Moving defendants complain that the "unauthorized" presence of the FBI agent and defense counsel irremediably tainted the proceeding. In United States v. Phillips Petroleum Co., 435 F. Supp. 610 (N.D.Okla.1977), the court dismissed an indictment where an irregular evening session of the grand jury had been conducted in the office of an Assistant United States Attorney and that "unauthorized" persons attended. Importantly, exculpatory statements elicited from a key government witness after a full day of damaging testimony were not presented to the grand jury, notwithstanding the Government's representation that the "evening session" would be considered a part of the grand jury proceeding and that the grand jury would have complete access to that testimony. The prosecutorial misconduct warranting dismissal of the indictment in Phillips amounted to "a cumulation of established indiscretions attributable to the ... prosecutor". See United States v. Deerfield Specialty Papers, 501 F. Supp. 796, 806 (E.D.Pa.1980).
In the case at bar defendants have not alleged that the Government elicited exculpatory statements from the witness and then withheld them from the grand jury's consideration. Acknowledging this lack of overreaching by the Government, moving defendants nevertheless seek dismissal and argue that the standard to test the legality of the "presence" of persons at a grand jury proceeding is clearly defined in the rule and that a deposition or sworn interview which purports to be taken "for all purposes as if it were before a grand jury" is, in fact, a grand jury "proceeding" requiring full compliance with Rule 6(d). We disagree.
United States v. International Paper Co., 457 F. Supp. 571 (S.D.Tex.1978) rejected a similar argument and observed that "Phillips was essentially a one witness case", id. at 574, where only incriminating and none of the exculpatory statements of the "pivotal witness" were placed before the grand jury. Id. at 574. The International Paper court further reasoned that statements of the Assistant United States Attorney which allegedly transformed the interview into a grand jury "proceeding" were "trappings" designed merely to insure the truthfulness of the witness' testimony. Id. at 575.
As Cloninger's former attorney noted, Cloninger was "deposed" rather than "submitted" to the grand jury. This acknowledgement not only evidences the fact that Cloninger's former attorney (and presumably Cloninger himself) knew that the deposition was not a grand jury "proceeding", but it also indicates a willingness on the Government's part to cooperate with defense counsel, a marked contrast to the prosecutorial overreaching and "cumulation of established indiscretions" permeating Phillips. See United States v. Deerfield Specialty Papers, supra. Furthermore, unlike Phillips, currently before the Court is a complex case involving twenty-one original defendants charged with participation in a conspiracy spanning a number of years and reaching into states from Pennsylvania to California and Michigan to Alabama. Simply stated, there is no "pivotal" or prime witness whose key testimony was withheld from the grand jury. Even if such a "pivotal witness" exists, it is unlikely that defendant Cloninger is that witness. Therefore, even assuming that the Government elicited exculpatory statements from Cloninger and withheld them from the grand jury's consideration, this conduct did not unfairly or irredeemably distort the grand jury process.
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