Free Order on Motion to Produce - District Court of Arizona - Arizona

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IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

United States of America, Plaintiff, vs. Robert Johnston (1); Donald Smith (2); and Craig Kelly (12), et al., Defendants.

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CR-03-1167-PHX-DGC ORDER ON MOTIONS FOR GRAND JURY TRANS CRIPTS AND TO DIS MIS S FOR MIS CONDUCT BEFORE GRAND JURY

Pending before the Court are motions to produce grand jury transcripts filed by Defendants Robert Johnston, Craig Kelly, and Donald Smith. Docs. ##950, 967, 994. Also pending is a motion t o dis miss indictment for governmental misconduct before the grand jury filed by Defendant Johnston. Doc. #951. T he Government has filed responses and

Defendants have filed replies. Docs. ##1083-84, 1086-87, 1135-36, 1164. For the reasons set forth below, the Court will deny the motions. I. The Motions to Produce Grand Jury Transcripts. A. Legal S tandard.

A request for grand jury information is w ithin the sound discretion of the Court. See United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986). The Court should order disclosure of grand jury trans cripts "when the party seeking them has demonstrated that a `particularized need exists which outweighs the policy of secrecy.'" Id. (quoting

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Pitts bur gh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959)); see Dennis v. United States, 384 U.S. 855, 870 (1966) (affirming the "particularized need" standard). Under Rule 6(e) of the Federal Rules of Criminal Procedure, the Court " may authorize disclosure . . . of a grand-jury matter . . . at the request of a [D]efendant who shows that a ground may exis t to dismiss t he indict ment because of a matter that occurred before the grand jury[.]" Fed. R. Crim. P. 6(e)(3)(E)(ii); see Douglas Oil Co. of Cal. v. Petrol Stops N.W., 441 U.S. 211, 21922 (1979) (discussing the purposes behind grand jury secrecy and stat ing t hat "[p]arties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that t heir request is structured to cover only material so needed."). B. Defendant Kelly's Motion.

Defendant Kelly is charged in count five of the second superseding indict ment with assaulting Daniel Gutierrez with a dangerous w eapon. Doc. #541 at 12-13. Kelly states that he has recently discovered a report of investigation that contains a confession by a M r. M cHugh that M cHugh, not Kelly , as saulted Gutierrez. Doc. #967 at 1, Ex. 1. Kelly contends that "it is almost a certainty that the Government did not present M cHugh's confession to the grand jurors[.]" Id. at 2. Kelly further contends that it is likely that a

G overnment witness made a false statement that was necessary to the grand jurors' finding of probable cause that led to the indictments against him. Id. To the extent K elly seeks the transcripts to challenge the probable cause findings made by the grand juries in this matter, such a challenge would be impermissible. "An indictment cannot be attacked on the ground that the evidence before the grand jury was incomp et ent or inadequate." United States v. Vallez, 653 F.2d 403, 406 (9th Cir. 1981); see United States v. Tham, 665 F.2d 855, 863 (9th Cir. 1981) ("[A] grand jury need not be advised of all matters concerning credibility[.]"); United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir. 1983) ("The prosecutor has no duty to present to the grand jury all matters bearing on credibility of witnesses or any exculpatory evidence.").
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Kelly's desire

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to have the grand jury t ranscripts as a discovery tool to help him prepare a motion to dismiss the indictment does not constitute a particularized need that outweighs the policy of secrecy. See Walczak, 783 F.2d at 857 (affirming denial of a mot ion to discover grand jury transcript because the defendant failed to show a "particularized need" where he merely speculated that fals e t es timony of law enforcement officers was presented to the grand jury); United States v. Proctor & Gam ble, 356 U.S. 677, 681-83 (1958) (holding that the mere show ing of the "relevancy and usefulness" of grand jury transcripts was insufficient to overcome the "long-established policy that maintains the secrecy of grand jury proceedings in federal courts"). Kelly also moves for the disclosure of grand jury transcripts on the ground that the transcripts may serve as the basis for a motion for a Franks hearing. Doc. #967 (citing

Franks v. Delaware, 438 U.S. 154 (1978) (holding t hat under the Fourth Amendment a defendant is entitled to an evidentiary hearing to challenge the legality of a warrant where t he defendant shows that the warrant affidavit contained a falsehood necess ary t o t he probable cause determination supporting the warrant)). Defendant Kelly does not explain,

however, how the grand jury transcripts would support a motion for a Franks hearing. See Doc. #967. Nor does he cite any legal aut hority suggesting that the transcripts should be disclosed to help him prepare such a motion. Rule 6(e) authorizes the disclosure of a grand jury transcripts where a defendant "shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury[.]" Fed. R. Civ. P.

6(e)(3)(E)(ii); see United States v. Murray, 751 F.2d 1528, 1533-34 (9th Cir. 1985) (holding that the "alleged instances of prosecutorial and grand jury misconduct . . . [did] not amount to the particularized need required to outweigh the secrecy of the grand jury proceedings" because the "claimed misconduct would not have compelled the dismissal of t he . . . indictment"). The granting of a mot ion for a Franks hearing would not compel the

dismissal of the indictment. C. Defendant S mith's Motion.

Defendant Smith is charged with violations of the RICO s t at ut e and RICO
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conspiracy in counts one and two of the second superseding indictment, respectively. Doc. #541 at 3-10. Two specific racketeering acts are alleged against Smith: murder during the Laughlin s hoot ing incident and conspiracy to attempted distribute

methamphetamine. Id. ¶¶ 10, 13(a). D efendant Smith contends that the discovery to date does not sup p ort t hes e racketeering acts. Doc. #994 at 6-11, Exs . A -F . Smith states that video footage from the

Harrah's Casino in Laughlin shows that he took no part in the s hoot out . Id. at 7; see Doc. #1014, Ex. X. Smith further states that a report of investigation and elect ronic surveillance show that he did not participate in the methamphetamine transaction involving Defendant Denbesten and a confidential informant and an undercover officer. Docs. ##944 at 8-9,

1164 at 4-5, Ex. A-B. Smith believes that the Government eit her has failed in its disclosure obligat ions or has presented false evidence to the grand juries. Doc. #944 at 10-13. Smit h moves for the disclosure of grand jury transcripts pursuant to Rule 6(e)(3)(E)(ii), claiming that a ground may exist to dismiss the indictment because "`[t]he D ue Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which t he [G ]overnment knows is based partially on perjured testimony.'" Id. at 5 (quoting United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974)). Defendant Smit h has failed to show a particularized need for grand jury transcripts that outweighs the p olicy of secrecy. Smith states that "[i]t is hard to imagine what

evidence was present ed t o the grand juries" and that "the most likely explanation is that the [G]overnment presented [his] guilt . . . through membership and association in the HAM C." Id. at 7. Such speculation is insufficient to obtain t he dis closure of grand jury transcripts under Rule 6(e). See Walczak, 783 F.2d at 857. Defendant Smith's reliance on Basurto is misplaced. The issue in that case w as the duty of a prosecutor upon learning that a witness had perjured hims elf before the grand jury. 497 F.2d at 784. The Ninth Circuit held that the prosecutor has a "duty to immediately inform the court and opposing counsel . . . in order that appropriate action may be t aken." Id. at 786. The Ninth Circuit made clear, however, that without evidence of perjury before
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the grand jury, "no indep endent inquiry may be made to determine the kind of evidence considered by the grand jury in making it s decision." Id. at 785; see Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988) (holding t hat an indict ment valid on its face may not be challenged on the ground that unreliable or incompetent evidence was presented to the grand jury). The Court will deny Smith's motion. D. Defendant Johnston's Motion. t he disclosure of grand jury transcripts on the

Defendant Johnston moves for

ground that the Government presented false evidence to the grand juries in this matter. Doc. #950 at 4. Johnston contends that the G overnment forced confidential informant Id. Johnson further contends that the

Rudolph Kramer to lie before the grand juries.

Government presented to the grand juries Agent Slatella's search warrant affidavit, which states that HAM C officers report back to members about criminal activities discussed at officers' meetings and keep records that indicate proceeds of criminal activities. Id. 1. Kramer's Testimony.

In an October 18, 2005 order, the Court denied Defendant Johnston's initial motion for disclosure of grand jury transcripts because his own evidence showed that Kramer did not lie or sign any false statement s . Doc. #844 at 10 (citing Doc. #707 Ex. A). Johnston Doc. #950 at 4. Johnston, however, has

requests the Court to reconsider that ruling.

presented no new evidence showing that Kramer in fact lied or signed a false statement. See id. The Court w ill deny Defendant Johnston's requests to reconsider its prior ruling. See United States v. Thompson, 493 F.2d 305, 309 & n.4 (9th Cir. 1974) (" T he denial of [defendants'] pretrial motion for disclosure of grand jury t estimony was proper since there was no demonstration of any `particularized need' to examine the testimony[.]"). 2. Agent S latella's Affidavit.

Defendant Johnston argues t hat Agent Slatella's affidavit contains statements that are unsupported by the investigat ion and discovery in this case. Doc. #950 at 6-10.

Johnston contends t hat t he grand jury transcripts are thus germane to providing detailed support for a motion to dismiss based on alleged improprieties occurring before the grand
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juries. Id. at 7. "The general rule in this circuit is that no independent inquiry will be made into the kind of evidence presented to a grand jury[.]" Tham, 665 F .2d at 863 (citing Basurto, 497 F.2d at 785); s ee Vallez, 653 F.2d at 406; Al Mudarris, 695 F.2d at 1185; Bank of Nova Scotia, 487 U.S. at 261. M oreover, D efendant Johnston has failed to show that Agent Johnston's desire to

Slatella's affidavit was presented t o the grand juries in this matter.

have the grand jury transcripts as a discovery tool to help him prepare a motion to dismiss does not constitute a p art icularized need that outweighs the policy of secrecy. See

Proctor & Gamble, 356 U.S. at 681-83; Walczak, 783 F.2d at 857; United States v. Bennett, 702 F.2d 833, 836 (9th Cir. 1983) (holding that the district court properly denied the defendant's motion for disclosure of grand jury transcripts because "[t]he defendant 's assertion that he ha[d] no way of knowing whether prosecutorial misconduct occurred [did] not constitute a particularized need outweighing the need for grand jury secrecy"). The Court will deny Defendant Johnston's motion. II. Defendant Johnston's Motion to Dismiss Indictment. "Dismissal of an indictment is cons idered a `drastic step' and is generally disfavored as a remedy." Guam v. Muna, 999 F.2d 397, 399 (9th Cir. 1993) (quoting United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir. 1985)). Defendant Johnston thus "carries a difficult burden" in challenging the indictment in this matter. Al Mudarris, 695 F.2d at 1184. "He must demonstrate that the prosecutor engaged in flagrant misconduct that deceived the grand jury or significantly impaired its ability to exercise independent judgment." H e also must demonstrate that the misconduct prejudiced him. Id.

See Bank of Nova Scotia,

487 U.S. at 254 ("[A] district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendant s ."); United States v. Venegas, 800 F.2d 868, 869 (9th Cir. 1986) (a defendant who challenges an indictment based on prosecutorial misconduct "bears a heavy burden" and must show that the misconduct was prejudicial). Defendant Johnston contends that his due process rights were violated because the
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Government knowingly presented to the grand juries false testimony from Rudolph Kramer and Agent Slatella. Doc. #951 at 5-9. As explained above, however, Kramer states that he did not lie or sign any false statements. See Doc. #844 at 10 (citing Doc. #707 Ex. A). Defendant Johnston has failed to show that Agent Slatella's affidavit was present ed t o t he grand juries. M oreover, he bas es his contention that the affidavit contains falsehoods

solely on the fact that the discovery to dat e does not support the statements made in the affidavit. Doc. #951 at 7. These arguments do not satisfy Defendant's heavy burden of See Bank of Nova

showing flagrant prosecutorial mis conduct before the grand jury.

Scotia, 487 U.S. at 260-61 (finding no p ros ecutorial misconduct where IRS agents gave misleading and inaccurate summaries to the grand jury); Muna, 999 F .2d at 399 (holding that the district court did not err in refusing to dismiss an indictment on the ground that the prosecut or failed to present exculpatory evidence to the grand jury); Tham, 665 F.2d at 863 (affirming the denial of a motion to dismiss and stating: "We have held that a grand jury need not be advised of all matters concerning credibility, and that dismissal is only required in extreme situat ions , as where the prosecutor knowingly presents perjured testimony."). T he Court will deny Defendant Johnston's motion to dismiss the indictment.

The Court als o w ill deny Defendant Johnston's request for an evidentiary hearing on his motions. See Docs. #950-51. Johnston contends that an evidentiary hearing is

needed to res olve the purported "factual disputes" as to whether Kramer was telling the truth when he stated t hat he did not lie and whether the discovery to date supports Agent Slatella's testimony. Docs. ##1135-36. Johnston es s entially wants to conduct discovery

via an evidentiary hearing. hearing. IT IS ORDERED: 1.

This is an insufficient reason for holding an evidentiary

The motions to produce grand jury transcrip t s filed by Defendants Robert

Johnston, Craig Kelly, and Donald Smith (Docs. ##950, 967, 994) are denied.

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2.

The motion to dismiss indictment filed by Defendant Robert Johnston

(Doc. #951) is denied. DATED this 3rd day of February, 2006.

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