Federal Grand Jury Secrecy: Why You Find Out at the Arrest.

Federal Rule of Criminal Procedure 6(e) governs the confidentiality of proceedings conducted by the federal grand jury, which, in part, provides that “matters occurring before the grand jury shall be kept secret.” This is partly to protect the testimony of grand jury witnesses. However, it is also designed to give federal prosecutors the opportunity to build an airtight case without the targeted defendant knowing that their actions or statements are being scrutinized. As a result of this confidentiality provision, prosecutors can keep the defendant in the dark until they have everything they need to build a case and seek an indictment. Sealed indictments are one example of this. A federal grand jury can return a sealed indictment, and it can stay sealed, meaning the defendant will have no knowledge of the indictment, until the time of arrest.

Once a grand jury has returned an indictment, Federal Rule of Criminal Procedure 9 permits the issuance of “either an arrest warrant or a summons.” While we can assist with matters involving summonses as well, it is far more common for defendants’ first formal notice of federal criminal charges to arrive in the form of an arrest.

The Fifth Amendment’s Grand Jury Clause “requires grand jury indictment for all federal felony charges.” However, this applies only to federal criminal matters. In Hurtado v. California, the U.S. Supreme Court held that the Fifth Amendment’s Grand Jury Clause is not “incorporated” against the states. Thus, while states can (and many do) use grand juries, they are not required to do so. Connecticut and Pennsylvania, for example, no longer use grand juries to bring criminal charges. Federal courts will also process an information, which is a way to seek federal criminal charges without grand jury involvement, if the defendant waives their right to a grand jury indictment. Finally, grand juries only return indictments for felonies. Federal misdemeanors can be charged by information.

Is Grand Jury Secrecy the Same as a Sealed Indictment?

While these concepts are related, they refer to distinct forms of secrecy.

When a federal prosecutor asks a grand jury to indict a defendant, this can be done while remaining secret. An example is a “sealed indictment.” But Grand Jury Secrecy is not limited to sealing indictments. Federal grand jury proceedings, namely, testimony, are required to be secret.

Under Rule 6(e), individuals who are bound to keep federal grand jury proceedings secret include:

• All members of the jury;
• All federal prosecutors;
• All court reporters, interpreters, and others present in the room;
• All court staff who process the records; and,
• All personnel who may be authorized to see the records.

While these individuals are required to keep the proceedings secret, grand jury witnesses themselves generally are not. Most grand jury witnesses may disclose the testimony they gave to the grand jury.

The sealing of an indictment is separate. To do this, a federal judge must formally order the sealing of an indictment. It is an exceptional, discretionary procedure.

How Does this Interact with Other Disclosures?

Sealing an indictment, and Rule 6(e) confidentiality, are distinct from other disclosures in federal criminal investigations. A grand jury has the right to examine any relevant information, regardless of whether it comes from within or outside of the grand jury. However, information obtained by the federal government independently of the grand jury remains unaffected by the grand jury’s review for purposes of Rule 6(e). As the Court of Appeals for the Seventh Circuit noted in United States v. Smith, 123 F.3d 140 (3d Cir. 1997), “. .. the Fifth Circuit is not alone in rejecting the position that Rule 6(e) covers disclosures that reveal not only the content of a grand jury proceeding but also a pending grand jury proceeding. Indeed, as the Third Circuit has explained, ‘Rule 6(e) is not intended to protect the government’s investigative tools; rather, its purpose is to protect the grand jury process.’. .. in general, if a statement is not otherwise protected by Rule 6(e) as it exists within the grand jury proceedings, it would be improperly-disclosed that a grand jury is investigating a specific individual. . ..’ the Third Circuit, in general, though, will not allow the use of Rule 6(e) merely because a grand jury examined a piece of information created independently of the grand jury.”

With this said, Rule 6(e) confidentiality may prohibit disclosures that“[d]isclose the direction or the substance of the grand jury’s investigation, even if the information does not reveal the content of specific testimony.” With a grand jury involved, the scope of permissible disclosure is narrower than without. The Rule allows disclosures to “assist the U.S. Attorney in the pursuit of the matter to be investigated” and “any other individual, office or agency whose assistance may be necessary for the proper conduct of the grand jury’s inquiry.” These disclosures must be made through official channels and strictly on a need-to-know basis.

What Happens If Grand Jury Confidentiality Is Violated?

Because confidentiality is required, unauthorized disclosure by prosecutors, jurors, court personnel, or others will lead to contempt sanctions.

How does a sealed indictment turn into a surprise arrest

One of the chief reasons for using sealed indictments is that they allow the government to execute coordinated arrests against multiple defendants simultaneously. Rather than one or more defendants finding out that they have been indicted and alerting their co-defendants, everyone finds out at once.

Sealing an indictment is a procedure permitted under Federal Rule of Criminal Procedure 6(e)(4), which requires that a present indictment remain sealed, “unless the court unseals it before the defendant’s appearance, or, if the defendant is not in custody, until the indictment is executed.”

Sealing is just a means to keep an indictment from becoming public. It does not affect the indictment’s legal status. An indictment obtained in closed or secret grand jury proceedings is just as effective and valid as one obtained in public proceedings. Ordinarily, it remains sealed until the defendant is arrested or appears before the court.

How is a Sealed Indictment “Returned” and Then “Executed”?

A sealed indictment is returned, and then executed, via the following sequence of events:

1. Return of Indictment. Under Rule 6(f), return of an indictment is assigned to the grand jury: “A grand jury may indict only if at least 12 jurors concur. The grand jury, or its foreperson or deputy foreperson, must return the indictment to a magistrate judge in open court.” Although the grand jury formally “returns” the indictment to the court, prosecutors handle the matter.

2. Unsealing of Indictment. As noted above, a grand jury indictment stays sealed until the defendant is arrested or appears before the court. This sealing preserves the legal effectiveness of the indictment while withholding it from public view.

3. Execution of the Arrest Warrant. Once the indictment has been returned (and is not already unsealed), an arrest warrant can be issued under Rule 9. The warrant is executed by federal law enforcement personnel arresting the defendant.

4. Unsealing the Indictment. After the defendant is arrested (or voluntarily surrenders), the court unseals the indictment.

5. Arraignment. The defendant then appears in federal court for arraignment, at which point the defendant and their defense lawyer, in turn, may seek to unseal the indictment.

Note that prosecutors are not required to arrange a surprise arrest. If it’s the right tactical move in the circumstances at hand, they can reach out to the defendant’s defense lawyer and arrange for a voluntary surrender.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

What If the Indicted Defendant is Already in Custody?

Once an indictment is returned, arrest is a procedural step that the government takes to bring the defendant before the court. If an indicted defendant is already in custody, then no additional arrest is required (and no additional time in custody is necessary). Arrest warrants serve only to transfer individuals to the jurisdiction of federal courts. A newly indicted defendant who is currently serving a sentence in state or federal prison (with no time left on their sentence) will simply be arrested and given custody back to the court that will hear their case. This is often a matter of arranging transportation, not an immediate event that requires law enforcement to show up to take the person into custody.

Does the Government Have to Warn a Target Before Indictment?

No, in federal grand jury proceedings, the government generally has no constitutional duty to provide a potential target with advance warning of an indictment. This includes (i) giving advance notice of a pending grand jury investigation, (ii) serving a “target letter” providing advance warning of a prospective indictment, or, (iii) providing an indicted defendant’s legal representation with advance notice of an indictment.

Again, there are exceptions, and, from a strategic perspective, there are reasons why prosecutors may want to provide target warnings and target letters. But prosecutors cannot be legally forced to do so in most circumstances.

The secrecy afforded by the Fifth Amendment’s Grand Jury Clause means that defenses are handled outside of the grand jury proceedings. Federal defense attorneys cannot attend proceedings inside the grand jury room; they may be permitted access to grand jury records upon request, although this typically requires grand jury witness’s consent or a court order. This lack of adversarial cross-examination means a targeted defendant cannot, usually, force the government’s hand by compelling it to disclose a defense before indictment.

While federal defendants can testify in grand jury proceedings (and may do so when compelled by subpoena), they do not generally have a right to:

• Testify in front of the grand jury,
• Present witnesses or evidence,
• Direct any questions to the grand jury, or,
• Cross-examine witnesses at the grand jury proceedings.

Ultimately, the grand jury proceeding is a means to the end of building a criminal case. The grand jury itself is not a trier of fact that determines guilt or innocence. As a result, the proceedings are designed with the federal prosecutor at the helm. This means the prosecutor has near-complete control over the proceeding; he or she determines which witnesses testify and what evidence is presented.

While prosecutors are generally required to disclose evidence that “ substantially undermines [the government’s] theory of the case,” the U.S. Supreme Court found in United States v. Williams, 504 U.S. 36 (1992) that “the Grand Jury Clause has not been interpreted to prohibit the government’s failure to present an accused’s exculpatory evidence to the grand jury.”

The Justice Department’s own internal guidelines (Justice Manual § 9-11.233) provide that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose that evidence to the grand jury before seeking an indictment, but this is not a constitutional requirement. Furthermore, this internal policy doesn’t create an enforceable defense right. If a prosecutor fails to follow the Justice Department’s policies, the defendant cannot present evidence of his or her innocence, nor can he or she use the prosecutor’s violation as a legal defense against the alleged criminal offense.

What Do I Receive at Arrest, and What Comes Later?

While grand jury-based arrests are common, in many federal cases, the government will initiate an arrest with a criminal complaint. If a complaint is filed, then the criminal complaint, and not a grand jury indictment, will be what the defendant receives at the time of arrest. If arrested under a criminal complaint, Section 3161(b) of Title 18 of the U.S. Code requires that any information or indictment charging a defendant be filed within 30 days of the date on which the defendant was arrested or served with a summons on those charges. To take advantage of the protections provided by this rule, the defendant’s defense counsel can file a timely motion to dismiss if the case is not presented to a grand jury or charged by information within the applicable time period.

What Happens After Arrest?

Regardless of whether a federal defendant is arrested based on an indictment or a criminal complaint, the federal criminal process generally involves a series of procedural steps to which the defendant is entitled. These steps are governed by the Federal Rules of Criminal Procedure. In grand jury cases, an arrested defendant can usually expect the following steps:

1. Initial Appearance

Under Rule 5(a), an arrested defendant must have an initial appearance before a federal magistrate judge “without unnecessary delay.” The purpose of the initial appearance is threefold. First, the judge will formally inform the defendant of the charges he or she is facing. Second, the judge will advise the defendant of the right to counsel. Third, the judge will determine the defendant’s pre-trial release status. This decision can range from release on a personal recognizance or unsecured bond to pretrial detention pending trial.

2. Production of the Indictment

Along with the criminal charges, the defendant will receive the federal indictment. But while the indictment lists the offenses the defendant is facing and the pertinent facts of the case, it usually will not include the government’s underlying investigative file. All reports, recordings, witness statements, and other items are separate from the indictment. The U.S. Attorney’s Office has an obligation to produce these items, but this disclosure typically occurs later in the litigation process.

Federal prosecutors will ordinarily produce an indictment to the arrested defendant only after the federal magistrate judge has ordered a release or decided on a detention. When federal agents arrest a targeted defendant, the unsealing of the indictment usually happens simultaneously with the arrest. If the defendant is arrested under a criminal complaint, the indictment or information will be returned when the grand jury meets to hear the matter.

3. Arraignment

Following the initial appearance, a second court appearance occurs known as the arraignment. During an arraignment, according to Rule 10, the judge “states the substance of the indictment to the defendant and asks the defendant to plead.” Most federal defendants will plead “not guilty” at this time. Then, the legal process moves into the investigation and preparation phase before the case eventually proceeds to trial.

Why Would Prosecutors Keep a Grand Jury Investigation Secret?

While grand jury secrecy seems designed to benefit the government’s pursuit of its case, there are some potential benefits for defendants as well. This is why the Fifth Amendment requires grand jury secrecy.

But, in federal cases, grand jury secrecy is not absolute. As explained previously, prosecutors can use grand jury subpoenas to obtain business records, bank accounts, and other evidence without alerting a target, so this means target candidates may only find out that they are under investigation through these means. Also, grand jury witnesses’ testimony will remain secret, but the subpoenas will require testimony under oath. So, while targets do not have the right to appear before the grand jury without being subpoenaed, interviewees often do receive advance warning of the proceedings.

What Are the Advantages of Grand Jury Secrecy for Defendants?

If grand juries weren’t secret, there would be some negative consequences for people who have not yet been arrested or indicted. Secrecy protects them from:

• Public condemnation. Even if an indictment doesn’t come, people’s reputations could suffer if the public knew that they had been targeted, subpoenaed, or investigated.
• Improper accusations. Grand jury investigators make mistakes too; and, sometimes, their suspicions turn out to be totally unfounded. Secrecy prevents these mistakes from being publicized before a defendant can properly address them.

What Are the Advantages of Grand Jury Secrecy for Prosecutors?

Prosecutors can also benefit from grand jury secrecy. The advantages include:

• Preventing suspects’ flight and evidence tampering. Secrecy limits a targeted defendant’s ability to flee or destroy potentially incriminating information and documents.
• Protecting witnesses and informants. Prosecutors want to encourage witnesses to participate in grand jury proceedings without fear of intimidation or retaliation.
• Investigating additional suspects. Grand jury secrecy allows investigators to gather evidence against targets without revealing the full scope of the investigation, and this allows for the possibility of investigating additional suspects.
• Protecting their investigation from outside interference. If a suspect knows the government is building a case against them, they can interfere with the investigation or encourage others to be less forthcoming.

What Happens if a Target Destroys Evidence?

If a target’s defense lawyer gives them a heads-up and the target destroys evidence, the government can pursue additional charges. 18 U.S.C. § 1512 “covers tampering with witnesses, victims, or informants pending official proceedings.” The government will not take this lightly.

Can Federal Charges Be Dropped After a Grand Jury Indictment?

What do you do if a grand jury returns an indictment against you? As noted above, prosecutors generally control the grand jury process. This means that even if the government has not built an airtight case, prosecutors can persuade grand jurors that there is sufficient evidence of probable cause, and thus, a grand jury indictment is warranted.

If this happens, remember that an indictment does not prove a defendant’s guilt. Instead, it simply charges the defendant with a criminal offense. There are many reasons why an indicted defendant may be innocent. Because there are good grounds for a variety of defenses to allegations of criminal conduct, an indicted defendant has several options, and their legal representation should take advantage of all of them.

Can the Prosecution Drop the Charges?

An indictment does not prevent prosecutors from dropping charges in the future. Under Federal Rule of Criminal Procedure 48(a), “the government may, with the court’s consent, dismiss an indictment, information, or complaint.” When the government voluntarily dismisses a charge, the federal court then orders the dismissal of the case. If it seems that the government lacks an indictment that could survive a trial, prosecutors can also drop charges and decline to proceed to trial.

Can an Indicted Defendant Work to Get the Charges Dropped?

Defendants can challenge grand jury indictments on several grounds, such as:

• An indictment that does not contain all the elements of the offense being charged may have to be dismissed.
• A grand jury indictment returned after an applicable statute of limitations expires must be dismissed.

As prosecutors noted above, they control the grand jury process. This means that a grand jury’s finding that there is enough evidence of probable cause does not necessarily equal guilt, and, ultimately, it certainly does not equal a conviction at trial.

What Happens if the Prosecution Doesn’t Drop the Charges?

If a targeted defendant doesn’t have an indictment that can be successfully challenged, and the government refuses to voluntarily dismiss the indictment as well, the case will head toward a trial. During the plea process, the government and the defendant can reach a plea agreement to resolve the indictment before it goes to trial. Prosecutors may agree to dismiss some of the charges while the defendant pleads guilty to some of the charges in order to avoid the risk of trial.

If the defendant is innocent and wants to fight the criminal charges, then the defendant can take his or her case to trial and a jury of his or her peers will determine the outcome.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.