Federal Rule 6 Violations in Colorado
| Publication year | 1984 |
| Pages | 2240 |
1984, December, Pg. 2240. Federal Rule 6 Violations in Colorado
So reads the first clause of the Fifth Amendment to the U.S. Constitution. A crime is "capital or infamous"---a felony---if the maximum punishment prescribed by statute is greater than one year. Thus, every felony criminal charge in federal court must be brought by a grand jury indictment. From this stilted language, Rule 6 of the Federal Rules of Criminal Procedure ("F.R.Cr.P.") has evolved. Rule 6 regulates in detail all matters concerning the functioning of the grand jury, from its summoning and numerical composition through to its discharge.
Recently, Colorado's federal judges have been called upon to interpret key provisions of Rule 6 regarding secrecy and disclosure. This article focuses on these provisions and the recent decisions interpreting them.
The grand jury originally developed in England in response to oppressive and arbitrary conduct by the King against his subjects. For centuries, the grand jury served both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against the unfounded wrath of the King.(fn1) The grand jury's historic functions survive to this day, though not without some criticism.(fn2)
To function effectively, the grand jury must be imbued with a high degree of secrecy. Thus, Rule 6(e)(2) provides:
Most of the litigation concerning grand jury proceedings arises from claims that the rule of secrecy was breached in some way. Of course, where there is a rule, there are exceptions. The exceptions are set forth in Rule 6(e)(3) as follows:General rule of secrecy. 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 shall be made under Para. (3)(A)(ii) shall not disclose matter 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 contempt of court.
(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and a vote of any grand juror, may be made to---
(i) An attorney for the government for use in the performance of such attorney's duty; and
(ii) Such government personnel as are deemed necessary by the attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law.
(B) Any person to whom matters are disclosed under Para. (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 empaneled the grand jury whose material has been disclosed, with the names of the persons to whom such disclosure has been made.
(C) Disclosure otherwise prohibited by this rule of matter 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;
(ii) When permitted by a Court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury; or
(iii) When the disclosure is made by an attorney for the government to another federal grand jury.
The Tenth Circuit case of United States v. Tager,(fn3) can be thought of as the seminal case concerning a breach of grand jury secrecy.(fn4) In Tager, an auto insurance mail fraud scheme was uncovered by a private insurance investigator, who referred the case to federal postal inspectors. The government moved for disclosure to the private investigator of certain grand jury materials to enable him further to assist in the grand jury investigation. The motion was brought under Rule 6(e)(3)(C)(i)(fn5) and sought disclosure "when so directed...
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