F. Richard Curtner

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

510 L Street, Suite 400

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO. xx-073 CR

)

Plaintiff, )

) xxxxxxxxxxxx

vs. ) MOTION TO FILE UNDER SEAL

) RE: MOTION TO DISMISS THE

xxxxxxxxx, ) INDICTMENT

)

Defendant. )

__________________________________________)

COMES NOWxxxxxxxxxxx, by and through his counsel, F. Richard Curtner, Assistant Federal Public Defender, and moves this court for an order sealing his Motion to Dismiss the Indictment, as well as all Memoranda and Attachments in support of or against such motion. This Motion is made pursuant to Local Criminal Rule 4(1), which allows the court, in its discretion, to close a pretrial proceeding, in whole or in part, on the ground that:

(1) there is a reasonable likelihood that the dissemination of information disclosed at such proceeding would impair the defendant's right to a fair trial; and

(2) reasonable alternatives to closure will not adequately protect defendant's right to a fair trial.

The Motion to Dismiss the Indictment necessarily contains previously undisclosed information that, if made public, would impair Mr. xxxxx's right to a fair trial.

Excludable Delay: Excludable delay under 18 U.S.C. § 3161(h) will not occur as a result of this motion.

DATED at Anchorage, Alaska this 1st day of September, 1993.

____________________________________

F. Richard Curtner

Assistant Federal Public Defender

F. Richard Curtner

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

510 L Street, Suite 400

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO. xxxx-073 CR

)

Plaintiff, )

) MOTION TO DISMISS

vs. ) THE INDICTMENT

) (THIS MOTION IS BEING

xxxxxxxxx, ) FILED CONCURRENTLY WITH

) A MOTION TO FILE UNDER Defendant. ) SEAL)

__________________________________________)

COMES NOW xxxxxxxxxxxxxxxx., by and through his counsel, F. Richard Curtner, Assistant Federal Public Defender, and moves this court for an order dismissing the indictment in this case. This motion is made pursuant to the Due Process Clause of the Fifth Amendment to the U.S. Constitution and based on the ground that because of extensive pre-indictment publicity, Mr. xxxxx was denied his right to an indictment returned by an unbiased grand jury.

/ / / / /

Defendant also moves for the pretrial disclosure of grand jury transcripts pursuant to Rule 6(e)(3)(C)(ii) of the Federal Rules of Criminal Procedure in order to demonstrate the grounds for this motion to dismiss.

DATED at Anchorage, Alaska this 1st day of September, 1993.

____________________________________

F. Richard Curtner

Assistant Federal Public Defender

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO. xxx-073 CR

)

Plaintiff, )

) ORDER

vs. )

)

xxxxxxxxxxx, )

)

Defendant. )

__________________________________________)

Upon due consideration of defendant's Motion to Dismiss the Indictment, said motion is hereby GRANTED.

DONE this _____ day of _____________________, 1993.

_________________________________________

UNITED STATES DISTRICT COURT JUDGE

F. Richard Curtner

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

510 L Street, Suite 400

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO. xxx-073 CR

)

Plaintiff, ) MEMORANDUM IN SUPPORT OF

) DEFENDANT xxxxxxxxxxx MOTION

vs. ) TO DISMISS THE INDICTMENT

) AND MOTION FOR PRETRIAL

xxxxxxxxxxx, ) DISCLOSURE OF GRAND JURY

) TRANSCRIPTS

Defendant. )

__________________________________________)

I. PRE-INDICTMENT PUBLICITY

The Fifth Amendment provides, in pertinent part, that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment to a Grand Jury . . .." The Fifth Amendment's requirement has not been met unless the grand jury which handed down an indictment was free from bias and prejudice. Thus, the decisions of the Supreme Court addressing grand jury indictments hold that defendants in federal court do have a right to an unbiased grand jury.

In Costello v. United States, 350 U.S. 359, 363 (1956), the Court stated that "[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." (Emphasis added).

A number of courts have interpreted a line of Supreme Court cases, including Costello, as recognizing a constitutional requirement that an indictment be returned by an unbiased grand jury. See, e.g., United States v. Burke, 700 F.2d 70, 82 (2d Cir.), cert. denied, 464 U.S. 816 (1983); United States v. Serubo, 604 F.2d 807, 816 (3d Cir. 1979); United States v. Waldbaum, Inc., 593 F. Supp. 967, 970 (E.D. N.Y. 1984); United States v. Gold, 470 F. Supp. 1336, 1345 (N.D. Ill. 1979).

In the instant case, the massive amount of pre-indictment publicity irreparably prejudiced the grand jury, and this rendered the indictments totally defective. The actual prejudice of pretrial publicity has already been demonstrated in this case.

The District Court, the Honorable James J. Fitzgerald presiding, has previously conducted an evidentiary hearing on defendant's motion for a change of venue. Judge Fitzgerald carefully analyzed the nature and the amount of publicity concerning this case from the time of the bombing until the time of the evidentiary hearing.

Judge Fitzgerald found that the pretrial publicity, which included numerous crimes said to have been committed by Raymond xxxxx prior to the offenses charged in the indictments, tended to establish guilt and "prejudices the minds of the public." The court concluded:

Upon examining the news articles, I find that news media coverage relating to Raymond xxxxx and Douglas xxxxxxxx has been intensive within the period April 12, 1992 until the time the motions for change of venue were filed. More importantly, the substance of the pretrial publicity relates directly to the guilt of the defendants Raymond xxxxx, Douglas xxxxxxxx, and Peggy xxxxxxxx-Barnett on the charges made against them in the indictment. Based on the frequency, timing and nature of the coverage, I find and conclude that on the evidence presented of the potential jurors, presumed prejudice has been established against the defendants Raymond xxxxx, Douglas xxxxxxxx and Peggy xxxx-xxxxxxxx [sic]. A transfer of venue under Rule 21(a) is now required.

(A copy of Judge Fitzgerald's Order is included as Attachment 1.)

The case against Mr. xxxxx was originally dismissed On April 10, 1992, for lack of probable cause at a preliminary hearing. The grand jury indictment was returned on April 14, 1992. In a case where the government's proof failed to establish probable cause before a judge, and presumably the same evidence is presented to a grand jury shortly thereafter, the impact and force of the attendant pretrial publicity upon the grand jury is self-evident.

II. RELEASE OF GRAND JURY TRANSCRIPTS

Federal Rule of Criminal Procedure 6(e)(3)(C)(ii) provides that disclosure of "matters occurring before the grand jury may . . . be made . . . when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." A particularized need must be demonstrated in order to overcome the presumption of secrecy of grand jury proceedings. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959).

The particularized need in this case is obvious. Overwhelming pretrial publicity up to and including the time of the grand jury proceedings has been established. Where a case has been dismissed by the District Court for lack of probable cause, it must be assumed that the evidence presented to the grand jury was underwhelming. Under these circumstances, a transcript of the grand jury proceedings would establish the actual prejudice of pretrial publicity. Therefore, release of the grand jury transcript is essential to meaningful review of this motion.

Respectfully submitted this 1st day of September, 1993 at Anchorage, Alaska.

_________________________________

F. Richard Curtner

Assistant Federal Public Defender

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