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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.

How can we get records that are in the hands of the U.S. Attorney, and may have been subpoenaed by a grand jury?

We are investigating some work done for us by a Consultant who was prosecuted by a certain US Attorney .

The Consultant's company's records were seized by the FBI and are now in the hands of the Federal Prosecutor. We assume that the seizure of the records took place pursuant to a Federal Grand Jury subpoena. The consultant was convicted, but subsequent skipped bond. Are there any procedures we can use to get a look at those records?

Response:

The records could have been seized either pursuant to a grand jury subpoena or pursuant to a search warrant.

If they were seized pursuant to a search warrant, then no issue of grand jury secrecy would apply, and I would assume your agency, or the attorney who represents your agency, could simply contact the appropriate federal prosecutor and either ask for copies of the records or for the records themselves.

(It would not seem that the prosecutor would still need them, since you say the consultant was convicted. Of course, they might be relevant to an ongoing investigation of others, which takes me to the grand jury issue.)

If the documents were seized pursuant to a grand jury subpoena, the prosecutor might argue that they are now protected by grand jury secrecy, which means you would have to follow the procedures under Rule 6(e) of the Federal Rules of Criminal Procedure to get access to them (that allows access for use in another criminal proceeding, essentially, or for use in connection with a judicial proceeding if a court issues an order to that effect). There is also an argument, a strong argument in my view, that pre-existing documents produced to a grand jury are not encompassed by secrecy. If the documents were produced to a grand jury, the grand jury might still be using them (or might not, as I pointed out above).

Either way, it would seem that you or an attorney in your office could contact the federal prosecutor responsible for the seizure of the records and see if you can arrange to get them or copies of them.

SWB

2002

  

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