Tom Welch and Dave Johnson, charged in the Salt Lake Olympics bribery scandal, are trying to launch a "fishing expedition" for errors in grand jury instructions, federal prosecutors say.
Although U.S. District Judge David Sam threw out the four major charges in the case on July 16, the defendants still face a conspiracy count and 10 counts of wire fraud and mail fraud. Their attorneys have been trying to get those dismissed also.
Meanwhile, the case has been continuing on another front: debate over whether Welch and Johnson should see the instructions given to the grand jury that indicted them last year. U.S. Magistrate Ronald Boyce denied them access to the instructions, but they appealed.
Both sides have filed arguments before Sam in the appeal. The latest came Thursday, when Justice Department senior trial attorneys Richard N. Wiedis and John W. Scott spelled out the government's position.
Lawyers for Welch and Johnson argue that the magistrate relied on case law that is no longer in effect. A new Supreme Court decision in a case called Bank of Nova Scotia vs. United States is the controlling case law, they said.
According to defendants, that ruling says that even an indictment that may seem valid is subject to dismissal when an error occurred that "substantially influenced the grand jury's decision to indict."
Wiedis and Scott denounce that argument, saying defendants "persist in what — at best — is an utter misapprehension of the standards which apply to this narrow legal issue."
In fact, they continue, the ruling in Bank of Nova Scotia "does not even address the disclosure of grand jury instructions." Rather, the Supreme Court held that, in general, a district court can't dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants, they added.
Boyce recognized the well-known standard that disclosure of matters before a grand jury must occur only with a showing of "particularized need" of the information.
Welch and Johnson have such a particularized need, only of their own creation, the prosecutors argued. They added that "the mere speculation that a grand jury may not have been properly instructed does not warrant disclosure of the instructions."
The defendants are not entitled to grand jury instructions, wrote the government lawyers.
"The defendants are still attempting to engage in the same kind of fishing expedition" that was discredited in a case called United States vs. Mariani, they added.
Welch and Johnson had argued that Sam should review the grand jury instructions privately, called an "in camera review."
The prosecutors responded, "Because their request is supported only by conjecture, it fails to articulate a particularized need and should be denied without recourse to an in camera review."