USA v. Davis

U.S. v. Davis, Case No. 3:18-cr-00131-TMB-MMS 	1
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ANTOINE DAVIS,
Defendant.
3:18-cr-00131-TMB-MMS
ORDER ON MOTION TO
DISCLOSE GRAND JURY
PROCEEDINGS [Dkt. 82]
I. 	MOTION PRESENTED
On December 27, 2019, Defendant Antoine Davis (Davis), through counsel, filed a
Motion to Disclose Grand Jury Proceedings. [Dkt. 82]. Per the Motion, made pursuant to
Fed. R. of Crim. P. 6(e)(3)(E)(ii), Davis seeks an order disclosing the Grand Jury
proceedings in order to determine whether false or misleading testimony was presented to
the Grand Jury and is grounds for a motion to dismiss. [Dkt. 82 at 3]. Should such a
disclosure be ordered, Davis will “move to dismiss the indictment if the record. . . supports
such motion for dismissal.” [Dk. 82 at 4]. On January 24, 2020, the Government filed a
Response in Opposition.1 [Dkt. 111].
1 The Government’s Response was filed on January 24, 2020, the extended period of time for the
Government’s response is based on the following procedural occurrences: On December 31, 2019,
the Government filed an unopposed motion requesting an extension of time to file its response.
[Dkt. 88]. This Court denied the Government’s motion without prejudice, pending a motion to
continue trial. [Dkt. 89]. On January 3, 2020, after filing an unopposed motion to continue the trial
in this matter, the Government re-filed its Motion for Extension of Time to File a Response. [Dkt.
91]. This Court granted that motion at Dkt. 93. On January 13, 2020, the Government filed another
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For the reasons explained below, Davis’ Motion to Disclose Grand Jury Proceedings
[Dkt. 82] is DENIED.
II. 	BACKGROUND
A. 	Procedural and Factual Background
The procedural and factual background of the topic of the alleged “controlled buy” was
extensively reviewed in this Court’s Final Report and Recommendation [Dkt. 237] and will
not be restated here.
B. 	Legal and Statutory Basis for Davis’ Motion
Davis’ Motion to Disclose Grand Jury Proceedings is made pursuant to Fed. R. of
Crim. P. 6(e)(3)(E)(ii) and United States v. Kennedy, 564 F.2d 1329 (9 th Cir. 1977).
Specifically, Davis argues that the “knowing presentation of false or misleading testimony
on a material matter before the Grand Jury would be grounds for dismissal of the
Indictment.” [Dkt. 82 at 3].
III. 	ANALYSIS
A. 	Applicable Law
Federal Rule of Criminal Procedure 6 permits a court to order disclosure of matters
occurring before a grand jury at the request of a defendant who shows that grounds may
exist to dismiss the indictment because of a matter that occurred before the grand jury.2 A
party seeking grand jury transcripts must demonstrate “that a particularized need exists that
unopposed motion requesting an extension of time to file its response to Davis’ motion. [Dkt. 99].
This Court granted that motion at Dkt. 101.
2 Fed. R. Crim. P. 6(e)(3)(E)(ii).
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U.S. v. Davis, Case No. 3:18-cr-00131-TMB-MMS 	3
outweighs the policy of grand jury secrecy.”3 Mere speculative assertions of wrongdoing
in a grand jury proceeding are not enough to meet the ‘particularized need’ requirement to
outweigh the policy of grand jury secrecy.4
There is a presumption of regularity in grand jury proceedings.5 Courts find that
misleading 	assertions 	made 	by 	the 	government, 	without 	more, 	fall 	short 	of 	the
particularized need requirement.6 Dismissal is only appropriate “if it is established that the
violation substantially influence[s] the grand jury’s decision to indict, or if there is ‘grave
doubt’ that the decision to indict was free from the substantial influence of such
violations.”7 Courts are reluctant to unnecessarily lift “the veil of secrecy from the grand
jury” because the grand jury depends on secrecy for proper functioning.8 The United States
Supreme Court has stated that “if indictments were to be held open to challenge on the
ground that there was inadequate or incompetent evidence before the grand jury, the
resulting delay would be great.”9
Under Rule 6(e), the burden of demonstrating that disclosure outweighs the public
interest in secrecy is on the party seeking disclosure.10
The United States Supreme Court and the Ninth Circuit have held that the
government does not need to present exculpatory evidence to the grand jury because
3 United States v Murray, 751 F.2d 1528, 1533 (9 th Cir. 1985).
4 United States v. Ferreboeuf, 632 F.2d 832, 835 (9th Cir. 1980).
5 United States v. R. Enterprises, Inc., 498 U.S. 292, 300, 111 S. Ct. 722 (1991).
6 Ferreboeuf, 632 F.2d at 835.
7 Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S. Ct. 2369 (1988).
8 Douglas Oil Co. of California v. Petrol Stops Nw., 441 U.S. 211, 218-19, 99 S. Ct. 1667 (1979).
9 United States v. Kennedy, 564 F.2d 1329 (9th Cir. 1977) (citing Holt v. United States, 218 U.S.
245, 247, 31 S. Ct 2, 4 (1975)).
10 Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 213, 99 S. Ct. 1667, 1669 (1979).
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“requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter
the grand jury’s historical role, transforming it from an accusatory to an adjudicatory
body.”11 There is no obligation upon the government to present exculpatory evidence in
their possession because it “would be incompatible with this system.”12
B. 	Davis’ Argument
In Davis’ motion, he relies on Federal Rule of Criminal Procedure 6(e)(3)(E)(ii) and
United States v. Kennedy, 564 F.2d 1329 (9 th Cir. 1977). Davis asserts that disclosure is
necessary because there were material misstatements and omissions made by an officer to
the issuing magistrate judge in regard to a search warrant obtained for Davis’ residence.13
Therefore, due to similar testimony presented to the Grand Jury, those omissions are
material. [Dkt. 82 at 3].
Under Kennedy, Davis argues that the “knowing presentation of false or misleading
testimony on a material matter before the Grand Jury would be grounds for dismissal of
the indictment.” [Dkt. 82 at 3]. However, the Court in Kennedy held, “only in a flagrant
case, and perhaps only where knowing perjury, relating to a material matter, has been
presented to the grand jury should the trial judge dismiss an otherwise valid indictment
returned by an apparently unbiased grand jury.”14
11 United States v. Williams, 504 U.S. 36, 51, 112 S. Ct. 1735 (1992).
12 Id. at 55.
13 The topic of omissions by the officer to the magistrate judge was extensively discussed in the
Final Report and Recommendation for Davis’ Motion to Suppress. See Dkt. 237.
14 Kennedy, 564 F.2d at 1332.
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Davis has the burden to show that disclosure of grand jury transcripts is appropriate
because he is the party seeking disclosure.15 Davis argues that the Grand Jury was not
properly informed of circumstances that showed the “controlled buy” was not actually
“controlled,” and thus “undermines the reliability of the ‘controlled buy.’” [Dkt. 82 at 3].
Assuming, arguendo, that the facts concerning the controlled buy are as Davis represents
them, he fails to establish that this omission was a flagrant case or resulted in perjured
testimony being presented to the Grand Jury.16 Davis instead only contends that it is
“highly likely” that law enforcement did not properly present reliable testimony. How
Davis arrives at this probabilistic conclusion is unclear. Nor is it clear how Davis’ bespoke
standard of “highly likely” equates to flagrancy and known perjury [Dkt. 82 at 3].
Davis also argues that disclosure is required under Rule 6(e)(3)(E)(ii) due to misleading
statements and omissions made to the Grand Jury.17 A particularized need is required in
order to outweigh the policy of grand jury secrecy.18 Davis’ arguments are merely
speculative because they fail to establish that the alleged “controlled buy” substantially
influenced the grand jury’s decision.19 Mere speculation 	is not enough to prove the
particularized need requirement for disclosure of transcripts.20 Davis has also failed to
prove that the omissions of such statements substantially influenced the grand jury’s
decision.
15 Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 213, 99 S. Ct. 1667, 1669 (1979).
16 Kennedy, 564 F.2d at 1332.
17 Fed. R. Crim. P. 6(e)(3)(E)(ii).
18 United States v Murray, 751 F.2d 1528, 1533 (9 th Cir. 1985).
19 Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S. Ct. 2369 (1988).
20 Ferreboef, 632 F.2d at 835.
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Additionally, courts are reluctant to overturn grand jury indictments.21 The United
States Supreme Court has repeatedly held that “if indictments were to be held open to
challenge on the ground that there was inadequate or incompetent evidence before the
grand jury, the resulting delay would be great.”22
IV. 	CONCLUSION
Davis fails to meet the particularized need requirement or to show flagrancy by the
Government in order to warrant disclosure of the grand jury proceedings, THEREFORE
this Court DENIES the Motion to Disclose Grand Jury Proceedings [Dkt. 82], without
prejudice.
DATED this 13th day of April, 2021, at Anchorage, Alaska.
s/ Matthew M. Scoble
U.S. MAGISTRATE JUDGE
21 Id.
22 United States v. Kennedy, 564 F.2d 1329 (9th Cir. 1977) (citing Holt v. United States, 218 U.S.
245, 247, 31 S. Ct 2, 4 (1975).
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