United States District Court, W.D. New York
DECISION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report on dispositive motions. Dkt. #2.
The defendant, Kenneth White ("the defendant"), is charged in an Indictment, along with a co-defendant, Caitlin Connelly, with having violated Title 18, United States Code, Section 1594(c) (sex trafficking conspiracy) (Count 1); Title 18, United States Code, Sections 1591(a), 1591(b)(1) and 1591(b)(2) (sex trafficking of a minor by force, fraud or coercion) (Count 2); Title 18, United States Code, Sections 1591(a) and 1591(b)(1) (sex trafficking by force, fraud or coercion) (Counts 3, 5 and 7); and Title 18, United States Code, Section 2421 (interstate transportation for purposes of prostitution) (Counts 4, 6, 8 and 9). Dkt. #1. Defendant White also faces a forfeiture allegation. Id. Co-defendant Caitlin Connelly is only charged in Count 1, sex trafficking conspiracy. Defendant White filed an omnibus discovery motion on March 7, 2014. Dkt. #14. The government filed its opposition to the instant motion, as well as a cross motion for discovery on March 28, 2014. Dkt. #18. At the request of the parties, oral argument on the instant motion was adjourned several times. At a Status Conference held on December 19, 2014, the parties requested that the Court take the instant motion (Dkt. #14) under advisement. What follows in this Court's Decision and Order on the instant motion.
DISCUSSION AND ANALYSIS
Disclosure of Grand Jury Minutes
The basis of defendant White's request for the disclosure of the Grand Jury minutes is what he characterizes as "an inconsistency in the indictment with respect to Victim 3." Dkt. #14, ¶4. More specifically, defendant White argues,
Count 1 of the indictment charges a conspiracy involving Victims 1, 2, 3, 4 and 5. Each of the alleged victims enumerated above is also involved in separate substantive counts of the indictment except for Victim 3. Based upon the construction of the indictment it appears that there is insufficient evidence with respect to Count 1 as it involves Victim 3 but [sic] no substantive offense exists with respect to that victim.
Id. at ¶¶5-7. In its response, the government maintains that defendant White's conclusion that the omission of a substantive count involving Victim 3 is indicative of a lack of evidence of any criminal activity involving Victim 3 is erroneous. Dkt. #18, p.3. In addition, the government offers the following explanation:
The period of the Conspiracy [sic] alleged in the Indictment runs from in or about 2005 through in or about December 2012. The Indictment was returned on November 21, 2013. To satisfy the statute of limitations for general conspiracy as alleged in the Indictment, the government must establish that a conspirator knowingly committed at least one overt act in furtherance of the conspiracy after November 21, 2008. Although the conspiracy was alleged to have begun prior to the five year statute of limitations, it is alleged to have continued on well within the statute of limitations period. Thus, the conspiracy in its entirety is properly brought. The criminal activities in furtherance of the conspiracy relating to any of the victims which took place at any time during the currency [sic] are properly alleged in the conspiracy. However, any substantive crimes involving any of the victims must have commenced within the general five year statute of limitations period to be valid. Therefore, any criminal conduct involving Victim 3 that took place entirely before November 21, 2008, is properly included within the conspiracy but cannot sustain a substantive count.
Dkt. #18, pp.3-4. Thus, the absence of a substantive count with respect to Victim 3 is based purely on the government's statute of limitations analysis and prosecutorial considerations and not, as defendant White suggests, a lack of evidence.
It is a long-established rule that "[t]he burden... is on the defense to show that a particularized need' exists for the minutes [of the grand jury] which outweighs the policy of secrecy." Pittsburgh Plate Glass Co v. United States, 360 U.S. 395, 400 (1959). For the reasons set forth above, defendant White's assertion as to his "particularized need" is legally insufficient to require disclosure of the grand jury proceedings as requested by him. It is pointed out that transcripts of grand jury testimony of witnesses called by the government to testify at trial must be made available to the defendant pursuant to and in accordance with the provision of 18 U.S.C. § 3500. It is also pointed out that:
[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.
United States v. Calandra, 414 U.S. 338, 345 (1978). Furthermore,
An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the ...