MEMORANDUM DECISION AND ORDER
PAUL M. WARNER, Chief Magistrate Judge.
District Judge Robert Shelby referred this matter to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).
This 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. Id.
On 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 II").
The 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.
While a 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."
Moreover, 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.
Mr. 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 II.
The government does not oppose Mr. Koerber's Second and Third Requests.
Before turning to Mr. Koerber's remaining requests, the court wishes to place Mr. Koerber's requests in context with the procedural history of this case. The court notes that there is an open question regarding what records have been maintained since the indictments returned in Koerber I. The JSSA provides:
28 U.S.C. § 1868 (emphasis added). Mr. Koerber did not request the grand jury selection records in Koerber I and, therefore, the court's Jury Administrator would have had no reason to maintain records for the Koerber I indictments longer than prescribed by the JSSA. Accordingly, the court recognizes that much of the following discussion may be perfunctory in light of the passage of time. However, at this stage, the court finds no prejudice to Mr. Koerber if some records have been destroyed. If Mr. Koerber believed the grand juries were empaneled improperly in 2009 and 2011, Mr. Koerber should have filed a motion seeking to inspect the grand jury materials at that time.
Finally, as will be discussed below, the court will order the court's Jury Administrator to disclose to Mr. Koerber how the grand juries were selected for the indictments returned in Koerber I and Koerber II. This will include the source of the demographic data utilized by the Jury Administrator and how the Jury Administrator employs the demographic data to ensure that grand juries are selected from a fair cross section of the District of Utah. What the court will not do is allow Mr. Koerber to violate the privacy of jurors and engage in a fishing expedition. As delineated above, any records requested by Mr. Koerber must fall within the narrow category of ministerial records that speak to how the relevant grand juries were selected. With this backdrop in mind, the court will now address Mr. Koerber's remaining requests.
A. Request 1: Orders Reflecting the Beginning Terms and Extension of Terms For the Relevant Grand Juries
Mr. Koerber argues he is entitled to review any orders reflecting when the particular grand juries began their terms and any term extensions given to the relevant grand juries.
However, with respect to the present indictment, the court is mindful that it must consider "the possible effects on the functioning of future grand juries, as well as the immediate effects on the particular grand jury" when evaluating a request under § 1867(f). Diaz, 236 F.R.D. at 479 (citing Douglas Oil Co. of California v. Petrol Stops Nw., 441 U.S. 211, 222 (1979)). The grand jury that returned the Koerber II indictment may still be empaneled. Therefore, the court finds that disclosing the term and any extension given to the grand jury that returned the instant indictment may risk the proper functioning of the present grand jury and may place jurors at risk. Id. (noting that the policy behind protecting the proper functioning of the grand jury may be "violated if the grand jury dates of a sitting grand jury were to be disclosed" (emphasis in original)). Accordingly, Mr. Koerber's request for the terms and extensions of the grand jury that returned the Koerber II indictment is denied.
B. Request 4: Transcripts of Court's Instructions and Charges to the Grand Juries
Mr. Koerber argues that he is entitled to the "court's instructions and charges" to the grand juries that indicted him in Koerber I and Koerber II.
C. Request 5: Names of Persons Receiving Information About Matters Occurring Before the Grand Jury and Other Records Related to Such Disclosures
Mr. Koerber Fifth Requests asks for the "names of persons receiving information about matters occurring before the grand jury" and "any documentation the government is required to provide the court upon disclosure of information under Federal Rule of Criminal Procedure 6(e)(3)(A)(ii)."
Overlooking the overbreadth of Mr. Koerber's request, the court finds that the names of individuals who received information about matters occurring before the relevant grand juries does not relate to the records or papers utilized by the Jury Administrator in the jury selection process. See 28 U.S.C. § 1867(f). Furthermore, Mr. Koerber's request, if granted, would impermissibly invade matters occurring before the grand jury. See Diaz, 236 F.R.D. at 478 ("Disclosure of the exhibits presented to grand jurors, persons who have seen the exhibits and a list of the materials disclosed is not solely procedural, and may reveal the essence of the grand jury proceedings."); In re Grand Jury Proceedings, Special Grand Jury 89-2, 813 F.Supp. 1451, 1470 (D. Colo. 1992); Fell, 2016 WL 1621994 at *3-4. Therefore, Mr. Koerber's Fifth Request is denied.
D. Request 6: Disclosure of the Names, Addresses, and Demographics, of Those Jurors Who Returned the Indictments in Koerber I and Koerber II
Mr. Koerber requests access to "the names, addresses, and demographics of those jurors who returned the May 2009, November 2009, September 2011, and January 2017 indictments" to ensure that the juries "actually represented a wide spectrum of the community."
Many courts have held that a defendant is not entitled to the names or addresses of the grand jurors that returned an indictment against him. See In re Grand Jury Investigation, 903 F.2d at 182 (citing cases); United States v. McLernon, 746 F.2d 1098, 1123 (6th Cir. 1984) (finding that disclosure of Master List and demographic data about general pool was sufficient to meet unqualified right to inspection); United States v. Brown, No. 06CR07101SM, 2006 WL 2990463, at *1 (D.N.H. Oct. 19, 2006); see also United States v. Davenport, 824 F.2d 1511, 1515 (7th Cir. 1987) (noting in the context of a defendant's request for jury questionnaires containing prospective jurors' addresses that"[t]o give the defendant an absolute right of routine access to all materials would be an amendment of the Act" and "could have serious consequences for individual jurors and the system"). Indeed, disclosing the names of addresses of potential jurors would impermissibly invade the jurors' privacy and could potentially lead to the "intimidation of or retaliation against those grand jurors." In re Grand Jury Investigation, 903 F.2d at 182.
Furthermore, there is no merit to Mr. Koerber's claim that the names and addresses of the relevant grand jurors is essential to determine whether they "actually represented a wide spectrum of the community."
E. Request 7: Disclosure of Court Communications Used in Connection With Selection of Specified Grand Juries
Finally, Mr. Koerber requests "any other material, documents or communications that the Court and the jury administrator know were used in connection with the selection of the specified grand juries and upcoming trial jury."
Based on the foregoing, Mr. Koerber's Motion to Inspect, Reproduce, and Copy Grand Jury Rolls, Master Wheel, and All Records of the Grand Jury Selection Process is
Finally, any information disclosed pursuant to this order is for the parties' eyes only and any information used in future filings must be filed under seal. Failure to comply with these instructions may result in sanctions.