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March 1999 Informal Opinion By Marc N. Garber; Nina Marino Violations of Grand Jury Secrecy May Result in More Than Just Contempt Marc N. Garber is an Assistant United States Attorney for the District of Nevada in Las Vegas, specializing in health care fraud. Nina Marino is a criminal defense attorney specializing in complex white-collar litigation and is a partner in the firm of Kaplan Marino in Beverly Hills, CA. The views expressed in this column are exclusively those of the authors and not the United States Department of Justice or the United States Attorney's Office for the District of Nevada. For the past few months, Independent Counsel Kenneth Starr’s potential violations of grand jury secrecy have been in and out of the news.1 On the matter of punishment, little has been said except that Starr and his staff may be charged with contempt2 and face up to six months’ imprisonment.3 In fact, leaking by a prosecutor may constitute a felony under Title 18, punishable by up to five years in prison and a $250,000 fine. Rule 6(e) functions to protect both the integrity of the investigative process and a defendant’s constitutional right to a fair trial.4 However, if a prosecutor purposely manipulates the rule’s veil of secrecy by leaking evidence to gain a tactical advantage, for self-enrichment, to cause embarrassment, or out of shear malice, then he has willfully misused grand jury information in a manner no court or jury should excuse.5 Because grand jury information is government property, its intentionally unauthorized use by a wayward prosecutor — no less than a grand juror6 or agent7 — could violate 18 U.S.C. § 641, which criminalizes the theft of any thing of value to the United States. Conversion of Government Property Section 641 punishes anyone who “knowingly converts to his use or the use of another, or without authority . . . any . . . thing of value to the United States. . . .” Any prosecution under this statute for leaking grand jury evidence raises at least three questions. First, whether the leaked material — matters occurring before the grand jury — constitute “any thing of value” to the United States. Second, whether leaking falls within § 641’s proscription against knowing conversions. Third, whether Rule 6(e)’s contempt provision serves as the exclusive remedy for policing breaches of grand jury secrecy. Not surprisingly, grand jury transcripts constitute property covered by §641.8 More important, the intangible information presented to the grand jury reflected in those transcripts also constitute “any thing of value” under § 641.9 Furthermore, the Supreme Court has said conversion under § 641 covers a vast expanse, including conversions not wrongful in the initial possession — such as a prosecutor’s receipt of grand jury material. In Morissette v. United States,10 the Court held that “[c]onversion may include . . . use in an unauthorized manner or to an unauthorized extent of property placed in one’s custody for limited use.”11 A prosecutor has custody of matters occurring before the grand jury for the singularly limited purpose of enforcing the criminal laws;12 grounds for disclosure are exceedingly narrow.13 Any disclosure at odds with this rule is unauthorized. Any intentional disclosure knowingly in violation of this rule is a conversion under § 641.14 Exclusivity of Contempt The final issue concerns the exclusivity of the contempt remedy in Rule 6(e), which may be either civil or criminal.15 Insofar as a Rule 6(e) action is treated as one for civil contempt, such sanctions are viewed as “forward-looking and prophylactic” designed to plug the leaks.16 Civil contempt, by its very definition, is not designed to punish the wrongdoer but to compel compliance with some rule or edict.17 Moreover, nothing in the rule itself or its commentary suggests contempt is intended to be an exclusive remedy.18 Thus, a criminal contempt prosecution offers simply an alternative means of punishment. Indeed, at least one court has endorsed the prosecution of a grand juror — someone subject to the same rule of non-disclosure as a prosecutor and agent — under the catch-all obstruction and conspiracy statutes for leaking grand jury information.19 Contempt, it seems, is not exclusive. Prosecuting the Prosecutor Should Kenneth Starr and his staff — or any prosecutor who appears to have leaked — be investigated by a grand jury and ultimately prosecuted under § 641?20 The answer lies in the intersection of two basic principles. First, those who wield the awesome power to investigate federal crimes with the aid of grand jury subpoenas and all the other tools at a prosecutor’s fingertips must exercise their discretion in a sound and judicious manner. Second, as in any criminal matter, the evidence — including the impact of the leak, the leaker’s motivation, the status of the underlying investigation, and Department of Justice Policy governing grand jury disclosures21 — in its totality and in proportion to the crime of leaking itself must guide the investigation.22 At bottom, a prosecutor who intentionally leaks engages in a form of prosecutorial misconduct that not only may compromise a defendant’s right to a fair trial, but penalize the interests of the United States in a successful prosecution.23 Such an abuse may in the appropriate case demand the sanction of a full-blown felony prosecution under § 641. Prosecutors, no less than Presidents, should not stand above the law. Notes 1. Grand jury secrecy is guaranteed by Rule 6(e)(2) of the Federal Rules of Criminal Procedure, which states in relevant part: “[A]n attorney for the government . . . shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. . . . A knowing violation of Rule 6 may be punished as a contempt of court.” Because the independent counsel is “an attorney for the government,” he and his staff are subject to the secrecy requirements of Rule 6(e). In re: Sealed Case No. 98-3077, 151 F.3d 1059, 1062, n.2 (D.C. Cir. 1998). 2. Id. at 1073 n. 15 (Rule 6(e) includes “civil contempt sanction”); Barry v. United States, 865 F.2d 1317, 1324 n. 6 (D.C. Cir. 1989) (contempt under Rule 6(e)(2) contemplates both criminal and civil penalties); United States v. Smith, 817 F.2d 24 (6th Cir. 1987) (DEA agent prosecuted for criminal contempt under 18 U.S.C. § 401 for unauthorized disclosure of grand jury materials). 3.18 U.S.C. § 402 (imprisonment for criminal contempt shall not exceed six months). 4. United States v. Midland Asphalt Corp., 840 F.2d 1040, 1046 (2d Cir. 1988), aff’d, 489 U.S. 794 (1989) (“Rule 6(e) safeguards the interests of society and of the defendant in receiving a fair trial”). 5. A prosecutor stands in a position of trust in the criminal justice system which cautions that while he may strike a hard blow, he may not strike a foul one. Berger v. United States, 295 U.S. 78 (1935). 6. Grand jurors who have sought to profit from the disclosure of secret grand jury proceedings have been successfully prosecuted. E.g., United States v. Brenson, 104 F.3d 1267 (prosecution for conspiracy and obstruction of justice), reh’g denied, 113 F.3d 1253 (11th Cir.), cert. denied, 118 S. Ct. 214 (1997). 7. Agents who have knowingly violated Rule 6(e)(2) have been prosecuted for criminal contempt. United States v. Smith, 817 F.2d 24 (6th Cir. 1987). 8. United States v. Friedman, 445 F.2d 1076, 1087 (9th Cir.), cert. denied, 404 U.S. 958 (1971). 9. Id.; see United States v. Procter & Gamble Co., 356 U.S. 677, 684-85 (1958) (Whittaker, J., concurring) (information generated by a grand jury’s inquiry is “not the property of the Government’s attorneys, agents or investigators . . . [but] [i]nstead, those documents are records of the court”); Brown v. United States, 359 U.S. 41, 49 (1959) (“it [the grand jury] remains an appendage of the court”); see also U.S. Const. art III, § 1 (discussing the judicial power of the United States). 10. 342 U.S. 246 (1952). 11. Id. at 271. 12. Fed. R. Crim. P. 6(e)(3)(A)(i-ii) (secret grand jury material may be disclosed to “an attorney for the government for use in the performance of such attorney’s duty . . . to enforce federal criminal law”). 13. Fed. R. Crim. P. 6(e)(3)(A) & (C). 14. Morissette, 342 U.S. at 271 (§ 641 does not “punish unwitting conversions”). 15. Barry v. United States, 865 F.2d 1317, 1324 n. 6 (D.C. Cir. 1989) (contempt under Rule 6(e)(2) contemplates both criminal and civil penalties). 16. Id. 17. See id. at 1070 (“a Rule 6(e)(2) civil action is . . . designed to be a supplementary means of enforcing the rules of a criminal proceeding). 18. Compare United States v. Askari, 140 F.3d 536, 548 n. 16 (3d Cir. 1998) (en banc) (“In 1986 Congress amended 18 U.S.C. § 2113(a) to expressly cover extortion directed at federal insured banks and make it the ‘exclusive provision for prosecuting bank extortion.’”) (quoting H.Rep. No. 99-797, at 33); United States v. Richardson, 8 F.3d 15 (9th Cir. 1993) (Congress made clear its intention to limit the application of the general false statement statute by another statute applicable only to false statements to the Department of Labor to obtain disability benefits under the Federal Employees Compensation Act). 19. United States v. Brenson, 104 F.3d 1267, reh’g denied, 113 F.3d 1253 (11th Cir.), cert. denied, 118 S. Ct. 214 (1997). 20. An obstruction of justice prosecution under 18 U.S.C. § 1503 offers an alternative basis for prosecution as well, but demands proof of a corrupt purpose which may make its application substantially less inviting than § 641. 21. USAM § 1.7000, et seq. (discussing media relations, including the propriety of disclosing investigative material, whether or not covered by Rule 6(e)). 22. It may be that a critical source of evidence is the journalist who reported the leak. No First Amendment privilege protects a reporter from having to disclose a source to the grand jury. See Branzburg v. Hayes, 408 U.S. 665 (1972). Of course, insofar as the journalist may have criminal exposure for receiving leaked information under § 641’s receiving-stolen-property clause, the Fifth Amendment’s privilege against self-incrimination would apply and prompt a grant of immunity. 23. In United States v. Coughlin, 842 F.2d 737 (4th Cir. 1988), the court affirmed the suppression of illegally-leaked grand jury evidence.
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