United States v. Wright

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Criminal Action No.: 16-0073 (RC)
:
TYRONE WRIGHT, : Re Document Nos.: 7, 8
:
Defendant. :
MEMORANDUM OPINION
DENYING IN PART DEFENDANT’S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS;
DENYING DEFENDANT’S MOTION TO COMPEL DISCLOSURE OF THE GRAND JURY
PROCEEDINGS AND GRAND JURY TRANSCRIPTS
I. INTRODUCTION
Defendant Tyrone Wright is charged with three counts of bank robbery in violation of
Title 18, U.S.C. § 2113(a). The Government alleges that Mr. Wright committed three bank
robberies over a two-day period—a Premier Bank, twice, and a TD Bank, once. Mr. Wright
moves for assorted information about the grand jury proceeding that resulted in the indictment.
See Mot. Compel Disc. Disclosure Grand Jury Pro. & Grand Jury Trs., ECF No. 8 (Def.’s Mot.
Compel). The Government has opposed this motion. See Gov.’s Opp’n Def.’s Mot. Compel
Disc. Disclosure Grand Jury Pro. & Grand Jury Trs., ECF No. 11 (Opp’n Compel). Mr. Wright
has not replied to the Government’s opposition, and given that the time permitted for a reply by
the Local Rules has now passed, the matter is ripe for resolution by this Court. See LCrR 47(d)
(requiring that a reply memorandum be filed within seven days of the service of the
memorandum in opposition).
For the following reasons, the Court denies Mr. Wright’s motion to compel production.
Although the Court does not decide the entirety of Mr. Wright’s separate motion to suppress
evidence and statements, ECF No. 7, and its supplement, ECF No. 28, the Court does deny Mr.
Wright’s request for subpoenas embedded in his motion to suppress.
II. BACKGROUND
An initial indictment was filed on April 26, 2016, charging Mr. Wright with one count of
bank robbery in violation of 18 U.S.C. § 2231(a). 1st Indictment, ECF No. 3. That indictment
described a robbery from a Premier Bank on April 20, 2016, and read that Mr. Wright “by force,
violence and intimidation did attempt to take from the person and presence of another,
money . . .” 1st Indictment (emphasis added). Several months later, on July 21, 2016, a
superseding indictment was filed charging Mr. Wright with three counts of bank robbery. 2d
Indictment, ECF No. 9. The superseding indictment included the April 20, 2016 robbery of the
Premier Bank, and also included a robbery of the Premier Bank and a TD bank on April 21,
2016. 2d Indictment. The language of the superseding indictment stated that Mr. Wright “by
force, violence and intimidation did take from the person and presence of another, money . . .”
for each count. 2d Indictment (emphasis added).
III. ANALYSIS
A. Motion to Compel Disclosure
Mr. Wright seeks several disclosures of information related to the grand jury process that
indicted him. He requests the date the grand jury was discharged, the grand jury transcript,
“including the concurrence form but excluding deliberation session,” and for the court to
“consider dismissal of [the] indictment due to selective and vindictive prosecution” if the
Government “cannot provide above information or documents.” Def.’s Mot. Compel at 4–5.
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First, the Government has indicated that it has already provided, subject to a protective
order, grand jury disclosures to Mr. Wright. The Government indicates that it provided the
transcript of the FBI special agent and an officer without any redactions. 2d Discovery Letter,
ECF No. 26-1. The Government also provided grand jury transcripts of two bank tellers with
their names and dates of birth redacted. 2d Discovery Letter. The Government also provided
grand jury transcripts of another witness with the name, date of birth, position, and branch
location of the witness redacted. 1st Discovery Letter. The Government also provided grand jury
exhibits with the same personal information redacted. 1st Discovery Letter. Because the
Government has already provided extensive discovery about the grand jury in this case, the
Court finds it likely that Mr. Wright’s request for grand jury information is moot.
Out of an abundance of caution, the Court considers Mr. Wright’s request to the extent
that it seeks information not yet disclosed by the Government. Although grand jury proceedings
are usually kept secret, “[t]he court may authorize disclosure . . . 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.” Fed. R. Crim. Pro. 6(e)(3)(E). In this circuit, a defendant must show a
“particularized need” for disclosure. United States v. Naegele, 474 F. Supp. 2d 9, 10 (D.D.C.
2007). See also Ridings v. Dep’t of Justice, 38 Fed. App’x 20, 21, 2002 WL 1359490, *1 (D.C.
Cir. 2002) (per curiam) (holding that the defendant’s request for disclosure “fails because [the
defendant] did not make a ‘showing of particularized need’ for disclosure of the grand jury
transcripts” (internal citations omitted)). This particularized need requires a “factual basis”—
“conclusory or speculative allegations of misconduct” do not suffice. Naegele, 474 F. Supp. 2d at
10. The threshold for such a showing is very demanding, and the disclosure of grand jury
information is “exceedingly rare.” United States v. Naegele, 474 F. Supp. 2d 9, 11 (D.D.C.
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2007). The court in Naegele found such a rare circumstance existed when the defendant could
identify an exhibit which was presented to the grand jury with particular pages missing. Id. at
10–11.
In support of his need for disclosure, Mr. Wright points to three “flaws” in the
indictment. Before addressing these flaws, the Court considers the effect of the superseding
indictment. Mr. Wright’s motion was filed on July 20, 2016, Def.’s Mot. Compel, and thus refers
to flaws in the initial indictment, 1st Indictment, ECF No. 3. The superseding indictment was
filed on July 21, 2016—the day after Mr. Wright’s motion. 2d Indictment, ECF No. 9. Mr.
Wright has not renewed or updated his motion since the superseding indictment was filed, and
Mr. Wright’s concerns are thus moot to the extent that they are corrected in the superseding
indictment. However, keeping in mind pro se filings are “held to ‘less stringent standards than
formal pleadings drafted by lawyers,’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)), the Court addresses Mr. Wright’s concerns to the
extent that they also apply to the superseding indictment.1 The Court thus turns to Mr. Wright’s
three objections to the indictment.
First, Mr. Wright notes that the face of the indictment states that the grand jury was
sworn in on May 5, 2015. Def.’s Mot. Compel at 2. See 1st Indictment. The superseding
indictment also states that the grand jury was sworn in on May 5. 2015. 2d Indictment.
According to Mr. Wright, “traditionally [the] grand jury [is] sworn . . . after [the] offense date of
[the] allege[d] crime.” Def.’s Mot. Compel at 2. However, this is not correct. The Court agrees
with the Government, which notes that grand juries generally serve eighteen-month terms. Opp’n
1
Because the Court concludes that disclosure is not necessary, the Court does not reach
the question of whether Mr. Wright’s motion would suffice as a request for disclosures
surrounding the superseding indictment process rather than the initial indictment process.
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Compel ¶ 5; see also Fed. R. Crim. Pro. 6(g) (“A grand jury must serve until the court discharges
it, but it may serve more than 18 months only if the court, having determined that an extension is
in the public interest, extends the grand jury’s service.”). The grand jury at issue here was sworn
in in May of 2015. Eighteen months after May 2015 runs until November of 2016. It thus is
completely logical that the same grand jury that was sworn in during May of 2015 could issue
indictments in April of 2016 (when the first indictment in this case was issued), and in July of
2016 (when the superseding indictment in this case was issued). The Court thus concludes that
the date it was sworn in is not a flaw that shows a particularized need for disclosures about the
grand jury process or justifies dismissing the indictment.
Second, Mr. Wright challenges the indictment for stating that the defendant “did attempt
to take . . . money” in Count 1. Def.’s Mot. Compel at 2–3. According to Mr. Wright, the
language of “attempt” contradicts the forfeiture allegation. Def.’s Mot. Compel at 2–3. However,
even if this was a problem, the superseding indictment removes the attempt language. The
superseding indictment states for each of the three counts that the defendant “did take . . .
money.” 2d Indictment. The Court finds that this objection is moot because the superseding
indictment would correct any issue with the attempt language. See, e.g., United States v. Wilson,
26 F.3d 142, 152 (D.C. Cir. 1994) (supporting the view that a prosecutor may “seek[] a
superseding indictment in order to cure procedural defects of the first one”); United States v.
Kanchanalak, 37 F. Supp. 2d 1, 3 (D.D.C. 1999) (finding that “the government can easily correct
this defect by asking the grand jury to return a second superseding indictment containing the
correct language” when the initial indictment did not match the text of the statute).
Third, Mr. Wright notes that the “[i]ndictment charging the defendant is lacking [the]
foreperson or deputy foreperson’s signature.” Def.’s Mot. Compel at 3. The versions of both the
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initial and superseding indictments that appear on ECF lack the signature of the foreperson. 1st
Indictment; 2d Indictment. According to the Federal Rules of Criminal Procedure, an indictment
should be signed by the foreperson. Fed. R. Crim. Pro. 6(c). However, the Court has examined
the copy of the superseding indictment on file with the Court, and verified that it is signed by
both the United States Attorney and the foreperson. This issue is thus moot. See also Opp’n
Compel ¶ 7 (asserting that “the original indictments in this matter that are on file with the Court
bear the proper signatures”).2
None of Mr. Wright’s claims would justify dismissing the indictment, and thus none
satisfy the standard for requiring production of grand jury information. The Court has
exhaustively considered Mr. Wright’s arguments, concluded that they do not prevail, and denies
his motion to compel grand jury disclosures or dismiss the indictment.
B. Request for Subpoenas
Mr. Wright separately filed a motion to suppress evidence. Def.’s Mot. Suppress
Evidence & Statements (Def.’s Mot. Suppress), ECF No. 7. That motion included a request for
subpoenas, Def.’s Mot. Suppress at 6, which the Court denies. The rest of that motion will be
2
Even if the superseding indictment was missing the signature of the foreperson Mr.
Wright would not be entitled to grand jury disclosures. The “failure of [the] grand jury
foreperson to sign [the] indictment is [a] mere technical deficiency that would not entitle [a]
defendant [to] relief.” Def.’s Mot. Compel at 3 (citing United States v. Willaman, 437 F.3d 354,
359 (3d Cir. 2006)). Indeed, many cases support the view that an indictment is valid without the
signature of the foreperson. See, e.g., United States v. Perholtz, 622 F. Supp. 1253, 1262 (D.D.C.
1985) (“Consequently, the foreman’s duty to sign the indictment is a formality and the absence
of the foreman’s signature on an indictment properly voted by the grand jury is a mere technical
irregularity.” (citing Hobby v. United States, 468 U.S. 339 (1984) and Frisbie v. United States,
157 U.S. 160, 163–165 (1895)); Advisory Committee Notes to Fed. R. Crim. Pro. 6(c)(1) (1944)
(“Failure of the foreman to sign or endorse the indictment is an irregularity and is not fatal.”).
This means that a missing foreperson’s signature is only a technical flaw and cannot
justify dismissing the indictment—or, therefore disclosing grand jury information. See Fed. R.
Crim. Pro. 6(e)(3)(E).
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considered by the Court in the future. Mr. Wright requested subpoenas to provide audio and
video recordings of the interior and exterior of the library, footage from the arresting officers’
body cameras, and footage of his interview at the police station. Def.’s Mot. Suppress at 6. The
Court notes that the Government has already provided Mr. Wright with body camera footage
from several officers. See 2d Discovery Letter, ECF No. 26-1. The Court thus assumes that Mr.
Wright has received the materials he sought and denies this motion as moot. If Mr. Wright
believes relevant evidence exists that has not been turned over to him in discovery he can renew
his motion.
IV. CONCLUSION
For the foregoing reasons, Mr. Wright’s motion to compel disclosure of the grand jury
proceedings and grand jury transcript is DENIED and Mr. Wright’s motion to suppress evidence
and statements is DENIED IN PART. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: January 13, 2017 RUDOLPH CONTRERAS
United States District Judge
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