U.S. v. Elliott

• Decision Date: 14 July 1988
• Docket Number: No. 86-8884,86-8884
• Citation: 849 F.2d 554
• Parties: 26 Fed. R. Evid. Serv. 829 UNITED STATES of America, Plaintiff-Appellee, v. Ronald Benton ELLIOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 554

849 F.2d 554

26 Fed. R. Evid. Serv. 829

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Benton ELLIOTT, Defendant-Appellant.

No. 86-8884.

United States Court of Appeals Eleventh Circuit.

July 14, 1988.

Herbert Moncier, Ann C. Short, Knoxville, Tenn., Bruce Fleisher, Coral Gables, Fla., for defendant-appellant.

William P. Gaffney, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, Chief Judge, JOHNSON, Circuit Judge, and PECK ^*, Senior Circuit Judge.

RONEY, Chief Judge:

Defendant, Ronald Benton Elliott, was one of twelve people originally indicted in 1983 for narcotics related offenses. A five-count superseding indictment was returned on April 2, 1986, charging Elliott with: (1) importation of marijuana, (2) travel in interstate commerce to facilitate unlawful activity, (3) distribution and possession with intent to distribute marijuana, (4) conspiracy to import marijuana, and (5) conspiracy to distribute and possess with intent to distribute marijuana. Elliott had operated a marijuana-smuggling organization, whose base of operation was located in the Bahamas. Elliott's organization flew planeloads of marijuana primarily into south Florida. Elliott pled not guilty. Tony Chester, one of the people originally indicted along with Elliott in 1983, cooperated with the Government and testified against Elliott regarding these smuggling operations. Elliott was convicted by a jury on all five counts on July 29, 1986. We affirm.

1. SPEEDY TRIAL

Elliott argues that pretrial delay violated his Sixth Amendment right to a speedy trial and also the Speedy Trial Act, 18 U.S.C.A. Sec. 3161 et seq. We affirm the district court's denial of Elliott's speedy trial motions for the reasons stated in that court's order.

2. GOVERNMENTAL MISCONDUCT

Elliott argues that the Government presented fabricated documents to the grand jury; that Government attorneys abused the court's subpoena power; and that there were egregious violations of Fed.R.Crim.P. 6(e) which resulted in abuses of the grand jury secrecy rule. We disagree.

At the Government's prompting, Ms. Bickerton, a public accountant formerly associated with T. Lamar Chester, fabricated documents to be included among those in her possession subpoenaed by a Houston grand jury to be presented to an Atlanta grand jury. The fabrication was arranged by Government agents in their effort to uncover a suspected obstruction of justice by Chester and two lawyers. The plan ultimately failed, and the fabricated documents were misplaced along with other genuine documents. The magistrate's report and recommendation included a finding that no fabricated documents were presented to the indicting grand jury. The district court adopted this finding upon a de novo review of the record. This finding is not clearly erroneous.

Elliott argues that the district court's grand jury subpoena power was abused because it was used by the Government as a pretext for investigative purposes to interview suspects, and not solely for grand jury purposes. That a subpoenaed individual is not ultimately called before the grand jury does not result in a per se violation of a court's subpoena power. As a practical matter, the United States Attorney is allowed considerable leeway in attempting to prepare for a grand jury investigation. United States v. Santucci, 674 F.2d 624, 632 (7th Cir.1982), cert. denied, 459 U.S. 1109, 103 S.Ct. 737, 74 L.Ed.2d 959 (1983). The United States Attorney must regularly interview witnesses prior to appearances before the grand jury to ensure that grand jurors are not burdened with duplicate information. The court's subpoena power may not, however, be used by the United States Attorney's office as part of its own investigative process. United States v. DiGilio, 538 F.2d 972, 985 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). Courts necessarily play a limited role regarding grand jury proceedings given the role of the United States Attorney and the broad power inherent in the grand jury.

A review of the grand jury testimony and records does not show an encroachment by the Government on the court's subpoena power that would compel court interference. Only by the exercise of this Court's general supervisory power to protect the integrity of the judicial process could some relief be afforded Elliott on this point. On this record, we find no reason to exercise that power. See Bank of Nova Scotia v. United States, --- U.S. ----, 108 S.Ct. 2369, 101 L.Ed.2d 228, (1988) (court should not invoke its supervisory power to dismiss an indictment for prosecutorial misconduct in a grand jury investigation where misconduct does not prejudice the defendant).

The record reflects some probable misconduct by some Government lawyers. The district court, however, carefully considered the allegations of violations of grand jury secrecy and concluded that Elliott did not establish sufficient prejudice to warrant dismissal of the indictment. The district court found that the magistrate had given Elliott a fair hearing, and was within his discretion in denying defendant's motion for production of grand jury records. We agree.

The controlling standard for our purposes is a straightforward one:

Parties seeking grand jury transcripts under rule 6(e) must show that the matter 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.

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1675, 60 L.Ed.2d 156 (1979) (footnote omitted). A defendant's effort to obtain grand jury materials can only succeed with a showing of "particularized need." United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077 (1958). The decision to disclose grand jury proceedings is a matter within the district court's discretion. United States v. Benton, 637 F.2d 1052, 1059 (5th Cir. Unit B 1981). Particularized need is not shown by a general allegation that grand jury materials are necessary for the preparation of a motion to dismiss. See Thomas v. United States, 597 F.2d 656, 658 (8th Cir.1979). See also United States v. Sells Eng'g Inc., 463 U.S. 418, 445, 103 S.Ct. 3133, 3149, 77 L.Ed.2d 743 (1983) (rational relationship to alleged claims is insufficient to constitute particularized need); United States v. Cole, 755 F.2d 748, 759 (11th Cir.1985) (unsubstantiated allegations do not satisfy particularized need standard).

The district court found that Elliott failed to show particularized need. Without this showing, Elliott is not entitled to grand jury materials, nor can we require those materials to be revealed. United States v. Liuzzo, 739 F.2d 541, 545 (11th Cir.1984). The district court's finding on this issue is not clearly erroneous. The magistrate and district court reviewed extensively the Rule 6(e) issues in the case, as evidenced by the magistrate's order denying Elliott's motion for production of grand jury records, the magistrate's report and recommendation on Elliott's motion to dismiss the indictment, and the district court's affirming order.

Among other things, the district court found: First, that the serious prejudice asserted by defendant was undermined by his year and a half delay before appealing the magistrate's denial. Second, that the magistrate's finding that the requisite particularized need had not been shown was not clearly erroneous. The only allegation found to approach particularized need was the allegation of fabricated documents, as to which the district court found that none came before the grand jury. Third, that defendant made no attempt to particularize his sweeping request for grand jury records. Fourth, that, as to the transfer orders and letters, neither a showing of particularized need nor an explanation of how disclosure would assist in establishing government misconduct before the indicting grand jury. Fifth, that, adopting the magistrate's finding, the Houston and Atlanta grand jury investigations were not a single, joint investigation of the same individuals and transactions. Sixth, that the majority of the alleged violations occurred in relation to the Houston grand jury investigation with little or no impact on the Atlanta grand jury investigation. Seventh, that defendant had not shown that any conduct, in Houston or Atlanta, had prejudiced his rights or ability to make a defense in this case. See Order of March 31, 1986.

Elliott has the burden of showing that the requested materials covered only the particularized need. Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1675. Here, the district court found that Elliott made no attempt to limit or particularize his broad request for all grand jury records, or show how disclosure would assist him in establishing governmental misconduct before the indicting jury. These findings are not clearly erroneous. Elliott must "show that these circumstances had created certain difficulties peculiar to this case, which could be alleviated by access to specific grand jury materials, without doing disproportionate harm to the salutary purpose of secrecy embodied in the grand jury process in order to justify a district court's order of the production of grand jury documents." Liuzzo, 739 F.2d at 545. This he has not done.

3. OTHER CRIME EVIDENCE.

Elliott challenges the admission of testimony from two convicted drug smugglers concerning certain smuggling operations in the Bahamas in which Elliott was involved, but which were not charged in this indictment. See Fed.R.Evid. 404(b). Elliott contends that the district court allowed 404(b) evidence solely to prove...