United States District Court, D. Colorado
ORDER DENYING MOTION FOR DISCLOSURE OF GRAND JURY
COLLOQUY AND INSTRUCTIONS
William J. Martinez, United States District Judge.
The
Government variously charges Defendants with conspiracy to
commit procurement fraud (18 U.S.C. § 371),
participation by an executive branch employee in a matter
affecting the employee's financial interest (18 U.S.C.
§ 208), unlawful disclosure of procurement information
(41 U.S.C. § 2102(a)), unlawful receipt of procurement
information (41 U.S.C. § 2102(b)), and concealment of a
material fact from a government official (18 U.S.C. §
1001).
Previously,
the Court authorized the Government to disclose to Defendants
the transcripts of testimony given before the grand jury, and
accompanying exhibits. (ECF No. 112.) Currently before the
Court is Defendants' Joint Motion for Early Disclosure of
Grand Jury Colloquy and Instructions. (ECF No. 145.)
Defendants thus seek the only portions of the grand jury
materials that have not yet been disclosed to them. The
Government opposes. (ECF No. 153.)
To
protect the independence of the grand jury, and to encourage
forthrightness in grand jury proceedings, those proceedings
are usually kept secret. Pittsburgh Plate Glass Co. v.
United States, 360 U.S. 395, 399-400 (1959). “It
does not follow, however, that grand jury [materials] should
never be made available to the defense.” Id.
at 400. Nonetheless, the defendant bears the burden
demonstrate “a particularized need” that
“outweighs the policy of secrecy.” Id.
(internal quotation marks omitted).
Defendants
say they have a particularized need because, in their view,
“[t]he grand jury materials . . . provided to date
leave sincere doubt as to whether the grand jury was
instructed as to all essential elements of the
crimes charged.” (ECF No. 145 at 8 (underscoring in
original).) Specifically, they believe that the grand jury
may not have been instructed about the need to consider
whether procurement information was exchanged for a thing of
value or for competitive advantage, about the proper mens
rea for the crimes charged, and about the difference
between lawful and unlawful communication with the government
official when pursuing a government contract. (Id.
at 8-11.)
Defendants
say they need the colloquy transcript and the jury
instructions because, without them, they “will not be
able to effectively investigate possible constitutional
challenges to the grand jury process, including whether the
grand jurors were informed of all necessary elements for the
crimes charged.” (ECF No. 145 at 11.) But Defendants
apparently do not believe that the colloquy and instructions
will confirm their theories. Rather, Defendants
believe the withheld materials “may show that there is
no need for the defense to file certain motions,
” because those materials may show that the jury was
properly instructed. (Id. (emphasis added); see
also id. at 8 (“It is possible, however, that the
Government instructed the grand jury on these elements or
explain the need for such findings during colloquy and
instructions.”).)
The
Court appreciates Defendants' desire to minimize motion
practice, but Defendants do not cite, nor could the Court
locate, any case holding that Defendants' desire to know
whether an undisclosed portion of the grand jury materials
undermines a theory of grand jury misconduct is a
“particularized need, ” much less a
particularized need sufficient to overcome the presumption of
secrecy. If Defendants suspect that the disclosed portions of
the grand jury materials show misconduct meriting dismissal
of the indictment, and if the Government is unwilling to
agree to disclose other grand jury materials that could
conceivably dispel the suspicion, the answer is to file a
motion to dismiss the indictment and force the
Government's hand (assuming the Government has any cards
to play).
A
motion to dismiss the indictment would also have the salutary
effect of properly framing the “particularized
need” standard in these circumstances. Dismissal of an
indictment based on alleged failings in the grand jury
process is difficult to obtain. See, e.g.,
United States v. Buchanan, 787 F.2d 477, 487 (10th
Cir. 1986) (“An indictment may be dismissed for
prosecutorial misconduct so flagrant that there is some
significant infringement on the grand jury's ability to
exercise independent judgment. [¶] Challenges going only
to the instructions given to the grand jury as to the
elements of the offenses are not grounds for dismissal of an
indictment that is valid on its face.” (citation
omitted)). A motion to dismiss the indictment could therefore
assist the Court in determining whether the alleged failings
are prima facie egregious enough that further
disclosure of grand jury materials might be warranted.
But
whether Defendants move to dismiss the indictment or not,
they have failed to state a particularized need for the grand
jury colloquy and instructions. Accordingly, Defendants'
Joint Motion for Early Disclosure ...