Office to organize its thoughts and theory of the case, that the grand jury should only concern itself with important points -- not adequately defined by the prosecutor -- and not be concerned if there is not evidence to support presumably unimportant points is a perversion of the grand jury process. It is the grand jury that presents the indictment, not the United States Attorney.
Rule 7 of the Federal Rules of Criminal Procedure states that the indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." The offense is charged by the grand jury, not the prosecutor, based on probable cause grounded in evidence, not the thoughts and theories of the U.S. Attorney's Office. Clearly, an indictment cluttered with means and methods that the grand jury had no evidence to support is unacceptable under the rule.
III. Prejudice to the Defendants
After careful review of the case law, it is clear that one, or perhaps some, of the above mentioned instances of misconduct would not, alone, justify dismissal of the indictment. United States v. Martino, 825 F.2d 754, 759 (3d Cir. 1987) (surveying case law and concluding that "in none of the Third Circuit cases in which we found prosecutorial misconduct before the grand jury did we order dismissal of the indictments. . . . In almost all of the cases we determined that the misconduct was harmless error and not prejudicial"). However, in this instance, the court is deeply concerned by the misconduct from the first day the grand jury met continuing through the day the superseding indictment was presented. The cumulative effect of the many instances of misconduct can fairly be said to have "substantially influenced the grand jury's decision to indict". In United States v. Samango, 607 F.2d 877, 884 (9th Cir. 1979), the court, faced with several instances of serious misconduct including: the prosecutor's introduction of admittedly irrelevant, highly prejudicial testimony, the prosecutor's reading of transcripts that seriously distorted the testimony without telling the grand jury that live testimony was available, and the introduction of hearsay testimony in a manner leading the grand jury to believe that it was first-person observation, concluded that "the cumulative effect of the above errors and indiscretions, none of which alone might have been enough to tip the scales, operated to the defendants' prejudice by producing a biased grand jury." The same can be said here.
While the prejudice to defendants is great, the court's decision to dismiss the indictment is not prejudicial to the government; it may now take the case to another grand jury and start with a clean slate. At oral argument, the government admitted that there was no statute of limitations problem with the indictment as a whole, although there may be a question as to whether the statute has run with regard to certain of the numerous counts. See 18 U.S.C. § 3288; 12/12/95 Doss Tr. at 9.
Granting the motion to dismiss is in the interest of the administration of justice. This is an unusual case; it is unlikely to lead to a flood of charges of prosecutorial misconduct. It is rare that defendants have sufficient information from Jencks material to find a basis for a motion to dismiss. It is unusual that the trial judge would be required to review sufficient material presented to the grand jury to develop a concern for the cumulative unfairness of the grand jury proceedings. It would be easy to overlook the procedural lapses because if, after trial, defendants are acquitted, all this will make no difference, whereas if they are convicted, review is almost impossible, absent some constitutional defect in the composition of the grand jury itself. Bank of Nova Scotia, 487 U.S. at 255, 257; United States v. Hasting, 461 U.S. 499, 506, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983) ("Supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error."). But it is necessary for the trial judge, when convinced of a grave interference with the independent functioning of the grand jury, to exercise its supervisory role if the court's traditional charge empaneling the grand jury, see I Bench Book for United States District Court Judges (3d Ed.) 3.02-5, is more than a mouthful of platitudes and the Fifth Amendment's guarantee of indictment by grand jury continues to have any modern meaning.
An appropriate order follows.
AND NOW, this 29th day of January, 1996, it is hereby ORDERED that defendants' motions to dismiss the indictment are GRANTED without prejudice to the government to present this case to a new grand jury in a manner in accordance with the accompanying opinion.
Norma L. Shapiro, J.