[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11809

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JAMES LAMOUNT GRAHAM, 

a.k.a.

JT Money,

a.k.a.

James Livingston,

Defendant-Appellant.

____________________

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2 Opinion of the Court 22-11809

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 2:20-cr-00047-LGW-BWC-1

____________________

Before GRANT, TJOFLAT, and ED CARNES, Circuit Judges.

GRANT, Circuit Judge:

A jury found James Graham guilty of various drug crimes. 

Now on appeal, Graham attacks his indictment, claiming that the

grand jury’s probable cause determination was rendered defective 

by the district court’s special procedures related to the Covid-19 

pandemic. Under these procedures, grand jurors met in three 

separate federal courthouses, but were joined together by 

videoconferencing. He also argues that the wiretaps used to gather 

evidence against him did not meet the statutory necessity 

requirement.

We affirm. The Covid-19 accommodations that Graham 

criticizes introduced no fundamental error into his prosecution; 

indeed, he does not claim that they affected the grand jury’s 

decision in any way. As for the statutory necessity claim, the 

district court did not clearly err in deciding that the wiretaps were 

necessary. 

I.

Graham’s prosecution began in the summer of 2020, during 

the early stages of reopening during the Covid-19 pandemic. At 

that time, the Southern District of Georgia operated under a 

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standing order authorizing certain deviations from its normal 

grand jury procedures. The order permitted members of a single 

grand jury who would “otherwise travel into Savannah for grand 

jury service” to instead convene in three separate federal 

courthouses in the district in groups of ten or less. 

The order imposed several requirements on these separated 

groups. To start, the “designated grand jury spaces in each U.S. 

Courthouse” were to be “connected using telecommunications 

facilities.” Technology had to be in place such that “every member 

of the grand jury [could] both see and hear witnesses.” For 

security, the order mandated that court security officers would be 

“posted outside the designated grand jury spaces at each U.S. 

Courthouse to safeguard the grand jury against intrusion by 

unauthorized persons and to ensure the secrecy of the grand jury’s 

deliberations.” 

Graham was charged with multiple drug-related crimes. 

Before trial, Graham moved to dismiss the indictment based on a 

challenge to the grand jury’s procedures. He also moved to 

suppress evidence that the government obtained using wiretaps of 

his telephone, claiming that the wiretaps were unnecessary and 

thus disallowed. The district court denied both motions. 

A jury convicted Graham on all counts. The court 

sentenced him to 170 months of imprisonment and five years of 

supervised release and imposed other fines and assessments. 

Graham now appeals, reviving both his grand jury and evidentiary 

challenges. 

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II.

We review the denial of a motion to dismiss an indictment 

for abuse of discretion, resolving issues of law de novo. United 

States v. Cavallo, 790 F.3d 1202, 1219 (11th Cir. 2015). We review 

the court’s wiretap necessity finding for clear error. United States v. 

Maxi, 886 F.3d 1318, 1331 (11th Cir. 2018).

III.

Graham argues that the standing order violated both his 

Fifth Amendment right to a grand jury and the restrictions set out 

in Federal Rule of Criminal Procedure 6(d). Rule 6(d)(1) offers a 

list of people—attorneys for the government, a witness who is on 

the stand being questioned, and the like—who “may be present 

while the grand jury is in session.” Fed. R. Crim. P. 6(d)(1). Rule 

6(d)(2) further restricts who “may be present while the grand jury 

is deliberating or voting.” But Graham’s concern is not who was

present at the grand jury—it is who he says was not. He interprets

Rule 6(d) to require that his grand jurors all be “present” in the 

same room, and he gestures at the cybersecurity risks of 

communicating with technology. Because the grand jurors were 

separated into three different courthouses, he says, his indictment 

was fundamentally corrupted. 

But Graham’s argument is missing one key component: 

prejudice. A showing of prejudice is generally required before an 

indictment may be dismissed because of a problem with the grand 

jury. Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). 

After all, Rule 52(a) commands that courts disregard any “error, 

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22-11809 Opinion of the Court 5

defect, irregularity or variance which does not affect substantial 

rights.” Id. at 254–55 (quoting Fed. R. Crim. P. 52(a)). In rare 

circumstances, such prejudice may be presumed—when “the 

structural protections of the grand jury have been so compromised 

as to render the proceedings fundamentally unfair.” Id. at 256–57. 

Such a “fundamental” error “gives rise to the constitutional right 

not to be tried” because “it causes the grand jury no longer to be a 

grand jury, or the indictment no longer to be an indictment.” 

Midland Asphalt Corp. v. United States, 489 U.S. 794, 802 (1989). The 

foremost examples of fundamental error are racial and gender 

discrimination in the selection of grand jurors. See Bank of Nova 

Scotia, 487 U.S. at 257. 

When this sort of structural error is not at play, courts 

generally consider two things to evaluate potential prejudice: 

whether “it is established that the violation substantially influenced 

the grand jury’s decision to indict” and whether there is “grave 

doubt that the decision to indict was free from the substantial 

influence of such violations.”1 Id. at 256 (quotations omitted); see 

1 One other test has also applied. In Mechanik, the Supreme Court confronted 

a post-trial denial of a challenge to a grand jury proceeding. United States v. 

Mechanik, 475 U.S. 66, 68–69 (1986). It held that the petit jury’s later guilty 

verdict, by itself, showed that “any error in the grand jury proceeding” was 

“harmless beyond a reasonable doubt.” Id. at 70. Bank of Nova Scotia, by 

contrast, restricts part of its analysis to cases in which “a court is asked to 

dismiss an indictment prior to the conclusion of the trial.” 487 U.S. at 256.

This Court has acknowledged some difficulty in squaring these two cases. See 

United States v. Jennings, 991 F.2d 725, 729 (11th Cir. 1993). We need not 

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also Cavallo, 790 F.3d at 1219; United States v. Jennings, 991 F.2d 725, 

728–29 (11th Cir. 1993); United States v. Exarhos, 135 F.3d 723, 726–

27 (11th Cir. 1998). 

Graham falls far short of these standards. Even if he were 

correct that grand jurors must all be present in the same room to 

comply with Rule 6 (a question that we do not consider), that kind

of violation of Rule 6 is not a fundamental error allowing for 

prejudice to be presumed. The fact that the grand jurors met in 

three secure locations and communicated via videoconference did 

not change the basic nature of Graham’s grand jury or fatally infect 

his indictment. See Bank of Nova Scotia, 487 U.S. at 257–58 (finding 

no fundamental error despite many Rule 6 violations). It suggests 

no breach of secrecy, impartiality, or independence. See Costello v. 

United States, 350 U.S. 359, 362–63 (1956).

Graham thus must show prejudice, but at no point does he 

allege—or even speculate—how the violation he alleges could 

have affected his indictment. He claims no flaw in the presentation 

of evidence, no security breach, and no prosecutorial misconduct. 

Nor did he seek discovery about his grand jury proceedings. With 

no allegations—much less evidence—of any influence on the 

indictment, we cannot conclude that the grand jurors’ physical 

separation “substantially influenced” their decision to indict or 

consider that problem here because a petit jury convicted Graham on all 

counts, which means that Mechanik’s reasoning also supports our decision. 

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created “grave doubt” about the indictment’s integrity. See Bank of 

Nova Scotia, 487 U.S. at 256. 

No doubt, one can imagine how the use of 

telecommunication facilities could affect a grand jury in some way. 

But Graham must have been harmed by error in his grand jury or

his indictment—hypotheticals will not do. Nothing in the record 

here suggests any prejudice to Graham. Nor do the briefs. So even 

if there were any error—and we are not suggesting that there 

was—it was harmless to Graham. 

In short, the court did not abuse its discretion. Dismissal of 

an indictment is “an extreme sanction which should be 

infrequently utilized,” and nothing about this grand jury

proceeding supports dismissal. United States v. Pabian, 704 F.2d 

1533, 1536 (11th Cir. 1983) (quotation omitted). 

IV.

When requesting a wiretap, the government must include

in its application “a full and complete statement as to whether or 

not other investigative procedures have been tried and failed or 

why they reasonably appear to be unlikely to succeed if tried or to 

be too dangerous.” 18 U.S.C. § 2518(1)(c). But it need not “show 

a comprehensive exhaustion of all possible techniques.” United 

States v. Van Horn, 789 F.2d 1492, 1496 (11th Cir. 1986). The law 

only demands an explanation of “the retroactive or prospective 

failure of several investigative techniques that reasonably suggest 

themselves” for “this particular investigation.” Id.; United States v. 

Perez, 661 F.3d 568, 581 (11th Cir. 2011) (quotation omitted).

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The district court did not clearly err in deciding that the 

government met this standard. Graham argues that the wiretap 

cannot have been necessary because the government already 

obtained some evidence from surveilling a few of Graham’s drug 

deals and that he was unlikely to reveal new information on the 

phone. But if having some evidence of a crime were enough to bar 

a wiretap as unnecessary, no wiretap order could ever be issued 

because evidence is required to get a wiretap in the first place. And 

in any event, the government’s investigation expanded beyond just 

Graham’s individual drug deals—it sought to uncover the inner 

workings of the whole drug trafficking organization. The wiretaps 

could advance this broader goal. See Perez, 661 F.3d at 581–82.

A review of the wiretap affidavits themselves shows that 

they provided more than enough explanation to comply with the 

law. After describing the investigation’s history and goals, the

affidavits comprehensively outlined the “Need for Interception” 

and discussed “Alternative Investigative Techniques.” They

exhaustively detailed why previous sources of information and

reasonable alternative methods—including physical surveillance, 

cameras, interviews, undercover agents, subpoenas, search 

warrants, trash searches, and more—would not suffice. Such 

thorough and specific affidavits easily satisfy the legal 

requirements. See United States v. Goldstein, 989 F.3d 1178, 1195–96

(11th Cir. 2021).

V.

We AFFIRM.

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