The opinion of the court was delivered by: Surrick, J.
Presently before the Court are the Government's Motion to Admit Tape Recordings (Doc. No. 18), Defendant's Motion to Dismiss the Indictment (Doc. No. 26), and Defendant's Motion to Compel (Doc. No. 27). For the following reasons, the Government's Motion will be granted, Defendant's Motion to Dismiss the Indictment will be denied, and Defendant's Motion to Compel will be granted in part and denied in part.
On March 4, 2009, Defendant was indicted on two counts of distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Counts One and Two). (Doc. No. 1.) On March 30, 2009, the Government filed a Motion to Admit Tape Recordings. (Doc. No. 18.) No response was filed by Defendant. On May 18, 2009, Defendant filed a Motion to Dismiss the Indictment (Doc. No. 26) and a Motion to Compel (Doc. No. 27). The Government filed responses to Defendant's Motions on June 8, 2009. (Doc. Nos. 28, 29.)
A hearing was held on the Motions on July 9, 2009. At the hearing, the Government presented testimony from ATF Special Agent Jenna Motzenbecker (Hr'g Tr. 1-76, July 9, 2009), and counsel made argument on the Motions. The Motions are now ripe for disposition.
A. Government's Motion to Admit Tape Recordings (Doc. No. 18)
The Government seeks to admit an audio tape recording of a conversation that took place on October 24, 2007, between Defendant and a confidential informant ("CI"). (Doc. No. 18.) The CI, whose identity is known to Defendant and to the Court, will be testifying at trial. At the hearing, Defendant advised that he does not oppose the Government's Motion to Admit Tape Recordings.*fn1 Accordingly, the Government's Motion will be granted.
B. Defendant's Motion to Dismiss the Indictment (Doc. No. 26)
Defendant moves to dismiss the indictment on the grounds that Special Agent Motzenbecker lied to the grand jury, that AUSA Ewald Zittlau suborned perjury by allowing the agent to testify falsely, and that AUSA Zittlau's failure to either play the recorded conversation or read the transcript of the conversation took away the independent function of the grand jury.
"[A]s a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants." Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). "To find prejudice, the district court must establish that the [non-constitutional] violation substantially influenced the grand jury's decision to indict, or . . . [that] there is grave doubt that the decision to indict was free from the substantial influence of such violations." United States v. Soberon, 929 F.2d 935, 939-40 (3d Cir. 1991) (quoting Bank of Nova Scotia, 487 U.S. at 256) (internal quotation marks omitted). "[T]he presentation of . . . allegedly perjured testimony to the grand jury does not fall into the narrow category of cases in which dismissal of charges without a showing of prejudice is warranted." Id. at 940.
1. Special Agent Motzenbecker's Testimony Before the Grand Jury
Defendant alleges that Special Agent Motzenbecker made three distinct false statements before the grand jury. We will review each statement separately.
Defendant contends that Special Agent Motzenbecker lied in the following exchange with a grand juror:
A JUROR: The audio recording that you have of the C.I. and Mr. Jones, on the audio recording is there actually discussion of them performing a business transaction?
THE WITNESS [Special Agent Motzenbecker]: Yes. (Doc. No. 26, Ex. A at 13-14 (Grand Jury Tr., Mar. 4, 2009).) Defendant approaches this alleged instance of false testimony from two angles. Defendant first argues that "[a] review of the audio recording and the transcript provided to Mr. Jones by the Prosecution make [sic] clear that Motzenbecker's testimony . . . that there was 'actually discussion of them performing a business transaction' during the October 24, 2007 meeting, [was] without question false, misleading and prejudicial." (Def.'s Mem. of Law, Doc. No. 26 at 4.) Defendant also argues that when the Special Agent Motzenbecker testified before the grand jury, she did so based upon her Report of Investigation (see Doc. No. 26, Ex. B ("ROI # 3")) and a rough draft transcript of the recorded conversation, which did not reflect that a drug transaction had occurred (Hr'g Tr. 28-29).
Defendant's argument that the tape recording did not reflect a business transaction is refuted by the tape recording itself. The following exchanges took place on the October 24, 2007 tape recording:
JH [CI]: I don't know man. You got me having [UI]?
FJ [Defendant]: You don't want it? You ain't gotta get it. It's ain't no biggie. JH: No, no, no. I want it. I mean it's tight though, right?
FJ: Come on man, I ain't going to play no games with you like that. You think that I'm going to run around here selling shit to people that ain't tight? Mother fucker just bought four of them. You think I'm playin' games with this shit? I ain't into that. I know what it is. I wouldn't be driving around in no mother fucking 08 if this mother fucking shit ain't tight.
FJ: I'm not giving you nothin. You can smell the shit right through the joint. JH: Um, [UI]
FJ: I wouldn't do that shit [UI] right back to you. There's something wrong with it [UI] here you go. But I know there ...