Full opinion text
OPINION AND ORDER EDWARD R. BECKER, District Judge. I. Preliminary Statement This case concerns allegations of governmental bad faith in connection with a federal grand jury investigation, alleged breach of the secrecy of the grand jury, and allegedly unlawful retention by the grand jury of certain records of the plaintiff. The investigation in question relates to possible violations of federal statutes in connection with the award of contracts by the City of Philadelphia and related governmental authorities. Plaintiff, a demolition contractor, originally came under scrutiny because it was one of many firms which had done business with those entities. It has now become a target of the investigation, both as to its contracting activities and as to possible federal income tax violations. In the proceedings before us plaintiff seeks injunctive relief against the continuation of the investigation, at least as to plaintiff. Alternatively, plaintiff seeks to restrain the alleged breach of the secrecy of the grand jury involved in the disclosure of certain subpoenaed material to the Internal Revenue Service (I.R.S.), pursuant to order of this court, and to recover a large number of its corporate records which have been the subject of omnibus subpoenas and which now repose in the offices of the I.R.S., though under the aegis of the United States Attorney. The allegations of plaintiff’s complaint are manifold. However, distilled to their essence they raise three significant points: 1) that the manner in which the Justice Department has conducted the investigation constitutes an abuse of the grand jury process; 2) that the secrecy of the grand jury, protected by Rule 6(e) of the Federal Rules of Criminal Procedure, has been breached by improper issuance or violation of judicial orders entered pursuant to that rule, granting access to plaintiff’s subpoenaed records to I.R.S. agents assisting the U.S. Attorney in the investigation; and 3) that records belonging to the plaintiff have been improperly retained by^ the government. The government emphatically denies that it has acted in bad faith, abused the grand jury process, violated Rule 6(e) orders, or improperly refused to return plaintiff’s records. When the parties first came before us the plaintiff sought far more limited relief: a return of its records and an order restraining government agents from interviewing those with whom plaintiff had business dealings. When it appeared, after several conferences, that the matter could not be adjusted amicably, we stated that we would dispose of it on affidavits. In due course, the complaint was amended to allege much broader grounds for relief. However, even after the amendnients, we believed that the matter could be disposed of on affidavits; hence, we requested from the government and received a considerable number of additional affidavits covering every aspect of plaintiff’s allegations. When it appeared that there were still certain disputed issues of fact, we augmented the record by taking testimony at a final hearing. As will be seen, we feel discomfiture over the prolongation of this grand jury investigation, and much dissatisfaction with the government’s procedures for keeping records in connection with grand jury investigations, and have some suggestions to make in those regards. However, because we find no actionable abuse of the grand jury process and no ultimate impropriety in retention of certain records under the circumstances we deny relief on those claims. Neither do we find that the government has breached the secrecy of the grand jury or violated a Federal Criminal Rule 6(e) order. However, because we are concerned as to the manner in which the Rule 6(e) orders were implemented in this case and apparently in general, we also offer some suggestions in that area. We feel further judicial explication on this point by us is not inappropriate in view of the fact that the sole authority cited by the parties as the frame of reference for determining compliance with a Rule 6(e) order is our own opinion in the case of In re Grand Jury Investigation William H. Pflaumer & Sons, Inc., 53 F.R.D. 464 (E.D.Pa.1971) (hereinafter Pflaumer). Before discussion of these substantive issues, we must first set forth our findings of fact, which are based upon the affidavits submitted by the parties and upon the testimony offered at hearing. Because of the broad based attack made by the plaintiffs on the manner in which grand jury proceedings are conducted, we first make findings on that general subject. We then set forth our findings on the specifics of the Hawthorne investigation, implementation of the 6(e) orders and the retention of records, after which we discuss the applicable law. II. Findings of Fact A. Investigative Grand Jury Procedures in General; Procedures Followed in Connection with Federal Criminal Rule 6(e) Orders An affidavit filed by the United States Attorney for the Eastern District of Pennsylvania sets forth in great detail the procedures followed in this District in the conduct of a grand jury investigation. The affidavit also recites the procedures followed in connection with orders issued under Fed.R.Crim.P. 6(e). The affidavit is uncontroverted, and our findings based thereon now follow. Grand juries are summoned by the Court. Thereafter, they meet on a weekly basis on the same day of each week. The scheduling of matters coming before the different grand juries (there are presently four sitting grand juries) is centrally coordinated by two Assistant United States Attorneys working in conjunction with the Clerk’s office. Matters are selected for grand jury attention by varying methods. Suggestions for grand jury investigation may originate from the United States Attorney’s office, from the grand jury, from a particular investigating agency, or from the public. Ultimately, the decision on what comes before a grand jury is made by the United States Attorney’s office or by the grand jury, with the caveat that the grand jury always has the ul-. tímate right to refuse to hear anything brought before it by the United States Attorney’s office acting on its own. Every matter that is determined appropriate for grand jury investigation, if not already being considered by an investigating agency, is referred to the federal investigating agency statutorily designated with the enforcement of the suspected offenses. Thereafter, the grand jury investigation proceeds in conjunction with the efforts of that particular agency. The investigating agency performs such necessary functions as exploring leads and allegations and interviewing witnesses outside the grand jury, gathering and reviewing documentary evidence, and writing investigatory reports. A complete field investigation by the appropriate federal agency is usually required so that the grand jury’s investigation may be as thorough and expeditious as possible. Grand jury subpoenas requiring the appearance of witnesses or the production of records are prepared by the United States Attorney’s office. The determination of who or what will be subpoenaed is made either by the United States Attorney’s office or the grand jury, or through a combination of the two in discussion. Subpoenas, however, are not the exclusive means for the production of evidence, documents or testimony in connection with a grand jury investigation. Frequently, relevant parties and their counsel voluntarily produce evidence or documents without the necessity of subpoena. The United States Attorney’s office and the grand jury have accepted compliance with subpoenae duces tecum for the production of records in a variety of ways. Normally, the party furnishing records produces the records at the grand jury room and that party is requested to testify concerning delivery of the records specified in the subpoena but not furnished. Dependent upon the circumstances of the particular matter, however, the nature of the records subpoenaed, the volume of such records and the necessities and operations of the subpoenaed party, the United States Attorney’s office may agree with subpoenaed parties and their counsel that compliance with the subpoena be satisfied in some other manner. Often, where documents are voluminous, the United States Attorney’s office agrees to accept compliance with the subpoena by the furnishing of the records in accordance with a mutually agreeable schedule. Voluminous records are rarely brought inside the grand jury room; rather, they are delivered to the vicinity of the grand jury room or are supplied as set forth in footnote 9. It appears that documents initially received pursuant to subpoenae duces tecum are not generally of substantial probative value per se. Such documents and records must be received, analyzed, compared, studied and understood before they meet the investigative or evidentiary demand for which they were subpoenaed and before meaningful presentation of the contents of such records can be made to the grand jury. Because of the need to accomplish the maximum effective use of the grand jury’s time, the United States Attorney’s office does not review and analyze subpoenaed records in the grand jury room or in the presence of the grand jury. For the most part, analysis and examination of subpoenaed records is performed neither by the Assistant United States Attorney assigned to the investigation nor by members of the United States Attorney’s office. Agents of the participating investigating agency perform this function because of their resources, experience and expertise. This function is delegated by authority of the first sentence of Fed.R.Crim.P. 6(e) which authorizes disclosure of matters occurring before the grand jury to the attorneys for the government for use in the performance of their duties (see extended discussion, infra) This review of subpoenaed material by the investigating agency is in accordance with the other functions performed by the agency in conjunction with the grand jury investigation. The findings of the investigating agency are submitted to the United States Attorney’s office which then schedules matters to appear before the grand jury. Documents obtained by the grand jury and provided to an investigative agency are maintained by the agency in liaison with the United States Attorney’s office. Each matter appropriate for grand jury investigation has a particular Assistant United States Attorney assigned to it, who makes the initial decisions regarding the investigation, the summoning of witnesses and the securing of records through grand jury subpoena. The agency furnished with the subpoenaed records reports to the particular Assistant United States Attorney and, where grand jury matters or materials are concerned, takes direction from that Assistant. Thus, the Assistant United States Attorney assigned to each matter controls the delivery, maintenance, use and return of all subpoenaed materials. In due course the grand jury considers the evidence brought before it and determines whether to return an indictment. In this respect too (though this is not the subject of an affidavit), the jury is obviously influenced by the United States Attorney. B. The Hawthorne Investigation 1. History of the Investigation; Did the Government Act in Bad Faith? In September, 1971, the Organized Crime and Racketeering Section of the United States Department of Justice, Philadelphia Strike Force, commenced an investigation before a federal grand jury into possible federal criminal violations in connection with the award of municipal contracts in the City of Philadelphia. On October 4, 1971, we entered, ex parte, an Order pursuant to Federal Rule of Criminal Procedure 6(e), captioned In re Grand Jury Investigation Purchases and Contracts — City of Philadelphia, Miscellaneous Number 71-295, which authorized the Justice Department to utilize the assistance of I.R.S. agents in connection with the investigation and which gave the I.R.S. agents access to books, records, documents, and transcripts before the grand jury. This order provided that the I.R.S. agents were not prohibited from also utilizing the material in the course of their official duties provided that the subpoenaed material remained at all times “under the aegis of attorneys for the government.” On August '15, 1973, in connection with the same investigation, the Strike Force authorized the issuance of a grand jury subpoena duces tecum calling for the production of various corporate records of plaintiff Robert Hawthorne, Inc., for the years 1969, 1970, 1971, and 1972. There records were not subpoenaed to the original grand jury but rather to a grand jury which had been empanelled on July 11, 1973, by our colleague, Judge Van Artsdalen. Plaintiff contends that prior to the time of the subpoena for plaintiff’s records, the I.R.S. was conducting its own official criminal investigation of plaintiff and that I.R.S. had requested and was given access to material obtained by the grand jury for assistance in its own investigation. There is no credible evidence to support this contention, and we find to the contrary; i. e., that I.R.S. was not conducting and did not conduct its own investigation, separate from the grand jury investigation. In directions accompanying the August 15, 1973 subpoena, the plaintiff was instructed to deliver the records to the I.R.S. office, to prepare a receipt for all items being delivered, and to have a custodian of the records appear before the grand jury at the time and place specified in the subpoena. At the time, the government was acting under our 6(e) order of October 24, 1971. On August 29, 1973, in response to the grand jury subpoena dated August 15, 1973, which had been narrowed in scope by agreement of plaintiff’s counsel and the Strike Force attorney to specify only plaintiff’s 1972 corporate records, plaintiff produced a portion of the 1972 records and failed to produce others. The financial records missing were purchase invoices, bad debt support, petty cash invoices, and accounts receivable and accounts payable ledger cards. All records produced by the plaintiff were furnished to those employees of the I.R.S. designated to assist the grand jury and the Philadelphia Strike Force in the investigative project. The documents produced in response to the subpoena were reached for consideration on September 19, 1973, by Internal Revenue Agent Gary Robin. The records were extremely voluminous, consisting of approximately 17,000 documents. In September and October 1973, Agent Robin arranged the corporate checks, inspected them and reviewed the other financial records furnished, with a view to identifying evidence of or leads bearing upon possible criminal violations. Due to the absence of subpoenaed records, Agent Robin could not complete the investigation at that time. Specifically, he was unable to verify the propriety of petty cash expenditures; he was unable to substantiate bad debt claims; he was unable readily to trace and substantiate the source of expenditures; and he was unable to substantiate the propriety of expenditures. In order to obtain records not furnished pursuant to the subpoena of August 15, 1973, Agent Robin arranged for the Strike Force Attorney assigned to this matter, Thomas A. Bergstrom, to contact plaintiff’s counsel, Wilbur Green-berg, Esquire. Agent Robin also contacted Mr. Greenberg on October 3, 9, 15, and 19, 1973. However, the missing documents were still not produced. On November 20, 1973, in response to an ex parte petition of the government, our colleague Judge A. Leon Higginbotham, Jr. entered an order pursuant to Rule 6(e) authorizing the disclosure to agents and employees of the Internal Revenue Service of matters occurring before a grand jury empanelled October 25, 1973, by our colleague Judge John B. Hannum to which the investigation had been turned over. Judge Higginbotham’s order contained the same terms as our October 4, 1971 order and, in effect, superseded it. On February 6, 1974, Special Agent William Pyfer, of the I.R.S. Intelligence Division, was assigned to work on the investigation, and he assumed the examination of plaintiff’s records from Revenue Agent Robin. Agent Pyfer thereupon undertook an extensive examination of plaintiff’s records. Because of the absence of some subpoenaed records, complete investigation and verification were not possible in the areas of bad debt claims, petty cash expenditures, billing expenditures, accounts payable and accounts receivable. In an effort to continue the review in these foregoing areas despite the absence of the records, Agent Pyfer initiated third party contacts. Companies and individuals were contacted and interviewed to verify certain expenditures, to confirm the existence of persons named on the payrolls and to corroborate bad debt claims. All of the above verification and audit techniques were performed from February, 1974, through May, 1974. In April, 1974, the investigation into possible criminal violations with respect to the award of municipal contracts in the City of Philadelphia (which had been known as the “Philadelphia Project”) was taken over from the Strike Force by the United States Attorney’s office for the Eastern District of Pennsylvania. Since then the grand jury investigation has been conducted by the staff of that office. On May 1, 1974, First Assistant United States Attorney J. Clayton Undercofler, III, authorized the issuance of a grand jury subpoena calling for the production of plaintiff’s records for 1971 and 1972 and subsidiary cash receipt books for 1970, 1971 and 1972. On May 30, 1974, plaintiff produced 1971 records and a copy of its 1970 Federal Employers Tax Return. Plaintiff did not produce the 1971 and 1972 purchase invoices, petty cash invoices, bad debt support, accounts payable and receivable ledger cards and the 1970 subsidiary cash receipts book. The records received on May 30, 1974, were reached for consideration by Special Agent Pyfer on May 31, 1974. Special Agent Pyfer also utilized the resources of other I.R.S. personnel in the furtherance of the investigation. Special Agent Pyfer and others reviewed the material, performing various verification and audit techniques. In conjunction with analysis of records, the number of third party contacts and interviews was increased after May 31, 1974. Banks, companies and individuals were contacted in an effort to verify the material furnished and to establish information not furnished by the missing records. Third party contacts of this nature continued through December, 1974. On May 30, 1974, following a preliminary review of the records produced, Special Agent Pyfer contacted June Hyduk, Secretary of plaintiff, in an attempt to obtain various records specified in the subpoena of May 1, 1974, that had not been produced. On June 4, 1974, in further response to the subpoena of May 1, 1974, plaintiff produced certain additional records, but omitted others. The additional records received on June 4, 1974, were reached for consideration by Special Agent Pyfer on June 5, 1974. On June 6, 1974, we entered another Rule 6(e) order in the same terms as those entered previously. On July 31, 1974, Assistant United States Attorney John F. Penrose authorized the issuance of a grand jury subpoena duces tecum calling for the production on August 15, 1974 of still more records, but these were not produced. Then, on August 26, 1974, Mr. Penrose authorized the issuance of a grand jury subpoena duces tecum calling for the production of certain of the plaintiff’s corporate records for the years 1970 through 1973 inclusive. On September 5, 1974, following service of that grand jury subpoena, all records were produced including some of those previously omitted and including those called for in the July 31, 1974 subpoena. The records received on September 5, 1974, were reached for consideration by Special Agent Pyfer on September 14, 1974. Again, all the records were examined, and field investigation via third party contacts in connection with the review of the records was continued. The examination of plaintiff’s records consumed approximately three months from September 5 to December 13, 1974. Prior to September 5, 1974, the absence of critical subpoenaed records had prevented a prompt and thorough criminal investigatory review. The failure to produce any billing invoices until that date made it impossible to examine the supporting documentation for the vast majority of all expenditures. Further, the absence of these records prevented their presentation to any third parties for verification. On October 18, 1974, and on October 22, 1974, Special Agent Pyfer mistakenly issued Internal Revenue Service summonses to certain third parties calling for the production of records at the I.R.S. offices. Prior to issuance of these summonses Agent Pyfer did not consult with his I.R.S. superiors or the United States Attorney. Special Agent Pyfer issued the summonses, upon the misconception that they were proper, after certain third parties contacted for information requested an official document prior to the release of information. Upon the discovery by Special Agent Griggs, the investigative project leader, and by the United States Attorney’s office of the issuance of the summonses, immediate and thorough corrective action was taken. On December 13, 1974, the grand jury returned to plaintiff either originals or copies of all records the plaintiff had produced, but numerous original records were retained in furtherance of the investigation (see discussion infra), and these have continued to receive consideration by I.R.S. agents. We also find that: (1) the records of plaintiff during their original and continuing consideration have been examined, reviewed and analyzed solely for criminal investigatory purposes, and not for any civil tax purpose for which the grand jury a subterfuge; (2) records of plaintiff obtained pursuant to grand jury subpoena have been disclosed to no agency other than the I.R.S.; (3) the I.R.S. has made no civil tax use of any records or information supplied pursuant to the grand jury process; and (4) no civil tax assessments or collections have been made against plaintiff or its officers as a result of the records produced pursuant to the grand jury subpoenas. . With reference to plaintiff’s documents, there have been two submissions to the grand jury empanelled October 25, 1973: (a) The first submission occurred on September 5, 1974, and consisted of the testimony of plaintiff’s corporate secretary, June Hyduk. Mrs. Hyduk appeared in response to the subpoenas of July 31, 1974, and August 26, 1974. Prior to her appearance, Mrs. Hyduk telephoned the United States Attorney’s office and stated that she and another woman had come to the grand jury with a pick-up truck containing approximately twenty boxes of records. Mrs. Hyduk requested help unloading the truck. The Internal Revenue Service was contacted by Assistant United States Attorney Richard R. Galli, and arrangements were made for delivery of the documents to Internal Revenue Service officers. Mrs. Hyduk then appeared before the grand jury and testified. (b) The second submission occurred on November 21, 1974, and consisted of presenting to the grand jury five checks of Robert Hawthorne, Inc., drawn on a certain account at Philadelphia National Bank. At the time these checks were presented, the grand jury also heard third party testimony concerning plaintiff and others. On February 6,1975, a new grand jury was empanelled by our colleague Judge James H. Gorbey, and it assumed the investigation of Purchases and Contracts —City of Philadelphia. On February 6, 1975, Special Agent Pyfer appeared before it and testified with reference to the general investigation as it pertains to plaintiff and others related to plaintiff. The investigation is ongoing. Having recounted the history of the investigation, we turn to plaintiff’s allegations that the grand jury investigation is without justification and constitutes no more than an illegal “fishing expedition.” In response to plaintiff’s request, we required the government to make a Schofield showing, by way of in camera affidavit, that the investigation had turned up sufficient evidence of criminal activity by the plaintiff to justify its continuation. Two in camera affidavits have been filed (and sealed), one by I.R. S. Special Agent William J. Pyfer and the other by First Assistant United States Attorney J. Clayton Undercofler. These affidavits contain far more than the minimal showing required by Schofield and in our judgment justify the continuance of the investigation. (They also add to our finding made independent of the in camera affidavits that the government has not acted in bad faith.) Several other allegations of the plaintiff require findings. First, notwithstanding plaintiff’s contentions to the contrary, we find that no attorney of the Department of Justice ever informed an attorney representing plaintiff that plaintiff was not a subject of investigation by the grand jury.' Neither do we find that plaintiff delivered materials pursuant to the subpoena of August 15, 1971, in reliance upon any such representations by an attorney employed by the Department of Justice. Although, as noted above, I.R.S. agents made certain third party contacts in aid of the investigation, we find no evidence that the agents harassed persons or parties dealing with the plaintiff. We likewise find without merit plaintiff’s contentions that Assistant United States Attorney John Penrose acted improperly in his discussions with representatives of the plaintiff in the presence of their attorney. The foregoing findings relate primarily to matters of subsidiary fact. Findings of ultimate fact of course must be based thereon, though they are inevitably affected by our discussion (which follows) of the applicable principles of law. Subject to that discussion, and as further amplified and explained by it, it is appropriate to note at this juncture our ultimate finding that, notwithstanding the fact that the investigation might have proceeded more expiditiously, the government did not act in bad faith or abuse the grand jury process. 2. Compliance With the Rule 6(e) Orders Three orders under Fed.R.Crim.P. 6(e) are relevant to this proceeding. We executed the first on October 4,1971; Judge Higginbotham entered the second on November 20, 1973; and we entered the third on June 6, 1974. All three orders contained the same terms, providing that the Justice Department was authorized to utilize the assistance of I.R.S. agents in the grand jury investigation and to give the agents access to books, records, documents, and transcripts of testimony before the grand jury in the investigation. The orders further provide that the agents were not prohibited from utilizing such material in the course of their official duties, for either criminal or civil purposes, provided that the subpoenaed material shall remain at all times under the aegis of attorneys for the government. In findings of fact already made we have set forth in detail when and how various records were produced by plaintiff, and delivered to I.R.S. agents acting pursuant to the 6(e) orders, and when the records were reached for consideration by the agents. We add the following. As we have noted above, the United States Attorney’s office does not employ investigators, accountants, auditors or persons trained in the examination and analysis of banking, corporate, business and financial records, and the attorneys on the staff of the United States Attorney’s office do not generally have the time, training or accounting expertise necessary to conduct detailed and technical document examinations for investigatory purposes. The foregoing findings respecting the nature of the documents subpoenaed and the complexity of the analysis required support this conclusion. By way of further example we note that over 12,000 non-payroll checks were inspected and traced through the corporate records, and approximately 5,000 petty cash vouchers were similarly inspected and traced. Only a trained accountant could perform such labors. In connection with the investigation of plaintiff, the assigned I.R.S. agents periodically met with staff members of the United States Attorney’s office, informed them of developments in the investigation, and received direction, advice and counsel in the pursuit of the investigation. The I.R.S. agents assigned to the investigation of the plaintiff were instructed about and were aware of the secrecy requirements attendant to grand jury proceedings, although no oath of secrecy was administered to them. Notwithstanding plaintiff’s allegations, there is no evidence that the I.R.S. employees violated the secrecy requirement pertaining to grand jury matters; records of plaintiff obtained pursuant to grand jury subpoena have been disclosed to no agency other than the I.R.S. And, as we have already found, I.R.S. has made no civil tax use of any records or information supplied pursuant to the grand jury. It is true, as plaintiff contends: 1) that the records of plaintiff, after subpoena to the .grand jury, were retained in the offices of I.R.S.; 2) that the Assistant United States Attorney in charge of the investigation did not directly supervise the subsidiary I.R.S. employees (as opposed to the supervisors or ease agents with whom he worked); and 3) that he did not know the identity of all I.R.S. employees who had access to grand jury material. It is also true that at one point, following I.R.S. directions, special agent Pyfer (erroneously in our view) refused to consult with plaintiff’s counsel who was representing him in connection with the grand jury proceedings before us, because counsel had filed no power of attorney with I.R.S. Although we will comment below as to ways in which 6(e) procedure can (and should) be improved, these facts highlighted by plaintiff do not inveigh against our ultimate finding that the terms of the various 6(e) orders were complied with and that the subpoenaed material remained under the aegis of attorneys for the government. 3. Retention of Records The findings of fact set forth earlier demonstrate that a large number and variety of plaintiff’s records for the years 1970-73 have been subpoenaed in connection with the grand jury investigation. We have no count on the precise number of records subpoenaed, although plainly it runs into the tens of thousands. Plaintiff made no objection to the subpoenas when originally served and in due course delivered the records without objection. At the time of institution of the present proceedings, however, plaintiff objected to the retention of records. Indeed, our initial personal involvement in this case was at a conference at which the question of return of records was discussed. As the result of that conference, on December 13, 1971, the bulk of plaintiff’s records were ultimately returned. However, a significant number of checks and invoices have not been returned. Because the investigation has been proceeding for so long, we urged the government, at various conferences, to complete its examinations of the records as quickly as possible. The government of course pointed out that the vast number of the documents and the complexity of the accounting analysis (described above) explained the delay. We nonetheless required the government to file an in camera affidavit explaining the necessity for the retention of original documents (as opposed to our suggestion that it return all originals and retain xerox copies). The in camera affidavit, which is filed of record, essentially states that the grand jury needs to retain original documents in order to perform typewriter comparison analysis, determination of comparative ages of actual type print between original and carbon copies, handwriting analysis, and similar scientific investigatory tests, and to prevent the destruction of what may be needed as evidence at a triál. In Part III.D. below, we discuss the legal adequacy of these asserted grounds for retention of original documents. III. Discussion A. Introduction: The Powers of an Investigating Grand Jury; The Scope of Our Review It is settled that the investigative powers of a grand jury are very broad. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919); In re: Grand Jury Proceedings (United States Steel—Clairton Works), 525 F.2d 151 (3d Cir., 1975), at 156-57. See generally L. Clark, The Grand Jury: The Use and Abuse of Political Power (1975); Orfield, The Federal Grand Jury, 22 F.R.D. 343 (1959) (history of Fed.R.Crim.P. 6); Kaufman, The Grand Jury—Its Role and Its Powers, 17 F.R.D. 331 (1955); Note, The Grand Jury: Power, Procedures and Problems, 9 Colum.J.L. & Soc.Prog. 681 (1973). Moreover, a presumption of regularity attaches to grand jury proceedings. In re Grand Jury Proceedings, 486 F.2d 85, 92 (3d Cir. 1973) (hereinafter Schofield I). Schofield I and Schofield II, 507 F.2d 963 (3d Cir. 1975), attest to the breadth of a grand jury’s investigative power. Schofield I required “some preliminary showing by affidavit that [subpoenaed matter] is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose.” 486 F.2d at 93. In Schofield II the court held that an affidavit supplying but “scant” information met with the Schofield I test, 507 F.2d at 967, and required the government to make only a minimal showing of the existence of a proper purpose for a grand jury subpoena before triggering the enforcement (contempt) machinery of the judicial branch. The tripartite Schofield I test does, of course, place certain limitations upon the scope of the grand jury process. As such it is one of a long line of cases establishing the proposition that federal courts have jurisdiction to quash unreasonable and oppressive federal grand jury subpoenas. See, e. g., United States v. Calandra, 414 U.S. 338, 346 n. 4, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Branzburg v. Hayes, 408 U.S. 665, 708, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Hale v. Henkel, 201 U.S. 43, 76-77, 26 S.Ct. 370, 50 L.Ed. 652 (1906); Schwimmer v. United States, 232 F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1956); In re Grand Jury Subpoenas Duces Tecum, Addressed to Certain Executive Officers of M. G. Allen & Assoc., Inc., 391 F.Supp. 991 (D. R.I.1975). See also Fed.R.Crim.P. 17(c); cf. 28 U.S.C. § 1826(a) (enforcement). While the relief to be granted may take various forms, it is plain that the District Court’s supervisory power over the grand jury is not limited to granting relief from unreasonable and oppressive grand jury process. Rather, it extends, as Schofield I & II indicate, to granting relief from any type of grand jury abuse. However, as Judge Van Dusen noted in United States v. Johns-Manville Corp., 213 F.Supp. 65, 72 (E.D.Pa.1962), after confirming the foregoing principle: [I] t has been consistently stated that there should be no curtailment of the inquisitorial power of the grand jury except in the clearest case of abuse, and mere inconvenience not amounting to harassment does not justify judicial interference with the functions of the grand jury. We accept Judge Van Dusen’s formulation as an accurate synthesis of the law and frame the scope of our inquiry accordingly. B. Has the Government Abused the Grand Jury Process in Connection With the Hawthorne Investigation? The plaintiff has asserted a number of instances of alleged abuse of the grand jury process (see n.2, supra) in support of its claim that we should exercise our equitable power to halt this investigation. Our findings of fact negate these allegations of bad faith and abuse. However, those findings lack completeness and perspective without the legal discussion which follows. We first address plaintiff’s objection to the subpoena of its records by several successive grand juries. That fact in and of itself does not require relief, for it is well settled that a successive grand jury has the power and authority to consider matters already considered by or submitted to a prior grand jury. United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333 (1920). As the court in United States v. Schack, 165 F.Supp. 371, 375 (S.D.N.Y.1958), stated: A subsequent grand jury has the undoubted power to inquire into and to indict upon a charge which has been previously considered by another grand jury and which has failed to return an indictment. Even closer to the facts of the present case is United States v. Culver, 224 F.Supp. 419 (D.Md.1963). There, corporate records were produced by a corporate officer pursuant to á subpoena of the June, 1962 Term Grand Jury in the District of Maryland. The officer testified as to the identity of the records being produced, and thereafter the Assistant United States Attorney turned the records over to the postal inspector assigned to the mail fraud investigation. The examination of the subpoenaed records had not been completed prior to the expiration of the June, 1962 Grand Jury and the postal inspector did not testify or report to this grand jury concerning these records. Thereafter, the matter was presented to a successor grand jury, which returned an indictment. In discussing this matter in the context of an alleged abuse of the grand jury process, the court stated: The fact that the grand jury for which the documents were originally subpoenaed was discharged after its normal three months term did not prevent a subsequent grand jury from considering the same subject and returning a true bill. 224 F.Supp. at 432. From the foregoing authorities, it is clear the authority of one grand jury to continue an investigation into a matter previously investigated by another grand jury cannot be questioned. Since the materials subpoenaed from plaintiff were sought only in connection with valid, existing grand juries, the plaintiff’s claim as to a non-existent or “expired” grand jury clearly has no factual or legal basis. Compare United States v. Fein, 504 F.2d 1170 (2d Cir. 1974). Closely intertwined with plaintiff’s complaint about the matter being submitted to successive grand juries is its contention that the grand jury process has been abused by reason of the sheer lapse of time since the jury’s initial foray into the plaintiff’s affairs by its duces tecum subpoena on August 15, 1973. The lapse of time is in turn alleged to be a product of the government’s bad faith. While the delay has not been inconsiderable, it has been, in significant part, the result of three factors which do not signal bad faith. First, there was transitional delay occasioned by the transfer of responsibility for the municipal contracts investigation from the Justice Department’s Strike Force to the United States Attorney’s office. Second, delay followed from plaintiff’s own failure to turn over records when requested. Third, plaintiff’s records were so voluminous that it has taken a significant amount of time to complete the comprehensive examination that the investigation requires. Notwithstanding the foregoing, we believe that the government can move much more expeditiously to complete the investigation and strongly suggest that it do so. It is true that the secrecy surrounding the grand jury process will protect plaintiff from exposure in the event it is not indicted, but the annoyance and inconvenience accompanying the investigation are sufficient grounds to require that the government move expeditiously. While we are on the subject of efficiency, we add our disenchantment with the record keeping procedures employed in connection with this investigation. Strange as it may seem, the most difficult phase of making and assembling our findings of fact was the unravelling of the government’s affidavits as to what was submitted to which grand jury and when. Obviously, the government had difficulty itself in assembling the facts, for it was only after a number of successive affidavits (at least one of which seemed to contradict an earlier affidavit — see n.24 supra) that the facts were all put before us. We are cognizant that the supervisory power of the grand jury reposes in the court, rather than a single judge. However, we take the liberty of suggesting to the United States Attorney that he create and maintain internally a formal grand jury docket or minute book, parsed as to discrete grand juries, investigations and targets thereof, and annotating returns of subpoenas, grand jury submissions, names of witnesses, etc. Such a volume would have manifold value, both as a housekeeping and monitoring device and as evidentiary material where required by order of the court. We now turn to plaintiff’s remaining contentions about bad faith and abuse of the grand jury process. The general principles which we have set forth in Part III.A. demonstrate our power to accord relief from oppressive conduct of a grand jury investigation. We have found as a’ fact that the government made no misrepresentations in order to' obtain plaintiff’s records. In view of plaintiff’s allegations of bad faith we required the government to make a Schofield showing; it did so by in camera affidavit which demonstrates that the grand jury is making progress in its investigation and that there is indeed a basis for the existence and continuance of the investigation. Another form of bad faith alleged lies in the failure of the government to submit the subpoenaed material promptly to the grand jury. But no bad faith inhered therein because of the manner in which a grand jury investigation actually functions; i. e., it is only after the experts sift and review and collate and ponder vast amounts of subpoenaed material that a determination can be made as to what to submit to the grand jury. To simply deposit the material in the grand jury room for 23 lay persons to inspect would be unproductive if not chaotic, especially in complex tax and corruption investigations. United States v. United States District Court, 238 F.2d 713 (4th Cir. 1956), cert. denied, 352 U.S. 981, 77 S.Ct. 382, 1 L.Ed.2d 365 (1957). Still another contention as to bad faith and abuse is that the grand [jury investigation was either a subterfuge for carrying on a previous I.R.S. investigation or a cover to obtain records for civil tax purposes. Where the grand jury is used by the government as a cover to obtain records for a civil investigation, the grand jury process is subverted and relief must be granted. In re April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir. 1956); United States v. Doe, 341 F.Supp. 1350 (S.D.N.Y. 1972); Pflaumer, supra, 53 F.R.D. at 473, 474; cf. United States v. Ryan, 455 F.2d 728, 731-33 (9th Cir. 1972) ; Durbin v. United States, 94 U.S.App.D.C. 415, 221 F.2d 520 (1954). However, we have found as a fact that there was no previous I.R.S. investigation, that the grand jury was not used as a cover to obtain records for civil purposes and that the sole purpose of the grand jury investigation was criminal in nature. Plaintiff does not object to the “overbreadth” of the subpoenas as such. However, to the extent .that overbreadth might be evidence of bad faith, we hold that the subpoenas were reasonable within the standards of United States v. Gurule, 437 F.2d 239 (10th Cir. 1970), cert. denied, 403 U.S. 904, 91 S.Ct. 2202, 29 L.Ed.2d 679 (1971), and that the quantity of records called for here was no greater than that called for and approved in In re Corrado Bros., Inc., 367 F.Supp. 1126 (D.Del. 1973) and In re Grand Jury Investigations (Local 512—Int’l Union of Operating Engineers), 381 F.Supp. 1295 (E.D.Pa.1974). See also Universal Mfg. Co. v. United States, 508 F.2d 684 (8th Cir. 1975). In sum, we have surveyed the record and find no evidence of bad faith or abuse of grand jury process. Plaintiff’s final and broadest attack on the continuation of the investigation emerged only at our final hearing. Succinctly stated it is that the grand jury process has been abused because in actuality the grand jury is no longer the arm of the court or the historic shield between the government and the individual, but rather the arm of the prosecutor, manipulated at his whim and subject to his complete control. Plaintiff’s claim is somewhat overstated, for as our findings of fact show, the grand jurors themselves do play some role in the decision making process. Moreover, whatever may be said of the prosecutor’s dominance, many basic grand jury safeguards remain. However, in broad general terms our findings of fact fairly and substantially support the claim that the grand jury is essentially controlled by the United States Attorney and is his prosecutorial tool. As we have noted above (see n.28) plaintiff is not the first to make such allegations. Obviously, if the extent of prosecutorial control over the grand jury invalidates the investigation at issue, it must likewise invalidate every grand jury investigation presently under way in the land. Equally obviously, under the present state of the law we are not at liberty to so decree. Indeed, in Schofield I Judge Gibbons referred to “some fundamental propositions”: First, although federal grand juries are called into existence by order of the district court, Fed.R.Crim.P. 6(a); 18 U.S.C. § 3331, they are ‘basically a law enforcement agency.’ . They are for all practical purposes an investigative and prosecutorial arm of the executive branch of government. See 8 J. Moore, Federal Practice ¶[ 6.02 [1], [6] (2d ed. Cipes ed. 1972). 486 F.2d at 89-90. No evidentiary or legal showing has been made in this case to support the plaintiff’s broad claims. It would take far more than we have seen to conclude that the basic operation of American grand juries today violates the purposes of Rule 6 or the intent of the Framers of the Fifth Amendment. C. Has the Government Breached the Secrecy of the Grand Jury or Violated an Order Under Federal Criminal Rule 6(e) ? On three occasions judges of this court have entered orders pursuant to Fed.R. Crim.P. 6(e) authorizing the Justice'Department to utilize the assistance of agents, special agents, and employees of the I.R.S. in connection with the investigation under attack, and conferring upon these agents access to books, records, documents, and transcripts of testimony before the grand jury. Each such order further provided that the I.R.S. personnel were not prohibited from utilizing the material in the course of their official duties, for either criminal or civil purposes, provided that the subpoenaed material shall remain at all times “under the aegis of attorneys for the government.” The language of each of the orders was identical and was modeled after the order framed in Pflaumer. The manner in which the 6(e) orders were implemented has been explicated in our findings of fact. Rule 6(e) in pertinent part provides: Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. In our opinion in the Pflaumer case, which turned on the first sentence of Rule 6(e), we dwelt at considerable length on the relationship between grand jury secrecy and the realities of the grand jury investigation process. More specifically, we directed our attention to the Justice Department’s practice of utilizing personnel from agencies such as I.R.S. to provide the expertise which the Justice Department does not possess in connection with grand jury investigations of certain types of crimes. Pflaumer dealt, as does the present case, with the assistance of I.R.S. agents. After describing the interrelationship between I.R.S. and the Justice Department in such matters, we noted: While the government attorney who receives the assistance of those agents receives, in effect, the assistance of the entire agency, the effect of this relationship Is that, despite the assignment to assist the United States Attorney in his work before the grand jury, these agents are still agents of the IRS. It is these factors, built into the grand jury investigative process, that Rule 6(e) does not come to grips with. In view of the foregoing [it seems questionable] to hold: (1) that agents of the IRS may use the documents and records to assist the United States Attorney with respect to criminal matters; and (2) that the records and documents may be used for any criminal or civil violations that appear (see United States v. General Electric Co., supra), but then to say: (3) that the documents and records, when they are being processed through the ageney itself and are beyond the immediate control of the United States Attorney lose their viability . . 53 F.R.D. at 476 (footnote omitted). While suggesting that Rule 6(e) be reevaluated and clarified by the Supreme Court Rules Committee, we refused the motion of Pflaumer, the party under investigation, for a protective order barring I.R.S. agents from access to the records, “so long as they remain under the aegis of attorneys for the government”, i. e., the United States Attorney’s office and the Strike Force. After we filed our opinion in Pflaumer, we submitted it to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. Others had also suggested clarification of Rule 6(e), and in due course the Advisory Committee on Criminal Rules, in its January 31, 1973, Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure for the United States District Courts, recommended the following amendment to Rule 6(e): (e) SECRECY OF PROCEEDINGS AND DISCLOSURE. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. For purposes of this subdivision, “attorneys for the government” includes those enumerated in rule 5J/.(c); it also includes such other government personnel as are necessary to assist the attorneys for the government in the performance of their duties. The Advisory Committee Note reads: The proposed definition of “attorneys for the government” is designed to facilitate an increasing need, on the part of government attorneys, to make use of outside expertise in complex litigation. The phrase “other government personnel” includes, but is not limited to, employees of administrative agencies and government departments. Present subdivision (e) provides for disclosure “to the attorneys for the government for use in the performance of their duties.” This limitation is designed to further “the long -established policy that maintains the secrecy of the grand jury in federal courts.” United States v. Procter and Gamble Co., 356 U.S. 677 [78 S.Ct. 983, 2 L.Ed.2d 1077] (1958). . . . The limited nature of [the Rule 54(c)] definition is pointed out in In re Grand Jury Proceedings, 309 F.2d 440 (3d Cir. 1962) at 443: The term “attorneys for the government” is restrictive in its application * * * If it had been intended that the attorneys for the administrative agencies were to have free access to matters occurring before a grand jury, the rule would have so provided. The proposed amendment reflects the fact that there is often government personnel assisting the Justice Department in grand jury proceedings. In In re Grand Jury Investigation of William H. Pflaumer & Sons, Inc., [53 F.R.D. 464] (E.D.Pa.1971 . . .), the opinion quoted the United States Attorney: It is absolutely necessary in grand jury investigations involving analysis of books and records, for the government attorneys to rely upon investigative personnel (from the government agencies) for assistance. See also 8 J. Moore, Federal Practice [note 40 swpra] Although case law is limited, the trend seems to be in the direction of allowing disclosure to government personnel who assist attorneys for the government in situations where their expertise is required. This is subject to the qualifications that the matters disclosed be used only for the purposes of the grand jury investigation. The court may inquire as to the good faith of the assisting personnel, to ensure that access to material is not merely a subterfuge to gather evidence unattainable by means other than the grand jury. This approach was taken in In re Grand Jury Investigation of William H. Pflaumer & Sons, Inc., . ; In re April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir. 1956) ; United States v. Anzelmo, 319 F.Supp. 1106 (D.C.La.1970). Another case, Application of Kelly, 19 F.R.D. 269 (S.D.N.Y.1956), assumed, without deciding, that assistance given the attorney for the government by IRS and FBI agents was authorized. The proposed amendment has not yet been acted upon by the full Rules Committee much less by the Conference and the Supreme Court. However, the principles announced in Pflaumer have been widely followed. While the Third Circuit has never formally approved Pflaumer, it has affirmed by judgment order an opinion and order of Judge Vincent P. Biunno of the District of New Jersey expressly adopting the reasoning of Pflaumer and refusing to prohibit access by I.R.S. agents assisting the United States Attorney to records subpoenaed before the grand jury. Shamy v. Goldstein, No. 74-314 (D.N.J., May 1, 1974), aff’d jmt. order, 510 F.2d 970 (3d Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2630, 45 L.Ed.2d 672 (1975). Under the Internal Rules of the Third Circuit, |f Dl(a), judgment orders lack precedential effect; hence, Pflaumer remains but another district court opinion. However, notwithstanding criticism of the Pflaumer opinion, and subject to certain suggestions as to additional safeguards (see discussion infra), we remain of the view that its holding is sound. Therefore, we reject' plaintiff’s initial 6(e) claim; i. e., that the granting of access to grand jury material to I.R.S. agents assisting the United States Attorney in the investigation itself violates the secrecy of the grand jury. Proceeding from the premise that we were unlikely to recede from the position expounded at such length in Pflaumer, the plaintiff advanced a number of contentions to the effect that the 6(e) orders were violated by the government, as the result of which plaintiff submits that the investigation should be aborted or at least the I.R.S. prohibited from ever using for civil purposes the material to which it gained access. These allegations are: 1) I.R.S. employees were not sworn to secrecy or given adequate advice as to the I.R.S.’s limited access to grand jury material, i. e., that it must remain under the aegis of the U. S. Attorney; 2) the plaintiff’s records were, pursuant to direction or subpoenas, delivered directly to the offices of I.R.S. and not to the U. S. Attorney or the grand jury room; 3) I.R.S. retained the records in its possession; 4) the U. S. Attorney did not directly supervise the activities of the I.R.S. agents or know the names of all the I.R.S. agents working on the case; 5) the U. S. Attorney could have hired persons on a contract basis to assist it instead of utilizing I.R. S.; and 6) an I.R.S. agent working on the case refused to consult with plaintiff’s counsel because he had not filed a power of attorney in accordance with I.R.S. regulations. In our findings of fact we have accepted the factual premise of each of these contentions with the exception of the second clause of (1) and' of -(5). Our principal concern then is with the legal effect of this state of affairs. We find it helpful at this juncture to consider views of the writer of the Note, Administrative Agency Access to Grand Jury Materials, 75 Col.L.Rev. 162 (1975). The note discusses the trend, typified by recent cases such as Pflaumer, toward increasing administrative agency access to grand jury material. The author proceeds from a number of fundamental premises including the following: 1) the powers of federal administrative agencies are tightly circumscribed by the statutes creating them; 2) federal agencies (including I.R.S.) are not permitted to launch general investigations which do not concentrate on a specific target; 3) agency subpoenas are subjected to greater scrutiny than grand jury subpoenas; 4) the agencies are not usually subject to the direct supervision of the courts; and 5) their activities, unlike those of the United States Attorney in connection with a given prosecution, are ongoing, so that vindication at trial does not serve as a meaningful protection in cases of abuse. Against this background, the student writer believes that serious consequences flow from increased agency access to grand jury material: To the extent that access is gained to information unobtainable by the use of the agencies’ own investigative procedures, the limits on agency power which Congress sought to build into the statutes are circumvented. Congress has chosen not to give the agencies powers comparable to those of the grand jury, but rather has fashioned statutes providing protections for citizens under administrative investigation. That policy is subverted when the agencies have easy access to kinds of information obtainable only by the grand jury’s extraordinary powers. Aside from congressional policy, restrictions on agency investigations are fundamental to our liberties. The grand jury is properly an arm of the court, not the executive. The agencies are denied unrestrained inquisitorial powers comparable to the grand jury’s because that kind of power should not be vested in the executive branch. Expansion of agency power through indirect access to grand jury material permits the executive to wield such power. 75 Col.L.Rev. at 178-79 (footnotes omitted). Under Pflaumer and the proposed amended Rule 6(e), the agencies have no independent right to material under the first sentence of Rule 6(e) governing disclosure to “attorneys for the government.” It was for this reason that, in Pflaumer, we limited their access to facilitating the rendering of technical assistance and imposed the “aegis of the United States Attorney” requirement, noting that: If there were no brakes upon the power of the government to set a grand jury upon an investigative course for the sole purpose of obtaining records to submit to a government agency for investigation, then our liberties would indeed be insecure, notwithstanding that the court can review the good faith questions as the Seventh Circuit did in In re April 1956 Term Grand Jury, supra, and as we will do in the next succeding section of this Opinion. 53 F.R.D. at 476. The challenge that we perceive to be posed by the Columbia writer, succinctly stated, is whether the. “aegis” requirement, which is contained in the 6(e) orders at issue before us, is sufficiently specific to prevent possible abuse. Upon reflection, we believe that a further explication of the “aegis” principle is in order. In addressing the matter of controls, there appear to be several areas of concern. First, there is the nature of the initial as well as continuing directions to the agency personnel as to the scope of their role. Second, there is the supervision of the agency personnel, and the insu