United States District Court, S.D. Ohio, Western Division, Dayton
ENTRY AND ORDER DENYING DEFENDANT'S MOTION FOR
PERMISSION TO USE GRAND JURY TESTIMONY (DOC. 167)
M. ROSE UNITED STATES DISTRICT JUDGE
case is before the Court on Defendant John M. Sember's
Motion for Permission to Use Grand Jury Testimony, which is
now fully briefed and ripe for review. (Docs. 167-68.) As
Sember has not shown a particularized need or compelling
reason justifying disclosure of any grand jury testimony at
this time, the Court DENIES the Motion. If, at a later stage
of the litigation, new or additional facts emerge that
warrant reconsideration of this issue, Sember may renew the
Motion at that time.
September 25, 2014, Defendant John M. Sember was indicted for
theft of government property. (Doc. 27.) The charges against
Sember stemmed from his employment as an engineer with Booz
Allen Hamilton Engineering Services (“Booz
Allen”), a federal government contractor. (Doc. 27.) On
March 29, 2016, the Court convened a jury trial and, on April
6, 2016, the jury returned a verdict of not guilty. (Docs.
122, 137.) Sember then filed a civil suit, Case No.
3:16-cv-445, against Booz Allen for damages related to
Sember's prior employment and related criminal
January 4, 2017, Sember filed a Motion Seeking Permission to
Use Grand Jury Testimony from the criminal case in his civil
case against Booz Allen. (Doc. 167.) Specifically, Sember
seeks permission to use limited portions of grand jury
testimony from FBI Special Agent A.J. Eilerman. (Id.
at 1.) Special Agent Eilerman testified before the grand jury
that returned the indictment against Sember and also at
Sember's trial. (See id.)
argues that he needs Special Agent Eilerman's grand jury
testimony to establish that Booz Allen provided false
information to federal investigators. (Id. at 2)
According to Sember, Booz Allen's false statements show
that it had a motive to frame Sember for the destruction of
government property in order to conceal its failure to
properly train Sember regarding the treatment of data and
materials on government projects. (Id. at 3-4.)
Sember argues he has established a compelling reason to use
Special Agent Eilerman's grand jury testimony.
(Id. at 6.)
opposition, the United States argues that Sember does not
need Special Agent Eilerman's grand jury testimony
because he can use Special Agent Eilerman's testimony
from Sember's criminal trial. . (Doc. 168, at 2.) The
Government also argues that the motion is premature because
Sember will have another opportunity to question Special
Agent Eilerman during the discovery stage of Sember's
civil case. (Id.) According to the Government,
Sember's motion would be warranted only if Sember's
civil case goes to trial, Special Agent Eilerman is called as
a witness, and the circumstances warrant disclosure of his
grand jury testimony for impeachment purposes. (Id.)
In that instance, the Government suggests, Sember could then
seek permission to use it. (Id.) The United States
therefore argues that Sember has failed to demonstrate a
particularized need or compelling reason for disclosing
Special Agent Eilerman's grand jury testimony at this
Supreme Court has consistently “recognized that the
proper functioning of our grand jury system depends upon the
secrecy of grand jury proceedings.” Douglas Oil Co.
v. Petrol Stops Nw., 441 U.S. 211, 218-19 (1979). Thus,
Federal Rule of Criminal Procedure 6(e)(2) generally
prohibits the disclosure of matters “occurring before
the grand jury.” Fed. R. Crim. P. 6(e)(2). The
“indispensable secrecy of grand jury proceedings,
” however, may be broken, but only where there is a
compelling necessity to do so. See Douglas Oil, 441
U.S. at 222.
Rule of Criminal Procedure Rule 6(e)(3) provides certain
exceptions to the general rule when grand jury matters may be
disclosed. Rule 6(e)(3)(E)(i) states: “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:
(i) preliminarily to or in connection with a judicial
proceeding . . . .” Fed. R. Crim. P. 6(e)(3)(E)(i).
Under this Rule, a private party in civil litigation may seek
disclosure of grand jury material, but there is a strong
presumption against disclosure. See United States v.
Procter & Gamble Co., 356 U.S. 677 (1958).
Therefore, grand jury testimony may be disclosed to a private
party in civil litigation “only upon a showing of
particularized need.” United States v. Sells
Engin., Inc., 463 U.S. 418, 443 (1983).
order to show a particularized need, the party seeking
disclosure under Rule 6(e)(3)(E)(i) “must show that the
[grand jury] material they seek is needed to avoid a possible
injustice in another judicial proceeding, that the need for
disclosure is greater than the need for continued secrecy,
and that their request is structured to cover only material
so needed.” Douglas Oil Co., 441 U.S. at 222.
This standard, as articulated by the Supreme Court, means
“disclosure is appropriate only in those cases where
the need for it outweighs the public interest in secrecy, and
that the burden of demonstrating this balance rests upon the
private party seeking disclosure.” Id. at 223.
standard controlling disclosure of grand jury material has
its foundation in United States v. Procter & Gamble
Co., which examined whether grand jury testimony could
be disclosed under Federal Rule of Civil Procedure 34. 356
U.S. at 678. In Procter & Gamble Co., the United
States brought a civil antitrust action against multiple
defendants. Id. Before bringing the civil action,
the Government had conducted a criminal investigation of the
same defendants for antitrust violations, but the grand jury
did not return an indictment. Id. The Government
used the grand jury material from the criminal investigation,
however, to prepare its civil case. Id.
Consequently, the defendants in the civil case sought
production of the grand jury minutes. . Id.
the Government's objection, the District Court ordered
production of the grand jury minutes. Id. at 678-79.
The District Court reasoned that “the Government was
using the transcript in preparation for trial, [which] would
be useful to appellees in their preparation, [and] only in
this way could [defendants] get the information.”
Id. at 679. On direct appeal, however, the Supreme
Court reversed, finding that the defendants failed to show
“good cause” for production of the minutes.
Id. at 682. The Supreme Court explained:
No such showing was made here. The relevancy and usefulness
of the testimony sought were, of course, sufficiently
established [by the defendants]. If the grand jury transcript
were made available, discovery through depositions, which
might involve delay and substantial costs, would be avoided.
Yet these showings fall short of proof that without the
transcript [the defendants] would be greatly prejudiced or
that without reference to [the grand jury minutes] an
injustice would be done. Modern instruments of discovery
serve a useful purpose . . . . They together with pretrial
procedures make a trial less a game of blind man's
b[l]uff and more a fair contest with the basic issues and
facts disclosed to the fullest practicable extent. . . . Only
strong public policies weigh against disclosure. . . . They
are present here because of the policy of secrecy of grand
jury proceedings. We do not reach in this case problems
concerning the use of the grand jury transcript at the trial
to impeach a witness, to refresh his recollection, to test
his credibility and the like. Those are cases of
particularized need where the secrecy ...