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United States v. Sawtelle

United States District Court, E.D. Wisconsin

October 31, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
GEFFREY A. SAWTELLE, Defendant.

          ORDER ON DEFENDANT'S MOTIONS FOR PRODUCTION OF GRAND JURY INSTRUCTIONS, FOR NOTICE OF CERTAIN EVIDENCE, AND FOR EARLY DISCLOSURE OF SUMMARY EVIDENCE

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Geffrey A. Sawtelle is charged in a 38-count indictment with 21 counts of bank fraud, in violation of 18 U.S.C. § 1344; three counts of theft, embezzlement, and misapplication by bank officer, in violation of 18 U.S.C. § 656; one count of obstruction of examination, in violation of 18 U.S.C. § 1517; one count of making a false statement, in violation of 18 U.S.C. § 1001; and 12 counts of money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2. (Docket # 16.) Here, I address Sawtelle's motions for the production of grand jury instructions; for notice of certain evidence; and for early disclosure of summary evidence.

         1. Motion for Production of Grand Jury Instructions

         Sawtelle filed a motion for the production of “any and all legal instructions given by the prosecutor to the grand jury that returned the indictment and the superseding indictment” against him. (Docket # 21 at 1.)

         Grand jury proceedings are presumptively secret. However, Federal Rule of Criminal Procedure 6(e)(3)(E) authorizes a court to order the disclosure of grand jury matters and provides, in part:

(E) the court may authorize disclosure-at a time, in a manner, and subject to any other conditions that it directs-of a grand jury matter:
(i) preliminarily to or in connection with a judicial proceeding;
(ii) at the request of a defendant who shows that a ground may exists to dismiss the indictment because of a matter that occurred before the grand jury.

         The defendant seeking the disclosure bears the burden of showing that disclosure of grand jury materials is appropriate under Rule 6(e)(3)(E) and must show that he has a “compelling necessity” or “a particularized need.” United States v. Lisinski, 728 F.2d 887, 893 (7th Cir. 1984) (internal quotation marks omitted) (quoting Matter of Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079, 1088 (7th Cir. 1982)). Indeed, a defendant “must demonstrate more than relevance; he must show necessity to prevent injustice.” Hernly v. United States, 832 F.2d 980, 983 (7th Cir. 1987) (citing United States v. Procter & Gamble, 356 U.S. 677, 682 (1958)).

         Here, Sawtelle has premised his request on his allegation that the indictment is insufficient. He argues that “[t]hese deficiencies [in the indictment] . . . raise questions about whether the grand jury was properly instructed as to these offenses in the first instance.” (Docket # 21 at 2.) But Sawtelle's underlying arguments about the insufficiency of the indictment do not carry the force he submits they do. That is, the indictment is sufficiently pled, save for Count Twenty-Four. This undermines Sawtelle's arguments that the insufficiencies in the indictment raise questions about the propriety of the instructions given to the grand jury.

         Even if the indictment was insufficient in its entirety, Sawtelle has not presented a “compelling need” nor has he presented “more than speculation that the government misinstructed the jury . . . .” United States v. Buske, 2010 WL 3023364, *3 (E.D. Wis. Jul. 29, 2010) (internal citations omitted). An insufficient indictment alone should not permit the disclosure of grand jury instructions. Such a rule would allow the disclosure of grand jury instructions any time a count in an indictment is insufficient, and that would undermine the secrecy upon which the functioning of the grand jury depends.

         Sawtelle's motion for the production of grand jury instructions is therefore denied.

         2. Motion for Notice of Certain Evidence

         Sawtelle has moved for an order requiring the government to give notice of certain evidence, specifically: a written summary of any expert witnesses' opinions, the bases and reasons for these opinions, and the witnesses' qualifications, as required by Fed. R. Crim. P. 16(a)(1)(G); and any uncharged misconduct evidence that the government intends to use, as required by Fed.R.Evid. 404(b). (Docket # 22 at 1.) The government responded that it is following the ...


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