## Facts

- Ho was the security manager for the company providing security at the Maui airport and supervised security officers with arrest authority under Hawai‘i law.
- During a meeting, Ho got into an argument with an employee.
- Ho directed subordinate officers to arrest that employee.
- Ho ordered other attendees to leave the room and struck another employee who refused to leave.
- Ho later told a witness to give Maui police a false version of events: that she was about to go home when the incident occurred and did not see what happened because her view was blocked.
- The witness repeated that false account to the Maui police.
- Ho also instructed the witness to prepare a written statement for their employer that reflected the same false version.
- A federal grand jury returned charges that included witness tampering under 18 U.S.C. §§ 1512(b)(1) and 1512(b)(3), based on alleged interference with investigations by the Maui police and Ho’s employer.
- Ho moved for in camera review of grand-jury transcripts, arguing the government may have misstated the legal elements of §§ 1512(b)(1) and (b)(3) to the grand jury, and seeking disclosure only if the review revealed a legal error supporting a motion to dismiss.

## Issues

1. Whether Ho showed a particularized need under Federal Rule of Criminal Procedure 6(e) for the court to conduct an in camera review of grand-jury transcripts reflecting the government’s legal instructions on 18 U.S.C. § 1512(b)(1), including any required “nexus” to an official proceeding.
2. Whether Ho showed a particularized need for in camera review of grand-jury instructions on 18 U.S.C. § 1512(b)(3), based on his claim that the grand jury may have been misinstructed on the statute’s elements and federal-communication component.
3. After any in camera review, whether the instructions contained a misstatement of law that could support dismissal of the witness-tampering counts.

## Decision

- The court **granted in part** and **denied in part** Ho’s motion for in camera review of grand-jury transcripts.
- The court ordered **limited in camera review** concerning Ho’s argument that the government may have misled the grand jury about the **§ 1512(b)(1) “nexus” requirement** tied to an official proceeding.
- The court **denied** in camera review as to Ho’s claimed instructional errors regarding **§ 1512(b)(3)** because Ho did not make a sufficient, non-speculative showing warranting review on that theory.
- After conducting the limited in camera review, the court found **no misstatement of law** in the government’s § 1512(b)(1) instructions that would support a motion to dismiss.
- The witness-tampering counts were **not dismissed** based on the requested grand-jury review.

## Legal Principles

- Grand-jury matters are generally secret under **Federal Rule of Criminal Procedure 6(e)**; disclosure (or court-ordered review aimed at potential disclosure) requires a showing of **particularized need** that outweighs the reasons for secrecy.
- A request tied to grand-jury materials must be **narrow** and directed to a concrete need in the criminal case; generalized suspicions or speculation about possible error are not enough.
- A court may choose **in camera review** as a limited mechanism to evaluate whether any grand-jury material should be disclosed, especially when the request targets discrete legal instructions rather than broad testimony.
- For **18 U.S.C. § 1512(b)(1)** (tampering aimed at influencing testimony in an official proceeding), a defendant may challenge whether the grand jury was properly instructed on any required connection between the defendant’s conduct and the relevant proceeding.
- For **18 U.S.C. § 1512(b)(3)** (tampering aimed at preventing communication of information to a federal law-enforcement officer or judge), the statute focuses on intent to hinder communications about possible federal offenses; it may apply even when the initial communication is with nonfederal investigators, depending on the circumstances and theory charged.
- Even when a court reviews grand-jury instructions, dismissal is not warranted unless the instructions contain a legal error that meaningfully affects the validity of the charging decision.

## Conclusion

In United States v. Ho, the District of Hawai‘i required a strong, specific justification before looking behind grand-jury secrecy, granting only a limited in camera review focused on the claimed § 1512(b)(1) nexus-instruction issue while rejecting broader, speculative objections about § 1512(b)(3). After reviewing the challenged instructions, the court found no misstatement of law that would support dismissal, leaving the witness-tampering counts in place.


United States v. Ho, 2009 WL 2591345 (2009)