USA v. James Lamount Graham

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11809
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES LAMOUNT GRAHAM,
a.k.a.
JT Money,
a.k.a.
James Livingston,
Defendant-Appellant.
____________________
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2 Opinion of the Court 22-11809
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 2:20-cr-00047-LGW-BWC-1
____________________
Before GRANT, T JOFLAT, and E D C ARNES , Circuit Judges.
G RANT, Circuit Judge:
A jury found James Graham guilty of various drug crimes.
Now on appeal, Graham attacks his indictment, claiming that the
grand jury’s probable cause determination was rendered defective
by the district court’s special procedures related to the Covid-19
pandemic. Under these procedures, grand jurors met in three
separate federal courthouses but were joined together by
videoconferencing. Graham also argues that the wiretaps used to
gather evidence against him did not meet the statutory necessity
requirement.
We affirm. The Covid-19 accommodations that Graham
criticizes introduced no fundamental error into his prosecution;
indeed, he does not claim that they affected the grand jury’s
decision in any way. As for the statutory necessity claim, the
district court did not clearly err in deciding that the wiretaps were
necessary.
I.
Graham’s prosecution began in the summer of 2020, during
the early stages of reopening during the Covid-19 pandemic. At
that time, the Southern District of Georgia operated under a
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22-11809 Opinion of the Court 3
standing order authorizing certain deviations from its normal
grand jury procedures. The order permitted members of a single
grand jury who would “otherwise travel into Savannah for grand
jury service” to instead convene in three separate federal
courthouses in the district in groups of ten or less.
The order imposed several requirements on these separated
groups. To start, the “designated grand jury spaces in each U.S.
Courthouse” were to be “connected using telecommunications
facilities.” Technology had to be in place such that “every member
of the grand jury [could] both see and hear witnesses.” For
security, the order mandated that court security officers would be
“posted outside the designated grand jury spaces at each U.S.
Courthouse to safeguard the grand jury against intrusion by
unauthorized persons and to ensure the secrecy of the grand jury’s
deliberations.”
Graham was charged with multiple drug-related crimes.
Before trial, Graham moved to dismiss the indictment based on a
challenge to the grand jury’s procedures. He also moved to
suppress evidence that the government obtained using wiretaps of
his telephone, claiming that the wiretaps were unnecessary and
thus disallowed. The district court denied both motions.
A jury convicted Graham on all counts. The court
sentenced him to 170 months of imprisonment and five years of
supervised release and imposed other fines and assessments.
Graham now appeals, reviving both his grand jury and evidentiary
challenges.
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4 Opinion of the Court 22-11809
II.
We review the denial of a motion to dismiss an indictment
for abuse of discretion, resolving issues of law de novo. United
States v. Cavallo, 790 F.3d 1202, 1219 (11th Cir. 2015). We review
the court’s wiretap necessity finding for clear error. United States v.
Maxi, 886 F.3d 1318, 1331 (11th Cir. 2018).
III.
Graham argues that the standing order violated both his
Fifth Amendment right to a grand jury and the restrictions set out
in Federal Rule of Criminal Procedure 6(d). Rule 6(d)(1) offers a
list of people—attorneys for the government, a witness who is on
the stand being questioned, and the like—who “may be present
while the grand jury is in session.” Fed. R. Crim. P. 6(d)(1). Rule
6(d)(2) further restricts who “may be present while the grand jury
is deliberating or voting.” But Graham’s concern is not who was
present at the grand jury—it is who he says was not. He interprets
Rule 6(d) to require that his grand jurors all be “present” in the
same room, and he gestures at the cybersecurity risks of
communicating with technology. Because the grand jurors were
separated into three different courthouses, he says, his indictment
was fundamentally corrupted.
But Graham’s argument is missing one key component:
prejudice. A showing of prejudice is generally required before an
indictment may be dismissed because of a problem with the grand
jury. Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988).
After all, Rule 52(a) commands that courts disregard any “error,
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22-11809 Opinion of the Court 5
defect, irregularity, or variance that does not affect substantial
rights.” Fed. R. Crim. P. 52(a); see Bank of Nova Scotia, 487 U.S. at
254–55. In rare circumstances, such prejudice may be presumed—
when “the structural protections of the grand jury have been so
compromised as to render the proceedings fundamentally unfair.”
Id. at 256–57. Such a “fundamental” error “gives rise to the
constitutional right not to be tried” because “it causes the grand
jury no longer to be a grand jury, or the indictment no longer to be
an indictment.” Midland Asphalt Corp. v. United States, 489 U.S. 794,
802 (1989). The foremost examples of fundamental error are racial
and gender discrimination in the selection of grand jurors. See Bank
of Nova Scotia, 487 U.S. at 257.
When this sort of structural error is not at play, courts
generally consider two things to evaluate potential prejudice:
whether “it is established that the violation substantially influenced
the grand jury’s decision to indict” and whether there is “grave
doubt that the decision to indict was free from the substantial
influence of such violations.”1 Id. at 256 (quotations omitted); see
1 One other test has also applied. In Mechanik, the Supreme Court confronted
a post-trial denial of a challenge to a grand jury proceeding. United States v.
Mechanik, 475 U.S. 66, 68–69 (1986). It held that the petit jury’s later guilty
verdict, by itself, showed that “any error in the grand jury proceeding” was
“harmless beyond a reasonable doubt.” Id. at 70. Bank of Nova Scotia, by
contrast, restricts part of its analysis to cases in which “a court is asked to
dismiss an indictment prior to the conclusion of the trial.” 487 U.S. at 256.
This Court has acknowledged some difficulty in squaring these two cases. See
United States v. Jennings, 991 F.2d 725, 729 (11th Cir. 1993). We need not
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6 Opinion of the Court 22-11809
also Cavallo, 790 F.3d at 1219; United States v. Jennings, 991 F.2d 725,
728–29 (11th Cir. 1993); United States v. Exarhos, 135 F.3d 723, 726–
27 (11th Cir. 1998).
Graham falls far short of these standards. Even if he were
correct that grand jurors must all be present in the same room to
comply with Rule 6 (a question that we do not consider), that kind
of violation of Rule 6 is not a fundamental error allowing for
prejudice to be presumed. The fact that the grand jurors met in
three secure locations and communicated via videoconference did
not change the basic nature of Graham’s grand jury or fatally infect
his indictment. See Bank of Nova Scotia, 487 U.S. at 257–58 (finding
no fundamental error despite many Rule 6 violations). It suggests
no breach of secrecy, impartiality, or independence. See Costello v.
United States, 350 U.S. 359, 362–63 (1956).
Graham thus must show prejudice, but at no point does he
allege—or even speculate—how the violation he alleges could
have affected his indictment. He claims no flaw in the presentation
of evidence, no security breach, and no prosecutorial misconduct.
Nor did he seek discovery about his grand jury proceedings. With
no allegations—much less evidence—of any influence on the
indictment, we cannot conclude that the grand jurors’ physical
separation “substantially influenced” their decision to indict or
consider that problem here because a petit jury convicted Graham on all
counts, which means that Mechanik’s reasoning also supports our decision.
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22-11809 Opinion of the Court 7
created “grave doubt” about the indictment’s integrity. See Bank of
Nova Scotia, 487 U.S. at 256.
No doubt, one can imagine how the use of
telecommunication facilities could affect a grand jury in some way.
But Graham must have been harmed by error in his grand jury or
his indictment—hypotheticals will not do. Nothing in the record
here suggests any prejudice to Graham. Nor do the briefs. So even
if there were any error—and we are not suggesting that there
was—it was harmless to Graham.
In short, the court did not abuse its discretion. Dismissal of
an indictment is “an extreme sanction which should be
infrequently utilized,” and nothing about this grand jury
proceeding supports dismissal. United States v. Pabian, 704 F.2d
1533, 1536 (11th Cir. 1983) (quotation omitted).
IV.
When requesting a wiretap, the government must include
in its application “a full and complete statement as to whether or
not other investigative procedures have been tried and failed or
why they reasonably appear to be unlikely to succeed if tried or to
be too dangerous.” 18 U.S.C. § 2518(1)(c). But it need not “show
a comprehensive exhaustion of all possible techniques.” United
States v. Van Horn, 789 F.2d 1492, 1496 (11th Cir. 1986). The law
only demands an explanation of “the retroactive or prospective
failure of several investigative techniques that reasonably suggest
themselves” for “this particular investigation.” Id.; United States v.
Perez, 661 F.3d 568, 581 (11th Cir. 2011) (quotation omitted).
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8 Opinion of the Court 22-11809
The district court did not clearly err in deciding that the
government met this standard. Graham argues that the wiretap
cannot have been necessary because the government already
obtained some evidence from surveilling a few of Graham’s drug
deals and that he was unlikely to reveal new information on the
phone. But if having some evidence of a crime were enough to bar
a wiretap as unnecessary, no wiretap order could ever be issued
because evidence is required to get a wiretap in the first place. And
in any event, the government’s investigation expanded beyond just
Graham’s individual drug deals—it sought to uncover the inner
workings of the whole drug trafficking organization. The wiretaps
could advance this broader goal. See Perez, 661 F.3d at 581–82.
A review of the wiretap affidavits themselves shows that
they provided more than enough explanation to comply with the
law. After describing the investigation’s history and goals, the
affidavits comprehensively outlined the “Need for Interception”
and discussed “Alternative Investigative Techniques.” They
exhaustively detailed why previous sources of information and
reasonable alternative methods—including physical surveillance,
cameras, interviews, undercover agents, subpoenas, search
warrants, trash searches, and more—would not suffice. Such
thorough and specific affidavits easily satisfy the legal
requirements. See United States v. Goldstein, 989 F.3d 1178, 1195–96
(11th Cir. 2021).
V.
We AFFIRM.
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