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UNITED STATES v. MCRAE

March 7, 1984

UNITED STATES of America, Plaintiff,
v.
Leonard G. McRAE, et al., Defendants



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge.

 On October 7, 1983, the government returned a 14-count superseding indictment charging 15 defendants with organizing or participating in a heroin distribution ring within the District of Columbia. The indictment charged the defendants with violation of some or all of the following criminal provisions of both the federal and District of Columbia codes: narcotics conspiracy in violation of 21 U.S.C. § 846; unlawful distribution of a controlled substance in violation of 21 U.S.C. § 841(a); unlawful distribution of a controlled substance to a minor in violation of 21 U.S.C. §§ 841(a) and 845; and homicide resulting from a heroin overdose, in violation of D.C.Code §§ 22-2403, 2405.

 The defendant Leonard G. McRae filed a motion in December 1983 for a hearing to determine whether matters occurring before the grand jury had been improperly disclosed to the chief investigator of the alleged illegal drug ring, Detective Alfred C. McMaster, Jr. of the D.C. Metropolitan Police Department in violation of the grand jury secrecy provisions of Rule 6(e) Fed.R.Crim.P. *fn1"

 As a result of the motion, this Court, in Pretrial Order No. 3, January 23, 1984, ordered that the "government . . . file a declaration by Officer McMaster, setting forth any and all Grand Jury materials which may have been disclosed to him in this proceeding." para. 8. Thereafter McMaster filed an affidavit on January 25, 1984, stating, "I have not read transcripts of any of the proceedings before the Grand Jury which considered this case nor have matters occurring before the Grand Jury been disclosed to me." On February 16 and 29 hearings were conducted and counsel for McRae examined McMaster in some detail on possible disclosures in violation of Rule 6(e). The government, both at the hearings and in its opposition memoranda argued that McMasters' affidavit and testimony showed that nothing occurring before the Grand Jury was disclosed to Officer McMaster, and in the alternative, that disclosure to Officer McMaster was permissible under subsection (3)(A)(ii) of Rule 6(e).

 The Court agrees and finds that there were no violations by the government of Rule 6(e)'s secrecy provisions.

 A.

 Over the course of the investigation, McMaster served a number of grand jury subpoenas on behalf of the government. In three instances the documents subpoenaed were sent directly to him; he examined them and compared the information they contained with data from other records before eventually handing them over to the Assistant United States Attorney handling the case. Those three subpoenas requested documents relating to certain telephone beepers, a lease agreement, and a set of records located in an apartment development. Later, as chief investigator, McMaster testified before the Grand Jury on several occasions. He was not present when other witnesses testified; he did not read transcripts of testimony given by other witnesses to the grand jury, nor did the government attorney disclose any such information to him. Detective McMaster did not even know whether the subpoenaed documents he examined were shown by the government to the grand jury, and he was unsure whether his testimony before the grand jury involved those documents. Throughout, he operated under the direction and control of the Assistant United States Attorney.

 McRae claims that Detective McMaster's examination of the subpoenaed documents constituted disclosure of matters occurring before the grand jury in violation of Rule 6(e)(2). The Court disagrees, and finds that McMaster's examination of the documents did not amount to impermissible disclosure of matters occurring before the grand jury. See United States v. Lartey, 716 F.2d 955, 964 (2d Cir.1983).

 One of the considerations behind the rule of grand jury secrecy is the protection of the grand jury from outside interference. Thus, independently generated documents that happen to be subpoenaed by the grand jury are not cloaked with such secrecy unless they reveal something about the grand jury proceedings. Lartey, a drug conspiracy prosecution, involved the disclosure by the government of bank records subpoenaed by the grand jury to a retired Internal Revenue Service agent retained by the government. The court noted "it can hardly be supposed that the bank records . . . yielded information regarding the scope or direction of the grand jury investigations." Id. at 964.

 The identical observation can be made here. There is nothing to suggest that the documents examined by Detective McMaster revealed what occurred before the grand jury. Thus, his examination of those documents did not amount to disclosure of "matters occurring before the grand jury" under Rule 6(e)(2).

 B.

 Even if Detective McMaster's review of the documents did amount to disclosure under Rule 6(e)(2), he nonetheless falls within the class of persons to ...


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