United States Court of Appeals

For the First Circuit

No. 08-1880

IN RE: GRAND JURY

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Torruella, Stahl, and Howard,

Circuit Judges.

Andrew Good, with whom Philip G. Cormier and Good & Cormier,

were on brief for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief for

appellee.

May 11, 2009
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TORRUELLA, Circuit Judge. This appeal arises from an

ongoing grand jury investigation. The appellant, a non-target,

testified before the grand jury concerning highly technical and

ancient subject matter. After approximately three hours of

testimony, during which the government reminded the appellant

repeatedly that a failure to testify truthfully would be subject to

possible perjury charges, the government continued its examination

to a later date. In the interim, the appellant sought access to a

transcript of his prior testimony pursuant to Federal Rule of

Criminal Procedure 6(e)(3)(E)(i). The district court denied the

request, finding that the appellant failed to provide a strong

showing of a particularized need for access to the transcript. The

appellant refused to testify further, and, on the government's

motion, the district court found the appellant in contempt. This

appeal followed. After careful consideration, we reverse and

remand.

I. Background

To avoid compromising the grand jury investigation, we

only discuss the bare minimum of facts necessary to dispose of this

appeal.

In May 2008, the government issued a subpoena to the

appellant to testify before a federal grand jury sitting in the

District of Massachusetts, and subsequently issued a subpoena
We note that during the course of this appeal we requested a copy 1

of the transcript and exhibits from the appellant's appearance for

our own independent review.

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directing him to produce documents related to the subject matter of

his testimony.

After receipt of the subpoenas, the appellant indicated

through counsel that he would assert his Fifth Amendment right

against self-incrimination and would refuse to testify. In

response, the government applied for and obtained an order granting

the appellant use immunity pursuant to 18 U.S.C. §§ 6002 & 6003,

and compelled him to testify before the grand jury.

About a week later, in June 2008, the appellant testified

before the grand jury for approximately three hours and fifteen

minutes. During his examination, which was conducted by three

assistant U.S. attorneys simultaneously, the prosecutors warned the

appellant multiple times that the use immunity order did not

protect him from prosecution for testifying falsely. In some

instances, the prosecutors asked repetitive questions, and

suggested inconsistencies in the appellant's testimony. Other

times, the prosecutors verbally abused the appellant. However, the

prosecutors did not indicate that they were planning to indict the

appellant on perjury or obstruction of justice charges. Moreover,

the appellant was questioned about events and documents of

significant complexity. A number of these events and documents

dated back to 1999.1
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The government did not complete its examination.

Consequently, the government ordered the appellant to return and

complete his testimony the following week. At the appellant's

request, the government agreed to continue his return to the grand

jury for an additional two weeks, until early July 2008.

In the interim, counsel for the appellant sent a letter

to the government seeking an opportunity for the appellant to

review the transcript of his grand jury testimony in advance of his

second day of testimony. The government declined the request.

As a result, the appellant filed an emergency motion for

access to a transcript of his grand jury testimony pursuant to Fed.

R. Crim. P. 6(e)(3)(E)(i), which authorizes a court to order

disclosure of grand jury materials "preliminarily to or in

connection with a judicial proceeding." In particular, appellant

sought to review his transcript at the U.S. Attorney's office or a

similar location, and further requested that his lawyer accompany

him and that the appellant be allowed to take notes.

In support of his motion, the appellant cited a recent

D.C. Circuit decision, In re Grand Jury, 490 F.3d 978 (D.C. Cir.

2007), in which the court held that grand jury witnesses are

entitled under Rule 6(e)(3)(E)(i) to review transcripts of their

own grand jury testimony. See id. at 980, 990. In the

alternative, the appellant argued that he has shown a

particularized need for access to the transcript given the
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prosecutors' warnings of possible perjury prosecution and the

complexity of the subject matter of his testimony. The government

opposed, and argued that, under First Circuit law, the appellant

must provide "a strong showing of particularized need" to obtain

access, see In re Special Proceedings, 373 F.3d 37, 47 (1st Cir.

2004) (quotation marks omitted), and that the appellant had failed

to do so.

A hearing was held on the same day as the filing of the

emergency motion, which, as the district court noted, did "not

provide[] a great deal of time for reflection." In ruling on the

motion, the district court first acknowledged that "at least at

first reading I agree with the reasoning of the D.C. Circuit case."

In particular, the district court noted that the benefit to the

witness of access far outweighs the "very mild burden on grand jury

secrecy, so mild as to be close to nonexistent," since a witness is

not bound to keep his testimony secret, and could easily debrief

his or her attorney after testifying. Moreover, although the

district court recognized the "potential administrative burden"

caused by the D.C. Circuit rule in permitting access, it concluded,

in its own view, that "the benefit to the witness greatly outweighs

the burden to the government."

Nevertheless, the district court concluded that it was

bound by First Circuit precedent, and thus required the appellant

to provide a strong showing of a particularized need for the
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transcript in order to obtain access. In examining whether the

appellant had made a showing of particularized need, the district

court stated:

I do not find that there is a particularized

need here, that is, as I interpret the case

law, as to what is required to show a

particularized need; that there are three

unusual aspects to this: The first is that

the testimony spread over two days or more

than one day; the second is that the witness

was confronted by the prosecutor and given

perjury warnings about the accuracy of some of

his statements; and the third is that the

subject matter is quite complex. While to

some extent those facts are unusual, they're

not highly unusual, and I don't think under

the [In re] Bianchi [542 F.2d 98 (1st Cir.

1976)] and In Re: Special Proceedings line of

cases are enough to show particularized need.

Accordingly, the district court denied the motion.

One week later, in mid-July 2008, the appellant appeared

before the grand jury but refused to answer questions. That same

day, the government petitioned the district court to hold the

appellant in civil contempt pursuant to 28 U.S.C. § 1826. Still

that same day, the district court conducted a hearing during which

it allowed the government's petition for contempt in an oral ruling

and written order. However, the district court stayed that order

during the pendency of any appeal.

Counsel for the appellant also pointed out that the

transcript of the appellant's first day of grand jury testimony was

now available, and moved the district court to order the government

to file the transcript with the court. After initially
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entertaining the request, the district court denied the motion,

because it was concerned about the "mechanical difficulties

involved," and since it was "not relying on what the transcript

said, I don't feel I need to see the transcript. I won't make it

part of the record."

II. Discussion

On appeal, the appellant contends that the district court

erred in denying his request to review a transcript of his grand

jury testimony prior to his second day of examination. We review

any rulings of law de novo, and, to the extent we find no legal

error, any denial of disclosure for abuse of discretion. See In re

Grand Jury Proceedings, 580 F.2d 13, 18 (1st Cir. 1978).

A. Standard That Applies to a Request for Access

The appellant first contends that the district court

erred as a matter of law in requiring him to provide a "strong

showing of particularized need" in order to obtain access to his

transcript. Instead, the appellant argues that a "less demanding"

standard of particularized need applies when a grand jury witness

seeks only access to a transcript of his testimony, rather than a

copy. For support, appellant relies on In re Grand Jury, a recent

D.C. Circuit decision where the court held that grand jury

witnesses are entitled "to review transcripts of their own grand

jury testimony in private at the U.S. Attorney's Office or a place

agreed to by the parties or designated by the district court." 490
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F.3d at 990. Given its importance to the appellant's claims, we

discuss the D.C. Circuit's decision in some detail.

1. The D.C. Circuit Decision

Grand Jury involved a grand jury investigation into a

company and its employees. Id. at 980. Two employees of the

company testified before the grand jury, and were subpoenaed to

testify an additional time. Id. Both moved for access to a

transcript of their prior grand jury testimony before testifying

further, "in order to avoid the possibility of inconsistent

statements occasioned by the passage of years since the events in

question and many months" since they last testified, as well as the

possible need "to take advantage of recantation pursuant to 18

U.S.C. § 1623." Id. at 984. The district court denied both

motions, finding that neither employee provided a sufficient

showing of "particularized need" for the transcripts that

"outweighed the interests in maintaining grand jury secrecy." Id.

at 984 & n.4.

On appeal, the D.C. Circuit, addressing the issue for the

first time, see id. at 987, noted that the district court, in

requiring a showing of particularized need, relied on Supreme Court

precedent that concerned third parties seeking copies of such

materials. See id. at 984 & n.3 (citing, among other cases,

Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222-23

(1979)). However, in contrast to a third party, a grand jury
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witness is under no obligation to maintain the secrecy of grand

jury proceedings. Id. at 985; see also Fed. R. Crim. P. 6,

Advisory Committee Notes, 1944 Adoption, Note to Subdivision (e)

("[R]ule does not impose any obligation of secrecy on witnesses.").

With this background in mind, the D.C. Circuit addressed

"when courts should" provide access. Grand Jury, 490 F.3d at 986.

Noting that the text of Rule 6(e)(3)(E)(i) is "open-ended," and

following the "general analytic approach" of other circuits that

have addressed the issue, the court "weigh[ed] the competing

interests of the Government and grand jury witnesses." Id. at 987.

As to witnesses, the district court identified two interests in

obtaining access: (1) the need to "ensur[e] that their

recollections are accurately reflected in the transcripts," and

(2) for those witnesses who "may testify again in the same

investigation . . . to help prepare for the upcoming testimony."

Id. at 988. As to the government, the court identified two

competing interests: (1) to maintain grand jury secrecy, and (2) to

prevent witness intimidation. Id.

The court concluded that the witness interests in access

outweighed the government's interests in prohibiting such access.

As to secrecy, the court noted that the secrecy rationale was meant

to prevent "the public or others from learning what a grand jury

witness said to the grand jury." Id. Thus, while preventing

access to a third party was necessary to maintain the secrecy of
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grand jury witness testimony, preventing access to the witness

himself "makes little sense," since a witness already knows the

content of his testimony and, in any event, has the right to

broadcast the substance of his testimony if he so desired. Id. at

988-89 (noting that "the witness can stand on the courthouse steps

and tell the public everything the witness was asked and

answered"). The D.C. Circuit therefore concluded that "the Supreme

Court's 'particularized need' standard, which the Court crafted to

deal with third-party requests for secret transcripts of other

witnesses' testimony, does not apply in this first-party context."

Id. at 989.

As to witness intimidation, the court found compelling

the concern that providing copies to a witness would result in

third parties forcing disclosure of the copies and thereby

"deter[ring] witnesses from testifying freely and candidly in the

first place." Id. at 989. However, the concern with intimidation

"lacks force with respect to a witness's merely reviewing the

transcript in private at the U.S. Attorney's office or a place

agreed to by the parties or designated by the district court." Id.

at 990. The court, in particular, saw little difference between

pressure to divulge the contents after a private review of the

transcript and pressure to "recall their testimony from memory."

Id. Based on this weighing of interests, the court concluded that
The dissent unfortunately misconstrues our decision by stating 2

that "[t]he panel majority adopts an approach based on the

reasoning and rationale of a recent D.C. Circuit opinion, which

permits relatively unfettered access even for non-defendant

witnesses." (Dissent at 25). As the decision makes clear, we do

not adopt the D.C. Circuit approach, and although we discuss the

D.C. Circuit at great length, we base our decision on a review of

our precedent as well as our independent assessment of the

interests at stake, many of which were not addressed by the D.C.

Circuit.

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first-party witnesses are entitled to access of their transcripts

under Rule 6(e).

2. Analysis

The appellant contends that the D.C. Circuit's reasoning

in Grand Jury supports his claim of a less demanding standard,

since he seeks the same access to a transcript of his own testimony

that the D.C. Circuit permitted. We agree. To be clear, we do not

adopt the D.C. Circuit's holding that a grand jury witness is

entitled to access to a transcript of his grand jury testimony.

Instead, we hold that, in light of the considerations supporting

the D.C. Circuit decision and our own review of our precedent, a

less demanding requirement of particularized need applies when a

grand jury witness demands access to a transcript, rather than a

copy of the transcript.2

Admittedly, we have held that "a grand jury witness has

no general right to the transcripts of his testimony." Bianchi,

542 F.2d at 100 (citing In re Bottari, 453 F.2d 370 (1st Cir.

1972)). Instead, in this circuit a witness must provide "a strong
The dissent points out that in Special Proceedings we stated the 3

following:

Taricani may be arguing that as a witness he has an

elevated right to copies of his own deposition

transcript. However, in this circuit "a grand jury

witness has no general right to transcripts of his

testimony." In re Bianchi, 542 F.2d 98, 100 (1st Cir.

1976). Similarly, a majority of circuits hold that a

non-defendant witness seeking access to his own

deposition transcript must make "a strong showing of

particularized need" for such disclosure.

373 F.3d at 47 (emphasis added). According to the dissent, the use

of the word "access" above means that our precedent equally

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showing of particularized need" in order to obtain a copy of a

transcript. Special Proceedings, 373 F.3d at 47 (quotation marks

omitted).

However, as the appellant correctly points out, our prior

case law has solely concerned grand jury witnesses seeking copies

of their transcript, while the appellant seeks only access,

understood as an opportunity to review the transcript. In Bottari,

our earliest case on the issue, the witness sought, as a

precondition to testifying, a copy of "a transcript of the

questions and answers following his appearance before the grand

jury." 453 F.2d at 371. Likewise, in Bianchi, the witness sought

"copies of his prior grand jury testimony." 542 F.2d at 100

(emphasis added). And in Special Proceedings, a case outside the

grand jury context, but involving what we determined an analogous

situation, a special investigation, we rejected a witness's claim

for a copy of his deposition transcript. 373 F.3d at 47. 3
requires a "strong showing of particularized need" for requests for

a review of a transcript. (Dissent at 26-28).

We disagree. First, the sentence in which "access" appears

only describes what the "majority of circuits" have held. More

importantly, it notes that such a holding is only "[s]imilar[]" to

our own rule, which, described in the previous sentence, does not

deal with "access" but with copies, or, to borrow the words of the

Bianchi court, with "a general right to transcripts." 542 F.2d at

100 (emphasis added).

Second, the dissent relies upon Awuah v. Coverall N. Am.,

Inc., 554 F.3d 7 (1st Cir. 2009), for the proposition that we give

effect to the language of a prior panel decision even if it is

"perhaps broader than the precise controversy at issue." (Dissent

at 27). In Awuah, however, we gave effect to broader language in

a prior decision because, although broader, it "constitute[d] the

rationale for the decision." 554 F.3d at 11. In contrast, the

broader statement in Special Proceedings did not "constitute the

rationale for the decision," but was a description of the holdings

of a "majority of circuits." In fact, and as discussed below, had

the court in Special Proceedings intended to reach access as

defined here, it would have at least expressed some disapproval

with the district court's sua sponte offer of access. Instead, the

court in Special Proceedings cited the option with approval. 373

F.3d at 47.

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In none of these cases did we have the occasion to

address whether a demand for access, which imposes a lesser burden

on the governmental interests of grand jury secrecy and witness

intimidation, still requires a strong showing of particularized

need. Nor has the Supreme Court opined on the issue. However, the

Supreme Court, in articulating a standard of particularized need

for third parties, has noted that its "standard is a highly

flexible one, adaptable to different circumstances and sensitive to

the fact that the requirements of secrecy are greater in some
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situations than in others." United States v. John Doe, Inc. I, 481

U.S. 102, 112 (1987). We take the same approach.

We begin by discussing the significant interest a witness

has in reviewing a transcript of his or her grand jury testimony.

As the D.C. Circuit recognized, even witnesses who intend to

testify truthfully have an interest in avoiding inaccuracies and

inconsistencies that may subject them to a potential perjury

prosecution. See Grand Jury, 490 F.3d at 988 (noting that 18

U.S.C. § 1623(a) provides for "inconsistent statements as [a] basis

for a perjury conviction"). The interest in avoiding inaccuracies

and inconsistencies increases significantly when a grand jury

witness has to testify over multiple days, and thus has to prepare

for upcoming testimony. Id.

Moreover, federal law "strongly reinforces" that

interest. Id. A grand jury witness has a statutory right to

recant, one that would be difficult to exercise without a review of

the transcript. See 18 U.S.C. § 1623(d); see also Grand Jury, 490

F.3d at 988 ("A witness would have difficulty taking full advantage

of the statutory recantation provision . . . without obtaining

prompt access to transcripts of their own testimony."). In

addition, the federal rules contemplate the disclosure of grand

jury transcripts. See Fed. R. Crim. P. 6(e)(3)(E)(i) ("The court

may authorize disclosure . . . of a grand jury matter . . .

preliminary to or in connection with a judicial proceeding").
The dissent only views these protections as "abundant . . . for 4

all grand jury witnesses," and thus concludes that we "vastly

overstate[] a witness's interest in access to prior grand jury

testimony." (Dissent at 32-33). Instead, we view these

protections as a recognition of the significant interest a witness

has in maintaining the accuracy of his testimony, such that we do

not overstate it, but simply take it into account.

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Finally, the government is subject to a higher burden of proof to

establish perjury, which lessens the risk of perjury prosecution

and, therefore, allows witnesses to be less evasive and more

forthcoming in answering questions.4

We also stress that the interest a witness has in

maintaining the accuracy of his or her testimony is not just

personal to the witness. It is systemic, as both the courts and

the government have a substantial interest in ensuring the accuracy

of grand jury testimony.

With the witness's interests in mind, we consider the

interests of the government, particularly how those interests are

affected in the access context as compared to the copy context. As

the D.C. Circuit points out, there are significant differences

between the access and copy context with respect to witness

intimidation. Specifically, "if a witness could routinely obtain

a copy of the grand jury transcript . . . an interested party could

in turn pressure the witness to obtain the transcript and to give

it to that third party." Grand Jury, 490 F.3d at 989. Likewise a

"witness's fear of being forced to disclose the transcript to a

threatening third party could deter witnesses from testifying
The D.C. Circuit, in fact, found this difference so significant 5

that it expressly reserved the issue of whether "the possibility of

witness intimidation would justify denying copies of transcripts."

Id. at 989-90.

 The dissent contends that our conclusion is "naive," because

"[t]he same people who would cajole a witness to obtain a copy of

his testimony and reveal it would be able to use similar methods to

coerce the witness into reviewing his testimony and reporting its

contents." (Dissent at 30). However, the dissent does not fully

take into account the evasive measures a witness can undertake if

he only obtains access. After all, a witness, even after review,

could be less than forthcoming about his testimony, and a third

party would never know to cajole further. If the witness obtains

a copy, however, no amount of evasion can hide his testimony,

printed in black and white, from a determined third party.

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freely and candidly in the first place." Id. Both of these

concerns are alleviated significantly when only access is

permitted. Unlike in the copy context, a witness granted only

access could, in the face of intimidation, simply decline to reveal

his testimony. See id. at 990 (noting that, in general, a grand

jury witness could decline to discuss his or her testimony, and

that this option "is not realistically affected by whether the

witness can review the transcript at a secure location").5

Moreover, because of this option, the witness will feel less

inclined to withhold truthful testimony.

Although the D.C. Circuit did not address it, the access

context also differs from the copy context with respect to grand

jury secrecy. As both the D.C. Circuit and the district court in

this case point out, a grand jury witness is under no obligation to

maintain the secrecy of his or her testimony. To use the colorful
In fact, our precedent has failed to acknowledge the fact that a 6

grand jury witness is not under any obligation to maintain grand

jury secrecy. Some courts, most notably the D.C. Circuit, have

viewed this fact as cutting in favor of witness access. Other

courts have not. See, e.g., Bast v. United States, 542 F.2d 893,

896 (4th Cir. 1976) (requiring a showing of particularized need,

but "recogniz[ing] that Fed. R. Crim. P. 6 imposes no condition of

secrecy on the witness.").

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example of the district court, a grand jury witness has the right

to "put up that information on a billboard on the Mass. Pike."

Thus, any concern with maintaining grand jury secrecy is already

diminished in the grand jury witness context. However, permitting 6

access does not exacerbate the situation in the way making a copy

available does. Unlike access, a copy can take on a life of its

own, and, despite the efforts of a well-intentioned grand jury

witness, a copy can float around and land in the wrong hands.

Accordingly, the access context better maintains grand jury secrecy

vis-a-vis the copy context.

Finally, although we have not had the occasion to address

the issue, our decision in Special Proceedings lends some support

to the distinction we make between granting access and granting a

copy. There, we found that a deponent in a special investigation

failed to articulate, let alone show, a particularized need for a

copy of his deposition transcript, in part because "the district

court took steps to accommodate any need [the witness] might have

for the transcript by offering [the witness] and his counsel access

to the deposition testimony as long as they agreed to keep the
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transcript confidential." 373 F.3d at 47. Not only did we cite

the option of access with approval, but we also indicated that a

greater showing of need was required to move from the access

context to the copy context.

We also recognize one other important interest not

discussed by the D.C. Circuit but cited by the district court

below, efficiency. Articulating a lesser standard of

particularized need with respect to access may increase the burdens

on the government in grand jury proceedings. However, we agree

with the district court that "the benefit to the witness greatly

outweighs the burden to the government." As the D.C. Circuit

noted, "the Federal Rules . . . mandate that grand jury proceedings

be transcribed or taped," with such records being kept by the

government. Grand Jury, 490 F.3d at 986 (citing Fed. R. Crim. P.

6(e)(1)). Thus, the cost of providing a transcript, which must be

created anyway, and the slight delay caused by the review of the

transcript would not impede an investigation significantly. In

fact, there is no evidence that the D.C. Circuit's more lenient

rule has had any detrimental affect on grand jury investigations in

that circuit.

We conclude by noting that our "less demanding" standard

of particularized need does not apply to appellant's request to

take notes. Permitting notetaking blurs the line between the

access and copy contexts, since one can imagine an appellant
Permitting the appellant's counsel to be present during the 7

review, which the appellant also requests, is a closer call. Thus,

following the D.C. Circuit, we leave it up to the "sound

discretion" of the district court on remand to determine whether

appellant's counsel can be present. See Grand Jury, 490 F.3d at

990.

Because we hold that our former standard of "a strong showing of 8

particularized need" still applies to the appellant's request to

take notes, we still must review the district court's finding of no

particularized need. In our view, there was no abuse of

discretion. The district court, assuming the appellant's

contentions as true, ultimately determined that the appellant's

circumstances, which included the prosecutors' perjury warnings and

the complexity of his testimony, were not sufficiently

particularized to meet our standard. Given that we have not found

a sufficiently particularized need where only an "ill-defined"

potential for perjury prosecution exists, see, e.g., Bianchi, 542

F.2d at 100, we do not see how the district court abused its

discretion in denying notetaking.

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transcribing his transcript and, in effect, creating a copy. Thus,

our requirement of a strong showing of particularized need applies

equally to the notetaking context.7

For all of the above reasons, we find that the district

court committed error in applying our precedent, which has solely

involved requests for copies, to the appellant's request for access

to a transcript of his grand jury testimony.

B. Showing of Particularized Need

Because the district court did not make any factual

findings, but assumed as true the contentions in support of the

appellant's request for access, we address whether appellant has

made a showing of particularized need in light of the less

demanding standard we articulated above.8
 Moreover, the district court did not abuse its discretion in not

making the transcript a part of the record, as the appellant

claims. In examining whether the appellant provided a strong

showing of particularized need, the district court assumed as true

the appellant's contentions in support of why his need was

particularized. Thus, the appellant would have received little

benefit from having the district court review the transcript.

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The appellant argues that his need for access is

sufficiently particularized to justify access for two reasons: (1)

the threats of perjury prosecution given by the prosecutors during

his examination, and (2) the complexity of the subject matter of

his testimony, which involved "ancient activity." We agree.

The appellant contends that his need was particularized

because he was "threatened by . . . powerful authorities with lifewrecking perjury convictions and years of imprisonment." Our own

review of the grand jury transcript supports his claim. In some

instances the prosecutors made pointed comments to the appellant,

asking in places if he "ha[d] a hearing problem" or whether he

"speak[s] the English language."

Under our case law in the copy context, we have held that

potential perjury prosecution alone does not arise to a

particularized need. In Bottari, for example, we found no

particularized need due to potential perjury prosecution because

that potential alone made "th[e] appellant . . . no different from

any other witness who testifies before a grand jury, or elsewhere."

453 F.2d at 371. Likewise in Bianchi, where the witness also had

use immunity under 18 U.S.C. §§ 6002 and 6003, we found no
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particularized need where the witness's "ill-defined fear" of a

"'slight inconsistency' between past and present testimony [that]

might subject him to perjury prosecution [wa]s unfounded." 542

F.2d at 100.

In this context, however, it is a close call whether the

strongly worded, even abusive warnings of the prosecutors alone

suffice to demonstrate a particularized need under our lesser

standard for access. Some circuits have permitted access based

upon such conduct, although they did so on other grounds. See,

e.g., Bursey v. United States, 466 F.2d 1059, 1080 (9th Cir. 1972)

(holding that "the concepts of fundamental fairness inherent in due

process require that a grand jury witness be given some protection

from the[] risks [of perjury] before he is compelled to answer

repetitious questions"). However, we do not need to address the

issue, because the threats of perjury prosecution, combined with

the complexity of the appellant's testimony, sufficiently

establishes a particularized need. As the witness attested to, and

as the grand jury transcript and exhibits bear out, the subject

matter of his testimony was significantly complex, involving not

only complex technical material, but also events and dates

occurring nearly a decade ago. Thus, any concerns with

inconsistencies in his testimony (concerns which were repeatedly

inflamed by the prosecutors) were magnified by the potential traps

posed by the highly technical and ancient nature of his testimony.
The dissent disagrees, and contends that our rule "is likely 9

satisfied in many -- if not most -- grand jury investigations."

(Dissent at 34). The dissent misstates the basis of our finding

for a particularized need. Prosecutor's warnings combined with

testimony only "involv[ing] complex subjects that occurred some

time in the past" are not sufficient to establish a particularized

need under our lower standard, as the dissent suggests. (See id.

at 35). Something more is required, and we articulated above what

that more was in this case.

 Moreover, we disagree with the dissent's characterization of the

warnings made during the examination. The dissent quotes four

warnings during the examination to show that they were innocuous,

ignoring other warnings as "infrequent[] and inconsequential[]." 

(Dissent at 39-41). It is the third quoted warning on which we

disagree. The dissent seeks to explain that the warning is

justifiably strongly worded because the appellant was being

"evasive." (Id. at 40). However, we read the exchange as

supporting our view that the examination was highly technical, as

the government immediately stated after giving the warning that

"Okay. So stop playing games with us. This jury is composed of a

-22-

Accordingly, the threats of perjury prosecution, combined with the

complexity of the witness's testimony, supplies the necessary

particularized need to permit access.

We conclude by discussing our application of this lesser

demand for "particularized need" going forward. In this case we

have found such a need satisfied given the abusive warnings of the

prosecutors during testimony and the complexity of the appellant's

testimony. We emphasize that, based upon our review of the record,

the warnings were not only strongly worded, but were also

buttressed by repetitious questions and insulting language.

Moreover, the subject matter of the testimony concerned complex,

nearly decade-old technical material that was integral to the

examination.9
group of laymen. . . . so talk to us like we're regular people and

stop playing word games with us." Moreover, the dissent dismisses

the other warnings given during this exchange, such as "Now I'm

telling you to answer the questions straightforwardly and

truthfully," followed shortly thereafter by "Okay. Can you answer

the question straightforwardly?," and still later by "Again, answer

the question that's asked of you. Answer is directly. Answer it

truthfully. All right?" and, after a five minute break, "I remind

you that you're still under oath." From here, the government's

warnings took an abusive turn: "Please, again, do you have a

hearing problem?" and "And you speak the English language, that's

your first language, right?"

Thus, we disagree with the dissent that under our rule "a district 10

court will abuse its discretion if it fails to review the

-23-

We are also cognizant of the effect the application of

our rule will have on grand jury proceedings, since we do not want

to "saddle a grand jury with minitrials and preliminary showings

[that] would assuredly impede its investigation." United States v.

Dionisio, 410 U.S. 1, 17 (1973). However, the lesser standard of

particularized need we apply here would not impose undue hardship

on grand jury investigations. A district court in its discretion

can utilize procedures, such as the expedited hearing the district

court conducted in this case, to minimize any undue effect on the

grand jury investigation. Moreover, although we had the advantage

of reviewing the transcript in this case, nothing we say here

requires the government to submit one in response to a motion for

access. To the extent that the transcript is not available, a

grand jury witness can testify (or make a proffer) in camera as to

his or her examination to support his or her claim, with the

government having an opportunity to rebut. Finally, to the extent 10
transcript." (Dissent at 36 n.23).

The dissent claims that we "too quickly dismisses the witness's 11

obstreperous conduct." (Dissent at 41 n.28). Our own review of

the transcript does not suggest to us that the appellant was being

obstreperous during the examination given the highly technical

nature of the questions asked. Moreover, the appellant has

proceeded in good faith throughout the course of these proceedings.

As the district court found in staying its contempt order pending

appeal, the appellant's claims were "not frivolous" and that the

appellant was not "being contumacious in the way [of an] ordinary

grand jury witness, who simply refuses to testify without good

reason."

-24-

that a grand jury witness games the system to establish a

particularized need, a district court can take evidence of that

into account. A witness cannot establish a need, let alone a

particularized one, if the purported need was self-induced.11

III. Conclusion

For the foregoing reasons, we reverse the district

court's finding of contempt, and, on remand, direct the district

court to permit the appellant access to a transcript of his grand

jury testimony consistent with this opinion.

Reversed.

"Dissenting opinion follows"
-25-

HOWARD, Circuit Judge, dissenting. Neither the Federal

Rules of Criminal Procedure nor Supreme Court precedent

specifically address the circumstances in which a non-defendant

grand jury witness may access his testimony, regardless of the

format of such access. The panel majority adopts an approach based

on the reasoning and rationale of a recent D.C. Circuit opinion,

which permits relatively unfettered access even for non-defendant

witnesses. Were we writing on a blank slate, I believe this

approach would be problematic. But we are not writing on a blank

slate; an unbroken line of our cases going back over thirty years

forecloses the majority's result. Thus, because the majority's

conclusion is contrary to our precedent, unwise as a matter of

policy, and insupportable on this record, I respectfully dissent.

I.

Since at least 1972, we have made clear that grand jury

witnesses have no general right of access to transcripts of their

prior grand jury testimony. See In Re Bottari, 453 F.2d 370 (1st

Cir. 1972). We have since elaborated on this rule, making just as

clear that fear of future perjury prosecution cannot constitute a

cognizable reason for a witness to have access to a transcript of

his testimony. See In Re Bianchi, 542 F.2d 98, 100 (1st Cir. 1976)

(citing United States v. Chevoor, 526 F.2d 178, 181 (1st Cir.

1975)). We later confirmed our adherence to the majority rule

among the circuits that a "non-defendant witness seeking access to
The panel majority attempts to avoid the full scope of this 12

holding by highlighting the fact that In Re Special Proceedings

articulated this result as the holding of "a majority of circuits,"

and that our rule is "similar." Maj. Op. at 12-13 n.3 (quoting In

Re Special Proceedings, 373 F.3d at 47). But the majority neglects

the next sentence of In Re Special Proceedings, which makes clear

that we too subscribe to the rule in the majority of circuits: "[a]

few circuits take a contrary view . . . but are at odds with

Bianchi." 373 F.3d at 47. It is therefore clear that a fair

reading of In Re Special Proceedings cannot limit its reach merely

to copies.

-26-

his own [grand jury] transcript must make a 'strong showing of

particularized need' for such disclosure." In Re Special 12

Proceedings, 373 F.3d 37, 47 (1st Cir. 2004) (quoting In Re Grand

Jury Subpoena, 72 F.3d 271, 274 (2d Cir. 1995)) (emphases added).

It is true that during the course of In Re Special

Proceedings, we noted that the district court afforded the witness

seeking access to his testimony the opportunity to review it, so

long as the witness kept the information confidential. Id. But

that comment was made in the context of explaining why the witness

failed to make the requisite "strong showing of particularized

need." The majority attempts to treat this summary comment as

lending "some support to the distinction" it draws "between

granting access and granting a copy." Maj. Op. at 17; see also

Maj. Op. at 12-13 n.3. But this short aside did not (and indeed

could not) change the ratio decidendi of our decision in In Re

Special Proceedings, which requires that even a non-defendant

witness make a "strong showing of particularized need" for "access"

to his own grand jury testimony.
The majority's second attempt to reconcile its holding with our 13

precedent is equally unavailing. As explained in note 1, the ratio

decidendi of In Re Special Proceedings extends to access and does

not end with the provision of copies. Consequently, both Awuah and

Holloway require that the panel use the "strong showing of

particularized need" standard for access as well as copies.

-27-

Where, as here, the language of a prior panel decision is

perhaps broader than the precise controversy at issue in that prior

decision, we still give effect to the language of the prior panel

decision. Awuah v. Coverall, N. Am., Inc., 554 F.3d 7, 11 (1st

Cir. 2009). Absent contravening authority from this court sitting

en banc or the Supreme Court, we must continue to honor the In Re

Special Proceedings doctrine. Id.; United States v. Holloway, 499

F.3d 114, 118 (1st Cir. 2007).13

Thus, our case law does not permit the majority's

conclusion that a less demanding standard of particularized need is

appropriate where a witness seeks access to his prior grand jury

testimony. The majority attempts to elide decades of case law by

drawing a distinction between access to prior testimony and the

availability of copies of prior testimony. But, for the reasons
The D.C. Circuit case, In Re Grand Jury, 490 F.3d 978 (D.C. Cir. 14

2007), is factually distinguishable from the case at bar, and the

majority has significantly expanded this precedent in order for its

rule to encompass cases such as the appellant's. Unlike in In Re

Grand Jury, where witnesses without immunity testified as many as

three times, with months between such testimony, the appellant in

this case had immunity. See id. at 980. Moreover, the appellant's

testimony was originally continued for one week, and was later

continued for another two weeks to accommodate appellant's counsel.

All other delays in this case have resulted from the appellant's

protracted efforts to gain access to his prior testimony.

Our circuit's view of the law finds significant support in the 15

"majority of appellate decisions dealing with this issue." In Re

Grand Jury Subpoena, 72 F.3d at 274-75 (citing Davis v. United

States, 641 A.2d 484, 490-91 (D.C. App. 1994); Bast v. United

States, 542 F.2d 893, 895-96 (4th Cir. 1976); In Re Bianchi, 542

F.2d 98; In Re Bottari, 450 F.2d 370).

-28-

described above, unlike in the D.C. Circuit, our precedent does 14

not countenance such a distinction.15

II.

Even if it were permissible for us to sweep away our

precedent and to create an entirely new rule regarding a nondefendant witness's right to access his grand jury testimony, the

majority's chosen rule permitting access based on a "less demanding

requirement of particularized need" is unwise. First, in creating

this less demanding standard, the majority fails to give due weight

to important interests of grand jury secrecy and preventing witness

intimidation, while at the same time, the majority overemphasizes

a witness's interest in access to his testimony. Second, the

majority's preferred approach will improvidently hamstring the

operation of grand juries.
Because of the profound threat the majority's proposed rule poses 16

to the efficiency of grand juries, I discuss this interest in Part

II.B, infra.

The majority leaves open the question of whether the appellant is 17

entitled to have his counsel review the transcript. Maj. Op. at 19

n.7. It suffices here to note the district court's ruling on

remand from the D.C. Circuit, in which the court held that "the

expertise of legal counsel is not necessary for the [witness] to

assess whether the transcripts reflect inconsistencies or

falsehoods that place [the witness] at risk for a perjury

prosecution or warrant recantation . . . ." In Re Grand Jury

Proceeding, 520 F. Supp. 2d 61, 64 (D.D.C. 2007). Moreover, as the

district court further noted, since attorneys are not permitted in

the grand jury room when a witness testifies, it would be anomalous

-29-

A.

1.

The majority has identified three interests militating

against witness access to grand jury testimony, but has not given 16

full weight to those interests. The majority dismisses the notion

that grand jury secrecy is an important interest in this context

because grand jury witnesses have no obligation to keep their

testimony secret. Although the majority is correct that a witness

is under no obligation to keep his testimony secret, Maj. Op. at 10

(citing In Re Grand Jury, 490 F.3d at 988-89), it does not follow

that permitting a witness access to his own testimony "does not

exacerbate" the threat to grand jury secrecy. Maj. Op. at 17

(emphasis in original). On the contrary, a witness -- even if he

is denied the ability to review his testimony with counsel -- will

now have an additional opportunity to think about his testimony and

potentially disclose it. Moreover, we can expect that a witness 17
to permit an attorney to be present during a review of the

transcript. Id. at 64 n.4.

-30-

will be likely to remember a significantly greater portion of his

testimony during a private review than while undergoing questioning

before the grand jury, making any subsequent disclosure more

problematic from the standpoint of the important interest in

secrecy. Thus, as a practical matter, the majority's rule will

have an adverse impact on grand jury secrecy.

Similarly, witness intimidation will almost certainly

increase under this new standard. The majority asserts that "a

witness granted only access could, in the face of intimidation,

simply decline to reveal his testimony." Maj. Op. at 16 (citing In

Re Grand Jury, 490 F.3d at 990). Respectfully, this assertion is

naive. The same people who would cajole a witness to obtain a copy

of his testimony and reveal it would be able to use similar methods

to coerce the witness into reviewing his testimony and reporting

its contents. The majority's claim that a witness can undertake

"evasive measures" to avoid commenting on a recollection refreshed

by a lengthy review of the witness's prior testimony is

unpersuasive. See Maj. Op. at 16 n.5. As the majority correctly

notes, such evasive measures are unlikely to succeed with respect

to the existence of a transcript copy; these measures are similarly

likely to fail when determined individuals demand a witness divulge

the contents of his testimony. Given that most witnesses will have
The most obvious and greatest antidote to this concern, of course, 18

is that the witness "should testify truthfully in the first

instance." In Re Grand Jury Proceedings, 520 F. Supp. 2d at 64.

-31-

better recollections of their testimony after the opportunity to

review it in private, a fact that will not elude those seeking

additional information, the rule we are now adopting will

exacerbate the threat of witness intimidation.

2.

By contrast, again relying on the D.C. Circuit's

approach, the majority overemphasizes a witness's interest in

access to his grand jury testimony. The guiding light in the

majority's balancing is a witness's supposed need to ensure that

past testimony is accurate, presumably to innoculate him from

criminal charges of providing false declarations to the grand jury,

with secondary consideration for a witness's need to prepare for

future testimony where such testimony is spread over several days.

Maj. Op. at 14 (citing In Re Grand Jury, 490 F.3d at 988); see also

18 U.S.C. § 1623. Though well-intentioned, the majority's 18

solicitude for witnesses in this regard is misplaced; although the

majority claims that "even witnesses who intend to testify

truthfully have an interest in avoiding inaccuracies and

inconsistencies that may subject them to potential perjury

prosecution," Maj. Op. at 14, federal law already provides ample
In addition, as a further argument for disclosure, the majority 19

correctly notes that in certain circumstances, the Federal Rules of

Criminal Procedure contemplate disclosure of grand jury

transcripts. Maj. Op. at 14 (citing Fed. R. Crim. P.

6(e)(3)(E)(i)). But the majority neglects to acknowledge that such

disclosure is only permitted on a strong showing of particularized

need, see Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 221

(1979), which the majority concedes is not met in this case. Maj.

Op. at 19 n.8. Thus, the Federal Rules of Criminal Procedure

provide no reason to tip the balance in favor of access.

The majority's conclusion that it "would be difficult to exercise 20

[the statutory right to recant] without a review of the transcript"

-32-

protection to such witnesses, which should serve to obviate the

majority's concern over the plight of these witnesses.19

The law already provides abundant protections for all

grand jury witnesses. Testimony is punishable only when the

government proves beyond a reasonable doubt that it is false, made

knowingly, and is material to the work of the grand jury. 18

U.S.C. § 1623(a); United States v. Silveira, 426 F.3d 514, 518-19

(1st Cir. 2005). Similarly, the relevant statute provides

significant protection to those charged with making inconsistent

statements. Such statements are actionable only if the government

proves beyond a reasonable doubt that they were made (1) knowingly

and (2) they are inconsistent to the degree that one of them is

necessarily false. 18 U.S.C. § 1623(c). Even then, it is an

affirmative defense that the defendant "at the time he made each

declaration believed the declaration was true." Id. Furthermore,

in certain circumstances, witnesses have the right to recant any

false declarations. 18 U.S.C. § 1623(d). As courts have 20
does not follow. Maj. Op. at 14. As explained above, because

other provisions of federal law provide witnesses with significant

protections, recantation is not needed to resolve minor

inconsistencies or slight errors. A witness will have a better

memory of the major points of his testimony, and after testifying,

in consultation with counsel, he will be able to exercise his right

to recant without a detailed review of the record of his testimony.

Although we require a witness attempting to recant admit that his

testimony is false, we have never required any greater level of

detail in order to permit recantation. E.g., United States v.

Scivola, 766 F.2d 37, 43 (1st Cir. 1985); United States v. Goguen,

723 F.2d 1012, 1018 (1st Cir. 1983). The majority's continued

insistence on transcript access for this purpose exalts recantation

above these other protections available to grand jury witnesses,

and unnecessarily burdens the efficiency of grand jury

investigations.

-33-

recognized, these are copious protections for those who fear

prosecution for failing to provide less than perfectly accurate

testimony to the grand jury. See In Re Grand Jury Proceedings, 520

F. Supp. 2d at 64 (citing Doe v. United States, 72 F.3d 271 (2d

Cir. 1995)).

The majority acknowledges the robust protections against

unwarranted perjury charges afforded grand jury witnesses, see Maj.

Op. at 14-15, but nevertheless (erroneously in my view) concludes

that "federal law strongly reinforces" a witness's interest in

access. Maj. Op. at 14 (internal quotation marks omitted).

Rather, the substantial protections available to grand jury

witnesses militate in favor of affording less weight to the

witness's interest in obtaining access to grand jury testimony.

Consequently, the majority has vastly overstated a witness's

interest in access to prior grand jury testimony, and as a result,
-34-

has created a new rule that will needlessly and unduly interfere

with the efficient operation of grand juries, contrary to the

teachings of the Supreme Court.

B.

It is axiomatic that grand juries are integral to the

"fair and expeditious administration of the criminal laws." United

States v. Dionisio, 410 U.S. 1, 17 (1973) (citations omitted).

Their role is to investigate potential criminal violations

"independently of either prosecuting attorney or judge," and they

are therefore imbued with "necessarily broad" investigative powers.

See id. at 13, 17 (citing Branzburg v. Hayes, 408 U.S. 665, 688

(1972)). The Supreme Court has therefore long held that grand jury

proceedings should be free of procedural delays and that "[a]ny

holding that would saddle a grand jury with minitrials and

preliminary showings would assuredly impede its investigation and

frustrate the public's interest in fair and expeditious

administration of the criminal laws." Id. at 17; see also United

States v. R. Enters., Inc., 498 U.S. 292, 300-01 (1991); United

States v. Calandra, 414 U.S. 338, 350 (1974); Stern v. United

States Dist. Court, 214 F.3d 4, 16-17 (1st Cir. 2000).

The majority's approach of permitting witnesses to access

their testimony based on a lesser standard of particularized need

that is likely satisfied in many -- if not most -- grand jury

investigations threatens to unleash precisely the mischief that the
The majority claims "something more" is required to meet its 21

diminished standard, Maj. Op. at 22 n.9, but its opinion refers

only to perjury warnings, which are appropriate, necessary, and

encouraged in our case law, see infra note 22, the fact that the

subject matter involved technical material, and that some events

occurred less than ten years in the past. But these are common

circumstances and it is likely that many –- if not most –- grand

jury investigations will be encompassed in the ambit of the

majority's new rule.

The majority's decision to consider perjury warnings in 22

determining whether a witness has satisfied a less demanding

standard will inevitably chill prosecutors' proper use of perjury

warnings, which is a disservice to prosecutors, witnesses, and the

grand jury's quest for the truth. The record in this case reveals

that the prosecutors' perjury warnings were limited and

appropriate. See infra pp. 39-41.

These warnings are particularly appropriate in light of our

previous expressions of strong displeasure with prosecutors in this

circuit who attempt to skirt warnings to grand jury witnesses.

See, e.g., United States v. Pancheco-Ortiz, 889 F.2d 301 (1st Cir.

1989); United States v. Babb, 807 F.3d 272 (1st Cir. 1986). In

drawing an adverse inference from four reasonable and appropriate

perjury warnings, we are acting at cross-purposes with our firm

guidance regarding warnings in grand juries, and unnecessarily

burdening prosecutors who legitimately offer appropriate perjury

warnings.

-35-

Supreme Court has warned against. The majority believes that the

combination of a prosecutor's use of perjury warnings during

questioning of a witness and the fact that a witness's testimony

involves complex subjects that occurred some time in the past is

sufficient to meet its lower threshold of particularized need. 

Maj. Op. at 20, 22. But all grand jury investigations are

necessarily retrospective, and they frequently focus on complex

matters. Moreover, through evasive and unresponsive testimony, 21

any witness could elicit perjury warnings from those questioning

him. Thus, under the majority's standard, any witness who 22
The majority claims that its opinion does not require a district 23

court to review the transcript of grand jury proceedings in all

cases, Maj. Op. at 23 & n.10, but, under the logic of the

majority's analysis, the district court necessarily must review the

transcript to determine whether the witness can satisfy the "less

demanding requirement of particularized need." Without such a

review, it is difficult to imagine how a district court can

determine whether perjury warnings were sufficiently numerous and

abusive or a witness's testimony sufficiently complex to justify

relief.

 The majority claims that other procedures, such as witness

testimony or proffers and government rebuttal, might allow the

district court to determine whether a witness has satisfied the

majority's lower standard. Maj. Op. at 23. But the district court

will be unable to accept as true a witness's statements in this

posture, see Maj. Op. at 19-20 n.8, and as this case demonstrates,

witnesses and prosecutors will disagree sharply over what

transpired before the grand jury. Consequently, as a practical

matter, a district court will abuse its discretion if it fails to

review the transcript of a witness's grand jury testimony to

determine whether the less demanding requirement of particularized

need has been satisfied.

-36-

received a perjury warning and testified over several days in a

complex case about events occurring in the past, can advance at

least a strong claim for access to his prior testimony, thereby

creating precisely the kind of procedural delay the Supreme Court

has warned against.

The prosecutors responsible for coordinating the grand

jury investigation will now have to defend these claims, which the

district courts will need to adjudicate. Handling these tasks 23

will inevitably distract prosecutors and judges while delaying and

sometimes even derailing important grand jury investigations. This

problem is only compounded by the fact that our lenient new test

will give witnesses every incentive to engage in obstreperous
The majority suggests that "[a] witness cannot establish a need, 24

let alone a particularized one, if the purported need was selfinduced." Maj. Op. at 24. The problem, of course, is that the

need in this case was self-induced. The witness responded to

straightforward questions with evasive and sometimes misleading

responses, which the majority fails to acknowledge. See infra note

27. It was these responses to questions (and the prosecutors'

sensible attempts to follow-up) rather than any particularly

technical details of the testimony that occasioned the witness's

unease in this case.

-37-

conduct in an effort to cause their testimony to continue over to

a second day in the hope of gaining access to a transcript.24

This case is proof that all but the most stringent

standards of witness access will create slippage that threatens to

undermine the orderly operation of grand juries. As these

proceedings demonstrate, witnesses, advocates, and even judges can

and do disagree regarding a witness's evasiveness and

obstreperousness, as well as the propriety of prosecutors'

questioning. Because such disagreements have the potential to

stymie the efficient operation of grand juries and the interests of

witnesses are protected under other provisions of federal law, the

Supreme Court and our own precedents require that grand juries be

permitted to pursue their work without the threat of these types of

proceedings.

Moreover, the break in the appellant's testimony,

occasioned by the need to hear another witness, would have been

about one week in length had the appellant not delayed it further

first to accommodate his counsel, and then again, to wage this
I can take no comfort in the majority's observation that "there 25

is no evidence that the D.C. Circuit's more lenient rule has had

any detrimental [e]ffect on grand jury investigations in that

circuit," Maj. Op. at 18, because no such evidence was offered by

either party or requested by this court, and in view of the secrecy

that properly shrouds grand jury proceedings, such evidence should

not be readily discernible.

-38-

protracted battle over access. Indeed, a transcript of the

appellant's testimony was not available until approximately one

month after his initial testimony. The majority claims that such

a one month delay is "slight" and will not "impede an investigation

significantly," Maj. Op. at 18, but I simply cannot agree. Grand

juries are normally limited to eighteen month terms, Fed. R. Crim.

P. 6(g), and a delay of one month is hardly slight or

insignificant. Moreover, the majority's ruling leaves open the

strong likelihood that there will be multiple witnesses appearing

before a single grand jury who may be able to assert a right to

review grand jury transcripts, which will further degrade a grand

jury's ability to execute its functions in an expeditious manner.25

Thus, as this case also demonstrates, the majority's rule has

significant potential needlessly to saddle grand jury proceedings

with delay and unnecessarily encrust them with precisely the sorts

of procedural requirements that the Supreme Court has warned

against.

III.

The facts of this case only confirm the adverse effect

the majority's new standard will have on the efficiency and
Ofttimes, a prosecutor will have more than one purpose for this 26

introductory perjury warning, including the buttressing of the

witness's anticipated testimony by suggesting -- through the

perjury warning -- that the immunized witness has every incentive

to tell the truth.

-39-

expeditiousness of the grand jury process. The majority claims

that threats of perjury prosecution and the complexity of testimony

jointly suffice to meet its lower threshold. Maj. Op. at 20, 22.

But the record reflects only four perjury warnings and no

particularly outrageous conduct on the part of the prosecutors, nor

does it bear out the majority's claim of complexity.

During the course of three hours and fifteen minutes of

testimony, the record reveals only four perjury warnings. The

first was given at the beginning of the witness's testimony,

reminding him that the use immunity order does not extend to

perjury or obstruction of justice:

PROSECUTOR: [Y]ou also understand that the

order [granting use immunity] does not protect

you if you lie, mislead or obstruct this grand

jury's investigation, do you understand that?

WITNESS: I do understand that yes.26

The second warning was given when a different prosecutor

first began questioning the witness:

PROSECUTOR: All right. Well you know [name

redacted] I'm going to caution you, and [the

other prosecutor] told you this earlier.

Despite the fact that you have received

immunity today, if your testimony is designed

to mislead this grand jury or is evasive or

equivocal, you can be charged with obstruction

of justice, do you understand that?
The majority relies on a prosecutor's admonition that the lawyers 27

presenting and the grand jurors hearing the case were "laymen" to

conclude that the witness's answers were not evasive or

obstreperous but rather "highly technical." Maj. Op. at 22 n.9.

What the majority overlooks is that the prosecutors in this case

were attempting to elicit from the witness basic facts regarding

whether a third party was warned of a particular danger, and if so,

when and in what level of detail. The witness claimed that such a

warning was provided at a meeting at which he was present, but when

pressed, conceded that the warning was not given at the meeting.

Unlike the details of a warning, which may be technical, the fact

of whether a warning was given, and if given, its subject is not

normally, and in this case was not "highly technical." The

witness's failure to address this question in a straightforward or

even consistent manner is one of many examples of his evasiveness.

Furthermore, I note that the witness requested and was granted

the opportunity to consult with counsel shortly after the exchange

the majority describes. This further reinforces my conclusion that

the prosecutors were not behaving abusively or attempting to

overbear the witness. Instead, the prosecutors respected the

witness's rights and were only interested in eliciting the truth,

which the witness was obfuscating considerably.

-40-

WITNESS: I do understand that.

The third perjury warning was given after the witness

offered a series of evasive answers to straightforward questions:

PROSECUTOR: No, no. Look. Look, [name of

witness redacted], again let's make a --

you're here to tell the truth. Okay? This

isn't a game. All right? You're not here to

defend [third party] or defend your own

actions. You have immunity. The only way you

get into trouble here is if you lie or mislead

this grand jury. Do you understand this

concept?

WITNESS: I do.27

The fourth and final perjury warning was given purely

prophylactically after a two hour lunch break:
The majority too quickly dismisses the witness's obstreperous 28

conduct and his consistently unresponsive and insufficient answers

to legitimate questions, and the majority further fails to

acknowledge the obvious systemic harm that flows from such conduct.

Maj. Op. at 24 n.11. This omission is puzzling in light of the

majority's concern for systemic benefits that come from access.

See Maj. Op. at 15. When one considers the appellant's conduct in

this case, it is clear that any hardship that he has experienced is

"self-induced," that prosecutors provided him with warnings in

compliance with our case law, see supra note 22, and that the

majority's new rule will grant witnesses wide latitude to avoid

cooperating with grand juries and prosecutors searching for the

truth.

Finally, the fact that I disagree so sharply with the majority

over what transpired in this case and the severity of the

prosecutors' perjury warnings reaffirms the wisdom of our decisions

in Bottari, Bianchi, and Special Proceedings -- consistent with

Supreme Court precedent -- to avoid such disputes altogether by

applying a rigorous "strong showing of particularized need"

standard for all access to grand jury transcripts, while relying on

the other substantial protections found in federal law to protect

the interests of witnesses.

-41-

PROSECUTOR: [Name redacted], just to remind

you, can you please acknowledge that you

understand that you are still under oath?

WITNESS: I do understand that, yes.

Other than these warnings reminding the witness that use

immunity does not extend to perjury or obstruction of justice, the

words "perjury," "lie," "obstruct," or other similar words and

phrases appear in the transcript only infrequently and

inconsequentially. The record further clarifies that the few times

the prosecutors acted in a way that could be characterized as

confrontational, see Maj. Op. at 20, 22 n.9, the witness was

providing obviously evasive and non-responsive answers.28
-42-

In addition, it is important to note that although some

of the substantive subject matter in this case may be technical,

for the most part, the prosecutors did not dwell on the technical

complexities. It is also worth noting that the witness admitted to

having reviewed many of the documents pertinent to his testimony

with his attorney in the days and weeks prior to his testimony.

This preparation should substantially ameliorate the majority's

concern regarding both the technical and the "ancient" nature of

the testimony. Moreover, the witness was given the opportunity to

consult with counsel, who was available outside of the grand jury

room, and the record reflects that the witness consulted with

counsel at least twice, which should further palliate concerns that

anything unfair occurred here.

IV.

Because I find that the majority's newly invented lesser

standard of need is inconsistent with our precedent, significantly

detracts from important interests of grand jury secrecy and

preventing witness intimidation, substantially overemphasizes the

interests of a witness, encrusts grand jury proceedings with

needless procedural complications, and is insupportable on this

record, I respectfully dissent.