USA v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN PEARL SMITH, II,
Defendant.
Case No. 3:16-cr-00086-SLG-1
ORDER RE GRAND JURY SUBPOENA
At Docket 722 defendant John Pearl Smith, II, filed a Motion to Prohibit the
Government from Continuing to Violate State Confidentiality Rules and Statutes
and to Exclude the Government’s Dissemination and Use of Any Evidence It Has
Acquired in Violation of Those Provisions. The government responded to the
motion at Docket 759; the defense filed a sealed reply at Docket 777. The Court
will address the merits of the motion in a separate order to be issued in due course.
The instant order is directed to the government with respect to the manner in which
it obtained certain records from McLaughlin Youth Center.
Based on the Court’s review of the parties’ filings on this topic, it appears
that on March 14, 2017, the government obtained a subpoena duces tecum from
the District Court directed to McLaughlin Youth Center (McLaughlin).1 The
1 Docket 759-1. It is unclear from the Court’s record the date on which the government
requested the subpoena be issued by the Court.
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Order Re Grand Jury Subpoena
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subpoena directed McLaughlin to provide certain records regarding Mr. Smith to
the Grand Jury on March 21, 2017. Alternatively, McLaughlin’s record custodian
could mail the documents to the U.S. Attorney’s Office along with an Affidavit of
Compliance attesting to the documents’ authenticity.2 The Grand Jury convened
on March 21, 2017, as scheduled and returned the First Superseding Indictment
in this case on that date.3 There is no indication in the record before the Court that
McLaughlin’s records were presented to the Grand Jury or used in any manner by
the Grand Jury. The Government has provided the defense with only the first page
of McLaughlin’s Affidavit of Compliance with the Grand Jury Subpoena. That page
does not indicate the date on which it was signed. Nor does it indicate the date on
which the U.S. Attorney’s Office received the documents; the government has not
provided that information to either the defense or the Court.4
Mr. Smith was arraigned on the First Superseding Indictment on March 23,
2017.5 The following day, March 24, 2017, the Court directed the parties to confer
and propose to the Court a discovery plan and pretrial motion schedule.6 A
2 Docket 759-1 at 4-6.
3 The First Superseding Indictment is dated March 21, 2017, and was filed on March 22, 2017.
Docket 102 at 15.
4 Docket 777-3 at 1; Docket 777-4 at 1.
5 Docket 107 (Minute Entry).
6 Docket 106. The government’s opposition incorrectly states that the Court’s March 24, 2017
order directed the government to disclose defendant’s prior record. In actuality, that order
simply directed the parties to meet and confer, and “propose a date for each of the following
deadlines, or indicate that a particular deadline is unnecessary or premature to establish at this
time.” See Docket 106 at 1.
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Order Re Grand Jury Subpoena
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scheduling conference was held on May 9, 2017; thereafter, on May 15, 2017, the
Court entered a Trial and Pretrial Deadlines Scheduling Order.7 That order, based
on the parties’ representations at the status conference, states that “Defendant’s
prior record as described in Fed. R. Crim. P. 16(a)(1)(D) was disclosed on May 1,
2017.”8 In the current motion practice, the government has indicated that it
provided the defense with copies of Mr. Smith’s juvenile court records, as well as
copies of the incident reports for those crimes, on August 16, 2017.9
Although the reach of the Grand Jury is broad and it operates with great
independence, “the powers of the grand jury are not unlimited and are subject to
the supervision of a judge.”10
Based on the foregoing, the Court directs the government to file a response
to the following questions within seven days of the date of this order:
1. When were McLaughlin’s records received by the U.S. Attorney’s office?
(Please attach to your response the completed proof of service of the
subpoena and the complete Affidavit of Compliance of McLaughlin’s
records custodian).
2. Were the McLaughlin records requested by the Grand Jury?
3. Were the McLaughlin records presented to the Grand Jury?
7 Docket 125.
8 Docket 125 at 1.
9 Docket 759 at 4.
10 Branzburg v. Hayes, 408 U.S. 665, 688 (1972).
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Order Re Grand Jury Subpoena
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4. Was Mr. Smith’s juvenile record presented in any manner as evidence
to the Grand Jury?
5. Was the sole or predominant purpose of the McLaughlin subpoena to
obtain evidence to present to the Grand Jury or was it to obtain evidence
for trial preparation?
6. When were the McLaughlin records provided to the defense?
7. Is there a Department of Justice policy that addresses the purpose and
use of grand jury subpoenas? If so, please provide a copy of that policy.
IT IS SO ORDERED this 15th day of May, 2020.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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