Summary
holding that the defendant's own evaluation of the evidence which in turn led him to conclude that the grand jury must have been erroneously instructed was insufficient to show a "particularized need" for grand jury transcripts
Summary of this case from United States v. StepanyanOpinion
Cr. No. S-05-0443 WBS.
February 26, 2007
ORDER
On February 9, 2007, the court heard argument on defendant's motion for an order releasing the prosecutor's legal instructions to the grand jury. Daniel J. Broderick, Federal Defender, appeared for defendant; Samuel Wong, Assistant United States Attorney, appeared for the government. Following argument, the government filed supplemental briefing to which defendant has not replied.
I. Background
On October 19, 2005, an indictment was filed, charging Jesus Huiltron Sanchez, Espiridion Valdovinos Lucatero, Francisco Perez Lucatero, and defendant Morales with one count of conspiring to manufacture marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 and one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1).
On October 11, 2006, defendants Sanchez, Espiridion Valdovinos Lucatero, and Francisco Perez Lucatero waived indictment and pleaded guilty to an Information, charging them with one count of violating 18 U.S.C. § 924(c)(1)(A)(i), possession of a firearm, identified as a loaded Stevens Model 987, .22 caliber semi-automatic rifle, serial number E691931, in furtherance of the drug trafficking crimes alleged in the original indictment.
On November 16, 2006, a superseding indictment was returned against defendant. Count one charged him with conspiracy to manufacture at least 1000 marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count two alleged that defendant manufactured at least 1000 marijuana plants in violation of 21 U.S.C. § 841(a)(1). Count three charged defendant with possession of firearms in furtherance of drug trafficking crimes alleged in counts one and two, in violation of 18 U.S.C. § 924(c)(1)(A)(i); the guns were identified as a loaded Stevens Model 987, .22 caliber semi-automatic rifle, serial number E691931 and a loaded Springfield Armory Model M6 Scout, .22 long rifle caliber/.410 gauge, combination rifle and shotgun, serial number unknown.
On December 19, 2006, defendant filed a motion for an order directing the release of the prosecutor's legal instructions to the grand jury.
The co-defendants' plea agreements provide factual background for the motion. When Shasta County law enforcement officials raided a marijuana cultivation site, they found four separate areas. In what is designated area three, officers found defendant, who was arrested, and two other males, who fled, as well as a rifle, serial number E691931. In area one, officers found marijuana, a pellet rifle, and identification documents belonging to co-defendants Sanchez and Espiridion Valdovinos Lucatero. In area four, officers found processed marijuana and marijuana seed and the Springfield Armory Model M6 Scout. See,e.g., Sanchez Plea Agreement, Factual Basis at 13-14 (docket no. 64).
The defense and the government agree that the three co-defendants who pleaded guilty denied knowing defendant. According to the plea agreements, these three defendants worked in the garden along with four others. Id. at 15-16.
II. Analysis
Defendant argues that the government "has not developed or learned of any evidence linking Mr. Morales to any of the weapons located at the marijuana gardens. Thus, the only possible legal theory . . . to justify this additional [§ 924(c) gun] charge isPinkerton conspiratorial liability." Motion at 3. He then argues, in essence, that had the grand jury been instructed onPinkerton liability as interpreted by the Ninth Circuit in United States v. Ruiz, 462 F.3d 1082 (9th Cir. 2006), it would not have indicted him on the gun charges. Accordingly, he asks for a transcript of the prosecutor's instructions to the grand jury as a basis for a motion to dismiss based on prosecutorial misconduct before the grand jury; he argues that prosecutorial misbehavior can usurp the grand jury's role. See United States v. Mechanik, 475 U.S. 66 (1986) (motion to dismiss for violation of Fed.R.Cr. P. 6(d) rendered moot by jury verdict); United States v. Samango, 607 F.2d 877, 882 (9th Cir. 1979) (flagrant misconduct may usurp grand jury's role). However, as the Supreme Court has observed, "only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried." Midland Asphalt Corporation v. United States, 489 U.S. 794, 802 (1989). The Ninth Circuit has noted that:
Pinkerton v. United States, 328 U.S. 640, 645-48 (1946) (creating a rule that makes a conspirator criminally liable for the substantive offenses committed by a co-conspirator when the offenses are reasonably foreseeable and committed in furtherance of the conspiracy).
[T]he prosecutor has no duty to outline all the elements of conspiracy so long as the instructions given are not flagrantly misleading or so long as all the elements are at least implied. Erroneous grand jury instructions do not automatically invalidate an otherwise proper grand jury indictment. Appellants must show the conduct of the prosecutor was so flagrant it deceived the grand jury in a significant way infringing on their ability to exercise independent judgment.United States v. Larrazolo, 869 F.2d 1354, 1359 (9th Cir. 1989) (internal citation quotation omitted).
Rule 6(e) of the Federal Rules of Criminal Procedure codifies the traditional rule of grand jury secrecy, but does not define its outer limits; a release may violate grand jury secrecy even if it does not necessarily violate the rule. In re Special Grand Jury, 674 F.2d 778, 781 (9th Cir. 1982). Under the rule, a court may release grand jury material to a defendant "who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed.R. Cr. P. 6(e)(3)(E)(ii). To justify this release, the defendant must show what has been described as a "particularized need:"
Parties 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 their request is structured to cover only material so needed. Such a showing must be made even when the grand jury . . . has concluded its operations . . .Douglas Oil Co. v. Petrol Stops, 441 U.S. 211, 222 (1979). This showing cannot be based on speculation; "[i]t is not sufficient for [defendant] to assert that he has no way of knowing whether prosecutorial misconduct occurred." United States v. DeTar, 832 F.2d 1110, 1113 (9th Cir. 1987). Moreover, if the request lacks "substantive purpose," it does not meet the standard of particularized need. United States v. Welch, 201 F.R.D. 521, 525 (D. Utah 2001).
The government does not seriously dispute defendant's contention that there is no other way to secure the information he seeks, nor does it suggest that the grand jury was not given any instruction on the gun charge. It does argue, however, that defendant has not overcome the presumption of regularity that attaches to grand jury proceedings. Hamling v. United States, 418 U.S. 87, 139 n. 23 (1974).
Each side offers a case in support of its position. The defense relies on United States v. Peralta, 763 F.Supp. 14 (S.D.N.Y. 1991). During the trial in Peralta, the defense learned that the sole witness before the grand jury was an agent who presented a hearsay account of the crime that differed from the trial testimony of the officer who had actually arrested the defendant. The court ordered the grand jury proceedings transcribed and learned that the U.S. Attorney had given misleading instructions on the concept of constructive possession. Id. at 20. The court found the combination of the improper instruction plus the misleading hearsay testimony, errors "which went both to the quality of the evidence before the grand jury and to the requirements of the legal theory at the core of the government's case," justified dismissal. Id. at 21.
On the other hand, the government notes that in United States v. Elliott, 363 F.Supp.2d 439 (N.D.N.Y. 2005), the defendant sought in camera review of grand jury minutes and dismissal of the indictment. The defendant claimed the indictment was invalid because it did not identify a person with whom the defendant conspired and the only evidence showed that defendant sold drugs to an undercover officer; he surmised that the instructions to the grand jury must have been invalid. Id. at 451-52. The court rejected the request for release of the minutes because defendant's request was based only on speculation.
Similarly, in United States v. Winchester, 407 F.Supp. 261, 277 (D. Del. 1975), the defendant sought release of grand jury instructions on the ground that it would have been difficult for the grand jury to have returned so voluminous an indictment within the short period it was under consideration without simply relying on the prosecutor's summaries. The court rejected the request, finding that its speculative nature did not overcome the presumption of regularity accorded to grand jury proceedings. Id. at 278.
In United States v. Abrams, 539 F.Supp. 378 (S.D.N.Y. 1982), the court rejected the defendants' request for release of the instructions to the grand jury, noting that
[t]he presumption of the regularity of the grand jury's proceedings would lead one to assume that the grand jury understood the elements of all the offenses charged, and returned an indictment only on those counts for which it found sufficient probable cause.Id. at 389.
Release of grand jury instructions may be proper when the Supreme Court has altered precedent upon which instructions were based. United States v. Mariani, 7 F.Supp.2d 556, 568 (M.D. Pa. 1998). Nothing in United States v. Ruiz changed the law ofPinkerton liability and constructive possession. Instead, the case applied familiar principles to a specific set of facts and did not suggest that standard instructions on the two concepts given during trial were inadequate. See 462 F.3d at 1087.
In this case, the court does not find that the defendant has overcome the presumption of regularity in this case. His request for release of the grand jury instructions is based on his own evaluation of the evidence, which he finds insufficient in light of Ruiz, which in turn leads him to conclude that the instructions must have been misleading in order for the grand jury to have returned an indictment. This sort of deductive reasoning is insufficient to overcome the presumption of regularity. Indeed, as in Ruiz, a properly instructed jury, grand or petit, may return an indictment or a verdict later found to be insufficient.
This case is unlike United States v. Peralta, 763 F.Supp. at 14, upon which defendant relies. Although the court in that case was troubled by the inadequate instructions on constructive possession given to the grand jury, it ultimately dismissed the indictment based on the combined impact of the instructions and the problematic hearsay evidence presented to the grand jury.
As a final matter, defendant suggests that he need not make a showing of particularized need at all, because the instructions are not covered by grand jury secrecy. Motion at 7-8. He relies on United States v. Alter, 482 F.2d 1016, 1029 n. 21 (9th Cir. 1973), which noted that "the proceedings before the grand jury are secret, but the ground rules by which the grand jury conducts those proceedings are not." Ultimately, the court declined to address Alter's complaint of errors in the instructions to the grand jury, which appeared to focus on the court's general instructions about the rights of witnesses and on the role of the grand jury. Id. This case provides little support for defendant's claim that the prosecutor's legal instructions are similarly not covered by grand jury secrecy. Compare In Re Grand Jury Investigations, 903 F.2d 180, 182 (3d Cir. 1990) (grand jury secrecy designed to protect the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process).
Accordingly, defendant's request for release of the grand jury instructions is denied.
IT IS SO ORDERED.