United States District Court, D. Nevada
ORDER (MOT INSPECT GJ RECORDS - ECF NO.
A. LEEN UNITED STATES MAGISTRATE JUDGE
the court is Defendant Ryan C. Bundy's Motion to Inspect
All Records of Grand Jury Selection (ECF No. 1029), filed
November 28, 2016. This Motion is referred to the undersigned
pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of
the Local Rules of Practice. The court has reviewed the
Motion and the Government's Response (ECF No. 1126). No
reply brief was filed and the deadline for doing so has now
Motion consists of one sentence stating Ryan Bundy's
request “to inspect all records of grand jury
selection” pursuant to 28 U.S.C. § 1861 of the
Jury Selection and Services Act. The Response states that the
government takes no position on the motion.
Supreme Court has stated that the purpose of the Jury
Selection and Services Act (the “Act”), 28 U.S.C.
§§ 1861-1878, is to ensure that grand and petit
juries are “ ‘selected at random from a fair
cross section of the community in the district or division
wherein the court convenes'.” Test v. United
States, 420 U.S. 28, 30 (1975) (quoting 28 U.S.C. §
1861). The Act allows a criminal defendant to “move to
dismiss the indictment or stay the proceedings against him on
the ground of substantial failure to comply with the [Act] in
selecting the grand or petit jury.” 18 U.S.C. §
1867(a); see also Fed. R. Crim. P. 6(b). Because the
Act does not control the timing of a motion to inspect jury
selection records, the Ninth Circuit has held that a district
court's general procedures for the processing and trial
of cases apply. United States v. Bogard, 846 F.2d
563, 567 (9th Cir. 1988).
motion for inspection of jury records is a “request
which is capable of determination without the trial of the
general issue, ” therefore, it is subject to any
pretrial motions deadline set by the court. Id.
(quoting Fed. R. Crim. P. 12(b)). When such a motion is
untimely under a case management order, the decision to
entertain the motion “rests in the sound discretion of
the court.” Id. (affirming the district
court's denial of motion for inspection as untimely when
motion was not filed prior to the pretrial motions deadline)
(quoting People of Territory of Guam v. Palomo, 511
F.2d 255, 257 (9th Cir. 1975)).
initial matter, the court finds that Ryan Bundy's Motion
is untimely. On April 26, 2016, the court entered a Case
Management Order (ECF No. 321) setting deadlines for filing
motions to sever, pretrial motions and notices required by
Rule 12 of the Federal Rules of Criminal Procedure and LCR
12(1)(b). The court also that found the case was a complex
case within the meaning of 18 U.S.C. §
3161(h)(7)(B)(ii). No defendant filed objections to the case
management order. On September 20, 2016, Defendant Peter T.
Santilli filed a Motion to Continue Case Management Rule 12
Motions and Notices Deadline by 30 Days (ECF No. 672). While
this motion was pending, on September 26, 2016, Ryan Bundy
filed a Motion for Joinder (ECF No. 680) to Santilli's
request through his standby counsel. In his joinder, Ryan
Bundy indicated that additional time was needed because he
was “in the middle of a federal jury trial in the
District of Oregon.” Id. However, Santilli
subsequently filed a Motion to Withdraw (ECF No. 689) his
request for continuance, which the court granted. Because the
underlying motion to continue was withdrawn, the court denied
Ryan Bundy's request for joinder, but granted in part his
request for an extension of the Rule 12 motions deadline,
extending the deadline until October 17, 2016. See
Order (ECF No. 802). He did not seek another extension.
Bundy's current motion was filed November 28, 2016,
approximately five weeks after his extended deadline expired.
However, he was in trial in Oregon for approximately seven
weeks before his acquittal on October 27, 2016, and he was
not transported to this jurisdiction until mid-November.
See Mot. for Order Compelling USM to Expedite
Transfer (ECF No. 970); Nov. 15, 2016 Order (ECF No. 977)
(denying motion as moot since defendants Ammon and Ryan Bundy
had already arrived in Nevada). The court will therefore
exercise its discretion to address the merits of the motion.
allows a criminal defendant to seek relief based on a
substantial failure to comply with the Act in the selection
of the grand or petit jury. 18 U.S.C. § 1867(a); Fed. R.
Crim. P. 6(b). The Act provides that the parties in a case
shall be allowed to inspect the contents of records or papers
used in connection with the jury selection process as may be
necessary in the preparation or presentation of a motion. 18
U.S.C. § 1867(f). A criminal defendant “has
essentially an unqualified right to inspect jury lists”
because he would be unable to determine whether he has a
potentially meritorious challenge without inspection.
Test, 420 U.S. at 30. However, the “right to
discovery by the Act and Test is not
limitless.” United States v. Diaz, 236 F.R.D.
470, 482 (N.D. Cal. 2006). “Defendants are entitled
only to discovery ‘necessary' to prepare a motion
alleging substantial noncompliance with the Act's jury
selection procedures.” Id. at 482-83 (finding
that names and other personal information are not ordinarily
subject to disclosure to criminal defendants because
disclosure of jurors' personal and private information
cannot assist a defendant in the preparation of his motion
and is not necessary under the Act). The Ninth Circuit has
not addressed what information a party is entitled to receive
in a request for information under the Act. However, the
Sixth Circuit has held that a defendant's unqualified
right to inspection was “satisfied by disclosure of the
master lists and the relevant demographic data about the
general pool from which the specific grand jurors were
selected.” United States v. McLernon, 746 F.2d
1098, 1123 (6th Cir. 1984).
Mr. Bundy does not specify what it is he wants. He simply
asks for all records of grand jury selection. This
request is facially overbroad and presents logistical and
security problems. He does not indicate for what purpose he
wants the documents or represent that he intends to file a
motion pursuant to § 1867(a) of the Act. Under these
circumstances, the court will order disclosure of the
District of Nevada's plan for random jury selection, and
the most recent Report on Operation of the Jury Selection
Plan which were prepared pursuant to 28 U.S.C. § 1863.
IS ORDERED: Defendant Ryan C. Bundy's Motion to
Inspect All Records of Grand Jury Selection (ECF No. 1029) is
GRANTED to the extent the Jury Administrator
SHALL MAIL a copy of the District of Nevada's plan for
random jury selection, and most recent Report on Operation of
the Jury ...