Motion to Disclose Grand Jury Material to Defendant by USA as to Russell Foreman — USA v. Foreman (Dkt. 19, D. Colo.)

Record facts

U.S. District Court for the District of Colorado · No. 1:21-cr-00165-WJM · Doc. 19 · 2021-08-27 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLORADO 
 
Criminal Case No. 21-cr-00165-RM    
 
UNITED STATES OF AMERICA, 
 
 
 
Plaintiff, 
 
v. 
 
1. 
RUSSELL FOREMAN and 
2. 
CHANDLER SIMBECK, 
 
  
 
Defendants. 
                                       
________________________________________________________________ 
 
GOVERNMENT'S MOTION TO DISCLOSE  
GRAND JURY MATERIALS UNDER SPECIFIED  
CONDITIONS TO THE ATTORNEYS FOR DEFENDANTS 
PURSUANT TO FED. R. CRIM. P. 6(e)(3)(E)(i) 
_________________________________________________________________ 
 
 
The UNITED STATES OF AMERICA, by and through Robert Brown, Assistant 
United States Attorney, respectfully moves this Court for an Order allowing the 
government to disclose copies of the transcripts of testimony given by witnesses before 
a grand jury during the investigation of this case, and the accompanying exhibits, to the 
attorneys for the defendants and the United States Probation Office under the 
conditions specified below.  As grounds for this motion, the government states:  
 
1. 
During the course of the investigation which resulted in the indictment in 
this case, one or more witnesses testified before the grand jury.   
 
2.  
Disclosure of grand jury material may be authorized pursuant to Rule 
6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure, which provides that, "The court 
may authorize disclosure–at a time, in a manner, and subject to any other conditions 
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that it directs–of a grand-jury matter: (i) preliminarily to or in connection with a judicial 
proceeding . . . ." 
 
3. 
This case is a "judicial proceeding", and the requested disclosure is "in 
connection with" the proceeding.  
 
4. 
The Government's understanding is that the usual practice of defense 
counsel in this district is not to provide the defendants with copies of grand jury 
materials, but instead to orally review the contents of such materials with them.  As the 
government understands it, this practice flows from the concern, shared by the 
government and based on past events in the district, that grand jury materials might 
otherwise be improperly distributed by defendants.  See United States v. Jimenez, 928 
F.2d 356, 359-61 (10th Cir. 1991). 
 
5. 
Because of the nature of the materials sought to be disclosed, the timing 
of the contemplated disclosure, and the possibility of loss or dissemination of copies of 
the grand jury materials, the government would request that the Court further order that: 
 
 
a. 
Defense counsel make only such copies as are necessary to 
prepare a defense of the criminal case; 
 
 
b. 
Defense counsel keep a written record concerning how many 
copies were made, to whom those copies were delivered, and the date of delivery, and 
that defense counsel deliver a copy of any Order allowing disclosure with the materials; 
 
 
c. 
Defense counsel provide the defendants with reasonable access to 
the grand jury materials, but that defense counsel not allow the defendants to retain 
copies of any grand jury materials; 
 
 
d. 
No person, other than defense counsel, make any copy of the 
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grand jury materials for any purpose; and  
 
 
e. 
At the conclusion of the case in this Court, by entry of the Court's 
judgment, defense counsel collect all such copies and return them to the government 
within ten days. 
 
6. 
The Government requests authorization to provide the above referenced 
grand jury materials to the United States Probation Office (USPO) for the limited 
purpose of preparing a presentence investigation report which will be filed under 
restriction.  The government would request that the Court further order that: 
 
 
a. 
The USPO make only such copies as are necessary to prepare a 
restricted presentence investigation report in this case; and 
 
 
b. 
At the conclusion of the case in this Court, by entry of the Court's 
judgment, the USPO will destroy all grand jury materials in a manner that will ensure 
that they are not further disseminated. 
 
THEREFORE, the Government requests that the Court enter an Order pursuant 
to Rule 6(e)(3)(E)(i) allowing disclosure of a copy of the transcripts of testimony given 
by any witnesses before the grand jury, and accompanying exhibits, to the attorneys for  
 
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the defendants and the USPO on the conditions described above. 
 
Dated this 27th day of August, 2021. 
 
 
 
 
 
 
 
 
MATTHEW T. KIRSCH 
 
 
 
 
 
 
 
Acting United States Attorney 
 
 
 
 
 
 
 
 
 
 
By: s/Robert Brown 
ROBERT BROWN 
Assistant U.S. Attorney 
U.S. Attorney’s Office 
1801 California St., Ste. 1600 
Denver, CO 80202 
Telephone: 303-454-0100 
Fax:  303-454-0401 
E-mail:  robert.brown5@usdoj.gov 
Attorney for Government 
 
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