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 REGARDING MOTION FOR DISCLOSURE OF GRAND JURY
INSTRUCTIONS
Before the Court at Docket 466 is defendant John Pearl Smith’s Motion for
Disclosure of the Remaining Grand Jury Transcripts, Including the Written and Oral
Instructions Given to the Grand Jury. The government filed a response in opposition at
Docket 510.1 Mr. Smith filed a reply at Docket 513.
Mr. Smith contends that he should be provided “any remaining undisclosed grand
jury transcripts and written and oral instructions given to the grand jurors” in order to
determine whether the Grand Jury was instructed on the elements of Hobbs Act robbery
or on the elements of Hobbs Act extortion.2 Mr. Smith asserts that it is possible that the
government instructed the Grand Jury using elements applicable to Hobbs Act extortion,
1 The government also filed a Motion to Strike at Docket 473, which the Court denied at Docket
501. The Court ordered the government to “submit to the Court for in camera review only the
Grand Jury transcripts that contain the oral instructions given to the Grand Jury relating to the
elements of Hobbs Act robberies and any written instructions (including PowerPoints) given to
the Grand Jury relating to the elements of Hobbs Act robberies . . . .”). Docket 501 at 3.
2 Docket 466 at 1–4; Docket 513 at 1–2.
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although he was indicted for Hobbs Act robberies.3 	The government responds that
“[t]here is no possible injustice here, because the charging language of Count One
confirms the title of that charge—the grand jury heard evidence that Defendant committed
Hobbs Act robbery, as defined in Section 1951(b)(1), and found probable cause to believe
that he committed the crime.”4 	Mr. Smith replies that the language in the First
Superseding Indictment is irrelevant because “[i]f the Grand Jury was instructed only on
the elements of robbery by extortion, then the citation to robbery by force in the
Superseding Indictment is wrong.”5
The Federal Rules of Criminal Procedure provide that a “court may authorize
disclosure . . . of a grand-jury matter . . . preliminarily to or in connection with a judicial
proceeding” or “at the request of a defendant who shows that a ground may exist to
dismiss the indictment because of a matter that occurred before the grand jury.”6
However, grand jury proceedings are afforded a high level of secrecy.7 The Ninth Circuit
has set forth “[t]he standards the district court should follow when lifting the secrecy of
grand jury proceedings . . . .”8 First, the desired material will avoid a possible injustice,
second, that the need for disclosure is greater than the need for continued secrecy, and
3 Docket 466 at 2.
4 Docket 510 at 5.
5 Docket 513 at 1.
6 Fed. R. Crim. P. 6(e)(1)(E)(i), (ii).
7 In re Special Grand Jury (for Anchorage, Alaska), 674 F.2d 778, 781 (9th Cir. 1982) (quoting
Douglas Oil Co. v. Petrol Stops Northwest, 447 U.S. 211, 218 (1979)) (“‘[T]he proper functioning
of our grand jury system depends on the secrecy of grand jury proceedings.’”).
8 United States v. Plummer, 941 F.2d 799, 806 (9th Cir. 1991).
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third, that only the relevant parts of the transcripts should be disclosed.9 	Generally, a
party seeking disclosure of grand jury transcripts must demonstrate a particularized need
for 	the 	disclosure 	that 	outweighs 	the 	policy 	favoring 	grand 	jury 	secrecy.10 	The
government asserts that Mr. Smith has not shown “a particularized need for production
of secret grand jury material.”11
It appears that the government has already disclosed a significant portion of the
Grand Jury transcripts to the defense, and those documents are governed by a protective
order.12 	Mr. Smith’s current motion is not seeking transcripts of the testimony of
witnesses before the Grand Jury, for which the need for secrecy would be paramount.
Instead, Mr. Smith is seeking transcripts of the instructions given to the Grand Jury by the
government, particularly those instructions related to the Hobbs Act. 	Although “[t]he
proceedings before the grand jury are secret, the ground rules by which the grand jury
conducts those proceedings are not.”13 Other Ninth Circuit district courts have concluded
that “[t]he legal instructions given to the grand jury regarding the charges on which they
are deliberating are a part of the ‘ground rules’ by which the grand jury conducts its
proceedings. The instructions do not reveal the substance of the grand jury’s deliberative
9 Id.
10 United States v. Perez, 67 F.3d 1371, 1381 (9th Cir. 1995) (opinion withdrawn in part on other
grounds on rehearing, 116 F.3d. 840 (9th Cir. 1997) (citing Dennis v. United States, 384 U.S.
855, 870 (1966) and United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986)).
11 Docket 510 at 5.
12 Docket 466 at 2.
13 United States v. Alter, 482 F.2d 1016, 1029 n. 21 (9th Cir. 1973).
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process or other information that would compromise the secrecy that Rule 6 seeks to
protect.”14
The Court finds that there is a “possible injustice” if the First Superseding
Indictment in this case reflects Hobbs Act charges for which the Grand Jury was not
properly instructed—particularly because four of the capital counts in this case are
premised on an underlying Hobbs Act robbery15—and that there is a lessened need for
continued secrecy because the materials are limited to the instructions given by the
government. The Court has completed an in camera review of the relevant portion of the
Grand Jury transcript and related PowerPoint slides and finds that the transcript and
related slides do not disclose the grand jury’s deliberations or other information that Rule
6 is designed to protect.
In light of the foregoing, IT IS ORDERED that the motion at Docket 466 is granted
in part and denied in part. 	The government shall disclose to the defense the portion of
the Grand Jury transcript dated March 21, 2017 beginning at 1:25 p.m. that was submitted
for in camera review as well as the first seven PowerPoint slides only that were provided
to the Court for in camera review within one week of the date of this order.16 Apart from
14 United States v. Belton, 2015 WL 1815273 at *3 (N.D. Cal. 14-cr-00030-JST, Apr. 21, 2015);
United States v. Diaz, 236 F.R.D. 470, 477–78 (N.D. Cal. No. CR-05-00167-WHA June 30,
2006) (finding instructions given to the grand jury “do not fall within the bar of Rule 6(e) because
their disclosure would not reveal the substance or essence of the grand jury proceedings.
Furthermore, disclosure of jury procedures and responsibilities poses no security threat to past,
current or prospective jurors.”); see also United States v. Fuentes, 2008 WL 2557949 at *4 (E.D.
Cal. CR.S-07-0248-WBS (June 24, 2008) (concluding that “the defendants are entitled to the
transcript of the instructions and charges to the grand jury” even without a showing of
particularized need).
15 Docket 102, Counts 3–6 (First Superseding Indictment).
16 The seven PowerPoint slides to be produced begin with the slide titled “Charges” and end
with the slide titled “Felon in Possession (Count 17).”
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that disclosure, the government need not provide “any remaining undisclosed grand jury
transcripts” or the remaining PowerPoint slides. 	In order to ensure a complete record,
the government shall file ex parte and under seal a copy of all of the materials that were
provided to the Court for in camera review.
DATED this 13th day of September, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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