United States v. Bravo-Fernández
| Decision Date | 07 March 2017 |
| Docket Number | Criminal No. 10–232 (FAB) |
| Citation | 239 F.Supp.3d 411 |
| Parties | UNITED STATES of America, Plaintiff, v. Juan BRAVO–FERNÁNDEZ [1], Hector Martínez–Maldonado [2], Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Daniel A. Petalas, Peter M. Koski, United States Department of Justice, Washington, DC, for Plaintiff.
David Z. Chesnoff, Saraliene Smith–Durrett, Chesnoff & Schonfeld, Las Vegas, NV, Sonia I. Torres–Pabon, Melendez Torres Law, PSC, Jose A. Pagan–Nieves, Joseph C. Laws, San Juan, PR, Martin G. Weinberg, Martin G. Weinberg, P. C., Boston, MA, Abbe David Lowell, Christopher D. Man, Chadbourne & Parke LLP, Washington, DC, for Defendants.
Before the Court is defendant Juan Bravo–Fernandez ("defendant Bravo") and defendant Hector Martinez–Maldonado ("defendant Martinez"), ("defendants")'s joint motion to disclose grand jury instructions as to counts four and five. (Docket No. 736.) Defendants seek disclosure of the legal instructions provided to the grand jury pursuant to Federal Rule of Criminal Procedure 6(e), and ultimately seek dismissal of the indictment. See Docket Nos. 734, 735, & 736. In the alternative, defendants request that the Court conduct an in camera review of the grand jury instructions. See Docket No. 736 at p. 8. For the reasons set forth below, the Court reserves judgment as to defendants' request to dismiss the grand jury indictment, DENIES defendants' request seeking disclosure of grand jury instructions, and GRANTS defendants' request that the Court conduct an in camera review of grand jury instructions as to counts four and five.1
On June 22, 2010, a federal grand jury returned an indictment charging defendant Bravo and defendant Martinez with, among other criminal offenses, federal program bribery in violation of 18 U.S.C. § 666(a)(2) and 18 U.S.C. § 666(a)(1)(B). (Docket No. 1 at ¶¶ 81, 85.) Following a trial that lasted approximately two weeks, the jury convicted defendant Bravo of violating 18 U.S.C. § 666(a)(2) as charged in count four of the indictment, and convicted defendant Martinez of violating 18 U.S.C. § 666(a)(1)(B) as charged in count five of the indictment.2 See Docket No. 438.
The First Circuit Court of Appeals ultimately vacated the convictions of defendants Bravo and Martinez for violating 18 U.S.C. § 666, and remanded the case for further proceedings. United States v. Fernandez , 722 F.3d 1, 39 (1st Cir. 2013). The First Circuit Court of Appeals held that the Court's jury instructions were erroneous because they permitted the jury to convict under a gratuity theory, stating that "[t]he government may not pursue a conviction on that ground [i.e., a gratuity theory] if Defendants are retried." Id . at p. 28. In sum, defendants cannot be convicted of federal program bribery pursuant to a gratuity theory because "the true target of § 666 are bribes, not gratuities." Id . at 26.
The government now intends to retry defendants on the standalone § 666 federal program bribery allegations set forth in counts four and five. In addition to the motion to disclose the grand jury instructions as to counts four and five, defendants filed nine pretrial motions.3 Because the disposition of the pending motions ultimately depends upon the validity of the indictment, the Court must address matters pertaining to the indictment before ruling on the pretrial motions.
A hallmark of the grand jury is the "secrecy of its proceedings." Whitehouse v. United States Dist. Court , 53 F.3d 1349, 1357 (1st Cir. 1995) (citation omitted).4 Only a "compelling necessity" warrants a review of grand jury proceedings. United States v. Capozzi , 486 F.3d 711, 727 (1st Cir. 2007) (quoting United States v. Procter & Gamble Co. , 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) ). Long standing precedent within the First Circuit establishes that grand jury proceedings are entitled to a "presumption of regularity," In re Lopreato , 511 F.2d 1150, 1152 (1st Cir. 1975), and that "a party asserting a claim of grand jury abuse must shoulder a heavy burden" to overcome that presumption. United States v. Flemmi , 245 F.3d 24, 28 (1st Cir. 2001). Despite this presumption of regularity, however, "prosecutors do not have carte blanche in grand jury matters." Flemmi , 245 F.3d at 28.
Federal Rule of Criminal Procedure 6(e)(3)(E)(ii), for instance, states that a Court may authorize disclosure "at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." The defendant bears the burden of demonstrating a "particularized need" for disclosure of grand jury materials.5
United States v. Sells Eng'g, Inc. , 463 U.S. 418, 443, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983). Furthermore, a defendant must also demonstrate a "particularized need" justifying a court's in camera review of grand jury materials. See United States v. Aponte–Garcia , No. 15-660, 2016 WL 7373882, 2016 U.S. Dist. LEXIS 176106 (D.P.R. Dec. 20, 2016) (Besosa, J.) ().
Indeed, Rule 6(e) is not an "invitation to engage in a fishing expedition to search for grand jury wrongdoing and abuse when there are no grounds to believe that any wrongdoing or abuse has occurred." United States v. Rodriguez–Torres , 570 F.Supp.2d 237, 241 (D.P.R. 2008) (Garcia–Gregory, J.). Courts should refuse to disclose grand jury materials, and reject an invitation to conduct an in camera review of matters occurring before the grand jury "unless there is a very clear and positive showing of a need for the [grand jury material]." United States v. Perez– Velazquez , 488 F.Supp.2d 82, 109 (D.P.R. 2007) (Velez–Rive, J.).6
Defendant's request for grand jury instructions is premised on the argument that "the grand jury was (through no wrongdoing by the government), misinstructed that it could return an indictment for conduct (a gratuity) that did not constitute a crime under the statute." (Docket No. 736 at p. 6.) Accordingly, defendants contend that the indictment must be dismissed because it is based on flawed instructions that "substantially influenced the grand jury's decision to indict." See Docket No. 736 at p. 5 (quoting Bank of Nova Scotia v. United States , 487 U.S. 250, 256, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) ).
The Court is satisfied that defendants have demonstrated a particularized need justifying an in camera review of grand jury instructions. Indeed, defendants' arguments in support of in camera review amount to more than "[m]ere speculation that [...] the Government may have improperly instructed the grand jury." See United States v. Forde , 740 F.Supp.2d 406, 414 (S.D.N.Y. 2010). The language in section 666 does not specifically cover only quid pro quo arrangements, and until the First Circuit Court of Appeals addressed what was then a matter of first impression in this circuit, there was no reason to believe that it would be improper to premise a section 666 prosecution on a gratuity theory.7 In fact, relying upon model jury instructions used routinely in trials involving section 666 prosecutions, the Court provided the petit jury instructions that included a gratuity theory of liability. Moreover, in closing argument at the first trial, the government specifically informed the petit jury that "it doesn't matter if the trip was offered before official acts were taken, at the same time official acts were taken, or after official acts were taken, because the crime is offering or accepting the trip with intent to influence or reward." Fernandez , 722 F.3d 1, 18. Whether the grand jury received similar instructions may inform the Court's decision as to whether the indictment pending against defendants is valid.
Although not identical to the case before the Court, the reasoning set forth in United States v. Twersky , No. 92-1082, 1994 WL 319367, 1994 U.S. Dist. LEXIS 8744 (S.D.N.Y. June 29, 1994) persuades the Court that, under the circumstances, it would be appropriate to review the government's grand jury instructions in camera . In Twersky , the grand jury indictment set forth three counts requiring the government to prove that the defendant "willfully" violated a federal statute. Id . at *2, 1994 U.S. Dist. LEXIS 8744 at *6. At trial, the court instructed the jury that the government need not prove defendant knew his acts were unlawful. Id . at *3, 1994 U.S. Dist. LEXIS 8744 at *7. Subsequently, the Supreme Court in Ratzlaf v. United S t ates , 510 U.S. 135, 154, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), held that "willfulness" means "the defendant acted with knowledge that his conduct was unlawful." Thus, according to the defendant, the grand jury was "necessarily instructed" on obsolete law. Id . Upon defendant's motion to dismiss, the district court ordered the government to produce the grand jury minutes to confirm that the instructions, if any, were legally sound. Id . at *4, 1994 U.S. Dist. LEXIS 8744 at *25. This Court, like the Twersky court, cannot dispose of the substantive motions pending before it until it has determined whether the instructions provided to the grand jury misrepresented the law as later interpreted by the First Circuit Court of Appeals.8
For the foregoing reasons, the Court ORDERS that the government produce to the Court for in camera review the grand jury transcripts no later than March 13, 2017.
IT IS SO ORDERED.
1 The Court notes that granting defendant's motion for in camera review of grand jury instructions as to counts four and five is based, in part, on the premise that the grand jury instructions exist. There may be no grand jury instructions regarding counts four and five because "under federal law the prosecutor is under no obligation to give the grand jury legal instructions."...
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