Opinion
Criminal Case No. 07-cr-00184-WYD.
November 5, 2008
ORDER
THIS MATTER is before the Court on Defendants' Motion for Release of June 4, 2008 Superseding Indictment Grand Jury Transcripts Pursuant to Federal Rule of Criminal Procedure 6(e)(3)(C)(i), filed by Defendant Benjamin Thomas on August 7, 2008 [doc. #562]. Defendant Brian Hicks filed a motion to join Defendant Thomas's motion on August 19, 2008 [doc. #580]. At a Hearing on Pending Motions and Status Conference on August 20, 2008 [doc. # 589], Defendants Hicks and Willie Clark orally joined Defendant Thomas's motion, and all three Defendants and the government were able to present arguments with regard to the motion. The government filed its response to this motion on September 3, 2008 [doc. #596]. Defendant Hicks filed his reply on September 17, 2008 [doc. #607], and Defendant Clark filed a reply on September 18, 2008 [doc. #609]. Defendant Thomas filed a Notice of Disposition on September 10, 2008 [doc. #603] and did not file a reply.
On June 4, 2008, a District of Colorado Grand Jury returned a twenty-one-count superseding indictment against Defendants Benjamin Thomas, Willie Clark, Brian Hicks, and others. Defendants ask for disclosure of the June 4, 2008 superseding indictment grand jury transcripts pursuant to Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure. In its response, the government has indicated that there were three witnesses to testify at the proceedings: 1) ATF Special Agent Leviticus Desrosier, 2) Aurora Police/Metro Gang Task Force Officer Steven Stanton, and 3) Robert Fuller, an investigator with the Denver District Attorney's Office.
The government is willing to disclose the Grand Jury Transcripts of the first two witnesses but seeks to prevent disclosure of the third witness's testimony. The government claims that, with regard to Investigator Fuller's testimony, the need for secrecy and safety of the witnesses outweighs any need Defendants may have for disclosure. Accordingly, the government has offered to provide a copy of Investigator Fullers' testimony for the Court's in camera review. Having reviewed the file and being sufficiently advised in the premises, I find and conclude as follows:
Rule (6)(e)(3)(E) (formerly 6(e)(3)(C)) provides in part that 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 . . ." I find that it is appropriate to allow the government to release the grand jury transcripts of ATF Special Agent Leviticus Desrosier and Aurora Police/Metro Gang Task Force Officer Steven Stanton, as it has agreed to do. Furthermore, I find it appropriate to review in camera the testimony of Investigator Robert Fuller in order to make determinations with regard to the need for secrecy and Defendants' counterbalancing need to have the testimony disclosed to them. Accordingly, it is hereby
ORDERED that, pursuant to Fed.R.Crim.P. 6(e)(3)(E)(i), the government may disclose to the Defendants and their attorneys in the course of discovery in this case the grand jury testimony of 1) ATF Special Agent Leviticus Desrosier and 2) Aurora Police/Metro Gang Task Force Officer Steven Stanton. It is further
ORDERED that the testimony of both witnesses shall be the subject of a protective order. The parties shall meet and confer, and they shall submit a proposed protective order by November 17, 2008. It is further
ORDERED that the government shall submit the testimony of Denver District Attorney's Office Investigator Robert Fuller for in camera review by November 17, 2008.