II. THE MOTION TO DISMISS AND TO INSPECT GRAND JURY MINUTES
Defendant's motion to dismiss is based on his contention, considered and upheld above, that the evidence taken from his home was seized in violation of his constitutional rights and that since the indictment was procured and based upon such evidence, the indictment must be dismissed. Defendant urges that if the Government does not concede the use of this evidence before the grand jury, then he should be allowed to inspect the grand jury minutes or that the court should inspect them to demonstrate the basis of the indictment.
In Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956), the Court held that the evidence underlying an indictment may not be considered, for whatever may appear, the indictment may not be dismissed. The Court said, 350 U.S. at 363, 76 S. Ct. at 408:
'* * * If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. * * *'
Although Costello concerned merely the presentation of no more than hearsay testimony to the grand jury, 'the breadth of the declarations made by the Court' (Burton, J., concurring, 350 U.S. at 364, 76 S. Ct. at 409) are such that, as we understand that opinion, we are proscribed from examining the grand jury proceedings despite what we feel is a virtual certainty that we would find use made of the now suppressed evidence. See also Lawn v. United States, 355 U.S. 339, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1958).
The motions to dismiss and to inspect the grand jury minutes will be denied.
Defendant Markham has also moved to dismiss Counts VI and VII of the indictment on the ground of duplicity. We have not yet heard oral argument on this motion, and if the Government intends to pursue this case an argument will be scheduled.
AND NOW, January 11, 1963, IT IS ORDERED that the motion of the defendant Markham to suppress the evidence is granted; the motions to dismiss the indictment, or in the alternative, to inspect the minutes of the grand jury are denied.
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