United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING MOTION FOR DISCLOSURE OF GRAND JURY
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
28, 2017, an indictment was returned which charged Defendant
James Daniel Bennett with one count of domestic assault by an
habitual offender. ECF No. 1. On August 28, 2017, Bennett
filed two motions. In Bennett's first motion, he seeks an
order excluding a number of audio tape recordings, testimony
of the Government's expert on domestic violence, and all
evidence of Bennett's prior domestic violence
convictions. ECF No. 12. In the second motion, Bennett
requests disclosure of the complaining witness's grand
jury testimony. ECF No. 13.
of grand jury matters to defense counsel are governed by Rule
6(e)(3)(E). That section provides as follows:
The court may authorize disclosure--at a time, in a manner,
and subject to any other conditions that it directs--of a
(i) preliminarily to or in connection with a judicial
(ii) at the request of a defendant who shows that a ground
may exist to dismiss the indictment because of a matter that
occurred before the grand jury;
Supreme Court has “consistently construed the Rule . .
. to require a strong showing of particularized need for
grand jury materials before any disclosure will be
permitted.” United States v. Sells Engineering,
Inc., 463 U.S. 418, 443 (1983). In order to show a
particularized need for disclosure of grand jury materials,
the moving party must show: “[T]he material sought will
prevent a possible injustice, (b) the need for disclosure
outweighs the need for secrecy, and (c) the request is
narrowly tailored to provide only material so needed.”
Fed. Deposit Ins. Corp. v. Ernst & Whinney, 921
F.2d 83, 86 (6th Cir. 1990).
Bennett is seeking disclosure of the complaining
witness's grand jury testimony. If the complaining
witness testifies at trial, the Government would be required
by the Jencks Act to provide that information to Bennet.
“The Jencks Act generally requires the government, on
motion of a defendant, to produce statements in its
possession of witnesses who testify at a trial.”
United States v. Short, 671 F.2d 178, 185 (6th Cir.
1982). But “[t]he defendant is only entitled to the
statement after the witness has testified.”
Id. In Short, the Sixth Circuit clarified
that, if a defendant seeks “pretrial disclosure of
grand jury transcripts, ” the defendant must make a
showing of “particularized need” before the
district court. Id. at 186.
Government concurs in Bennett's request for disclosure:
“The government possesses transcripts of witnesses'
testimony who will testify at the trial in this case and
joins in the defendant motion seeking permission from the
court to disclose those to defendant in discovery.”
Gov't Resp. at 25, ECF No. 16. Because the Jencks Act
will require disclosure of the transcript at trial,
Bennett's request for pretrial disclosure is reasonable.
The Jencks Act constitutes a congressional conclusion that
disclosure of the grand jury testimony of trial witnesses to
defense counsel is necessary for a fair trial. Early
disclosure will enable Bennett to prepare his defense prior
to trial and thus will avoid unnecessary delays.
Additionally, in this context, many of the underlying policy
considerations undergirding the secrecy requirement are not
implicated. An indictment has been issued, so there is no
fear of informing an individual that they are being
investigated by a grand jury. Grand jury proceedings have
ceased, so disclosure will not risk interference with
deliberations, potential witnesses, or potential evidence.
Further, the Court should provide a certain level of
deference to the Government's belief that disclosure is
appropriate. Matter of Grand Jury Proceedings, Miller
Brewing Co., 687 F.2d 1079, 1092 (7th Cir. 1982). Thus,
disclosure of the transcript in question will be required in
the future, the need for secrecy is diminished, and the
request is narrowly tailored. Bennett has shown a
particularized need for the transcript and his request for
disclosure will be granted.
it is ORDERED that Defendant Bennett's
motion for disclosure of grand jury testimony, ECF No. 13, is
further ORDERED that the Government is
DIRECTED to provide Defendant Bennett with a
copy of the grand jury testimony of Government witnesses that
will testify at trial. This order should not be construed as
authorizing disclosure of any other grand jury materials.
further ORDERED that Defendant Bennett and
his Attorney are DIRECTED to strictly
maintain the confidentiality of any grand jury testimony
produced by the Government. The transcripts should not be
filed on the docket or ...