Judge Rebukes U.S. Attorney’s Office for EDNY for Overstating Secrecy Obligations

Published On January 20, 2016 | By Brett Weinstein | General

A district court judge rebuked the United States Attorney’s Office for the Eastern District of New York for sending grand jury witness subpoenas with misleading language directing the recipient not to disclose the existence of the subpoena. Although the Court did not suppress evidence gleaned from such subpoenas, the judge warned the government to ensure it does not use such language in the future.

Federal Rule of Criminal Procedure 6(e)(2), prohibits imposing secrecy obligations on those taking part in grand jury proceedings, except as provided in the Rule. Under the Rule, grand jury witnesses are not required to keep grand jury subpoenas secret. Nonetheless, subpoenas issued by the United States Attorney’s Office for the Eastern District of New York demanded that grand jury witnesses not disclose the existence of their subpoenas. Included in many of its subpoenas to witnesses was language stating:

YOU ARE HEREBY DIRECTED NOT TO DISCLOSE THE EXISTENCE OF THIS SUBPOENA, AS IT MAY IMPEDE AN ONGOING INVESTIGATION.

Unrepresented grand jury witnesses had no indication that this request carried no judicial authority.

The defendants in the case sought to exclude all evidence obtained by the government through its use of grand-jury subpoenas with the improper non-disclosure language. The judge ordered the government to “file a report detailing: (1) how extensively this or similar language has been used in grand jury subpoenas by the United States Attorney’s Office, (2) what training or procedures the Office has initiated to review grand jury subpoenas, and (3) what steps the Office has taken to ensure that similar language is not used in the future, absent specific judicial authorization.”

In response, the government admitted that its use of the non-disclosure language was improper, but stated that usage of such language was not the practice and policy of the office, and the inclusion of such language was inadvertent and unintentional. Rather, the government claimed that they “instruct[] that non-disclosure may not be imposed on a grand jury witness absent statutory authority or judicial order. The government stated that absent such legal authority, the Office’s policy has been to include a request, not a command, for non-disclosure.” The government directed all Assistant United States Attorneys not to include requests for non-disclosure on the face of subpoenas; instead, such requests must be made in a separate cover letter to “avoid any appearance that such language carries with it judicial authority.”

The judge made clear that “the government’s improper directions to subpoena recipients are cause for serious concern.” Nonetheless, the judge did not suppress the evidence, stating “Defendants have not identified, nor has the Court, any precedent for granting suppression under these facts, and the Court finds that suppression here is not supported by law and is not warranted.” Sending letters to the subpoena recipients informing them that disclosure is not prohibited was a sufficient remedy. However, the judge stated, “now that the government is unambiguously on notice of this problem and the need to correct it, continued violations could well warrant severe remedies.”

Additionally, the judge stated that in its “disappointing response” to the Court’s initial order, the government failed to “explain, in specific terms, how it will ensure compliance with its policy moving forward, and it has yet to reassure the Court that it has adequately conveyed the seriousness of this issue to all of its AUSAs. The government proceeds at its peril.” With the government so sternly warned, it is clear that subpoenas issued to grand jury witnesses must not include non-disclosure language, and, at least in the Eastern District of New York, ignoring this command may lead to evidence suppression or other extraordinary remedies.

Recipients of grand jury witness subpoenas should follow-up with the issuing attorney or the recipient’s own attorney to determine whether non-disclosure language is a request or a binding requirement, and should be skeptical of such demands made in subpoenas not accompanied by a court order.

Photo by Isaac Araguim from Flickr

About The Author

Brett works with ZwillGen attorneys on a variety of matters, including law enforcement compliance, FTC investigations, fantasy sports, U.S.-EU Safe Harbor issues, and other data privacy issues. Prior to joining ZwillGen, Brett externed at the ACLU of Missouri from January through May 2015, where he researched and assisted with litigation. During the summer in 2014, Brett interned at the Berkman Center for Internet and Society at Harvard, where he worked on a project to facilitate sharing social science research data while incorporating privacy protections.

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