Federal Grand Jury Practice and Procedure - 5th Edition

To view the Electronic version, Click Here.

Written by a federal district judge and former prosecutor who represented clients throughout the country in grand jury related litigation, Federal Grand Jury Practice and Procedure is designed to assist judges, prosecutors, and defense counsel through the complexities of federal grand jury practice and procedure. Concise, thorough, and well organized, Federal Grand Jury Practice and Procedure is an indispensable resource for every lawyer practicing criminal law in federal court today.

This guide reveals the inner workings of the federal grand jury, providing you with the most definitive guidance available. It contains an extensive practical discussion and analysis of the Justice Department's Federal Grand Jury Practice Manual.

In one volume, the entire grand jury process is covered, including: Grand jury's investigative power; Judiciary's supervisory authority over the grand jury; Prosecutorial misconduct before the grand jury; The grand jury's contempt powers; The grand jury's power to punish for perjury and the obstruction of justice; Grand jury administration; Constitutional and common law privileges before the grand jury; Subject-target procedures before the grand jury; Immunity privileges; Grand jury secrecy requirements; and Grand jury practice in all circuits.

Chapter 1
Introduction
1.01 Background--England
1.02 Background--America

Chapter 2
Workings of the Grand Jury
2.01 The Empanelment of the Grand Jury
(A) The "Regular" and the "Special" Grand Jury
(1) The Regular Grand Jury
(2) The Special Grand Jury
(B) Distinguishing between Regular and Special Grand Juries
2.02 Grand Jurors: Summoning, Selection, Challenges
(A) Summoning
(B) Quorum
(C) Determining Juror Qualifications
(1) General Challenge Procedures
(2) Juror Selection under the Jury Act
(3) Determining Juror Qualifications
(4) Access to Juror Selection Materials
(5) Challenges under the Jury Act
(6) Constitutional Challenges
2.03 Alternate Jurors and Foreperson
(A) Alternates
(B) Foreperson
(C) Foreperson Challenges
2.04 Oaths, Charges, and Instruction
(A) Oaths to Foreperson and Grand Jurors
(B) Opening Statements and Instructions
(C) Oaths to Others
(D) Closing Remarks and Instructions
2.05 Recording and Transcription
(A) Recording Requirements
(B) Transcription
(C) Availability of Transcripts--Obligation of Absent and New Jurors to Review Transcripts
2.06 Who May be Present
(A) Attorney for the Government
(B) Witnesses
(C) Counsel
(1) Appointment of Counsel
(D) Others

Chapter 3
Indictment and Report
3.01 Indictment or Information
(A) Drafting Indictments
(B) Sufficiency
(1) Elements of the Offense Charged
(2) Notice to the Defendant
(3) Bar against Double Jeopardy
(C) Multiplicitous Indictments
(D) Sealed Indictments
3.02 Background--America
(A) Special Grand Jury
(B) Regular Grand Jury

Chapter 4
Conducting the Investigation
4.01 Indictment or Information
(A) Venue and Jurisdiction
(B) Evidentiary Predicate for Commencing a Grand Jury Investigation
(C) Investigation after Return of an Indictment
(D) The Use of a Protective Order to Limit a Grand Jury Investigation
(E) The use of Stays to Enjoin Grand Jury Investigations
4.02 Power of Subpoena
(A) Subpoena--How Issued
(B) Service
(C) Subpoena Ad Testificandum
(D) Subpoena Duces Tecum
(E) Witness Fees
(F) Material Witness Warrant
4.03 Motion to Quash Subpoena
(A) Timeliness
(B) Standing
(C) Burden of Proof--Presumption of Regularity
(D) Unreasonableness and Oppressive Subpoenas
(1) Relevance
(2) Specifications of Things to Be Produced
(3) Time Span Covered
(E) Appeal
(1) Witness
(2) Government

Chapter 5
Contempt
5.01 The Contempt Statutes
5.02 Civil Contempt
(A) Procedural Requirements
(B) Just Cause Defense
(1) Illegal Electronic Surveillance
(a) The Gelbard Doctrine
(b) The Witness's "Claim"
(c) The Government Response
(2) Moral Beliefs
(3) Fear of Reprisal
(4) Breach of Grand Jury Secrecy
(5) Failed Memory
(6) "Compelled" Perjury
(C) Incarceration or Fine
(1) Corporations
(2) Recalcitrant Witness
(D) Section 1826 Thirty-Day Appeal Provision
(E) Successive Contempt Sanctions
5.03 Criminal Contempt
(A) Direct or Indirect
(B) Elements and Burden of Proof
(C) Procedural Rights
(D) Defenses
(1) Least Possible Power Doctrine
(2) Lack of Intent
(3) Invalidity of a Court Order
(E) Successive Civil and Criminal Contempt
(F) Sentencing

Chapter 6
Constitutional Privileges
6.01 First Amendment Privilege
6.02 Fourth Amendment Limitations
(A) Subpoena Ad Testificandum
(B) Subpoena Duces Tecum
6.03 Fifth Amendment--Privilege Against Self-Incrimination
(A) Personal Compulsion
(B) Testimonial Communication
(1) Documentary Evidence--Act of Production Doctrine
(2) The Required Records Exception
(3) The Foregone Conclusion Doctrine
(4) "Private Papers:" Diaries and Appointment Books
(C) Incriminating Communication
(1) Fear of Foreign Prosecution
(2) Fear for Personal Safety
6.04 Speech and Debate Clause Privilege

Chapter 7
Common Law and Statutory Privileges
6.01 First Amendment Privilege
6.02 Fourth Amendment Limitations
(A) Subpoena Ad Testificandum
(B) Subpoena Duces Tecum
6.03 Fifth Amendment--Privilege Against Self-Incrimination
(A) Personal Compulsion
(B) Testimonial Communication
(1) Documentary Evidence--Act of Production Doctrine
(2) The Required Records Exception
(3) The Foregone Conclusion Doctrine
(4) "Private Papers:" Diaries and Appointment Books
(C) Incriminating Communication
(1) Fear of Foreign Prosecution
(2) Fear for Personal Safety
6.04 Speech and Debate Clause Privilege

Chapter 8
Subject-Target and Immunity Procedures
8.01 Subject-Target Procedures
8.02 Immunity
(A) Nature of Immunity
(B) Statutory Basis
(C) Constitutional Constraints
(1) Kastigar and Use Immunity
(2) The Government's Burden
(3) False Immunized Testimony
(D) Statutory Overview
(E) Authority to Confer Immunity
(F) Informal Immunity
(G) Formal Immunity Regulations
(H) Immunity in Tax Proceedings

Chapter 9
Prosecutorial Misconduct
9.01 The Need to Show Prejudice and the Courts' Supervisory Authority
(A) Prejudice and the Failure to Present Exculpatory Evidence
(B) Judicial Supervision of the Grand Jury
9.03 Improper and Inadmissible Evidence
(A) Use of Perjured Testimony
(B) Use of Hearsay
9.04 Improper Statements

Chapter 10
Grand Jury Secrecy
10.01 What is Grand Jury Secrecy
(A) Secrecy and the Special Prosecutor
(B) Things to be Kept Secret
10.02 Violating Grand Jury Secrecy
(A) Sanctions
(B) Procedures for Imposing Sanctions
10.03 Exceptions
(A) Attorney for the Government
(B) Government Personnel
(C) In Connection with a Judicial Proceeding
(1) Particularized Need
(a) Disclosure to the government
(b) Disclosure to Private Parties
(D) Disclosure to another Grand Jury
(E) Disclosure to State Law Enforcement Officials
(F) Disclosure to the Defendant
(1) Jencks Act
(G) Disclosure in Support of Dismissal
(H) Criminal Rule 26.2
(I) Disclosure Pursuant to Rule 16(a)(1)(A)
(J) Freedom of Information Act
(K) Privacy Act
(L) Secrecy Obligations and the Grand Jury Witness
(1) Rule 6
(2) Right to Financial Privacy Act

Chapter 11
Obstruction of Justice before the Grand Jury
11.01 Obstruction of Justice and the Victim Witness Protection Act
(A ) The Victim Witness Protection Act
11.02 Section 1501--Assault on a Process Server
(A ) Mens Rea Requirement
(B ) The Need to Prove a Use of Physical Force
(C ) Defenses
11.03 Section 111--Assaulting, Resisting, or Impeding Certain Officers or Employees
(A ) Mens Rea Requirement
(B ) The Need to Prove a Use of Physical Force
(C ) Defenses
11.04 Section 1503--Influencing or Injuring Officer or Juror Generally
(A ) Mens Rea Requirement
(B ) Endeavoring to Obstruct
(C ) The Pending Proceeding Requirement
(D ) The Omnibus Clause
(E ) Defenses
11.05 Influencing a Juror by Writing
11.06 Picketing or Parading
11.07 Eavesdropping on the grand Jury
11.08 Tampering with Grand Jury Witnesses
(A ) General Protections and Venue
(B ) Mens Rea Requirement
(C) Official Proceeding Requirement
(D) Attempted Witness Tampering
(E ) Defenses
11.09 Retaliating Against a Grand Jury Witness
(A ) Prohibited Actions
(B ) Mens Rea Requirement
(C ) Defenses
11.10 Equitable Relief

Chapter 12
Perjury before the Grand Jury
12.01 Statutory Overview
(A) Section 1621
(A) Section 1621
(A) Section 1621
12.02 Criminal Elements--Sections 1621 and 1623
(A) Oath
(B) False Statement
(C) Materiality
(D) Mens Rea
(E) Differences between Sections 1621 and 1623
12.03 Criminal Elements--Section 1622

Judge Paul S. Diamond has served as a Judge on the United States District Court for the Eastern District of Pennsylvania since 2004. He was in private practice for twenty-one years in two large Philadelphia firms, where he concentrated in the areas of complex criminal and commercial litigation. Judge Diamond previously served as a prosecutor in Philadelphia, conducting grand jury investigations. While serving on the American Bar Association's Grand Jury and Amicus Curiae Briefs Subcommittees, he authored amicus briefs submitted on behalf of the ABA to the First and Third Circuit Courts of Appeal in United States v. Klubock and Baylson v. Disciplinary Board--cases addressing questions of first impression respecting the practice of subpoenaing defense counsel to testify before the grand jury. A graduate of Columbia University and the University of Pennsylvania Law School, Judge Diamond has been a member of the American Law Institute since 1999.

This book was written in the author's private capacity as a lawyer, and the book does not in any way constitute an official statement of the law or policy or otherwise reflect the views of the United States District Court for the Eastern District of Pennsylvania.