United States District Court, D. Maryland
Lipton Hollander United States District Judge
Johnson filed correspondence (ECF 884) in the above-entitled
criminal case on November 29, 2016, seeking reconsideration
of an Order issued by the Honorable Benson E. Legg on January
21, 2011 (ECF 764), in which Judge Legg denied Johnson's
request for materials related to the grand jury that indicted
Johnson. Judge Legg denied the request based on the following
rationale, ECF 764 at 1:
Secrecy of grand jury materials is the norm. Nevertheless,
Rule 6(e)(3)(E) [of the Federal Rules of Criminal
Procedure enumerates five situations in which a
court "may authorize disclosure ... of a grand-jury
matter." Rule 6(e)(3)(E)(i) provides for disclosure of
grand jury materials "preliminarily to or in connection
with a judicial proceeding." The docket reflects that
Mr. Johnson's case has been closed since May 4, 2006.
Therefore, the Court will assume that he is seeking these
materials preliminarily to a motion for post-conviction
relief pursuant to 28 U.S.C. § 2255.
Grand jury secrecy can only be lifted in cases of
"particularized need." United States v. Procter
& Gamble Co., 356 U.S. 677, 683 (1958). In
determining whether there is a "particularized need,
" the trial court must "balance the
petitioner's need for release against the traditional
public interest reasons for grand jury secrecy." In
re Grand Jury Proceedings GJ-76-4 & GJ-75-3, 800
F.2d 1293, 1298-99 (4th Cir. 1986). A particularized need
will be found only in those cases where "the need for
[disclosure] outweighs the public interest in secrecy."
Id. (quoting United States v. Sells Eng'g,
Inc., 463 U.S. 418, 443 (1983)). "The moving party
bears the burden of showing that the balance between secrecy
and need weighs in its favor." United States v.
Foggo, 495 F.Supp.2d 672, 673 (E.D. Va. 2009) (citing
In re Grand Jury Proceedings, 800 F.2d at 1298-99).
Here, Johnson offers no evidence or argument to justify the
disclosure of the grand jury material he seeks, and Johnson
has failed to identify any constitutional error in the grand
jury process. Moreover, there are no pending judicial
proceedings that would be aided by disclosure of the grand
jury materials. As mentioned above, Johnson's direct
appeal from his conviction and sentence concluded in May
2006, and, to date, he has not collaterally attacked his
conviction or sentence.
Johnson's correspondence of November 29, 2016, he cites
concerns that the grand jury issued a second superseding
indictment that included four new charges and states he
requires a breakdown of the racial make-up of the grand jury
to ensure his due process rights were not violated. ECF 884.
Further, he alleges that "Defense at trial was not
provided any Jencks material from this indictment" which
"raises severe concerns about the validity of this
second superseding indictment." Id. Johnson
also seeks disclosure of the Order to draw the grand jury
that produced the second superseding indictment; the
subsequent orders to reconvene the grand jury; the charge
given to this grand jury; and the evidence presented to the
grand jury. Id. Johnson has no pending motions to
vacate in this matter, nor does he state he intends to file
request shall be denied for the same reasons expressed by
Judge Legg in his 2011 Order. Johnson states nothing more
than suspicions to support his interest in obtaining the
information requested. Suspicions and desires to comb records
in the hope of discovering an error are simply insufficient
to establish a particularized need. See Jones v.
Superintendent, Va. State Farm, 460 F.2d 150, 152-53
(4th Cir. 1972) (stating that particularized need must be
demonstrated by indigent defendant seeking disclosure of
court records at government's expense).
Order denying the request follows.
 Fed. R. Crim. Proc. 6(e)(3)(E)
The court may authorize disclosure-at a time, in a
manner, and subject to any other conditions that it
directs-of a grand-jury matter:
(i) preliminarily to or in connection with a judicial
(ii) at the request of a defendant who shows that a
ground may exist to dismiss the indictment because of a
matter that occurred ...