MOTION FOR PRODUCTION AND

INSPECTION OF GRAND JURY PROCEEDINGS

Pursuant to Fed.R.Crim.P. 6(e) and 18 U.S.C. § 3500, the Defendant moves this Court for an Order permitting the production and inspection of the grand jury proceedings in this case, as follows:

1. The inspection and copying of the proceedings of the grand jury that returned the present indictment or grand juries that considered the subject matter of this indictment, including but not limited to:

a. the transcript of testimony of all persons who testified before the grand jury that returned the indictment in this action;

b. all notes, documents, papers and reports that were used by any witness in testifying before the grand jury; and

c. any and all books, records or other documents obtained from the defendant or any third persons which the grand jury relied on returning the charges in the indictment or which the government intends to rely on to establish the charges set forth in the indictment.

2. All notes, records, documents relating to the grand jury that returned this indictment and those of other grand juries that considered the subject in this indictment, that relate to who was present during the proceedings of the grand jury, those persons to whom matters and proceedings of the grand jury were disclosed, including the certification by the attorney of the government that such persons had been advised of their obligation to secrecy pursuant to Fed.R.Crim.P. 6(e)(3)(b).

3. All the records, documents, or orders (if any) of the grand jury that returned this indictment and other grand juries that considered the subject matter of this indictment, relative to the disclosure of matters occurring before a grand jury to successive and other grand juries.

In support of this motion, the Defendant shows as follows:

a. Fed.R.Crim.P. 6(e) and relevant case law, commits pretrial disclosure of grand jury proceedings to the sound discretion of the trial court.

b. The requirement of a "particularized need" has been abolished, therefore production is appropriate.

c. Disclosure should be denied only when, in the interest of justice, reasons for maintaining secrecy are heavily countervailing. The indictment has already been returned and those reasons mandating secrecy in the first instance, are no longer applicable.

WHEREFORE, the Defendant moves the Court to enter an order granting this motion for production and inspection of grand jury proceedings.

MEMORANDUM OF LAW

The power of a court to disclose proceedings of the grand jury is within the trial court's discretion under Fed.R.Crim.P. 6(e). See Menendez v. United States, 393 F.2d 312, 316 (Sth Cir. 1968). Other indications of such discretionary authority is fully documented in the language of the rule, since that rule empowers a court to grant disclosure "preliminary to", as well as "in connection with", a judicial proceeding. This power or preliminary disclosure was recognized by the United States Supreme Court in Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966).

Under applicable decisions, before granting disclosure, there is no requirement that a "particularized need" be shown. See Allen v. United States, 390 F.2d 476 (D.C. Cir. 1968), Suppl. by 404 F.2d 1335, Schlinsky v. United States, 379 F.2d 735 (1st Cir. 1967), and Cargill v. United States, 381 F.2d 849 (lOth Cir. 1967).

Under the Supreme Court decision in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938 (1986), there is an implicit requirement that all issues involving use of the grand jury process be resolved prior to trial. This is consistent with a number of federal courts that presume the existence of prejudice where an unauthorized person is in the grand jury room. In such cases these courts apply a rule of automatic dismissal of the indictment. For example, see United States v. Fulmer, 722 F.2d 1192, 1195 at n. 5 (5th Cir. 1983), United States v. Echols, 542 F.2d 948, 951 (5th Cir. 1976), cert. denied, 431U.S. 904, 97 S.Ct. 1695, 52 L.Ed.2d 387 (1977); and Latham v. United States, 226 Fed. 420 (5th Cir. 1915).

DATED this day of October, 1995.

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