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United States v. Sember

United States District Court, S.D. Ohio, Western Division, Dayton

March 31, 2017

JOHN M. SEMBER, Defendant.



         This 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.[1]

         I. BACKGROUND

         On 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 indictment.

         On 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.[2] (See id.)

         Sember 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.)

         In 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 time. (Id.)

         II. ANALYSIS

         The 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.

         Federal 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).

         In 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.

         The 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.

         Over 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 ...

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