US v. Jackson

• Decision Date: 07 June 1994
• Docket Number: No. 94-40001-01-SAC,94-40001-02-SAC.,94-40001-01-SAC
• Citation: 863 F. Supp. 1449
• Parties: UNITED STATES of America, Plaintiff, v. Mark M. JACKSON, and Robert Martinez, Jr., Defendants.
• Court: U.S. District Court — District of Kansas

863 F. Supp. 1449

UNITED STATES of America, Plaintiff, v. Mark M. JACKSON, and Robert Martinez, Jr., Defendants.

Nos. 94-40001-01-SAC, 94-40001-02-SAC.

United States District Court, D. Kansas.

June 7, 1994.

COPYRIGHT MATERIAL OMITTED

Thomas J. Bath, Jr., James L. Eisenbrandt, Bryan Cave, Overland Park, KS, for defendant Mark M. Jackson.

Thomas M. Bradshaw, Daniel O. Herrington, Armstrong, Teasdale, Schlafly & Davis, Kansas City, MO, for defendant Robert Martinez, Jr.

Tanya J. Treadway, Office of U.S. Atty., Kansas City, KS, Richard L. Hathaway, Office of U.S. Atty., Topeka, KS, for plaintiff U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on several pending and outstanding matters. First, the defendants jointly move to dismiss (Dk. 75) the grand jury indictment arguing the substantive differences between the original and superseding indictments evidence that the government has abused the grand jury process. Second, the defendants jointly move to compel production (Dk. 77) of the entire transcripts of the original and second grand jury investigations leading to the original and superseding indictments. Third, the court rules on the defendants' outstanding Jencks Act request for unredacted grand jury testimony and the agent's interview notes and reports on five witnesses, James A. Leiker, Pam Dieter, Cheryl Bozarth, Beverly Rice, Teresa Markowitz and Doug Montgomery. (Dk. 47). Fourth, the defendants jointly move for leave to submit jury questionnaire. (Dk. 88). Fifth, the defendants' jointly move for production of portions of Louis Garcia's presentence report. (Dk. 62). The court will decide the motions seriatim. In addition, the court will address some miscellaneous matters.

Background

The defendants are charged by a thirty-two count indictment for their association and conduct with Parkview Hospital (Parkview), a private, for profit psychiatric hospital in Topeka, Kansas. The defendant Mark Jackson was an administrator at Parkview, and the defendant Robert Martinez was a marketing representative with Parkview. The indictment alleges that the defendants bribed Louis Albert Garcia, an employee assistance counselor with the United States Postal Service, to refer patients to Parkview. Between approximately November of 1990 and January of 1992, the defendants paid Garcia $3,000 monthly and Garcia referred forty-three patients to Parkview.

On January 5, 1994, a grand jury indicted the defendants with conspiring to defraud the United States of the faithful services of its employee Louis Garcia, in violation of 18 U.S.C. § 371 (Count one); with bribery of Garcia in giving something of value in order to influence Garcia's official acts, in violation of 18 U.S.C. § 201(b)(1)(A) (Counts two through thirty, even-numbered counts only); with aiding and abetting Louis Garcia in supplementation of his federal salary, in violation of 18 U.S.C. § 2 and 209 (Counts three through thirty-one, odd-numbered counts only); and with obstructing and impeding a federal grand jury investigation, in violation of 18 U.S.C. § 1503 (Count thirty-two). The defendants filed a joint motion to dismiss the indictment (Dk. 28), and the defendant Jackson filed a motion to strike surplusage (Dk. 32) from the indictment. The court denied those motions in an order filed March 30, 1994. (Dk. 52). 850 F.Supp. 1481.

On May 4, 1994, a grand jury returned a superseding indictment. The prosecution on the same day sent a letter to the court and defense counsel which explained the changes made by the superseding indictment:

Substantively, the superseding indictment has changed little. In form, however, the superseding indictment has changed considerably, and will hopefully be a "streamlined" improvement.

The substantive changes are as follows: (1) Count 1 now alleges that the first conspiracy occurred between November 1990 and January 1992, rather than between November 1990 and the return of the indictment as charged in the original indictment; (2) Count 32 has been changed from alleging a violation of 18 U.S.C. § 1503 to alleging a conspiracy to violate section 1503, under 18 U.S.C. § 371.

The "format" changes are as follows: First, Counts 2 through 16 now set forth the 18 U.S.C. § 201(b)(1)(A) violations in a table format; previously, these counts were separately pled as the even-numbered counts. Second, Counts 17 through 31 now set forth the 18 U.S.C. § 2 and 209 violations in a table format; previously, these counts were separately pled as the odd-numbered counts. Hopefully, by eliminating unnecessary repetition, this format change will make the indictment easier for the jury to follow and less cumbersome for the Court to read aloud.

Third, grammatical changes, such as added commas, have been made throughout the indictment, and the section 2 and 209 allegations have been re-written, by adding the description "in Louis Garcia's" to the "willful receipt" language, and by changing the order of the phrases to read a bit easier. These grammatical changes in no way change the substance of the allegations.

The Magistrate Judge scheduled the filing of any motions on the superseding indictment on or before May 13, 1994, the filing of responses on or before May 23, 1994, and a hearing on those motions on May 27, 1994, at 2:00 p.m. (Dk. 69).

Motion to Dismiss Grand Jury Indictment

The defendants argue that a comparison of the original and superseding indictments reveals that the government abused the grand jury process by presenting evidence for the purpose of strengthening its case on the already pending indictment. Based on certain substantive changes found in the superseding indictment, the defendants conclude that the evidence presented to the second grand jury was not just "incidental" to the original indictment. Based on the passage of time between the first and second grand jury proceedings, the defendants conclude that the government used the second grand jury to gather evidence on the charges found in the original indictment.

The prosecution denies any misuse of the grand jury process. Specifically, the prosecution did not present new evidence to the second grand jury, nor did it use the grand jury to discover new evidence for trial. The prosecution's reasons for a superseding indictment are proper, and the defendants are not prejudiced by the minor changes.

"`Once a defendant has been indicted, the government is precluded from using the grand jury for the "sole or dominant purpose" of obtaining additional evidence against him.'" United States v. Thompson, 944 F.2d 1331, 1337 (7th Cir.1991) (quoting United States v. Moss, 756 F.2d 329, 332 (4th Cir. 1985)), cert. denied, ___ U.S. ___, 112 S.Ct. 1177, 117 L.Ed.2d 422 (1992); see also United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979) ("It is improper to use the grand jury for the primary purpose of strengthening the Government's case on a pending indictment or as a substitute for discovery, although this may be an incidental benefit." (citations omitted)). Quite simply, the prosecution may not use the grand jury process principally to supplement its pretrial discovery on a pending indictment. 8 James W. Moore, et al., Moore's Federal Practice ¶ 6.045 (1989). If there is a legitimate purpose for the grand jury investigation, the proceeding is proper even though the prosecution obtains incidental benefits. Gibbons, 607 F.2d at 1329.

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. Enterprises, Inc., 498 U.S. 292, 301, 111 S.Ct. 722, 728, 112 L.Ed.2d 795 (1991) (quoting United States v. Mechanik, 475 U.S. 66, 75, 106 S.Ct. 938, 944, 89 L.Ed.2d 50 (1986) (O'Connor, J., concurring in judgment)). Consequently, the defendant has the burden of demonstrating an abuse of the grand jury process. United States v. Breitkreutz, 977 F.2d 214, 217 (6th Cir.1992). In particular, the defendant must show that the government's primary purpose for the second grand jury proceeding was to collect evidence relating to pending charges. United States v. Thompson, 944 F.2d at 1337.

Though easy to state, the rule "`is difficult, if not impossible, to enforce.'" Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26, 30 (2nd Cir.1985) (quoting Moore, et al., supra ¶ 6.045). The difficulty is with the proof. United States v. Raphael, 786 F.Supp. 355, 358 (S.D.N.Y.), aff'd, United States v. Alegria, 980 F.2d 830 (2nd Cir.1992). "Courts have looked at the circumstances of particular cases in deciding the kind of showing that they would require either from the party challenging the grand jury or from the government." In re Grand Jury Proceedings, 814 F.2d 61, 71 (1st Cir.1987). The court should accept at face value the prosecution's word that the dominant purpose of the grand jury proceedings is proper, unless there is an "indicative sequence of events demonstrating an irregularity." United States v. Raphael, 786 F.Supp. at 358. This approach accords with the presumption of regularity attaching to grand jury proceedings and with the prosecution's ethical and legal obligations.

A superseding indictment necessarily indicates the prosecution's repeated use of the grand jury process. Nevertheless, the fact of a superseding indictment does not, by itself, indicate an improper prosecutorial purpose. Any time prior to trial, the government may obtain a superseding indictment. United States v. Fisher, 871 F.2d 444, 451 n. 7 (3rd Cir.1989); United States v. Edwards, 777 F.2d 644, 649 (11th Cir.1985), cert. denied, 475 U.S. 1123, 106 S.Ct. 1644, 90 L.Ed.2d 189 (1986); see United States v. Wilks, 629 F.2d 669, 672 (10th Cir.1980) ("Absent prejudice to the defendant, a superseding indictment may be filed at any time before trial."). The defendants do not contend that the prosecution intended to harass them by the...