USA v. Steven Swan

2003 DNH 137

• Court: District Court, D. New Hampshire
• Decided: July 22, 2003
• Docket: CR-03-36-B
• Status: Published

Opinion

USA v . Steven Swan CR-03-36-B 07/22/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal N o . 03-36-01-B Opinion N o . 2003 DNH 137 Steven A . Swan

MEMORANDUM AND ORDER

The defendant, Steven A . Swan, moves to inspect and copy

information pertaining to the grand jury selection process and

the particular grand jurors who voted to indict him. The

government objects insofar as Swan’s request seeks the personal

information and voting record of grand jurors. I grant Swan’s

motion in part, and deny it in part.

Swan’s request for information pertaining to the grand jury

selection process is grounded in section 1867(f) of the Jury

Selection and Service Act, 28 U.S.C. §§ 1861 et seq. (1994).

Section 1867(f) states:

The contents of records or papers used by the jury commission or clerk in connection with the jury selection process shall not be disclosed, except pursuant to the district court plan or as may be necessary in the preparation or presentation of a motion under [this section]. . . . The parties in a case shall be allowed to inspect, reproduce, and copy such records or papers . . . during the preparation and pendency of such a motion.

28 U.S.C. § 1867(f). This provision expressly prohibits the

disclosure of records and papers used in the jury selection

process, unless they are shown to be “necessary” in preparing a

motion to challenge the process itself.1

In Test v . United States, 420 U.S. 28 (1975), the United

States Supreme Court held that section 1867(f) grants a litigant

“essentially an unqualified right to inspect jury lists.” Id. at

30. This is so because without access to jury lists, a

litigant’s ability to determine whether he has a legitimate

challenge to the jury selection process is significantly

hampered. In order “[t]o avail himself of the right of access to

jury selection records, a litigant need only allege that he is

preparing a motion to challenge the jury selection process.”

United States v . Royal, 100 F.3d 1019, 1025 (1st Cir. 1996).

The issue here is whether personal information (i.e., name,

address, phone number) and the voting record of individuals who

1 In regard to the “district court plan,” 28 U.S.C. § 1867(f), the Plan of this court specifically refers all requests for documents regarding the jury selection process to the chief judge. See United States District Court of New Hampshire, District Court Plan, Section 1 3 .

-2- sat on the grand jury that indicted the defendant is included in

his “unqualified right” to jury lists under section 1867(f).

Specifically, Swan requests disclosure of records that reveal the

name and vote of each grand juror who indicted him. Such records

include juror questionnaires and juror concurrence forms (voting

record of the grand jury).

Courts faced with such requests generally limit the

litigant’s “unqualified right” to grand jury lists and deny

access to records that either reveal personal information of

grand jurors or pierce the secrecy of the proceedings. This is

so because to give a litigant an absolute right of routine access

to any and all records would “expand the [Jury Selection and

Service Act] beyond its boundaries.” United States v . Davenport,

824 F.2d 1511, 1515 (7th Cir. 1987); Test, 420 U.S. at 3 0 . More

importantly, serious concern is raised that if there is an

absolute right to the type of information Swan seeks - names and

voting records of the grand jury that indicted him - “there would

exist the possibility of substantial abuse of the information . .

. which could have serious consequences for individual jurors and

the system.” Davenport, 824 F.2d at 1515. Furthermore,

unbounded exploration of all records, particularly those records

-3- relating to the votes of a grand jury, invades the sanctity and

secrecy of the grand jury process. Also, how a jury voted has

little or no relevance to whether the jury was properly selected.

Based on these compelling concerns, I concur with other

courts that limit a litigant’s “unqualified right” when the

information sought pertains to juror’s personal information and

opinion of the case. See Davenport, 824 F.2d at 1514-15; United

States v . Hansel, 70 F.3d 6, 8 (2nd 1996)(party requesting names

of grand jurors must make strong showing of particularized need);

United States v . Harvey, 756 F.2d 636, 642-43 (8th Cir. 1985)

(district court allowed defendants to inspect data relating to

the constituency and method of the grand jury selection, but

omitted the names and addresses of persons on the master grand

jury list); United States v . McLernon, 746 F.2d 1098, 1122-1123

(6th Cir. 1984)(district court did not err in denying defendants'

motion to inspect and copy the names, addresses and

questionnaires of the grand jurors who returned the indictments

against them; district court found that defendants were only

entitled to the master lists from which the grand jurors are

drawn, together with the relevant demographic data); United

States v . Ailsworth, 1994 WL 539347 at *23 (D. Kan. 1994); United

-4- States v . Carlock, 606 F. Supp. 491 (W.D. L a . 1985).

Although the issue before me has not yet been addressed by

the First Circuit, I note that the Court recognizes that some

records, such as jury questionnaires, are treated differently by

section 1867(f). See United States v . Schneider, 111 F.3d 1 9 7 ,

204 (1st Cir. 1997) (citing Davenport, 824 F.2d at 1514-15). I

agree that some information must be treated differently. In

order to avail himself of information pertaining to the voting

record or personal information of a grand jury, a litigant should

be required to make a particularized showing as to why the

information is necessary to a potential challenge to the jury

selection process. See Hansel, 70 F.3d at 8 ; Davenport, 824 F.2d

at 1515.

Swan offers no reason why he needs to know names of the

grand jurors and whether they voted to indict him. Accordingly,

I deny Swan’s motion (Doc. N o . 32) insofar as it requests the

personal information and votes of the grand jury that indicted

him. Swan’s motion is granted as to his request for jury lists

and any other records used in the jury selection process. I f ,

after reviewing such information, Swan can make a particularized

showing as to why the names and specific votes of the grand jury

-5- that indicted him is necessary to challenge the jury selection

process, further disclosure may be appropriate.

SO ORDERED.

Paul Barbadoro Chief Judge

July 2 2 , 2003

cc: Steven A . Swan William Morse, AUSA Michael C . Shklar, Esq. United States Marshal United States Probation

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