order under the second sentence of the rule. H.R. Rep. No. 95-195, supra, at 15 (additional views of Rep. Wiggins). No reference was made to any provision either in the old rule or in the alternative proposal that would embrace disclosure upon court order to non-government personnel assisting the grand jury. This alternative proposal was not approved by the

Senate.

The House Committee could not agree on appropriate language for the new rule. 123 Cong. Rec. H3224 (daily ed. April 19, 1977) (remarks of Rep. Wiggins). The Committee later deferred to an amendment drafted by the Senate Subcommittee on Criminal Laws and Procedures working in liaison with the House Subcommittee on Criminal Justice. Both houses in Congress ultimately enacted this latter draft, the current Rule 6(e), into law. 123 Cong.Rec. H3223, -24 (daily ed. April 19, 1977) (remarks of Reps. Mann and Wiggins); 123 Cong. Rec. H7866 (daily ed. July 27, 1977) (remarks of Rep. Mann).

The Senate modification to H.R. 5864 continued

without change the two additional exceptions to grand jury secrecy that were embodied in the old Rule 6(e), including disclosure upon court direction "preliminarily to or in connection with a judicial proceeding." As stated by Representative Mann:

"[T]here is no intention to change the cur-
rent practice with regard to those parts
of rule 6(e) not directly involved in the
Supreme Court's proposed amendment. Thus,
[H.R. 5864, as modified] is not intended
to change any current practice with regard
to these two exceptions.

"

123 Cong.Rec. H7867 (daily ed. July 27, 1977). See also Hearings on Proposed Amendments, supra, at 55, 84, 106 (statements of Prof. LaFave, Reporter, Advisory Committee on. Criminal Rules, and Richard Thornburgh, Deputy Attorney General). Cf. Federal Rules of Criminal Procedure, S. Rep.

No. 95-354, 95th Cong. 1st Sess. 8, reprinted in [1977] U.S. Code Cong. & Ad. News, 527, 532 [hereinafter S. Rep. No. 95354) ("Committee believes and intends that the basis for a court's refusal to issue an order under paragraph (C) to enable the government to disclose grand jury information in a non-criminal proceeding should be no more restrictive than is the case today under prevailing court decisions").

The government here has understandably refrained from contending that House might be characterized as "government personnel" within the ambit of subsection 2(A) and that disclosure to him might therefore be made without court order whenever government attorneys deemed his assistance necessary. Discussion in the legislative history clearly indicates that "government personnel" embraces only federal agency employees. It is repeatedly referred to as including "Government agency personnel," or "representatives of government agencies actively assisting United States Attorneys in a grand jury investigation." H.R. Rep. No. 95-195, supra, at 4; S. Rep. 'No. 95-354, supra, at 6-7. In his explanation to the House Subcommittee on Criminal Justice, Professor LaFave stated that the amendment:

"is intended to make it clear that Rule
6(e) does not forbid United States attor-
neys to make use of other government per-
sonnel, such as employees of administra-
tive agencies and government departments,
when such outside expertise is necessary.
(Emphasis added.)

Hearings on Proposed Amendments, supra, at 105. Every example
cited in the deliberations on the amended rule embraced solely
officials of United States governmental agencies, such as the
F.B.I, I.R.S., S.E.C., the Postal Inspection Service, the
Departments of Labor and the Treasury, or the Secret Service.
H.R. Rep. No. 95-195, supra, at 4; Federal Grand Jury, ·
Hearings on H.J. Res. 46, H.R. 1277 and related bills before
the Subcomm. on Immigration, Citizenship & International Law
of the House Comm. on the Judiciary, 94th Cong. 2d Sess. 56
(1976) (hereinafter Federal Grand Jury, Hearings on Related
Bills) (statement of Edward Levi, Attorney General of the

United States); Hearings on Proposed Amendments, supra, at 29, 105, 204, 229 (statements of Judge Becker, U.S. District Court for Eastern District of Pennsylvania; Prof. Wayne LaFave, Reporter, Advisory Committee on Criminal Rules, Professors Leon Friedman and Melvin Lewis); see also Robert Hawthorne, Inc. v. Dir. of Internal Revenue, 406 F.Supp. 1098, 1126 (E.D. Pa. 1976) (E. Becker, J.).

As noted above, the wording of the amended section now found in 2(A) was originally proposed by the Supreme Court to conform to the recent trend in case law. This trend did not include agents from without the federal government. See, e.g., Special February 1971 Grand Jury v. Conlisk, 490 F.2d 894, 896 (7th Cir. 1973). In his explanation of the breadth of "government personnel," Representative Wiggins of the House Subcommittee on Criminal Justice cited cases that typified this trend. All dealt with federal agency assistance to the United States Attorney. 123 Cong. Rec. H7868

(daily ed. July 27, 1977), citing United States v. Evans,

526 F.2d 701, 707 (5th Cir. 1976); United States v. Hoffa, 349 F.2d 20, 43 (6th Cir. 1965), aff'd., 385 U.S. 293 (1966); United States v. U.S. District Court, 238 F.2d 713, 721 (4th Cir. 1956) (disclosure to superiors in the Department of Justice); United States v. Anzelmo, 319 F.Supp. 1106, 1116 (E.D. La. 1970); United States v. Culver, 224 F. Supp. 419, 432 (D.Md. 1963).

-

Even critics of the amendment, who disapproved the expanded parameters of permissible disclosure, recognized that potential disclosures contemplated by the new language reached only governmental employees from members of Congress to employees of 0.E.0. or the military services. Hearings on Proposed Amendments, supra, at 147, 229 (statements of Bernard Nussbaum, Esq. and Prof. Melvin Lewis). Only one critic of the amendments to the rule voiced her concern that it was unclear whether the rule, as proposed by the

Supreme Court, would "open the door to permitting private contractors to be retained by the Government attorney for purposes of analyzing the [grand jury] evidence or data." Hearings on Proposed Amendments, supra, at 181 (statement of Phyllis Bamberger, New York Legal Aid Society).

The proposed use of Rule 6(e) to authorize disclosures like that challenged in the instant case was not overlooked by the Advisory Committee or the House Committee responsible for the new rule. The possibility of permitting non-government personnel to assist the government attorney in work before the grand jury was expressly investigated and considered by the Advisory Committee that drafted that (2)(A) language ultimately adopted by the Senate. The amended (2) (A) language was specifically designed not to embrace that possibility. Professor LaFave, Reporter for the Advisory Committee, explained his understanding to the House Subcommittee on Criminal Justice during questioning by Representative Mann:

Is it your intention not to pèr-
mit the prosecutor to call in an
astrologer or astronomer, for
example?

Prof.LaFave: Yes, that is correct.

Apparently representatives of the
Justice Department whom we talked
to about this particular problem
did not seem to think that was a
problem, in other words, that there
was an occasion when they would need
an expert and couldn't find the
astrologer some place in the Fed-
eral Government.

Apparently that is not the problem."

Hearings on Proposed Amendments, supra, at 92. (Emphasis

added.)

Had the Advisory Committee or the Committee on

Rules and Practice intended to authorize disclosure to persons such as House, they could have easily deleted the word "Government" from "Government personnel." Additionally, Congress gave the proposed amendments considerable attention because of its "great concern" with the alteration of a rule that "touch[ed] upon the basic function of the grand jury system." 123 Cong. Rec. H3223 (daily ed. April 19, 1977); 123 Cong. Rec. H7868 (daily ed. July 27, 1977) (remarks of Rep. Mann). Apprised of the contemplated breadth of 2(A), Congress could have altered it with little effort. This Court must conclude that Congress intended that the scope of the 2(A) secrecy exception go no further than to federal personnel who assist in the preparation of the grand jury investigation. Non-governmental personnel may not be given access to grand jury material under this subsection, regardless how essential the government attorneys might consider that assistance to be. The only other possible basis for the disclosure

-

to House in the instant case is that found in subsection (2) (C) disclosure by court order "preliminarily to or in connection with a judicial proceeding." The government impliedly argues that the proceedings of the grand jury whose materials are sought for disclosure constitute a "judicial proceeding" within the ambit of the rule. Thus, without regard to the limits of subsection (2) (A), this Court might authorize disclosures to investigative agents assisting the government attorneys because that authorization would be in connection with a "judicial proceeding." At issue in this case is whether any limitation inheres in (2) (C) on the disclosures that might be ordered thereunder.

The construction of (2) (C) advanced here by Special Strike Force attorneys represents a novel use of the "judicial proceeding" exception to grand jury secrecy. The new subsection (2)(C), originally the second sentence of the old Rule 6(e), has typically been used only in cases where