Federal judges dismissed a set of felony grand jury indictments in Wyoming after ruling that interim U.S. Attorney Darin Smith engaged in misconduct that “could have prejudiced the jurors,” according to the dismissal order. The ruling affects nine defendants and their cases, which included allegations ranging from firearms possession to drug distribution and child pornography.
The judges’ order described the misconduct as more than isolated remarks. It said Smith’s statements began with what the judges called “some of the first words spoken to the grand jury” and that the misconduct continued during the proceedings through off-the-record conversations occurring “on the breaks between indictments.” The order called the conduct “deeply concerning.”
The judges dismissed felony indictments against Cheyenne Swett, Richard Allen, Michael Scott Hopper, Brian Joseph Johnson, Dennison Jay Antelope, Mathew Christopher Jacoby, Matthew Miller Jr., Wolf Elkins Duran and Jose Benito Ocon. The dismissed charges, the order said, included felony possession of firearms, drug distribution and possession, and child pornography, among other allegations.
Defense attorneys had sought dismissal, arguing that Smith improperly told the grand jury the defendants were “bad guys,” stated they were “murderers,” and suggested that deliberations “won’t take long.” The judges said those statements were prejudicial and that they tainted the grand jury process, which the judges described as needing to remain unbiased and as “the sole evaluator of evidence.”
In the 14-page decision, the judges said the cumulative effect of multiple known instances left them with “grave doubt” that the grand jury’s decisions to indict were free from the substantial influence of the violations. The judges also characterized the case as one that reached the level required for dismissal, writing that it was “one of the few rare cases that rises to the level of dismissal.”
The judges issued the dismissal order but stayed it, meaning the dismissals would not take effect immediately. The order said the stay would last until Wednesday or until Smith declines to contest the ruling, a timeline that the court described as allowing Smith to argue against the dismissal.
The court said the dismissals were “without prejudice,” which the order said means the government could potentially empanel another grand jury and re-present the cases. In subsequent filings, defense attorneys asked the judges to reconsider and make the dismissals permanent, and in the alternative sought punishment of Smith.
In those motions, defense attorneys argued that allowing the government to retry the cases after the dismissal would “inadvertently reward” what they characterized as an institutional cover-up. They also asked the judges to disqualify Smith’s entire office, transfer the cases to the Department of Justice in Washington, D.C., or to a different U.S. attorney’s office, and asked that Smith be disciplined or that the matter be referred for disciplinary proceedings.
The judges said the grand jury that heard the defendants’ cases met in Casper on March 15, and that before a judge entered the chamber, Smith began to talk. They said the statements about “bad guys” and “murderers” tainted what the grand jury would hear afterward, calling the remarks inflammatory and inappropriate, and they also criticized Smith’s comments about how long deliberations would take.
The order further described conduct that the judges said risked improper communication with jurors, including Smith handing out business cards and inviting grand jury members to reach out during a break in proceedings. The judges said the behavior was concerning “on two fronts,” and they wrote that a prosecutor should not be soliciting private communication with grand jurors or trying to buddy up to them.
In addition to addressing Smith’s courtroom conduct, the ruling took up concerns about the overall effect of what the judges called “many known instances of misconduct.” The judges wrote that the cumulative “grave doubt” they expressed came from the repeated nature of the conduct and its penetration of the grand jury process, including what they described as attempts to bond with jurors.
The story also intersects with Smith’s role in the federal confirmation process. Smith’s office did not comment on the dismissal order, referring instead to his statements in court files, and the AP reported that he faces a vote next week to confirm his nomination in the U.S. Senate. His nomination, the reporting said, has been fraught with accusations of incompetence and tied to his attendance at the Jan. 6 riot at the U.S. Capitol.