United States District Court, E.D. Washington
ORDER DENYING DEFENDANT SMITH'S MOTION TO DISMISS INDICTMENT FOR PROSECUTORIAL MISCONDUCT IN GRAND JURY PROCEEDINGS
ROSANNA MALOUF PETERSON, Chief District Judge.
BEFORE THE COURT is Defendant Louis Daniel Smith's "Motion to Dismiss Indictment for Prosecutorial Misconduct in Grand Jury Proceedings, " ECF No. 271. The motion was heard without oral argument. Defendant Smith is appearing pro se in this action. The Court has appointed Terrence M. Ryan as standby counsel for Mr. Smith. Christopher M. Parisi has appeared on behalf of the Government. The Court has considered the motion and the file, and is fully informed.
Defendant Smith was indicted on January 25, 2013, along with co-defendants Karis Delong, Chris Olson, and Tammy Olson. Defendant Smith was charged in the Indictment with one count of conspiracy in violation of 18 U.S.C. § 371; four counts of delivering misbranded drugs into interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2); and one count of smuggling in violation of 18 U.S.C. § 545. The indictment generally alleges that the Defendants misbranded a solution of sodium chlorite and water and marketed it as a Miracle Mineral Solution ("MMS") for consumption to cure such ailments as malaria, HIV/AIDS, hepatitis, and various forms of cancer. ECF No. 1.
In the instant motion, Defendant Smith alleges that the prosecution engaged in misconduct before the grand jury in order to secure the Indictment against Smith and his codefendants. Defendant Smith complains of a portion of Special Agent Da Li Borden's testimony before the grand jury on January 23, 2013, where the Government's attorney, Mr. Parisi, elicited testimony about how FDA investigators came to be interested in the Defendant's company, Project Greenlife. The following colloquy occurred in response to Mr. Parisi's question:
A. [SPECIAL AGENT BORDEN] Project Greenlife was originally flagged by FDA back in Washington, D.C. at our headquarters level because of their claims on the internet regarding using MMS for the H1N1 virus. The special section that reviews internet websites started monitoring them and then started getting reports of complaints of adverse events related to MMS, so we had received several of those.
And then, approximately in 2010 there had been a complaint that had come through the State Department regarding the death of a U.S. citizen over in Vanuatu, which is a small island nation out in the Pacific, that was related to MMS.
Q: [MR. PARISI] Now, based on your investigation do you have any concrete, solid evidence that MMS caused that individual's death?
A: No. The autopsy was inconclusive, so we have not gone forward with this investigation looking at MMS as a cause of that death.
Q: I take it it was just a complaint that this individual had consumed MMS and then had died, but there wasn't necessarily a medical link between the two?
A: I think the medical link was not proved due to a variety of circumstances, length of time till there was an autopsy, things like this. His death occurred actually on a vessel out in the middle of the Pacific, so by the time Australian authorities were able to conduct an autopsy I think there was a lot of deterioration and they were unable to provide a specific cause of death.
MR. PARISI: Members of the Grand Jury, I'll just give you a quick caution there. We're offering that information just to explain why the FDA got involved. We do not intend to present you any evidence that there was a link between that, nor are we suggesting that you should consider that when you consider the evidence that we are presenting. It's just kind of some background for you.
ECF No. 271, Ex. B.
Defendant Smith additionally complains that Special Agent Borden was asked a similar question regarding the background of the investigation during her September 7, 2011, testimony before the grand jury, and that in that earlier grand jury testimony Special Agent Borden did not offer information about a ...