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Following a tactic born of success, one genetically imprinted on succeeding generations of prosecutors, the United States Attorney’s Office will typically follow a vertical upward path in a complex white-collar or political corruption investigation. Pressure is applied to lower-level participants by threatening to bring or bringing indictments in order to secure cooperation against higher-ups. Government prosecutors and agents tape record conversations with targets of the investigation and collect voluminous financial and other records while working toward the top, confident that broad grand jury secrecy rules create a tilted playing field: The prosecutors can speak to the press and the public through indictments and at press conferences, divulging that information which suits them, while leaving the higher investigative targets with no concomitant ability to offset the resulting taint on reputation or business interests by gaining access to materials garnered in the investigation. But there is a little-used means which may be available to draw aside that grand jury curtain. It is the Hyde Amendment, a statute enacted in 1997 to give criminal defendants financial recourse following bad faith government prosecutions. The amendment may, in an investigation where multiple targets are coordinating their defense, allow the mutually-interested defense group to gain access to grand jury-protected materials. Generally, Federal Rule of Criminal Procedure 6(e)(2)(B) provides that an attorney for the government may not disclose “a matter occurring before the grand jury.” Under this rule “not only are grand jury materials themselves to be kept secret, but so are all materials that ‘relate to’ grand jury proceedings.” United States v. Smith, 123 F.3d 140, 149 (3d Cir. 1997). Courts reflect no consensus definition of a “matter occurring before the grand jury.” Compare In re Newark Morning Ledger Co., 260 F.3d 217, 226 (3d Cir. 2001)(contempt proceedings not literally “matter occurring before the grand jury” but may affect grand jury proceedings and are properly sealed) with In re Grand Jury Subpoena (Under Seal), 920 F.2d 235, 242-43 (4th Cir. 1990)(information from parallel criminal investigation not subject to secrecy rule since it was not literally before the grand jury). But prosecutors take the broadest view of Rule 6(e), typically treating as nondisclosable matters such as tape recordings generated during an investigation, whether or not they were obtained by grand jury subpoena or actually played for a sitting grand jury. One exception to Rule 6(e) permits a district court to order disclosure “preliminarily to or in connection with a judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(E)(i). Disclosure under that exception is rarely granted, since the movant must show that (1) disclosure is necessary to prevent manifest injustice in another judicial proceeding; (2) the particularized need for disclosure outweighs the public interest in continued secrecy; and (3) the request is structured so that only information necessary to avoid injustice is released. United States v. Sells Engineering, Inc., 463 U.S. 418, 442-44 (1983); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 221-22 (1979). Courts also have inherent power to disclose grand jury material apart from the circumstances stated in the Rule. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398-99 (1959); In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d 1261, 1268 (11th Cir.), cert. denied, 469 U.S. 884 (1984); but see Carlisle v. United States, 517 U.S. 416, 425-26 (1996)(courts cannot adopt rules which circumvent or conflict with the Federal Rules of Criminal Procedure). The Hyde Amendment, Pub. L. No. 105-119, �617, 111 Stat. 2440, 2519, reprinted in 18 U.S.C. app. �3006A, was enacted to “curb abuses associated with the bringing of frivolous indictments, the subordination of perjury and the [government's] failure to disclose exculpatory evidence.” United States v. Ranger Electronic Communications, Inc., 22 F.Supp.2d 667, 673 (W.D. Mich. 1998), rev’d on other grounds, 210 F.3d 627 (6th Cir. 2000). The amendment allows a criminal court to award reasonable attorney fees and other litigation expenses to the “prevailing party” if the court finds that the position of the government in the matter was “vexatious, frivolous or in bad faith,” unless special circumstances make the award unjust. In weighing an application for fees — to which is applicable the procedures and limitations of the Equal Access to Justice Act, 28 U.S.C. �2412 — the court may upon good cause receive evidence ex parte and in camera and keep such evidence sealed. The defendant bears the burden of proof by a preponderance of the evidence. United States v. Adkinson, 247 F.3d 1289, 1291 (11th Cir. 2001). A defendant need not secure an acquittal, since “prevailing” defendants include those whose convictions were reversed on appeal, United States v. Adkinson, 256 F.Supp.2d 1297, 1307-08 (N.D. Fla. 2003), aff’d per curiam, 360 F.3d 1257 (11th Cir. 2004), and those who successfully moved for dismissal of charges against them, whether the dismissal was without prejudice, United States v. Gardner, 23 F.Supp.2d 1283, 1290-92 (N.D. Okla. 1998), or with prejudice on the government’s own motion, Ranger Electronic Communications, 22 F.Supp.2d at 676. In determining whether the government’s position was “vexatious, frivolous, or in bad faith,” the court is entitled to consider not just the litigation position of the United States Attorney’s Office, but also the activities of the investigative agency. Gardner, 23 F.Supp.2d at 1294-95. The opinion in Gardner illustrates the opportunities for useful Hyde Amendment discovery, particularly in aid of a joint defense arrangement. In Gardner, the defendant requested discovery prior to his fee hearing, including internal IRS reports, memos of witness interviews, and depositions of IRS agents and an Assistant U.S. Attorney. 23 F.Supp.2d at 1295-96. Although the court denied the request for depositions, it also rejected the government’s argument that the “record” for the fee hearing was limited to the public information filed in the criminal case, Id. at 1298, since the Hyde Amendment “expressly contemplates an expansion of the record” in hearing the defendant’s claim. Id. at 1296. The court ordered in camera inspection of internal IRS and Department of Justice documents and anticipated proceeding in a “measured and prudent manner” before directing the production of material to the defendant. Id. at 1297. Other courts have similarly adopted positions authorizing amendment discovery. Adkinson, 247 F.3d at 1291 n.2 (discovery available to claimant who meets elements of 28 U.S.C. �2412); United States v. Gugnani, 178 F.Supp.2d 538, 546 (D. Md. 2002)(discretion to allow discovery); but see United States v. Truesdale, 211 F.3d 898, 907 (5th Cir. 2000)(discovery not available as a matter of right); United States v. Aisenberg, 358 F.3d 1327, 1349-52 (11th Cir. 2004)(abuse of discretion in ordering government to produce grand jury transcripts after court had already made fee award; under those circumstances, production of grand jury materials measured against Douglas Oil standard), reh. denied, 2004 WL 793311 (11th Cir., Mar. 30, 2004), cert. denied, 125 S.Ct. 276 (2004). Thus, in any vertical prosecution, the ability of a lower-level defendant to obtain an acquittal or even a dismissal of some charges at or before trial may enable that defendant to force open a window into the formerly closed world of “grand jury” materials, a window against which might press the many faces of other interested parties. Alain Leibman, a partner at Greenbaum, Rowe, Smith, Ravin, Davis & Himmel of Woodbridge, N.J., is co-chair of the firm’s White Collar Criminal Defense Group. He was an Assistant U.S. Attorney in the District of New Jersey from 1988 to 2004. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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