The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
By motion docketed on July 1, 2011 ,*fn1 defendant Martin Whiteford seeks expansion of the scope of the evidentiary hearing which concluded on June 17, 2011, and disclosure of portions of the grand jury proceedings. The government opposes the motion . Oral argument was held on July 28, 2011 . For the following reasons, the motion is granted.
The relevant procedural history of this case is outlined in my March 10, 2011 Decision and Order , and need not be repeated here. In accordance with that Decision and Order, a hearing in connection with defendants' Franks*fn2 and "outrageous government conduct" claims was held on April 27, 29 and June 15, 16 and 17, 2011 [539, 540, 555, 569, 570]. Based upon evidence developed during the hearing, on June 17, 2011 counsel for defendant Whiteford orally moved for expansion of the scope of the hearing [570, pp.704-06, 857 et seq.], and the other defendants joined in that oral motion [570, p.707]. This written motion followed.
In support of his motion, defendant focuses on the April 28, 2009 grand jury testimony by FBI Special Agent ("SA") Kenneth Jensen, Jr. in response to a question from AUSA
Anthony Bruce concerning the August 20, 2008 axe handle assault on Kingsmen Motorcycle Club member Eugene Siminski:
Q: "My understanding, Mr. Ignasiak was along for the ride but did not participate in the incident?
A: Yes, in a manner of speaking." LaTona Affidavit , ¶10.
Defendant suggests that "if David Ignasiak's participation in the August 20, 2008 attack was known by Mr. Bruce, then he deliberately and intentionally elicited false testimony before the grand jury". Id., ¶11. He argues that "those defendants named in Counts 8 and 9 [of the Third Superseding Indictment] have been prejudiced as the prosecutorial misconduct substantially influenced the grand jury's decision to indict and there also is grave doubt that the decision to indict was unaffected by the misconduct". Id., ¶23 (citing Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988)). Defendant also argues that these misrepresentations warrant the taking of additional testimony in connection with defendants' Franks and "outrageous government conduct" claims.
In opposing the motion, the government did not offer affidavits by either SA Jensen or AUSA Bruce to explain or vouch for the accuracy of their April 28, 2009 grand jury exchange. Instead, it argues that since other witnesses subsequently testified as to Ignasiak's involvement in the assault, the grand jury could not have been misled. Government's Memorandum in Response , pp.3-9.
A. Was False Testimony Knowingly Presented to the Grand Jury on April 28, 2009? Needless to say, defendant's suggestion that AUSA Bruce "deliberately and intentionally elicited false testimony before the grand jury" is a grave accusation. While I am reluctant to conclude that an FBI agent may have knowingly offered false testimony to a grand jury, or that an Assistant U.S. Attorney may have knowingly elicited that testimony, the evidence submitted to me thus far is troubling, to say the least.
It is undisputed that on August 21, 2008 (the day after the assault on Siminski), Ignasiak delivered to SA Jensen and SA Frank Runles a recording of the preceding day's events surrounding the assault on Siminski. During the hearing before me, SA Jensen testified that he listened to the recording when he was preparing his October 22, 2008 affidavit to Judge Skretny in support of a Title III warrant [569, p.614]. At oral argument of this motion, AUSA Bruce acknowledged that he "knew the contents of the recording" at the time he posed his question to SA Jensen on April 28, 2009. *fn3
The government admits that "from the recording of the incident, it is clear that Ignasiak was fully involved in giving directions to former co-defendant Paul Roorda as he (Roorda) tried to maneuver the vehicle close enough to Siminski so that the passengers could easily get out and assault Siminski". Government's Memorandum in Response , p.4. SA Jensen admitted hearing Ignasiak stating "hurry up - get behind him - pull up - ready, let's go" [555, p.338]. He knew that Ignasiak was "participating in an assault" [569, p.671]; in ...