UNITED STATES OF AMERICA, PETITIONER V. JOHN DOE, INC., I, ET AL.

   No. 85-1613

   In The Supreme Court Of The United States

   October Term, 1986

   On Writ Of Certiorari To The United States Court Of Appeals For The
Second Circuit

   Reply Brief For The United States

   The primary issue in this case is whether Department of Justice
attorneys who conducted a grand jury investigation into possible
criminal violations of the antitrust laws may, after termination of
the grand jury, review their own memoranda, the transcripts committed
to their custody (see Fed. R. Crim. P. 6(e)(1)), and other grand jury
materials in preparing for and litigating a related civil case,
without first obtaining a court order pursuant to Rule 6(e).  The
court of appeals acknowledged that it seemed "fictional" to treat such
review as a "disclosure" requiring a court order and that the threat
of "affirmative mischief" seemed "minimal," but it felt obliged to
prohibit such review by what it thought was the "reluctance imposed on
us from above." Pet. App. 12a, 16a-17a.

   We demonstrated in our opening brief that the court of appeals'
skepticism was well-founded.  Rule 6(e) draws a line between different
people, not between an "attorney for the government" and the sources
of refreshment of his recollection.  Neither the plain language of
Rule 6(e) nor the purposes served by grand jury secrecy --
facilitating the investigation and prosecution of crime, protecting
the innocent, and preventing misuse of the grand jury -- require that
a government attorney seek a court order when he is not making any
disclosure of "matters occurring before the grand jury" to any other
person.  No purpose would be served by requiring attorneys on the
"prosecution team" to present to a district court in each case the
threshold question whether they may participate in a related civil
case and may review their own memoranda and other grand jury materials
in doing so.  /1/ The only practical consequence of such an
unjustified extension of the meaning of "disclosure" would be to force
double staffing of cases with a consequent reduction in law
enforcement.  U.S. Br. 22-37.

   A. Respondents and their amici, Archer-Daniels-Midland Company and
Nabisco (ADM) assert, without enthusiasm, that (1) review of grand
jury materials by attorneys on the prosecution team is disclosure.
Their principal arguments, however, are that (2) permitting review of
grand jury materials by the members of the prosecution team will
inevitably lead to unlawful disclosure to other people of "matters
occurring before the grand jury";  (3) Rule 6(e) prohibits the review
of grand jury materials in connection with a civil case even if there
is no disclosure;  (4) it is unfair for the government to have access
to information that is not automatically available to a civil
defendant;  and (5) in any event, the question whether an attorney on
the prosecution team should be permitted to participate in a
subsequent civil case and review grand jury materials should be
resolved in each case by a district judge.  None of these contentions
has merit.

   1. It would do substantial violence to the English language to say
that a government attorney's continued access, during the civil phase
of a dispute, to grand jury material with which he is already familiar
constitutes "disclosure" of that material.  Since no legislative
history counsels otherwise, the rule must be "accept(ed) * * * as
meaning what it says" (Schiavone v. Fortune, No. 84-1839 (June 18,
1986), slip op. 9).  Respondents offer no serious argument that such
continued access constitutes "disclosure" except (Resp. Br. 18) to
misconstrue one remark of the Ninth Circuit as quoted by this Court in
United States v. Sells Engineering, Inc., 463 U.S. 415, 422 n.6(1983).
 As we explained in our opening brief (U.S. Br. 25 n.19), the Ninth
Circuit's only point was that a challenge to an improper transfer of
materials to a new person does not become moot the moment the transfer
is made, because the new person's continuing review enlarges the
amount of improperly gained knowledge.  By contrast, the prosecutor's
continuing access does not tell any person anything Rule 6 did not
permit him to know in the first place.

   2. Respondents contend (Resp. Br. 13-17) that if attorneys on the
prosecution team are permitted to review grand jury materials in
connection with a civil case their further actions, /2/ including the
filing of a civil complaint, will inevitably disclose "matters
occurring before the grand jury" to other people.  This argument has
serious implications, because (as ADM notes (ADM Br. 11)), it applies
equally to the use of unrefreshed recollections and suggests that
there ought to be a flat prohibition on any participation by attorneys
on the prosecution team in the civil case.  The argument is, however,
without merit.

   Respondents are not entitled to suppress information about their
conduct merely because a grand jury investigated it:  the purpose of
grand jury secrecy is to prevent disclosure of the workings of the
grand jury itself, not to conceal any information the grand jury
happens to have considered.  See United States v. Interstate Dress
Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960).  A complaint need not,
and the court of appeals rightly held that the complaint in this case
did not, disclose "matters occurring before the grand jury" (Pet. App.
17a).  To the contrary, as the court of appeals pointed out, the
"complaint * * * does not quote from or refer to any grand jury
transcripts or documents subpoenaed by the grand jury, and does not
mention any witnesses before the grand jury or even refer to the
existence of a grand jury" (Pet. App. 5a).  The court of appeals
therefore properly rejected (id. at 17a) respondents' contention
(Resp. Br. 13-14) that filing the complaint violated Rule 6(e), and
respondents did not seek review of that ruling in this Court.  /3/

   The same fundamental point answers respondents' contention (Resp.
Br. 15-18) that continued access would inevitably lead to disclosure
in discovery or trial.  The mere fact that the government attorney has
a refreshed (or unrefreshed) recollection of the grand jury
investigation as he frames civil discovery requests, confers with
witnesses, or poses questions at trial, does not mean that he is by
those actions disclosing the existence or workings of the grand jury.
Should the government find that it must disclose matters occurring
before the grand jury to conduct discovery or meet its burden of proof
at trial, the government will seek a Rule 6(e) order at that time.
The government has unequivocally acknowledged its obligation to seek
and obtain a Rule 6(e) order before using any grand jury materials in
a civil case in a manner that would disclose the workings of the grand
jury.  See U.S. Br. 18;  U.S.C.A. Br. 33.  /4/

   Similarly, there is no reason to presume that defendants' discovery
requests will require revelation of matters occurring before the grand
jury.  The government will normally be able to respond, for example,
to interrogatories about its case and the evidence it will present at
trial without revealing the existence or workings of a grand jury.  If
the government cannot meet a discovery obligation without disclosures
that would require a Rule 6(e) order, the government will seek one at
that time.  In sum, these problems can and must be dealt with if and
when they arise:  they are not a reason for denying members of the
prosecution team any role in the prosecution of a civil case, or for
denying them continued access to materials they have previously
prepared or seen.

   3. Respondents appear to argue (Resp. Br. 9-11) that in any event
Rule 6(e) prohibits all use of the fruits of a grand jury
investigation in a related civil case without a court order.  This
argument, like the preceding one, implies that an attorney on the
prosecution team should be barred from any role in the civil case
because of his knowledge (even if not refreshed) of the grand jury
proceedings.  /5/

   But there is no evidence whatever that Congress intended to treat a
grand jury investigation as if it were an unconstitutional search.
/6/ To the contrary, grand jury proceedings are the constitutionally
mandated procedure for determining whether there is evidence to
warrant charging a felony.  As long as the grand jury is used only for
proper purposes and there is no disclosure of matters occurring before
it, there is no reason why the knowledge thus expensively gained
should not be used for otherwise proper law enforcement purposes.
There is no evidence that Congress intended to forbid the Department's
not uncommon practice (see Sells, 463 U.S. at 470-472 (Burger, C.J.,
dissenting)) of using the same personnel in criminal and civil cases.

   This Court ruled in Sells that Rule 6(e)(3)(A)(i) does not permit
disclosure of grand jury materials for noncriminal use without a Rule
6(e) order.  But the Court was there concerned with an interpretation
of the Rule that would have permitted disclosure to any other attorney
in the Department of Justice, for any otherwise proper purpose;  the
Court expressly declined to address "any issue concerning continued
use of grand jury materials, in the civil phase of a dispute, by an
attorney who himself conducted the criminal prosecution." 463 U.S. at
431 n.15.  Nothing in subparagraph (A)(i), a disclosure rule,
prohibits such continued use by the same attorney, and there is no
evidence that Congress intended such a prohibition.  None of the
considerations underlying grand jury secrecy /7/ counsels against such
use, because it does not widen the circle of knowledge of the workings
of the grand jury.  And, as we explained in our opening brief (U.S.
Br. 35-37), the court of appeals was correct in concluding that such
use will not lead to misuse of the grand jury's powers (Pet. App.
13a-15a).

   4. Respondents argue (Resp. Br. 7-9, 19-20) that it is simply
unfair for government attorneys to have continued access to grand jury
materials in a civil case.  The answer to this argument has two parts.
 First, we fully agree that the government may not convene or use the
grand jury for the purpose of developing evidence for a civil case.
But neither court below concluded, and there is not the slightest
evidence, that the grand jury was so used in this case.  Nor, as the
court of appeals acknowledged (Pet. App. 14a), would there be a
temptation to such misuse in any case where the government has
extensive civil discovery powers, such as it has under the Antitrust
Civil Process Act (ACPA), 15 U.S.C. 1311-1314.  More generally, there
is little temptation to improper convening or use of a grand jury for
civil purposes where only the attorneys on the prosecution team have
access to the grand jury materials and the only permitted use is to
refresh their recollections.  And since, by hypothesis, the attorneys
who conducted the grand jury are before the court in the civil case,
it should not be difficult to inquire into a claim of use of the grand
jury to gather evidence for the civil case and, if necessary, impose
an appropriate remedy.

   Second, there is no rule of fairness that requires the government,
after a bona fide grand jury investigation, to start from scratch in a
civil proceeding.  /8/ To begin with, the defendants are not starting
from scratch:  they have superior knowledge of their own conduct and
their own records and substantial information they gained from the
grand jury proceeding, including the documents they produced and
information about the testimony of their own and perhaps other
witnesses (who are not under any obligation of secrecy).  More
fundamentally, the Federal Rules of Civil Procedure seek to prevent
trial by surprise, not to put all litigants on an identical footing.
If the grand jury proceedings have been conducted in good faith, and
if appropriate discovery and a fair trial can be conducted without
disclosure of matters occurring before it (or if an appropriate Rule
6(e) order can be framed should such disclosure be necessary), there
is no need to waste public resources and impede the search for truth
by prohibiting attorneys on the prosecution team from participating in
the civil case or from having continuing access to materials already
known to them.

   5. ADM argues (ADM Br. 23-26) that the issue in this case is not
whether government attorneys may ever use their refreshed or
unrefreshed recollections of grand jury proceedings in prosecuting a
civil case, but only whether they must first get permission from a
district court.  But apart from the fact that Rule 6(e) simply does
not impose such a requirement, neither respondents nor ADM seriously
contends that this threshold issue should turn on the facts of a given
case.  To the contrary, they contend (Resp. Br. 20-21);  ADM Br. 10,
23-25) that the government should not be able to make any use of grand
jury materials in a civil case where the same information is
potentially available (at whatever cost after whatever delay) through
civil discovery;  and they contend with equal vigor (Resp. Br. 7-8;
ADM Br. 16-17) that grand jury materials should not be used where the
same information is not available to the government through civil
discovery.  Neither respondents nor ADM suggests any state of facts on
which a Rule 6(e) order authorizing an attorney on the prosecution
team to participate in the civil case and to review grand jury
materials would be proper.

   This threshold question -- whether an attorney on the prosecution
team may participate at all in a related civil case and whether he may
review grand jury materials so long as he does not disclose matters
occurring before the grand jury to others without a court order --
should be answered by this Court.  The answer does not depend on the
circumstances of the case, and "particularized need" is not a
meaningful criterion in this context.  Indeed, a district court order
permitting members of the prosecution team to participate in a civil
suit and to review grand jury materials would not resolve the supposed
problem on which respondents' argument is largely based:  the possible
need for disclosure to new persons in the course of discovery or
trial.  That problem, to the extent it is real, can only be dealt with
by requiring the government attorney to obtain a Rule 6(e) order
before he may disclose matters occurring before the grand jury to
someone else during civil discovery or trial.  It is at that stage,
and not before, that the district court has a meaningful role to play.

   B. We demonstrated in our opening brief (U.S. Br. 38-44) that the
district court acted well within its "substantial discretion" (Douglas
Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223 (1979)) when it
issued a Rule 6(e) order that permitted disclosure of grand jury
materials solely to other government attorneys, under a strict
requirement of continuing confidentiality, and expressly limited those
attorneys to using the materials for the narrow stated purpose of
assisting the Antitrust Division in determining the appropriateness of
bringing a False Claims Act count in this case.  Compare U.S. Br.
38-44 with Resp. Br. 22-25.  Respondents have not answered our
arguments.

   Respondents do not contend that the purpose for which the
government sought disclosure was inconsistent with "the ends of
justice" (United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234
(1940)).  Nor do they deny that the need to insure consistency in the
enforcement of federal law is a "relevant consideration(), peculiar to
(the) Government * * * that weigh(s) for * * * disclosure" (Sells, 463
U.S. at 445).  Finally, respondents do not claim that the use made of
the disclosure here exceeded the narrow and limited scope authorized
by the district court.  On these points there is no dispute.

   Respondents do claim (Resp. Br. 25) that the district court failed
to specify in its order precisely what materials would be disclosed to
the Civil Division.  As we have explained (U.S. Br. 44), however, the
purpose for which disclosure was sought made it impossible to specify
in advance exactly what information the Civil Division would need in
order to offer its expert advice on the False Claims Act.  /9/
Accordingly, the district court carefully limited the extent of
disclosure by a different method:  identifying the precise purpose for
which disclosure was to be made and limiting disclosure to that
purpose.

   Respondents also endorse (Resp. Br. 23) the court of appeals'
ruling (Pet. App. 10a) that delay and expense "can play no part" in
determining whether a Rule 6(e) order should be granted, so that the
government must engage in duplicative discovery in any case where it
can do so.  That ruling was erroneous:  assuming arguendo that a Rule
6(e) order may never be issued solely in order to save time and
expense, where as here the time and expense involved are obviously
prohibitive in relation to the purpose for which the materials are to
be used, denial of an order does not merely impose delay or cost:  it
defeats a valid government objective (here consultation) and serves no
purpose except to hinder law enforcement.

   For the reasons stated above, and in our opening brief, the
judgment of the court of appeals should be reversed.

   Respectfully submitted,

   CHARLES FRIED

      Solicitor General

   DECEMBER 1986

   /1/ Respondents assert (Resp. Br. 8-9) that the government does not
"own" grand jury materials and that it wrongfully refused to return
them in thise case.  The first assertion is misleading, and the second
is false.  The most important document that the government attorney
will want to review will usually be the lengthy memorandum, prepared
by the prosecution team, which summarizes the evidence presented to
the grand jury and analyzes the law and other considerations.  That
"prosecution memorandum" is no doubt "government property," but we
fully agree that the members of the prosecution team may not disclose
it to other people without a Rule 6(e) order.  Other important
documents are the transcripts of the grand jury's proceedings.
"Ownership" of these documents is a moot point:  Rule 6(e)(1)
expressly provides that the government attorney shall keep them in his
custody or control unless the court orders otherwise.  Finally,
subpoenaed pre-existing documents (which may not be subject to Rule
6(e) at all unless their disclosure would reveal the workings of the
grand jury, see, e.g., SEC v. Dresser Industries, Inc., 628 F.2d 1368,
1382-1383 (D.C. Cir.), cert. denied, 449 U.S. 993 (1980);  United
States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir.
1960)), certainly belong to whoever provided them.  Here, the
government did not wrongfully retain any documents:  some documents
were returned;  only one of the eight respondents requested the return
of additional documents, and (in view of the pending civil
investigation and the outstanding CIDs) the Antitrust Division and
that respondent entered into a mutually satisfactory arrangement for
the return of some documents and the copying of others.  In sum, the
question of ownership has nothing to do with the issues in this case.

   /2/ The court of appeals was not troubled by the risk that
continued access by the attorneys themselves would lead to an improper
disclosure.  The court's concern (Pet. App. 15a-16a), echoed without
elaboration by respondents (Resp. Br. 20), was that grand jury
materials may be disclosed to secretaries and paralegals working with
the attorneys and that such support personnel may, in turn, disclose
such materials to others.  But, first, we demonstrated in our opening
brief that support personnel are properly considered extensions of the
attorney (see U.S. Br. 31-33).  Second, disclosure by such personnel
(of which there is no evidence in this case) is no more likely in this
context than in a criminal prosecution and would be punishable as
contempt.

   /3/ Respondents claim (Resp. Br. 15) that the government conceded
in the district court that "at least 90 percent of the material on
which the civil case will be based is grand jury material." But the
implication that a reader of the complaint would learn anything about
the existence or workings of the grand jury is false.  First, while
the government certainly did obtain a great deal of material during
the grand jury period, as it told the court of appeals (U.S.C.A. Br.
44 n.43) it also obtained a great deal of important information
thereafter from other sources, such as CIDs, witness interviews, and
voluntary document production.  Second, the complaint itself did not
directly or indirectly identify anything the grand jury considered or
did.  The courts below thus correctly rejected the contention that the
complaint reveals anything about the existence or workings of the
grand jury.

   /4/ Moreover, a "threshold" Rule 6(e) order permitting attorneys on
the prosecution team to participate in the civil case and review grand
jury materials would not authorize government attorneys to disclose
matters occurring before the grand jury to other people during
discovery and trial:  such actions would require additional Rule 6(e)
orders.  In short, respondents' proposal to require a threshold order
does not even address the supposed discovery and trial problems they
raise.

   /5/ This is exactly what ADM contends in its pending petition in
No. 85-1840;  indeed, ADM there appears to argue that a government
attorney who has participated in a grand jury investigation should be
indefinitely barred from working on any case involving the same
industry.  The Court of Appeals for the Eighth Circuit ruled in that
case that assignment of attorneys who had participated in a grand jury
proceeding to a later civil case does not constitute "disclosure" of
grand jury materials to anyone.  See 785 F.2d 206, 212 (1986).

   /6/ The only legislative history cited by respondents (Resp. Br.
10-11) as support for their position is a statement, at a House
Hearing preceding the 1977 amendment of Rule 6(e), by then-Acting
Deputy Attorney General Richard Thornburgh.  The Court in Sells read
Thornburgh's statement as supporting the proposition that no
"disclosure of grand jury materials for civil use should be permitted
without a court order" (463 U.S. at 440 (emphasis added;  footnote
omitted)).  Here, however, there has not been any disclosure of grand
jury materials without a court order.

   /7/ Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211,
218-219 (1979) (footnote omitted):  "(W)e have noted several distinct
interests served by safeguarding the confidentiality of grand jury
proceedings.  First, if preindictment proceedings were made public,
many prospective witnesses would be hesitant to come forward
voluntarily, knowing that those against whom they testify would be
aware of that testimony.  Moreover, witnesses who appeared before the
grand jury would be less likely to testify fully and frankly, as they
would be open to retribution as well as to inducements.  There also
would be the risk that those about to be indicted would flee, or would
try to influence individual grand jurors to vote against indictment.
Finally, by preserving the secrecy of the proceedings, we assure that
persons who are accused but exonerated by the grand jury will not be
held up to public ridicule." Obviously, none of these interests is
affected by the prosecution team's continuing access to grand jury
materials so long as they are not "made public." Respondents'
suggestion (Resp. Br. 12) that witnesses undeterred by the possibility
of criminal proceedings would be "less willing to testify" if members
of the prosecution team can participate in and review grand jury
materials in connection with a subsequent civil case is groundless.

   /8/ Respondents' suggestion (Resp. Br. 20-22) that the Antitrust
Division should proceed initially in all cases with discovery under
the ACPA and only after those proceedings are complete convene a grand
jury is not to be taken seriously.  Deliberate delay of the decision
whether to bring a criminal case, and civil discovery in the course of
making that decision, are hardly in the interests of the defendant and
would greatly prejudice the government:  delay would allow critical
documents to be destroyed, targets to coordinate their testimony, and
criminal statutes of limitations to run.  And in any case where
government attorneys took the matter to a grand jury but no indictment
resulted, the government attorneys would, on the theories advanced by
respondents and ADM, still be unable to participate in a civil case
because of their participation in the grand jury proceedings.

   /9/ The purpose of the disclosure was to summarize the case,
including the evidence, as precisely as possible, so as to get
assistance in making an overall decision.  In fact, although the grand
jury record here comprised approximately 250,000 pages of documents
and testimony, the Antitrust Division disclosed only a few hundred
pages of fact memoranda and testimony to the Civil Division.
Respondents' assertion that there was a "blanket disclosure" (Resp.
Br. 25) is incorrect.