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United States v. Koerber

United States District Court, D. Utah, Central Division

July 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CLAUD R. KOERBER, Defendant.

          Robert J. Shelby District Judge.

          MEMORANDUM DECISION AND ORDER

          PAUL M. WARNER Chief United States Magistrate Judge.

         District Judge Robert Shelby referred this matter to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).[1] 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.[2] Having reviewed the parties' briefs and the relevant law, the court renders the following Memorandum Decision and Order.[3]

         BACKGROUND

         This 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. Id.

         On 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 II”).[4]

         DISCUSSION

         The 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.

         While a defendant's right to inspect pursuant to § 1867(f) is unqualified, it is not unlimited. The Supreme Court has consistently “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, [the court] must always be reluctant to conclude that a breach of this secrecy has been authorized.” United States v. Sells Eng'g, Inc., 463 U.S. 418, 424 (1983) (citations omitted). Indeed, Rule 6(e)(2)(B) of the Federal Rules of Criminal Procedure codifies the secrecy of grand jury proceedings by prohibiting the disclosure of “a matter occurring before the grand jury.”

         Moreover, the statutory text of § 1867(f) limits the grand jury records available to defendant. To mount a meritorious jury challenge, the JSSA allows the defendant to “inspect, reproduce, and copy” the “records or papers used by the jury commission or clerk in connection with the jury selection process.” 28 U.S.C. § 1867(f) (emphasis added). Furthermore, the purpose of § 1867(f) is to aid a defendant in filing a motion pursuant to § 1867(a) or (b). Id. Therefore, access to grand jury selection records is prohibited unless a defendant can demonstrate that the records requested: (1) are ministerial and do not involve matters occurring before the grand jury; (2) are records or papers used by the court's jury administrator “in connection with the jury selection process;” and (3) will aid him in filing a meritorious jury challenge pursuant to § 1867(a) or (b) of the JSSA.

         Mr. 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 II.[5] Specifically, Mr. Koerber argues that the JSSA entitles him to the following:

Request 1-Orders reflecting the beginning term and extension of the terms of the relevant grand juries for the May 2009, November 2009, September 2011 and January 2017 grand juries.
Request 2-The number of names on the master venire for the above referenced grand juries as well as any demographic information associated with the same that reflects constitutionally significant distinctions among grand jurors (race, religion, gender, etc.).
Request 3-Records setting forth the method of empaneling the relevant grand juries . . . .
Request 4-A transcript of the court's instructions and charges to the above described grand juries.
Request 5-Disclosure of names of persons receiving information about matters occurring before the grand jury and other records related to such disclosures. Through this request Mr. Koerber seeks disclosure of documentation that the government is required to provide to the court upon disclosure of information under Federal Rule of Criminal Procedure 6(e)(3)(A)(ii).
Request 6-Disclosure of the names, addresses, and demographics of those jurors who returned the May 2009, November 2009, September 2011, and January 2017 indictments.
Request 7-Disclosure of any other material, documents or communications that the Court and the jury administrator know were used in connection with the selection of the specified ...

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