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`Case 2:18-cr-00422-SMB Document 1179 Filed 07/15/21 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`United States of America,
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`Plaintiff,
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`v.
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`Michael Lacey, et al.,
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`Defendants.
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`No. CR-18-00422-001-PHX-SMB
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`ORDER
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`Pending before the Court is Defendants’ Motion to Disclose Grand Jury Instructions
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`on Prostitution. (Doc. 1171.) The Government responded, (Doc. 1176), and Defendants
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`replied. (Doc. 1177.) Defendants requested oral argument, but the Court declines to hold
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`oral argument, finding that it is unnecessary. After considering the pleadings and relevant
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`authority, the Court denies Defendants’ motion.
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`I. BACKGROUND
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`A. Current Motion
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`On July 25, 2018, a federal grand jury returned a one hundred count superseding
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`indictment against the Defendants in this case alleging the Defendants engaged in various
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`crimes related to the operation of the website Backpage.com (“Backpage”), including
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`conspiracy to violate the Travel Act, substantive Travel Act violations, conspiracy to
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`commit money laundering, and substantive counts of money laundering. (Doc. 230.) The
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`Travel Act charges related to allegations that Defendants facilitated business enterprises
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`involved in prostitution.
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`Case 2:18-cr-00422-SMB Document 1179 Filed 07/15/21 Page 2 of 7
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`Defendants bring this motion seeking an order requiring the Government disclose
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`the grand jury instructions related to state offenses of prostitution as incorporated in the
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`Travel Act charges. (Doc. 1171 at 3.) Alternatively, Defendants move for an order
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`requiring the Government to disclose those instructions to the Court for in camera review.
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`(Id.) Defendants seek the grand jury instructions based upon the Government’s draft jury
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`instructions. Defendants’ motion states:
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`Notably, the government’s proposed Travel Act instructions do not include
`the elements of a prostitution offense or offenses under state law. Because
`the government did not include the elements of a prostitution offense or
`offenses in its draft jury instruction, defense counsel believe that the
`government gave no such instruction to the grand jury when the grand jury
`made its decision to indict the Defendants.
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`(Id.) Defendants’ suspicions also stem from statements the Government made to the Court
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`on June 7, 2021. At that time, the Government sought to include a question in the jury
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`questionnaire that asked if jurors thought that prostitution should be legal. (Doc. 1171-1 at
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`16-17.) Defendants complain that this question does not contain a definition of prostitution.
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`(Doc. 1171 at 3.) Further, Defendants argue that “the government’s comments indicate that
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`its still undefined unlawful prostitution offense or offenses includes legal escort services.”
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`(Id. at 4.) Thus, Defendants seek the disclosure of the instructions given to the grand jury.
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`B. Previous Orders
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`In a previous order submitted on January 9, 2020, the Court denied a motion from
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`the Defendants which sought to dismiss the indictment for grand jury abuse. (Doc. 844.)
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`In the alternative, Defendants sought the disclosure of the grand jury transcripts. (Id. at 1.)
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`The Court denied both requests. As to Defendants’ request that the Government disclose
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`the grand jury transcripts, the Court found, “Defendants have identified no compelling
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`reason with any sort of particularity worthy of breaching the secrecy of the grand jury.”
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`(Id. at 9 (citations omitted).) Additionally, the Court determined, “Defendants are not
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`‘entitled to the legal instructions provided to the grand jury and any colloquy between the
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`grand jurors and prosecutors.’” (Id. at 10 (quoting United States v. Stephanyan, No. CR
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`Case 2:18-cr-00422-SMB Document 1179 Filed 07/15/21 Page 3 of 7
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`15-0234 CRB (JSC), 2016 WL 4398281, at *2 (N.D. Cal. Aug. 28, 2016).)
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`On February 11, 2020, the Court ordered the Government to disclose the grand jury
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`instructions related to the Travel Act for in camera review. (Doc. 879.) The Government
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`disclosed the grand jury instructions on the Travel Act to the Court on February 18, 2020.
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`(Doc. 892.) The Court later denied Defendants’ Motion to Dismiss Indictment on Failure
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`to Allege the Necessary Elements of the Travel Act in a May 4, 2020 order. (Doc. 946.)
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`II. LEGAL STANDARD
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`“[T]he grand jury is deeply rooted in Anglo-American history.” United States v.
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`Calandra, 414 U.S. 338, 342 (1974); see Costello v. United States, 350 U.S. 359, 361-62
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`(1956). It exists to “determin[e] whether there is probable cause to believe a crime has been
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`committed” and to “protect[] . . . citizens against unfounded criminal prosecutions.”
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`Calandra, 414 U.S. at 343. “The grand jury proceeding is accorded a presumption of
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`regularity, which generally may be dispelled only upon particularized proof of
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`irregularities in the grand jury process.” United States v. Mechanik, 475 U.S. 66, 75 (1986)
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`(O’CONNOR, J., concurring); see also Costello, 350 U.S. at 363 (“An indictment returned
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`by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call
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`for trial of the charge on the merits. The Fifth Amendment requires nothing more[]”); see
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`also United States v. R. Enters, Inc., 498 U.S. 292, 300 (1991) (noting how “the law
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`presumes, absent a showing to the contrary, that a grand jury acts within the legitimate
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`scope of its authority”).
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`The longstanding cornerstone of the grand jury is that “[i]t deliberates in secret and
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`may determine alone the course of its inquiry.” Calandra, 414 U.S. at 343; see also United
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`States v. Johnson, 319 U.S. 503, 513 (1943); Costello, 350 U.S. at 362. Not even a judge
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`presides to monitor its proceedings. Calandra, 414 U.S. at 343. “This ‘indispensable
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`secrecy of grand jury proceedings,’ must not be broken except where there is a compelling
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`necessity” that is “shown with particularity.” United States v. Procter & Gamble Co, 356
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`U.S. 677, 682 (1958) (internal citation omitted). “To allow the intrusion . . . into the
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`indispensable secrecy of grand jury proceedings—as important for the protection of the
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`Case 2:18-cr-00422-SMB Document 1179 Filed 07/15/21 Page 4 of 7
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`innocent as for the pursuit of the guilty—would subvert the functions of federal grand juries
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`by all sorts of devices . . . such as ready resort to inspection of grand jury minutes.”
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`Johnson, 319 U.S. at 513.
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`This showing must be made even if the grand jury whose transcripts are sought has
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`“ended its activities.” Id. “Mere ‘unsubstantiated, speculative assertions of improprieties
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`in the proceedings’ do not supply the ‘particular need’ required to outweigh the policy of
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`grand jury secrecy.” United States v. Ferreboeuf, 632 F.2d 832, 835 (9th Cir. 1980)
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`(citation omitted).
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`III. ANALYSIS
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`Once again, Defendants have requested the disclosure of the grand jury instructions.
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`Defendants speculate that either the wrong instructions were given or no instruction was
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`given reasoning that:
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`In light of the government’s omission of a proposed jury instruction of any
`kind concerning prostitution here, notwithstanding the fact that such an
`instruction is required, as well as the government’s comments at the June 7,
`2021 status conference, there is no basis to believe that the government
`provided such instructions to the grand jury.
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`(Doc. 1171 at 5.) In support of their position, Defendants argue that grand jury instructions
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`do not fall within Rule 6(e) because their disclosure would not reveal the substance or
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`essence of the grand jury proceedings and a showing of particularized need is not necessary
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`to obtain such instructions. See, e.g., United States v. Diaz, 236 F.R.D. 470, 477-78 (N.D.
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`Cal. 2006); United States v. Bolton, No. 14-CR-00030-JST, 2015 WL 1815273, at *3 (N.D.
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`Cal. Apr. 21, 2015); United States v. Fuentes, No. CR.S-07-0248 WBS, 2008 WL 2557949,
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`at *4 (E.D. Cal. June 24, 2008). Diaz, however, only granted access to instructions
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`regarding concerning their duties as grand jurors, their attendance and manner of
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`deliberation which could all be categorized as ministerial instructions. Diaz, 236 F.R.D. at
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`475. While the Courts in Bolton and Fuentes allow for the disclosure of instructions given
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`to the grand jury, they do so with almost no analysis. In Fuentes, the Court talks about the
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`disclosure of the Court’s instructions and charges to the grand jury but does not specify
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`Case 2:18-cr-00422-SMB Document 1179 Filed 07/15/21 Page 5 of 7
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`whether that includes instructions from the prosecution. Fuentes, 2008 WL 2557949, at
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`*4.
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`The Government argues that the grand jury instructions must remain secret unless
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`Defendants are able to show a particularized need. United States v. Chambers, No. 3:18-
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`CR-00079 (KAD), 2019 WL 1014850, at *3 (D. Conn. Mar. 4, 2019); United States v.
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`Stepanyan, No. CR 15-0234 CRB (JSC), 2016 WL 4398281, at *2 (N.D. Cal. Aug. 18,
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`2016); United States v. Morales, No. CR. S-05-0443 WBS, 2007 WL 628678, at *4 (E.D.
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`Cal. Feb. 28, 2007); United States v. Barry, 71 F.3d 1269, 1274 (7th Cir. 1995) (finding a
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`defendant needs to “show particularized need” under Rule 6 to obtain grand jury
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`instructions).
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`The Court agrees with the authority cited by the Government. In order to obtain
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`instructions provided to the grand jury, Defendants must meet the requirements of Rule
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`6(e) and show a particularized need concerning why disclosure is appropriate. The Court
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`is not persuaded that the relaxed approach proposed by Defendants adequately protects the
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`long-recognized goals of grand jury secrecy. Chambers, 2019 WL 1014850, at *3 (citing
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`In re Grand Jury Subpoena, 103 F.3d 234, 237 (2d Cir. 1996)). Even though some cases
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`cited by Defendants rely on a Ninth Circuit case, United States v. Alter, that case did not
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`determine that Defendants are entitled to grand jury instructions without particularized
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`need. 482 F.2d 1016 (9th Cir. 1973). Instead, as noted by Stepanyan, the case merely
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`decided that “the defendant was entitled to know the contents of the court’s charges to the
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`grand jury. Stepanyan, 2016 WL 4398281, at *2 (citing Alter, 482 F.2d at 1029, n.21)
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`(emphasis original). Thus, there appears to be no controlling law governing this issue in
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`this Circuit. “Rule 6(e) of the Federal Rules of Criminal Procedure codifies the traditional
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`rule of grand jury secrecy, but does not define its outer limits; a release may violate grand
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`jury secrecy even if it does not necessarily violate the rule.” Morales, 2007 WL 628678, at
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`*2 (citing In re Special Grand Jury, 674 F.2d 778, 781 (9th Cir. 1982)). Because Rule 6(e)
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`does not define its outer limits, the Court finds that its most likely interpretation is that it
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`includes grand jury instructions given by the prosecutor. Accordingly, the Court finds
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`Case 2:18-cr-00422-SMB Document 1179 Filed 07/15/21 Page 6 of 7
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`Defendants are required to show particularized need in order to obtain the grand jury
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`instructions.
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`Under Rule 6(e)(3)(E)(ii), in order to obtain the release of grand jury materials, a
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`defendant must show that a ground may exist to dismiss the indictment. In order to justify
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`this release, the Supreme Court has required what has been described as “particularized
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`need.” Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979). Under this
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`standard:
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`[p]arties seeking grand jury transcripts under Rule 6(e) must show that the
`material they seek is needed to avoid a possible injustice in another judicial
`proceeding, that the need for disclosure is greater than the need for continued
`secrecy, and that their request is structured to cover only material so needed.
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`Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979).
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`Here, Defendants have failed to show a particularized need to obtain the grand jury
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`instructions. First, Defendants have merely shown that the Government left instructions on
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`state prostitution law out of its draft jury instructions, that the Government included a
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`question on the jury questionnaire asking if potential jurors favor legalizing prostitution
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`with no definition of the term prostitution, and that counsel for the Government misstated
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`the law as to prostitution at oral argument. (emphasis added). Based on this, Defendants
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`speculate that the Government provided insufficient instructions to the grand jury on the
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`Travel Act charges. However, speculation is insufficient to show particularized need. See
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`United States v. DeTar, 832 F.2d 1110, 1113 (9th Cir. 1987); Stepanyan, 2016 WL
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`4398281, at *2; Morales, 2007 WL 628678, at *4 (noting that deductive reasoning is
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`insufficient to overcome the presumption of grand jury regularity).
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`Second, Defendants have failed to show the material sought is necessary to avoid a
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`possible injustice. Defendants’ motion argues that dismissal of the indictment is
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`appropriate if the instruction was omitted from the grand jury instructions. See, e.g., United
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`States v. Peralta, 763 F. Supp. 14, 21 (S.D.N.Y. 1991). In response, the Government argues
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`that it is under no obligation to provide legal instructions to the grand jury in this Circuit,
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`Case 2:18-cr-00422-SMB Document 1179 Filed 07/15/21 Page 7 of 7
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`and therefore dismissal would not be appropriate even if disclosure was appropriate. See
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`United States v. Larrazolo, 869 F.2d 1354, 1359 (9th Cir. 1989), overruled on other
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`grounds by Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989); United States v.
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`Kenny, 645 F.2d 1323, 1347 (9th Cir. 1981).
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` Specifically, under Ninth Circuit caselaw, “‘Erroneous jury instructions do not
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`automatically invalidate an otherwise proper grand jury indictment.’” Larrazolo, 869 F.2d
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`at 1359 (quoting United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982)). At least one
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`court in this Circuit went as far as to say, “We are not persuaded that the Constitution
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`imposes the additional requirement that the grand jury receive legal instructions.” Kenny,
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`645 F.2d at 1347. Thus, Defendants have not shown that the disclosure of the grand jury
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`instructions could avoid a possible injustice. Accordingly, the Court finds that Defendants
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`have failed to show a particularized need.
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`IV. CONCLUSION
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`For the above stated reasons,
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`IT IS ORDERED denying Defendants’ Motion to Disclose Grand Jury Instructions
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`on Prostitution. (Doc. 1171.)
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`Dated this 15th day of July, 2021.
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