good morning may please the court my name is christopher black and i represent michael spitz our the defendant in the underlying case and the appellate in this matter i hope to reserve around two minutes for rebuttal for the court's information it appears that there are two main issues in this case the first is whether federal rule of criminal procedure sixty three a authorizes disclosure of gran materials without a court order for the purpose of forcing a restitution order and a criminal judgment the second is where whether preexisting business records subpoenaed by the grand jury constitute matters occurring before the grand jury such that records are subject to sixty in the first place as the first question whether the rule permits disclosure without in order to enforce restitution it's clear from the case law and the history of the rule that such disclosure is not as set forth in both the supreme court's decision in cells and the underlying ninth circuit case the secrecy exception for disclosure to government attorneys is limited to performance of their duties in conjunction with the grand jury presenting evidence the grand jury assisting the grand jury in the painting evidence the set for the very clearly ansel's the rule does not permit disclosure in the broad circumstances that the government argues so what you're telling us is if in fact these records are protected under sixty two that under six e three there's no exceptions correct you're on so i guess i'm going to get you to sixty two because it seems to me that's the big issue it does is are these records that are prevented from disclosure at all i'll turn to that  if they're not then you don't even get to sixty three critics say three is the exception to the general rule and i guess i'm put running you there because i'm wondering how you're going to get around diana back that your honor i had been intending to get there in the second for my presentation but i'll jump there to address your honor's question as to the second question your honor is of course right the dyna fact case is the main case and provides the most relevant authority on this issue and it says or the grand jury proceedings have concluded in the indictment has been issued disclosure would not compromise the integrity of the jan grand jury process when they are preexisting business records generated for a purpose other than the grand jury investigation and records right but that is correct of course or they were generated for a purpose other than the grand jury investigation right the records in this case you're right they were generated for the grand jury they were generated for purposes other the grand jury that's correct so and the grand jury proceedings of concluded correct of course you are and the indictment is issued yes the dynamic head on right  be different but if you would address what done to fix it only in a rare and unusual case what would make this a rare and unusual case it seems more of a garden variety case  and unusual case with disclosure not be permitted in such as this the difference between this case and dinah fact and this case and other cases is this is a large financial fraud case where the grand jury subpoenaed a large number of records and the case itself is largely defined by the content of those records and so when there's disclosure made of the entire set of preexisting records even though they are preexisting it does reveal the grand jury's liberty of process to a large extent that would almost seem like the opposite i  i'm swimmin and documents i have no idea what the grand jury's focused on i mean that's like pool plaintiff's lawyers they want all or records of the company so what i do is i get myself a good potato seller and i fill up a taito seller with dollar records there are of this corporation i think go find out what you want there's no way they can say what the grand jury did when they got all these records and they swim through  all they don't have any idea but they do have better idea if it's very limited that's why the dyna back is really not very helpful to you because the records are limited they're not every record they could've had there's no way they could have known what the grand jury was going to do with this scratch of records or did again your honor i would submit that the  fact of what records were subpoenaed by the grand jury and perhaps the sequence of the subpoenas if that is included in the documents that are disclosed does does reveal the deliber process or not got anything about the subpoenas here all week or the business preexisting business records generated for a purpose other than the grand jury investigation of course you are and i'm i'm discussing what the practical i know you're discussing the practical let's why i threw out to the practical it's very easy for us when we don't want anybody to know exactly what the corporation did or didn't to throw lol all of our records into a great big potato cellar and say go find them there's no way they're no on what we're thinking or not thinking that's the same air they got or records and got a limited amount where there no one knew exactly what the grand juries look at that they got all or records there and they can look at all of them and they have as therefore i don't understand how you would even get to the idea that somehow they know what the grand jury was doing or didn't do and again using example of of what action of the grand jury would be revealed but these records and again the i believe that the grand jury is thinking in terms of what the facts in that case were such that they were different it was a limited disclosure not directly from the grand jury and led to a statement in the context of that case was that it was you know what you want to save your remaining time yes i would like to thank you but one thing i thought my colleague asked you the one hundred in my book the mountain dew question the best question why is this a rare and unusual case and again i think her question is very hard for you to answer and your honor i am attempting to answer i believe that given the nature of the case which is a large financial fraud case which is largely based on the documents it does essentially reflect the large financial product cases are always rare and unusual not always rare not unusual your honor but what makes this one more rare and unusual as compared to other financial fraud cases i don't have an answer to that but compared to general cases there are two cases generally the large financial fraud case if all of the records are subpoenaed it reflects the the thought process of the grand jury as compared to many other cases which are maybe more based on testimony other types of evidence that sort of thing so as to whether this specific case is different than other financial fraud cases i don't i don't believe that that's the case but it certainly is different than your garden variety federal criminal case thank you thank was ready for sure i'm an assistant u s attorney in spokane washington this court should affirm the district court's decision releasing grand jury material to the financial litigation unit for three reasons the the the plain language of the rule itself explicitly allows a release of this material to government personnel to assist in the forefront of criminal law that's the exception right yes it is your honor second the district  in this case simply applied the teaching from dying of act which helped that pre existing business and financial records are not matters occurring before the grand jury and the district judge applied that and said it was proper to these documents and third used by the financial litigation of the u s attorney's office in this particular case it was not for a civil proceeding per se as it was in sales engineering it was in fact to enforce the criminal judgment that the district court had handed down so that the flu could recover restitution but the enforcement would be civil the enforcement would use may use civil tools to enforce but i don't believe it's a civil proceeding it's still enforcement of the criminal judgment in this particular case the district court did exactly what it was supposed to do looked at the law at the time looked at the rule and said there is no prohibition on releasing this this material to the financial litigation unit and i believe there was no error by the court whatsoever and this seems to be a fairly routine matter that question came up with counsel these financial fraud cases are not uncommon in our office i see my colleagues busy with those all the time restitution is ordered in all these cases there's a law demanding that we seek restitution for those victims and so we are just enforcing the criminal law that's in place and this court has held that the enforcement of a criminal judgment is in fact part of the underlying criminal  case i will certainly entertain some questions if you have some but i believe the case is very clear and think we're out of question right thank you for your time we have a little bit of rebuttal time if you'd like that you are so just like to point to in the diana fact case the while the court didn't explicitly state that it's a rule or a test it did note that if a document is sought for its own sake rather than to learn what took place before the grand jury and if its disclosure will not compromise the integrity of the grand jury process will succeed does not prohibit its release again based on the disclosure of the full range of documents i'd submit that the that does compromise the integrity of the grand jury process and for that reason that fails the test set forth in d act as to exception to the grand jury secrecy will thank you thank you thank both counsel for your argument this morning in the case of united states versus spitz our is submitted