United States District Court, D. Colorado
OPINION AND ORDER OVERRULING OBJECTIONS AND ADOPTING
RECOMMENDATIONS
MARCIA
S. KRIEGER SENIOR UNITED STATES DISTRICT JUDGE.
THIS
MATTER comes before the Court pursuant to
Recommendations (# 110, 112 in 18-cr-201;
# 209, 211 in 18-cr-202) by the Magistrate
Judge with regard to various pending motions in each case.
Mr. Seltzer filed Objections (# 117, 118 in
18-cr-201; # 220, 221 in 18-cr-
202)[1]
to one aspect of the Magistrate Judge's Recommendation,
relating to his possession of Grand Jury transcripts. In all
other respects, more than 14 days have passed since service
of the Recommendations on the Defendants, and no Defendant
has objected to any other component of those Recommendations.
Turning
first to the un-objected to portions of the Recommendation,
when no party files timely objections to a Recommendation,
the Court reviews that Recommendation under whatever standard
of review it deems appropriate. Summers v. State of
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).
Here, the Court has reviewed the Magistrate Judge's
Recommendations under the otherwise applicable “clearly
erroneous or contrary to law” standard of 28 U.S.C.
§ 636(b)(1)(A). Upon such review, the Court finds no
error of law or fact by the Magistrate Judge. Thus, the Court
adopts the Recommendations found at Docket # 110 in the
18-cr-201 case and Docket #209 in the 18-cr-202 case and
disposes of the motions identified therein as recommended by
the Magistrate Judge.
Mr.
Seltzer Objections relate to the Magistrate Judge's
Recommendations (# 112 in 18-cr-201;
# 211 in 18-cr-202) that Mr. Seltzer's
Motion [. . .] To Be Allowed to Possess Grand Jury Testimony
(# 109 in 18-cr-201; # 208
in 18-cr-202) be denied. More specifically, the Magistrate
Judge has previously granted requests by Mr. Seltzer
(# 27 in 18-cr-201; # 116
in 18-cr-202) to have access to and review the Grand Jury
transcripts, but has ruled that Mr. Seltzer is “not
allow[ed] to retain copies of any grand jury materials”
outside the presence of his counsel or a court-appointed
investigator. After discharging his attorney and electing to
proceed pro se, Mr. Seltzer then filed motions
(# 109 in 18-cr-201; # 208
in 18-cr-202), in which he requested modification of that
prior order, allowing him to “possess in [his]
permanent possession a copy of the grand jury
transcripts.” Mr. Seltzer explained that he needed the
Grand Jury materials in order to explore the potential of any
issues arising under Franks v. Delaware. In his
Recommendations on Mr. Seltzer's motions, the Magistrate
Judge found that Mr. Seltzer had sufficient access to the
transcripts by being able to review them in the presence of
his investigator (who remains available to him), but that
“due to the investigative methods regarding
confidential sources set forth in the transcripts, the actual
transcripts may not remain in [Mr. Seltzer's]
custody.” The Magistrate Judge found that this
“strikes the appropriate balance between protection of
sources and methods and allowing [Mr. Seltzer] sufficient
time and access to plan and prepare his defense.” The
Magistrate Judge specifically responded to Mr. Seltzer's
contention that he wished to “compare the transcripts,
side-by-side, with other evidence” (including video
recordings), finding that “nothing in the Court's
current Order prevents or inhibits such comparison.”
The Magistrate Judge also noted that, to the extent Mr.
Seltzer wished to compare the Grand Jury transcripts to audio
or video evidence that had been disclosed, Mr. Seltzer's
ability to access that audio and video evidence was similarly
limited, “for safety purposes, ” to times when
his investigator was present. Accordingly, the Magistrate
Judge recommended that Mr. Seltzer's motions be denied.
Mr.
Seltzer filed timely Objections to those Recommendations. Mr.
Seltzer's Objections do not point to any particular
mistake of law or fact made by the Magistrate Judge. Indeed,
Mr. Seltzer's Objections largely repeat that he is
requesting his constant possession of the Grand Jury
materials “so that he may compare [them] to statements
by [government agents] throughout the discovery, ” as
well as to “audio/video.” He complains that the
process of comparing the transcripts to the other evidence is
time-consuming and that his “investigator hasn't
that much time.” Mr. Seltzer also argues that he as a
“particularized need” for access to the
transcripts.
This
Court reviews non-dispositive recommendations by the
Magistrate Judge to determine whether they are “clearly
erroneous or contrary to law.” 28 U.S.C. §
636(b)(1)(A). A recommended ruling is “clearly
erroneous” where, after reviewing the entirety of the
evidence, this Court is “left with the definite and
firm conviction that a mistake has been committed.”
Allen v. Sybase, Inc., 468 F.3d 642, 659
(10th Cir. 2006).
The
Court finds no error, clear or otherwise, in the Magistrate
Judge's Recommendation that Mr. Seltzer's request for
continuous possession of the Grand Jury transcripts be
denied. Mr. Seltzer is detained pending trial in this matter,
and that detention presents special security concerns that
attach to Mr. Seltzer's possession (and potential
dissemination) of Grand Jury materials. As requested by Mr.
Seltzer, both the Magistrate Judge and this Court engaged in
an in camera review of the Grand Jury materials
(# 111 in 18-cr-201; # 210
in 18-cr-202). Those materials reveal the existence of
various confidential sources that assisted with the
investigation of the crimes alleged in these cases, as well
as investigatory methods used by law enforcement. As the
Magistrate Judge noted, disclosure of these sources and
methods within the jail environment where Mr. Seltzer is
housed can compromise the safety of the sources (who,
although anonymous, could still be identified based on their
actions and be subjected to exposure or retaliation by
persons to whom Mr. Seltzer discloses such information) or
hinder the efficacy of the investigatory methods that law
enforcement might currently be using in other investigations
or may use in the future. Thus, the government has a
significant interest in limiting Mr. Seltzer's ability to
possess and disseminate the Grand Jury transcripts within the
jail environment.
Admittedly,
Mr. Seltzer has a strong interest in being able to mount a
complete and effective defense to the charges against him,
and the Court has previously found that that interest
includes being able to review the Grand Jury transcripts.
Thus, a balance must be stricken between Mr. Seltzer's
need to have maximum opportunity to review and evaluate the
transcripts and the government's interest in avoiding
unnecessary dissemination of the transcripts by Mr. Seltzer
in the jail. The restrictions initially placed on the
production of the transcripts - that Mr. Seltzer could review
them, but only in the presence of his attorney or
investigator and that Mr. Seltzer could not retain possession
of the transcripts when he returned to his cell - was a
reasonable way of striking that balance, and indeed, is
consistent with the general practice employed in most
criminal cases in this Court where Grand Jury materials are
disclosed.
Nothing
in Mr. Seltzer's motion or objections warrants deviating
from that procedure. Mr. Seltzer may be correct that his time
with his investigator - and thus, his time with the Grand
Jury transcripts - is limited, but that situation is no
different than the situation that existed when the Court
first ordered that the transcripts would remain in the
possession of Mr. Seltzer's then-counsel. A detained
defendant's time to meet with and confer with his counsel
is similarly limited. Mr. Seltzer's decision to proceed
pro se does not reduce the risk of improper
dissemination of the transcripts (if anything, the lack of
attorney oversight perhaps increases that risk), and
thus, does not justify a loosening of the restrictions on Mr.
Seltzer's possession of the transcripts. And although the
Court is sympathetic to Mr. Seltzer's realization that
preparation of a defense is a time-consuming process - one
whose demands might exceed the amount of time Mr. Seltzer is
afforded with the discovery materials - that situation is one
of the many unique challenges that are inherent when a
detained defendant nevertheless wishes to proceed pro
se (and one whose existence was explained to Mr. Seltzer
when he requested to proceed pro se). But again, Mr.
Seltzer's decision to proceed pro se does not
entitle him to greater latitude than the Court would
otherwise grant him; to hold otherwise would effectively
encourage defendants to proceed pro se in order to
obtain such privileges. Accordingly, this Court finds no
error in the Magistrate Judge's conclusion that Mr.
Seltzer has not shown any good cause for modifying the
existing order that limits his access to the Grand Jury
materials to those circumstances where his investigator is
also present. Thus, Mr. Seltzer's Objections are
overruled and the Court adopts the Magistrate Judge's
Recommendation that his motions be denied.
For the
foregoing reasons, the Court OVERRULES Mr.
Seltzer's Objections (# 117, 118 in
18-cr-201; # 220, 221 in 18-cr-202) and
ADOPTS all of the Recommendations (#
110, 112 in 18-cr-201; # 209, 211
in 18-cr-202) of the Magistrate Judge. Pursuant to those
Recommendations:
• In the 18-cr-201 case, Mr. Seltzer's Motion for
Continuance (# 108) is
GRANTED, [2]and trial in that case is set for
April 6, 2020 at 8:30 a.m.
in the Grand Junction Courthouse, with a Pretrial Conference
set for April 2, 2020 at 3:30
p.m. in Courtroom 901 in the Arraj Courthouse in
Denver. Mr. Seltzer's Motion to Possess Grand Jury
Material (# 109) is GRANTED IN
PART and DENIED IN PART on the
terms set forth in the Recommendation.
• In the 18-cr-202 case, Ms. Schmid's Motions to
Continue (# 202, 206) are
DENIED. Mr. Seltzer's Motions for
Continuance (# 204, 207) are
GRANTED. Trial in that case is set for
May 4, 2020 at 8:30 a.m. in
the Grand Junction Courthouse, with a Pretrial Conference set
for April 30, 2020 at 3:30
p.m. in Courtroom 901 in the Arraj Courthouse in
Denver. Mr. Seltzer's prior motions at Docket
# 159 and 161 are
STRICKEN. Mr. Seltzer's Motion to
Possess Grand Jury Material (# 208) is
GRANTED IN PART and DENIED IN
PART on the terms set forth in the Recommendation.
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