holding that failure to provide grand jury witnesses with warnings required by DOJ policy could not result in dismissal, but noting that “federal prosecutors should not be surprised if, in future cases, the court refers violators of the Department’s internal policy to the Department’s Office of Professional Responsibility”
How later courts described this case
- holding that failure to provide grand jury witnesses with warnings required by DOJ policy could not result in dismissal, but noting that “federal prosecutors should not be surprised if, in future cases, the court refers violators of the Department’s internal policy to the Department’s Office of Professional Responsibility”
- finding that the district court did not err in its 403 balancing where there was scant evidence of intent; the other acts were relatively close in time to the alleged act; and instructions were clearly phrased, correctly focused on intent, and warned of potential misuses of other acts factors
- holding that prosecutor’s failure to follow the U.S. Attorneys’ Manual did not create a basis for suppressing grand jury testimony
- concluding that, although the defendant had been “a target when he appeared before the grand jury,” he “had not been formally charged,” and thus “his Sixth Amendment right to counsel had not yet attached.”
Written by the judges who cited it.
The opinion
WELLFORD, Circuit Judge,
concurring.
Although I concur in the result reached by the majority, I harbor serious doubts about whether the defendant was a target of any investigation at the time of his grand jury testimony, or even a putative defendant. Nevertheless, I am ultimately able to concur in the holding here simply because I find the majority’s resolution of these issues to be absolutely unnecessary to the disposition of this case. After all, there is no dispute but that the warnings provided to the defendant were constitutionally adequate, regardless of his status.
In my opinion, the wiser course would be to avoid stamping our opinion on such unnecessary and potentially ground-breaking issues as they are not properly presented for decision by our court in this case. To that extent, I do not join in the majority opinion. As a result, I write separately only to indicate that part II should be viewed as dicta.