United States District Court, S.D. Florida, Miami Division
ORDER GRANTING FEDERAL ELECTION COMMISSION'S
PETITION FOR DISCLOSURE OF GRAND JURY MATERIALS
JONATHAN GOODMAN, UNITED STATES MAGISTRATE JUDGE
Federal Election Commission (“FEC”) filed a
petition [ECF No. 58] to disclose grand jury materials from
United States v. Justin Lamar Sternad, Case No.
13-CR-20108-CMA-1 (S.D. Fla. Feb. 22, 2013) and United
States v. Alliegro, Case No. 14-CR-20102-RNS-1 (S.D.
Fla. Feb. 20, 2014), that are in the custody of the United
States Attorney for the Southern District of Florida.
FEC's petition concerns the Amended Complaint it has
filed here [ECF No. 41] against former U.S. Congressman David
Rivera, who it alleged had secretly provided more than $55,
000 of in-kind contributions to the 2012 primary election
campaign of Justin Lamar Sternad in Florida's 26th
Congressional District, in violation of the Federal Election
Campaign Act (“FECA”)'s prohibition on
contributions in the name of another. Sternad and Ana
Alliegro pled guilty to criminal charges for their roles in
this activity, as well as other activity, and these criminal
cases have concluded. Although revealed to be an unindicted
coconspirator in the criminal cases, Rivera was not
criminally prosecuted for his alleged role in the conspiracy.
grand jury materials at issue in the petition are: (1)
business records provided by witnesses, such as invoices,
vendor account documentation, payment forms, receipts, postal
records, campaign mailers and/or flyers; (2) other
documentary evidence collected from witnesses or defendants,
such as email, texts, call logs and handwritten notes; and
(3) the transcript of Alliegro's grand jury testimony.
United States Attorney's Office consented to the filing
of the FEC's petition and does not object to the
requested disclosure of the grand jury materials in its
possession to the FEC and Rivera but requests entry of an
Order. Rivera does not oppose the motion either. And Alliegro
opposes only the disclosure of her grand jury testimony; she
does not object to the disclosure of materials in the other
States District Judge Marcia G. Cooke has referred this
petition to the Undersigned, both generally [ECF No. 25,
referral for all non-dispositive pretrial matters] and
specifically [ECF No. 66, referral of the instant petition].
(1) no party objects to the disclosure of grand jury
materials in the first two categories; (2) the FEC has
established, pursuant to Federal Rule of Criminal Procedure
6(e)(3)(E)(i), a “compelling and particularized
need” for Alliegro's grand jury testimony under the
“judicial proceedings” exception to the grand
jury secrecy rule of Federal Rule of Criminal Procedure 6;
and (3) Alliegro did not cite any caselaw or other authority
supporting her conclusory objection to the requested
disclosure of her grand jury testimony, the Undersigned
grants the FEC's petition.
filed this civil action against Rivera in July 2017 after the
criminal prosecution ended. The FEC's administrative
proceedings had previously been abated. During its recent
discovery efforts, the FEC learned that certain key witnesses
with knowledge of facts material to this case provided
documentary evidence to the Department of Justice
(“DOJ”) many years ago but no longer have
access to or copies of that evidence. Moreover, in
his June 26, 2019 discovery responses to the FEC, Rivera
provided no records relating to the transactions at issue in
this case, but he did produce a declaration from Alliegro
contradicting the factual basis of her criminal
guilty plea. [ECF Nos. 51-53].
the materials at issue may have been provided pursuant to a
grand jury subpoena, but some materials were given to the DOJ
voluntarily by witnesses or otherwise collected from them but
may have been considered by the grand jury. In addition, the
FEC has explained [ECF No. 58, p. 3, n. 3] that some of the
materials in the USAO's possession which were provided
by, or collected from, witnesses may not have been considered
by the grand jury.
The FEC's Position
contends that it has a compelling and particularized need
justifying an exception under Rule 6(e)(3)(E)(i). First, the
material it seeks is necessary to avoid injustice in this
civil proceeding given that key witnesses no longer have
access to or copies of documentary evidence they provided to
the DOJ, or have recently disavowed testimony provided in the
criminal proceeding. Second, the need for disclosure is
significant given the identity of issues and witnesses in the
civil and criminal proceedings and given that the materials
the FEC seeks are critical to its ability to prove its case.
other hand, the FEC argues, the need for secrecy, if any, is
slight because (a) many of the materials it requests are
documents that existed independent of the grand jury
investigation and may have been voluntarily provided to the
DOJ, so the need for secrecy is negligible or non-existent;
(b) the criminal matters have long been completed and the
grand jury released; (c) the identities of the relevant
witnesses have been publicly reported; and (d) Rivera faces
no threat of criminal prosecution and his status as an
alleged unindicted co-conspirator in the Sternad and Alliegro
matters is already public knowledge. Third, the FEC says its
request is narrowly tailored to the facts of this case.
the FEC points out that materials not considered by the grand
jury are not even grand jury material within the meaning of
Rule 6(e)'s secrecy provision and can be shared with the
FEC (and Rivera) in this lawsuit. Nevertheless, it argues
that an Order would generate a benefit because it would allow
the parties to share information without forcing the USAO to
segregate materials into categories: those obtained without a
grand jury subpoena, those obtained with a grand jury
subpoena, and those never considered by the grand jury. Thus,
the FEC notes, an Order would eliminate this administrative
burden, which it suggests might be cumbersome and problematic
“after the passage of a number of years.” [ECF
No. 58, p. 3, n. 3].
her Court-ordered [ECF No. 59] opposition response (of less
than two pages) does not cite any legal authority, Alliegro
opposes disclosure of her grand jury testimony because it
adversely affect the important public interests in (a)
assuring that witnesses who provide needed testimony to
federal grand juries may do so freely and cooperatively and
(b) protecting cooperating witnesses from unnecessary
exposure, embarrassment, and potential misuse of grand jury
[ECF No. 64');">64, p. 1].
response argues that the FEC's petition “fails to
identify any compelling need” for her testimony and
incorrectly contends that the FEC “appears to concede
that it can obtain equivalent information by other means . .
.” Id. But the FEC has not made such a
concession. Indeed, it has taken the opposite
also focused on the apparent fact that the February 2019
declaration referenced in the FEC's petition as
contradicting the factual basis of her plea [ECF No. 58-1,
declaration from FEC counsel Shaina Ward] is uncounseled and
argues that the declaration has “no independent
evidentiary value.” [ECF No. 64');">64, p. 2].
Applicable Legal ...