United States District Court, D. Colorado
ORDER GRANTING DEFENDANT PONLUE PIM'S MOTION FOR DISCLOSURE OF ALL GRAND JURY TRANSCRIPTS AND MATERIALS AND DENYING WITHOUT PREJUDICE DEFENDANT PIRUN PIM'S MOTIONS
WILLIAM J. MARTÍNEZ, District Judge.
Defendants Dien Le, Ponlue Pim, Pirun Pim, Ricky Pim, Kenneth Barnes, and Pim Inc. LLC are facing criminal charges related to their possession of "spice", which is allegedly a chemical analogue to a substance listed in the Controlled Substances Act. Before the Court are the following Motions: (1) Ponlue Pim's Motion for Disclosure of all Grand Jury Transcripts and Materials (ECF No. 187); (2) Pirun Pim's Motion for Disclosure of Grand Jury Materials (ECF No. 183); and (3) Pirun Pim's Motion to Dismiss-Unnecessary Delay in Presentation to Grand Jury (ECF No. 184).
I. PROCEDURAL HISTORY
On July 10, 2013, the grand jury returned a thirteen-count Indictment charging Defendants Dien Lee, Ponlue Pim, Pirun, Ricky Pim, and Kenneth Barnes with conspiracy to manufacture, possess with intent to distribute, and distribute a synthetic cannabinoid controlled substance called JWH-018 between October 2012 and April 2013. (ECF No. 2.) The other counts of the Indictment charged individual Defendants with possessing JWH-018 with the intent to distribute on various dates during the time frame of the overall conspiracy. ( Id. )
The grand jury returned a seven-count Superseding Indictment on August 21, 2013. (ECF No. 81.) The Superseding Indictment charged the same Defendants with conspiracy to manufacture, possess with intent to distribute, and distribute "mixtures and substances containing detectable amounts of XLR11 which... is an controlled substance analogue of JWH-018... also known as synthetic cannabinoid substance and Spice'" between October 2012 and July 2013. ( Id. ) The remaining six counts charged individual Defendants with possession and distribution of XLR11 on various dates during the time frame of the conspiracy. ( Id. )
On December 18, 2013, the grand jury returned a nine-count Second Superseding Indictment, which charged the same Defendants with manufacturing, possessing with intent to distribute, and distributing between October 2012 and July 2013 "mixtures and substances containing detectable amounts of XLR11 and PB-22 which... are controlled substance analogues of a Schedule I substance, commonly referred to as synethic cannbinoid controlled substance and Spice'". (ECF No. 161.) Seven of the other counts charged various Defendants with possession of XLR11 on various dates during the conspiracy, while Count Nine charged Defendants with possession of PB-22. ( Id. ) The Second Superseding Indictment added a claim for co-conspirator liability under the Pinkerton theory of liability. ( Id. at 5.)
A ten-count Third Superseding Indictment was returned by the grand jury on January 28, 2014. (ECF No. 176.) The Government characterizes the Third Superseding Indictment as a "speaking Indictment", which contains an introduction, description of the parties, and list of overt acts for the charges. ( Id. at 2-5.) The Third Superseding Indictment adds Pim Inc. LLC as a Defendant. ( Id. at 1.) It also completely changes the nature of the overarching count, Count One. In the first three Indictments, Count One charged Defendants with conspiracy to manufacture, possess with intent to distribute, and distribute a controlled substance or controlled substance analogue. In the Third Superseding Indictment, Count One still charges this drug conspiracy, but also adds a charge for conspiracy to defraud the United States Food and Drug Administration. ( Id. at 4.) Counts Two through Nine of the Third Superseding Indictment are the same as in the Second Superseding Indictment. ( Id. at 16-20.) Count Ten is another new charge, alleging that Ponlue Pim made false statements to agents for the Department of Homeland Security on July 19, 2013. ( Id. at 21.)
All Defendants have been arraigned on each of these Indictments and entered pleas of not guilty to all charges. (ECF No. 185.)
II. MOTIONS FOR DISCLOSURE
Defendants Ponlue Pim and Pirun Pim both move for disclosure of all materials presented to the grand jury, and the transcripts of those proceedings. (ECF Nos. 183 & 187.) Because the Court finds that Ponlue Pim has established good cause to warrant disclosure of the requested materials, the Court will address only the arguments raised in his Motion.
The Supreme Court has consistently "recognized that the proper functioning of the grand jury system depends upon the secrecy of the grand jury proceedings." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 (1979). "Secrecy, however, is not absolute." In re Special Grand Jury 89-2, 143 F.3d 565, 569 (10th Cir. 1998). Under Federal Rule of Criminal Procedure 6(e)(3)(E), a court may order disclosure of grand jury material "preliminarily to or in connection with a judicial proceeding" or "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".
A district court has substantial discretion to determine whether grand jury transcripts should be released. See Douglas Oil, 441 U.S. at 223 (1979). To warrant disclosure, a party must show the following: (1) that the material they seek is needed to avoid a possible injustice in another judicial proceeding; (2) that the need for disclosure is greater than the need for continued secrecy; and (3) that their request is structured to cover only material so needed. Id. at 222. The Court will consider each of these elements below.
A. Particularized Need for Grand Jury Materials and Transcripts
To satisfy the first prong, a defendant must identify a "particularized need" for the grand jury materials. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399 (1959). To meet this burden, Defendant argues that he needs access to the grand jury transcripts and materials to challenge the manner in which this case has progressed through the four Indictments. (ECF No. 187 at 5.) Defendant points out that, while he is now charged with possession of two controlled substance analogues, the original Indictment charged him with possession of JWH-018, which is actually listed in the Controlled Substances Act. ( Id. ) Defendant also contends that there is significant disagreement as to whether XLR11 and PB-22-the two chemicals named in the later Indictments-are analogues to JWH-018. ( Id. at 6.) ...