                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 05-3886
                                 ________________

                                           *
                                           *
                                           *
In re: Grand Jury Subpoenas Dated          *      Appeal from the United States
February 28, 2002; March 26,               *      District Court for the
2003; and October 4, 2004.                 *      District of Minnesota.
                                           *
                                           *             [PUBLISHED]
                                           *

                                 ________________

                                 Submitted: April 19, 2006
                                     Filed: January 4, 2007
                                 ________________

Before WOLLMAN, HANSEN, and BENTON, Circuit Judges.
                      ________________

HANSEN, Circuit Judge.

     Appellant John Doe Corporation (JDC)1 appeals from the district court's2
judgment holding that the Government did not improperly use grand jury materials as


      1
       All materials in this appeal were filed under seal to protect the secrecy of the
grand jury investigation and the privacy of those involved. In order to publish this
opinion, yet maintain the secrecy, no identifying names will be used and pseudonyms
have been substituted as required.
      2
       The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
part of a criminal investigation into JDC and a civil investigation into one of JDC's
independent sales representative companies, XYZ; the district court's determination
that it was not improper for the Department of Justice to disclose grand jury materials
to another Department of the Government through ex parte orders issued by the
district court without giving notice to JDC; and the district court's refusal to quash any
of the subpoenas issued by the grand jury to JDC. After careful review, we affirm in
part, dismiss in part, and remand in part.

                                          I.
       JDC is the target of a criminal investigation originated by a cabinet-level
Department of the United States (the "other Department") into JDC's alleged violation
of federal laws through the sale of restricted items. The investigation began in
September 2000. XYZ is JDC's independent sales representative in question and was
involved in arranging a sale. The lead agent in the criminal investigation is federal
Special Agent Smith3 of the other Department, who worked in conjunction with the
United States Attorney's office in Minnesota, although he is not part of the Justice
Department. As part of the investigation, a search warrant for JDC's headquarters was
issued, and a search was executed in May 2001. The warrant and its supporting
affidavit were unsealed three months later and revealed the federal laws claimed to
have been violated. A grand jury subpoena was issued to JDC on February 28, 2002,
seeking all documents related to JDC's contacts with a certain entity and all other
individuals and entities in the same country. In response to this subpoena, more than
178,000 pages of documents were provided in April 2002 to the Assistant United
States Attorney (AUSA) handling the case.

      Shortly after the delivery of these documents, two representatives of the other
Department met with an XYZ employee. A second grand jury subpoena was issued
to JDC on March 26, 2003, requesting documents related to the shipping of certain


      3
       This is not the special agent's real name.
                                           -2-
items since January 1, 2001. More than 30,000 pages of documents were produced
in response to the subpoena, with approximately 24,500 pages sent directly to Special
Agent Smith for review.

      A third grand jury subpoena was issued to JDC in October 2004. This
subpoena repeated the request for documents related to a number of entities and asked
JDC for documents related to correspondence between JDC and XYZ. JDC sent its
responses to Special Agent Smith.

       In July 2003, a JDC employee in charge of compliance with federal laws was
granted immunity and testified before the grand jury. Special Agent Smith was
present at a pretestimony interview the witness had with the AUSA, but was not in the
grand jury room during the employee's testimony. A newspaper story after the
employee's appearance and testimony named the employee and the employee's
position, discussed the purported purpose of the investigation, quoted representatives
of JDC, and stated the purported nature of the government investigation and portions
of what had occurred in the investigation to date.

       The other Department informed XYZ of its intent to initiate an administrative
proceeding against XYZ in August 2003. Special Agent Smith was also in charge of
this civil investigation for the other Department. Formal civil administrative
proceedings were initiated by the other Department in February 2004, alleging that
XYZ conspired to commit violations of various laws by arranging the sale of restricted
items – the same charges as leveled against JDC in the affidavit supporting the search
warrant.

      On April 6, 2004, the AUSA asked JDC to provide three documents that JDC
had produced in response to the grand jury subpoenas to the other Department for use
in the civil administrative proceeding against XYZ. JDC refused, stating that it
believed the documents were protected by Federal Rule of Criminal Procedure 6(e).

                                         -3-
In May 2004, the AUSA asked JDC to send two other documents to the other
Department, but JDC again denied the request. In February 2005, the Government
made a third request for JDC to send several documents to the other Department. This
request was also denied by JDC, citing Rule 6(e).

       As part of its defense in the civil matter, XYZ asked to depose Special Agent
Smith. The other Department agreed, but before the deposition took place the other
Department moved to stay the civil proceedings against XYZ until the grand jury
investigation was finished. The other Department contended that because Special
Agent Smith was in charge of both the criminal investigation of JDC and the civil
investigation of XYZ, it would be almost impossible for him to give deposition
testimony without potentially disclosing grand jury secrets. JDC's counsel received
a copy of the other Department's response to XYZ's opposition to the stay, and from
that response JDC learned that the district court had granted the Government's ex parte
request for orders allowing the Government to disclose to the other Department the
documents that JDC had declined to voluntarily provide.

       Upon learning of these ex parte orders, JDC filed a motion for contempt and a
motion for access to the ex parte motions and supporting papers. The district court
denied the motion for contempt, declined to grant any injunctive relief, denied the
motion to quash, and made no mention of allowing JDC access to the ex parte
materials. JDC appeals, arguing that the district court erred by finding no violation
of Federal Rule of Criminal Procedure 6(e), by allowing the government to obtain ex
parte orders without giving notice to JDC, and by not granting JDC any relief from
the grand jury subpoenas.

                                       II.
      A. Notice of the Government's Ex Parte Motion
      We first address JDC's argument that it was legal error for the district court to
allow the Government to seek ex parte orders without giving notice to JDC, even

                                          -4-
though JDC had specifically objected to the disclosure of the documents at issue. We
review the district court's decision to disclose grand jury materials for abuse of
discretion. In re Grand Jury Investigation, 55 F.3d 350, 354 (8th Cir.) (stating that a
"decision to allow disclosure is entrusted to the substantial discretion of the district
court, which must weigh the circumstances of each case" and that the district court's
decision will only be overturned if the district court abused its discretion), cert.
denied, 516 U.S. 917 (1995).

       The need to preserve the secrecy of grand jury proceedings is well
acknowledged and is in fact proscribed by the Federal Rules of Criminal Procedure.
See generally Fed. R. Crim. P. 6(e)(2); Douglas Oil Co. of Calif. v. Petrol Stops Nw.,
441 U.S. 211, 218-19 (1979); In re Grand Jury Proceedings Relative to Perl, 838 F.2d
304, 306 (8th Cir. 1988). Rule 6(e)(3) governs petitions to the district court for
permission to disclose grand jury information. Relevant portions of the rule state that:

      A petition to disclose a grand-jury matter . . . must be filed in the district
      where the grand jury convened. Unless the hearing is ex parte–as it may
      be when the government is the petitioner–the petitioner must serve the
      petition on, and the court must afford reasonable opportunity to appear
      and be heard to: . . . (ii) the parties to the judicial proceeding; and (iii)
      any other person whom the court may designate.

Fed. R. Crim. P. 6(e)(3)(F).

       In the instant case, the Government was the petitioner and filed the petition to
disclose grand jury matters ex parte – an action clearly permitted by Rule 6(e)(3)(F).
The rule also clearly exempts ex parte hearings from the notice provisions. JDC's
reliance on In re United States, 398 F.3d 615, 619 (7th Cir. 2005), to support its
argument that lack of notice is legal error is misplaced. The court in that case
affirmatively upheld the district court's right to allow ex parte proceedings without
providing notice to any other party. Id. (noting that the 1983 amendments to Rule 6(e)
"explicitly authorize ex parte proceedings when the United States is the petitioner").

                                           -5-
In these situations, the district court is to use its abundant discretion to determine if
notice should be given. Id.; see also In re Grand Jury Investigation, 774 F.2d 34, 37
(2d Cir. 1985) (denying claim that the district court erred by granting an ex parte
motion under Rule 6(e) without providing notice and an opportunity to be heard to
appellants), overruled on other grounds, 481 U.S. 102 (1987). Here there was no
misapplication of the Rule, as JDC argues, because the rule's plain language permits
the district court to allow the Government to proceed ex parte. Thus, the question
before us does not involve one of legal error, but rather whether or not the district
court abused its discretion in allowing the Government to proceed ex parte without
giving JDC notice and an opportunity to be heard.4

       "The United States Supreme Court has consistently . . . recognized that the
proper functioning of our grand jury system depends upon the secrecy of grand jury
proceedings." In re Grand Jury Proceedings Relative to Perl, 838 F.2d at 306 (internal
marks omitted). Particularly when a grand jury investigation is ongoing, district
courts have broad discretion in taking action to protect the secrecy of that
investigation. See In re Grand Jury, 103 F.3d 1140, 1145 (3d Cir.) ("Ex parte in
camera hearings have been held proper in order to preserve the ongoing interest in
grand jury secrecy."), cert. denied, 520 U.S. 1253 (1997). In a case involving access
to a Government ex parte affidavit, our sister circuit rejected arguments that unique
circumstances, a prolonged period of investigation, and the fact that the nature of the
investigation had already (at least in part) been made public was enough to reverse the
district court's decision denying access to the ex parte affidavit. In re Grand Jury
Subpoena, 223 F.3d 213, 219 (3d Cir. 2000). The court rejected the argument that the


      4
       We would review for an abuse of discretion the district court's decision to
allow disclosure of the grand jury material to the other Department. In re Grand Jury
Investigation, 55 F.3d at 354. However, JDC does not dispute the district court's
decision to disclose, rather it focuses only on the court's decision to proceed ex parte
without notice. Accordingly, we do not question the propriety of the decision to
disclose in this opinion.
                                           -6-
district court abused its discretion, relying on "the acknowledged need for secrecy in
grand jury proceedings" and the fact that the affidavit in question included "excerpts
of witness testimony and documents obtained during the [ongoing] investigation." Id.
We agree with this analysis. While ex parte motions do prevent a party from arguing
on its own behalf, numerous courts have upheld them as part of the balancing act
required to properly protect grand jury secrecy. See In re Sealed Case No. 98-3077,
151 F.3d 1059, 1075 (D.C. Cir. 1998); In re Grand Jury Proceedings, 33 F.3d 342, 353
(4th Cir. 1994); but see In re United States, 398 F.3d at 619 (noting that one situation
where a district court could possibly abuse its discretion by allowing the Government
to proceed ex parte without notice to interested parties might arise when the
Government seeks to further its own interests in a civil suit). While the district court
certainly could have exercised its discretion and required notice and a hearing, in this
instance we do not find that it abused its discretion by not granting notice to JDC,
particularly given the nature of the investigation in question, the fact that the
documents being sought could at least arguably have been considered matters before
the grand jury, that the Government limited its request to a very small number of
documents out of the thousands produced, that the other Department was not seeking
to use the documents against JDC, and the fact that the grand jury investigation was
ongoing.

        JDC also argues that it was legal error for the district court to fail to grant it
access to the ex parte motions and supporting papers. The Government did not
oppose JDC's motion for access to the ex parte materials, but the district court did not,
apparently, consider the stipulation. JDC should have renewed its motion before the
district court for access to the materials and asked for a ruling after the district court
failed to address this issue when it dismissed JDC's motion for contempt. JDC did
not, however, and instead asks this court to direct the district court to grant it access.
Even though it appears that the Government did not contest JDC’s motion for access
to the ex parte materials, the proper court to grant or deny access to this information
in the first instance is the district court, as it is in the best position to assess the overall

                                              -7-
need for secrecy in this grand jury proceeding (if indeed it is still ongoing) and any
potential impact from allowing access to JDC. As such, we remand this issue to the
district court with directions to evaluate and address JDC’s motion for access to the
ex parte materials.

       B. Unauthorized Disclosure of Grand Jury Materials
       JDC also contends that the Government violated Rule 6(e)(3)(B) through the
unauthorized disclosure of grand jury materials separate and apart from the disclosures
authorized by the district court's ex parte orders. Specifically, it contends that the use
of Special Agent Smith as the lead investigator on the simultaneously conducted civil
investigation of XYZ and criminal investigation of JDC was improper because Special
Agent Smith had access to grand jury materials as part of the criminal investigation
that he would not have had access to had he solely been investigating the civil matter.
JDC argues that, at a minimum, it established a prima facie case of a violation by
Special Agent Smith and was entitled to an evidentiary hearing on its claim. The
district court disagreed and dismissed JDC's motion, holding that in the absence of any
evidence of misuse of the materials by Special Agent Smith, there were no grounds
to find a violation of Rule 6(e).

       "When considering a district court's ruling regarding a rule of criminal
procedure, we review the district court's legal conclusions de novo and its findings of
fact for clear error." United States v. Shepard, 462 F.3d 847, 861 (8th Cir. 2006)
(internal marks omitted), cert. denied, No. 06-7647, 2006 WL 3245008 (Dec. 11,
2006); see also United States v. Pardue, 363 F.3d 695, 697 (8th Cir. 2004) (holding
that a district court's interpretation of the applicability of a criminal rule of procedure
was reviewed de novo); United States v. Olsen, Nos. 93-30186 & 93-30353, 1995 WL
46187, at *1 (9th Cir. Feb. 6, 1995) (unpublished) (noting that a decision regarding
whether or not material fell under the protection of Rule 6(e) was reviewed de novo
as a mixed question of law and fact).



                                            -8-
       We first note that Rule 6(e) protects the secrecy of the grand jury in two similar,
but distinct ways, through regulation both of the "use" and the "disclosure" of grand
jury information. Disclosure, the sharing of information with another, is prohibited
except in a few limited circumstances. Fed. R. Crim. P. 6(e)(2)-(3)(A); (e)(3)(E); see
United States v. Archer-Daniels-Midland Co., 785 F.2d 206, 212 (8th Cir. 1986)
(defining disclosure under Rule 6(e) as requiring that information be shared with
another), cert. denied, 481 U.S. 1028 (1987); United States v. John Doe, Inc. I, 481
U.S. 102, 108-09 (1987) (same). In addition, the rule also limits how certain persons
can "use" grand jury information that has been properly disclosed to them. Fed. R.
Crim. P. 6(e)(3)(B).


        Disclosure of grand jury materials is permitted to "any government personnel
. . . that an attorney for the government considers necessary to assist in performing
that attorney's duty to enforce federal criminal law." Fed. R. Crim. P. 6(e)(3)(A)(ii).
How a person can use information disclosed to them under this rule is limited, as the
information may be used "only to assist an attorney for the government in performing
that attorney's duty to enforce federal criminal law." Fed. R. Crim. P. 6(e)(3)(B).
Because JDC does not contend otherwise, we assume without deciding that Special
Agent Smith was properly allowed access to the grand jury materials through his work
as an investigator of the criminal matter. Thus, the issue of improper disclosure to
Special Agent Smith is not before us on appeal; we must only determine if there was
a violation regarding the limitations on the use of grand jury materials.


        JDC argues that Special Agent Smith's simultaneous work as an investigator
into the civil matter involving XYZ is itself enough to violate Rule 6(e). It contends
that the use of a dual investigative agent violates the principle that a grand jury
investigation should not be used as a form of civil discovery–arguing in general that
it is a per se violation of Rule 6(e)(3)(B). See generally United States v. Sells Eng'g,
Inc., 463 U.S. 418, 432 (1983) (noting that unfettered "disclosure to government

                                           -9-
attorneys for civil use poses a significant threat to the integrity of the grand jury
itself"). The district court disagreed, stating that there is no rule against the same
investigator participating in both a criminal and civil investigation, and concluding
that without any real evidence that Special Agent Smith misused any grand jury
information, there was no violation of Rule 6(e).


       We have not previously been presented with the issue of an investigator
simultaneously working on both a civil and a criminal case. In Archer-Daniels-
Midland, we held that it was not a violation of Rule 6(e)(2) (prohibiting disclosure)
for an attorney who had been assigned to the criminal grand jury investigation to later
be involved in a civil investigation into the same company and matter. 785 F.2d at
212; see also John Doe, Inc. I, 481 U.S. at 108-09 (holding that Rule 6(e)'s disclosure
rule did not prevent a government attorney from working on a grand jury investigation
and then later on a civil case involving the same matter, because "[t]he Rule does not
contain a prohibition against the continued use of information by attorneys who
legitimately obtained access to the information through the grand jury investigation").
The issue involved was whether the attorney had violated the rule regarding disclosure
of grand jury materials by later being involved in litigating the civil case. Archer-
Daniels-Midland, 785 F.2d at 212. The court held there was no disclosure violation
because a disclosure required that information be transferred from one person to
another, and in this instance a person was simply retaining information and not
disclosing it. Id.; see also John Doe, Inc. I, 481 U.S. at 408-09 (quoting Archer-
Daniels-Midland).

      Turning to the more directly related issue of the use of grand jury material, the
Supreme Court held in Sells Engineering that Government attorneys involved in a
grand jury investigation could not provide uncontrolled access to grand jury
information to their civil counterparts. 463 U.S. at 430-31. If the civil attorneys, who
were not themselves involved in the grand jury investigation, wanted access to grand
jury materials, the Government would have to get permission from the court before

                                          -10-
that information could be disclosed for use in the civil matter. Id. (noting that "[i]f,
in a particular case, ordinary discovery is insufficient for some reason, the
Government may request disclosure"). Thus, while the grand jury disclosure rules do
not prevent the same Government attorney from working on both a criminal and a
civil investigation, the criminal prosecutor may not disclose material to his civil
litigation colleagues without court authorization. That is exactly what occurred here
when the Justice Department's criminal prosecutor went to the district court and
received permission to disclose various documents to another Department's civil
attorneys.

      As we noted, the rule preventing disclosure of grand jury material, Fed. R.
Crim. P. 6(e)(2)(B), differs slightly from the one at issue here, which prevents those
to whom information has been properly disclosed from using information for any
purpose other than to assist an attorney in upholding federal criminal laws, Fed. R.
Crim. P. 6(e)(3)(B). We have assumed, ante, that Special Agent Smith was properly
granted access to grand jury materials as an investigator assisting an attorney in a
criminal investigation. However, unlike attorneys, those to whom information has
been disclosed to assist in a criminal investigation have a further limitation, and they
are prevented from using the information for any other purpose. Fed. R. Crim. P.
6(e)(3)(B). A prohibition against using information is not violated just because a
person has access to the information.5 The fact that Special Agent Smith was also
working on a related civil investigation, involving a different target, does not mean
that he was necessarily availing himself of the grand jury information while


      5
       The word "use" is not defined in Rule 6(e), however it has been defined by the
Supreme Court. In Bailey v. United States, a case involving interpretation of the word
"use" as found in 18 U.S.C. § 924(c)(1), the Court determined that "use" required
more than mere possession, and that active employment must be shown in order to
prove "use" of a firearm. 516 U.S. 137, 143-45 (1995). The Court noted that the
various dictionary definitions of the word "use" implied "action and implementation,"
something more than passive possession. Id. at 145.
                                          -11-
conducting that civil investigation. Simultaneous criminal and civil investigations
into related companies (or the same company) are not uncommon. While most of the
cases involving attorneys have involved subsequent, not simultaneous, criminal and
civil investigations, no court has yet prevented such simultaneous involvement by an
attorney or investigator, and we decline to do so in this instance on this record purely
as a preventative measure.6 If an attorney is not barred from legitimately participating
in both the criminal and civil sides of the case, it does not seem logical that an
investigator should be so barred in all circumstances. Subsequent investigations must
comply with the same rules regarding grand jury secrecy as a simultaneous
investigation. The secrecy rules do not cease to apply when a grand jury ends its
investigation, even if there is no indictment. In re Grand Jury Proceedings Relative
to Perl, 838 F.2d at 307 (noting that while the interests in grand jury secrecy may be
reduced when a grand jury investigation has ended, they are not eliminated); see also
Douglas Oil, 441 U.S. at 222 (stating that "the interests in grand jury secrecy, although
reduced, are not eliminated merely because the grand jury had ended its activities").
Thus, the rationale behind the rules and the interest in protecting grand jury secrecy
apply to both subsequent and simultaneous civil investigations. See Illinois v. Abbott
& Assocs., Inc., 460 U.S. 557, 567 n. 11 (1983) (recognizing that "[e]ven after the
conclusion of a particular grand jury's investigation, continued secrecy protects the
reputations of the innocent and safeguards witnesses . . . [and] stringent protection of
the secrecy of completed grand jury investigations may be necessary to encourage
persons to testify fully and freely before future grand juries").

      JDC relies heavily on a Fourth Circuit case upholding a district court's decision
to quash a grand jury subpoena that it determined had been issued for improper
purposes–to further civil discovery (which had been stayed) rather than a criminal

      6
       Our declination to issue such a rule of law should not be construed as
disapproving in any way the policies of various Government agencies which guard
against potential violations of Rule 6 by "walling off" criminal investigators and
prosecutors from simultaneous civil enforcement activities.
                                          -12-
investigation. In re Grand Jury Subpoena, 175 F.3d 332, 337-38 (4th Cir. 1999). One
of the three reasons given by the district court in that case to support the determination
of an improper purpose was that the criminal investigator in the case had not been
"walled off" from the civil investigation. Id. The other two reasons involved
evidence that the criminal and civil prosecutors colluded on several matters and
motions, and it was likely more than a "mere coincidence" that the criminal subpoena
for documents mirrored an earlier civil discovery request. Id. In upholding the
district court's decision, the court stated that none of the reasons alone were likely
sufficient to quash the subpoena, but together they supported a finding that the district
court had not clearly erred in determining that the grand jury investigation was a ruse
for discovery in the civil matter. Id. at 338-39 ("Taking these three grounds for the
district court's finding-at least in the aggregate-we cannot conclude that the district
court's finding . . . was clearly erroneous."). In the instant case, while Special Agent
Smith was not "walled off" from the civil investigation, there was no indication or
finding by the district court of any of the other issues that were present in In re Grand
Jury Subpoena Under Seal, or other similar problems. In the case at bar, the
Government was involved in a legitimate criminal investigation of JDC, and there is
no evidence of collusion with the attorneys investigating XYZ. The Fourth Circuit
case does not support the proposition that the fact of a concurrent investigator, in and
of itself, is enough to find a violation of the grand jury secrecy rules. In addition, we
cannot ignore the fact that both the analysis and issue before our sister circuit are
easily distinguishable. A court's determination that a grand jury subpoena was issued
for an improper purpose differs greatly from our determination of whether or not the
rules of grand jury secrecy have been breached.

      Our reading of Rule 6(e) and the related case law leads us to the conclusion that
even when a criminal investigator has properly been made privy to grand jury
materials and is also involved in a related civil investigation, no per se violation of
Rule 6(e)(3)(B) occurs. In order to violate the rule, there must be evidence that the



                                           -13-
knowledge of matters before the grand jury held by the investigator has been put to
use in some way other than to further the criminal investigation.

       JDC contends that it produced sufficient evidence of misuse of grand jury
information to warrant, at a minimum, an evidentiary hearing on the matter. At oral
argument JDC conceded that there was no direct evidence of misuse of information
by Special Agent Smith. In addition, most of the arguments advanced by JDC in
support of its request for an evidentiary hearing have no bearing on how Special
Agent Smith may have used the grand jury information that he was privy to, but
instead simply support the premise that Special Agent Smith was in possession of
grand jury materials–something the Government does not dispute. There is no
evidence that Special Agent Smith used grand jury information as part of his work in
the civil investigation. Without evidence that actual misuse has occurred, a court
cannot find a violation of the rule. JDC has failed to produce evidence to establish a
prima facie case of a violation of the rule, and as such the district court did not err in
refusing to grant an evidentiary hearing. See In re Sealed Case, 250 F.3d 764, 770
(D.C. Cir. 2001) (stating that once a prima facie case of a Rule 6(e) violation is
shown, ordinarily the district court must then order an evidentiary hearing); Blalock
v. United States, 844 F.2d 1546, 1551 (11th Cir. 1988) (holding that if there is no
prima facie case of a Rule 6(e)(2) violation, then "the court must dismiss . . . without
an evidentiary hearing"). While we have reviewed the district court's interpretation
of Rule 6(e)(3)(B) de novo, we review the ultimate decision that the Government did
not violate the rule for clear error. Shepard, 462 F.3d at 861. Looking at the record
as a whole, including the fact there is no direct or circumstantial evidence of misuse,
we find no clear error in the district court's determination that no violation occurred
and in its refusal to hold an evidentiary hearing.

     C. Quashing the Subpoenas
     JDC's final argument on appeal is that the district court erred by denying its
motion to quash the early subpoenas issued by the grand jury. JDC's motion focused

                                           -14-
mainly on quashing the subpoenas as a remedy for the alleged Rule 6(e) violation.
Our conclusion that there was no Rule 6(e) violation moots this requested remedy.
However, JDC also briefly asked the court to quash the subpoenas due to the undue
burden placed upon JDC by the requirement for continued compliance and the length
of the investigation. JDC's appeal from the district court's denial of the motion to
quash, as related to any alleged undue burden, is not properly before us. "An order
of a district court denying a motion to quash a grand jury subpoena–that is, an order
requiring compliance with the subpoena–is not immediately appealable." In re Grand
Jury Subpoena Duces Tecum, 112 F.3d 910, 914 (8th Cir.), cert. denied, 521 U.S.
1105 (1997); see also, Cobbledick v. United States, 309 U.S. 323, 327-28 (1940); but
see United States v. Nixon, 418 U.S. 683, 691-92 (1974) (finding that the unique
circumstances of the case allowed an exception to the rule so the President of the
United States could appeal before being cited for contempt). The denial of a motion
to quash a subpoena is not a final order reviewable by this court, as the right of review
attaches only if the target of the subpoena fails to comply and is found in contempt.
See Cobbledick, 309 U.S. at 327-28; In re Grand Jury Subpoena Duces Tecum, 112
F.3d at 914; In re Grand Jury Witnesses, 92 F.3d 710, 712 (8th Cir. 1996) (reviewing
district court's denial of a motion to quash a grand jury subpoena after the targets were
found in contempt); In re Three Grand Jury Subpoenas, 847 F.2d 1024, 1027-28 (2d
Cir. 1988) (holding that a ruling on a citation for contempt is required for appellate
jurisdiction, although the actual imposition of sanctions is not). Because JDC has not
been held in contempt for failing to comply with the grand jury subpoenas, the issue
is not ripe and we dismiss this claim for lack of appellate jurisdiction.

                                         III.
       Accordingly, we dismiss JDC's appeal from the district court's denial of the
motion to quash the subpoenas due to undue burden for lack of jurisdiction; we affirm
the judgment of the district court finding no violation of Rule 6(e) and allowing the
use of ex parte motions without notice; and we remand with instructions for the



                                          -15-
district court to determine the propriety of allowing JDC access to the ex parte
materials.
                       ______________________________




                                      -16-
