United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR
HEARING INTO POSSIBLE GOVERNMENT MISCONDUCT AND FOR
MODIFICATION OF BAIL
Richard G. Stearns UNITED STATES DISTRICT JUDGE
Barry Cadden seeks a court inquiry into whether government
prosecutors may have violated the grand jury secrecy
provisions of Fed. R. Crim. P. 6(e) by alerting local news
media to his pending arrest notwithstanding a court order
sealing the indictment in his case. Cadden’s motion is
hinged on the presence of television reporters outside his
home at the time of his arrest by federal agents at 6:00 a.m.
on December 17, 2014. Cadden surmises that "the only
conceivable way that reporters and crews, from multiple news
outlets, could have arrived at [his] Wrentham home . . . at
or about the same time as government agents" is if his
impending arrest had been leaked to the news media by the
government. Dkt. #408 at 10.
warrant an evidentiary inquiry into an accusation of a
government violation of the grand jury secrecy rule, Fed. R.
Crim. P (6)(e), as alleged here, a defendant is required to
make a prima facie showing that a grand jury matter
was disclosed and that a government agent was responsible for
the leak. As was explained by Judge Wolf in United States
v. Flemmi, 233 F.Supp.2d 113 (D. Mass. 2000):
"[i]n determining whether a party alleging a violation
of Rule 6(e) based on news media reports has established a
prima facie case, a court must consider several
factors. First, there must be a clear indication that the
media reports disclose information about ‘matters
occurring before the grand jury.’ . . . Second, the
article or articles must indicate the source of the
information revealed to be one of those proscribed by Rule
Id. at 116-117, quoting In re Grand Jury
Investigation, 610 F.2d 202, 216-217 (5th Cir. 1980).
it is possible that the media were alerted to Cadden’s
arrest by a government agent (in its brief, the government
does not venture a categorical denial),  the prima
facie case stumbles on prong one of the predicate
showing, namely, because an arrest is not "a matter
occurring before the grand jury." Quite simply, a grand
jury has no authority to issue an arrest warrant. Rather,
under Fed. R. Crim. P. 9, once an indictment is returned, the
government may request the court (typically as here, a
Magistrate Judge), to issue a warrant or a summons for the
indicted defendant. If the government requests a warrant, the
court has no choice but to issue it because the indictment
conclusively establishes probable cause. See C.
Wright & A. Leipold, Federal Practice and Procedure: Criminal
§ 151 (4th ed. 2008). But it is the court, and not the
grand jury, that causes the warrant to issue.
it is not the grand jury, but the court, that as a
discretionary matter, has the power to order an indictment
sealed pending a defendant’s arrest. Fed. R. Crim. P.
6(e)(4), provides that
[t]he magistrate judge to whom an indictment is returned may
direct that the indictment be kept secret until the defendant
is in custody or has been released pending trial. The clerk
must then seal the indictment, and no person may disclose the
indictment’s existence except as necessary to issue or
execute a warrant or summons.
indictment returned in open court is a public document unless
and until it is ordered sealed. United States v.
Anderson, 799 F.2d 1438, 1442 n.5 (11th Cir. 1986)
("[A] ‘discovery bill’ is not entitled to
the status of a public document, as is, for example, an
indictment."); Rogers v. Berger, 682 F.Supp.
302, 303 (W.D. Va. 1988) ("The grand jury returned the
indictment, "a true bill", and the indictment
became a part of the public record."); Cent. S.
Carolina Chapter, Soc. of Prof’l Journalists, Sigma
Delta Chi v. Martin, 431 F.Supp. 1182, 1190 (D.S.C.),
aff’d as modified, 556 F.2d 706 (4th Cir.
1977) ("The indictment is returned in open court and is
a public record."). Cf. United States v.
Abrahams, 493 F.Supp. 296, 306 (S.D.N.Y. 1980)
(confirming that the Assistant U.S. Attorney "supplied
no information to the press during this time which was not
then a matter of public record . . . before the indictment
was returned."); Bell v. C.I.R., 90 T.C. 878,
889-890 n.23 & n.24 (1988) ("Rule 6(f) respecting
Finding and Return of Indictment states __ ‘The
indictment shall be returned by the grand jury to a federal
magistrate IN OPEN COURT. Sec. 4567.5, IRM, states:
‘Once grand jury information has been introduced into
the public record, the information is no longer covered by
grand jury secrecy and can be used in an investigation.
Examples of public record are: trial transcripts,
INDICTMENTS, pleadings and sentencing procedures."
(emphasis in original)). Any disclosure of a sealed
indictment may violate the Magistrate Judge’s order,
but it does not constitute a violation of the grand jury
have reviewed each of the media accounts of Cadden’s
arrest that are recited in the brief, and none imply
knowledge of an indictment, only the fact of Cadden’s
arrest in a present or past tense. Moreover, none of the
accounts even intimate that knowledge of the arrest was
obtained from a government source (thus failing prong two of
the prima facie test). Once, of course, a defendant
is taken into custody, the sealing order dissolves and the
indictment resumes its public character. Indeed, it would be
anathema to a free society if the government were permitted
to arrest and confine criminal defendants without public
vein, Cadden’s secondary argument that the publicity
attendant to his arrest violated his Fourth and Sixth
Amendment rights (even assuming that the government were to
be shown responsible in some fashion for the volume level of
the reportage), was considered and rejected by this court in
a prior "perp walk" case, Brown v. Pepe,
42 F.Supp. 3d 310 (D. Mass. 2014), aff’d (1st
Circ. 14-1998) (Jun 19, 2015). Legally, I find the cases
similar enough that the conclusion in Brown - that
the public interest in a transparent functioning of the
criminal justice system will almost always outweigh a
defendant’s interest in privacy in like circumstances
involving an arrest - is equally applicable. And factually,
having examined the videotapes of the news broadcasts of
Cadden’s arrest, there is no comparison between the
predawn, fleeting shots of a police car speeding away from
Cadden’s home and his hasty post-arrest walk from the
police station, and the forced and prolonged exhibition of
Brown to a gaggle of news media.
foregoing reasons, the motion for an evidentiary hearing is
DENIED. The motion for an order directing the
government to "discontinue issuing inflammatory press
releases" is also DENIED, subject to the
court’s reminder (if one is necessary) to all ...