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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

STUART A. McKEEVER, Pro Se,
v.
ERIC HOLDER, Attorney General
Defendant.

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DEPARTMENT OF JUSTICE’S OPPOSITION TO PETITIONER’S MOTION FOR
RELEASE OF GRAND JURY MATERIAL IN THE MATTER OF UNITED STATES v.
JOHN JOSEPH FRANK, No. 493-57 (D.D.C. 1957, 1959)
INTRODUCTION
Petitioner Stuart McKeever, an author researching a book about the disappearance of
Basque refugee and Columbia University professor Jesus de Galindez, seeks grand jury records
from the 1957 case of United States v. John Joseph Frank (a/k/a “John Kane”), No. 493-57
(D.D.C. 1957). See Motion for Release of Grand Jury Testimony (“Motion” or “Petition”), ¶¶
5-6. Frank was indicted and, after a trial, convicted, on four counts of violating the Foreign
Agents Registration Act of 1938, 22 U.S.C. §§ 612, 618 (“FARA”). Id. at ¶8. Specifically, the
government showed that Frank failed to register as an agent acting on behalf of the Dominican
Republic and its then-dictator Rafael Trujillo. Despite suspicions that Frank was connected to the
disappearance and presumed murder of Galindez, Frank was never charged with that crime.
Indeed, Frank’s initial conviction under FARA was reversed because the court of appeals found
that the prosecutor’s statements implying a connection with Galindez’s disappearance were
unduly prejudicial under Federal Rule of Evidence 403. See John Joseph Frank v. United States,
262 F.2d 695 (D.C. Cir. 1958).
Voluminous records regarding the investigation and trial of Frank, including the trial

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transcript, reside at the National Archives (“NARA”) and are open for public inspection. The
grand jury material, however, remains sealed. Mr. McKeever, through this action, seeks to unseal
the entirety of grand jury’s investigation, comprising thousands of pages of documents and
numerous witnesses. His petition should be denied.
As an initial matter, no provision of Criminal Rule 6(e) allows for the disclosure of grand
jury information to the public on the basis of historical interest, and the Supreme Court has
rejected reliance on a court’s inherent authority to circumvent the rules of criminal procedure.
Recognizing that this court has ruled otherwise, however, Mr. McKeever’s petition should still be
rejected as a matter of discretion. The Frank case does not rise to the level of exceptional historic
significance in the same way as, for example, President Nixon’s testimony in connection to
Watergate. The petition at issue seeks the wholesale release of grand jury records based on
nothing more than the age of the records and historical interest in the subject matter as evidenced
by the records’ accession into the National Archives for permanent retention. But the very
proposition that petitioner advocates – the opening of grand jury records held by NARA after a
term of years – was recently rejected by the Criminal Rules Committee as a proposal of such
magnitude that it should be addressed, if at all, through congressional action. No such legislation
has been enacted, and nothing distinguishes this request from any other request for historical grand
jury records. Accordingly, Mr. McKeever’s petition should be denied.
ARGUMENT
I.

NO STATUTE OR RULE PROVIDES FOR RELEASE OF GRAND JURY
INFORMATION FOR REASONS OF HISTORICAL INTEREST
The Supreme Court has repeatedly emphasized the unique importance of the federal grand

jury. The grand jury serves the “dual function of determining if there is probable cause to believe

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that a crime has been committed and of protecting citizens against unfounded criminal
prosecutions.” Branzburg v. Hayes, 408 U.S. 665, 686-687 (1972) (footnote omitted).

See

generally U.S. v. Sells Engineering, 463 U.S. 418, 423-24 (1983). The proper functioning of the
grand jury system depends upon the secrecy of the proceedings. As the Supreme Court has
explained:
[I]f preindictment proceedings were made public, many prospective witnesses
would be hesitant to come forward voluntarily, knowing that those against whom
they testify would be aware of that testimony. Moreover, witnesses who appeared
before the grand jury would be less likely to testify fully and frankly, as they would
be open to retribution as well as to inducements. There also would be the risk that
those about to be indicted would flee, or would try to influence individual grand
jurors to vote against indictment. Finally, by preserving the secrecy of the
proceedings, we assure that persons who are accused but exonerated by the grand
jury will not be held up to public ridicule.
Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979) (footnotes and
citation omitted); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399-400.
Accordingly, “[b]oth Congress and this Court have consistently stood ready to defend [grand jury
secrecy] against unwarranted intrusion. In the absence of a clear indication in a statute or Rule,
we must always be reluctant to conclude that a breach of this secrecy has been authorized.” Sells
Engineering, 463 U.S. at 425 (internal quotations omitted) (emphasis added).
In this case, there is no “statute or Rule,” id, that provides for unsealing the grand jury
materials that the petitioner seeks. Rule 6(e) mandates that enumerated categories of individuals
maintain grand jury secrecy “[u]nless these rules provide otherwise.” Fed. R. Crim. P. 6(e)(2)(B).
Rule 6(e)(3)’s exceptions to grand jury secrecy apply only to the government, with the exception
of two. See Fed. R. Crim. P. 6(e)(3)(A)-(E). Those subparts provide as follows:
(E) The Court may authorize disclosure - at a time, in a manner, and subject to any
other conditions that it directs - of a grand jury matter:

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(i) preliminarily to or in connection with a judicial proceeding; 1
(ii) at the request of a defendant who shows that a ground may exist to dismiss the
indictment because of a matter that occurred before the grand jury.
Fed. R. Crim. P. 6(e)(3)(E). Neither of these provisions permits petitioner access to the grand
jury information he requests.
Nor should the court look beyond the text of Rule 6(e). See United States v. McDougal,
559 F.3d 837 (8th Cir. 2009) (there is no common law right of access to grand jury materials and
courts may not fashion a disclosure order in the absence of a recognized exception in Rule 6(e)
(internal citations omitted)). Rule 6(e) was enacted by Congress and has all the force and effect of
a statute. See Fund for Constitutional Gov’t v. National Archives and Records Services, et al, 656
F.2d 856, 867 (D.C. Cir. 1981) (reviewing legislative history of Rule 6(e)). There is no ambiguity
with respect to Rule 6(e)’s exceptions to secrecy. Rule 6(e)(3) does not contain the word
“including” before the list of exceptions, and it contains no language that would indicate that the
list of exceptions was illustrative or subject to the court’s discretion. Fabi Constr. Co. v. Sec’y of
Labor, 508 F.3d 1077, 1087 (D.C. Cir. 2007); United States. v. Novak, 476 F.3d 1041, 1049 n.9
(D.C. Cir. 2007) (“our case law dictates that when Congress provides a list of exceptions in a
statute, that list is presumed exclusive.”)
Where, as here, the language of a statute is plain and unambiguous, “the sole function of
the courts is to enforce it according to its terms.” United States v. Ron Pair Enterprises, 489 U.S.
235, 241 (1989), quoting Caminetti v. United States, 242 U.S. 470, 485 (1917). Accordingly,
1

The judicial proceeding mentioned in Rule 6(e)(3)(E)(i) does not refer to the proceeding brought
for the purpose of obtaining disclosure. Instead, “the focus is on the actual use to be made of the
material. If the primary purpose of the disclosure is not to assist in preparation or conduct of a
judicial proceeding, disclosure ... is not permitted.” United States v. Baggot, 463 U.S. 476, 480
(1983) (emphasis in original).
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because there exists no statutory authority for disclosing grand jury material based solely on
historical interest, the petitioners’ request must be denied.
II.

SECOND CIRCUIT LAW RECOGNIZING HISTORICAL SIGNIFICANCE AS A
SPECIAL CIRCUMSTANCE JUSTIFYING DISCLOSURE IS FLAWED AND
CONTRARY TO THE WEIGHT OF SUPREME COURT LAW
Mr. McKeever urges the court to exercise its “inherent authority” to release the grand jury

material, reciting the multi-factor test developed by the Second Circuit law and adopted in this
Court’s decision in In re Petition of Kutler, 800 F. Supp. 2d 42 (D.D.C. 2011). The government
respectfully submits that the Second Circuit erred in concluding that historical significance is an
exceptional circumstance that may justify departure from the plain language of Rule 6(e). 1
A. The Development of the Second Circuit’s “Historical Significance” Exception
The Second Circuit first recognized a non-textual exception to the rule of grand jury
secrecy in In re Biaggi, 478 F.2d 489 (2d Cir. 1973). That case involved an appeal from an order
granting the motion of the United States Attorney for the Southern District of New York to
publicly disclose the grand jury testimony of Mario Biaggi, then a member of the House of
Representatives and a candidate in the Democratic primary for nomination for mayor of New York
City. See 478 F.2d at 490. The United States Attorney’s motion was occasioned by Biaggi’s
public statements that he sought to air his grand jury testimony to refute allegations that he had
asserted his Fifth Amendment right against self-incrimination in response to several questions
posed by the grand jury regarding his personal finances. See id. Biaggi did not contest the
release of his testimony in general, but objected to the portion of the district court’s order directing

1

The Department recognizes that this Court has held otherwise in In re Petition of Kutler, supra,
and in response to subsequent petitions for the release of Watergate related grand jury materials.
We repeat here the argument against the use of inherent authority in order to preserve fully the
issue for any future appeal.
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that such materials be “redacted so as not to reveal the names of other persons or businesses
mentioned therein.” Id. Biaggi asserted that such redactions would lead “to endless speculation
about the blanked out names, and would perhaps involve him in libel suits were he to reveal such
names himself.” See id. at 490-91. In assessing the appropriateness of the district court’s order
directing disclosure of Biaggi’s grand jury testimony, the Court began its analysis by noting that
none of the exceptions codified in Rule 6(e) was applicable. See id. at 492. Moreover,
commenting on the public intrigue surrounding the matter, the Court observed that “[n]o matter
how much, or how legitimately, the public may want to know whether a candidate for high public
office has invoked the privilege against self-incrimination before a grand jury, or has lied about
having done so, that interest must generally yield to the larger one of preserving the salutary rule
embodied in Rule 6(e).” Id. at 493.
Nonetheless, the Court affirmed the district court’s decision, holding that Rule 6(e) does
not impose an absolute limit on a district court’s exercise of its “sound discretion,” and that
grand jury materials may be released outside the specific confines of Rule 6(e) when “the special
circumstances” of the case warrant. Id. at 494. The Court found that “special circumstances”
were present, given that both Biaggi and the government had waived any protections/benefits
owing under Rule 6(e) by requesting disclosure to address an issue of significant public
importance, and that “the interests of the grand jurors [would] not be affected” because “they
asked no questions and their names could be redacted if they had.” Id. Finally, the Court noted
that the privacy interests of those individuals mentioned in Biaggi’s testimony could be
accommodated through redaction, which the district court had ordered. See id.
Years later, the Second Circuit extended In re Biaggi to find that historical significance,

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standing alone, may constitute an exceptional circumstance. See In re Petition of Craig, 131 F.3d
99 (2d Cir. 1997). In Craig, the district court denied the application of Bruce Craig, then a
doctoral candidate at American University, for an order directing the release of grand jury records
pertaining to Harry Dexter White, a former Assistant Secretary of the Treasury who had been
accused of being a Communist spy. See 942 F. Supp. 881, 882 (S.D.N.Y. 1996). Although the
petitioner conceded that none of the exceptions to grand jury secrecy applied, he argued that the
significant historical and public interest in the grand jury records justified their disclosure pursuant
to the court’s “inherent supervisory authority” over grand juries. Id. at 882. The district court
disagreed, distinguishing prior cases in which historians had been granted access to grand jury
records regarding accused Soviet spies, and noting that “if courts granted disclosure whenever the
public had an interest in grand jury proceedings, Rule 6(e) would be eviscerated.” Id. at 883. 2
In upholding the district court’s decision, the Second Circuit reaffirmed and expounded on
the Biaggi “special circumstances” rationale. See 131 F.3d at 101-04. The Second Circuit
concluded that the disclosure of grand jury materials pursuant to the “special circumstances”
exception is consistent with the broad discretion vested in courts regarding matters of grand jury
secrecy, and that Rule 6(e) is not a straightjacket on the exercise of such discretion. See id. at 102.
Although cautioning that disclosure under the “special circumstances” exception is warranted only
if the movant satisfies a “burden . . . greater” than the “particularized need” standard governing
requests pursuant to one of Rule 6(e)’s enumerated exceptions, see id. at 104-06 & n.10 (emphasis
2

For example, the district court noted that, although “ the court granted a scholar’s request to
disclose the grand jury testimony of a public official accused of being a Communist spy,” in In
re Petition of May, No. M 11-189 (S.D.N.Y. Jan. 20, 1987) (unpublished), “it did so only because
the conduct of the grand jury had been the subject of litigation, and there had already been
extensive prior disclosure of the grand jury proceedings.” In re Craig, 942 F. Supp. at 883 (internal
marks omitted).
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added), the Second Circuit held that, in an appropriate case, “historical or public interest alone
could justify the release of grand jury information.” Id. at 105.
The Court then enumerated a non-exhaustive list of factors “that a trial court may
consider when confronted with these highly discretionary and fact-sensitive ‘special
circumstances’ motions,” which include:
(i) the identity of the party seeking disclosure; (ii) whether the defendant to the
grand jury proceeding or the government opposes the disclosure; (iii) why
disclosure is being sought in the particular case; (iv) what specific information is
being sought for disclosure; (v) how long ago the grand jury proceedings took
place; (vi) the current status of the principals of the grand jury proceeding and that
of their families; (vii) the extent to which the desired material -- either permissibly
or impermissibly -- has been previously made public; (viii) whether witnesses to
the grand jury proceedings who might be affected by disclosure are still alive; and
(ix) the additional need for maintaining secrecy in the particular case in question.
Id. at 106. Elaborating on these factors, the Court observed that both the identity of the requestor
and the position of the government should be accorded “great weight.” See id. at 106.
In In re American Historical Ass’n, 49 F. Supp. 2d 274 (S.D.N.Y. 1999), the district court
applied the holding of In re Craig in connection with grand jury records relating to the prosecution
of Alger Hiss. See 49 F. Supp. 2d at 277-78. Although petitioners admitted that their request was
not rooted in any exception to grand jury secrecy enumerated in Rule 6(e), they argued that the
manifest historical importance of the materials justified disclosure. Id. at 283. Over the
government’s objection that there was no “historical interest” exception to the secrecy
requirements in Rule 6(e), the district court noted that it was “bound by Craig’s holding,” and it
ordered the documents released. 3

3

Another judge of the same district court subsequently granted a petition to unseal grand jury
minutes and transcripts relating to the indictments of Julius and Ethel Rosenberg, and Abraham
Brothman and Miriam Moskowitz. In re Petition of National Security Archive, et al.,
08-civ-6599 (S.D.N.Y.) (Summary Order, Aug. 26, 2008). In addition to this Court, at least one
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To date, the Second Circuit is the only court of appeals to find that historical significance
alone may be sufficient reason to depart from the plain language of Rule 6(e). 4 As noted above,
this Court agreed with the Second Circuit’s analysis in determining to release President Nixon’s
grand jury testimony from 1974. 2 In re Petition of Kutler, supra; see also In re Shepard, 800 F.
Supp. 2d 37 (D.D.C. 2011) (applying balancing test).
B.

The Supreme Court Has Rejected the Use of Inherent Authority to
Circumvent The Plain Language of the Federal Rules

The Supreme Court has not squarely addressed whether a district court’s authority to
disclose grand jury materials is cabined by Rule 6(e). Nevertheless, the Supreme Court has made
clear, subsequent to In re Biaggi and In re Hastings, that neither “inherent supervisory power” nor
district court in the Middle District of Tennessee, citing to the Second Circuit, has also permitted
the disclosure of grand jury information for reasons of historical interest. In re Petition of Tabac,
No. 3:08-mc-0243, 2009 WL 5213717 (M.D. Tenn. Apr. 14, 2009) (ordering disclosure of grand
jury minutes relating to Jimmy Hoffa).
4

Other courts have held or suggested in dicta that trial judges may rely on inherent authority to
depart from the strictures of Rule 6(e) in extraordinary circumstances. See, e.g., In re Petition to
Inspect and Copy Grand Jury Materials (In re Hastings), 735 F.2d 1261 (11th Cir. 1984); In re
Special February, 1975 Grand Jury, 662 F.2d 1232, 1236-37 (7th Cir.1981) (noting in dicta that
“we may not always be bound by a strict and literal interpretation of Rule 6(e)” but reversing
district court order disclosing grand jury information outside strictures of Rule 6(e)), aff’d sub nom
United States v. Baggot 463 U.S. 476 (1983) (relying on an enumerated exception to Rule 6(e)); In
re Report and Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence
to the House of Representatives, 370 F. Supp. 1219, 1227-1230 (D.D.C. 1974), aff’d 501 F.2d 714
(1974); United States v. Aisenberg, 358 F.3d 1327, 1350 (11th Cir. 2004); But see In re Special
Grand Jury 89-2, 450 F.3d 1159, 1178 (10th Cir. 2006) (citing cases and noting that Supreme Court
has not endorsed the inherent authority theory); United States v. Velez, 344 F. Supp. 2d 329, 330
(“The First Circuit has never held that courts have the authority to order disclosure of grand jury
materials in situations that do not fall within any of the exceptions contained in Rule 6(e)(3), and
there is a strong presumption against courts exercising such authority.”); In the Matter of
Electronic Surveillance, 596 F. Supp. 991, 1001 (E.D. Mich.) (“In light of Baggot, the Eleventh
Circuit’s reliance on the inherent powers doctrine is suspect.”), abrogated on other grds, In re
Grand Jury 89-4-72, 932 F.2d 481 (6th Cir. 1991).
2

The government did not appeal this Court’s decision. Following the decision, the Attorney
General proposed an amendment to Criminal Rule 6(e) that would provide textual authority for the
disclosure of certain archival grand jury records. That proposal was not adopted.
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policy considerations provide a basis to circumvent or contravene the specific language of the
Federal Rules of Criminal Procedure. Carlisle v. United States, 517 U.S. 416, 426-28 (1996);
United States v. Williams, 504 U.S. 36, 46-47 (1992); Bank of Nova Scotia v. United States, 487
U.S. 250, 254-55 (1988); United States v. Baggot, 463 U.S. 476, 477 (1983) (“The provision in
(C)(i) that disclosure may be made ‘preliminarily to or in connection with a judicial proceeding’ is,
on its face, an affirmative limitation on the availability of court-ordered disclosure of grand jury
materials”); 1 Charles A. Wright and Andrew D. Leipold, Federal Practice and Procedure § 106
(4th ed. 2013) (“The Supreme Court has suggested that there is no authority beyond what is granted
by Rule 6, and has made it clear that courts have no sweeping supervisory power over grand
juries.”).
In the years following the passage of Rule 6(e), the Supreme Court stated clearly that
disclosures of grand jury material must come within one of the enumerated statutory exceptions.
In an antitrust conspiracy case, for example, the Court upheld the trial court’s refusal to allow a
defendant to inspect the grand jury minutes of a government witness. In so holding, the Court
stated that, “[p]etitioners concede, as they must, that any disclosure of grand jury minutes is
covered by Fed. Rules Crim. Proc. 6(e) promulgated by this Court in 1946 after the approval of
Congress.” Pittsburgh Plate Glass Co., 360 U.S. 395, 398-99 (1959). The Court went on to
explain that, within the enumerated exceptions to grand jury secrecy, trial judges may exercise
their discretion to release grand jury information, so long as the defendant shows a “particularized
need” for the information that outweighs the policy of secrecy. Id. at 400; Douglas Oil, 441 U.S.
at 222 (articulating standard for obtaining court-ordered release of grand jury transcripts “under
Rule 6(e)”); Sells Engineering, 463 U.S. at 443 (same). In United States v. Baggot, supra, the

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Court described subsection 6(e)(3)(C)(i) as “an affirmative limitation on the availability of
court-ordered disclosure of grand jury materials.”
A court’s discretion to determine – within the confines of Rule 6(e) – whether a petitioner
has established a particularized need for grand jury information, does not translate into the power
to exercise “inherent supervisory authority” to circumvent entirely the strictures of a Federal
Criminal Rule. In Bank of Nova Scotia, 487 U.S. 250 (1988), the Supreme Court held that a court
may not invoke its supervisory power to circumvent the harmless error standard of Federal
Criminal Rule 52(a). Indeed, “federal courts have no more discretion to disregard the Rule’s
mandate than they do to disregard constitutional or statutory provisions.” Bank of Nova Scotia, 487
U.S. at 254-55; accord United States v. John Doe, Inc. I, 481 U.S. 102, 109-110 (1987) (the plain
language of rules may not be ignored in favor of policy arguments). Federal Rule of Criminal
Procedure 52, the Court found, was “in every pertinent respect, as binding as any statute duly
enacted by Congress.” Id. at 255.
Similarly, in Carlisle v. United States, 517 U.S. 416 (1996), the Supreme Court considered
the question of whether a trial judge could grant an untimely Rule 29 motion for acquittal, or
alternatively, sua sponte enter a judgment of acquittal under its inherent authority. Although
Carlisle recognized that courts may, “within limits, formulate procedural rules not specifically
required by the Constitution or Congress,” Carlisle, 517 U.S. at 426, quoting United States v.
Hastings, 461 U.S. 499, 505 (1983) (emphasis added), it added that courts may not exercise their
supervisory powers in such a way as to conflict with a federal statute or rule. Id. Moreover, the
Supreme Court has severely circumscribed the ability of courts to rely on their supervisory powers
at all in the context of grand juries. “Hastings and the cases that rely upon the principle it

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expresses, deal strictly with the courts’ power to control their own procedures.” United States v.
Williams, 504 U.S. 36, 45-46 (1992) (emphasis in original). “Because the “grand jury is an
institution separate from the courts, over whose functioning the courts do not preside, ... no such
‘supervisory’ judicial authority exists.” Williams, 504 U.S. at 47.
Regardless of the scope of a trial court’s inherent power, however, the Supreme Court in
Carlisle was unwaveringly clear: Inherent power “does not include the power to develop rules
that circumvent or conflict with the Federal Rules of Criminal Procedure.” Carlisle, 517 U.S. at
426. Thus, when the trial court in Carlisle either sua sponte entered a judgment of acquittal or
granted an untimely motion for acquittal, it contradicted and “effectively annulled” Rule 29(c)’s
7-day filing limit. Similarly, an order permitting disclosure of grand jury material for reasons
outside Rule 6(e) would effectively annul the statutory provisions limiting when the disclosure of
grand jury information may occur. The Supreme Court has made clear that a court’s inherent
authority does not extend that far.
The courts that have condoned the release of grand jury information for reasons of
historical significance have either failed to account for, or given insufficient weight to, the Carlisle
line of cases. The Craig decision, for example, in which the Second Circuit first announced that
historical significance could alone constitute an extraordinary circumstance sufficient to disregard
Rule 6(e), ignored Carlisle and Bank of Nova Scotia entirely, despite the fact that those cases were
discussed at length in the government’s briefing. Compare Craig v. United States, Brief for the
United States, No. 96-6264, 1997 WL 33773540 *7-10 (C.A.2 Nov. 4, 1997) with In re Craig,
supra. Instead, the Second Circuit relied entirely on its earlier Biaggi decision and the Eleventh
Circuit’s decision in In re Hastings, both of which were decided prior to the Supreme Court’s

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subsequent delimitations on the use of inherent authority. Id.
The district court in American Historical Association mentions the recent Supreme Court
jurisprudence, but dismisses Carlisle and Bank of Nova Scotia in a footnote, in which, without
analysis, it “reject[ed] the Government’s contention that the ‘special circumstances’ exception
‘circumvent[s] or conflict[s] with the Federal Rules of Criminal Procedure.’” American Historical
Assn, 49 F. Supp. 2d at 287 n.6 (internal citation omitted). The court in American Historical
Association did discuss the Supreme Court’s decision in Williams, but found that the government’s
reading of it was “implicitly” rejected in Craig, and in any event unpersuasive. Id. at 285. In
that regard, the district judge erroneously relied on Douglas Oil, Sells Engineering, and Pittsburgh
Plate Glass Co., to support its contention that the Supreme Court has long countenanced federal
court discretion to fashion disclosure standards. American Historical Assn, 49 F. Supp. 2d at 286.
Those cases – contrary to the meaning ascribed to them by the district court – all stand for the
proposition that a court retains discretion to determine whether a particularized need for disclosure
exists within those categories of disclosures permitted by Rule 6(e). See, e.g., Pittsburgh Plate
Glass, 360 U.S. at 398-399 (“any disclosure of grand jury minutes is covered by Fed. Rules Crim.
Proc. 6(e) promulgated by this Court in 1946 after the approval of Congress.”) None supports the
proposition that a court may, in disregard of Rule 6(e), create new categories of disclosure not
adopted by Congress or mandated by the Constitution.
The courts recognizing “historical significance” as an exception to grand jury secrecy also
disregard the Carlisle line of cases by adhering to the rationale, expressed in In re Hastings, that
Rule 6(e) is beholden to the development of the common law through the courts. Thus, as the
district court in American Historical Association explained, courts determined whether there

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should be exceptions to the rule of grand jury secrecy long before the Federal Rules came into
being, and Rule 6(e) is simply a reflection of the case law as developed by the courts. In other
words, the “history of Rule 6(e) indicate[s] that the exceptions permitting disclosure were not
intended to ossify the law, but rather are subject to development by the courts.” American
Historical Assn, 49 F. Supp. 2d at 286, quoting In re Hastings, 735 F.2d at 1269; accord Craig,
131 F.3d at 102; In re Petition of Kutler, 800 F. Supp. 2d 42, 46 (same). It follows, these courts
held, that while courts should adhere to Rule 6(e) in the “garden-variety’ case, Craig, 131 F.3d at
103, they are free to depart from the Rule in appropriate circumstances. Id.
This analysis is flawed in several respects. First, it is undisputed that Rule 6(e) was
adopted by Congress and has all the force and effect of a statute. Thus, like any other statute, it is
not merely an advisory point of procedure – it represents the considered view of Congress. Just as
courts must adhere to the plain language of a statute, so too must they abide by the plain language
of Rule 6(e). Second, the import of Carlisle was to reiterate that courts may not exercise their
discretion in such a way as to circumvent the Federal Rules of Criminal Procedure. By treating
Rule 6(e) as a useful but flexible guidepost subject to the trial court’s exercise of discretion to
depart from it, these courts have turned Carlisle on its head. Finally, it is hardly dispositive that
the Federal Rules codified the prior jurisprudence of courts. All statutes are informed by
experience, and many codify the common law as developed by the courts. Nevertheless, statutes
may not be disregarded in favor of the policy judgments of courts under the theory that Congress
will simply catch up. Indeed, it is instructive that Congress has revisited Rule 6(e)’s disclosure
provisions on numerous occasions, including as recently as 2002, and has never seen fit to add
either a “public interest” exception to grand jury secrecy, or to set a time limit on grand jury

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secrecy in recognition of potential future historic interest. 5 If there are to be exceptions to Rule
6(e), it is Congress and not the Judiciary that must supply them.
C.

A Departure from the Plain Text to Create a Historical Interest Exception
Is Particularly Unjustified

While departure from the plain text of Rule 6(e) to exercise inherent authority is
unwarranted, a departure for the sake of “historical interest” is particularly so. Historically, the
exceptions to grand jury secrecy grew out of a recognition that grand jury secrecy must sometimes
yield in order to further the “ends of justice” in a particular case. See, e.g., United States v.
Socony Vacuum Oil Co., 310 U.S. 150, 234 (1940) (prosecutor could use witness’ grand jury
information to refresh recollection during trial, as court had discretion to breach grand jury secrecy
where “the ends of justice” require it); Pittsburgh Plate Glass Co., 360 U.S. at 399 (particularized
needs that may overcome grand jury secrecy include the need “to impeach a witness, to refresh his
recollection, to test his credibility and the like”); Douglas Oil, 441 U.S. at 219-220 (in some
situations “justice may demand” that discrete portions of grand jury information be disclosed);
Fed. R. Crim. P. 6(e)(3)(E)(i).
Because Rule 6(e)’s exceptions to grand jury secrecy arose out of concerns for protecting
the accused and ensuring justice in particular cases, it is unsurprising that courts relying on
5

The disclosure provisions of Rule 6(e) were amended in 1977, Pub. L. 95-78, 91 Stat. 319
(clarifying access to grand jury information by government personnel;); in 1984, Pub. L. 98-473,
98 Stat. 1837(permitting disclosure to state officials of matters that may disclose a violation of
state criminal law); in 1989, in the Financial Institutions Reform, Recovery and Enforcement Act
of 1989 (FIRREA), 18 U.S.C. § 3322 (authorizing certain disclosures to a financial institution
regulatory agency upon showing of substantial need); in 1994 , in the International Antitrust
Enforcement Assistance Act of 1994, 15 U.S.C. §§ 6201-12 (authorizing disclosures to a foreign
antitrust authority upon showing of particularized need); and in 2002, in the USA Patriot Act, Pub.
L. 107-56 § 203(a)(1), 115 Stat. 272 (permitting disclosure to law enforcement of matters
involving foreign intelligence or counterintelligence); see also 2002 amendment to permit
disclosure to armed forces personnel for purposes of enforcing Uniform Code of Military Justice.
See Generally Fed. R. Crim. P. 6, Advisory Committee Notes.
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 Case 1:13-mc-00054-RCL Document 10 Filed 06/03/13 Page 16 of 24

inherent authority to disclose grand jury information have generally done so because justice
required it in particular and extraordinary situations. In the Biaggi case, for example, Judge
Friendly permitted limited public release of an elected official’s grand jury testimony after the
official publicly denied having invoked his Fifth Amendment privilege in the grand jury and
publicly stated his non-opposition to the release. In the Hastings case, the 10th Circuit permitted
release of grand jury testimony to the legislature for purposes of an impeachment proceeding.
Indeed, in Hastings, the court emphasized that reliance on inherent authority would only be
appropriate in “exceptional circumstances consonant with ... [R]ule [6(e)]’s policy and spirit.”
Hastings, 735 F.2d at 1269. The Hastings court authorized disclosure only because it was
“backed by a congressional mandate” and because the materials were needed in connection with
“judge-run” proceedings that were “little removed from the judicial proceedings encompassed
with the Rule [6(e)(3)(C)(I)] exception.” Id. Impeachment proceedings and the close analogue
between the grand jury and the functioning of the Judiciary Committee in that unique instance
similarly animated the disclosure of the grand jury’s report in the Haldeman case.
Historical interest does not fit within the traditional “policy and spirit,” Hastings, 735 F. 2d
at 1272, animating the creation of exceptions to grand jury secrecy. There is nothing exceptional
about a request to examine grand jury materials based on interest in their contents. Such requests
do not generally present a situation where the denial of disclosure will work some unfairness in
civil or criminal litigation, or where disclosure is necessary to ensure that justice is done in an
important public proceeding or to correct some public misapprehension on a matter of widespread
public concern. Instead, requests under the historical interest exception simply seek to increase
the total amount of information about past events that is available to the public. Even if part of a

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significant project of historical scholarship, such requests could not easily be distinguished from
journalistic inquiries into subjects of public interest or requests based simply on individual or
public curiosity.
The current proceedings illustrate the point. Mr. McKeever seeks the unsealing of an
entire grand jury investigation because it would aide him in researching and writing a book. His
claim is one available to any member of the press or public. The potential proliferation of
requests to unseal based on historical interest – including requests for the wholesale release of
grand jury investigations – opens the door to the erosion of grand jury secrecy based on nothing
but the discretion of individual courts, untethered to the statute addressing grand jury secrecy and
its exceptions. As the Supreme Court has consistently recognized, “the interests in grand jury
secrecy, although reduced, are not eliminated merely because the grand jury has ended its
activities.” Douglas Oil, 441 U.S. at 222. Many federal indictments attract public attention, yet
neither the Supreme Court nor Congress has ever suggested that public interest alone merits an
exception to grand jury secrecy. Instead, Rule 6(e) strikes a balance between grand jury secrecy
and the need to pierce that secrecy when the “ends of justice” require it. In the absence of an
amendment to that Rule, historical interest in grand jury proceedings satisfies neither the plain
language of the Rule nor the reasons animating the adoption of the Rule.
D.

The District of Columbia Circuit Has Not Accepted Historical
Significance as An Exceptional Circumstance Justifying Disclosure

Like the Supreme Court, the D.C. Circuit has never embraced a non-textual exception to
Rule 6(e) based on historical significance. This court has referenced two cases from the D.C.
Circuit, but neither case supports adoption of the historical exception to grand jury secrecy or
undermines the principles the Supreme Court has enunciated in Carlisle and other cases. See In

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re Petition of Kutler, 800 F. Supp. 2d at 47 (discussing cases).
In In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152 (D.C. Cir. 2007) (“Miller”), for
example, after the conclusion of the trial of I. Lewis “Scooter” Libby, Dow Jones sought to unseal
affidavits and portions of a court opinion that contained grand jury material relating to the
investigation into the leak of Valerie Plame’s identity. Dow Jones argued that witnesses had
widely discussed their grand jury testimony, and that there was “an undeniable and overwhelming
public interest in full public disclosure” so as to learn what justified the issuance of subpoenas to
reporters Judith Miller and Matthew Cooper. Miller, 493 F.3d at 153. The government, through
Special Counsel Patrick Fitzgerald, opposed unsealing any portion of the redacted material that
was not disclosed at trial. The D.C. Circuit held that, insofar as the materials contained still-secret
grand jury matters, they “must remain sealed.” It went on to say, however, that “when
once-secret grand jury material becomes ‘sufficiently widely known’ it may ‘los[e] its character as
Rule 6(e) material.’” Id. at 154 (internal citations omitted). The court then found that witnesses
Armitage, Novak, Cooper and Rove had spoken widely and publicly about their testimony, and
thus granted Dow Jones’ motion to the extent the redacted material had already been made public.
Id. at 154-55. The D.C. Circuit, therefore, did not release grand jury testimony pursuant to any
exception to grand jury secrecy, express or otherwise, and did not rely on any inherent authority to
do so. Instead, it found that certain information was no longer secret and thus was no longer
covered by Rule 6(e).
Neither does Haldeman v. Sirica, 501 F.2d 714 (D.C.Cir. 1974) (en banc) support reliance
on inherent authority to look outside the contours of Rule 6(e). In Haldeman, one of the
Watergate grand juries voted to provide a sealed report to the House Judiciary Committee because

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the report, in its view, would bear upon the Committee’s consideration of possible articles of
impeachment. The district judge agreed. Although citing Biaggi with approval and noting that
“Rule 6(e), which was not intended to create new law, remains subject to the law or traditional
policies that gave it birth,” the Court emphasized that the disclosure at issue was not to the public,
but was instead merely to the Judiciary Committee, which “in this setting acts simply as another
grand jury.” In re Report and Recommendation, 370 F. Supp. 1219, 1229-30 (D.D.C. 1974).
Former Nixon aides who had been indicted then sought to enjoin the district court from turning
over the report. The en banc D.C. Circuit affirmed the decision of the district court and declined
to issue extraordinary writs to enjoin the district judge.
Haldeman offers no support for the disclosure petitioner seeks here. First, with respect to
Rule 6(e), although the Court of Appeals affirmed, it expressed only “general agreement” with the
district court’s handling of the matter, and did not address specifically the district court’s inherent
authority analysis. Haldeman, 501 F.2d 714, 715 (1974). That is particularly significant
because at oral argument in the court of appeals, the prosecutor represented that the disclosure was
being made pursuant to Rule 6(e), “preliminarily to or in connection with a judicial proceeding,”
i.e., possible articles of impeachment and trial by the House of the Representatives. Haldeman,
501 F.2d at 717 (D.C. Cir. 1974) (MacKinnon, J., concurring in part). That argument presented a
justification for the district court’s activity that was independent of any “inherent authority” of the
district court, and that was, moreover, consistent with Judge Sirica’s own observations about the
nature of the Judiciary Committee’s functions with respect to Watergate. Second, Haldeman
predated the Supreme Court’s recent jurisprudence on inherent authority. It is thus not indicative
of a general acceptance by the D.C. Circuit of non-textual exceptions to Rule 6(e). Third, in any

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 Case 1:13-mc-00054-RCL Document 10 Filed 06/03/13 Page 20 of 24

event, no claim of “historical interest” was at issue in Haldeman, and the case thus offers no
support at all for the historical interest exception that Mr. McKeever ask this Court to apply.
The one D.C. Circuit decision to present a nearly identical fact pattern to that presented
here resulted in an unpublished decision affirming the district court’s refusal to create an historical
significance exception to Rule 6(e). See In re Petition of Newman, No. 87-5345 (D.C. Cir. Apr.
20, 1995 (Attached as Exhibit A). That case involved a request by Public Citizen on behalf of
University of Pittsburgh Professor Robert P. Newman to unseal the grand jury transcripts of Owen
Lattimore. Lattimore was a prominent China scholar alleged during the McCarthy era to be
sympathetic to Communists. He was subjected to Senate hearings and prosecuted for perjury
allegedly committed during his congressional testimony. Ultimately, the government dismissed
the bulk of the indictment.
Professor Newman, who was writing a biography about Lattimore, alleged that he was
“hindered in his work by the unavailability of the transcripts of the grand jury proceedings that led
to Lattimore’s indictments.” In re Petition of Newman, Petition for Writ of Certiorari, No.
88-548, 1988 WL 1094826 (Sept. 29, 1988). Newman’s petition urged the district court to unseal
the grand jury transcripts based on the court’s “inherent authority” to supervise grand juries, the
age of the case, and the general public interest in both the case itself and what it revealed about the
abuses of the McCarthy era. Newman also submitted detailed declarations attesting to the
historical importance of the information, the lack of any need for continued secrecy, and the fact
that most of the individuals involved were no longer alive. The government opposed the petition,
the district court denied it without opinion, and Newman appealed to the D.C. Circuit.
The D. C. Circuit summarily affirmed. Although the opinion is unpublished and thus

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lacks precedential value, see D.C. Circuit Rule 32.1(b)(1)(A), the Circuit’s reasoning is
instructive:
Professor Newman seeks the Lattimore transcripts for historical purposes, solely to
reveal what transpired during those grand jury proceedings. There is no claim that
disclosure is sought in connection with any judicial proceeding or other category of
circumstances delineated in Rule 6(e)(3). Those categories are so circumscribed
because of the legitimate concern about “the possible effect upon the functioning of
future grand juries of unduly liberal disclosure.” In re Dononvan , 801 F.2d 409,
410 (D.C. Cir. 1986) (per curium). Since a claim of historical importance, without
more, falls outside the scope of the Rule 6(e)(3) exceptions permitting disclosure,
the district court’s denial of Professor Newman’s petition to unseal the Lattimore
grand jury transcripts was appropriate.
Newman at p. 2.
Like Professor Newman, Mr. McKeever seeks disclosure of the grand jury proceedings in
the Frank case to assist him with the research and writing of a book. Nothing distinguishes his
request from any other journalist or historian researching a topic of academic interest.
Accordingly, there is nothing “exceptional” about the request, and Rule 6(e)’s prohibitions on
disclosure should be applied.
III.

EVEN IF THE COURT BELIEVES IT HAS INHERENT AUTHORITY TO
GRANT PETITIONER’S REQUEST, IT SHOULD DECLINE TO EXERCISE
THAT AUTHORITY IN THIS CASE
Mr. McKeever relies on essentially two grounds in his effort to persuade the Court that the

In re Craig factors favor disclosure of the Frank grand jury records: (1) the age of records, and (2)
their historical significance as evidenced by the government’s designation of the Frank case files
as permanent records, transferred to NARA for archival retention. See Motion at ¶¶11-19. Based
on the age of the records, for example, petitioner argues that factors (5)-(9) weigh in favor of
disclosure. Id. at ¶ 16. Petitioner further argues that the records are historically significant
because the “National Archives has designated the Galindez case as having ‘permanent historic

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 Case 1:13-mc-00054-RCL Document 10 Filed 06/03/13 Page 22 of 24

value,’” id. at ¶23, and because the FBI apparently has granted petitioner public interest fee
waivers under FOIA to cover some of the cost of document reproduction, id. at ¶12.
The government can hardly dispute that the Frank prosecution was an interesting case,
certainly worthy of academic attention. Nevertheless, the same can be said for any number of
matters indicted or investigated by the Department of Justice over the decades. 3 Indeed, the
records disposition schedule negotiated between the Department of Justice and NARA provides
that all multi-section kidnapping cases (“Class 109” cases), and all FARA cases (“Class 149”
cases), be retained as permanent and transferred to NARA after 30 years. See Request for
Records Disposition Authority, Duplex Numeric Files Schedule, dated Oct. 31, 1989, available at
http://www.archives.gov/records-mgmt/rcs/schedules/index.html?dir=/departments/department-o
f-justice/rg-0118. That this particular case was designated for permanent retention, therefore,
reveals nothing about its historic significance other than that it falls within the category of
Department of Justice matters slated for permanent retention. NARA holds approximately
62,000 feet of such Department of Justice records, comprising roughly 150 million pages. 4
Were it enough for records to be permanently preserved at NARA to satisfy the In re Craig
exceptional circumstances factors, all the grand jury records that NARA holds would qualify for
disclosure. Criminal Rule 6(e) does not contemplate such a result; nor does In re Craig.
In addition, compared to other cases where courts have exercised inherent authority to
release grand jury records for reasons of historic significance, the Frank case pales in stature.
3

Mr. McKeever suggests that the public interest favors disclosure of these records in particular “in
light of reports that member or agents of the United States Government may have been involved in
the kidnapping of Galindez.” Motion, ¶19. But Frank was not indicted for the kidnapping of
Galindez, suggesting that the evidence was insufficient to support such reports.
4
See http://www.archives.gov/research/guide-fed-records/groups/060.html) (reflecting NARA’s
holdings of Litigation Case Files from Records Group 60, General Files of the Department of
Justice.)
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 Case 1:13-mc-00054-RCL Document 10 Filed 06/03/13 Page 23 of 24

Courts that have relied on the exceptional circumstances test to release selected grand jury
information addressed such matters as the Julius and Ethel Rosenberg case (In re Petition of
National Security Archive, supra); the Alger Hiss case (In re American Historical Assn, supra);
and President Nixon’s grand jury testimony in the Watergate investigation (In re Petition of
Kutler, supra.) These cases all involved matters of exceptional historical importance. While the
Galindez disappearance and the Frank trial are interesting, they do not rise to the level of enduring
public chapters of our history in the same way as, for example, Watergate and the Alger
Hiss/Whittaker Chambers affair.
At bottom, Mr. McKeever’s arguments align with the Department of Justice’s own
proposal to modify Criminal Rule 6(e). The Department, with the support of NARA, proposed
that Rule 6 be amended to permit NARA to open certain archival grand jury records as a matter of
course after the passage of 75 years. The Criminal Rules Committee, the body responsible for
recommending rule changes to the Standing Committee on Rules of Practice and Procedure,
rejected the proposal. The Committee Chair explained that, “it would be a radical change to go
from a presumption of absolute secrecy, which is how grand juries have always operated, to a
presumption that grand jury materials should be presumed open after a certain number of years.
A change of that magnitude . . . would have to be accomplished through legislation, rather than a
rule change.” Minutes, Committee on Rules of Practice and Procedure, June 2012, p. 44, available
at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Minutes/ST06-2012-min.pdf.
In this case, Mr. McKeever seeks to unseal the entirety of a voluminous grand jury
investigation based on little more than the age of the records and their retention by NARA. 5

5

Mr. McKeever asserts that “it is likely that most, if not all, of the witnesses, jurors, and other
participants in the proceedings have died,” and that “there is no additional need for maintaining
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 Case 1:13-mc-00054-RCL Document 10 Filed 06/03/13 Page 24 of 24

There is no basis on which to distinguish this request from any other researcher’s request for grand
jury records of similar vintage, and no basis to believe that the records here are of exceptional
historic importance. Accordingly, even assuming that it were within the court’s inherent power to
disclose grand jury records for reasons of historical interest, the court should decline to do so in
this case.
CONCLUSION
For all the foregoing reasons, the petitioner’s Motion for Release of Grand Jury
Information should be denied.
Dated: June 3, 2013

Respectfully submitted,
STUART F. DELERY
Acting Assistant Attorney General

RONALD C. MACHEN, JR.
United States Attorney

/s/ Elizabeth J. Shapiro
ELIZABETH J. SHAPIRO
D.C. Bar #418925
United States Department of Justice
Civil Division, Federal Programs Branch
Tel: (202) 514-5302
Fax: (202) 616-8460
elizabeth.shapiro@usdoj.gov
Attorneys for the United States

secrecy.” Motion at ¶19. Given the volume of information at issue, however, and the individuals’
relative lack of notoriety, the government is not in a position to confirm whether any participants
to the proceedings remain alive.
-24-

   
  
  
 

- 13 Pa 1 of 6
Case Document 10 1 06/03/ 

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

 

 

No. 87-5345 SepTember Term, 1987

MISC. CA. No. 87-0230
In re: Petition of Robert P. Newman

BEFORE: Ruth B. Ginsburg, D.H. Ginsburg and Sentelle,
Circuit Judges

  
   

ORDER

 
 

Upon consideration of appellee?s motion

for summary af?r-
mance and the opposition thereto, it is

   
  

ORDERED by the court that the mo

mance be granted for the reasons stat
memorandum. 

tion for summary af?r-
ed in the accompanying

     
 
  
  
 
 
 

    

The Clerk is directed to withhold issuance of the mandate

Therein until seven days after disposition of any timely petition .1 .5
:_for rehearing. See D.C. Cir. Rule 15. a .

.

  
 
  

 

Per Curiam

UNITED STATES COURT
OF APPEALS

For the District of Columbia
Circuit

  
      
 
 
 

FILED APR 20, 1988

  
 

CONSTANCE L. DUPRE


 

 

 

 
   

:sei1:13-mc-00054-RCL Document 10-1 Filaed 06/03/13 PageZof6

  
  
 
 
 
 
 
 
   
   
   
   
   
   
   
   
   
   
   
   
 

No. 87-5345?In re Petition of Robert P. Newman

MEMORANDUM

Appellant Newman appeals the district court?s denial of his
petition to unseal the transcripts of certain McCarthy-era grand
jury proceedings. Appellant argues the transcripts at issue are .
of historical signi?cance and should be disclosed to him, as
there is no claim that disclosure would cause any harm. The 
Government moves to summarily af?rm the district court?s
order, asserting that the general rule of secrecy,? under
Fed. R. Crim. P. while allowing certain exceptions,
makes no provision for disclosure of grand jury transcripts to
a private party for historical research purposes. We agree and
af?rm the district court?s judgment.

As a starting point, the Supreme Court has emphasized ?that
the proper functioning of the grand jury system depends upon

the secrecy of grand jury proceedings.? Douglas Oil Co. v.
Petrol Stops Northwest, 441 U.S. 211, 218 (1979). See Fed 
R. Crim. P. 6(e) (2). Recognizing the limited exceptions to th
rule of secrecy (as delineated in Fed. R. Crim. P. 
courts are nonetheless reluctant to ?lift unnecessarily the 
'of secrecy from the grand jury.? 441 U.S. at 219.

 
 

Drawing from its decisions in .S. v. Procter Gamble 
356 U.S. 677 (1958), and Dennis v. U.S., 384 U.S. 855 (196
the Supreme Court, in Douglas Oil, devised a balancin'
for deciding when disclosure. of grand jury material ma

appropriate within the bounds set forth in Rule 
purpose for which the disclosure is sought falls Within
the Rule 6(e) (3) categories, and if the private party.
disclosure can demonstrate ultimately that the ?_?pa1?tl
need? for disclosure (see, .S. Sells Enginee

463 U.S. 418, 443 (1983)) outweighs the public"

    
    
  

   

 
     
   
   
    
    
    
    

 

  

 

 

 

 

Case Documen 10-1 Filed Page 3 of 6
secrecy and p0831b1e chilling effect on future grand jury

art p_ Newman proceedings, only then may the court permit disclosure.
Douglas Oil, 441 U.S. at 223.

be disclosed to him, as

category of circumstances delineated 1
1d cause any harm. The in Those

categories are so circumscribed because of the legitimate con-

UM
Professor Newman seeks the Lattimore tr 

. . . . . anscripts for
mitt ?gug??femal of hlcs1 historical purposes, solely to reveal what transpired during
tam . y?era gran those grand Jury proceedings. There is no claim that disclosure
transcripts at lssue are . 1 is sought in connection with any judicial proceeding1 or other

 
 
 
  
 
 
 
 
 
  
 
 
  
  
 
 
 
   
   
   

?rm the district court?s . cem about ?the possible effect upon the functioning of future
?.16 0f se?reCY: under i grand juries 0f liberal disclosure.? In re Donovan 801
V1118 certain exceptions, F.2d 409, 410 (DC. Cir. 1986) (per curiam). Since a elaim"
ET and Jury transcripts to of historical importance, without more, falls outside the scope {2
purposes. We agree and 2? 0f the Rule 6(e) (3) exceptions permitting disclosure, the district i

court?s denial of Professor Newman?s petition to unseal the i

nthas emphasized ?that Lattimore grand jury transcripts was appropriate.

ry system depends upon
gs.? Douglas Oil Co. v.
1, 218 (1979). See Fed.
imited exceptions to the

. l. R. Crim. P. 
ift unnecessarily the veil
L1 US. at 219.

Procter Gamble Co.,
8., 384 US. 855 (1966), .
devised a balancing test
id jury material may be
th in Rule 6(e) (3). If the

ought falls within one private party seeldng exception, under Rule does not
- - - Very proceeding instituted for the - 
ulanz . . purpose 0 taming
that the . 1381?th f, . Osul'e. films 0. Department of Justice, 441 F. Supp. 69, 7O 
Sells ngme?nng, l- 18? quoted 1n Fand for Constitutional Government v. NARS, 656 F.2d
is the public mtereS; . 58 (11C. Clr. 1981). -



  

 

 

 

 

 4a
Document 10-1 Filed 06/03/13 Page4of6

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

   
   
   
    
  
  
  
   
       
   
 
   
        

 

No. 87-5345 September Term, 1987

C.A. No. 87?0230

United States Court of Appeals
For the District of Columbia
Circuit

FILED JUL 1, 1988

CONSTANCE L. DUPRE
CLERK

In Re:

Petition of Robert P. Newman

BEFORE: Ruth B. Ginsburg, D.H. Ginsburg and Sentelle,
Circuit Judges

ORDER

Upon consideration of appellant?s petition for rehearin 

IS

 

 

5a
Case Document 10-1 Filed 06/03/13 Page 5 of 6

 

 
 
  
  
 
 
 
   
 
 
 
   

OF APPEALS UNITED STATES COURT OF APPEALS
JMBIA CIRCUIT FOR THE DISTRICT OF COLUMBIA CIRCUIT
{Ember Term, 1987 NO- 875345 September Term, 1987
)230 CA. No. 87-0230
:s Court of Appeals United States Court of Appeals i
rict of Columbia . For the District of Columbia 3
Circuit
1, 1988
FILED JUL 1, 1988
L. DUPRE -
CONSTANCE L. DUPRE
CLERK 
In Re:
Petition of Robert P. Newman
nsburg and Sentelle,

BEFORE: Wald, ChiefJudge; Robinson, Mikva, Edwards,
Ruth B. Ginsburg, Starr, Silberman, Buckley,
Williams, D.H. Ginsburg and Sentelle, Circuit

.A . 

 

   

   
    

Judges 5
.tion for rehearing i?t I:
. ORDER
petition is denied. .. . . 
. Appellant suggestion for rehearing en banc has been c1r- :3
lated to the full court. No member of the court requested i jg
taking of a vote thereon. Upon consideration of' the forego- 3
it is i

L. DUPRE, 

 

chagr-


3 

 

 

 

 

. 6
Document 10-1 FiledaO6/03/13 Page6of6

 
  
 
  
  
 
  
 
 
   

ORDERED, by the court en bane, that the appellant?s sug?
gestion for rehearing en banc is denied.

FOR THE COURT:

CONSTANCE L. DUPRE,
- CLERK

BY: Robert F. Bonner
Robert A. Bonner
Deputy Clerk

Chief Judge Wald did not participate in this order

 

 

 

 

 

 

 

 

..- as.