Opinion
No. CR 09-712-PHX-DGC.
August 5, 2010
ORDER
Defendant Daniel Mahon is charged with conspiracy in an indictment dated June 16, 2009. Doc. 3. Defendant alleges that a grand jury is set to reconvene in this matter on August 11, 2010, and seeks leave to appear with counsel at the grand jury proceeding. Doc. 425. Defendant argues that several other targets of the pending criminal investigation have been subpoenaed to appear before the grand jury. Id. at 2-3.
A defendant has "no right to appear before the grand jury[.]" U.S. v. Fritz, 852 F.2d 1175, 1177 (9th Cir. 1988); see U.S. v. Leverage Funding Systems, Inc., 637 F.2d 645, 648 (9th Cir. 1980) ("[A]n accused has no right to be called as a witness before the grand jury . . . and he or she has no right of cross-examination[.]") (internal quotations omitted).
Defendant argues that Crawford v. Washington, 541 U.S. 36 (2004), mandates that he have the opportunity to confront witnesses testifying before the grand jury. Crawford, however, does not hold that a defendant is entitled to cross-examine witnesses during a grand jury proceeding. It holds that a defendant has a Sixth Amendment right during trial to confront and cross-examine persons who made out-of-court statements. Id. at 68.
Defendant argues that United States v. Williams, 504 U.S. 36 (1992), allows a court to intervene in the grand jury process "when the compulsion the grand jury seeks would override rights accorded by the Constitution[.]" Id. at 48. Williams does not hold, however, that a defendant has the right to appear before a grand jury. Id. IT IS ORDERED that Defendant's motion for leave to appear at the grand jury (Doc. 425) is denied.
Excludable delay pursuant to U.S.C. § 18:3161(h)(1)(D) is found to commence on 7/26/2010 for a total of days.