government does not abjure. Indeed, the Assistant United States Attorney currently conducting the investigations has conceded that Miss Bowers has performed all acts requested of her.
Finally, Miss Bowers has testified that she would have been willing to comply with any investigative request prior to trial. Her cooperation following the indictment is corroborative of this assertion. Thus, we have no reason to doubt the veracity of defendant's evidence since the United States does not seriously contest this evidence. Indeed, this court has invited the United States to present evidence to the contrary but no such evidence is of record. We hold that Marie Bowers was able and willing to cooperate with the United States in all relevant investigative endeavors assuming that the offer of immunity had been conveyed to her.
V. The Duty of Counsel
The American Bar Association Standards provide that a "lawyer has a duty to keep his client informed of the developments in the case and the progress of preparing the defense." A.B.A. Standards Relating to The Prosecution and The Defense Function, § 3.8, p. 222 (Tentative Draft 1971). The lawyer-client relationship encompasses at the very least an effective advocate and an informed client who is cognizant of all proposals made by the prosecutor. Id. at § 6.2(a), p. 249. Pre-indictment proposals are no exception. Hence, a lawyer who fails to convey to his client a proposal which may enable the client to avoid the burdens of an indictment violates the fundamental duty of undivided loyalty to his client.
The ineffectiveness of counsel may also raise serious constitutional questions. The Sixth Amendment right to the assistance of counsel includes the right to be assisted by competent counsel. If counsel fails to inform his client of a pending proposal, prior to adversary criminal proceedings, and the client is prejudiced, fairness and due process dictate relief. We are satisfied that Marie Bowers was constitutionally prejudiced by the acts of her counsel and we must fashion the relief which justice requires.
The dismissal of an indictment is a drastic remedy. United States v. Morrison, 449 U.S. 361, , 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981). But these facts call for a drastic remedy. We cannot suppress the evidence. Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). We cannot grant a new trial. O'Brien v. United States, 386 U.S. 345, 87 S. Ct. 1158, 18 L. Ed. 2d 94 (1967); Black v. United States, 385 U.S. 26, 87 S. Ct. 190, 17 L. Ed. 2d 26 (1966). The error is not harmless. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). This is a case of substantial and continuing prejudice to a defendant who would not otherwise have been indicted. There can be but one remedy and that is to return the parties to their original position by dismissing the indictment.
The Supreme Court has instructed the district courts to weigh carefully the right to counsel in a criminal case with the necessity for preserving society's interest in the administration of criminal justice. United States v. Morrison, 449 U.S. 361, , 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981). "Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." Id. This court is confident that the remedy we fashion today does not unnecessarily infringe upon society's interest in the administration of criminal justice.
The United States intended to investigate and perhaps prosecute certain individuals by granting immunity to Marie Bowers. The decision to grant immunity to certain persons and prosecute others is clearly within the prerogative of the executive branch of government. Grants of immunity are commonplace and our decision to dismiss this indictment places the United States in precisely the same position it willingly assumed at the outset of these investigations.
Whether these investigations produce an indictment is immaterial. The prosecutor saw fit to grant immunity to a person involved in criminal activity in order to investigate other persons suspected of illegal activities. Whether that decision was sound is not for this court to decide. Our role is limited to a determination that such a proposal was made and, under these circumstances, to enforce it.
We have determined to dismiss the indictment without prejudice. We do so because the grant of immunity was conditioned upon the requirement that Marie Bowers appear and testify at any subsequent trial. That condition remains unfulfilled. If she fails to comply with the final condition of the proposal, the United States may proceed against her in any lawful matter.
Finally, since our decision to dismiss the indictment is predicated upon a finding that counsel was ineffective for failing to convey to Miss Bowers the offer of immunity, we need not address the remaining allegations of the motion to dismiss.
The motion of Marie Bowers to dismiss the indictment will be granted.
A written order will follow.
DATED: July 9, 1981.
Donald E. Ziegler
United States District Judge
ORDER OF COURT
AND NOW, this 9th day of July, 1981,
IT IS ORDERED that the motion of Marie Bowers to dismiss the indictment be and hereby is granted without prejudice.
Donald E. Ziegler
United States District Judge