The opinion of the court was delivered by: Lewis T. Babcock, Chief Judge
Defendant Michael G. Bergman ("Bergman") moves for a Hearing to Set Aside judgment and a stay of execution of his conviction for wire fraud and aiding and abetting. Bergman also requests an order to produce the grand jury list for 2002 and 2003. For the reasons discussed below, Bergman's motions are GRANTED, in part and DENIED, in part.
Bergman was indicted September 11, 2002 on multiple counts of wire fraud and bank fraud. On May 20, 2005 Bergman plead guilty to one count of bank fraud and aiding and abetting as part of a plea agreement with plaintiff United States ("Government.") On November 1, 2005, Bergman was sentenced to serve 15 months in federal prison, and to pay $165,000 in restitution. The prison sentence was ordered to commence on November 28, 2005. On November 21, 2005, Bergman filed two motions: one requesting the Grand Jury List for 2002 and 2003 (Docket # 137), and one requesting a Hearing to Set Aside the Judgment and for a Stay of Execution (Docket # 138). On November 28, 2005, Bergman filed a motion to postpone execution of judgment pending a hearing on the motion filed November 21, 2005 (Docket # 140). The Government responded to these motions December 1, 2005. Bergman requested and was granted until January 11, 2006 to submit a reply. As of January 31, 2006, Bergman had not filed a reply with this Court.
A. Motion to Set Aside the Judgment and Stay of Execution
Bergman argues that his constitutional rights were violated because the Grand Jury indictment was signed by a non-existent individual, and that this information was not made available to him prior to his plea agreement. Bergman contends that the grand jury indictment was signed by a "David Haus," and that three investigations Bergman commissioned have concluded that David Haus does not exist. On this basis, Bergman asserts that his plea agreement should be set aside.
The Government raises numerous objections to Bergman's motion. First, the Government asserts that Bergman improperly brings this motion under Fed. R. Civ. P. Rule 60(b), which is inapplicable to criminal cases. Second, the Government argues that this motion is moot because Bergman reported to the Federal Prison Camp in Englewood Colorado on November 28, 2005.
I decline to address these issues and instead address the Government's more important point. The Government stipulates that no one named "David R. Haus" served on the grand jury that indicted Bergman. The Government states that the grand jury foreperson who signed the indictment against Bergman was David R. Hansen, and that Bergman has misread Hansen's signature as "Haus." The Government provides an affidavit from Brenda Sunderland, the grand jury clerk for the United States Attorney's Office during the relevant time period. The affidavit states that Sunderland personally knew Hansen, that she saw Hansen sign his name many times, that she is familiar with his signature and that the signature on the indictments is his signature.
Bergman has not provided his three purported investigative reports to the Court. Also, his motion contends only that these reports show that David R. Haus does not exist, not that Hansen does not exist or that Hansen was not the grand jury foreperson. Bergman has chosen not to reply to the Government's response, even though he was granted the additional time he requested.
I find and conclude that the Government's response adequately addresses the issue underlying Bergman's motion. Without addressing whether Bergman's contentions, if true, would entitle him to the relief he requests, and without addressing whether his motion is moot, I find and conclude that Bergman has not raised any factual dispute about the identity of the grand jury foreperson. The essence of his claim is that David R. Haus is fictitious, but in fact David Hansen signed the indictments. On this basis alone, Bergman's motion for a hearing to set aside judgment and for stay of execution is DENIED.
B. Request for Grand Jury List for Grand Jury 2002 and 2003
Bergman requests the grand jury lists for 2002-2003. Bergman does not specify precisely what lists he is seeking, or for what purpose. I infer, based on Bergman's motion to set aside the judgment, that he requests the grand jury lists in order to ascertain if a David R. Haus actually served on the grand jury which indicted him. While Bergman is correct that under Test v. United States, 420 U.S. 28, 30 (1975), he has "essentially an unqualified right to inspect jury lists," I still must apply this principle to the facts of this case.
The United States Federal District Court for the District of Colorado selects potential jurors from Master Jury Wheels which include names selected from all of the counties in each division of the District. For any given grand jury, this list could total tens of thousands of names. I assume that this is not the list Bergman is seeking. More likely, Bergman seeks the smaller list of approximately 300 names that comprise the population of names from which the grand jury that delivered his indictment was selected. Under the principle of Test, under the federal ...