5th Cir.) (prosecution under
"making a false statement" clause), cert. denied, 447 U.S. 907 (1980); United States v. Voorhees,
593 F.2d 346, 349 (8th Cir.) (prosecution under "making or using a false document" clause), cert.
denied, 441 U.S. 936 (1979). Contra United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.)
("materiality is not an element of the offense of making a false statement in violation of
§ 1001"), cert. denied, 469 U.S. 822 (1984).

188. E.g., United States v. Abadi, 706 F.2d 178, 180 (6th Cir.), cert. denied, 464 U.S. 821
(1983); United States v. Clancy, 276 F.2d 617, 635 (7th Cir. 1960), rev'd on other grounds, 365
U.S. 312 (1961). Contra United States v. Irwin, 654 F.2d 671, 677 n.8 (10th Cir. 1981), cert.
denied, 455 U.S. 1016 (1982); United States v. Valdez, 594 F.2d 725, 729 (9th Cir. 1979).

189. United States v. McGough, 510 F.2d 598, 602 (5th Cir. 1975); United States v. Steele, 896
F.2d 998, 1006 (6th Cir. 1990).

190. United States v. McIntosh, 655 F.2d 80, 83 (5th Cir. Unit A Sept. 1981), cert. denied, 455
U.S. 948 (1982); United States v. Diaz, 690 F.2d 1352, 1357 (11th Cir. 1982).

191. United States v. Cole, 469 F.2d 640, 641 (9th Cir. 1972) (per curiam); United States v. Fern,
696 F.2d 1269, 1274 (11th Cir. 1983).

192. United States v. Goldfine, 538 F.2d 815, 820-21 (9th Cir. 1976).
193. See United States v. Gilliland, 312 U.S. 86, 93 (1941).

194. See United States v. Diaz, 690 F.2d at 1358.

195. See United States v. Baker, 626 F.2d 512, 514 (5th Cir. 1980).

196. United States v. Di Fonzo, 603 F.2d 1260, 1266 (7th Cir. 1979), cert. denied, 444 U.S. 1018
(1980).

197. United States v. Di Fonzo, 603 F.2d 1260, 1266 (7th Cir. 1979), cert. denied, 444 U.S. 1018
(1980).

198. Johnson v. United States, 410 F.2d 38, 47 (8th Cir.), cert. denied, 396 U.S. 822 (1969).

199. United States v. Yermian, 468 U.S. at 69.

200. See, e.g., United States v. Markey, 693 F.2d 594, 596 (6th Cir. 1982).

201. See United States v. Yermian, 468 U.S. at 70; United States v. Gilliland, 312 U.S. 86, 93-94
(1941).

202. United States v. Evans, 559 F.2d 244, 246 (5th Cir. 1977), cert. denied, 434 U.S. 1015
(1978); cf. United States v. Sarantos, 455 F.2d 877, 880-82 (2d Cir. 1972).

203. United States v. Carrier, 654 F.2d 559, 561 (9th Cir. 1981).

204. United States v. Markee, 425 F.2d 1043, 1046 (9th Cir.), cert. denied, 400 U.S. 847 (1970).

205. McBride v. United States, 225 F.2d 249, 253-55 (5th Cir. 1955), cert. denied, 350 U.S. 934
(1956).

206. 18 U.S.C. § 6. Department and agency defined

As used in this title:

The term "department" means one of the executive departments enumerated in section 1 of Title
5, unless the context shows that such term was intended to describe the executive, legislative, or
judicial branches of the government.

The term "agency" includes any department, independent establishment, commission,

administration, authority, board or bureau of the United States or any corporation in which the
United States has a proprietary interest, unless the context shows such term was intended to be
used in a more limited sense.

207. United States v. Morgan, 309 F.2d 234, 237-38 (D.C. Cir. 1962) (dicta), cert. denied, 373
U.S. 917 (1963); United States v. Holmes, 840 F.2d 246, 248 (4th Cir. 1988).
208. United States v. Plascencia-Orozco, 768 F.2d 1074, 1076 (9th Cir. 1985).

209. United States v. Burkley, 511 F.2d 47 (4th Cir. 1975).

210. United States v. Rowland, 789 F.2d 1169 (5th Cir. 1986).

211. United States v. Allen, 193 F. Supp. 954, 959 (S.D. Cal. 1961).

212. United States v. Abrahams, 604 F.2d 386, 393 (5th Cir. 1979).

213. United States v. D'Amato, 507 F.2d 26, 30 (2d Cir. 1974).

214. United States v. Ehrhardt, 381 F.2d 173, 175 (6th Cir. 1967).

215. United States v. London, 714 F.2d 1558, 1562 (11th Cir. 1983). But see United States v.
Burkley, 511 F.2d 47, 50 (4th Cir. 1975) (§ 1001 covers submitting false affidavits to Clerk of
the District Court to secure bail bonds); United States v. Powell, 708 F.2d 455, 457 (9th Cir.)
(§ 1001 covers submitting a false affidavit to a United States Magistrate in applying for leave to
proceed in forma pauperis), cert. denied, 467 U.S. 1254 (1983); United States v. Stephens, 315 F.
Supp. 1008, 1010 (W.D. Okla. 1970) (§ 1001 covers making false statements in a federal civil
proceeding to vacate a criminal sentence).

216. See, e.g., United States v. Montemayor, 712 F.2d 104, 106-07 (5th Cir. 1983).

217. Terry v. United States, 131 F.2d 40, 44 (8th Cir. 1942); Pitts v. United States, 263 F.2d 353,
358 (9th Cir.), cert. denied, 360 U.S. 935 (1959); United States v. Diaz, 690 F.2d 1352, 1357
(11th Cir. 1982); United States v. Goldstein, 695 F.2d 1228, 1236 (10th Cir. 1981), cert. denied,
462 U.S. 1132 (1983).

218. Bryson v. United States, 396 U.S. 64, 70 (1969).

219. 466 U.S. at 481; cf. Bryson v. United States, 396 U.S. at 70-71.

220. See, e.g., Ogden v. United States, 303 F.2d 724, 743 n.70 (9th Cir. 1962), cert. denied, 376
U.S. 973 (1964).

221. See, e.g., United States v. Uni Oil, Inc., 646 F.2d 946, 955 (5th Cir. May 1981), cert.
denied, 455 U.S. 908 (1982); United States v. Balk, 706 F.2d 1056, 1059 (9th Cir. 1983).

222. See generally United States v. Rodgers, 466 U.S. 475 (1984); United States v. International
Business Machs. Corp., 415 F. Supp. 668, 672 (S.D.N.Y. 1976) (dicta) (false statements made to
Antitrust Division attorneys covered by § 1001).

223. United States v. Petullo, 709 F.2d 1178, 1180 (7th Cir. 1983).
224. United States v. Petullo, 709 F.2d at 1180 (quoting United States v. Baker, 626 F.2d 512,
514 (5th Cir. 1980)); United States v. Wolf, 645 F.2d 23, 25 (10th Cir. 1981); see United States
v. Jones, 464 F.2d 1118, 1123 (8th Cir. 1972), cert. denied, 409 U.S. 1111 (1973); United States
v. Munoz, 392 F. Supp. 183, 186 (E.D. Mich. 1974), aff'd, 529 F.2d 526 (6th Cir. 1975).

225. See United States v. Candella, 487 F.2d 1223, 1226 (2d Cir. 1973), cert. denied, 415 U.S.
977 (1974); United States v. Beasley, 550 F.2d 261, 276 (5th Cir.), cert. denied, 434 U.S. 863
(1977); United States v. Hooper, 596 F.2d 219, 223 (7th Cir. 1979); United States v. Canel, 569
F. Supp. 926, 928-29 (D.V.I. 1982), aff'd, 708 F.2d 894, 898 (3d Cir.), cert. denied, 464 U.S. 852
(1983).

226. See generally United States v. Montemayor, 712 F.2d at 106-07; United States v. Diaz, 690
F.2d at 1357.

227. See generally United States v. Uni Oil, Inc., 646 F.2d at 954-55; United States v. Wolf, 645
F.2d at 25.

228. See United States v. Deloach, 654 F.2d 763, 766-67 (D.C. Cir. 1980), cert. denied, 450 U.S.
933 (1981); United States v. Herberman, 583 F.2d 222, 225-27 (5th Cir. 1978); United States v.
Candella, 487 F.2d 1223, 1228 (2d Cir. 1973), cert. denied, 415 U.S. 977 (1974); 18 U.S.C.
§ 3237(a).

229. Travis v. United States, 364 U.S. 631, 635-36 (1961).

230. See, e.g., United States v. Lambert, 501 F.2d 943, 946 n.4 (5th Cir. 1974).

231. See Bryson v. United States, 396 U.S. 64, 72 (1969); United States v. Knox, 396 U.S. 77,
80-83 (1969); United States v. Steele, 933 F.2d 1313 (6th Cir. 1991).

232. See Paternostro v. United States, 311 F.2d 298, 305 (5th Cir. 1962) ("mere negative
responses to questions. . . by an investigating agent during a question and answer conference not
initiated by the [defendant]" do not violate § 1001); see also United States v. Hajecate, 683 F.2d
894, 901 (5th Cir. 1982) (question on an income tax return regarding existence of foreign bank
accounts was "investigative" and, thus, false answer to the question was beyond the scope of
§ 1001), cert. denied, 461 U.S. 927 (1983).

233. See United States v. Chevoor, 526 F.2d 178, 182-84 (1st Cir. 1975), cert. denied, 425 U.S.
935 (1976); United States v. Steele, 896 F.2d 998, 1001 (6th Cir. 1990); United States v. Taylor,
907 F.2d 801, 804 (8th Cir. 1990); United States v. Medina De Perez, 799 F.2d 540 (9th Cir.
1986).

234. See United States v. Grotke, 702 F.2d 49, 53-54 (2d Cir. 1983); United States v. Cogdell,
844 F.2d 179 (4th Cir. 1988); United States v. King, 613 F.2d 670, 674 (7th Cir. 1980); United
States v. Fitzgibbon, 619 F.2d 874, 879-81 (10th Cir. 1980); United States v. Tabor, 788 F.2d
714, 718-19 (11th Cir. 1986).
235. See, e.g., United States v. Morris, 741 F.2d 188 (8th Cir. 1984).

236. United States v. Bennett, 702 F.2d 833, 835 (9th Cir. 1983).

237. United States v. Uco Oil Co., 546 F.2d 833, 838-39 (9th Cir. 1976), cert. denied, 430 U.S.
966 (1977); United States v. Bettenhausen, 499 F.2d 1223, 1234 (10th Cir. 1974).
 TABLE OF CONTENTS

IX. Plea Agreements

A. Rule 11
1. General Authority
2. Types of Plea Agreements
3. Factors to Consider Before Entering into Plea Agreements
B. Plea Agreement Negotiations
C. Plea Agreement Interviews
D. How and What to Charge
1. Selection to Charge or Charges
2. Indictment or Information
E. Provisions to Include In Plea Agreements
1. Introduction
2. Pre-Indictment Plea Agreements
3. Post-Indictment Plea Agreements
4. Conditional Plea Agreements
F. Procedure for Obtaining Approval
1. Within the Division
2. Within the Department
G. Presenting the Plea Agreement to the Court
H. Other Issues
1. Enforcement of Plea Agreements
2. Nolo Contendere and Alford Pleas

IX. PLEA AGREEMENTS

A. Rule 11
1. General authority

At any time during an investigation, particularly after a putative defendant has been advised of
his status or after a defendant has been indicted, his attorney may want to discuss a plea
agreement. The burden of initiating such discussions usually rests on the defendant and his
counsel, but Division attorneys may appropriately advise defense counsel that they are willing to
engage in plea negotiations, because it is the policy of the Division that, absent unusual
circumstances, criminal cases may be disposed of pursuant to plea agreements.

The disposition by plea agreement of criminal antitrust charges, like all other federal criminal
charges, is authorized and governed by Rule 11(e)(1), Federal Rules of Criminal Procedure,(1)
which provides that:

The attorney for the government and the attorney for the defendant or the defendant when acting pro
se may engage in discussions with a view toward reaching an agreement that, upon the entering of a
plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for
the government will do any of the following:

(A) move for dismissal of other charges; or

(B) make a recommendation, or agree not to oppose the defendant's request, for a particular
sentence, with the understanding that such recommendation or request shall not be binding upon
the court; or

(C) agree that a specific sentence is the appropriate disposition of the case.

The court shall not participate in any such discussions.

Although the rule contemplates the possibility of a defendant conducting negotiations pro se, that
eventuality is extremely unlikely in an antitrust context, and it is the practice of most prosecuting
attorneys to enter into plea discussions only with counsel for a defendant. Also, the rule
contemplates agreements by defendants to plead nolo contendere, but it is the policy of the
Division that, except in highly unusual circumstances, nolo pleas will not be negotiated.

Under Rule 11(e)(1), a charge may be reduced to a lesser or related offense. There is no lesser-
included offense in the Sherman Act,(2) so there is no possibility of reducing a charge, but there
may be circumstances where it is appropriate for a defendant to plead guilty to a charge other
than the one for which he has been indicted. Assuming a sufficient factual basis, a plea
agreement could appropriately provide for the filing of a new charge, usually in an information,
and the dismissal of the pending charge.

2. Types of plea agreements

a. 11(e)(1)(A) agreements

The attorney for the Government may promise to move for dismissal of other charges. This
situation would arise only when a defendant had been indicted on more than one count or named
in more than one indictment, and the Government decides that a guilty plea on fewer than all of
the pending charges is sufficient, or in a substitution of charges as mentioned above. In
prosecutor's shorthand, this is known as an "A" type agreement, because it is authorized by Rule
11(e)(1)(A). In antitrust cases, "A" type agreements virtually always have substantive provisions
that are similar to those found in "B" or "C" type agreements, as described below.

b. 11(e)(1)(B) agreements

The attorney for the Government may agree to recommend, or agree not to oppose the
defendant's request for a particular sentence. Such an agreement is known as a "B" type, and is
probably the most frequently used. In its purest form, the attorney for the Government will agree
to recommend a particular sentence of incarceration or fine, or both, and defense counsel is free
to oppose the recommendation and argue for a lesser sentence. The agreement could also provide
for a non-specific recommendation of incarceration or fine. Further, the plea agreement may
include a provision that the defendant will not oppose or argue against the Government's
recommendation.(3) Thus, in effect, the plea agreement becomes a joint sentencing
recommendation, binding upon the Government and the defendant, but not upon the court.
Indeed, Rule 11(e)(2) provides that in a "B" type of plea agreement, the court shall advise the
defendant that if the recommended sentence is not imposed, the defendant nevertheless has no
right to withdraw his guilty plea. In other words, in a "B" type plea agreement, the defendant is
bound to whatever sentence the court imposes, regardless of the Government's recommendation.
Many courts are reluctant to give up their sentencing discretion and will accept "B" type
agreements, but not "C" types.

c. 11(e)(1)(C) agreements

The attorney for the Government and the attorney for the defendant may agree that a particular
specific sentence is the appropriate disposition of the case. After presentation of this type of
agreement, known as a "C" type or binding agreement, to the court, the court may either accept
or reject it, or defer the decision to accept or reject until after it has had an opportunity to
consider the presentence investigation report of the probation office. If the court decides to
accept a "C" type agreement (or a combined "A" and "C" type), it shall inform the defendant on
the record that the sentence to be imposed will be as provided in the agreement. However, if the
court decides to reject a "C" type agreement, it must advise the parties of that fact on the record
and, further, must advise the defendant that the court is not bound by the agreement, that the
defendant may withdraw his plea of guilty, and that if he does not withdraw his plea, the
disposition of the case may be less favorable to him than the sentence provided in the plea
agreement.

A "C" type agreement has the advantage for the Government and the defendant of eliminating
uncertainty from the sentencing process. However, as suggested above, "C" type agreements
have the disadvantage that a great many courts will not accept them because it removes the
court's sentencing discretion. In response to this problem, the practice of entering into a joint
sentencing recommendation "B" type (or even a straight "B" type) agreement with the defendant
has evolved. Such a procedure may save the negotiations and has, by and large, been successful.
Another alternative, that has also been successful is to include a provision in a "C" agreement
that automatically converts the agreement into an agreed-upon "B" agreement should the court
reject the "C" agreement.

3. Factors to consider before entering into plea agreements

The decision as to what type of plea agreement to negotiate with a defendant is obviously
dependent on many variables, and it is impossible to state generally that any one type is
preferable. It is, however, incumbent upon Government counsel to consider, among other things:
whether the court is likely to accept or reject a "C" type agreement; whether a plea on one or
more charges will result in an appropriate sentence; and whether the contemplated agreement is
consistent with the practice of the local U.S. Attorney's Office.(4) Knowledge of these and other
facts must be incorporated into the decision as to what kind of agreement to negotiate with a
defendant and to recommend to the Assistant Attorney General.
The Department of Justice, in the Principles of Federal Prosecution, has provided the following
check list of factors attorneys for the Government should consider before entering into plea
agreements:

(a) the defendant's willingness to cooperate in the investigation or prosecution of others;

(b the defendant's history with respect to criminal activity;

)

(c) the nature and seriousness of the offense or offenses charged;

(d the defendant's remorse or contrition and his willingness to assume responsibility for his
) conduct;(5)

(e) the desirability of prompt and certain disposition of the case;

(f) the likelihood of obtaining a conviction at trial;

(g) the probable effect on witnesses;(6)

(h the probable sentence or other consequences if the defendant is convicted;

)

(i) the public interest in having the case tried rather than disposed of by a guilty plea;

(j) the expense of trial and appeal; and

(k) the need to avoid delay in the disposition of other pending cases. (7)

Attorneys for the Government should also be aware of the additional plea bargaining
requirements imposed by the Sentencing Reform Act of 1984 ("SRA"), Title II of Pub. L. No.
98-473, which applies to all criminal offenses committed or continuing on or after November 1,
1987. Sentences -- including sentences arrived at through plea agreements -- for crimes subject
to the SRA must be imposed pursuant to the Sentencing Guidelines promulgated by the United
States Sentencing Commission.

In accordance with 28 U.S.C. § 994(a)(2)(E), the Commission has issued policy statements
applicable to plea agreements as Part 6B of the Sentencing Guidelines. Guideline § 6B1.2
provides that courts may accept "A" type agreements if they determine, for reasons stated on the
record, that the remaining charges adequately reflect the seriousness of the actual offense
behavior and that accepting the plea will not undermine the statutory purposes of sentencing, and
that courts may accept "B" and "C" type agreements if the sentences are within the applicable
Guideline range or depart from the Guidelines for justifiable reasons.
In a March 13, 1989 memorandum, Attorney General Thornburgh (hereafter, "the Thornburgh
Memorandum") set forth the Department's policy on plea bargaining under the Sentencing
Guidelines. The policy discussed in this memorandum should be followed in all plea bargaining
under the Guidelines. In essence, the policy requires that plea bargaining result in convictions
that are consistent with the goals of the Guidelines -- i.e., that are uniform for defendants guilty
of similar crimes and that reflect the seriousness of the crime(s) committed. A detailed
exposition of how attorneys for the Government should conduct the plea bargaining process for
crimes covered by the SRA can be found in the Department of Justice's Prosecutors Handbook
on Sentencing Guidelines, 41-50 (1987).

Although the foregoing list of standards is intended primarily as a guide to assist prosecutors in
deciding whether to enter into a plea agreement in a particular case, many of them are also
factors that can impact substantively on the bargaining positions of the Government and the
defendant in their plea negotiations. In other words, in considering these factors, the prosecutor
should concurrently be evaluating not only whether to enter into a plea agreement, but what the
terms of that agreement should be.

B. Plea Agreement Negotiations

Negotiations leading to a plea agreement are conducted in a similar fashion regardless of the type
of agreement that is under consideration. The Division approves the commencement of such
negotiations both before and after indictment. In either situation, it is absolutely crucial that the
staff make clear to defense counsel that the result of their negotiations will be only a
recommendation and that no agreement exists until it has been approved by the Assistant
Attorney General.

Methods of negotiating are extremely subjective, and it is not possible to do more than make
general observations about them. Similarly, procedures for negotiations require much flexibility
if they are to be productive. The discussion that follows offers examples of procedures for and
methods of negotiating plea agreements rather than hard-and-fast rules.

Generally, before plea negotiations begin, the staff and the chief discuss the desirability and
feasibility of such negotiations. During those discussions, the parameters of the agreements that
would be appropriate are usually decided, including the provisions that should be considered
non-negotiable, as well as provisions that would be negotiable. Operations may be consulted at
this time. Ranges of jail time and/or fines(8) within which the negotiations should be centered,
depending on whether a "B" or a "C" agreement is likely to result, are normally decided. The
staff then may provide defense counsel with either a proposed draft agreement (with the amount
of jail time and/or fine left blank) or a copy of a similar plea agreement already entered, for the
purpose of further discussion. From then on, negotiations with defense counsel are generally
conducted by lead counsel and staff. On occasion, the chief will participate directly if that
appears likely to further the negotiations. The chief is kept informed of the progress of the
negotiations, and his advice often is sought concerning questions that may arise and, of course,
the final disposition of the matter that would be appropriate to recommend to the Assistant
Attorney General.
The topics of negotiation are those enumerated above as factors to consider and the provisions
that will ultimately be included in the plea agreement, which are fully described later in this
chapter. In addition, the relationship of third parties to plea negotiations is an issue that
sometimes arises because some putative defendants may be motivated to engage in plea
agreement discussions by demands or promises of prospective civil plaintiffs. "Outsiders" are
never participants in the plea negotiations as such negotiations are only conducted between the
Government and the prospective defendant.

All plea discussions are privileged communications, and their subsequent use as evidence is
strictly governed by Rule 11(e)(6), which provides that:

Inadmissibility of Pleas, Plea Discussions, and Related Statements. Except as otherwise provided in this
paragraph, evidence of the following is not, in any civil or criminal proceeding, admissible against the
defendant who made the plea or was a participant in the plea discussions:

(a) a plea of guilty which was later withdrawn;

(b a plea of nolo contendere;

)

(c) any statement made in the course of plea discussions with an attorney for the government
which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made
in the course of the same plea or plea discussions has been introduced and the statement ought in
fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or
false statement if the statement was made by the defendant under oath, on the record, and in the
presence of counsel.

A substantially identical provision is included in Rule 410, Federal Rules of Evidence.

C. Plea Agreement Interviews

The privilege protection of Rule 11(e)(6) applies not only to statements made by defense
counsel, but to statements made by the defendant (or putative defendant) in the course of plea
negotiations.(9) This provision is significant because whenever a plea agreement requires the
defendant's cooperation, an interview with the defendant is usually necessary before the plea
agreement becomes final. It is good practice for the staff to require the defendant and his
attorney to sign a statement acknowledging the ground rules for such an interview.(10) The
statement should recite that the proposed plea agreement is contingent upon the staff's belief that
the defendant is truthful and candid in the interview. The statement also should contain a
provision that the defendant's statements are protected as provided in Rule 11(e)(6), but that the
Government reserves the right to use leads, or otherwise make indirect use of any information
developed during the interview, against the defendant, if no plea agreement is reached, and
against others in any event. Failure to include such a reservation of rights might lead a court to
grant equitable or de facto use immunity treatment to the defendant's statements -- a result
definitely to be avoided. The statement should also include a provision reserving the right to use
the results of the interview against the defendant to prosecute him for perjury.

The scope of the exclusionary provision of Rule 11(e)(6) and Fed. R. Evid. 410, as applied by
the courts, is broader than may at first appear. Obviously, statements made by a defendant or his
attorney in the course of unsuccessful plea discussions cannot be used as direct evidence against
the defendant at trial. The law as to whether such statements may be used for impeachment is
unclear.(11) It may be wise to include a provision that reserves the right of the Government to use
such statements for impeachment in the plea interview agreements.

D. How and What to Charge

1. Selection of charge or charges

One of the most important provisions in a plea agreement is the charge or charges to which the
defendant agrees to plead guilty. In a grand jury investigation involving multiple offenses, such
as bid-rigging or price fixing, there may or may not be evidence available to support more than
one charge. In addition, the criminal conduct that violates the Sherman Act may be connected
with offenses under other federal statutes, the most common being mail fraud (18 U.S.C.
§ 1341), wire fraud (18 U.S.C. § 1343), false statements and entries (18 U.S.C. § 1001), and false
claims (18 U.S.C. §§ 286, 287). In the latter situation, the prosecutor must consider the charge or
charges to which the defendant must agree to plead. In some circumstances, the selection of
charge may be a proper subject for negotiation with defense counsel.

The Principles of Federal Prosecution sets forth the standards that a selected charge must satisfy:

If a prosecution is to be concluded pursuant to a plea agreement, the defendant should be required to

plead to a charge or charges:

(a) that bears a reasonable relationship to the nature and extent of his criminal conduct;

(b that has an adequate factual basis;

)

(c) that makes likely the imposition of an appropriate sentence under all the circumstances of the
case; and

(d that does not adversely affect the investigation or prosecution of others.

)

The commentary, set forth below, explaining this principle is as applicable to antitrust crimes as
to any other.

(a) Relationship to criminal conduct - The charge or charges to which a defendant pleads guilty
should bear a reasonable relationship to the defendant's criminal conduct, both in nature and
 in scope. This principle covers such matters as the seriousness of the offense (as measured by
its impact upon the community and the victim), not only in terms of the defendant's own
conduct but also in terms of similar conduct by others, as well as the number of counts to
which a plea should be required in cases involving offenses different in nature or in cases
involving a series of similar offenses. In regard to the seriousness of the offense, the guilty plea
should assure that the public record of conviction provides an adequate indication of the
defendant's conduct. In many cases, this will probably require that the defendant plead to the
most serious offense charged. With respect to the number of counts, the prosecutor should
take care to assure that no impression is given that multiple offenses are likely to result in no
greater a potential penalty than is a single offense.

The requirement that a defendant plead to a charge that bears a reasonable relationship
to the nature and extent of his criminal conduct is not inflexible. There may be situations
involving cooperating defendants in which [special] considerations . . . take precedence.
Such situations should be approached cautiously, however. Unless the Government has
strong corroboration for the cooperating defendant's testimony, his credibility may be
subject to successful impeachment if he is permitted to plead to an offense that appears
unrelated in seriousness or scope to the charges against the defendants on trial. It is also
doubly important in such situations for the prosecutor to ensure that the public record of
the plea demonstrates the full extent of the defendant's involvement in the criminal
activity giving rise to the prosecution.

(b Factual basis - The attorney for the Government should also bear in mind the legal requirement
) that there be a factual basis for the charge or charges to which a guilty plea is entered. This
requirement is intended to assure against conviction after a guilty plea of a person who is not
in fact guilty. Moreover, under Rule 11(f), Fed. R. Crim. P., a court may not enter a judgment
upon a guilty plea "without making such inquiry as shall satisfy it that there is a factual basis for
the plea." For this reason, it is essential that the charge or charges selected as the subject of a
plea agreement be such as could be prosecuted independently of the plea . . . (reference to
nolo pleas deleted).

(c) Basis for sentencing - In order to guard against inappropriate restriction of the court's
sentencing options, the plea agreement should provide adequate scope for sentencing under
all the circumstances of the case. To the extent that the plea agreement requires the
Government to take a position with respect to the sentence to be imposed, there should be
little danger since the court will not be bound by the Government's position. When a "charge
agreement" is involved, however, the court will be limited to imposing the maximum term
authorized by statute for the offense to which the guilty plea is entered. Thus, the prosecutor
should take care to avoid a "charge agreement" that would unduly restrict the court's
sentencing authority. In this connection, as in the initial selection of charges, the prosecutor
should take into account the purposes of sentencing, the penalties provided in the applicable
statutes, the gravity of the offense, any aggravating or mitigating factors, and any post
conviction consequences to which the defendant may be subject (reference to restitution
 deleted).(12)

(d Effect on other cases - In a multiple-defendant case, care must be taken to ensure that the
) disposition of the charges against one defendant does not adversely affect the investigation or
prosecution of co-defendants. Among the possible adverse consequences to be avoided are
the negative jury appeal that may result when relatively less culpable defendants are tried in
the absence of a more culpable defendant or when a principal prosecution witness appears to
be equally culpable as the defendants but has been permitted to plead to a significantly less
serious offense; the possibility that one defendant's absence from the case will render useful
evidence inadmissible at the trial of co-defendants; and the giving of questionable exculpatory
testimony on behalf of the other defendants by the defendant who has pled guilty.

For crimes occurring or continuing on or after November 1, 1987, in addition to the Principles of
Federal Prosecution, attorneys should also take into account Part 6B of the Sentencing
Guidelines and the Prosecutors Handbook on Sentencing Guidelines in selecting charges for plea
agreements.

Section 6B1.2(a) of the Sentencing Guidelines deals with plea agreements that involve
dismissals of counts or agreements not to pursue potential charges. It provides that such
agreements may be accepted if the court determines, on the record, that the remaining charges
"adequately reflect the seriousness of the actual offense behavior and that accepting the
agreement will not undermine the statutory purposes of sentencing." While the Department
believes that prosecutors have greater flexibility in charge bargaining than in sentence
bargaining, it takes this policy statement seriously, and believes that it translates into a
requirement that readily provable serious charges should not be bargained away: "The sole
legitimate ground for agreeing not to pursue a charge that is relevant under the guidelines to
assure that the sentence will reflect the seriousness of the defendant's 'offense behavior' is the
existence of real doubt as to the ultimate provability of the charge."(13)

Ultimate provability considerations aside, it is important to recognize that, because of the way
the Guidelines operate in practice, some relatively serious charges could be dismissed or never
brought without unduly undercutting the assurance that the sentence will reflect the seriousness
of the defendant's conduct. For example, a mail fraud count that might be brought in connection
with an antitrust charge of bid-rigging likely would be grouped with the antitrust count under the
grouping rules in § 3D1.2 such that the defendant's offense level would be determined by the
highest level in the group. If the antitrust count carried the higher offense level, or if there were
no significant difference between the two offense levels, dropping the mail fraud count would
not appear to undermine the purposes of sentencing, as those purposes find expression in the
Guidelines. Moreover, even if the offense level for the mail fraud count were somewhat higher
than the level for the remaining antitrust count, the overlapping nature of the imprisonment
ranges in the Sentencing Table could moot or at least mute any objection to a marginal decrease
in the offense level that resulted from such charge bargaining.
There is, of course, also the question of provability. The Prosecutors Handbook notes that the
prosecutor is in the best position to assess the strength of the Government's case, and enjoys
broad discretion in making judgments as to which charges are most likely to result in conviction
on the basis of the available evidence.(14) This discretion may be significant when plea bargaining
occurs early in a grand jury investigation when relatively less proof of one or more possible
charges may be available. However, prosecutors are warned against instructing investigators not
to pursue leads, or making less than ordinary efforts to ascertain facts, simply to be in a position
to say that they are unable to prove a sentencing fact.(15)

Notwithstanding the general prohibition against prosecutors bargaining away readily provable
charges whenever doing so would affect, to any significant degree, the resulting guideline
sentence, defendants may still gain significant benefits by entering into a plea agreement with the
Government. First, a defendant who pleads guilty will in most instances receive a two-level
downward adjustment to his or her offense level (USSG § 3E1.1) or, if an organization, a one-
point decrease in its culpability score (USSG § 8C2.5(g)(3)). Second, when a defendant agrees to
cooperate with the Government by providing information concerning unlawful activities of
others, the Government may agree that self-incriminating information provided pursuant to the
cooperation agreement that was not previously known to the Government shall not be used in
determining the defendant's guideline range (USSG § 1B1.8). Furthermore, where the defendant
has provided substantial assistance in the investigation or prosecution of another person, the
Government may move for a departure from the Guidelines under USSG § 5K1.1. Finally, even
when the defendant is unable to provide the Government with substantial assistance in the
investigation or prosecution of others, the Government may recommend, when appropriate, that
a defendant entering into a plea agreement receive a sentence at or near the bottom of the
applicable guideline range or receive an alternative sentence in lieu of imprisonment in whole or
part.

The practices of the Division in implementing these principles require little additional comment.
Except in perjury or false-declarations cases, the defendant usually must plead guilty to one or
more Sherman Act counts, either alone or in conjunction with other charges. The selected charge
or charges should be typical of the defendant's anti-competitive conduct (was the defendant a
leader or a follower) and should usually be among the most serious (if there is a choice) in terms
of egregiousness or impact, that the defendant committed and for which there is an adequate
factual basis. Another factor that should be considered is how the selection of a charge will affect
other cases yet to be prosecuted and whether a guilty plea is likely to lead to additional guilty
pleas. In the most common situation, there will probably be enough evidence available to support
only one, or at best a few charges, so the selection process will not be as complicated as this
discussion may suggest. However, when the luxury of choice is present, the application of these
principles will result in the proper exercise of that choice.

2. Indictment or information

Both the Principles of Federal Prosecution and the practices of the Division authorize plea
agreement negotiations prior to the time that a putative defendant is indicted as well as after. If a
plea agreement is reached before indictment, the initiation of the prosecution can be by the filing
of a criminal information, with a waiver of indictment by the defendant.(16) The use of an
information usually has certain advantages over an indictment for the Government and is
desirable to the defendant as well.

An information is of benefit to the Government because its use obviates the resource
commitment in time, expense and effort necessary to present an indictment to the grand jury.
Depending upon the totality of circumstances, the presentation of an indictment to a grand jury
can be an expensive and time-consuming task, particularly when the grand jury must be called to
sit merely to consider the indictment. Also, the staff must spend time and effort preparing its
presentation, including a summing-up of the relevant evidence and the presentation of relevant
documents, as well as arranging to have all the documents and transcripts available for the grand
jurors' consideration. Although such work is not particularly onerous, it is time-consuming, and
the ability to avoid it is usually a benefit.(17) However, there may be other strategic considerations
in specific factual settings that would lead a prosecutor to prefer an indictment over an
information.

If pre-indictment plea discussions do not appear to be making progress, particularly if the

defendant or his counsel is apparently dragging his feet or otherwise not negotiating in good
faith, the staff should proceed with an indictment. On occasion, this will force the issue and put
an end to delaying tactics and result in a post-indictment plea agreement.

There is no doubt that most defendants prefer to plead guilty to an information rather than to an
indictment. There is no legal difference, so the reason for that preference may be largely
emotional, i.e., an indictment simply sounds more serious than an information.

E. Provisions To Include In Plea Agreements

1. Introduction

Once the staff and defense counsel have tentatively agreed upon the type of plea agreement ("B",
"C", etc.), the length of incarceration or amount of fine that will be recommended by the
Government or presented to the court as the agreed-upon disposition, the geographic and
industry scope of any defendant's cooperation provision and any non-prosecution provision, it
falls upon the staff to draft the appropriate agreement. It is important to keep in mind that what is
being drafted is a document intended to reflect the agreement tentatively reached, and that will
vary with the circumstances of the investigation and the violation alleged. Therefore, the
following discussion and hypothetical examples are offered only as helpful guides or starting
points, based upon previous experience, and should not be viewed as inflexible boilerplate. The
staff should draft a document that reflects the agreement tentatively reached with defense
counsel and present that agreement to Operations, with appropriate explanation and support, for
review and approval.

The agreement may be styled similar to a pleading in a criminal case against the defendant,
because it will eventually be filed in the case. However, if the staff prefers, the agreement can
take the form of an uncaptioned document or a letter to defense counsel subsequently adopted by
the defendant, his counsel and counsel for the United States.
The introductory paragraph should be the same for all types of agreements. It simply recites that
the United States and the defendant enter into the agreement, identifies the appropriate Rule(s) of
Federal Criminal Procedure pursuant to which the agreement is entered and identifies the
investigation out of which the agreement arises. For example:

The UNITED STATES OF AMERICA and the defendant, _____________, hereby enter into the following
plea agreement pursuant to Rule 11(e)(1)(__) of the Federal Rules of Criminal Procedure.

2. Pre-indictment plea agreements

a. The sentencing provisions(18)
2. "C" agreements. The first paragraph(s) of a pre-indictment plea agreement ordinarily recites the
defendant's agreement to waive indictment (19) and plead guilty to a criminal information
charging a violation, usually, of Section 1 of the Sherman Act. (20) It also recites the defendant's
understanding of the maximum penalties for a violation under the statute to which he is
pleading guilty, and the effect of the agreement on the sentencing court, i.e., whether or not it
is a binding agreement. The paragraph also recites the sentence agreed to as the appropriate
disposition of the case ("C" agreement), or the sentence that the Government will recommend
to the court ("B" agreement). For example, paragraph 1 of a "C" agreement with a corporate
defendant might read as follows:

l. The defendant will waive indictment pursuant to Rule 7(b) of the Federal Rules of Criminal
Procedure and plead guilty to a one-count criminal information charging a violation of Section l
of the Sherman Act (15 U.S.C. § 1) in connection with a conspiracy to rig the bids on (type of)
project (identifying number), let by the (letting authority) on (date). The defendant understands
that the maximum penalty which may be imposed against it upon conviction for a violation of
the Sherman Act (15 U.S.C. § 1) is the greatest of: a fine of $l,000,000; twice the gross pecuniary
gain derived from the crime; or twice the gross pecuniary loss caused to the victims of the
crime. The United States and the defendant agree that the appropriate disposition of the charge
in this case is the imposition of a fine, payable to the United States, in the amount of
$_________, to be paid in _________ installments. The first installment of _________ shall be
due and payable within 90 days of the date of sentencing in this case. The remaining
___________ payments of ____________ each shall be due and payable annually thereafter,
together with accrued interest at the rate of _________ on the unpaid balance. In the event the
court rejects the aforesaid agreed-upon disposition, this entire agreement shall be rendered null
and void.

It should be noted that the language quoted above provides for the payment of the fine
over a period of time. If the fine is substantial or the defendant has particular hardships,
we may agree to its payment in installments. However, in such a situation, the defendant
must pay interest on the unpaid balance unless the court or the Attorney General waives
it.(21) Normally, such interest is not waived. The provision calling for payment in
installments and payment of interest should be included as part of the "appropriate
disposition" language in a "C" agreement so that if the court accepts the plea agreement,
those terms become a part of the court's sentence. The staff should check the court's
 Judgment and Probation/Commitment Order to be sure that it reflects the payment of
interest as provided in the plea agreement.

Paragraph 1 of a typical "C" plea agreement with an individual is set out below. Note that
we ordinarily agree not to oppose the defendant's reasonable requests regarding the
details of the service of his prison sentence. We do, however, insist that the sentence be
one of actual imprisonment and not a community-service or work-release program.

l. The defendant will waive indictment pursuant to Rule 7(b) of the Federal Rules of Criminal
Procedure and plead guilty to a one-count criminal information charging a violation of Section l
of the Sherman Act (15 U.S.C. § l) in connection with a conspiracy to rig the bids on (type of)
project (identifying number), let by the (letting authority) on (date). The defendant understands
that the maximum penalty which may be imposed against him upon conviction for a violation of
the Sherman Act (15 U.S.C. § l) is a term of imprisonment of three years and a fine in an amount
equal to the largest of: (a) $250,000; (b) twice the gross pecuniary gain derived from the crime;
or (c) twice the gross pecuniary loss caused to the victims of the crime. The United States and
the defendant agree that the appropriate disposition of the charge in this case is the imposition
of a sentence of __________ days actual imprisonment, with no work release and a fine of
__________. The United States agrees that it will not oppose any reasonable request of the
defendant for imprisonment in a specific federal prison camp, e.g., (identify specific federal
prison camp), any reasonable request regarding his ability to report directly to such institution
as may be designated, or the date on which he must report to begin service of his sentence. In
the event the court rejects the aforesaid agreed-upon disposition, this entire agreement shall be
rendered null and void, the defendant will be free to withdraw his plea of guilty (Rule 11(e)(4)),
and the guilty plea, if withdrawn, shall not be admissible against the defendant in any criminal
or civil proceeding (Rule 11(e)(6)).

3. Rejected "C" agreements. Obviously, if the court rejects a "C" agreement and refuses to impose
the agreed-upon sentence, the entire agreement is void. In most cases, the defendant,
nevertheless, will want to dispose of his or its criminal liability despite the court's refusal to
accept the "C" agreement. Likewise, the Division will want to dispose of the case against the
defendant and obtain his cooperation in continuing the investigation. This can be accomplished
in several ways.

The staff can negotiate a "B" agreement in which the agreed-upon disposition becomes
the sentencing recommendation. However, some judges also are opposed to the
Government recommending a specific length of incarceration for an individual. If the
staff is aware that a judge is unlikely to accept such a recommendation, it should consider
obtaining authority to enter into a straight "B" agreement which recommends only that
the individual be incarcerated without specifying the length of incarceration.

In some cases in which the court has rejected a "C" agreement and a "B" agreement had
not been drafted, the defendant has simply persisted in his plea of guilty and been
sentenced without an agreement with the Government. In those cases, we later (after
sentencing) could compel the defendant's testimony pursuant to 18 U.S.C. § 6001. Also,
under appropriate circumstances, we could tell the defendant that we would be willing to
enter into a non-prosecution agreement with him in exchange for his cooperation. An
example of such a post-sentencing non-prosecution and cooperation agreement follows:

AGREEMENT BETWEEN THE UNITED STATES

AND ____________________

WHEREAS, on ____________, the United States and (the defendant) entered into a plea
agreement pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure,
which called for, among other things, the defendant's cooperation with the United States'
investigation into bid-rigging on (type of) projects in (geographic location) and a
commitment by the United States not to bring further criminal charges against the
defendant under the federal antitrust laws (15 U.S.C. § 1 et seq.) or under the mail or wire
fraud statutes (18 U.S.C. §§ 1341, 1343) or under the false statements and entries statute
(18 U.S.C. § 1001) for any act or offense committed prior to the date of that plea
agreement arising out of any conspiracy, combination or scheme to submit collusive,
fraudulent or non-competitive bids in connection with any (type of) project bid or let in
(geographic location); and

WHEREAS, on ___________, United States District Court Judge rejected the plea
agreement pursuant to Federal Rules of Criminal Procedure, Rule 11(e)(4); and

WHEREAS, the defendant persisted in his plea of guilty to the charges contained in the
Criminal Information filed against him on ___________ and the court imposed a
sentence of __________ based upon said guilty plea; and

WHEREAS, the United States desires the cooperation of the defendant in its continuing
investigation of bid-rigging on (type of) projects in (geographic location); and

WHEREAS, the defendant desires to obtain a commitment by the United States not to
bring further criminal charges against the defendant under the federal antitrust laws (15
U.S.C. § 1, et seq.) or under the mail or wire fraud statutes (18 U.S.C. §§ 1341, 1343) or
under the false statements and entries statute (18 U.S.C. § 1001) for any act or offense
committed prior to the date of that plea agreement arising out of any conspiracy,
combination or scheme to submit collusive, fraudulent or non-competitive bids in
connection with any (type of) project bid or let in (geographic location);

NOW THEREFORE, IT IS AGREED AS FOLLOWS:

[Here the staff should insert, with minor obvious alterations, the appropriate cooperation
and non-prosecution paragraphs discussed in Section E(1)(b) below, and a paragraph
reflecting the defendant's understanding that the agreement does not affect potential
administrative actions or civil claims against the defendant which is discussed in Section
E(1)(c) below.]
4. Agreed-upon "B" agreements. In some districts, the judges may be opposed to accepting "C"
agreements, yet the staff may wish to limit the defendant's ability to argue for a lesser sentence.
(22)
We have been able to accomplish this by use of a modified or agreed-upon "B" agreement. In
such an agreement, the court remains free to impose any sentence it wishes, up to the statutory
maximum, but the defendant agrees not to argue for a sentence less than that recommended by
the United States. In the case of a company, this may be accomplished by the following three
paragraphs:

l. The defendant will waive indictment pursuant to Rule 7(b) of the Federal Rules of Criminal
Procedure and plead guilty to a one-count criminal information charging a violation of Section 1
of the Sherman Act (15 U.S.C. § 1) in connection with a conspiracy to rig the bids on (type of)
project (identifying number), let by the (letting authority) on (date). The defendant understands
that the maximum penalty which may be imposed against it upon conviction for a violation of
the Sherman Act (15 U.S.C. § 1) is the greatest of: a fine of $1,000,000; twice the gross pecuniary
gain derived from the crime; or twice the gross pecuniary loss caused to the victims of the
crime. The United States agrees that it will recommend, as the appropriate disposition of this
case, that the court impose against the defendant a fine, payable to the United States, in the
amount of $__________. The United States further agrees that it will not oppose any reasonable
request that the defendant might make to pay any fine imposed against it in installments over a
period of time not to exceed ________ years. However, the United States will recommend to
the court that it not waive the interest in the amount of ___________ per month, computed
from the date of sentencing, be imposed on any part of the fine that is not paid within 90 days
of the date of sentencing.

2. The defendant understands and agrees that the sentence recommended by the United
States shall not be binding upon the court, and that, under this agreement, the court
retains complete discretion to impose any sentence up to the maximum provided by 15
U.S.C. § 1. Furthermore, the defendant understands and agrees that, as provided in Rule
11(e)(2) of the Federal Rules of Criminal Procedure, if the court does not impose the
sentence recommended by the United States, the defendant nevertheless has no right to
withdraw its plea of guilty.

3. The defendant agrees that it will not present evidence or arguments to the court in
opposition to the sentencing recommendation made to the court by the United States,
although both parties may present facts to the probation office and to the court to assist
the court in determining the sentence to be imposed. The defendant agrees that any fine is
to be paid to the Treasury of the United States and also agrees not to propose, recommend
or advocate that any payment be made, or services rendered, to any person, organization,
institution or agency in lieu of a fine or any part thereof.(23)

The sentencing paragraphs of an agreed-upon "B" agreement with an individual may read
as follows:

l. The defendant will waive indictment pursuant to Rule 7(b) of the Federal Rules of Criminal
Procedure and plead guilty to a one-count criminal information charging a violation of Section l
 of the Sherman Act (15 U.S.C. § 1) in connection with a conspiracy to rig the bids on (type of)
project (identifying number), let by the (letting authority) on (date). The defendant understands
that the maximum penalty which may be imposed against him upon conviction for a violation of
the Sherman Act (15 U.S.C. § 1) is a term of imprisonment of three years and a fine equal to the
largest of: (a) $250,000; (b) twice the gross pecuniary gain derived from the crime; or (c) twice
the pecuniary loss caused to the victims of the crime. The United States agrees that it will
recommend, as the appropriate disposition of this case, that the court impose against the
defendant a sentence of ___________ days actual imprisonment, with no work release and a
personal fine of __________. The United States further agrees that it will not oppose any
reasonable request of the defendant for imprisonment in a specific federal prison camp, e.g.,
(identify specific federal prison camp), any reasonable request regarding his ability to report
directly to such institution as may be designated, or the date on which he must report to begin
service of his sentence.

2. [Same as for corporations with, of course, "his" or "hers" and "he" or "she" substituted
for "its" and "it".]

3. The defendant agrees that he [she] will not present evidence or arguments to the court
in opposition to the sentencing recommendation made to the court by the United States,
although both parties may present facts to the probation office and to the court to assist
the court in determining the sentence to be imposed.

5. Straight "B" agreements. In a straight "B" agreement, the defendant simply agrees to waive
indictment and plead guilty, and the United States agrees to recommend that the court impose
a certain sentence. The defendant is free to argue for a lesser sentence, except that the
corporate defendant nevertheless agrees that it will not argue that payment be made to an
entity other than the United States in lieu of a fine. (A corporate defendant also agrees not to
argue that the court order it to render services in lieu of a fine.) In the case of a corporate
defendant, this may be accomplished as follows:

l. The defendant will waive indictment pursuant to Rule 7(b) of the Federal Rules of Criminal
Procedure and plead guilty to a one-count criminal information charging a violation of Section l
of the Sherman Act (15 U.S.C. § 1) in connection with a conspiracy to rig the bids on (type of)
project (identifying number), let by the (letting authority) on (date). The defendant understands
that the maximum penalty which may be imposed against it upon conviction for a violation of
the Sherman Act (15 U.S.C. § 1) is the greatest of: a fine of $1,000,000; twice the gross pecuniary
gain derived from the crime; or twice the gross pecuniary loss caused to the victims of the
crime. The United States agrees that it will recommend, as the appropriate disposition of this
case, that the court impose against the defendant a fine, payable to the United States, in the
amount of $____________. The United States further agrees that it will not oppose any
reasonable request that the defendant might make to pay any fine imposed against it in
installments over a period of time not to exceed five years. However, the United States will
recommend to the court that it not waive the interest in the amount of _________ per month,
computed from the date of sentencing, to be imposed on any part of the fine that is not paid
within 90 days of the date of sentencing.

2. The defendant understands and agrees that the sentence recommended by the United
States shall not be binding upon the court, and that, under this agreement, the court
retains complete discretion to impose any sentence up to the maximum provided by 15
U.S.C. § 1. Furthermore, the defendant understands and agrees that, as provided in Rule
11(e)(2) of the Federal Rules of Criminal Procedure, if the court does not impose the
sentence recommended by the United States, the defendant nevertheless has no right to
withdraw its plea of guilty.

3. The defendant agrees that any fine imposed against it by the court is to be paid to the
Treasury of the United States and also agrees not to propose, recommend or advocate that
any payment be made, or services rendered, to any person, organization, institution or
agency in lieu of a fine or any part thereof.

The sentencing paragraphs of a straight "B" agreement with an individual may read as
follows:

1. The defendant will waive indictment pursuant to Rule 7(b) of the Federal Rules of Criminal
Procedure and plead guilty to a one-count criminal information charging a violation of Section 1
of the Sherman Act (15 U.S.C. § 1) in connection with a conspiracy to rig the bids on (type of)
project (identifying number), let by the (letting authority) on (date). The defendant understands
that the maximum penalty which may be imposed against him upon conviction for a violation of
the Sherman Act (15 U.S.C. § 1) is a term of imprisonment of three years and a fine equal to the
largest of:

(a) $250,000; (b) twice the pecuniary gain derived from the crime; or (c) twice the pecuniary loss
caused to the victims of the crime. The United States agrees that it will recommend, as the
appropriate disposition of this case, that the court impose against the defendant a sentence of
days actual imprisonment, with no work release and a personal fine of . The United States
further agrees that it will not oppose any reasonable request of the defendant for imprisonment
in a specific federal prison camp, e.g., (identify specific federal prison camp), any reasonable
request regarding his ability to report directly to such institution as may be designated, or the
date on which he must report to begin service of his sentence.

2. [Same as for corporations with, of course, "his" substituted for "its".]

3. The defendant agrees that any fine imposed against him by the court should be paid to
the Treasury of the United States and also agrees not to propose, recommend or advocate
that any payment be made to any person, organization, institution or agency in lieu of
such fine or any part thereof.
 Note that in a straight "B" agreement with an individual, the defendant remains free to
argue for an alternative sentence, i.e., service to a community organization as a term of
probation, but agrees not to argue that any fine imposed be paid to anyone other than the
United States.

a. Cooperation and non-prosecution provisions

Following the sentencing paragraphs, the defendant and the United States agree upon the nature
and scope of the defendant's cooperation and the scope of the Government's non-prosecution
agreement. Ordinarily, the defendant agrees to cooperate fully with the federal antitrust
investigations and prosecutions relating to the industry under investigation within the agreed-
upon geographic area. Conditioned upon the fullness of that cooperation, the United States
usually agrees not to prosecute the defendant further for violations of the antitrust (15 U.S.C.
§ 1), mail or wire fraud (18 U.S.C. §§ 1341, 1343) and false statements and entries (18 U.S.C.
§ 1001) statutes, committed prior to the date of the agreement. However, the Government's non-
prosecution agreement with respect to these statutes should be limited to those violations arising
out of, or in connection with, antitrust violations in the industry being investigated. The
geographic scope of the non-prosecution agreement should be limited to where the defendant
does business. In addition, the staff may want to limit the non-prosecution agreement to a
specific list of violations (e.g., specific instances of bid-rigging to which the defendant has
admitted.)(24) This may be accomplished in an agreement with an individual as follows:

4. The defendant agrees that he will fully and candidly cooperate with the United States in the conduct
of any federal grand jury or other federal criminal investigations involving antitrust violations in the
(type of) industry, including the presently ongoing federal grand jury investigation being conducted in
the ___________ District of ____________, and in any litigation or other proceedings arising or resulting
therefrom. The defendant understands and agrees that he is required to respond fully and truthfully to
all inquiries of the United States about practices in the (type of ) industry in the (geographic location).
The defendant also understands and agrees that, upon reasonable notice, he will make himself available
to attorneys and agents of the United States for interviews and otherwise give the United States access
to the knowledge or information he may have concerning practices in the (type of) industry. Further, the
defendant understands and agrees that, when called upon to do so by the United States, he is required
to testify fully, truthfully and under oath, subject to the penalties of perjury (18 U.S.C. § 1621) and
making false statements or declarations in grand jury or court proceedings (18 U.S.C. § 1623), about
practices in the (type of) industry in the (geographic location).

5. Subject to the defendant's full and continuing cooperation, as described above, the United
States agrees not to bring further criminal charges against the defendant under the federal
antitrust statutes (15 U.S.C. § 1, et seq.) or under the mail or wire fraud statutes (18 U.S.C.
§§ 1341, 1343) or under the false statements and entries statute (18 U.S.C. § 1001) for any act or
offense committed prior to the date of this plea agreement arising out of any conspiracy,
combination or scheme to submit collusive, fraudulent or noncompetitive bids in connection with
any (type of) project in the (geographic location) bid or let prior to the date of this plea
agreement.(25)
Quite often, plea agreements with a corporate defendant and its most culpable officer(s) will be
negotiated at the same time. Generally, the corporate defendant is anxious that its other officers
not be prosecuted, and the staff will be desirous of obtaining the testimony of those less culpable
-- and not likely to be prosecuted -- individuals at the company, who have some useful
information regarding the matter under investigation. This may be accomplished as follows:

2. The defendant agrees that it will cooperate fully with the United States in the conduct of any federal
grand jury or other federal criminal investigations involving antitrust violations in the (type of) industry,
including the presently ongoing federal grand jury investigation being conducted in the __________
District of __________ and in any litigation arising therefrom. Each officer or employee of the defendant
(other than ___________, who has entered a separate plea agreement with the United States) who may
have knowledge which would be of substantial assistance to the currently ongoing grand jury
investigation of bid-rigging on (type of) projects, within a reasonable time from the date of this plea
agreement may provide the Antitrust Division staff a proffer generally outlining the substance of his
knowledge. If, in the judgment of the staff, the proffer is full and candid, the staff agrees to request
authority from the Assistant Attorney General in charge of the Antitrust Division to obtain a court order
compelling such officer's or employee's testimony before an appropriate grand jury pursuant to 18
U.S.C. § 6001, et seq., which provides that no testimony or other information compelled under such an
order (or any information directly or indirectly derived from such testimony or other information) may
be used against the witness in any criminal case, except a prosecution for perjury, giving a false
statement or otherwise failing to comply with the order.

This paragraph requires that the staff obtain a court order and compel the testimony, before the
grand jury, of those corporate officers and employees offering useful information under this
provision. Often, some corporate officers or employees will have information which may be of
some value to the investigation, but which really does not warrant presentment to the grand jury.
Also, it is often desirable to be able to re-interview witnesses as the investigation progresses
without returning to the grand jury each time a question arises. If either situation is anticipated,
the staff may wish to provide for non-prosecution, as opposed to immunity, for cooperating
corporate officers or employees. This may be accomplished as follows:

2. The defendant agrees that it will cooperate fully with the United States in the conduct of any federal
grand jury or other federal criminal investigations involving antitrust violations in the (type of) industry,
including the presently ongoing federal grand jury investigation being conducted in the ____________
District of ___________ and in any litigation arising therefrom. Each officer or employee of the
defendant (other than __________, who has entered a separate plea agreement with the United States)
who may have knowledge which would be of substantial assistance to the currently ongoing grand jury
investigation of bid-rigging on (type of) projects, within a reasonable time from the date of this plea
agreement may provide the Antitrust Division staff a proffer generally outlining the substance of his
knowledge. If, in the judgment of the United States, the proffer is full and candid and internal
Department clearance for the individual is obtained, the United States agrees, upon the continued and
full cooperation of such officer or employee, not to bring criminal charges against such person under the
federal antitrust statutes (15 U.S.C. § 1, et seq.) or under the mail or wire fraud statutes (18 U.S.C.
§§ 1341, 1343) or under the false statements and entries statute (18 U.S.C. § 1001) for any act or
offense, committed prior to the date of this plea agreement, and while such person was employed by
the defendant arising out of any conspiracy, combination or scheme between the defendant and any
other (type of) contractor to submit collusive, fraudulent, or non-competitive bids in connection with
any (type of) project in the (geographic location) bid or let prior to the date of this plea agreement.

Even when the above provision is used, however, the staff should obtain Criminal Division
clearance before extending this non-prosecution provision to any individual. Note also that
whether the non-prosecution or immunity provision for other cooperating officials of the
company is used, the provision usually is limited to present officers and employees for activities
engaged in while in the employ, and on behalf, of the settling company.

Of course, in addition to non-prosecution or immunity assurances to cooperating corporate

officers or employees, we usually include a non-prosecution agreement for the corporate
defendant similar to the following:

3. Subject to the defendant's full and continuing cooperation, as described above, the United States
agrees not to bring further criminal charges against the defendant under the federal antitrust statutes
(15 U.S.C. § 1, et seq.) or under the mail or wire fraud statutes (18 U.S.C. §§ 1341, 1343) or under the
false statements and entries statute (18 U.S.C. § 1001) for any act or offense committed prior to the
date of this plea agreement arising out of any conspiracy, combination or scheme to submit collusive,
fraudulent, or noncompetitive bids in connection with any (type of) project in the (geographic location)
bid or let prior to the date of this plea agreement.

The language in the paragraphs quoted above obligates only the named corporate defendant to
cooperate and, likewise, protects from further prosecution only the named corporate defendant. It
also provides for immunity or non-prosecution only for the named corporate defendant's
cooperating officers and employees. On occasion, it may be appropriate to extend the
cooperation obligation and the assurance of non-prosecution to the named corporate defendant's
subsidiaries, parent or affiliates, and to extend the opportunity for immunity or non-prosecution
to the cooperating officers and employees of those companies. If that is to be the case, it can be
accomplished by minor, obvious revisions to the language quoted above. This should be done
explicitly, however, and care should be taken not to extend the agreement to corporations or
individuals the staff does not want to "immunize."(26)

c. Civil liability and administrative actions

The defendant should acknowledge that the criminal plea agreement does not limit the
defendant's civil liability or any administrative action which might be undertaken by some
agency other than the Division. The defendant also should acknowledge the existence of plea
agreements with its corporate employee(s) or his corporate employer, as appropriate, and
acknowledge the completeness of the agreement. This may be accomplished as follows:

6. The defendant understands that it (he/she) may be subject to administrative action by federal or state
agencies other than the United States Department of Justice, Antitrust Division, as a result of the guilty
plea entered pursuant hereto, and that this plea agreement in no way limits the action, if any, such
other agencies may take. In addition, the defendant understands that it (he/she) may be subject to civil
and equitable claims, demands or causes of action by the United States and others, and that this plea
agreement in no way affects these claims, demands or causes of action.

7. The United States and the defendant enter into this agreement with knowledge of the plea
agreement between the United States and . Other than in that agreement, the United States has
made no other promises to, or agreements with, the defendant. This plea agreement constitutes
the entire agreement between the United States and the defendant concerning the disposition of
the charges in this case.

In some cases, it may be appropriate to agree with the defendant that we will advise various
administrative agencies of the value and timeliness of the defendant's cooperation. This is
particularly appropriate where the defendant's cooperation is offered early in an investigation,
prior to the development of incriminating evidence against the defendant, and the defendant's
business or livelihood would be substantially adversely affected by administrative debarment.
Ordinarily, we simply tell defendants that we will inform agency officials of the value of their
cooperation if asked. However, where more assertive action is appropriate, the following
language has been used:

The United States agrees that it will inform the appropriate officials of the (federal agency) and any
other federal agency with which the defendant has contracted, of the timeliness and value to the United
States of the defendant's cooperation as provided for herein. (27)

d. Waiver of statute of limitations

In a few instances, it may be desirable to enter into a plea agreement in which the defendant
pleads guilty to a conspiracy to which he has an arguable, or even a clear, statute of limitations
defense. Such a plea agreement would require a valid waiver by the defendant of the statute of
limitations defense, and this raises the issue of whether this defense is waivable by the defendant.

Several circuits have addressed the issue and concluded that the statute of limitations is an
affirmative defense and, therefore, waivable.(28) However, the Sixth Circuit has concluded that
the statute of limitations is a jurisdictional bar to prosecution and may not be waived.(29) In
addition, the Tenth Circuit considers the statute of limitations jurisdictional, but has not
addressed whether it may be voluntarily waived by the defendant for his benefit.(30)

Plea agreements that require waivers of the statute of limitations generally should be avoided in
the Sixth and possibly the Tenth Circuits. In any event, when entering a plea agreement that
requires a waiver of the statute of limitations, the staff should be thoroughly familiar with the
law on the subject in the circuit where the prosecution is to take place and realize that such a plea
agreement might result in litigation. Plea agreements containing waivers of the statute of
limitations should be entered only where the waiver is for the defendant's benefit and is given
only after the defendant has fully discussed the matter with his attorney and the attorney has
advised the defendant to waive the defense. This should be stated specifically in the plea
agreement. The following language may be used to set forth a defendant's waiver of the statute of
limitations:

The defendant further agrees to waive and not to raise any defense or other rights defendant may
otherwise have under the statute of limitations with respect to the criminal information referred to in
Paragraph 1. The defendant further states that this waiver is knowingly and voluntarily made after fully
conferring with, and on the advice of, defendant's counsel, and is made for defendant's own benefit.

3. Post-indictment plea agreements

So far, this chapter has focused on plea agreements in the pre-indictment setting. Often, however,
plea agreements will be negotiated only after the return of an indictment against the defendant,
and may involve the dismissal of counts or even the indictment itself. This is done pursuant to
Rule 11(e)(1)(A). The introductory paragraph of such an agreement reads:

The UNITED STATES OF AMERICA and the defendant, ___________, hereby enter into the following plea
agreement pursuant to Rules 11(e)(1)(A) and (here insert 11(e)(1)(B) or 11(e)(1)(C) as appropriate) of
the Federal Rules of Criminal Procedure.

If the defendant is to plead to an information and the pending indictment is to be dismissed,

paragraph 1 of the plea agreement remains the same as in any pre-indictment agreement and the
following paragraph is added to the agreement:

The United States agrees that once the court has accepted the defendant's (plea of guilty to the criminal
information referred to herein, -- in a (B) agreement) or (plea of guilty and this plea agreement, and has
imposed sentence against the defendant, as provided herein, -- in a (C) agreement) the United States,
pursuant to Rule 11(e)(1)(A) and 48(a) of the Federal Rules of Criminal Procedure, will move to dismiss
the indictment in (here cite the case pending against the defendant).

If the defendant is to plead to one or more counts of the pending indictment and the remaining
counts are to be dismissed, the first sentence of paragraph 1 of the pre-indictment plea agreement
will be changed to read as follows:

The defendant will (plead guilty) or (change his plea of not guilty to guilty) to Count of the indictment in
(here cite the case pending against the defendant) which charges a violation of Section 1 of the Sherman
Act (15 U.S.C. § 1) in connection with a conspiracy to rig the bids on (type of) project (identifying
number), let by the (letting authority) on (date).

In addition, the following paragraph is added to the agreement:

The United States agrees that once the court has accepted the defendant's (plea of guilty to Count of
the indictment, -- in a (B) agreement) or (plea of guilty to Count of the indictment and this plea
agreement, and has imposed sentence against the defendant, as provided herein, -- in a (C) agreement)
the United States, pursuant to Rule 11(e)(1)(A) and 48(a) of the Federal Rules of Criminal Procedure, will
move to dismiss Counts _____________ and _____________ of the indictment in (here cite the case
pending against the defendant).

4. Conditional plea agreements

In 1983, Rule 11 of the Federal Rules of Criminal Procedure was amended to provide for the
acceptance of conditional pleas. The amendment reads as follows:

11(a)(2) Conditional pleas. With the approval of the court and the consent of the government, a
defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on
appeal from the judgment, to review of the adverse determination of any specified pretrial motion. A
defendant who prevails on appeal shall be allowed to withdraw the plea. (31)

This amendment is fairly straightforward. Its main requirements are that the issue to be appealed
be reserved in writing, the court approve entry of the plea and the Government consent. Any
appeals pursuant to a conditional plea must be brought in compliance with Rule 4(b), Fed. R.
App. P., and relief via 28 U.S.C. § 2255 (habeas corpus) is not available. Even most
constitutional objections (e.g., a claim of double jeopardy) may not be raised after a plea of
guilty.(32)

The amendment was adopted to promote prosecutorial and judicial economy, and advance
speedy trial objectives, by providing a process for avoiding trials that are undertaken primarily to
preserve pretrial issues for which interlocutory appeals are not available (e.g., a motion to
dismiss based on speedy trial grounds or a motion to suppress evidence). The amendment does
not limit, in any fashion, the issues that may be appealed pursuant to a conditional plea, and
instead relies on the provision that both the court and the Government must approve a
conditional plea to ensure that the reserved issues are not frivolous.

In certain limited situations, conditional plea agreements can be an effective manner in which to
conserve the Division's resources. They should be entered into only when the issues that are to be
appealed will be dispositive of the case. For example, in two cases where conditional plea
agreements were entered into, the issues to be appealed included: (l) whether the defendant was
protected from indictment by a previous plea agreement; (2) whether the statute of limitations
barred the indictment; (3) whether the indictment should be dismissed because provisions of the
Speedy Trial Act allegedly had been violated; and (4) whether the indictment placed the
defendant in double jeopardy. If the defendants were successful on any of these issues, the cases
would have been dismissed. By entering into conditional plea agreements on these issues, the
Division and the defendants avoided the time and expense of trial. It would not be to the
Division's advantage, however, to enter into a conditional plea agreement that included an issue
to be appealed which was not dispositive of the case. In such an instance, if the defendant were
successful on the non-dispositive issue, the Government would be faced with the possibility of
having to try the case at a considerably later date with stale evidence.

In deciding whether to enter into a conditional plea agreement, care also should be exercised in
determining whether a sufficient factual basis exists in the record to support the Division's
position on appeal. In addition, thought should be given as to what sort of cooperation, if any, is
desired from the defendant.(33)

Since the amendment speaks only of adverse determinations of pretrial motions being appealed,
it would seem that conditional plea agreements normally would be entered into only after
indictment. However, there is no specific prohibition against entering into an agreement prior to
indictment or the filing of an information. Also, while the rule provides for the entry of a
conditional plea of nolo contendere, the Division's policy against a standard plea of nolo would
apply to a conditional plea of nolo.

An 11(a)(2) conditional plea agreement generally has the same provisions as a standard plea
agreement and normally would be joined with an 11(e)(1)(B) or 11(e)(1)(C) provision to include
some sort of sentencing recommendation. It might also be coupled with an 11(e)(1)(A) provision
to dismiss other counts of an indictment.

When drafting a conditional plea agreement, many of the same paragraphs found in a standard
plea agreement may be used but should be modified accordingly. Thus, the introductory
paragraph should make reference to the fact that this is a conditional plea agreement pursuant to
Rule 11(a)(2). Similarly, the first numbered paragraph should make reference to the fact that the
defendant will enter a conditional plea of guilty pursuant to Rule 11(a)(2). For example:

1. __________ will enter a conditional plea of guilty, pursuant to Rule 11(a)(2), to Count One of the
Indictment in this case, which charges a violation of Section 1 of the Sherman Act (15 U.S.C. § 1) in
connection with a conspiracy to rig bids on a (type of) project (identifying number), let by the (letting
authority) on (date).

The next numbered paragraph should set forth with great specificity the issue which is to be
appealed. If there are several issues, each one should be set forth with particularity. In addition, a
waiver of any other issues may be specifically included in the paragraph. For example:

2. ___________ reserves the right to take an appeal from the judgment on the issue of ___________.
However, the defendant waives his/its right to appeal any other issue that arose at the pretrial stage of
the captioned case or that might have arisen at trial.

The next paragraph then should set forth a statement that the defendant understands that he/it
may withdraw the guilty plea only if he/it prevails on appeal. For example:

3. ____________ has been fully advised and understands that if he/it prevails on appeal, he/it shall be
allowed to withdraw his/its guilty plea. If ____________ does not prevail on appeal, he/it has no right to
withdraw his/its plea of guilty.

A conditional plea agreement also may contain the other provisions normally found in a plea
agreement and discussed above. If a particular sentence is recommended, the agreement should
address when that sentence should be imposed with respect to the appeal. If there is a non-
prosecution provision, the agreement should address what happens to that provision if the
defendant's appeal is successful and the plea is withdrawn. Similarly, if the agreement contains a
provision for the Division to dismiss other counts in the indictment, consideration should be
given to not dismissing these counts until after the appeal is final. However, if a count is not
dismissed until the appeal is final, care must be taken to be sure that the provisions of the Speedy
Trial Act are met. Finally, as discussed above, if the plea agreement requires cooperation by the
defendant, consideration should be given as to when this cooperation is to begin and what will
happen if the defendant's appeal is successful.

F. Procedure for Obtaining Approval

1. Within the Division

After a proposed plea agreement acceptable to the staff, section or field office chief and defense
counsel has been reached, the agreement, of course, is (or already has been) reduced to writing.
The proposed agreement, with a copy of a proposed information (or indictment, if applicable),
press release and a supporting memorandum are forwarded to the Office of Operations, under a
cover memorandum from the section or field office chief.

The supporting memorandum is substantially similar in purpose and form to a fact memorandum
in support of an indictment and should include all information relevant to the proposed plea
agreement. In the pre-indictment plea agreement situation, the memorandum obviously will need
to include more information than post-indictment, since in the latter situation, there will already
exist a fact memorandum, a copy of which can be attached to the plea agreement memorandum if
necessary.

To evaluate a proposed plea agreement, the Office of Operations needs the following information
in the memorandum:

(a) complete background information on individual defendants, including age, health, corporate
position and anything else of relevance;

(b complete background information on corporate defendants, including sales figures, net worth
) and all other relevant financial data;

(c) a description of all criminal conduct in which the defendant is known or believed to have
engaged;

(d a detailed description of the evidence available to support the charge(s) to which the
) defendant has agreed to plead guilty;

(e) a description and explanation of the terms of the proposed plea agreement, with particular
emphasis on the proposed sentence;

(f) an explanation of the relative role of the defendant in the conspiracy and how the agreement
will effect the investigation and other pending or future prosecutions;
 (g) an assessment of the defendant's civil liability and the impact of the proposed plea agreement
on that liability; and

(h a full description of anything unusual about the plea agreement or factors that relate to it.
)

With respect to point (e) above, for crimes continuing or occurring on or after November 1,
1987, the memorandum must contain an analysis of the Sentencing Guidelines implications of
the plea agreement. If charge bargaining has occurred, the memo should make clear how the
remaining charges satisfy the Sentencing Commission's and the Department's requirements.(34) If
the plea agreement is a "C" type agreement, or a "B" type agreement where the Government will
be making a specific sentencing recommendation to the judge, the staff should set forth either
their analysis of why the sentence falls within the applicable guideline range for the particular
charges at issue or their reasons for recommending a departure from the Guidelines.

Section 6B1.3(b) and (c) of the Sentencing Guidelines express the Commission's views regarding
the acceptance of plea agreements insofar as they reflect sentence bargaining. Both
recommended sentences under Rule 11(e)(1)(B) and agreed sentences under Rule 11(e)(1)(C)
must either be within the applicable guideline range or only depart from that range "for
justifiable reasons."

The Criminal Division has noted that (1) the Sentencing Reform Act permits downward
departures only when mitigating circumstances that were not adequately taken into account by
the Commission in formulating the Guidelines exist and should result in a different sentence, and
(2) it is not possible to argue that the Commission has not adequately taken the value of a plea
agreement into consideration.(35) Nonetheless, sentence bargaining is still a valuable enforcement
tool. First, bargaining "within guidelines" is possible with respect to the acceptance-of-
responsibility adjustment, to where within the applicable imprisonment and fine ranges a
defendant's sentence should be set and to any available alternative sentences. The imprisonment
and fine ranges in Division cases are, relatively speaking, quite broad. Moreover, it is possible to
agree on legitimate grounds for departure, including particularly "substantial assistance to the
authorities."(36)

The section or field office chief will provide a cover memorandum, briefly highlighting the
important points in the staff's recommendation and explaining his reasons for concurring or not
concurring in the recommendation.

2. Within the Department

At the same time that the proposed plea agreement package is forwarded to the Office of
Operations, the staff should consider sending copies of the proposed agreement to all U.S.
Attorneys in whose jurisdictions the agreement (particularly the non-prosecution provision) will
have any effect. The agreement should be accompanied by a letter from the lead attorney on the
investigation explaining the proposed agreement and inviting the U.S. Attorney to address any
questions, comments or objections to the lead attorney or, if more appropriate, to the Director of
Operations. Most U.S. Attorneys do not object to the Division's plea agreements, but
occasionally, certain U.S. Attorneys have strong views on certain types of agreements or
provisions in them.

G. Presenting the Plea Agreement to the Court

The procedures for tendering plea agreements to the court vary from district to district and from
judge to judge.(37) It is advisable to consult with an Assistant United States Attorney on the local
practice in each district. In the case of a pre-indictment plea agreement, the process normally is
begun by the filing of a criminal information. Depending on the district, it may be filed in the
clerk's office or submitted in open court to a magistrate or district judge. If the defendant has
already been indicted and has pled not guilty, it is usually only necessary to request the judge
handling the case to schedule a change-of-plea hearing.

Two hearings normally are required to dispose of a case by plea agreement. At the first hearing,
the defendant states his intention to plead guilty, and the terms of the plea agreement are
presented to the court. If it is a pre-indictment agreement, the defendant must, under Fed. R.
Crim. P. 7(b), waive, in open court, prosecution by indictment (usually by signing a form) after
he has been advised of the nature of the charges and of his rights. Rule 11(e)(2) requires that at
the time the plea is offered, all of the terms of the plea agreement be disclosed on the record in
open court (or in camera on a showing of good cause). As with any plea of guilty, the court must
ensure that there is a factual basis for the plea (Rule 11(f)). The court also must determine that
the plea is voluntary and advise the defendant of his rights under Rule 11(c) and (d).

If the plea agreement is a "B" type, judges normally will accept the change of plea at the first
hearing. However, before doing so, the court, under Rule 11(e)(2), must advise the defendant
that if the court does not accept the recommendation or request set out in the agreement, the
defendant has no right to withdraw his plea. After accepting the guilty plea, the court will order a
presentence investigation and report, pursuant to Fed. R. Crim. P. 32(c)(1), unless the court finds
on the record that there is already sufficient information for the meaningful exercise of
sentencing discretion. (It is unusual for a judge to impose sentence on a "B" type agreement
without benefit of a presentence report.) If the defendant's guilty plea is not formally accepted at
the first hearing, Rule 32(c)(1) requires that the judge obtain the written consent of the defendant
to inspect the presentence report.

When a presentence investigation has been ordered, the judge probably will allow several weeks
for its completion before holding the sentencing hearing. The procedures for imposing sentence
under a "B" type agreement are essentially the same as for any guilty plea. Of course, the
Government (and defendant, if applicable) must strictly comply with any provisions of the plea
agreement regarding arguments or recommendations to be made, or not to be made, to the court
at sentencing.

The procedures for accepting a pre-indictment "A" type or "C" type agreement are different in
some respects from those for a "B" type. The filing of the information, waiver of indictment,
disclosure of the terms of the agreement, providing of a factual basis and the advice to and
questioning of the defendant under Rule 11(c) and (d) are basically the same for all three types of
agreements. However, since "A" and "C" type agreements provide for the ultimate disposition of
the case, the court must decide whether to accept the agreement, as is, or reject it entirely. That
being the case, some judges defer formal acceptance of the guilty plea until they have read the
presentence report and decided whether the disposition provided for in the agreement is
appropriate. If acceptance of the plea is deferred, the court, under Rule 32(c)(1), must obtain the
written consent of the defendant to inspect the presentence report.

Rule 11(e)(3) provides that if the court accepts the "C" agreement, the court shall inform the
defendant that it will impose the sentence provided for in the agreement. If the agreement is
rejected, the court must inform the parties of this fact, advise the defendant in open court (or in
camera on a showing of good cause) that the court is not bound by the agreement, allow the
defendant to withdraw his plea and inform him that if he persists in his guilty plea, the
disposition of the case may be less favorable than the one in the plea agreement (Rule 11(e)(4)).
Some plea agreements involving multiple counts may contain "B" type agreements as to some
counts and "A" or "C" type agreements as to others. In that case, the judge must carefully explain
to the defendant the various dispositions provided in the agreement and his rights regarding
withdrawal of his guilty plea if the agreement is rejected.(38) After a guilty plea has been
accepted, the judge must comply with the standard Rule 32 sentencing procedures.

When a post-indictment plea agreement is involved, the first step usually is to request a hearing
before the judge to whom the case has been assigned once the parties have finalized the
agreement. After that, the procedures for accepting the plea agreement and imposing sentence
are the same as for a pre-indictment agreement. Rule 11(e)(5) provides that the plea agreement
should be disclosed at the arraignment or at such other time, prior to trial, as may be fixed by the
court. This provision enables the court to require that the agreement be disclosed sufficiently in
advance of trial so that the scheduling of criminal cases can be handled efficiently.

The statements made by the defendant during a plea agreement hearing may not be used against
him in any civil or criminal proceeding if the guilty plea is later withdrawn, with two exceptions.
Rule 11(e)(6) prohibits the use of such statements unless (1) another statement made during the
same hearing has been introduced and, in fairness, the defendant's statement ought to be
considered with it, or (2) the statement was made under oath, on the record, with defense counsel
present and is offered in a prosecution for perjury or making false statements. If an "A" or "C"
type agreement is rejected and the defendant withdraws his guilty plea, the withdrawn plea may
not be used against him.

H. Other Issues
1. Enforcement of plea agreements

As the Supreme Court has recognized, plea bargaining is "an essential component of the
administration of justice."(39) Although plea bargaining is a part of the criminal justice system, the
courts generally have viewed plea bargains as contractual in nature and "subject to contract-law
standards."(40) Yet, while the courts rely heavily on contract principles, they also view the matter
as one of fairness to the defendant.(41) As the Supreme Court stated in Santobello in discussing
plea bargaining:
. . . [A] constant factor is that when a plea rests in any significant degree on a promise or agreement of
the prosecutor so that it can be said to be part of the inducement or consideration, such promise must
be fulfilled.(42)

Courts require that the prosecution meticulously carry out the plea agreement.(43) Moreover, the
prosecution need not intentionally violate a plea agreement for any ensuing sentence to be void.
(44)

What constitutes a promise or agreement will by necessity turn on the individual facts of each
case. Disputes as to the terms of a plea agreement are to be resolved by objective standards, and
the nature and extent of any agreement are questions of fact to be resolved by the district court to
whom the plea was originally submitted.(45) Once it has been determined that a plea agreement
has been violated, the issue then shifts to the appropriate remedy. The fashioning of an
appropriate remedy is a matter of discretion for the court according to the circumstances of the
case.(46) Appropriate remedies include allowing a defendant to withdraw a guilty plea,(47) directing
specific performance of the agreement,(48) or ordering the imposition of a specific sentence where
the aforementioned remedies would be meaningless or infeasible.(49)

2. Nolo contendere and Alford pleas

Since it is Division policy to oppose the acceptance of nolo contendere pleas, except in unusual
circumstances, a dilemma sometimes is created for the defendant who wishes to dispose of his
criminal liability and is willing to agree to the sentence sought by the Government, but who is
only willing to plead nolo. It should be made clear to the defendant that if he persists in refusing
to plead guilty, he will not be able to enter into any type of plea agreement with the Division and,
as a result, may be risking a more severe sentence. In certain rare situations, the Division may
consider entering into negotiations with a defendant over an appropriate sentence after the
defendant's nolo plea already has been accepted by the court. In that context, a true plea
agreement is impossible, since the plea has already been accepted. If an agreement is reached, it
becomes nothing more than a joint sentencing recommendation, which is not binding on the
court.

An Alford plea is one in which the defendant pleads guilty, but continues to maintain his
innocence. In North Carolina v. Alford, 400 U.S. 25 (1970), the defendant, who was charged
with first degree murder, agreed with the prosecution that he would plead guilty to a reduced
charge of second degree murder. However, at the plea hearing, he tendered his guilty plea but
denied his guilt. The State then demonstrated a strong factual basis for the plea, and the plea was
accepted by the court. The Supreme Court held that the judge could have refused the plea in that
situation, but acted properly in accepting it, in view of the factual basis presented and the
showing that the plea was a voluntary decision by the defendant.

Every effort should be made to avoid entering into a plea agreement with a defendant who is
likely to refuse to admit his guilt. If the prosecutor has any reason to suspect that the defendant
may protest his innocence at the plea hearing, the prosecutor should be prepared to demonstrate a
convincing factual basis for the offense. In some cases, such as where the plea agreement
requires the full cooperation of the defendant, or the defendant's protestations of innocence were
completely unexpected, it may be more appropriate to argue that the defendant has not upheld his
part of the bargain and ask the court for leave to withdraw from the agreement.

FOOTNOTES

1. Rule 11(a)(2) provides for conditional pleas, which are fully described later in this chapter.

2. Arguably, § 14 of the Clayton Act (15 U.S.C. § 24) provides a lesser-included offense.
However, the Division has never permitted a defendant to plead under this provision.

3. It should be noted, however, that a defendant may not be precluded from furnishing
background and character information to the court. See 18 U.S.C. § 3577. Also, some courts that
do not accept "C" agreements view agreed-upon sentencing recommendations as, in effect, "C"
agreements.

4. The Division has successfully used "C" agreements in some jurisdictions where the U.S.
Attorney does not use or the courts do not generally accept "C" agreements. The U.S. Attorney,
however, must be consulted before taking such an action.

5. The Division does not enter plea agreements with individual defendants who will not admit
their guilt in open court during the plea and sentencing procedure. (Such pleas, called "Alford"
pleas after North Carolina v. Alford, 400 U.S. 25 (1970), are discussed later in this chapter.)
However, corporate defendants may be liable for the criminal acts of employees who have since
died or are not subject to the corporation's control and, therefore, a corporate defendant may be
unable to make an independent assessment of its own guilt, such as would support an admission.
In those limited circumstances, the corporate defendant's agreement to accept as true the
Government's version of the offense is enough.

6. The possibility of physical retaliation against a witness in an antitrust case is usually remote,
but the danger of economic retaliation of one form or another is very real.

7. In an ongoing antitrust grand jury investigation, this standard, or a variant of it, may be the
most important factor to consider in favor of a plea agreement, because a plea may lead to the
speedy resolution of other cases, including the filing of some which might never be made if the
case is tried, particularly if the defendant should be acquitted, or if the statute of limitations runs
out on other possible cases in the meantime.

8. In assessing the appropriate level of fine for a defendant, staff attorneys should consult with
the Corporate Finance Unit of EAG.

9. Some courts have held that the Rule applies only to statements made during formal plea
discussions. See Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir. 1983); United States v.
Ceballos, 706 F.2d 1198 (11th Cir. 1983).
10. See Appendix IX-1 for an exemplar.

11. The Second Circuit, the only circuit to address this issue, held that such statements may not
be used for impeachment. United States v. Lawson, 683 F.2d 688 (2d Cir. 1982).

12. Restitution will not normally be sought in antitrust cases. See ATD Manual IV-108 et seq.,
for a complete discussion of the Victim and Witness Protection Act.

13. Prosecutors Handbook at 46-47; see also Thornburgh Memorandum at 3-4.

14. Prosecutors Handbook at 47.

15. Id. at 49.

16. See § E.2., infra.

17. Some prosecutors believe that a grand jury that has been conducting an investigation is
entitled to see the fulfillment of its labors in the form of an indictment presented to it. Depending
upon the personality of the particular grand jury, an explanation that an information is legally the
same as an indictment, and that the information is as much the result of their efforts as an
indictment will minimize any bad reaction.

18. What follows is a discussion of, and examples based on plea agreements entered in cases
brought by the Division during the 1980's. These are samples only and should be modified as
needed to satisfy particular factual situations. In addition, the Criminal Fine Enforcement Act of
1984 (P.L. 98-596), which contains new fines and fine collection procedures and became
effective on January 1, 1985, applies to offenses committed on or after that date through October
31, 1987. The Comprehensive Crime Control Act of 1984 (P.L. 98-473), contains the Sentencing
Reform Act of 1984, which materially changes the sentencing procedures with respect to all
federal crimes, and which applies to offenses committed on or after November 1, 1987. The
Sentencing Reform Act was itself amended shortly after its effective date by the Sentencing Act
of 1987, Pub. L. No. 100-182 and the Criminal Fine Improvements Act of 1987, Pub. L. No.
100-185. The provisions of those Acts materially affect the sentencing process in the federal
courts, and necessitated revisions of, and additions to, the sentencing provisions in our plea
agreements, particularly with respect to the maximum sentence possible, the timing of the
payment of any fines imposed, the amount of interest on any unpaid balance and the collection
process in general. These Acts and any further revisions of them should be carefully reviewed
before drafting any plea agreement.

19. The staff should be aware that if a court rejects a plea agreement, it might permit the
defendant to withdraw his waiver of indictment. See generally United States v. I.H.
Hammerman, III, 528 F.2d 326 (4th Cir. 1975); United States v. Scavo, 593 F.2d 837 (8th Cir.
1979).

20. Ordinarily, when negotiating a pre-indictment plea agreement, we agree to forego indictment
and charge the defendant by the filing of a criminal information. However, if the staff prefers,
they can have the grand jury return an indictment against the defendant pursuant to a pre-
indictment plea agreement by simply changing the language of the first paragraph to provide that
the defendant will enter a guilty plea to an indictment as opposed to waiving indictment and
pleading to an information.

21. See 18 U.S.C. § 3612(f)(h).

22. But see § A.2.b. n.3., supra.

23. The language in this sentence is mandatory in agreed-upon "B" and straight "B" agreements
with corporations and simply states that the corporate defendant will not suggest that the court
order that which, under our view of the law, the court has no authority to order. See United
States v. John Scher Presents, Inc., 746 F.2d 959 (3d Cir. 1984); United States v. Wright
Contracting Co., 728 F.2d 648 (4th Cir. 1984); United States v. Prescon Corp., 695 F.2d 1236
(10th Cir. 1982).

24. Of course, the defendant should understand that if other crimes have been committed but not
disclosed to us, he may be subject to further prosecution for the undisclosed crimes.

25. If the staff wishes specifically to tie the individual's non-prosecution agreement to the faithful
performance of his obligation to cooperate, the following language can be added to paragraph 5
of the agreement:

In the event of a failure by the defendant to fulfill his obligations pursuant to paragraph 4 above, the
United States shall be relieved of its agreement under this paragraph not to further prosecute the
defendant.

However, the staff should consider whether such a provision may increase the impeachment
value of the plea agreement without actually enhancing the cooperation obtained.

26. The courts have traditionally relied by analogy on the principles of contract law in reviewing
and enforcing plea agreements. See Cooper v. United States, 594 F.2d 12, 15-16 (4th Cir. 1979).
It has been held that plea agreements in which third parties are beneficiaries of promises by the
Government are enforceable by the third-party beneficiaries. See United States v. C.F.W. Constr.
Co., 583 F. Supp. 197, 202-03 (D.S.C.), aff'd, 749 F.2d 33 (4th Cir. 1984). Such provisions
should be drawn to make the substantive offenses, time periods and geographic areas covered by
the protection as narrow as possible. (The United States Attorney for every covered geographic
area must be consulted prior to entering the agreement.) Generally, the Division gives non-
prosecution or immunity assurances only to those third parties who have demonstrated a specific
need for them through proffers or otherwise.

27. In appropriate circumstances, staff should consider including state or local agencies in this
provision.

28. See United States v. Wild, 551 F.2d 418 (D.C. Cir.), cert. denied, 431 U.S. 916 (1977);
United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843 (1965); United States
v. Levine, 658 F.2d 113 (3d Cir. 1981); United States v. Williams, 684 F.2d 296, 299-300 (4th
Cir. 1982), cert. denied, 459 U.S. 1110 (1983); Capone v. Aderhold, 65 F.2d 130 (5th Cir. 1933);
United States v. Franklin, 188 F.2d 182 (7th Cir. 1951); United States v. Akmakjian, 647 F.2d 12
(9th Cir.), cert. denied, 454 U.S. 964 (1981).

29. Benes v. United States, 276 F.2d 99 (6th Cir. 1960).

30. Waters v. United States, 328 F.2d 739 (10th Cir. 1964).

31. The Advisory Committee notes concerning this amendment may be found in West Publishing
Company's edition of the federal rules or at 97 F.R.D. 278.

32. United States v. Broce, 488 U.S. 563 (1989). Under very unusual circumstances, not likely to
occur in the antitrust context, constitutional objections may be raised after a guilty plea. See
Menna v. New York, 423 U.S. 61 (1975); Blackledge v. Perry, 417 U.S. 21 (1974).

33. The Division's Appellate Section should be consulted before entering into a conditional plea
agreement.

34. See § D., supra.

35. See Prosecutors Handbook at 42; see also 18 U.S.C. § 3553(b).

36. See Guidelines § 5K1.1.

37. Before presenting any plea agreement with a corporation to the court, the staff should obtain
a resolution of the board of directors approving the agreement and authorizing the corporate
representative signing the agreement to do so on behalf of the corporation and authorizing that
individual or counsel to enter a plea of guilty. This ensures that there will be no question later
about the validity of the agreement. Many judges require that such a resolution be made a part of
the record before accepting a corporate guilty plea tendered pursuant to a plea agreement.

38. See Advisory Committee Note to 1979 Amendment to Rule 11.

39. Santobello v. New York, 404 U.S. 257, 260 (1971).

40. United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir. 1980).

41. See, e.g., Cooper v. United States, 594 F.2d 12, 15-16 (4th Cir. 1979).

42. 404 U.S. at 262.

43. United States v. Bowler, 585 F.2d 851 (7th Cir. 1978).

44. Knight v. United States, 611 F.2d 918, 921 (1st Cir. 1979).
45. United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979).

46. United States v. Bowler, 585 F.2d 851, 856 (7th Cir. 1978).

47. United States v. Hammerman, 528 F.2d 326 (4th Cir. 1975).

48. United States v. Runck, 601 F.2d 968, 970 (8th Cir. 1979), cert. denied, 444 U.S. 1015
(1980).

49. Correale v. United States, 479 F.2d 944 (1st Cir. 1973).