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
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.
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.”
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.
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
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
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