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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

Can a U.S. Attorney tell someone they are being investigated by a grand jury?
Can a U.S. Attorney tell someone the grand jury did not indict them?

Hello, I am an investor in a small company named XYZ, Inc. A magazine recently published that XYZ, Inc. was under federal investigation for criminal activity (fraud) by its executives, and that a Federal Grand Jury in Florida was hearing evidence and testimony. XZY, Inc.ís executives claimed, immediately after the Barron's article appeared, that they did not know about the Grand Jury. Having reviewed your web-site, I did see that the defendants need not be notified that a rand Jury is investigating them. So it seemed reasonable for XYZ, Inc. to state that they did not know about the Grand Jury. However, XYZ, Inc. promised to look into this matter and get back with its shareholders. After a day, XYZ. Inc. announced that they had confirmed with the U.S. Attorney that a Grand Jury proceeding against them was taking place.

FIRST QUESTION: Since the Grand Jury participants are sworn to secrecy, how could the U.S. Attorney confirm to XYZ, Inc. that they are being investigated? Is perhaps only the evidenced discussed secret, and not the identity of the defendant?

SECOND QUESTION: I assume if the Grand Jury issues indictments, this will clearly be a public proceeding as this heads to trial. However, what happens if they return a "no true bill." Are there any requirements for the Grand Jury to disclose all their deliberations, once complete, whether they resulted in indictments or not? Do you think the U.S. Attorney as a matter of courtesy would notify XYZ, Inc. if the Grand Jury did not call for an indictment? Thanks for your time.

Response:

FIRST QUESTION: Well, the federal rule governing grand jury secrecy is that it encompasses "matters occurring before the grand jury", which could certainly be construed as encompassing the identify of those who are being investigated . . . but prosecutors routinely give out information about the general focus of investigations. This is inconsistent with one of the purposes of grand jury secrecy, which is to protect innocent parties who are investigated but cleared, but it seems to be accepted practice, notwithstanding that.

SECOND QUESTION: No public disclosure of a grand jury's failure to indict; that would clearly violate grand jury secrecy, as it would reveal matters occurring before a grand jury . . . and it really establishes nothing, since a second grand jury can consider the matter and indict, if it decides that is warranted. As to whether the U.S. Attorney would tell a company they were not indicted, I really do not know, though I doubt it . . . especially if the government intends to try again with a new grand jury.

NOTE: None of this is legal advice, as I do not tender legal advice. It is a statement of general practices, which is all I can do, since I really do not have all the facts. Notwithstanding that, I hope it is helpful.

SWB

2002

  

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