United States District Court, D. Nevada
J. Dawson, United States District Judge.
the Court is defendant Robert Jones's Motion to Dismiss
Counts Three and Four of His Indictment for Failure to State
an Offense Under Federal Rule of Criminal Procedure
12(b)(3)(B)(v) (#26). The government responded (#32), and
Jones replied (#35). Shortly thereafter, Magistrate Judge
Hoffman reviewed Jones's motion to dismiss and recommends
that this Court deny the motion. (#36). Jones filed his
objections to that report and recommendation (#43), and the
government replied (#44). The Court has conducted a de novo
review of the record in this case according to 28 U.S.C.
§ 636(b)(1) and LR IB 3-2. The Court determines that the
report and recommendation (#36) should be
ADOPTED and AFFIRMED.
motion to dismiss challenged the sufficiency of counts three
and four of his indictment under the Sixth Amendment, which
guarantees that the accused be adequately informed of the
charges pending against him. U.S. Const. amend. VI. Jones
claims that counts three and four of his original indictment
fail to specify his alleged criminal sexual behavior under 18
U.S.C. §§ 2423(a), 2422(b). The government did not
dispute the charges' insufficiency. Rather, after Jones
moved to dismiss counts three and four, the government
convened a special grand jury to present additional evidence
and supersede Jones's original indictment. Grand Jury
Minutes (#30). In the superseded indictment, the government
remedied any Sixth Amendment deficiency in those claims.
See R&R 2 (#36). Because there was no longer a
Sixth Amendment violation, the Magistrate Judge found that
the superseded indictment indeed stated cognizable claims
against Jones and recommended that this Court deny his motion
agrees that the superseding indictment cured the original
indictment's Sixth Amendment deficiencies. Nevertheless,
he claims that those charges are deficient under the Fifth
Amendment because the superseding indictment does not
adequately assure him that a grand jury reviewed the evidence
in his case. Def.'s Obj. to R&R 6 (#43). However, the
docket in this case provides adequate assurance that a
special grand jury indeed convened, reviewed the evidence
against Jones, and returned a true bill. The minutes of that
proceeding show that the special grand jury met on April 16,
2019. Grand Jury Minutes (#30). That day, the grand jury
reviewed seven cases, including Jones's. Id The
minutes even specify that the grand jury reviewed Jones's
case to supersede his original indictment. Id
Additionally, the government entered the superseding
indictment to the docket just hours after the grand jury
convened. Superseding Indictment (#28). There is ample
evidence that a special grand jury considered the charges
against Jones and returned a valid indictment. Therefore,
Jones has not shown a violation of his Sixth Amendment right
to a grand jury.
Jones asks that the Court order disclosure of the grand jury
transcripts to ensure that the grand jury considered
additional evidence before returning the superseding
indictment. Magistrate Judge Hoffman did not reach this issue
because Jones did not request the transcripts until his
reply. R&R 2 (#36). The government has now had the
opportunity to respond to Jones's request and asks the
Court to decide Jones's argument on the merits.
Therefore, the Court will do so.
start, there is strong public interest in protecting the
privacy of grand jury proceedings. United States v.
Murray, 751 F.2d 1528, 1533 (9th Cir. 1985). The Court
will not disclose grand jury transcripts unless a
“particular need” outweighs the public's
interest in protecting the privacy of the grand jury.
United States v. Ferreboeuf 632 F.2d 832, 835 (9th
Cir. 1980). One such “particular need” arises
where the party seeking the transcripts shows that the
indictment should be dismissed “because of matters
occurring before the grand jury.” Murray, 751
F.2d at 1533. Mere allegations or speculations of grand jury
impropriety, however, are not enough to order disclosure.
Ferreboeuf 632 F.2d at 835.
Jones has not shown a particular need that outweighs the
public interest in the secrecy of the grand jury's
proceedings. Likewise, Jones has not shown that the
superseding indictment should be dismissed based upon issues
that occurred before the grand jury, and his arguments to the
contrary are mere speculation. Jones's speculation does
not warrant piercing the veil of secrecy surrounding grand
jury proceedings. As a result, the Court denies Jones's
request to disclose the grand jury transcripts.
THEREFORE ORDERED that the Magistrate Judge's Report and
Recommendation (#36) entered May 2, 2019, is
ADOPTED and AFFIRMED, and
defendant Robert Jones's Motion to Dismiss ...