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United States v. Gutierrez

United States District Court, D. New Mexico

May 31, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DARRYL J. GUTIERREZ, Defendant.

          John C. Anderson United States Attorney Reeve L. Swainston Holland S. Kastrin Margaret M. Vierbuchen Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Jason Bowles Bowles Law Firm Albuquerque, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER come before the Court on: (i) the Defendant Darryl J. Gutierrez' Motion for Instruction on Willfulness and Good Faith Element and For Production of Grand Jury Transcript, filed February 17, 2017 (Doc. 57)(“Motion”); (ii) the Plaintiff United States of America's Motion In Limine to Exclude Defendant's Self-Serving Declarations as Inadmissible Hearsay, filed March 8, 2017 (Doc. 61)(“Motion in Limine”); and (iii) Defendant Darryl Gutierrez's Brief in Support of Objection to Deliberate Ignorance Jury Instruction, filed March 28, 2017 (Doc. 82)(“Trial Brief”). The Court held a hearing on March 13, 2017 regarding the Motion, a hearing regarding the Motion in Limine on March 22, 2017, and heard oral argument regarding the Trial Brief during trial on March 28, 2017 and March 29, 2017. The primary issues are: (i) whether Gutierrez is entitled to willfulness and good-faith instructions for 26 U.S.C. § 7206(1) offenses that Counts Two through Eleven of the Indictment charge; (ii) whether the Court should instruct the jury that “corruptly” for purposes of 26 U.S.C. § 7212(a) means that the defendant acted knowingly and dishonestly with the specific intent to subvert or undermine the due administration of the revenue laws; (iii) whether the Court should give a deliberate-ignorance instruction for Count 1; (iv) whether the United States must provide, before trial, Grand Jury transcripts to Gutierrez, so that Gutierrez can challenge the Indictment before trial; and (v) whether the Court should exclude as inadmissible hearsay statements that Gutierrez made that express his disagreements with the United States' tax laws.

         The Court concludes that, under United States Court of Appeals for the Tenth Circuit precedent, Gutierrez is entitled to a willfulness instruction and also a good faith instruction, but only the latter if Gutierrez testifies at trial. Similarly, Tenth Circuit caselaw indicates that corruptly is properly defined above. The Court concludes that a willful blindness instruction is inappropriate, because the evidence adduced at trial demonstrates that Gutierrez did not try to avoid learning that his tax-evasion strategies were criminal. Rather, Gutierrez knew that those strategies were criminal, but employed them anyway. The United States does not need to produce Grand Jury transcripts to Gutierrez expect as to what the Jencks Act, 18 U.S.C. § 3500, Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), require, because Gutierrez has not shown that his transcript is anything more than a fishing expedition. Finally, the Court reserves the majority of its hearsay rulings, because Gutierrez has not identified specific statements for the Court to consider. It notes, however, that some of Gutierrez' statements about his tax beliefs may be admissible for purposes other than their truth, e.g., as circumstantial evidence regarding Gutierrez' mental state. The Court concludes, nevertheless, that statements Gutierrez made to Heather Howard -- a Department of Energy contractor -- during a security-clearance interview are not admissible under the rule of completeness. Accordingly, the Court: (i) grants the Motion in part and denies it in part; (ii) grants the Motion in Limine in part and denies it in part; and (iii) grants the requests in the Trial Brief.

         FACTUAL BACKGROUND

         The Court takes its facts from the Indictment, filed November 5, 2015 (Doc. 2)(“Indictment”). The Court does not set forth these facts as findings or the truth. The Court recognizes that the Indictment is largely the United States' version of events and that Gutierrez is presumed innocent.

         From 2000 through 2009, Gutierrez filed federal income tax returns seeking tax refunds in the amount of $173, 526.00. See Indictment ¶ 1, at 1. Gutierrez, however, was not entitled to that tax refund; instead, he owed $125, 624.00 in federal taxes. See Indictment ¶ 1, at 1. Gutierrez also falsified his W-4 forms for many years seeking exemption from federal income tax withholding. See Indictment ¶¶ 11-15, at 2-3. He also falsified his 1040 forms from 2000 to 2009 by asserting that he had no wage income, whereas he had a wage income and knew of that wage income. See Indictment at 5-9. From 2011 through 2013, Gutierrez sent various notices to the Internal Revenue Service (“IRS”) stating that he is not subject to federal income tax or liable for the penalties that the IRS assessed against him, because he is not a “taxpayer.” Indictment ¶¶ 19-25, at 4-5.

         PROCEDURAL BACKGROUND

         On November 5, 2015, a Grand Jury returned an eleven-count indictment against Gutierrez. See Indictment at 1-9. On December 2, 2015, Gutierrez was arrested and arraigned before the Honorable Steven C. Yarbrough, United States Magistrate Judge for the United States District Court for the District of New Mexico. See Clerk's Minutes before Magistrate Judge Steven C. Yarbrough at 1, filed December 2, 2015 (Doc. 5). He pled not guilty. See Clerk's Minutes before Magistrate Judge Steven C. Yarbrough: Arraignment/Detention as to Darryl J Gutierrez at 1, filed December 3, 2015 (Doc. 9).

         1. The Motion.

         Gutierrez argues that he is entitled to a jury instruction on willfulness and on good faith vis-à-vis the 26 U.S.C. § 7206(1) violations that Counts 2-11 charge. See Motion at 1. According to Gutierrez, “as one of the specific elements of the crime, ” the United States must demonstrate “the specific intent of willfulness.” Motion at 2 (citing Cheek v. United States, 498 U.S. 192, 200-01 (1991)(“Willfulness is a voluntary, intentional violation of a known legal duty.”)). He argues that, accordingly, he is also entitled to a “good faith” instruction, which “defeats the willfulness intent element.” Motion at 2. Gutierrez contends that he will testify, “and present his good faith and genuinely held belief” that, for a variety of reasons, the United States cannot tax him. Motion at 2-3.

         Gutierrez also requests that the Court order the United States to produce Grand Jury transcripts, “so that Mr. Gutierrez may determine whether the government instructed the [grand] jury on the elements of willfulness and its corollary, good faith.” Motion at 6. He also argues that the Court should order the United States to produce the Grand Jury transcripts “as early Jencks material, ” so that Gutierrez can challenge the indictment pre-trial. Motion at 6. Gutierrez contends that he “establishes a particularized need” for pretrial access to these transcripts, because, if he does not receive them before trial he will not be able to challenge the indictment on the ground that the United States improperly instructed the grand jurors on willfulness and on good faith, nor will Gutierrez be able to mount a statute of limitations defense for Count 1. See Motion at 6-7 n.1.

         2. The Response.

         The United States responds that it does not object to a willfulness instruction, nor does it object to a good faith instruction, “should the evidence at trial and the law support such an instruction.” United States' Response to Defendant's Motion for Instruction on Willfulness and Good Faith Element and for Production of Grand Jury Transcript at 1, 3, filed March 3, 2017 (Doc. 58)(“Response”). The United States notes that the Tenth Circuit pattern jury instruction for 26 U.S.C. § 7206(1) contains the willfulness instruction from Cheek v. United States, and that it would not object to that instruction. See Response at 4. See also Cheek v. United States, 498 U.S. at 200-01 (defining willfulness as a “voluntary, intentional violation of a known legal duty.”). The United States mentions that the Supreme Court of the United States and the Tenth Circuit “have long recognized” that good faith negates the willful element in tax offenses. See Response at 4 (citing United States v. Collins, 920 F.2d 619, 622 (10th Cir, 1990)(“[A] good faith misunderstanding of the duty to pay income taxes can negate the willfulness element.”)). The United States remarks that it and Gutierrez appear to be in general agreement “as to the applicable legal principles, ” but it argues that the Motion should be denied as premature or held in abeyance until trial, because “if the defendant elects not testify, as is his constitutional right, ” the good faith instruction “becomes moot.” Response at 5.

         The United States also responds that Gutierrez is not entitled to the Grand Jury transcripts, for two reasons. See Response at 11. First, the United States contends that Gutierrez has not established a particularized need for those transcripts, because that Gutierrez alleges that he needs the transcripts to know if the United States properly instructed the Grand Jury on willfulness and on good faith, but does not provide evidence indicating that the Grand Jury's instructions were improper. See Response at 11-13 (citing Fed. R. Crim. P. 6(e)). The United States adds that, even if there is an error in instructing the Grand Jury, that would not “necessarily support a challenge to the indictment.” Response at 13 (citing United States v. Buchanan, 787 F.2d 477, 487 (10th Cir. 1986)). See United States v. Buchanan, 787 F.2d at 487 (“Challenges only to the instructions given to the grand jury as to the elements of the offense are not grounds for dismissal of an indictment that is valid on its face.”).

         Second, the United States argues that the Court should reject the other ground upon which Gutierrez requests the transcripts -- as early Jencks material -- because the Jencks Act requires disclosure only after a witness testifies on direct examination. See Response at 14-15. The United States asserts that a stunning amount of caselaw supports its position. See Response at 15. The United States concludes, however, that it anticipates producing any Jencks material before trial “to eliminate” delays, but will not produce such material until closer to trial. Response at 15.[1]

         3. The March 13, 2017, Hearing.

         The Court held a hearing on March 13, 2017. See Draft Transcript of Motion Proceedings, at 1:1 (taken March 13, 2017)(“March 13 Tr.”).[2] The Court began by asking the United States whether it agrees that the Court should give a good-faith instruction if Gutierrez testifies. See March 13 Tr. at 3:1-3 (Court). The United States agreed that, if Gutierrez' testimony is as “robust” as he represents in his Motion, then the Court should give some form of the good-faith instruction. See March 13 Tr. at 3:9-10 (Vierbuchen). Accordingly, the Court noted that, when it gives the jury preliminary instructions, it will instruct the jury that the United States must prove willfulness beyond a reasonable doubt, but that it will give a more in-depth willful definition before closings and that it will also give a good-faith instruction if testimony warrants it. See March 13 Tr. at 4:14-24 (Court). Gutierrez agreed to the Court's plan. See March 13 Tr. at 4:25-5:1 (Bowles)(“I think that's absolutely correct, your Honor.”).

         Turning to the Grand Jury transcripts, the Court asked the United States whether it plans to give all of the Grand Jury transcripts to Gutierrez or if it plans to keep portions of them confidential. See March 13 Tr. at 6:1-5 (Court). The United States replied that it will refrain from producing Grand Jury transcripts unless a Grand Jury witness testifies at trial. See March 13 Tr. at 6:6-15 (Vierbuchen). The Court then concluded that Gutierrez had not made the requisite showing for an early peek at the transcripts. See March 13 Tr. at 6:16-7:3 (Court)(“[I]t sounds like right at the moment you're fishing a little bit, and the law does not permit you to do it.”). Gutierrez agreed, see March 13 Tr. at 7:4-5 (Bowles)(“Your Honor I think you're absolutely right.”), but he argued that he was also entitled to the Grand Jury transcripts that contain exculpatory information even if the Grand Jury witness does not testify at trial, see March 13 Tr. at 7:17-21 (Bowles). The United States agreed that it would need to produce that information under Brady v. Maryland. See March 13 Tr. at 8:2 (Kastrin).

         4. The Motion in Limine.

         The United States argues that the Court should preclude Gutierrez from introducing Gutierrez' out-of-court statements that express his disagreements with the United States' tax laws. See Motion in Limine at 1-2. According to the United States, such statements from Gutierrez are inadmissible hearsay. See Motion in Limine at 2 (citing Fed.R.Evid. 801(c); Fed.R.Evid. 802; United States v. Larsen, 175 Fed.Appx. 236, 241 (10th Cir. 2006)(unpublished)). The United States contends that the Court should require Gutierrez to obtain an admissibility ruling outside of the jury's presence before “attempting to elicit testimony or otherwise introduce into evidence his own self-serving statements” under an exception to the rule against hearsay. Motion in Limine at 3.

         The United States also contends that, if it chooses to introduce some of Gutierrez' statements during its case-in-chief, the United States will not be opening the door to all of Gutierrez statements under a rule-of-completeness argument. See Motion in Limine 3-4 (citing Fed.R.Evid. 106). The United States argues that the rule of completeness prevents litigants from misleading the jury by selective quotation, so the rule does not apply as long as the United States does offer Gutierrez' statements in a misleading manner. See Motion in Limine at 4. The United States asserts that it may introduce “a limited number” of Gutierrez' statements to establish: (i) Gutierrez' awareness that the IRS believed that Gutierrez failed to file tax returns; (ii) that Gutierrez had not filed tax returns from 1994 through 2007; (iii) that Gutierrez' wages were garnished in 1997 to satisfy a 1993 tax debt; (iv) that Gutierrez paid some of his 2007 New Mexico state income tax; and (v) that Gutierrez claimed marriage and ten exemptions on his W-4. See Motion in Limine at 5. The United States argues that statements introduced to demonstrate those points are “discrete factual statements that are not misleading, ” so the rule of completeness does not require Gutierrez' additional statements to be introduced. See Motion in Limine at 5; id. (“There can be no doubt that the defendant's statements about his tax-law beliefs do not change the meaning of any discrete, factual statements that the United States intends to introduce.”). The United States concludes by asking the Court to enter a pretrial order prohibiting Gutierrez from introducing his own out-of-court statements and an order stating that, if Gutierrez seeks to introduce any of his out-of-court statements at trial that Gutierrez seek an admissibility ruling outside the jury's presence. See Motion in Limine at 5-6.

         5. Motion in Limine Response.

         Gutierrez responds that the Court should allow Gutierrez to testify about his out-of-court statements concerning his tax beliefs, because such statements are admissible under rule 803(3) of the Federal Rules of Evidence, and because they are admissible “in fairness” under the rule of completeness. Response to Motion in Limine to Exclude Defendant's Declarations as Inadmissible Hearsay at 1, filed March 8, 2017 (Doc. 61)(“Motion in Limine Response”). According to Gutierrez, his tax-belief statements are admissible because they are statements relating to his then existing state of mind. See Motion in Limine Response at 2 (citing Fed.R.Evid. 803(3)). Gutierrez argues, alternatively, that such statements are admissible if the United States “opens the door to a topic” by introducing Gutierrez' statements. Motion in Limine Response at 3. He contends that, if the United States introduces statements that Gutierrez made to a National Nuclear Security Administration contractor, Gutierrez' tax-law belief statements must be admitted, in fairness, because they “change everything about the meaning of the factual statements” that the United States intends to introduce. Motion in Limine Response at 4. Finally, Gutierrez argues that rule 403 of the Federal Rule of Evidence supports his rule-of-completeness argument, because, barring introduction of his tax-belief statements, yet allowing the United States to enter the other statements, would substantially prejudice him. See Motion in Limine Response at 5.

         6. Motion in Limine Reply.

         The United States replies that Gutierrez' rule 803(3) argument fails, because rule 803(3) does not apply to statements about belief. See United States' Reply in Support of its Motion In Limine to Exclude Defendant's Self-Serving Declarations as Inadmissible Hearsay at 1-2, filed March 17, 2017 (Doc. 68)(“Motion in Limine Reply”)(citing Fed.R.Evid. 803(3)(“The following are not excluded by the rule against hearsay: . . . [a] statement of declarant's then-exiting statement of mind . . ., but not including a statement of memory or belief to prove the fact remembered or believed.”). The United States argues that rule 803(3)'s exception is premised on the circumstantial guarantees of trustworthiness attendant to statements that reflect a then existing mental, emotional, or physical condition, but such guarantees are absent when statements of belief are at issue, because they lack spontaneity. See Motion in Limine Reply at 3-4 (citing United States v. Taylor, 991 F.2d 797, 1993 WL 94319, at *3 (6th Cir. 1993) (unpublished)). The United States also argues that Gutierrez' statements of belief cannot be introduced via rule 803(3) as an “intent to perform a certain unspecified act in the future, ” unless he shows that he performed the act that his statements suggest he intended to perform. Motion in Limine Reply at 5-6.

         The United States also argues that the rule of completeness does not make Gutierrez' tax-belief statements admissible, because Gutierrez' statements do not contextualize any of the statements which the United States intends to introduce. See Motion in Limine Reply at 6-7. In support of that contention, the United States argues that Gutierrez' tax-belief statements would not contextualize the statements the United States intends to introduce that Gutierrez was aware that he was the subject of a state tax investigation. See Motion in Limine Reply at 8; id. (“Similarly, his tax beliefs do not change the meaning of his admission that he had not paid federal taxes since 1994.”). The United States adds that “[t]he fact that the defendant had an alleged explanation for why he did not file his taxes does not change the fact that he did not file them.” Motion in Limine Reply at 8.

         The United States also argues that there is no indicia of trustworthiness surrounding Gutierrez' tax-belief statements, because they “are entirely subjective” and Gutierrez “had plenty of incentive to provide answers that would mitigate his conduct, ” as Gutierrez' security clearance was at risk. Motion in Limine Reply at 9. Thus, according to the United States, admitting Gutierrez' statements does not serve rule 106's purposes, because, instead of clarifying the statements that the United States elicits, they will mislead the jury. See Motion in Limine Reply at 9.

         The United States concludes that Gutierrez' invocation of rule 403 fails, because that rule applies only if the statements are otherwise admissible. See Motion in Limine Reply at 10. The United States argues that, because rules 106 and 803(3) do not make Gutierrez' tax-belief statements admissible, rule 403 does not apply. See Motion in Limine Reply at 10. The United States argues, however, that, if the Court were to conclude that Gutierrez' tax-belief statements are admissible, rule 403 “favors exclusion of his statement, ” because they would “confuse the issues, and mislead the jury” about the case's applicable law. Motion in Limine Reply at 10. The United States concludes, accordingly, that the Court should exclude Gutierrez' tax-belief statements. See Motion in Limine Reply at 10.

         7. The March 22, 2017, Hearing.

         The Court held a hearing on March 22, 2017, about the Motion in Limine. See Draft Transcript of Motion Proceedings at 2:1 (taken March 22, 2017)(Court)(“March 22 Tr.”).[3] The Court opened by noting that it is inclined to grant the Motion in Limine. See March 22 Tr. at 3:23-24 (Court); id. at 3:24-4:1 (Court)(“I know you know this Mr. Bowles, you can't sit there and have other witnesses tell Mr. Gutierrez' story through their mo[uths].”). The Court noted that there might be some statements that Gutierrez could introduce through rule 803(3), but that it will resolve those statements if they arise at trial. See March 22 Tr. at 4:4-25 (Court). It also noted its inclination that the rule of completeness would not allow Gutierrez to sneak in his statements if he did not take the stand. See March 22 Tr. at 4:15-17 (Court).

         The United States agreed with the Court's assessment, but argued that none of Gutierrez' tax belief statements are admissible under rule 803(3). See March 22 Tr. at 5:18-24 (Kastrin). The United States contended that, in general, Gutierrez' statements are statements of belief, so rule 803(3) does not apply. See March 22 Tr. at 9:2-6 (Kastrin). It also argued that there are no statements of Gutierrez' intention to do something where Gutierrez later acted in conformity with that intention. See March 22 Tr. at 10:11-17 (Kastrin).

         Gutierrez rejoined that the Court should allow Gutierrez to introduce his statements about his tax beliefs, because they are or are very likely to be relevant. See March 22 Tr. at 13:19-14:2 (Bowles). He concedes, however, that Gutierrez might have to testify for the Court to admit his statements and other documents reflecting his tax beliefs. See March 22 Tr. at 14:8-9 (Bowles). Gutierrez contends that whether he intended to obstruct the administration of the revenue laws is at issue, so his tax beliefs are relevant. See March 22 Tr. at 15:10-15 (Bowles). Gutierrez agreed with the Court, however, that the best way to approach these statements is to approach the Court when it intended to introduce them at trial. See March 22 Tr. at 16:1-19 (Court, Bowles).

         The United States argued that, even if Gutierrez testifies, the statements would still be inadmissible hearsay. See March 22 Tr. at 18:19-22 (Kastrin). The United States also contended that admitting Gutierrez' beliefs would confuse the jury about the applicable law, so the Court should exclude them under rule 403. See March 22 Tr. at 19:10-18 (Kastrin). The Court asked the United States whether it thinks Gutierrez' statements were relevant for a good-faith defense. See March 22 Tr. at 19:25-20:4 (Court). The United States argued that Gutierrez might not even qualify for a good faith defense. See March 22 Tr. at 20:5-8 (Kastrin)(“[I]t really depends on how he phrases what his beliefs [are].”). The United States represented that the good-faith instruction for which it would ask would be that Gutierrez lacks the requisite intent if he has a good-faith belief or holds the mistaken belief that his actions comply with the tax laws, but a disagreement about the tax laws' scope does not relieve Gutierrez from criminal liability. See March 22 Tr. at 20:14-20 (Kastrin). The United States also argued that Gutierrez' tax-law beliefs changed over time, so the United States represented that they may attack his belief's sincerity at trial. See March 22 Tr. at 21:4-11 (Kastrin). The Court responded that, if the United States challenges the sincerity of Gutierrez' tax beliefs, it will allow Gutierrez' statements to come in -- provided that Gutierrez testifies -- but that it will bar the testimony if the United States does not challenge Gutierrez' sincerity. See March 22 Tr. at 24:22-25:7 (Court)(“[I]t's a phantom issue [if] they're letting [it] go to the jury the fact that he's had and has always said this.”).

         8. The Jury Instruction Requests.

         The United States requests the Court's final jury instructions to define acting “corruptly, ” under 26 U.S.C. § 7212(a), as “to act with the intent to secure an unlawful advantage or benefit either for oneself or for another.” United States Jury Instructions at 24-25, filed March 17, 2017 (Doc. 67)(“Instruction Request”)(citing United States v. Thompson, 518 F.3d 832 (10th Cir. 2008); United States v. Dowell, 430 F.3d 1100, 1110 (10th Cir. 2005)). The United States also requests a jury instruction that: “[K]nowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact. Knowledge can be inferred if the defendant was aware of a high probability of the existence of [the fact in question], unless the defendant did not actually believe [the fact in question].” Instruction Request at 31 (citing Tenth Circuit Pattern Jury Instructions Criminal 1.37 (2011))(alterations and underlining in Instruction Request).

         Gutierrez responds that the Court should more precisely define “corruptly” as “act[ing] knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice.” Defendant's Objections to United States' Proposed Voir Dire and Requested Jury Instructions at 2, filed March 20, 2017 (Doc. 70)(citing Tenth Circuit Pattern Jury Instruction Criminal 2.62 (2011))(“Instruction Request Response”). He also contends that the United States' “willful blindness” -- sometimes called deliberate ignorance -- instruction is inappropriate, because that instruction “in general [is] discouraged.” Instruction Request Response at 2 (citing United States v. Delreal-Ordones, 213 F.3d 1263, 1268 (10th Cir. 2000)).

         The United States replies that Gutierrez' definition comes from pattern instructions on a different statute -- 18 U.S.C. § 1503(a) -- so that definition is inappropriate. See United States' Response to Defendant's Objections to the United States' Proposed Voir Dire & Jury Instruction at 2, filed March 21, 2017 (Doc. 71)(“Instruction Request Reply”). The United States also argues that its proposed instruction is more appropriate, because the Tenth Circuit and the Court has used its definition previously. See Instruction Request Reply at 2 (citing United States v. Winchell, 129 F.3d 1093, 1098 (10th Cir. 1997); United States v. Williamson, 2013 WL 1658021, at *18 (D.N.M. March 20, 2013)(Browning, J.)). The United States also argues its deliberate-ignorance instruction is appropriate, because the Tenth Circuit has approved its use in tax cases. See Instruction Request Reply at 3 (citing United States v. Sorenson, 801 F.3d 1217, 1233-35 (10th Cir. 2015)).

         The Court signaled that it was inclined to adopt at trial the United States' definition of corruptly. See Draft Transcript of Trial Proceedings, at 71:5-10 (taken March 28, 2017)(Court)(“March 28 Trial Tr.”)[4](“I'm sort of inclined to think that there are so[] many Tenth Circuit cases that approve the language that the Government has proposed that I'll do it.”). The Court also reasoned that, if it adopts the United States' definition, there will be no “knowingly” in any instruction, so the deliberate-ignorance instruction can be omitted. March 28 Trial Tr. at 71:10-19 (Court). The United States responded that there is caselaw where deliberate ignorance is also a component of willfulness. See March 28 Trial Tr. at 72:11-20 (Kastrin).

         9. The Trial Brief.

         Gutierrez argues that the Tenth Circuit has twice approved 26 U.S.C. § 7212(a) instructions containing no knowledge or deliberate-ignorance instruction, so the Court's proposal to omit knowledge and the deliberate-ignorance instruction is proper. See Trial Brief at 1. Gutierrez argues that, independent of that caselaw, the Court should not give a deliberate- ignorance instruction, because such an instruction is proper only when there is trial evidence that a defendant purposefully avoided learning facts so that he may have a defense in a subsequent prosecution. See Trial Brief at 1. According to Gutierrez, the United States has not given any such evidence. See Trial Brief at 1-2. He argues that the “best” evidence that the United States has provided is that “Mr. Gutierrez attempted to avoid certain unspecified letters.” Trial Brief at 2. He adds that, in contrast, there has been an overwhelming amount of evidence that Gutierrez received notice of the IRS' correspondence. See Trial Brief at 2 (“The overall picture that has been painted is not that Mr. Gutierrez blinded himself to the correspondence, but that he received much of it and stamped a lot of it with his own objections.”). Gutierrez also asserts that the Court should refrain from giving the deliberate-ignorance instruction, because it is rarely given, and usually given only when “the defendant denies knowledge of an operative fact, ” but the evidence “demonstrates or creates the inference that the defendant deliberately avoided actual knowledge of that fact.” Trial Brief at 2.

         The Court heard argument again at trial on the jury instructions. See Draft Transcript of Trial Proceedings at 40:9 (taken March 29, 2017)(Court)(“March 29 Trial Tr.”).[5] The Court noted that, contrary to Gutierrez' position, the Tenth Circuit has recently required a knowing instruction with 26 U.S.C. § 7212(a), but that it agrees with Gutierrez that the United States' case did not demonstrate that Gutierrez had willfully blinded himself. See March 29 Trial Tr. at 40:9-41:22 (Court)(“[H]e's not blinding himself. He's purposely doing things to show his disagreement with the law.”). The United States argued that the deliberate-ignorance instruction is still proper even though it has shown actual knowledge, because Tenth Circuit caselaw has allowed such instructions. See March 29 Trial Tr. at 43:8-14 (Kastrin)(citing United States v. Espinoza, 244 F.3d 1234 (10th Cir. 2001)). The United States added that a deliberate-ignorance instruction is proper both for the 26 U.S.C. § 7212(a) charge, but also for the 26 U.S.C. § 7206(1) charges. See March 29 Trial Tr. at 139:15-21 (Kastrin). It argued that there is trial evidence of deliberate ignorance, because Gutierrez sent back letters to the IRS without reading them. See March 29 Trial Tr. at 141:21-142:1 (Kastrin)(“That's deliberate avoidance.”). Gutierrez responded that the letters which Gutierrez sent back are letters sent in 2013 -- two years after the corrupt acts in Counts 2-11 of the Indictment. See March 29 Trial at 150:23-151:5 (Bowles). Gutierrez acknowledges that Count 1 has acts in 2013, but he argues that the cases that the United States cites to argue that a deliberate-ignorance instruction is proper are not relevant to 26 U.S.C. § 7212(a). See March 29 Trial Tr. at 151:5-14 (Bowles). Gutierrez argues that they are not relevant to 26 U.S.C. § 7212(a), because the mental state at issue for 26 U.S.C. § 7212(a) occurred before Gutierrez received the notices from the IRS. See March 29 Trial Tr. at 151:14-20 (Bowles). He also contended that a deliberate-ignorance instruction is more properly attached with a knowledge instruction and not a willfulness instruction, because willfulness is about good faith whereas knowledge is about mental state. See March 29 Trial Tr. at 153:8-19 (Bowles).

         LAW REGARDING THE UNITED STATES' DUTY TO DISCLOSE IN CRIMINAL CASES

         The United States' duty to disclose in criminal cases arises from at least three sources: (i) rule 16 of the Federal Rules of Criminal Procedure; (ii) the Due Process Clause of the Fifth Amendment to the Constitution of the United States of America; and (iii) the Jencks Act. Put roughly, rule 16 requires the United States to disclose items material to the defense, items it intends to use in its case-in-chief, and items it obtained from the defendant. See Fed. R. Crim. P. 16. The Due Process Clause requires the United States to furnish information in its possession that is favorable to the accused. Finally, the Jencks Act requires the United States to disclose states that its witnesses made if those statements are in the United States' possession and relate to those witnesses' trial testimony, after those witnesses have testified at trial.

         1. Rule 16.

Rule 16 of the Federal Rules of Criminal Procedure provides:
Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.

         Fed. R. Crim. P. 16(a)(1)(E). Under a standard Order used in the District of New Mexico, “[u]nless the defendant has filed [a specified] waiver, within eight days of the entry of this Order, the Government shall provide to defendant's counsel without motion all of the information to which defendant is entitled pursuant to Rule 16.” Order at 1-2, filed March 14, 2014 (Doc. 8). Criminal defendants may not, however, embark on a “broad or blind fishing expedition among documents possessed by the Government.” Jencks v. United States, 353 U.S. 657, 667 (1957)(quoting Gordon v. United States, 344 U.S. 414, 419 (1953)). Rule 16(a)(2) provides, in part, that rule 16 “does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.” Fed. R. Crim. P. 16(a)(2). The Supreme Court of the United States has interpreted the term “defense” in this statute as referring to “an argument in response to the prosecution's case in chief.” United States v. Armstrong, 517 U.S. 456, 462 (1996)(“[W]e conclude that in the context of Rule 16 ‘the defendant's defense' means the defendant's response to the Government's case in chief.”). Additionally, rule 16 does not require the United States to produce “reports, memoranda, or other internal government documents. . . [or] statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.” Fed. R. Crim. P. 16 (a)(2).

         2. Due Process Clause.

         “The Due Process Clause of the Constitution requires the United States to disclose information favorable to the accused that is material to either guilt or to punishment.” United States v. Padilla, 2011 WL 1103876, at *5 (D.N.M. 2011)(Browning, J.). In Brady v. Maryland, the Supreme Court explained that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court extended the prosecution's disclosure obligation to evidence that is useful to the defense in impeaching government witnesses, even if the evidence is not inherently exculpatory. See 405 U.S. at 153; United States v. Torres, 569 F.3d 1277, 1282 (10th Cir. 2009)(“Impeachment evidence is considered exculpatory for Brady purposes.”); Douglas v. Workman, 560 F.3d 1156, 1172-73 (10th Cir. 2009)(“[N]o distinction is recognized between evidence that exculpates a defendant and ‘evidence that the defense might have used to impeach the [United States'] witnesses by showing bias and interest.'” (quoting United States v. Bagley, 473 U.S. 667, 676 (1985))); United States v. Abello-Silva, 948 F.2d 1168, 1179 (10th Cir. 1991)(“Impeachment evidence merits the same constitutional treatment as exculpatory evidence.”). Finally, the Supreme Court has refined Brady v. Maryland and clarified that it is not necessary that a defendant request exculpatory evidence; “[R]egardless of request, favorable evidence is material, and constitutional error results from its suppression by the government ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'” Kyles v. Whitley, 514 U.S. 419, 433 (1995)(quoting United States v. Bagley, 473 U.S. at 682). See Douglas v. Workman, 560 F.3d at 1172 (“The government's obligation to disclose exculpatory evidence does not turn on an accused's request.”); United States v. Summers, 414 F.3d 1287, 1304 (10th Cir. 2005)(“[T]he prosecution has an affirmative duty to disclose exculpatory evidence clearly supporting a claim of innocence even without request.”). “[T]he Due Process Clause does not require the government to disclose before trial the names of its witnesses, just so the defense can have sufficient time to investigate their backgrounds for impeachment information.” United States v. Ashley, 274 Fed.Appx. 693, 697 (10th Cir. 2008)(unpublished). See Weatherford v. Bursey, 429 U.S. 545, 559 (1977)(“It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably.”); United States v. Harmon, 871 F.Supp. 2d. 1125, 1149 (D.N.M. 2012)(Browning, J.).

         a. Timing of the Disclosure.

         The prosecution's obligation to disclose evidence under Brady v. Maryland can vary depending on the phase of the criminal proceedings and the evidence at issue. As a general matter, “[s]ome limitation on disclosure delay is necessary to protect the principles articulated in Brady v. Maryland.” United States v. Burke, 571 F.3d 1048, 1054 (10th Cir. 2009). The Tenth Circuit has recognized that “[i]t would eviscerate the purpose of the Brady rule and encourage gamesmanship were we to allow the government to postpone disclosures to the last minute, during trial.” United States v. Burke, 571 F.3d at 1054. “[T]he belated disclosure of impeachment or exculpatory information favorable to the accused violates due process when an ‘earlier disclosure would have created a reasonable doubt of guilt.'” United States v. Burke, 571 F.3d at 1054 (quoting United States v. Young, 45 F.3d 1405, 1408 (10th Cir. 1995)). The Tenth Circuit has stated:

Where the district court concludes that the government was dilatory in its compliance with Brady, to the prejudice of the defendant, the district court has discretion to determine an appropriate remedy, whether it be exclusion of the witness, limitations on the scope of permitted testimony, instructions to the jury, or even mistrial.

United States v. Burke, 571 F.3d at 1054. On the other hand, “not every delay in disclosure of Brady material is necessarily prejudicial to the defense.” United States v. Burke, 571 F.3d at 1056. “To justify imposition of a remedy, the defense must articulate to the district court the reasons why the delay should be regarded as materially prejudicial.” United States v. Burke, 571 F.3d at 1056. Courts should, “[w]hen assessing the materiality of Giglio information, . . . consider the significance of the suppressed evidence in relation to the entire record.” United States v. Gonzalez-Montoya, 161 F.3d 643, 650 (10th Cir. 1998).

         When a prosecutor's obligations under Brady v. Maryland are triggered, however, they “continue[] throughout the judicial process.” Douglas v. Workman, 560 F.3d at 1173. For instance, the obligation to disclose material under Brady v. Maryland can arise during trial. See United States v. Headman, 594 F.3d at 1183 (10th Cir. 2010)(“Although Brady claims typically arise from nondisclosure of facts that occurred before trial, they can be based on nondisclosure of favorable evidence (such as impeachment evidence) that is unavailable to the government until trial is underway.”). Additionally, the disclosure obligation continues even while a case is on direct appeal. See United States v. Headman, 594 F.3d at 1183; Smith v. Roberts, 115 F.3d 818, 819, 820 (10th Cir. 1997)(applying Brady v. Maryland to an allegation that the prosecutor failed to disclose evidence received after trial but while the case was on direct appeal); United States v. Harry, 2013 WL 684671, at *5 (D.N.M. 2013)(Browning, J.).

         b. Material Exculpatory Evidence.

         The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused, and “material either to guilt or to punishment.” 373 U.S. at 87. “Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. at 682. See United States v. Allen, 603 F.3d 1202, 1215 (10th Cir. 2010). A “reasonable probability” is a “probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. at 682 (internal quotation marks omitted). The Tenth Circuit has noted that “[t]he mere possibility that evidence is exculpatory does not satisfy the constitutional materiality standard.” United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir. 1994). The Tenth Circuit has also found that “[d]uplicative impeachment evidence is not material.” Douglas v. Workman, 560 F.3d at 1173. “To be material under Brady, undisclosed information or evidence acquired through that information must be admissible.” Banks v. Reynolds, 54 F.3d 1508, 1521 n.34 (10th Cir. 1995)(quoting United States v. Kennedy, 890 F.2d 1056, 1059 (9th Cir. 1989)).

         The burden is on the United States to produce exculpatory materials; the burden is not on the defendant to first point out that such materials exist. See Kyles v. Whitley, 514 U.S. at 437 (stating that the prosecution has an affirmative duty to disclose evidence, because “the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of ‘reasonable probability' is reached”); United States v. Deutsch, 475 F.2d 55, 57 (5th Cir. 1973)(granting a mistrial for failure to produce personnel files of government witnesses), overruled on other grounds by United States v. Henry, 749 F.2d 203 (5th Cir. 1984); United States v. Padilla, 2011 WL 1103876, at *6. The United States' good or bad faith is irrelevant. See Brady v. Maryland, 373 U.S. at 87; United States v. Quintana, 673 F.2d at 299 (“Under Brady, the good or bad faith of government agents is irrelevant.”). “This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence.” Kyles v. Whitley, 514 U.S. at 439. The United States has an obligation to “volunteer exculpatory evidence never requested, or requested only in a general way, ” although the obligation exists only “when suppression of the evidence would be of sufficient significance to result in the denial of the defendant's right to a fair trial.” Kyles v. Whitley, 514 U.S. at 433 (internal quotation marks omitted). On the other hand, “[t]he Constitution, as interpreted in Brady, does not require the prosecution to divulge every possible shred of evidence that could conceivably benefit the defendant.” Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d 801, 823 (10th Cir. 1995). Additionally, “[t]he constitution does not grant criminal defendants the right to embark on a broad or blind fishing expedition among documents possessed by the” United States. United States v. Mayes, 917 F.2d 457, 461 (10th Cir. 1990)(quoting Jencks v. United States, 353 U.S. at 667); United States v. Harry, 2013 WL 684671, at *8.

         c. Evidence Must Be in the United States' Possession.

         “It is well settled that there is no ‘affirmative duty upon the government to take action to discover information which it does not possess.'” United States v. Tierney, 947 F.2d 854, 864 (8th Cir. 1991)(quoting United States v. Beaver, 524 F.2d 963, 966 (5th Cir. 1975)). Accord United States v. Kraemer, 810 F.2d 173, 178 (8th Cir. 1987)(explaining that the prosecution is not required “to search out exculpatory evidence for the defendant”); United States v. Badonie, No. CR 03-2062, 2005 WL 2312480, at *3 (D.N.M. Aug. 29, 2005)(Browning, J.). On the other hand, “a prosecutor's office cannot get around Brady by keeping itself in ignorance, or by compartmentalizing information about different aspects of a case.” Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984). Under Brady v. Maryland, “[a] prosecutor must disclose information of which it has knowledge and access.” United States v. Padilla, 2011 WL 1103876, at *7 (citing United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir. 1989)). “A prosecutor may have a duty to search files maintained by other ‘governmental agencies closely aligned with the prosecution' when there is ‘some reasonable prospect or notice of finding exculpatory evidence.'” United States v. Padilla, 2011 WL 1103876, at *7 (quoting United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992)). A prosecutor does not have a duty, however, to obtain evidence from third parties. See United States v. Combs, 267 F.3d 1167, 1173 (10th Cir. 2001) (observing that Brady v. Maryland does not oblige the government to obtain evidence from third parties). See also United States v. Huerta-Rodriguez, No. CR 09-3206, 2010 WL 3834061, at **4, 10 (D.N.M. Aug. 12, 2010)(Browning, J.)(noting that the United States cannot be compelled to produce the New Mexico State Police officers' personnel files, because the New Mexico State Police, which was not a party to the case, possessed the files, and the United States was able to review the files only at the New Mexico State Police office, and could not remove or photocopy any documents without a subpoena); United States v. Badonie, 2005 WL 2312480, at *3 (denying a motion to compel because the New Mexico State Police possessed the documents, and the United States did not possess the documents, a defendant sought to be produced, even though the United States “could get the information [Defendant] Badonie seeks merely by requesting them”); United States v. Harry, 2013 WL 684671, at *8.

         3. The Jencks Act.

         In Jencks v. United States, the Supreme Court held that a “criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at trial.” 353 U.S. at 672. In so holding, the Supreme Court recognized that the

rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.

353 U.S. at 671. Congress later codified Jencks v. United States' holding in 18 U.S.C. § 3500. See United States v. Kimoto, 588 F.3d 464, 475 (7th Cir. 2009)(explaining that, “the Jencks Act, 18 U.S.C. § 3500[, ] . . . was enacted in response to the Supreme Court's holding in Jencks v. United States, 353 U.S. 657 . . . ”).

         Section 3500 of Title 18 of the United States Code provides:

(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

18 U.S.C. §§ 3500(a), (b). “The Jencks Act requires the government to disclose to criminal defendants any statement made by a government witness that is ‘in the possession of the United States' once that witness has testified.” United States v. Lujan, 530 F.Supp.2d 1224, 1232 (D.N.M. 2008)(Brack, J.)(quoting 18 U.S.C. §§ 3500(a)-(b)). The Jencks Act “manifests the general statutory aim to restrict the use of such statements to impeachment.” Palermo v. United States, 360 U.S. 343, 349 (1959). The Jencks Act's purpose is “not only to protect Government files from unwarranted disclosure but also to allow defendants materials usable for the purposes of impeachment.” United States v. Smaldone, 544 F.2d 456, 460 (10th Cir.1976)(citing Palermo v. United States, 360 U.S. at 352). The Jencks Act defines statements specifically:

(e) The term “statement, ” as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means--
(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

18 U.S.C. § 3500(e). The Tenth Circuit has held: “Interview notes could be ‘statements' under the [Jencks] Act if they are substantially verbatim.” United States v. Smith, 984 F.2d 1084, 1086 (10th Cir. 1993). At least one district court within the Tenth Circuit has distinguished interview notes from reports that “embody only the agent's epitomization, interpretation, or impression of an interview, ” finding that the latter are not producible under the Jencks Act. United States v. Jackson, 850 F.Supp. 1481, 1508 (D. Kan. 1994)(Crow, J.). In United States v. Lujan, the Honorable Robert C. Brack, United States District Judge for the District of New Mexico, explained that rough interview notes may be discoverable under the Jencks Act when a defendant makes “at least . . . a colorable claim that an investigator's discarded rough notes contained exculpatory evidence not included in any formal interview report provided to the defense.” 530 F.Supp.2d at 1266. Judge Brack went on to hold that, “[b]ecause the contents of rough interview notes may in some cases be subject to disclosure and because the potential impeachment value of the notes may not become evident until trial, ” the United States must preserve its rough interview notes “made by law enforcement agents during interview of potential witnesses” under 18 U.S.C. § 3500. 530 F.Supp.2d at 1267. See United States v. Cooper, 283 F.Supp.2d 1215, 1238 (D. Kan. 2003)(Crow, J.)(noting that rough interview notes may be discoverable under the Jencks Act); United States v. Jackson, 850 F.Supp. at 1508-09 (finding that interview notes may be producible under the Jencks Act).

         The defendant bears the initial burden of showing that particular materials qualify under the Jencks Act, but the defendant's burden is not heavy. See United States v. Smaldone, 544 F.2d at 460 (“[T]he burden is on the defendant to show that particular materials qualify as ‘Statements' and that they relate to the subject matter of the testimony of the witness.”). To satisfy this burden, the defendant need not prove that particular materials are within the Jencks Act's scope, as the documents are not in the defendant's possession, but, rather, “must plainly tender to the Court the question of the producibility of the document at a time when it is possible for the Court to order it produced, or to make an appropriate inquiry.” United States v. Smith, 984 F.2d at 1086 (quoting Ogden v. United States, 303 F.2d 724, 733 (9th Cir. 1962)). The defendant's demand for documents under the Jencks Act must be sufficiently precise for a court to identify the requested statements. See United States v. Smith, 984 F.2d at 1086. For example, in United States v. Smith, the Tenth Circuit concluded that a defendant had met his burden and made a prima facie showing that a statement of a witness existed which may be producible under the Jencks Act when a government witness testified during the United States' case-in-chief that a government agent had interviewed her before testifying, and the defense counsel moved for production of the notes. See 984 F.2d at 1085-86. Once the defendant makes a prima facie showing that a witness statement exists which may be producible under the Jencks Act, the court should conduct a hearing or in camera review of the statement. United States v. Smith, 984 F.2d at 1086.

         The Court has applied the Jencks Act to Drug Enforcement Agency agents' notes, generated from interviews with defendants, holding that the notes must be disclosed to the defendants after the agents testify at trial. See United States v. Goxcon-Chagal, No. CR 11-2002, 2012 WL 3249473, at **2, 6 (D.N.M. Aug. 4, 2012)(Browning, J.). In United States v. Tarango, 760 F.Supp.2d 1163 (D.N.M. 2009)(Browning, J.), the Court, applying 18 U.S.C. § 3500, held that the United States must produce FBI agents' 302s, after the United States' witnesses testified at trial, to the extent those reports contains statements from witnesses who testified at trial. See 760 F.Supp.2d at 1164, 1167; United States v. Harry, 2013 WL 684671, at *11.

         LAW REGARDING GRAND JURY TRANSCRIPTS

         In recognition of the Grand Jury's status as an independent institution, courts afford Grand Jury proceedings a presumption of regularity. See United States v. Johnson, 319 U.S. 503, 512-13 (1943). “This presumption attaches even after the grand jury has returned an initial indictment. After all, superseding indictments setting forth new charges or adding new defendants are familiar fare.” United States v. Flemmi, 245 F.3d 24, 28 (1st Cir. 2001). A “‘grand jury proceeding is accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process.'” United States v. R. Enters., Inc., 498 U.S. 292, 301 (1991)(quoting United States v. Mechanik, 475 U.S. 66, 75 (1986)(O'Connor, J., concurring)). To be entitled to production, the defendant must show a “particularized need” for the documents that outweighs the public policy of grand jury secrecy. United States v. Warren, 747 F.2d 1339, 1347 (10th Cir. 1984). The particularized need requirement, however, is not satisfied when a party attempts to engage in a fishing expedition in the hopes of discovering useful material. See United States v. Kim, 577 F.2d 473, 478 (9th Cir. 1978). “A simple desire for the grand jury transcripts in the unsubstantiated hope that something might turn up is insufficient to require disclosure.” United States v. Battle, 1997 WL 447814, at *18 (D. Kan. June 27, 1997)(Crow, J.).

         In Douglas Oil. Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979), the Supreme Court sets forth the standard for reviewing whether grand jury transcripts should be produced:

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. Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations. . . . For in considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning ...

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