In a 2015 cocaine importation investigation, the U.S. Attorney’s Office for the Eastern District of New York issued three grand jury subpoenas (one to an accounting firm and two to other recipients) that inadvertently included the following language:

YOU ARE HEREBY DIRECTED NOT TO DISCLOSE THE EXISTENCE OF THIS SUBPOENA AS IT MAY IMPEDE AN ONGOING CRIMINAL INVESTIGATION.

United States v. Gigliotti, 15 CR 204, slip op. at 2 (E.D.N.Y. Dec. 23, 2015).

The defendants moved pre-trial to preclude the government from offering at trial evidence obtained pursuant to these grand jury subpoenas, arguing that the above-quoted language was improper. There was no dispute on that point—the defendants, the district court and the Eastern District’s U.S. Attorney’s Office, all agreed that Federal Rule of Criminal Procedure 6(e)(2) imposes no obligation of secrecy on grand jury witnesses and therefore the language directing non-disclosure should not have been used.Id. at 3. The U.S. Attorney’s Office explained that the language was used unintentionally, and prior to the district court’s decision on the defendants’ motions, notified the subpoena recipients of the error and advised them that they had no legal obligation to refrain from disclosing their receipt of, or response to, the subpoena. Id. The district court found that the corrective notification provided by the government to the subpoena recipients was sufficient and that suppression of the evidence obtained by subpoena was unwarranted.Id. at 1.

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