(Motion for Disclosure of Grand Jury Testimony, Doc. 160)
JOHN E. SIMKO, District Judge.
Defendant Mario Rangel ("Rangel") moves the Court for an order compelling the United States to produce the testimony of each witness who testified before the grand jury in this case. Doc. 160. The Government resists. Doc. 171.
On September 25, 2012, the grand jury indicted Rangel along with eight co-defendants on charges of: Conspiracy to Defraud the United States in violation of 18 U.S.C. § 371; Conspiracy to Harbor, Encourage, and Induce Aliens to Reside in the United States in Violation of the Law in violation of 8 U.S.C. §1324(a)(1)(A)(v)(I); and Harboring, Encouraging, and Inducing Aliens to Reside in the United States in Violation of the Law in violation of 8 U.S.C. §1324(a)(1)(A)(v)(II).
The Indictment alleges that four companies (Munoz Logging and Construction Company ("Munoz Logging"), Black Hills Thinning Company ("Black Hills Thinning"), Escalante Logging Company ("Escalante Logging") and SM Logging Company ("SM Logging") obtained contracts with the United States Government (specifically the United States Forest Service ("USFS") during a period of time beginning on January 1, 2008 through the date of the Indictment. The Indictment further alleges the companies consistently submitted bids which were lower than their competitors, and that the companies circumvented contract requirements "by hiring, employing and harboring undocumented workers, by paying these workers less than prevailing wages and benefits, and thereby obtaining contracts from USFS by submitting bids to do service work under the contracts for a lower price than competitors, knowing that the workers were not eligible, documented or authorized workers. Their false, fictitious, and fraudulent activities were a mechanism to enrich the defendants beyond which they would otherwise be entitled beyond the contracts."
The Indictment alleges that Rangel "is a manager for Munoz Logging." It further alleges that Rangel (along with other named defendants) "paid or arranged for payment of wages to the illegal workers for work under USFS contracts by issuing checks to the illegal workers, by issuing checks to false or fictitious individuals, or by making payments by check to other employees, the proceeds of which were to be divided among several of the unauthorized alien employees in the form of cash." Count I, ¶ 33. The Indictment also alleges Rangel, (along with the other named defendants) "instructed unauthorized or undocumented alien employees to obtain any Social Security number, real or fictitious, whether in the employee's name or not, to use for the purpose of paying the employees." Id. at ¶ 34. It alleges Rangel knew the employees were illegal aliens, illegally harbored them in the United States, and conspired with the other defendants to illegally harbor the employees in the United States. Counts II and III.
Fed. R. Crim. P. 6(e) governs the disclosure of grand jury testimony. Rangel specifically cites Fed. R. Crim. P. 6(e)(3)(E)(I) and (ii) which states:
(E) The Court may authorize disclosure - at a time, in a manner, and subject to any other conditions that it directs - of a grand jury matter:
(I) preliminarily to or in connection with a judicial proceeding;
(II) 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;
"Although disclosure of grand jury proceedings under certain circumstances is now authorized by Rule 6 of the Federal Rules of Criminal Procedure, a long-established policy in the federal courts maintains the secrecy of these proceedings. Parties seeking disclosure must show a particularized need and the decision to permit disclosure lies within the sound discretion of the trial judge." United States v. Benson, 760 F.2d 862, 863 (8th Cir. 1985) (citations omitted, punctuation altered).
Rangel asserts he has shown a particularized need for disclosure. He claims the government's conduct before the grand jury was improper because (1) Rangel's employment with Munoz Logging and Construction consisted solely as manager of the construction division of the company, but the contracts at issue in the Indictment were with the logging division. Rangel formed his own construction company (Rangel Construction Company, LLC) in December, 2008 and left the employment of Munoz Logging and Construction altogether in September, 2009; (2) No evidence has been submitted nor has it been alleged that any undocumented workers were hired, harbored, or induced to reside in the United States by or to work for the construction division of Munoz Logging and Construction or that any illegal acts occurred in relation to the multiple federal construction contracts performed by the construction division of Munoz Logging and Construction during Rangel's tenure as manager of the construction division of that company; (3)There is no evidence that Rangel Construction Company employs illegal aliens; (4) Rangel Construction Company's computers and records were mistakenly seized during the search of Munoz Logging and Construction Company's premises; (5) At the time the Indictment was issued, the Government did not know Rangel terminated his employment with Munoz Logging and Construction in September, 2009; and (6) Although Munoz Logging and Construction has been suspended from doing business with the federal government pending resolution of these federal charges, Rangel's separate business (Rangel Construction Company LLC) continues to do business with the federal government.
Rangel alleges that the Homeland Security Agent(s) who prepared the case worked closely with Alfred Heinrich from the United States Department of Agriculture and William Highland from the USFS. Heinrich and Highland both worked closely with Rangel in his capacities as construction manager at Munoz Logging and as the owner of Rangel Construction ...