United States v. Welch

201 F.R.D. 521, 2001 WL 802186
Procedural entryThis page is a short order in United States v. Welch. Read the opinion of the Court — 198 F.R.D. 545
District Court, D. Utah·Decided July 5, 2001·No. No. 00-CR-324 S·Published

Opinion

MEMORANDUM AND ORDER

BOYCE, United States Magistrate Judge.

The defendants, Thomas K. Welch and David R. Johnson, are charged with conspiracy (18 USC § 371), multiple counts of mail and wire fraud (18 USC §§ 1341, 1342, 1346) and Travel Act (18 USC § 1952) charges arising from the 2002 Salt Lake City Winter Olympic bid. They have made a motion for disclosure of the legal instructions given to the grand jury that returned the indictment in this case, or in the alternative, for in camera review, by the court, of the instructions given to the grand jury. The motion itself (see DUCrimRule 12-l(a), setting the motion requirements in a criminal case) merely recites, “The defendants have a substantial interest and particularized need for disclosure of the legal instructions ... to determine whether the grand jury was instructed accurately ... ”. The defendants contend their interest in having access to the instructions outweighs any secrecy interest. No factual material or affidavit has been submitted that defines the particularized need for such a request (File Entry #38).

The defendants further contend (Id.) that in their various motions to dismiss the indictment they have raised a number of issues for challenge to the indictment which bear on the motion for access to the grand jury instructions. The court has now ruled on those motions and found no basis for the defendants’ motions to dismiss the indictment. The court has found nothing that suggests any deficiency in the indictment itself or that there was any impropriety that would cast doubt on the regularity of the grand jury process.

Defendants contend the indictment is deficient in not adequately setting forth the elements of mail fraud and wire fraud as well as the alleged violations of the Travel Act. The court has previously rejected those arguments. This undercuts defendants’ contention as to any deficiency on the face of the indictment.

The motion for production of the grand jury instructions is governed by Rule 6(e)(2) F.R.Cr.P. which prohibits disclosure of “matters occurring before the grand jury, except as otherwise provided ...” Prosecutors instruct grand jurors on the law that governs the investigation and which focuses the grand jury’s attention on a possible indictment. The instructions need not be as comprehensive as the instructions the trial judge would give.1 United States v. Slepicoff, 524 F.2d 1244, 1247 (5th Cir.1975); United States v. Twersky, 1994 WL 319367 p. 4 (S.D.N.Y.1994). The instructions to the grand jury are intimately associated with the deliberation and judgement aspects of the grand jury function. Therefore, the instructions are matters occurring before the grand jury and require meeting standards for release of grand jury information. "... [Protection extends beyond testimony to encompass all substantive aspects of the proceedings.” Wayne R. LaFave, Jerald H. [524]*524Israel and Nancy J. King, Criminal Procedure, 2nd Ed. § 8.5(C) p. 67 (1999). See In re Motions of Dow Jones & Co., 142 F.3d 496 (D.C.Cir.1998); In re Grand Jury Subpoena, 920 F.2d 235, 241 (4th Cir.1990) (“Substantive content of matters occurring before the grand jury ‘within the secrecy rule’ can be anything that may reveal what has transpired before the grand jury. It is not information itself, but the fact that the grand jury was considering information that is protected from disclosure.”); Anaya v. United States, 815 F.2d 1373 (10th Cir.1987) (procedure sheet not protected). Therefore, the instructions would be matter that would disclose grand jury considerations, and possibly identity of persons, and therefore, are protected by Rule 6(e), F.R.Cr.P. The standards otherwise applicable for disclosure of grand jury matter under such circumstances must be met. United States v. Barry, 71 F.3d 1269, 1274 (7th Cir.1995) (In order to obtain instructions given to the grand jury the “defendant must show particularized need”.).

It is well established federal law that disclosure of matters occurring before the grand jury requires a showing of particularized need before a person may have access to such materials. Dennis v. United States, 384 U.S. 855, 879, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); In re Lynde, 922 F.2d 1448 (10th Cir.1991). The particularized need has been expressed as requiring a “compelling necessity.” In re Grand Jury, 95-1, 118 F.3d 1433 (10th Cir.1997); In re Special Grand Jury, 89-2, 143 F.3d 565 (10th Cir.1998); United States v. Rockwell International Corp., 173 F.3d 757 (10th Cir.1999) (The need must be particularized, not general). The standard is a “demanding” standard, Douglas Oil Co., supra, or a “stringent” one. In re Grand Jury, 95-1, supra. A general claim that inspection would be of benefit is not enough to breach grand jury secrecy. United States v. Rising, 867 F.2d 1255 (10th Cir.1989). Anything less than a strong showing of need is inadequate. United States v. Warren, 747 F.2d 1339 (10th Cir.1984).

The examination for the presence of the particularized need must be undertaken first and then, if shown, it will be evaluated against the need for continued secrecy, In re Special Grand Jury 89-2, at p. 571; United States v. Rockwell International Corp., supra; relevance alone will not suffice, In re Eyecare Physicians of America, 100 F.3d 514, 518 (7th Cir.1996) cited in United States v. Mazun, 176 F.3d 490 (10th Cir.1999) 1999 WL 228263 (unpublished) p. 1; see also Rockwell International Corp., supra.

The materials must be needed to avoid possible injustice, the need for disclosure must outweigh secrecy, and the request must be structured to cover only the needed material. Douglas Oil Co., supra at p. 222, 99 S.Ct. 1667. The standard of particularized need applies to a motion for production of grand jury instructions. Barry, supra (showing inadequate for examination of grand jury instructions); United States v. Mariani, 7 F.Supp.2d 556, 566-68 (M.D.Pa.1998) (inadequate showing of particularized need, cases collected 7 F.Supp.2d at p. 568); United States v. Winchester, 407 F.Supp. 261, 277 (D.Del.1975) (denied because claim based on mere conjecture); United States v. Abrams, 539 F.Supp.

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United States v. Welch, 201 F.R.D. 521, 2001 WL 802186 (D. Utah 2001).

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