United States District Court, D. South Dakota, Western Division
ORDER GRANTING MOTION FOR DISCLOSURE OF GRAND JURY
WOLLMANN, UNITED STATES MAGISTRATE JUDGE.
November 21, 2016, Mr. Red Owl was originally charged by
complaint for Assault Resulting in Serious Bodily Injury in
violation of 18 U.S.C. § 113(a)(6). (Doc. 1).
Subsequently, on December 6, 2016, Mr. Red Owl was charged in
an indictment with Assault Resulting in Serious Bodily Injury
in violation of 18 U.S.C. §§ 1153, 2, 113(a)(6),
and 3559(f) and Felony Child Abuse and Neglect in violation
of 18 U.S.C. §§ 1153 and 2 and SDCL § 26-10-1.
(Doc. 23). There exists no federal offense for child abuse,
therefore, Mr. Red Owl was charged under South Dakota
Codified Law which states that "[a]ny person who abuses,
exposes, tortures, torments, or cruelly punishes a minor in a
manner which does not constitute aggravated assault, is
guilty of a Class 4 felony. If the victim is less than seven
years of age, the person is guilty of a Class 3 felony."
SDCL § 26-10-1.
August 13, 2019, Mr. Red Owl filed a Motion for Disclosure of
Grand Jury Transcript. (Doc. 361). The pending Motion was
referred to the Magistrate Judge by Chief Judge Jeffrey L.
Viken on August 13, 2019. (Doc. 363).
Owl seeks production of the grand jury transcripts of FBI
Special Agent ("SA") Mark Lucas in order to
determine whether grounds may exist to dismiss the
indictment. (Doc. 362). He argues that alleged discrepancies
exist between SA Lucas' affidavit and written 302 report
of his interview with Mr. Red Owl. Id. at p. 3. He
further argues there exist "substantial and significant
discrepancies between the audio recording of the interview
and SA Lucas' 302 report and his affidavits."
Id. Mr. Red Owl cites to SA Lucas' "pattern
of making inconsistent statements" and his concern that
"based upon these discrepancies, it is reasonable and
logical to conclude that SA Lucas' grand jury testimony
may have been entirely at odds with Harold Red Owl's
actual statements." Id. at p. 6-7.
Disclosure of Grand Jury Transcripts
Legal Standard for Disclosure of Grand Jury
Rule of Criminal Procedure 6(e)(3)(E)(ii) allows for
disclosure of grand jury transcripts by the court "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." Grand jury transcripts are
"generally not discoverable on pretrial motion."
United States v. Pelton, 578 F.2d 701, 709 (8th Cir.
1978). A defendant must make a showing of
"particularized need" for the transcripts.
United States v. Brovles, 37 F.3d 1314, 1318 (8th
Cir. 1994). Parties seeking grand jury transcripts under Rule
6(e) must show that the material they seek is needed to avoid
a possible injustice in another judicial proceeding, that the
need for disclosure is greater than the need for continued
secrecy, and that their request is structured to cover only
material so needed. DouRlas Oil Co. of Cal. v. Petrol
Stops Nw. 441 U.S. 211, 222 (1979) (citing United
States v. Procter & Gamble Co., 356 U.S. 677, 683
particularized need is demonstrated "by the presentation
of 'specific evidence of prosecutorial
overreaching.'" United States v. Finn, 919
F.Supp. 1305, 1327 (D.Minn. 1995) (quoting United States
v. Lame, 716 F.2d 515, 518 (1983)). In analyzing whether
reversable prosecutorial misconduct exists, the Eighth
Circuit Court of Appeals employs a two-part test: "(1)
whether the prosecutor's conduct was improper, and (2)
whether such conduct prejudicially affected the
defendant's substantial rights so as to deprive the
defendant of a fair trial." United States v.
Anwar, 428 F.3d 1102, 1111-12 (8th Cir. 2005) (citing
United States v. Conrad, 320 F.3d 851, 855 (8th Cir.
2003)). To meet the burden of a particularized need,
[a] criminal defendant must point to specific evidence of
prosecutorial overreaching in order to show particularized
need to consult grand jury transcripts. A defendant who
"has not pointed to anything in the record which might
suggest that the prosecution engaged in improper conduct
before the grand jury" has not carried his burden of
Lame, 716 F.2d at 518-19 (quoting United States
v. Edelson, 581 F.2d 1290, 1291 (7th Cir. 1978)).
Showing of a ...