United States v. Ernest Raymond Basurto

HUFSTEDLER, Circuit Judge

(concurring specially):

I concur in the result reached by the majority, but I find unsatisfactory the constitutional theory it advances to support its conclusion that the prosecutor had a duty to inform the grand jury of Barron’s perjured testimony. Unlike the prosecutors in Napue v. Illinois (1959), 360 U.S. 264 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 , and Alcorta v. Texas (1957), 355 U.S. 28 , 78 S.Ct. 103 , 2 L.Ed.2d 9 , who “did nothing to correct the witness’ false testimony” ( 360 U.S. at 265 ), the prosecutor in the case at bench notified both defense counsel and the trial court upon learning of the perjured testimony. I do not believe that the prosecutor’s failure additionally to inform the grand jury was such a breach of his constitutional duty of good faith as to constitute a violation of defendants’ due process rights.

Although the majority’s constitutional analysis is not persuasive, it would be an appropriate exercise of our power to supervise the administration of criminal justice in the federal courts to impose upon federal prosecutors the duty to notify the grand jury described by the majority. (See generally McNabb v. United States (1943), 318 U.S. 332 , 63 S.Ct. 608 , 87 L.Ed. 819 . An important function of our supervisory power is to guarantee that federal prosecutors act with due regard for the integrity of the administration of justice. In Mesarosh v. United States (1956), 352 U.S. 1 , 77 S.Ct. 1 , 1 L.Ed.2d 1 , a case involving possible perjury by a witness at trial, the Supreme Court observed: “This is a federal criminal case, and this Court has supervisory jurisdiction over the proceedings of the federal courts. If it has any duty to perform in this regard, it is to see that the waters of justice are not polluted.” ( 352 U.S. at 14 (footnote omitted); see United States v. Poole (7th Cir. 1967), 379 F.2d 645 (supervisory power used to reverse conviction because government suppressed evidence).) Our supervisory power is not limited to control of conduct that occurs at trial; we have specifically found it to extend to matters involving the grand jury. (Bursey v. United States (9th Cir. 1972), 466 F.2d 1059, 1082 .)

The grand jury serves important public interests not only through its exami *794 nation into the commission of crimes but also by its ability “to stand between the prosecutor and the accused, and to determine whether the charge was founded on credible testimony or was dictated by malice or personal ill will.” (Hale v. Henkel (1906), 201 U.S. 43, 59 , 26 S.Ct. 370, 373 , 50 L.Ed. 652 ; Hoffman v. United States (1951), 341 U.S. 479, 485 , 71 S.Ct. 814 , 95 L.Ed. 1118 ; Bursey v. United States, supra at 1089-1090. See also Branzburg v. Hayes (1972), 408 U.S. 665, 686-687, 700 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 .) By failing to inform the grand jury of Barron’s perjured testimony and thus precluding the opportunity to reconsider the indictment in light of the corrected version of the defendants’ activities, the prosecutor effectively frustrated this vital function. A supervisory rule requiring a prosecutor who learns before trial that an indictment is based in some material way on perjured testimony to seek dismissal of the tainted indictment would safeguard the grand jury’s role as mediator between prosecutor and potential defendant. Such a supervisory rule would also help insure that the prosecutor fulfills his responsibility to deal with the grand jury in a way that promotes the wise exercise of its investigatory and indictment powers. (Hoffman v. United States, supra at 485.) Even though breach of that prosecutorial duty may not constitute a violation of defendant’s constitutional rights, the prosecutor is nevertheless responsible to the court for conduct that is potentially detrimental to the integrity of the judicial system. (See Berger v. United States (1935), 295 U.S. 78, 88-89 , 55 S.Ct. 629 , 79 L.Ed. 1314 ; Newman v. United States (1967), 127 U.S.App.D.C. 263 , 382 F.2d 479, 481 .) It is thus well within our supervisory jurisdiction to require that the United States Attorney shall move for dismissal of indictments based on perjured testimony. *

Whether measured by the supervisory rule I have suggested or the constitutional duty imposed by the majority, the response of the prosecutor in the case at bench to the discovery that a witness had perjured himself before the grand jury was inadequate. I therefore agree with the result reached by the majority in the first section of its opinion. I concur in the majority’s treatment of the other issues raised by these appeals.

Because this duty is owed to the court and grand jury and not to the defendant, the strategic decision of the defendant not to challenge the indictment cannot affect the prosecutor’s obligation to seek dismissal of the indictment.