The opinion of the court was delivered by: Helen Gillmor United States District Judge
ORDER DENYING DEFENDANT'S APPEAL AND REQUEST TO THE DISTRICT COURT TO RECONSIDER A PRETRIAL MATTER DETERMINED BY THE MAGISTRATE JUDGE (DOC. 84) AND DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AND THE SUPERSEDING INDICTMENT (DOC. 94)
Defendant Carlton S. Nishimura is charged with five counts that include extortion, witness tampering, lying to federal agents, and possession with intent to distribute methamphetamine.
The Defendant appeals a Magistrate's Order denying access to the testimony of a grand jury witness and also moves to dismiss the Indictment and Superseding Indictment alleging they are based on perjury.
The Defendant's appeal of the Magistrate Judge's Order is DENIED. The requested Grand Jury testimony would not be a basis for dismissal of the Defendant's Indictment.
The Defendant's Motion to Dismiss the Indictment and Superseding Indictment is also DENIED. No evidence has been produced that would warrant production of the Grand Jury testimony or support dismissal of the Indictment.
Defendant Carlton S. Nishimura obtained the rank of Major while with the Honolulu Police Department, City and County of Honolulu, State of Hawaii. On February 17, 2011, the Grand Jury heard testimony from Doni Imose concerning her relationship with the Defendant and his interactions with her ex-husband Xiang Yun Yu. That same day, the Grand Jury returned an Indictment against the Defendant for alleged misconduct related to his duties as a police officer. (Indictment, February 17, 2011 (Doc. 1).) The Indictment charged the Defendant and an unnamed "Confidential Informant" with extorting bribes from an illegal game room in violation of 18 U.S.C. § 1951, obstructing of justice and witness tampering in violation of 18 U.S.C. § 1512(b)(3), and lying to federal investigators in violation of 18 U.S.C. § 1001. (Id.) The Confidential Informant is now known to be Doni Imose. To date, Imose has not been indicted for her alleged participation in the Defendant's alleged misconduct. She is, however, awaiting sentencing in an unrelated criminal matter in 08-cr-00497. Defendant Nishimura pleaded not guilty to all charges and is released on a $50,000 bond. (Minutes, February 18, 2011 (Doc. 4).)
Shortly after her February 17, 2011 testimony before the Grand Jury, Imose informed her attorney, Pamela Tamashiro, that her testimony before the Grand Jury was untrue. Tamashiro, in an effort to comply with the Rules of Professional Conduct, moved to withdraw as counsel. Tamashiro disclosed the purported perjury to the Court in an affidavit dated May 5, 2011.
Unbeknownst to Tamashiro, Imose also secretly recorded a conversation between herself and Tamashiro. In the recording, Imose expressed her displeasure with Tamashiro's representation and regret about her testimony before the Grand Jury. According to the Defendant, Imose played the recording to the Defendant Nishimura while he was on pretrial release.*fn1
On September 29, 2011, the Defendant moved for the production of transcripts, documents, recordings, or other materials related to Imose's Grand Jury testimony. The Defendant stated that he needed these materials to prepare a motion to dismiss the indictment based on Imose's purported perjury.
On November 16, 2011, the United States brought Imose back before the
Grand Jury. According to the representations made by the Government,
Imose was asked about her statements to Tamashiro and whether she had
previously lied to the Grand Jury. Imose
testified that what she told Tamashiro was untrue and that her
previous testimony before the Grand Jury was, in fact, truthful.
According the Government, Imose told Tamashiro that she had lied to
the Grand Jury because she considered the Defendant a close friend and
"felt bad" about testifying against him. The Grand Jury, having heard
Imose's testimony, returned a Superseding Indictment on November 16,
2011, which included two additional Counts related to a search of the
Defendant's residence while he was on pretrial release.*fn2
(Superseding Indictment (Doc. 44).)
On December 14, 2011, the Magistrate Judge granted in part and denied in part the Defendant's motions for the production of transcripts, documents, recordings, or other materials related to Imose's Grand Jury testimony. The Magistrate Judge refused to release the Grand Jury transcripts unless the Defendant could establish that Imose committed perjury before the Grand Jury. The Magistrate Judge did order the Government to disclose meetings of Government investigators with Imose and if those meetings resulted in the creation of 302 debriefing forms.
On December 22, 2011, the Defendant filed an appeal of the Magistrate Judge's December 14, 2011 Order. (DEFENDANT'S APPEAL AND REQUEST TO THE DISTRICT COURT TO RECONSIDER A PRETRIAL MATTER DETERMINED BY THE MAGISTRATE JUDGE, December 22, 2011 (Doc. 84).)
On January 4, 2012, the Defendant moved to dismiss the Indictment and Superseding Indictment. (DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AND THE SUPERSEDING INDICTMENT, January 4, 2012 (Doc. 94).)
On February 2, 2012, the Court heard argument on the Defendant's motions and took them under advisement.
I. DEFENDANT'S APPEAL OF THE MAGISTRATE JUDGE'S DECEMBER 14, 2011 ORDER IS DENIED The Defendant appeals the Magistrate Judge's December 14, 2011 Order (Doc. 68). The Defendant claims that the Government is not in compliance with the Magistrate Judge's Order and that the Magistrate Judge incorrectly refused to release Imose's Grand Jury testimony transcripts.
(1) The Government Has Complied with the Magistrate Judge's December 14, 2011 Order
On December 14, 2011, the Magistrate Judge stated: Regarding the 302 debriefing forms/reports requested by Defendant, the Government is ordered to inform Defendant whether such reports were created or not. In other words, the Government shall disclose the absence of 302 forms/reports, if that is the case. If 302 forms/reports were created, they will be disclosed at a time determined at the Final Pretrial Conference. (ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR DISCOVERY OF DOCUMENTS AND OTHER MATERIALS RELATING TO UNINDICTED COCONSPIRATOR DONI IMOSE'S GRAND JURY TESTIMONY, December 14, 2011, at 2 (Doc. 68).)
During the hearing on February 2, 2012 before this Court, the Defendant claimed that the Government was not in compliance with the Magistrate Judge's Order.
The Government has disclosed to the Defendant that there were several meetings between Imose and Government investigators, and that with the exception of a single meeting, a 302 debriefing form was created for each meeting. The Defendant requests that the Government immediately disclose the time and date of each meeting with Imose. The Magistrate Judge's Order, however, does not require the Government to disclose the time and date of each meeting until the Court orders the production of the 302 forms at a time determined at the Final Pretrial Conference. The Government, therefore, is in compliance with the Magistrate Judge's Order.
(2) The Magistrate Judge Correctly Denied the Release of Imose's Grand Jury Testimony Transcripts
Grand jury proceedings are presumptively secret. Fed. R. Crim. P. 6(e). The secrecy afforded to grand jury proceedings encourages witnesses to come forth voluntarily and testify fully and frankly, reduces the possibility that those under investigation will flee or attempt to influence grand jurors, and protects individuals from unwarranted public ridicule. United States v. Plummer, 941 F.2d 799, 806 n.4 (9th Cir. 1991).
Federal Rule of Criminal Procedure 6(e)(3)(E)(ii), however, provides that the court may authorize disclosure of a grand jury matter "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."
The burden is on the defendant to show that disclosure of grand jury transcripts is appropriate. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959). The defendant must show that grand jury transcripts are " needed to avoid a possible injustice in another judicial proceeding,  that the need for disclosure is greater than the need for continued secrecy, and  that their request is structured to cover only material so needed." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979); see Plummer, 941 F.2d at 806. If the Defendant can show "a particularized need for grand jury transcripts that outweighs the need for secrecy," the Court must authorize the ...