In Re GRAND JURY

566 F.3d 12, 2009 U.S. App. LEXIS 10039, 2009 WL 1286334

• Court: Court of Appeals for the First Circuit
• Decided: May 11, 2009
• Docket: 08-1880
• Status: Published

Opinions

TORRUELLA, Circuit Judge.

This appeal arises from an ongoing grand jury investigation. The appellant, a non-target, testified before the grand jury concerning highly technical and ancient subject matter. After approximately three hours of testimony, during which the government reminded the appellant repeatedly that a failure to testify truthfully would be subject to possible perjury charges, the government continued its examination to a later date. In the interim, the appellant sought access to a transcript of his prior testimony pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(i). The district court denied the request, finding that the appellant failed to provide a strong showing of a particularized need for access to the transcript. The appellant refused to testify further, and, on the government’s motion, the district court found the appellant in contempt. This appeal followed. After careful consideration, we reverse and remand.

I. Background

To avoid compromising the grand jury investigation, we only discuss the bare minimum of facts necessary to dispose of this appeal.

In May 2008, the government issued a subpoena to the appellant to testify before a federal grand jury sitting in the District of Massachusetts, and subsequently issued a subpoena directing him to produce documents related to the subject matter of his testimony.

After receipt of the subpoenas, the appellant indicated through counsel that he would assert his Fifth Amendment right against self-incrimination and would refuse to testify. In response, the government applied for and obtained an order granting the appellant use immunity pursuant to 18 U.S.C. §§ 6002 & 6003, and compelled him to testify before the grand jury.

About a week later, in June 2008, the appellant testified before the grand jury for approximately three hours and fifteen minutes. During his examination, which was conducted by three assistant U.S. attorneys simultaneously, the prosecutors warned the appellant multiple times that the use immunity order did not protect him from prosecution for testifying falsely. In some instances, the prosecutors asked repetitive questions, and suggested inconsistencies in the appellant’s testimony. Other times, the prosecutors verbally abused the appellant. However, the prosecutors did not indicate that they were planning to indict the appellant on perjury or obstruction of justice charges. Moreover, the appellant was questioned about events and documents of significant complexity. A number of these events and documents dated back to 1999.¹

The government did not complete its examination. Consequently, the government ordered the appellant to return and complete his testimony the following week. At the appellant’s request, the government agreed to continue his return to the grand jury for an additional two weeks, until early July 2008.

In the interim, counsel for the appellant sent a letter to the government seeking an opportunity for the appellant to review the transcript of his grand jury testimony in advance of his second day of testimony. The government declined the request.

As a result, the appellant filed an emergency motion for access to a transcript of his grand jury testimony pursuant to Fed. R.Crim.P. 6(e)(3)(E)®, which authorizes a court to order disclosure of grand jury materials “preliminarily to or in connection with a judicial proceeding.” In particular, appellant sought to review his transcript at the U.S. Attorney’s office or a similar location, and further requested that his lawyer accompany him and that the appellant be allowed to take notes.

In support of his motion, the appellant cited a recent D.C. Circuit decision, In re Grand Jury, 490 F.3d 978 (D.C.Cir.2007), in which the court held that grand jury witnesses are entitled under Rule 6(e)(3)(E)® to review transcripts of their own grand jury testimony. See id. at 980, 990. In the alternative, the appellant argued that he has shown a particularized need for access to the transcript given the prosecutors’ warnings of possible perjury prosecution and the complexity of the subject matter of his testimony. The government opposed, and argued that, under First Circuit law, the appellant must provide “a strong showing of particularized need” to obtain access, see In re Special Proceedings, 373 F.3d 37, 47 (1st Cir.2004) (quotation marks omitted), and that the appellant had failed to do so.

A hearing was held on the same day as the filing of the emergency motion, which, as the district court noted, did “not provide[ ] a great deal of time for reflection.” In ruling on the motion, the district court first acknowledged that “at least at first reading I agree with the reasoning of the D.C. Circuit case.” In particular, the district court noted that the benefit to the witness of access far outweighs the “very mild burden on grand jury secrecy, so mild as to be close to nonexistent,” since a witness is not bound to keep his testimony secret, and could easily debrief his or her attorney after testifying. Moreover, although the district court recognized the “potential administrative burden” caused by the D.C. Circuit rule in permitting access, it concluded, in its own view, that “the benefit to the witness greatly outweighs the burden to the government.”

Nevertheless, the district court concluded that it was bound by First Circuit precedent, and thus required the appellant to provide a strong showing of a particularized need for the transcript in order to obtain access. In examining whether the appellant had made a showing of particularized need, the district court stated:

I do not find that there is a particularized need here, that is, as I interpret the case law, as to what is required to show a particularized need; that there are three unusual aspects to this: The first is that the testimony spread over two days or more than one day; the second is that the witness was confronted by the prosecutor and given perjury warnings about the accuracy of some of his statements; and the third is that the subject matter is quite complex. While to some extent those facts are unusual, they’re not highly unusual, and I don’t think under the [In re] Bianchi [542 F.2d 98 (1st Cir.1976) ] and In re: Spedal Proceedings line of cases are enough to show particularized need.

Accordingly, the district court denied the motion.

One week later, in mid-July 2008, the appellant appeared before the grand jury but refused to answer questions. That same day, the government petitioned the district court to hold the appellant in civil contempt pursuant to 28 U.S.C. § 1826. Still that same day, the district court conducted a hearing during which it allowed the government’s petition for contempt in an oral ruling and written order. However, the district court stayed that order during the pendency of any appeal.

Counsel for the appellant also pointed out that the transcript of the appellant’s first day of grand jury testimony was now available, and moved the district court to order the government to file the transcript with the court. After initially entertaining the request, the district court denied the motion, because it was concerned about the “mechanical difficulties involved,” and since it was “not relying on what the transcript said, I don’t feel I need to see the transcript. I won’t make it part of the record.”

II. Discussion

On appeal, the appellant contends that the district court erred in denying his request to review a transcript of his grand jury testimony prior to his second day of examination. We review any rulings of law de novo, and, to the extent we find no legal error, any denial of disclosure for abuse of discretion. See In re Grand Jury Proceedings, 580 F.2d 13, 18 (1st Cir.1978).

A. Standard That Applies to a Request for Access

The appellant first contends that the district court erred as a matter of law in requiring him to provide a “strong showing of particularized need” in order to obtain access to his transcript. Instead, the appellant argues that a “less demanding” standard of particularized need applies when a grand jury witness seeks only access to a transcript of his testimony, rather than a copy. For support, appellant relies on In re Grand Jury, a recent D.C. Circuit decision where the court held that grand jury witnesses are entitled “to review transcripts of their own grand jury testimony in private at the U.S. Attorney’s Office or a place agreed to by the parties or designated by the district court.” 490 F.3d at 990. Given its importance to the appellant’s claims, we discuss the D.C. Circuit’s decision in some detail.

1. The D.C. Circuit Decision

Grand Jury involved a grand jury investigation into a company and its employees. Id. at 980. Two employees of the company testified before the grand jury, and were subpoenaed to testify an additional time. Id. Both moved for access to a transcript of their prior grand jury testimony before testifying further, “in order to avoid the possibility of inconsistent statements occasioned by the passage of years since the events in question and many months” since they last testified, as well as the possible need “to take advantage of recantation pursuant to 18 U.S.C. § 1623.” Id. at 984. The district court denied both motions, finding that neither employee provided a sufficient showing of “particularized need” for the transcripts that “outweighed the interests in maintaining grand jury secrecy.” Id. at 984 & n. 4.

On appeal, the D.C. Circuit, addressing the issue for the first time, see id. at 987, noted that the district court, in requiring a showing of particularized need, relied on Supreme Court precedent that concerned third parties seeking copies of such materials. See id. at 984 & n. 3 (citing, among other cases, Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222-23, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979)). However, in contrast to a third party, a grand jury witness is under no obligation to maintain the secrecy of grand jury proceedings. Id. at 985; see also Fed. R.Crim.P. 6, Advisory Committee Notes, 1944 Adoption, Note to Subdivision (e) (“[R]ule does not impose any obligation of secrecy on witnesses.”).

With this background in mind, the D.C. Circuit addressed “when courts should” provide access. Grand Jury, 490 F.3d at 986. Noting that the text of Rule 6(e)(3)(E)(i) is “open-ended,” and following the “general analytic approach” of other circuits that have addressed the issue, the court “weigh[ed] the competing interests of the Government and grand jury witnesses.” Id. at 987. As to witnesses, the district court identified two interests in obtaining access: (1) the need to “ensur[e] that their recollections are accurately reflected in the transcripts,” and (2) for those witnesses who “may testify again in the same investigation ... to help prepare for the upcoming testimony.” Id. at 988. As to the government, the court identified two competing interests: (1) to maintain grand jury secrecy, and (2) to prevent witness intimidation. Id.

The court concluded that the witness interests in access outweighed the government’s interests in prohibiting such access. As to secrecy, the court noted that the secrecy rationale was meant to prevent “the public or others from learning what a grand jury witness said to the grand jury.” Id. Thus, while preventing access to a third party was necessary to maintain the secrecy of grand jury witness testimony, preventing access to the witness himself “makes little sense,” since a witness already knows the content of his testimony and, in any event, has the right to broadcast the substance of his testimony if he so desired. Id. at 988-89 (noting that “the witness can stand on the courthouse steps and tell the public everything the witness was asked and answered”). The D.C. Circuit therefore concluded that “the Supreme Court’s ‘particularized need’ standard, which the Court crafted to deal with third-party requests for secret transcripts of other witnesses’ testimony, does not apply in this first-party context.” Id. at 989.

As to witness intimidation, the court found compelling the concern that providing copies to a witness would result in third parties forcing disclosure of the copies and thereby “deter[ring] witnesses from testifying freely and candidly in the first place.” Id. at 989. However, the concern with intimidation “lacks force with respect to a witness’s merely reviewing the transcript in private at the U.S. Attorney’s office or a place agreed to by the parties or designated by the district court.” Id. at 990. The court, in particular, saw little difference between pressure to divulge the contents after a private review of the transcript and pressure to “recall their testimony from memory.” Id. Based on this weighing of interests, the court concluded that first-party witnesses are entitled to access of their transcripts under Rule 6(e).

2. Analysis

The appellant contends that the D.C. Circuit’s reasoning in Grand Jury supports his claim of a less demanding standard, since he seeks the same access to a transcript of his own testimony that the D.C. Circuit permitted. We agree. To be clear, we do not adopt the D.C. Circuit’s holding that a grand jury witness is entitled to access to a transcript of his grand jury testimony. Instead, we hold that, in light of the considerations supporting the D.C. Circuit decision and our own review of our precedent, a less demanding requirement of particularized need applies when a grand jury witness demands access to a transcript, rather than a copy of the transcript.²

Admittedly, we have held that “a grand jury witness has no general right to the transcripts of his testimony.” Bianchi, 542 F.2d at 100 (citing In re Bottari, 453 F.2d 370 (1st Cir.1972)). Instead, in this circuit a witness must provide “a strong showing of particularized need” in order to obtain a copy of a transcript. Special Proceedings, 373 F.3d at 47 (quotation marks omitted).

However, as the appellant correctly points out, our prior case law has solely concerned grand jury witnesses seeking copies of their transcript, while the appellant seeks only access, understood as an opportunity to review the transcript. In Bottari, our earliest case on the issue, the witness sought, as a precondition to testifying, a copy of “a transcript of the questions and answers following his appearance before the grand jury.” 453 F.2d at 371. Likewise, in Bianchi, the witness sought “copies of his prior grand jury testimony.” 542 F.2d at 100 (emphasis added). And in Special Proceedings, a case outside the grand jury context, but involving what we determined an analogous situation, a special investigation, we rejected a witness’s claim for a copy of his deposition transcript.³ 373 F.3d at 47.

In none of these cases did we have the occasion to address whether a demand for access, which imposes a lesser burden on the governmental interests of grand jury secrecy and witness intimidation, still requires a strong showing of particularized need. Nor has the Supreme Court opined on the issue. However, the Supreme Court, in articulating a standard of particularized need for third parties, has noted that its “standard is a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others.” United States v. John Doe, Inc. I, 481 U.S. 102, 112, 107 S.Ct. 1656, 95 L.Ed.2d 94 (1987). We take the same approach.

We begin by discussing the significant interest a witness has in reviewing a transcript of his or her grand jury testimony. As the D.C. Circuit recognized, even witnesses who intend to testify truthfully have an interest in avoiding inaccuracies and inconsistencies that may subject them to a potential perjury prosecution. See Grand Jury, 490 F.3d at 988 (noting that 18 U.S.C. § 1623(a) provides for “inconsistent statements as [a] basis for a perjury conviction”). The interest in avoiding inaccuracies and inconsistencies increases significantly when a grand jury witness has to testify over multiple days, and thus has to prepare for upcoming testimony. Id.

Moreover, federal law “strongly reinforces” that interest. Id. A grand jury witness has a statutory right to recant, one that would be difficult to exercise without a review of the transcript. See 18 U.S.C. § 1623(d); see also Grand Jury, 490 F.3d at 988 (“A witness would have difficulty taking full advantage of the statutory recantation provision ... without obtaining prompt access to transcripts of their own testimony.”). In addition, the federal rules contemplate the disclosure of grand jury transcripts. See Fed.R.Crim.P. 6(e)(3)(E)(i) (“The court may authorize disclosure ... of a grand jury matter ... preliminary to or in connection with a judicial proceeding”). Finally, the government is subject to a higher burden of proof to establish perjury, which lessens the risk of perjury prosecution and, therefore, allows witnesses to be less evasive and more forthcoming in answering questions.⁴

We also stress that the interest a witness has in maintaining the accuracy of his or her testimony is not just personal to the witness. It is systemic, as both the courts and the government have a substantial interest in ensuring the accuracy of grand jury testimony.

With the witness’s interests in mind, we consider the interests of the government, particularly how those interests are affected in the access context as compared to the copy context. As the D.C. Circuit points out, there are significant differences between the access and copy context with respect to witness intimidation. Specifically, “if a witness could routinely obtain a copy of the grand jury transcript ... an interested party could in turn pressure the witness to obtain the transcript and to give it to that third party.” Grand Jury, 490 F.3d at 989. Likewise a “witness’s fear of being forced to disclose the transcript to a threatening third party could deter witnesses from testifying freely and candidly in the first place.” Id. Both of these concerns are alleviated significantly when only access is permitted. Unlike in the copy context, a witness granted only access could, in the face of intimidation, simply decline to reveal his testimony. See id. at 990 (noting that, in general, a grand jury witness could decline to discuss his or her testimony, and that this option “is not realistically affected by whether the witness can review the transcript at a secure location”).⁵ Moreover, because of this option, the witness will feel less inclined to withhold truthful testimony.

Although the D.C. Circuit did not address it, the access context also differs from the copy context with respect to grand jury secrecy. As both the D.C. Circuit and the district court in this case point out, a grand jury witness is under no obligation to maintain the secrecy of his or her testimony. To use the colorful example of the district court, a grand jury witness has the right to “put up that information on a billboard on the Mass. Pike.” Thus, any concern with maintaining grand jury secrecy is already diminished in the grand jury witness context.⁶ However, permitting access does not exacerbate the situation in the way making a copy available does. Unlike access, a copy can take on a life of its own, and, despite the efforts of a well-intentioned grand jury witness, a copy can float around and land in the wrong hands. Accordingly, the access context better maintains grand jury secrecy vis-a-vis the copy context.

Finally, although we have not had the occasion to address the issue, our decision in Special Proceedings lends some support to the distinction we make between granting access and granting a copy. There, we found that a deponent in a special investigation failed to articulate, let alone show, a particularized need for a copy of his deposition transcript, in part because “the district court took steps to accommodate any need [the witness] might have for the transcript by offering [the witness] and his counsel access to the deposition testimony as long as they agreed to keep the transcript confidential.” 373 F.3d at 47. Not only did we cite the option of access with approval, but we also indicated that a greater showing of need was required to move from the access context to the copy context.

We also recognize one other important interest not discussed by the D.C. Circuit but cited by the district court below, efficiency. Articulating a lesser standard of particularized need with respect to access may increase the burdens on the government in grand jury proceedings. However, we agree with the district court that “the benefit to the witness greatly outweighs the burden to the government.” As the D.C. Circuit noted, “the Federal Rules ... mandate that grand jury proceedings be transcribed or taped,” with such records being kept by the government. Grand Jury, 490 F.3d at 986 (citing Fed.R.Crim.P. 6(e)(1)). Thus, the cost of providing a transcript, which must be created anyway, and the slight delay caused by the review of the transcript would not impede an investigation significantly. In fact, there is no evidence that the D.C. Circuit’s more lenient rule has had any detrimental affect on grand jury investigations in that circuit.

We conclude by noting that our “less demanding” standard of particularized need does not apply to appellant’s request to take notes. Permitting note-taking blurs the line between the access and copy contexts, since one can imagine an appellant transcribing his transcript and, in effect, creating a copy. Thus, our requirement of a strong showing of particularized need applies equally to the note-taking context.⁷

For all of the above reasons, we find that the district court committed error in applying our precedent, which has solely involved requests for copies, to the appellant’s request for access to a transcript of his grand jury testimony.

B. Showing of Particularized Need

Because the district court did not make any factual findings, but assumed as true the contentions in support of the appellant’s request for access, we address whether appellant has made a showing of particularized need in light of the less demanding standard we articulated above.⁸

The appellant argues that his need for access is sufficiently particularized to justify access for two reasons: (1) the threats of perjury prosecution given by the prosecutors during his examination, and (2) the complexity of the subject matter of his testimony, which involved “ancient activity.” We agree.

The appellant contends that his need was particularized because he was “threatened by ... powerful authorities with life-wrecking perjury convictions and years of imprisonment.” Our own review of the grand jury transcript supports his claim. In some instances the prosecutors made pointed comments to the appellant, asking in places if he “ha[d] a hearing problem” or whether he “speak[s] the English language.”

Under our case law in the copy context, we have held that potential perjury prosecution alone does not arise to a particularized need. In Bottari, for example, we found no particularized need due to potential perjury prosecution because that potential alone made “th[e] appellant ... no different from any other witness who testifies before a grand jury, or elsewhere.” 453 F.2d at 371. Likewise in Bianchi, where the witness also had use immunity under 18 U.S.C. §§ 6002 and 6003, we found no particularized need where the witness’s “ill-defined fear” of a “ ‘slight inconsistency’ between past and present testimony [that] might subject him to perjury prosecution [wa]s unfounded.” 542 F.2d at 100.

In this context, however, it is a close call whether the strongly worded, even abusive warnings of the prosecutors alone suffice to demonstrate a particularized need under our lesser standard for access. Some circuits have permitted access based upon such conduct, although they did so on other grounds. See, e.g., Bursey v. United States, 466 F.2d 1059, 1080 (9th Cir.1972) (holding that “the concepts of fundamental fairness inherent in due process require that a grand jury witness be given some protection from the[] risks [of perjury] before he is compelled to answer repetitious questions”). However, we do not need to address the issue, because the threats of perjury prosecution, combined with the complexity of the appellant’s testimony, sufficiently establishes a particularized need. As the witness attested to, and as the grand jury transcript and exhibits bear out, the subject matter of his testimony was significantly complex, involving not only complex technical material, but also events and dates occurring nearly a decade ago. Thus, any concerns with inconsistencies in his testimony (concerns which were repeatedly inflamed by the prosecutors) were magnified by the potential traps posed by the highly technical and ancient nature of his testimony. Accordingly, the threats of perjury prosecution, combined with the complexity of the witness’s testimony, supplies the necessary particularized need to permit access.

We conclude by discussing our application of this lesser demand for “particularized need” going forward. In this case we have found such a need satisfied given the abusive warnings of the prosecutors during testimony and the complexity of the appellant’s testimony. We emphasize that, based upon our review of the record, the warnings were not only strongly worded, but were also buttressed by repetitious questions and insulting language. Moreover, the subject matter of the testimony concerned complex, nearly decade-old technical material that was integral to the examination.⁹

We are also cognizant of the effect the application of our rule will have on grand jury proceedings, since we do not want to “saddle a grand jury with minitrials and preliminary showings [that] would assuredly impede its investigation.” United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). However, the lesser standard of particularized need we apply here would not impose undue hardship on grand jury investigations. A district court in its discretion can utilize procedures, such as the expedited hearing the district court conducted in this case, to minimize any undue effect on the grand jury investigation. Moreover, although we had the advantage of reviewing the transcript in this case, nothing we say here requires the government to submit one in response to a motion for access. To the extent that the transcript is not available, a grand jury witness can testify (or make a proffer) in camera as to his or her examination to support his or her claim, with the government having an opportunity to rebut.¹⁰ Finally, to the extent that a grand jury witness games the system to establish a particularized need, a district court can take evidence of that into account. A witness cannot establish a need, let alone a particularized one, if the purported need was self-induced.¹¹

III. Conclusion

For the foregoing reasons, we reverse the district court’s finding of contempt, and, on remand, direct the district court to permit the appellant access to a transcript of his grand jury testimony consistent with this opinion.

Reversed.

1 . We note that during the course of this appeal we requested a copy of the transcript and exhibits from the appellant’s appearance for our own independent review.

2 . The dissent unfortunately misconstrues our decision by stating that "[t]he panel majority adopts an approach based on the reasoning and rationale of a recent D.C. Circuit opinion, which permits relatively unfettered access even for non-defendant witnesses.” (Dissent at 23). As the decision makes clear, we do not adopt the D.C. Circuit approach, and although we discuss the D.C. Circuit at great length, we base our decision on a review of our precedent as well as our independent assessment of the interests at stake, many of which were not addressed by the D.C. Circuit.

3 . The dissent points out that in Special Proceedings we stated the following:

Taricani may be arguing that as a witness he has an elevated right to copies of his own deposition transcript. However, in this circuit "a grand jury witness has no general right to transcripts of his testimony.” In re Bianchi, 542 F.2d 98, 100 (1st Cir.1976). Similarly, a majority of circuits hold that a non-defendant witness seeking access to his own deposition transcript must make "a strong showing of particularized need” for such disclosure.

373 F.3d at 47 (emphasis added). According to the dissent, the use of the word "access” above means that our precedent equally requires a "strong showing of particularized need” for requests for a review of a transcript. (Dissent at 24-25).

We disagree. First, the sentence in which "access" appears only describes what the "majority of circuits” have held. More importantly, it notes that such a holding is only "[s]imilar[]” to our own rule, which, described in the previous sentence, does not deal with "access” but with copies, or, to borrow the words of the Bianchi court, with "a general right to transcripts.” 542 F.2d at 100 (emphasis added).

Second, the dissent relies upon Awuah v. Coverall N. Am., Inc., 554 F.3d 7 (1st Cir.2009), for the proposition that we give effect to the language of a prior panel decision even if it is "perhaps broader than the precise controversy at issue.” (Dissent at 24). In Awuah, however, we gave effect to broader language in a prior decision because, although broader, it "constitute[d] the rationale for the decision.” 554 F.3d at 11. In contrast, the broader statement in Special Proceedings did not "constitute the rationale for the decision,” but was a description of the holdings of a “majority of circuits.” In fact, and as discussed below, had the court in Special Proceedings intended to reach access as defined here, it would have at least expressed some disapproval with the district court’s sua sponte offer of access. Instead, the court in Special Proceedings cited the option with approval. 373 F.3d at 47.

4 . The dissent only views these protections as "abundant ... for all grand jury witnesses,” and thus concludes that we "vastly overstate!] a witness’s interest in access to prior grand jury testimony.” (Dissent at 26-27). Instead, we view these protections as a recognition of the significant interest a witness has in maintaining the accuracy of his testimony, such that we do not overstate it, but simply take it into account.

5 . The D.C. Circuit, in fact, found this difference so significant that it expressly reserved the issue of whether "the possibility of witness intimidation would justify denying copies of transcripts." Id. at 989-90.

The dissent contends that our conclusion is "naive,” because "[t]he same people who would cajole a witness to obtain a copy of his testimony and reveal it would be able to use similar methods to coerce the witness into reviewing his testimony and reporting its contents.” (Dissent at 30). However, the dissent does not fully take into account the evasive measures a witness can undertake if he only obtains access. After all, a witness, even after review, could be less than forthcoming about his testimony, and a third party would never know to cajole further. If the witness obtains a copy, however, no amount of evasion can hide his testimony, printed in black and white, from a determined third party.

6 . In fact, our precedent has failed to acknowledge the fact that a grand jury witness is not under any obligation to maintain grand jury secrecy. Some courts, most notably the D.C. Circuit, have viewed this fact as cutting in favor of witness access. Other courts have not. See, e.g., Bast v. United States, 542 F.2d 893, 896 (4th Cir.1976) (requiring a showing of particularized need, but "recognizing] that Fed.R.Crim.P. 6 imposes no condition of secrecy on the witness.”).

7 . Permitting the appellant's counsel to be present during the review, which the appellant also requests, is a closer call. Thus, following the D.C. Circuit, we leave it up to the "sound discretion” of the district court on remand to determine whether appellant’s counsel can be present. See Grand Jury, 490 F.3d at 990.

8 . Because we hold that our former standard of "a strong showing of particularized need” still applies to the appellant's request to take notes, we still must review the district court's finding of no particularized need. In our view, there was no abuse of discretion. The district court, assuming the appellant's contentions as true, ultimately determined that the appellant’s circumstances, which included the prosecutors’ perjury warnings and the complexity of his testimony, were not sufficiently particularized to meet our standard. Given that we have not found a sufficiently particularized need where only an "ill-defined” potential for perjury prosecution exists, see, e.g., Bianchi, 542 F.2d at 100, we do not see how the district court abused its discretion in denying notetaking.

Moreover, the district court did not abuse its discretion in not making the transcript a part of the record, as the appellant claims. In examining whether the appellant provided a strong showing of particularized need, the district court assumed as true the appellant’s contentions in support of why his need was particularized. Thus, the appellant would have received little benefit from having the district court review the transcript.

9 . The dissent disagrees, and contends that our rule "is likely satisfied in many — if not most— grand jury investigations.” (Dissent at 27-28.) The dissent misstates the basis of our finding for a particularized need. Prosecutor’s warnings combined with testimony only ”involv[ing] complex subjects that occurred some time in the past” are not sufficient to establish a particularized need under our lower standard, as the dissent suggests. (See id. at 28). Something more is required, and we articulated above what that more was in this case.

Moreover, we disagree with the dissent’s characterization of the warnings made during the examination. The dissent quotes four warnings during the examination to show that they were innocuous, ignoring other warnings as ”infrequent[] and inconsequential ].” (Dissent at 29-31). It is the third quoted warning on which we disagree. The dissent seeks to explain that the warning is justifiably strongly worded because the appellant was being "evasive.” (Id. at 30). However, we read the exchange as supporting our view that the examination was highly technical, as the government immediately stated after giving the warning that "Okay. So stop playing games with us. This jury is composed of a group of laymen .... so talk to us like we’re regular people and stop playing word games with us." Moreover, the dissent dismisses the other warnings given during this exchange, such as "Now I'm telling you to answer the questions straightforwardly and truthfully,” followed shortly thereafter by "Okay. Can you answer the question straightforwardly?,” and still later by "Again, answer the question that’s asked of you. Answer it directly. Answer it truthfully. All right?” and, after a five minute break, "I remind you that you’re still under oath.” From here, the government's warnings took an abusive turn: "Please, again, do you have a hearing problem?" and “And you speak the English language, that’s your first language, right?”

10 . Thus, we disagree with the dissent that under our rule "a district court will abuse its discretion if it fails to review the transcript.” (Dissent at 28-29 n. 23).

11 . The dissent claims that we “too quickly dismisses the witness’s obstreperous conduct.” (Dissent at 31 n. 28). Our own review of the transcript does not suggest to us that the appellant was being obstreperous during the examination given the highly technical nature of the questions asked. Moreover, the appellant has proceeded in good faith throughout the course of these proceedings. As the district court found in staying its contempt order pending appeal, the appellant’s claims were "not frivolous” and that the appellant was not "being contumacious in the way [of an] ordinary grand jury witness, who simply refuses to testify without good reason.”