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The confidentiality of grand jury proceedings is a long-standing and well-protected policy. There are several reasons for this that have been established by the courts:

By having no advance notice of the investigation, confidentiality helps in the prevention of potential indictees escaping.

It protects grand jurors from outside pressures and threats of retaliation, allowing the investigation to continue without interruption.

Maintaining confidentiality helps to avoid perjury and witness tampering by investigation goals.

It encourages witnesses to testify freely and openly without fear of retribution.

Finally, it protects innocent citizens who are under investigation from having their reputations harmed by the public publication of false allegations.

This veil of secrecy, however, is not impenetrable. “In certain cases, justice may require that discrete parts of transcripts be made available for use in subsequent proceedings,” the United States Supreme Court said. There are numerous scenarios in which grand jury documents may be disclosed.

For starters, information that does not come into the category of “a matter before the grand jury” is not subject to the confidentiality requirement. Second, witnesses are not required to keep their evidence confidential. Finally, if the grand jury testimony applies to the alleged crime, a criminal defendant is entitled to transcripts of his or her own grand jury testimony. Fourth, a convicted defendant is entitled to copies of transcripts of witnesses who testify against him at trial under the Jencks Act. Finally, a court may order disclosure if a defendant demonstrates that there is a basis “to dismiss the indictment because of a matter that occurred before the grand jury.” Sixth, without court approval, disclosure can be made to a government attorney for use in performing that attorney’s duties, as well as to other government personnel if a government attorney believes it is appropriate to support him or her in performing his or her duty to enforce federal criminal law. Personnel employed by the government include those employed by a state, a state subdivision, or an Indian tribe. Seventh, prosecuting attorneys have the authority to reveal grand jury information to another grand jury. Finally, upon a showing of need, a court may order disclosure “preliminarily to or in connection with a judicial proceeding”. Officials from a state, a state subdivision, an Indian tribe, or a military official can obtain federal grand jury material with court approval for use in prosecuting violations of their own criminal law. Tenth, a government attorney can reveal foreign intelligence details to another federal official without court approval in order to assist that official in performing his or her duties.

A grand juror’s breach of the trials’ confidentiality is not the sort of structural flaw that requires the indictment to be dismissed.

Who is Bound by the Confidentiality Requirement

Unless the laws provide otherwise, the following are prohibited from reporting grand jury matters under Rule 6 of the Federal Rules of Criminal Procedure: Grand jurors, interpreters, court reporters, owners of recording equipment, people who transcribe evidence, and government lawyers and their assistants are among those who are bound by secrecy.

Grand jury witnesses are not included. Since Rule 6(e)(2) expressly states that “no duty of secrecy may be placed on any individual except in accordance with Rule 6(e)(2),” a witness has the right to reveal the subject matter of his or her own grand jury testimony at any time.

The Eighth Circuit, on the other hand, has ruled that courts maintain the power to impose a witness confidentiality requirement in specific cases. As a result, even the investigation’s subject is not entitled to a transcript until he or she is charged. In a similar vein, a witness cannot refuse to testify because he or she would not be provided with a copy of his or her testimony.

What Matters Are Subject to Grand Jury Confidentiality?

Only “a matter arising before the grand jury” is subject to the confidentiality requirement imposed by Rule 6. This standard is broadly described as something that reveals what happened in front of the grand jury. Transcripts of witness testimony, of course, fall firmly within this definition. Memoranda detailing possible witness testimony, memoranda summarizing testimony given, and remarks by a witness to be read to the grand jury are all things that come before the grand jury.

Some courts have broadened the confidentiality requirement to include any information that reveals what is expected to happen in the future as well as what has already happened. However, there is a subset of things in the possession of the grand jury that, if released, does not tend to disclose what happened before the grand jury. For instance, company documents that have been subpoenaed and government audit files that have been turned over to the grand jury are examples of these things. Since these documents existed before the grand jury investigation, access can not be denied simply because the grand jury already has them. When testimony or data is obtained for its own sake—for its intrinsic value in furtherance of a lawful investigation—rather than to learn what happened before the grand jury, as the Second Circuit noted in United States v. Interstate Dress Carriers, Inc.

When testimony or data is sought for its own sake—for its intrinsic value in furtherance of a lawful investigation—rather than to learn what happened before the grand jury, it is not a legitimate defense to disclosure that the same records.

Some courts have clearly determined that it is not a grand jury matter and have allowed disclosure without requiring a specific need to be shown. Others have ruled that these are matters before the grand jury and that a show of specific need is needed, but with a much lower standard of evidence.

The wording of the request for disclosure is particularly important. Even if the material covered by both requests is coincidentally the same, there is a clear distinction between a request for a list of itemized records and a request for “all documents subpoenaed by the grand jury.” The latter, more general, request has been viewed by courts as an effort to learn what happened before the grand jury, and courts have declined to apply the Interstate Dress Carriers approach to those requests.

If you have been investigated by a federal grand jury, call the federal criminal attorneys with Norman Spencer PC to discuss your matter!

In the United States of America, tax evasion is illegal as it is in all countries. Norman Spencer PC is by your side whether you are being investigated by the IRS or are facing criminal tax charges. We will protect you anywhere in the United States or around the world because we have years of experience in tax evasion cases and defending criminal tax matters and the strongest support team of forensic accountants and former IRS officers.

Background on Tax Evasion Cases Enforcement in the United States

The US government is devoting significant resources to vigorously and uniformly implementing internal revenue laws. Individuals and companies who breach tax laws face criminal penalties, which the government hopes will discourage others.

The Tax Division of the United States Department of Justice has the power to administer all federal criminal tax enforcement and to allow or refuse tax investigations and prosecutions.

Administrative Investigations of Tax Evasion Cases by the IRS

IRS Special Agents with the Criminal Investigation Division (CI) investigate complaints of criminal violations and related provisions of Title 18, United States Code.

CI normally launches an investigation in response to one of the following:

• Fraud referrals from other IRS divisions;
• Information from other government entities;
• Information from private parties; or/and matters or projects created by CI.

CI approves investigations into matters that it suspects have the potential for criminal fraud prosecution or warrant further investigation. Special agents may investigate certain crimes to the degree that resources allow. Special agents also perform joint investigations with IRS operating division members. Special agents and revenue agents typically work together to investigate situations where taxpayers file false returns or willfully refuse to file tax returns.

A joint inquiry with revenue officers normally follows a deliberate failure to pay tax. Following the completion of an administrative investigation, the special agent prepares a special agent’s report (SAR), which contains exhibits, recommending that the case be prosecuted by the government.

The SAR, which includes a written account of the investigation and the special agent’s recommendations, is reviewed by both the special agent’s superiors and the Chief Counsel, Criminal Tax Division (CT Counsel). CT Counsel then drafts a Criminal Enforcement Memorandum (CEM) that includes information about the essence of the crime(s) for which the special agent recommends prosecution, the facts used to prove the crime(s), technological or legal challenges, anticipated prosecutorial problems, and the special agent’s particular recommendation.

If the CI Special Agent-in-Charge (SAC) decides that the government should prosecute the case, the case is referred to the Tax Division or, in some cases, the United States Attorney’s Office. A copy of the transmittal letter is submitted to the Tax Division when the IRS refers a case directly to the US Attorney’s Office. If the case involves only legal-source income (i.e., no drugs or organized crime) and the taxpayer’s attorney tell the IRS that the taxpayer wants to enter a guilty plea during an administrative investigation of a criminal tax case, the IRS may refer the case to both the United States Attorney’s Office and the Tax Division for an expedited guilty plea.

The IRS can send tax returns or tax return details with the Department of Justice when it refers a criminal case to them. If the IRS makes the criminal referral, the IRS, including CI, won’t continue or initiate an administrative investigation with respect to the taxpayer for the same tax and taxable period. However, if the Tax Division decides not to prosecute a case submitted to it by the IRS, the IRS can take any disciplinary action it sees fit in the circumstances, including referring the case to CI for further investigation. If CI wishes to investigate the case further, it will issue IRS summonses and the case will continue. The IRS always has the option of referring the case back to the Tax Division.

Inquiries by Grand Jury in Criminal Tax Evasion Cases

Although a federal grand jury investigates both tax and non-tax violations, the Tax Division must first approve and allow the use of a grand jury to investigate criminal tax violations. If CI can’t complete its investigation or decides that the administrative process would not be enough to collect sufficient evidence, it will request that the Tax Division permit a grand jury investigation.

Once a criminal referral has been rendered, the IRS, including CI, does not issue or begin an administrative summons with respect to the taxpayer for the same tax and taxable period. The US Attorneys’ Offices have the authority to perform grand jury inquiries into matters occurring under the Internal Revenue Code to the degree required to 1) perfect tax charges for which the Tax Division has approved an investigation or 2) decide whether the Tax Division can authorize prosecution.

Can a Non-Tax Grand Jury Look Into Possible Federal Tax Evasion Cases?

The short answer is yes. The Assistant Attorney General for the Tax Division has given US Attorneys’ Offices limited authority to extend non-tax investigations in order to prosecute potential federal criminal tax violations, designate targets (subjects), assess the extent of the expanded investigation, and end such proceedings. Before a United States Attorney’s Office may file information or request the return of an indictment in an extended investigation concerning criminal tax matters, the Tax Division must first sanction the relevant tax charges.

In limited cases, the IRS is allowed to refer criminal tax matters to the United States Attorney’s Office for prosecution. As a result, the IRS has given the US Attorney’s Office permission to conduct grand jury inquiries into these matters to the degree possible to perfect the charges to which the IRS has referred directly.

Without the Tax Division’s approval, the US Attorney’s Office does not extend grand jury inquiries into matters occurring under the Internal Revenue Code to include targets that the Tax Division has not previously approved. The US Attorney’s Office and the IRS must send a written request to the Tax Division for approval. The request must provide the necessary foundation for the Tax Division to approve the investigation’s extension.

When a grand jury investigation is completed and the US Attorney’s Office decides that there is sufficient evidence to prosecute, the US Attorney’s Office will ask the special agent assigned to the case to prepare a SAR. When that is done, the special agent will request that CT Counsel review it and prepare a CEM. The SAC must then send the SAR to the Tax Division for review and approval, along with copies of all relevant documents and the CEM. During this time, the US Attorney’s Office or the SAC must give the Tax Division a written recommendation from the US Attorney’s Office about the prosecution of a target for tax violations. Within thirty days, the Tax Division will review the prosecution recommendation. A grand jury investigation’s recommendation against indictment must also be submitted to the Tax Division for review. Alternatively, the IRS would inform the Tax Division that they have no recommendations for action. The Tax Division will complete its analysis within thirty days of obtaining the recommendation and either approve or decline prosecution.

What Can Be Disclose to the IRS in Tax Evasion Cases for Civil Purposes?

The United States Attorney’s Office is not allowed to share “matters occurring before the grand jury” to the IRS for use in a civil tax audit or administrative collection proceedings. There are some exceptions. For example, the court could allow the Government’s motion for grand jury matters to be disclosed for use in certain civil proceedings if the US Attorney’s Office meets the exception requirements set forth in Rule 6(e)(3)(C)(i)(I), which require federal prosecutors to show that it will make the disclosure “preliminarily to or in connection with a judicial proceeding…” and that it has a legitimate reason for doing so. Information that is not considered “matters occurring before the grand jury” may be released.

Grand jury material remains under the jurisdiction of the United States Attorney’s Office or the Tax Division and so the grand jury material may be disclosed only to IRS personnel assisting the government attorney in the criminal investigation and only for the purpose of enforcing federal law; and all grand jury material, including any copies made, must be returned to the United States Attorney’s Office or the Tax Division.

Norman Spencer PC criminal federal attorneys represent clients in federal criminal cases nationwide. Call us today for a consultation!

The Federal Criminal Lawyers of Norman Spencer Law Group defend clients in all federal criminal cases nationwide. If you are summoned to testify as a Grand Jury witness, call us first to make sure your Fifth Amendment rights are protected.

What Exactly Does the Fifth Amendment Mean?

The Fifth Amendment everyone heard of actually protects against self-incrimination. It states that no one “shall be required in any criminal case to be a witness against himself.” The Self-incrimination Clause applies to all residents and non-citizens, as well as the federal and state governments. The Fourteenth Amendment makes it applicable to the states.

Grand Jury Witness and Self-Incrimination

Since the Clause mentions “witness against himself,” the question is what constitutes self-incrimination. Also, because the Clause mentions being “compelled,” another question is what constitutes compulsion.  Finally, since the text refers to a “judicial case,” the question is what proceedings count for purposes of invoking the Fifth Amendment protection arises.

In short, the witness’ testimony is incriminating if it provides information needed to prosecute the witness for a crime. The witness’ testimony is compelled if the witness is forced to testify (as if pursuant to a subpoena). For the purposes of the 5th Amendment, a grand jury proceeding qualifies as a proceeding for invoking the privilege of silence.

What Constitutes Incriminating Evidence?

Testimony is incriminating if it provides a link in the chain of evidence used to convict the witness for a crime or to increase the severity of criminal punishment. The connection must be to a criminal penalty; penalties at work, as well as civil penalties such as deportation, do not count.

The 5th Amendment only applies to domestic prosecutions but not to foreign prosecution. So, a witness can not claim the Fifth Amendment right against self-incrimination if he suspects that the evidence will be used against him in a potential criminal prosecution by a foreign government, even if the witness will be deported and prosecuted in another country.

What is Grand Jury Witness Testimony Compulsion?

Grand jury testimony is considered coerced if the witness is served with a subpoena, or if the witness is threatened with the loss of anything so valuable that the threat is considered coercion.  Being threatened with termination of employment, loss of a professional license, ineligibility to obtain government contracts, and loss of the right to engage in political associations and hold public office are all considered compulsion by the United States Supreme Court.

When Can a Grand Jury Witness Invoke Privilege?

The Fifth Amendment forbids a person from being forced to testify against himself “in any criminal case.” This includes not only existing and pending cases, but also potential criminal cases. So, a witness can invoke the privilege not only in a current criminal case against him but also in any proceeding in which the answers may incriminate him in a future criminal case.

The grand jury, as well as non-criminal proceedings such as civil forfeiture and deportation, and informal proceedings such as an interview with a probation officer, are examples of where a witness can invoke the privilege. However, the witness’ fear of potential indictment must be serious and actual, not speculative or imagined, in order to invoke the privilege.

The way the Fifth Amendment operates in the case of witnesses testifying in a Grand Jury is a little different. We suggest that you speak with a federal criminal attorney before appearing to testify. You will not be able to refuse to testify if you are subpoenaed. As a witness, you will have no choice but to take the stand. You will have to listen to every question the prosecutor asks and then decide when to plead the Fifth. Of course, you can only refuse to answer the questions that could open you to criminal exposure.

Federal prosecutors may sometimes offer a witness immunity in exchange for the testimony. The scope of that immunity is limited to what they testify to at the hearing. Alternatively, they can offer them general immunity from the crimes they are accused to have committed.

It is important to note that the government may also negotiate a plea bargain with a witness if the witness agrees to testify in another case. In that deal is reached, the government could agree to seek leniency for the witness at sentencing.

Convicted Witness’s Privilege Statement

The Fifth Amendment can also be used by a convicted witness. If the testimony would lead to additional criminal charges or may further incriminate the witness at sentencing, the witness could invoke the privilege.

What if a witness has been convicted but has not yet been sentenced (or if his appeal is still pending)? Can such a witness claim the Fifth Amendment right if he is called to testify before a grand jury investigating the conviction? When a witness appears and is interrogated, he has the right to claim the privilege in response to specific questions.

In the case of the convicted witness, the right to ask about the evidence that led to the conviction depends on the status of the conviction or the likelihood of future punishment based on those facts. A witness can legitimately invoke the Fifth Amendment right in response to questions about a crime for which he has been convicted, as long as the conviction is not final.

Federal Criminal Lawyers with Norman Spencer will talk to you about your criminal matter or investigations at any time – no matter where you are. Call us today for a consultation.