Opinion
CRIMINAL NO. 1:10-CR-247.
October 5, 2011
ORDER
AND NOW, this 4th day of October, 2011, upon consideration of the amended motion for disclosure of grand jury minutes (Doc. 122) and the supplemental motion for disclosure of grand jury minutes (Doc. 123) filed by pro se defendant Allen Roberts ("Roberts"), wherein Roberts requests that the government produce for inspection the complete certified minutes and records of the grand jury that returned the indictment against him in the instant matter (see Doc. 122, at 1), and wherein Roberts alleges that the government provided him with an altered or fabricated grand jury transcript, and avers that the government engaged in prosecutorial misconduct in presenting the case to the grand jury by presenting "perjured testimony, inconsistent and insufficient facts and evidence, along with false, misstatement of facts knowingly and intentionally or with reckless disregard for the truth," (id. at 4), and wherein Roberts further avers that the grand jury was neither qualified nor properly summoned to issue said indictment (id. at 2) and impermissible relied upon hearsay testimony (id. at 3), and it appearing that the government provided Roberts with the relevant portion of the grand jury minutes pertaining to his case, and that Roberts has no basis upon which to claim that the transcript is fabricated or altered or that the grand jury was not properly constituted, and the court finding that "[a]s a matter of public policy, grand jury proceedings generally must remain secret except where there is a compelling necessity," United States v. McDowell, 888 F.2d 285, 289 (3d Cir. 1989), and that to obtain disclosure a defendant must show a "particularized need for the information that outweighs the public interest in secrecy," id.;see also United States v. Mariani, 7 F. Supp. 2d 556, 565 (M.D. Pa. 1998), and the court finding that the government has already provided to Roberts the portion of the grand jury transcript relating to Roberts' indictment, and that he is not entitled to the full grand jury transcript which includes testimony and information concerning numerous cases regarding the alleged criminal activities of other individuals unrelated to Roberts or his indictment, and the court further finding that Roberts bases his arguments on fundamental misconceptions about the operation of a grand jury and the process of obtaining a federal indictment, and the court concluding that Roberts' assertions of prosecutorial misconduct are bald, conclusory statements unsupported by any evidence, including the grand jury transcript itself, which he possesses, it is hereby ORDERED that the amended motion for disclosure of grand jury minutes (Doc. 122) and the supplemental motion for disclosure of grand jury minutes (Doc. 123) are DENIED.
In his supplemental motion for disclosure of grand jury minutes (Doc. 123), Roberts requests that the government provide a host of information relating to the grand jury, including whether any information about Roberts was ever presented to another grand jury, the "jury master wheels from which grand jurors were called," copies of the qualified juror lists, copies of voter registration lists from which the jury master wheels were derived, "a copy of the list of grand jurors who served on the grand jury that returned the instant indictment," the record of votes, and copies of all documents maintained by this district's Clerk of Court concerning the selection of prospective grand jurors. (Doc. 123, at 1-2). Roberts is not entitled to any of the requested material. Not even the government is privy to the votes of the grand jurors. See FED. R. CRIM. P. 6(d)(2) (stating that "[n]o person other than jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting).
For example, Roberts contends that a grand jury may not be presented with hearsay testimony. (See Doc. 122, at 3, 5). An indictment may, however, be based upon hearsay evidence. See United States v. Steele, 685 F.2d 793, 806 (3d Cir. 1982) (citingUnited States v. Wander, 601 F.2d 1251, 1260 (3d Cir. 1979)). Roberts further contends that the elements of the crime were not proven by competent legal evidence. Roberts appears to be under the misconception that in order for the grand jury to indict him for the alleged controlled drug buy on July 19, 2010, the government needed to show that state or local charges were filed against him, or he was arrested for the conduct prior to the indictment. (See Doc. 122, at 7, 8, 9). However, a federal indictment need not be based on state or local charges when a defendant commits a federal crime. Moreover, a defendant may not challenge an indictment on the basis of insufficiency of evidence. See Costello v. United States, 350 U.S. 359, 363 (1956) (stating that "[i]f indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury. . . . [t]he result of such a rule would be that before a trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. . . . An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by a prosecutor, if valid on its face, is enough to call for trial of the charge on the merits."). Finally, Roberts' claim that he was entrapped by the government (see Doc. 122, at 5) is a defense he may assert at trial, not a basis for an inquisition of the grand jury.