United States District Court, D. Arizona
ORDER
Honorable Susan M. Brnovich United States District Judge.
Pending
before the Court is Defendants' Joint Motion to Dismiss
Indictment for Grand Jury Abuse or, in the Alternative, for
Disclosure of Grand Jury Transcripts. (Doc. 782,
“Mot.” or “Motion”.) The Government
responded and Defendants replied. (Doc. 812,
“Resp.”; Doc. 826, “Repl.”.)
Defendants requested oral argument, but the Court elects to
resolve the Motion without it. See LRCiv 7.2(f).
Defendants move to dismiss the indictment because the grand
jury process was “unconstitutionally tainted, ”
or alternatively, for “the disclosure of the grand jury
transcripts so that the Defendants and the Court can examine
the government's actions before the grand jury.”
(Mot. at 8; see Repl. at 6.) Having considered the
parties' briefings, the superseding indictment, (Doc.
230, “SI”), and pertinent case law, the Court
denies Defendants' Motion as explained below.
I.
BACKGROUND
The
grand jury initially returned a 93-count indictment against
Defendants on March 28, 2018. (Doc. 3.) Roughly five months
later, it returned a 100-count superseding indictment against
them. (Doc. 230, “SI”.) The SI charges conspiracy
(Count 1), facilitating prostitution under the Travel Act
(Counts 2-51), conspiracy to commit money laundering (Count
52), concealment of money laundering (Count 53-62),
international promotion of money laundering (Count 63-68),
transactional money laundering (Counts 69-99), and
international concealment of money laundering (Count 100)
against Defendants. (See generally id.) Defendants
now move to dismiss the SI in its entirety for grand jury
abuse, or alternatively, for disclosure of the grand
jury's transcripts. (Mot. at 8.)
II.
LEGAL STANDARD
“[T]he
grand jury is deeply rooted in Anglo-American history.”
United States v. Calandra, 414 U.S. 338, 342 (1974);
see Costello v. United States, 350 U.S. 359, 361-62
(1956). It exists to “determin[e] whether there is
probable cause to believe a crime has been committed”
and to “protect[] . . . citizens against unfounded
criminal prosecutions.” Calandra, 414 U.S. at
343. “The grand jury proceeding is accorded a
presumption of regularity, which generally may be dispelled
only upon particularized proof of irregularities in the grand
jury process.” United States v. Mechanik, 475
U.S. 66, 75 (1986) (O'CONNOR, J., concurring); see
also Costello, 350 U.S. at 363 (“An indictment
returned by a legally constituted and unbiased grand jury, .
. . if valid on its face, is enough to call for trial of the
charge on the merits. The Fifth Amendment requires nothing
more[]”); see also United States v. R. Enters,
Inc., 498 U.S. 292, 300 (1991) (noting how “the
law presumes, absent a showing to the contrary, that a grand
jury acts within the legitimate scope of its
authority”).
A.
Dismissing Indictment for Error in Grand Jury
Proceedings
“[A]s
a general matter, a district court may not dismiss an
indictment for errors in grand jury proceedings unless such
errors prejudiced the defendants.” Bank of Nova
Scotia v. United States, 487 U.S. 250, 254 (1988). In
line with this, Federal Rule of Criminal Procedure
52(a)'s harmless error inquiry requires federal courts
disregard errors, defects, irregularities, or variances not
affecting substantial rights. See Mechanik, 475 U.S.
at 70- 72 (finding post-trial refusal to dismiss indictment
for Rule 6(d)[1] violation because error rendered harmless
after guilty verdict). “[T]here is ‘no reason not
to apply [Rule 52(a)] to errors, defects, irregularities, or
variances occurring before a grand jury[.]'”
Bank of Nova Scotia, 487 U.S. at 255 (quoting
Mechanik, 475 U.S. at 71-72).
When
“a court is asked to dismiss an indictment prior to the
conclusion of the trial, . . . dismissal of the indictment is
appropriate only ‘if it is established that
the violation substantially influenced the grand jury's
decision to indict,' or if there is ‘grave
doubt' that the decision to indict was free from the
substantial influence of such violations.” Bank of
Nova Scotia, 487 U.S. at 256 (emphasis added) (quoting
Mechanick, 475 U.S. at 78 (O'CONNOR, J.,
concurring)). “[Bank of Nova Scotia's
‘grave doubts'] standard does not ‘circumvent
the harmless-error inquiry prescribed by Federal Rule of
Criminal Procedure 52(a),' because it requires the
defendant[s] suffer prejudice.” United States v.
Navarro, 608 F.3d at 539. Instead, the “grave
doubts” standard merely defines when an error is
harmless.[2]Id.
In
cases of alleged prosecutorial misconduct, “[t]he
Court's power to dismiss an indictment on the ground of
prosecutorial misconduct is frequently discussed but rarely
invoked.” United States v. Samango, 607 F.2d
877, 881 (9th Cir. 1979). “One challenging an
indictment carries a difficult burden. He must demonstrate
that the prosecutor engaged in flagrant misconduct that
deceived the grand jury or significantly impaired its ability
to exercise independent judgment.” United States v.
Al Mudarris, 695 F.2d 1182, 1185 (9th Cir. 1983) (citing
United States v. Wright, 667 F.2d 793, 796 (9th Cir.
1982)). “Dismissal of an indictment is required only in
flagrant cases in which the grand jury has been overreached
or deceived in some significant way, as where perjured
testimony has knowingly been presented[.]”
Samango, 607 F.2d at 882 (quoting United States
v. Thompson, 576 F.2d 784, 786 (9th Cir. 1978)).
In
evaluating whether to dismiss, a court may not look beyond
the indictment to determine if the evidence upon which it was
based is sufficient. See Costello, 350 U.S. at 363;
see also United States v. Lunstedt, 997 F.2d 665,
667 (9th Cir. 1993) (“A district court cannot grant a
motion to dismiss an indictment if the motion is
substantially founded upon and intertwined with evidence
concerning the alleged offense” (citations and internal
quotations omitted)). A court can only grant “such a
dismissal if it is entirely segregable from the evidence to
be presented at trial.” Id. (citations and
internal quotations omitted). If this is not the case,
“the motion falls within the province of the ultimate
finder of fact and must be deferred [to the jury].”
Id. (citations omitted).
B.
Disclosing Grand Jury Transcripts
The
longstanding cornerstone of the grand jury is that
“[i]t deliberates in secret and may determine alone the
course of its inquiry.” Calandra, 414 U.S. at
343; see also United States v. Johnson, 319 U.S.
503, 513 (1943); Costello, 350 U.S. at 362. Not even
a judge presides to monitor its proceedings.
Calandra, 414 U.S. at 343. “This
‘indispensable secrecy of grand jury proceedings,'
must not be broken except where there is a compelling
necessity” that is “shown with
particularity.” United States v. Procter &
Gamble Co, 356 U.S. 677, 682 (1958) (internal citation
omitted). “To allow the intrusion . . . into the
indispensable secrecy of grand jury proceedings-as important
for the protection of the innocent as for the pursuit of the
guilty-would subvert the functions of federal grand juries by
all sorts of devices . . . such as ready resort to inspection
of grand jury minutes.” Johnson, 319 U.S. at
513.
The
Supreme Court has acknowledged numerous public policy
principles justifying the ...