United States District Court, D. New Mexico
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
Bowles Bowles Law Firm Albuquerque, New Mexico Attorney for
MEMORANDUM OPINION AND ORDER
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.
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.
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
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,
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).
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.
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.
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.
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
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.
The March 13, 2017, Hearing.
Court held a hearing on March 13, 2017. See Draft
Transcript of Motion Proceedings, at 1:1 (taken March 13,
2017)(“March 13 Tr.”). 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
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).
The Motion in Limine.
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.
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.
Motion in Limine Response.
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.
Motion in Limine Reply.
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
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.
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.
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.
The March 22, 2017, Hearing.
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.”). 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).
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).
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
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.”).
The Jury Instruction Requests.
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
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)).
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)).
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.”)(“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
The Trial Brief.
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.
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.”). 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).
REGARDING THE UNITED STATES' DUTY TO DISCLOSE IN
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.
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.
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).
Due Process Clause.
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.).
Timing of the Disclosure.
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).
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.).
Material Exculpatory Evidence.
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)).
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.
Evidence Must Be in the United States'
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.
The Jencks Act.
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 . . . ”).
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
(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
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).
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
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.
REGARDING GRAND JURY TRANSCRIPTS
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.).
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