the case to another grand jury on a subsequent occasion.
Even if a finding of grand-jury shopping could support dismissal of an indictment, it is clear it did not take place here. The first grand jury's term expired while it was still gathering evidence. Once the evidence was assembled, it was presented to the second grand jury, whose term had just commenced. The propriety of having one grand jury subpoena evidence and another grand jury presented with that evidence is beyond question. See, e.g., Thompson, 251 U.S. at 407; In re Grand Jury Proceedings, 658 F.2d 782, 784 (10th Cir. 1981); Robert Hawthorne, Inc., 406 F. Supp. at 1117-18; United States v. Kleen Laundry and Cleaners, Inc., 381 F. Supp. 519, 522-23 (E.D. N.Y. 1979). See also Fed.R.Crim.P. 6(e)(3)(C)(iii).
Finally, defendants contend that the government exerted undue influence on the grand jury by presenting it with an indictment which had already been signed by the United States Attorney. One reported decision favors defendants' position. In United States v. Gold, 470 F. Supp. 1336, 1355 (N.D. Ill. 1979), the government could not show that it had not presented a presigned indictment to the grand jury. The district court dismissed the indictment, stressing "that 'the very purpose of the requirement that a man be indicted by a grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. . . ." Id. (quoting Stirone v. United States, 361 U.S. 212, 218, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960)). The Gold court concluded that the government conduct in the case made a "mockery of the grand jury system." Id.
No other reported decision has gone this far.
With all due respect to the Gold court, I cannot conclude that the government exerts any influence by presenting a pre-signed indictment to the grand jury. The signature of the United States Attorney neither certifies that the indictment is in proper form nor attests to the grand jury's conduct. See United States v. Cole, 755 F.2d 748, 757 (11th Cir. 1985); United States v. Cox, 342 F.2d 167, 171-72 (5th Cir. 1965). "Instead, the United States Attorney's signature evidences a recognition that the government attorney has exercised his discretion to permit the indictment to be brought, and demonstrates that he joins the grand jury in commencement of the criminal proceeding." Cole, 755 F.2d at 757. See also United States v. Levine, 457 F.2d 1186, 1189 (10th Cir. 1972). See generally Fed.R.Crim.P. 7(c)(1) (requiring the United States Attorney to sign an indictment).
Any alleged undue influence produced by pre-signature presumably stems from the signature's tacit urging that the grand jury return the indictment. While the grand jury serves to protect the innocent against "hasty, malicious and oppressive persecution," Wood v. Georgia, 370 U.S. 375, 390, 8 L. Ed. 2d 569, 82 S. Ct. 1364 (1962), and in theory acts independently of the prosecutor, Stirone v. United States, 361 U.S. 212, 218, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960), with time it has been accepted that the government may play a significant role in the presentation of cases to the grand jury. See generally 1 C. Wright, Federal Practice and Procedure § 101 (1982). That the government wishes the grand jury to return an indictment is readily apparent from the prosecutor's examining witnesses, presenting documents, and summarizing evidence. See United States v. Kleen Laundry and Cleaners, Inc., 381 F. Supp. 519, 521 (E.D. N.Y. 1974).
With the government so actively participating in the presentation of a case to the grand jury, any additional suggestiveness produced by pre-signature is somewhere between nonexistent and de minimis. This conclusion is not inconsistent with those cases which focus on matters other than pre-signing to determine whether the prosecution has exerted undue influence over, the grand jury. See Cole, 755 F.2d at 757; United States v. Brown, 684 F.2d 841, 842 (11th Cir. 1982); United States v. Civella, 666 F.2d 1122, 1127 (8th Cir. 1981); Singer, 660 F.2d at 1302; United States v. Climatemp, Inc., 482 F. Supp. 376, 386 (N.D. Ill. 1979), aff'd mem., 705 F.2d 461 (7th Cir.), cert. denied, 462 U.S. 1134, 103 S. Ct. 3116, 77 L. Ed. 2d 1370 (1983); United States v. Tedesco, 441 F. Supp. 1336, 1342 (M.D. Pa. 1977).
Even if pre-signature presents an issue which, if combined with other prejudicial conduct, could warrant dismissal for undue influence, it is apparent from review of the transcripts that no other prejudicial conduct took place in this case.
An order follows.
AND NOW, this 30th day of August, 1985, defendants' "motion to dismiss the indictment due to undue influence" and "motion to amend and supplement motion to dismiss, application for bill of particulars, and memorandum of law thereto; motion to reconsider denial of co-defendant's motion to inspect grand jury proceedings" are hereby denied.