United States District Court, D. Utah, Central Division
J. Shelby District Judge
MEMORANDUM DECISION AND ORDER
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE
Judge Robert Shelby referred this matter to Chief Magistrate
Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court is Defendant Claud R.
Koerber's (“Mr. Koerber”) Motion to Inspect,
Reproduce, and Copy Grand Jury Rolls, Master Wheel, and All
Records of the Grand Jury Selection Process. Having reviewed
the parties' briefs and the relevant law, the court
renders the following Memorandum Decision and
case involves a long and complex procedural history. Relevant
to the present motion, on May 26, 2009, Mr. Koerber was
indicted in Case No. 2:09-cr-302 (“Koerber I”)
before District Judge Clark Waddoups. Following the original
indictment, the government obtained two superseding
indictments on November 10, 2009, and September 29, 2011.
These indictments were litigated over the course of five
years and ultimately resulted in Judge Waddoups dismissing
the case with prejudice for Speedy Trial Act
(“STA”) violations. See United States v.
Koerber, No. 2:09-cr-302, 2014 WL 4060618, at *1 (D.
Utah. Aug. 14, 2014). The government appealed, and the Tenth
Circuit reversed and remanded. See United States v.
Koerber, 813 F.3d 1262, 1286-87 (10th Cir. 2016). The
Tenth Circuit held that Judge Waddoups failed to properly
weigh the STA factors in dismissing the case with prejudice.
remand, Judge Waddoups recused and the case was reassigned to
District Judge Jill N. Parrish. On a motion to dismiss filed
by Mr. Koerber, Judge Parrish dismissed the case without
prejudice for STA violations. United States v.
Koerber, No. 2:09-cr-302, 2016 WL 4487742, at *1 (D.
Utah. Aug. 25, 2016). As a result, on January 18, 2017, the
government obtained the instant eighteen count indictment
charging Mr. Koerber with securities fraud, wire fraud, money
laundering, and tax evasion (“Koerber
Koerber's motion argues that he is entitled to inspect,
reproduce, and copy the grand jury rolls, master wheel, and
all records of the grand jury selection process for the
indictments obtained in Koerber I and Koerber
Mr. Koerber argues that examining the grand jury selection
records in Koerber I is “critical in evaluating whether
those indictments were validly pending during the prior
proceedings” and whether the present indictment should
be dismissed on statute of limitations grounds. The government
does not oppose Mr. Koerber's request to review the grand
jury selection materials in Koerber II. The government,
however, argues that Mr. Koerber is not entitled to the grand
jury selection materials in Koerber I because the validity of
the grand jury selection process in Koerber I has no bearing
on the statute of limitations issues raised by Mr.
Jury Selection and Service Act (“JSSA”) provides,
“all litigants in [f]ederal courts entitled to trial by
jury shall have the right to grand and petit juries selected
at random from a fair cross section of the community in the
district or division wherein the court convenes.” 28
U.S.C. § 1861. The JSSA allows a criminal defendant to
“move to dismiss the indictment or stay the proceedings
against him on the ground of substantial failure to comply
with the provisions of [the JSSA] in selecting the grand or
petit jury.” Id. § 1867(a). In turn,
§ 1867(f) of the JSSA permits a defendant to
“inspect, reproduce, and copy” the “records
or papers used by the jury commission or clerk in connection
with the jury selection process.” Id. §
1867(f). The Supreme Court has held that a defendant's
right to inspect under § 1867(f) is essentially
“unqualified.” Test v. United States,
420 U.S. 28, 30 (1975). Indeed, in order to prepare a §
1867 motion, a defendant must be afforded the opportunity to
determine whether he has a “potentially meritorious
jury challenge.” Id.
the court finds that Mr. Koerber is entitled to review the
grand jury materials authorized by § 1867(f) for the
indictments obtained in Koerber I and Koerber II. The court
is not persuaded by the government's argument that Mr.
Koerber's right to inspect grand jury selection records
is limited to the instant indictment. There is nothing in the
JSSA that expressly limits inspection to the present
indictment. Moreover, there is no Tenth Circuit case law
carving out an exception to § 1867(f) for cases where a
defendant is reindicted after the prior proceeding was
dismissed without prejudice prior to trial. Importantly, the
court expresses no opinion on the merits of Mr. Koerber's
claim that the validity of the present indictment hinges on
the legitimacy of the indictments obtained in Koerber I. At
this juncture, the court is merely satisfied that the JSSA
affords Mr. Koerber the right to inspect the grand jury
selection materials in Koerber 1 and Koerber II to facilitate
a potential meritorious jury challenge.
more difficult question presented to the court is the scope
of Mr. Koerber's request. Indeed, while Mr. Koerber's
right to inspect may be unqualified, it is not unlimited.
See United States v. Sells Eng'g, Inc., 463 U.S.
418, 424 (1983) (“We consistently have recognized that
the proper functioning of our grand jury system depends upon
the secrecy of grand jury proceedings” and in
“the absence of a clear indication in a statute or
[r]ule, we must always be reluctant to conclude that a breach
of this secrecy has been authorized.” (citations
omitted)). While the Tenth Circuit has not addressed the
reach of § 1867(f), several courts have limited a
criminal defendant's review of the grand jury selection
example, courts have held that a defendant is not entitled to
the names of individuals in any jury wheel who are currently
serving, including the grand jury that returned the
indictment in the instant case. See United States v.
Jack, No. CR.S-07-0266 FCD, 2009 WL 435124, at *3 (E.D.
Cal. Feb. 20, 2009); United States v. Diaz, 236
F.R.D. 470, 480-81 (N.D. Cal. 2006). Similarly, courts have
held that a defendant is not entitled to internal
communications among court personnel regarding the grand jury
selection process. See United States v. Bundy, No.
3:16-CR-00051-BR, 2016 WL 9049641, at *3 (D. Or. Aug. 10,
2016). Moreover, the Sixth Circuit has held that §
1867(f) is satisfied so long as defendant is given “the
master lists and the relevant demographic data about the
general pool from which the specific grand jurors were
selected.” United States v. McLernon, 746 F.2d
1098, 1123 (6th Cir. 1984).
Mr. Koerber does not specify what information from the grand
jury selection process in Koerber I and Koerber II he seeks.
Mr. Koerber broadly claims he is entitled to the
“inspection of the grand jury records and materials,
including the rolls, master wheel, and all other records of
the grand jury selection process.” Considering the
logistical, security, and privacy issues presented by such a
request, the court is unwilling to grant Mr. Koerber's
motion, wholesale, so to speak, without appropriate
facilitate the resolution of Mr. Koerber's motion, the
court requests further briefing. On or before July 7, 2017,
Mr. Koerber must provide the court a list of the records he
believes he is entitled to review and legal authority
supporting each discrete request. In turn, the government
will have until ...