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United States v. Gilbert

United States District Court, N.D. Alabama, Southern Division

May 4, 2018

UNITED STATES OF AMERICA,
v.
JOEL IVERSON GILBERT, STEVEN GEORGE MCKINNEY, and DAVID LYNN ROBERSON, Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

         The court presently has before it Steven McKinney's Motion to Dismiss the Indictment for Prosecutorial Misconduct and for Disclosure of Grand Jury Evidence, doc. 65, and Joel Gilbert's Motion to Dismiss for Prosecutorial Misconduct Before the Grand Jury, doc. 66, which the other defendants have adopted. See Doc. 108. Accordingly, the court will address these motions together, but notes that McKinney's motion generally involves arguments that are unique to him. After carefully considering the record, the relevant law, and the parties' briefs, see docs. 65; 66; 79; 80; 102; and 105, both motions are due to be denied.

         I. LEGAL STANDARD

         A grand jury proceeding is cloaked in a presumption of regularity that “‘generally may be dispelled only upon particularized proof of irregularities in the grand jury process.'” United States v. R. Enters., Inc., 498 U.S. 292, 301 (1991) (quoting United States v. Mechanik, 475 U.S. 66, 75 (1986) (O'Connor, J., concurring)). As the Supreme Court has explained, “[n]othing could be more destructive of the workings of our grand jury system or more hostile to its historic status” than casting “upon the [G]overnment the affirmative duty of proving such regularity.” United States v. Johnson, 319 U.S. 503, 512-13 (1943). However, certain abuses of the grand jury process, “such as perjury or government misconduct, ” United States v. DiBernardo, 775 F.2d 1470, 1475 (11th Cir. 1985), potentially justify the dismissal of an indictment given the requisite “particularized proof.” Mechanik, 475 U.S. at 75 (O'Connor, J., concurring).

         “‘[D]ismissal of an indictment for prosecutorial misconduct is an extreme sanction which should be infrequently utilized.'” United States v. Accetturo, 858 F.2d 679, 681 (11th Cir. 1988) (quoting United States v. Pabian, 704 F.2d 1533, 1536 (11th Cir. 1983)). “[T]o establish prosecutorial misconduct for the use of false testimony, a defendant must show that the prosecutor knowingly used perjured testimony or failed to correct what [she] subsequently learned was false testimony, and that the falsehood was material.” United States v. Cavallo, 790 F.3d 1202, 1219 (11th Cir. 2015). Even if prosecutorial misconduct is established, in the unique context of a grand jury proceeding, it is appropriate to dismiss an indictment only when the misconduct “‘substantially influenced the grand jury's decision to indict'” or creates “‘grave doubt' that the decision to indict was free from the substantial influence of such violations.” Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (quoting Mechanik, 475 U.S. at 78 (O'Connor, J., concurring)). Significantly, “a prior statement that is merely inconsistent with a government witness's testimony is insufficient to establish prosecutorial misconduct.” United States v. McNair, 605 F.3d 1152, 1208 (11th Cir. 2010); see also United States v. Brown, 634 F.2d 819, 827 (5th Cir. 1981) (explaining that “due process is not implicated by the prosecution's introduction or allowance of false or perjured testimony unless the prosecution actually knows or believes the testimony to be false or perjured; it is not enough that the testimony is challenged by another witness or is inconsistent with prior statements”).

         Further, the Government is under no obligation “to present exculpatory evidence in [its] possession” to the grand jury. United States v. Williams, 504 U.S. 36, 52 (1992). Such a requirement is “incompatible” with the grand jury's role of assessing “whether there is [an] adequate basis for bringing a criminal charge” not determining “guilt or innocence.” Id. at 51-52. “[T]he mere fact that evidence itself is unreliable is not sufficient to require a dismissal of the indictment, ” and “a challenge to the reliability or competence of the evidence presented to the grand jury” is improper. Bank of Nova Scotia, 487 U.S. at 261. The “[r]eview of facially valid indictments on such grounds ‘would run counter to the whole history of the grand jury institution[, ] [and] [n]either justice nor the concept of a fair trial requires [it].'” Williams, 504 U.S. at 54-55 (quoting Costello v. United States, 350 U.S. 359, 364 (1956)).

         II. ANALYSIS

         The Defendants raise numerous challenges to the evidence presented to the grand jury, broadly centering around testimony related to McKinney's role in the charged conspiracy and the actions allegedly taken by former Alabama state legislator Oliver Robinson at the behest of the Defendants. The Defendants do not expressly argue that the Government suborned perjury. Instead they argue that the Government's presentation of inaccurate and misleading testimony, without subsequent correction, deprived them of their Fifth Amendment right “to indictment by an unbiased grand jury, ” United States v. Hyder, 732 F.2d 841, 842 (11th Cir. 1984), or, at the least, created a “grave doubt that the decision to indict was free” from the substantial influence of the Government's purported misconduct. Bank of Nova Scotia, 487 U.S. at 263. In the court's view, most of the Defendants' arguments rely on the existence of evidence contradicting the Government's assertions before the grand jury or an alternative interpretation of what the evidence fairly shows. Given this framing, the court is within its right to summarily dismiss the Defendants' arguments because “a challenge to the reliability or competence of the evidence presented to the grand jury” is improper. Id. at 261. To the extent that the Defendants' challenge amounts to a mere disagreement with the Government regarding what the evidence shows or whether the evidence supports the charges in the indictment, their arguments do not present a proper basis for setting the indictment aside. Keeping this in mind, the court now addresses each of the Defendants' motions in turn.

         A. McKinney's Motion

         Broadly speaking, McKinney primarily takes issue with the Government's supposed failure to expressly identify his purportedly more attenuated involvement in the conduct underlying the charges in this case. Doc. 105 at 4-5. To support this contention, McKinney primarily cites the grand jury testimony of FBI Agent Ashley Hunt as overstating his role in the actions taken by his codefendants.[1]However, the Government is not obligated to explain evidentiary distinctions to the grand jury or to provide the grand jury with potentially exculpatory evidence in its possession. Williams, 504 U.S. at 52. At this stage of the case, “a defendant cannot challenge whether there is a sufficient evidentiary foundation to support the grand jury's probable cause determination.” United States v. Kaley, 677 F.3d 1316, 1326 (11th Cir. 2012).

         In any event, a cursory review of Agent Hunt's grand jury testimony belies McKinney's contentions regarding its purported falsity. For example, with respect to Agent Hunt's testimony that McKinney assisted in developing a strategy of advising residents and public officials to oppose the EPA's actions, doc. 65 at 3, McKinney's own billing records from February 2015 reference his involvement in such a strategy. Id. at 4 n.2; Doc. 80 at 12.[2] And, as the Government points out, McKinney's testimony reveals that he routinely met with public officials to “address . . . issues . . . [and to] build consensus about how to deal with [them].” Doc. 80 at 10. McKinney also testified that he “agreed with the idea that we needed a contractor, ” doc. 105 at 16, and the Government presented other evidence suggesting that McKinney reviewed both the contract to engage Robinson and Robinson's initial community outreach proposal, in addition to approving the first payment to Robinson's Foundation. Docs. 80 at 11; 105 at 11-12. While McKinney may disagree with the characterization of this evidence, it is more than sufficient to support Agent Hunt's testimony regarding McKinney's involvement in a purported “strategy to pay Oliver Robinson . . . to take official action consistent with [the Defendants'] position related to the EPA.” Doc. 65 at 3. Indeed, McKinney testified that developing strategies to work with the government and achieve favorable resolutions to problems is something that he and his law firm did “all the time.” Doc. 80 at 10. McKinney's subsequent characterization of the evidence and his testimony that he was not specifically “involved in the choice of [the] Oliver Robinson Foundation” is insufficient to render Agent Hunt's testimony false or misleading. Doc. 105 at 16.

         Similarly, McKinney's contention that Agent Hunt's testimony that McKinney discussed Robinson's contract was false because McKinney never directly interacted with Robinson is also unavailing. Doc. 65 at 6. As the Government notes, Agent Hunt never testified that McKinney spoke with Robinson, and McKinney has not cited any testimony contradicting this assertion. See Doc. 80 at 14-15. Rather, it appears that the evidence presented to the grand jury showed that McKinney reviewed the final contract offered to Robinson and approved payments under the contract to Robinson. See Docs. 80 at 11; 105 at 11- 12. This evidence indicates that McKinney participated, at least to some degree, in the contract negotiation process, doc. 105 at 11, and, accordingly, the court cannot say that Agent Hunt's testimony to that effect was false or misleading. Indeed, McKinney himself acknowledges that one of his codefendants sent him an email discussing the proposed agreement with Robinson. See Docs. 65 at 6-7. Thus, McKinney fails to demonstrate that “the prosecution actually [knew] or [believed] the testimony to be false or perjured.” Brown, 634 F.2d at 827.

         McKinney obviously believes that the Government's case is built on shaky foundations, and that the evidence provided to the grand jury is insufficient to convict him. He may ultimately prove correct in this belief, and he is certainly free at trial to develop exculpatory evidence and to attack the inconsistencies in the Government's evidence. However, the grand jury process is not intended to reach a decision regarding guilt or innocence, but instead assesses only “whether there is [an] adequate basis for bringing a criminal charge.” Williams, 504 U.S. at 51. Thus, “a defendant cannot challenge whether there is a sufficient evidentiary foundation to support the grand jury's probable cause determination.” Kaley, 677 F.3d at 1326. At this stage of the proceeding, “[a]n indictment returned by a legally constituted and unbiased grand jury . . . if valid on its face, is enough to call for trial of the charge on the merits.” Costello, 350 U.S. at 363. Therefore, because McKinney has failed to show that testimony provided to the grand jury was misleading, let alone that it constituted prosecutorial misconduct sufficiently egregious that there is “grave doubt that the decision to indict was free from the substantial influence of such violations, ” Bank of Nova Scotia, 487 U.S. at 256 (quotation omitted), his challenge to the validity of the indictment fails.[3]

         B. ...


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