Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona KEITH E. VERCAUTEREN Assistant U.S. Attorney Arizona State Bar No. 013439 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Craig T. Kelly, Defendant. The United States of America, by and through counsel undersigned, hereby submits its UNITED STATES' RESPONSE TO DEFENDANT KELLY'S MOTION TO PRODUCE GRAND JURY TRANSCRIPTS No. CR-03-1167-12-PHX-DGC

14 Response to Defendant CRAIG T. KELLY's Motion to Produce Grand Jury Transcripts. The 15 United States requests that this Court deny Defendant KELLY's motion as supported by the 16 attached Memorandum of Points and Authorities. 17 18 19 20 21 22 23 24 25 26 27 28 s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney Respectfully submitted this 17th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

Case 2:03-cr-01167-DGC

Document 1083

Filed 01/17/2006

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1 2 I. FACTS 3

MEMORANDUM OF POINTS AND AUTHORITIES

On October 22, 2003, sixteen members of the Hells Angels Motorcycle Club (HAMC) were

4 indicted by a federal grand jury with six counts charged. On September 30, 2004, the same 5 sixteen members of the Hells Angels Motorcycle Club (HAMC) were indicted by a federal grand 6 jury in the first superseding indictment with eight counts charged. On January 19, 2005, the 7 same sixteen members of the Hells Angels Motorcycle Club (HAMC) were indicted by a federal 8 grand jury in the second superseding indictment with forty-three counts charged. 9 II. LEGAL ANALYSIS 10 11 A. Historical Perspective of Grand Juries Grand jury proceedings were secret when the grand jury process was imported into this

12 country from England, and the rule of secrecy has always been a part of our federal common law 13 and an integral part of our criminal justice system. Douglas Oil v. Petrol Stops Northwest, 441 14 U.S. 211, 218 (1979). 15 16 17 18 19 First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. Id. at 219. Thus, the longstanding rule of grand jury secrecy serves both public and private

20 interests, and it was codified by Rule 6(e) of the Federal Rules of Criminal Procedure. It is clear, 21 in light of efforts by the media to obtain access to grand jury information generated as a part of 22 the Starr Independent Counsel investigation, that any prior common law right or claim to access 23 to these matters was supplanted by Rule 6(e)(5) and 6(e)(6). In re Motions of Dow Jones & Co., 24 142 F.3d 496 (U.S.App.D.C. 1998). 25 B. Statutory Authority

26 The Federal Rules of Criminal Procedure, Rule 6(e)(1) provides: 27 28 (e) Recording and Disclosing the Proceedings. (1) Recording the Proceedings. Except while the grand jury is deliberating or voting, all proceedings must be recorded by a court reporter or by a suitable
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recording device. But the validity of a prosecution is not affected by the unintentional failure to make a recording. Unless the court orders otherwise, an attorney for the government will retain control of the recording, the reporter's notes, and any transcript prepared from those notes.

5 The Federal Rules of Criminal Procedure, Rule 6(e)(3)(E)(i) and (ii) provide: 6 7 8 9 10 11 12 (3) Exceptions. (E) The court may authorize disclosure--at a time, in a manner, and subject to any other conditions that it directs--of a grand-jury matter: (i) preliminarily to or in connection with a judicial proceeding; (ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury;

13 The Federal Rules of Criminal Procedure, Rule 6(e)(6) provides: 14 15 16 17 18 (6) Sealed Records. Records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury. C. Judicial Interpretation A court may permit disclosure of grand jury materials under Rule 6(e)(3)(C)(i) [renumbered

19 as 6(e)(3)(E)(i) in 2002 Amendment] only when the requesting party has demonstrated a 20 "particularized need" for the material. The particularized need standard was defined in Douglas 21 Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979). Under the standard, the movant must 22 demonstrate that the material sought is: [N]eeded to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that [the] request is 24 structured to cover only material so needed. . . . [Moreover], in considering the effects of disclosure of grand jury proceedings, the courts must consider not only the immediate 25 effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. 26 Id. at 222; see also United States v. Procter & Gamble, 356 U.S. 677, 682 (1958); United States 27 v. Perez, 67 F.3d 1371, 1381 (9th Cir. 1995). 28 If the court concludes that disclosure is warranted, it must be limited to only that material
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1 for which particularized need has been shown. Douglas Oil Co., 441 U.S. at 222; see also United 2 States v. Fischbach and Moore, Inc., 776 F.2d 839, 845-46 (9th Cir. 1985); United States v. 3 Liuzzo, 739 F.2d 541, 545 (11th Cir. 1984); United States v. Sobotka, 623 F.2d 764, 768 (2d Cir. 4 1980); Allis-Chalmers Mfg. Co. v. City of Fort Pierce, Fla., 323 F.2d 233, 242 (5th Cir. 1963). 5 Further, any disclosure "may include protective limitations on the use of the disclosed material." 6 Douglas Oil Co., 441 U.S. at 223. The party seeking disclosure has the burden of proof with 7 regard to establishing particularized need. Id. The district court that determines whether there 8 is "particularized need" is vested with substantial discretion in resolving the matter. See In re 9 Sealed Case, 801 F.2d 1379, 1381 (D.C. Cir. 1986); In re Federal Grand Jury Proceedings, 760 10 F.2d 436, 439 (2d Cir. 1985); In re Grand Jury Proceedings GJ-76-4 & GJ-75-3, 800 F.2d 1293, 11 1299 (4th Cir. 1986); In re Antitrust Grand Jury, 805 F.2d 155, 161 (6th Cir. 1986); United 12 States v. Peters, 791 F.2d 1270, 1284 (7th Cir. 1986); United States v. Benson, 760 F.2d 862, 13 864 (8th Cir. 1985); United States v. Murray, 751 F.2d 1528, 1533 (9th Cir. 1985); United States 14 v. Warren, 747 F.2d 1339, 1347 (10th Cir. 1984). 15 Disclosure will not be allowed upon a mere showing of relevance, nor for general discovery.

16 See United States v. Procter & Gamble, 356 U.S. 677 (1958); Hernly v. United States, 832 F.2d 17 980, 984-85 (7th Cir. 1987); Thomas v. United States, 597 F.2d 656, 658 (8th Cir. 1979); Petrol 18 Stops Northwest v. United States, 571 F.2d 1127, 1129 (9th Cir. 1978), rev'd on other grounds, 19 Douglas Oil Co., at 211. In most cases, convenience, avoidance of delay, the complexity of the 20 case, the passage of time, and expense also are insufficient reasons to justify disclosure. See 21 Smith v. United States, 423 U.S. 1303, 1304 (1975); United States v. Procter & Gamble, 356 22 U.S. 677, 683 (1958); United States v. Sobotka, 623 F.2d 764, 767 (2d Cir. 1980); In re Grand 23 Jury Matter, 697 F.2d 511, 513-14 (3d Cir. 1982); In re Disclosure of Evidence, 650 F.2d 599, 24 602 (5th Cir. Unit B 1971) (per curium) modified on other grounds, 662 F.2d 362 (5th Cir. Unit 25 B 1981); In re Holovachka, 317 F.2d 834, 837-38 (7th Cir. 1963), aff'd, 463 U.S. 418 (1983); In 26 re Sells, 719 F.2d 985 (9th Cir. 1983); United States v. Liuzzo, 739 F.2d 541, 545 (11th Cir. 27 1984). 28 Generally, the most significant consideration that survives the termination of the grand jury
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1 investigation is that secrecy encourages witnesses to testify fully and honestly without fear of 2 retribution. This consideration should be given significant weight regardless of the status of the 3 investigation. See United States v. Sobotka, 623 F.2d 764, 767 (2d Cir. 1980); Illinois v. 4 Sarbaugh, 552 F.2d 768, 775 (7th Cir. 1977); Petrol Stops Northwest v. United States, 571 F.2d 5 1127, 1128-29 (9th Cir. 1978), rev'd on other grounds sub nom., Douglas Oil Co., 441 U.S. 211 6 (1979). 7 An indictment may not be dismissed on the ground that incompetent or inadequate evidence

8 was presented to the grand jury. See United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir. 9 1983); Guam v. Muna, 999 F.2d 397, 399 (9th Cir. 1993) (holding that the district court did not 10 err in failing to dismiss an indictment on the ground that the prosecutor failed to present 11 exculpatory evidence to the grand jury); United States v. Basurto, 497 F.2d 781, 784 (9th Cir. 12 1974) ("It is clear . . . that when a duly constituted grand jury returns an indictment valid on its 13 face, no independent inquiry may be made to determine the kind of evidence considered by the 14 grand jury in making its decision."). Moreover, a defendant's desire to have the grand jury 15 transcripts as a discovery tool to help him prepare a motion to dismiss does not constitute a 16 particularized need that outweighs the policy of secrecy. See Douglas Oil, 441 U.S. at 222; 17 Bennett, 702 F.2d at 836; Thompson, 493 F.2d at 309. 18 19 D. Legal Argument The defendant has failed to meet the prerequisite showing set forth in the Federal Rules of

20 Criminal Procedure, Rule 6(e)(3)(E)(i) and (ii). The Federal Rules of Criminal Procedure, Rule 21 6(e)(3)(E)(i) and (ii), as well as established case law hold that transcripts of grand jury 22 proceedings may be disclosed, but only upon a showing of particularized need that grounds may 23 exist for a motion to dismiss the indictment resulting from the grand jury proceedings. 24 Defendant KELLY claims he is entitled to the Grand Jury transcripts based on information

25 that another person (McHugh) admitted to assaulting Daniel Gutierrez. Defendant then assumes 26 that an agent might have testified that KELLY actually assaulted this victim before the Grand 27 Jury. Defendant KELLY does not consider the possibility that he can be involved in an assault 28 of a person without being the person who physically assaulted the victim. Even if defendant
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1 KELLY received the Grand Jury transcript, and the McHugh confession was not mentioned 2 therein, that information could not lead to a dismissal of the indictment. An indictment may not 3 be dismissed on the ground that incompetent or inadequate evidence was presented to the grand 4 jury. See United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir. 1983); Guam v. Muna, 999 5 F.2d 397, 399 (9th Cir. 1993) (holding that the district court did not err in failing to dismiss an 6 indictment on the ground that the prosecutor failed to present exculpatory evidence to the grand 7 jury). 8 Defendant KELLY also complains that the McHugh ROI was hidden within the pen register

9 data. The United States already explained to this Court and the defense on the record that this 10 labeling of the McHugh ROI within the pen register data was a defense and APEX labeling 11 issue, and not by any misdeeds by the United States. (See Attachment A). As the United States 12 explained on October 21, 2005, undersigned counsel provided the defense with 1½ boxes of pen 13 register data. The United States placed additional discovery on top of the ½ filled box and 14 explained to defense counsel Russo the contents of said material. The United States also 15 provided a list of the materials that were contained in these two boxes to the defense, which 16 included the fact that there was an interview with McHugh in these materials. 17 Additionally, some of the information contained within the Grand Jury transcripts include

18 testimony of witness statements that are part of the protective orders granted by this Court. 19 Some of these statements have been ordered by this Court to be disclosed on March 10, 2006. 20 If the defendants received the Grand Jury transcripts prior to March 10, 2006, the purpose for 21 these protective orders would have no effect. 22 The United States is well aware of its obligation to provide grand jury transcripts of any

23 witness who testified before the grand jury and will also testify at trial in this case. Those 24 transcripts will be provided to defense with other Jencks Act materials prior to trial in 25 accordance to this Court's prior Orders. The defendants have failed to show any particularized 26 need of why they need any grand jury transcripts at this time. 27 Defendant has previously filed several Motions to Disclose Grand Jury Transcripts. The

28 United States has responded to these motions. This Court has denied the requests in Orders
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1 dated December 21, 2004, and October 12, 2005. The refiling of the current Motion to Produce 2 Grand Jury Transcripts is simply restating the same issue by the defendant that has been ruled 3 on by this Court. 4 III. CONCLUSION 5 The defendant has failed to meet the prerequisite showing set forth in the Federal Rules of

6 Criminal Procedure, Rule 6(e)(3)(E)(i) and (ii). Therefore, the United States respectfully 7 requests that the defendant's Motion to Produce Grand Jury Transcripts be denied. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney Respectfully submitted this 17th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

Case 2:03-cr-01167-DGC

Document 1083 7 Filed 01/17/2006

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1 I hereby certify that on January 17, 2006, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Joseph E. Abodeely, [email protected], [email protected] 5 David Zeltner Chesnoff, [email protected] 6 Carmen Lynne Fischer, [email protected], [email protected] 7 Patricia Ann Gitre, [email protected], [email protected] 8 Alan Richard Hock, [email protected] 9 Thomas M Hoidal, [email protected], [email protected] 10 Barbara Lynn Hull, [email protected] 11 12 David M Ochoa, [email protected] 13 Jose S Padilla, [email protected], [email protected] 14 Mark A Paige, [email protected] 15 James Sun Park, [email protected], [email protected],[email protected] 16 C Kenneth Ray, II, [email protected] 17 Brian Fredrick Russo, [email protected], [email protected] 18 Michael Shay Ryan, [email protected], [email protected] 19 Philip A Seplow, [email protected], [email protected] 20 Robert Storrs, [email protected], [email protected] 21 s/ Keith Vercauteren 22 KEITH E. VERCAUTEREN 23 24 25 26 27 28

Case 2:03-cr-01167-DGC

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