United States v. Owl

          ORDER GRANTING MOTION FOR DISCLOSURE OF GRAND JURY TESTIMONY

          DANETA WOLLMANN, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         On 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.

         On 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).

         BACKGROUND

         Mr. Red 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.

         DISCUSSION

         I. Disclosure of Grand Jury Transcripts

         a. Legal Standard for Disclosure of Grand Jury Transcripts

         Federal 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 (1958).

         This 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 persuasion.

Lame, 716 F.2d at 518-19 (quoting United States v. Edelson, 581 F.2d 1290, 1291 (7th Cir. 1978)).

         b. Showing of a ...