Petition — McInnis v. United States

( TABI HI

Gurieme Court, U. y

FILED |

} JAN is 1980

i

en ais,

IN THE | zi J

SUPREME COURT OF THE

WNITER STATES

October Term, 1979

so. @9=1116

OSCAR MCINNIS,

Petitioner

v.

THE UNITED STATES OF AMERICA

Respondent

sail ; +

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Francis James Maloney, Jr.

505 West 12th Street

Austin, Texas 78701

Counsel for Petitioner

Page

I ord be gic elas Soe 8 x 8d Siw vo Ce ]

IESG RA SR eee a a OR 2

Questions Presented For Review ........... 2

Constitutional Provisions and

Ee ae ar 3

eters ows oss wa 6'w's's i ve 4

Reasons for Granting the Writ ............. 7

SENSES aah eS an aa 25

APPENDICES:

A-1 Opinion of the Court Below

A-2 Judgment of the Court Below

A-3 Order of the Court Below on Petition for Rehearing and

Suggestion for Rehearing En Banc

B = Memorandum and Order

C-1 Order on Defendant’s Motion to Suppress in State Court

C-2 State’s Motion to Dismiss and Order in State Court

D_ Unites States Attorneys’ Manual Internal Guidelines for

Treatment of Target Witnesses

LIST OF AUTHORITIES CITED

CASES:

Bivens v. Six Unknown Named Agents,

wo SL es ee a 13

Blair v. United States, 250 U.S. 273 (1919)... 8

Brady v. Maryland, 373 U.S. 83 (1963) ..... 23

Branzburg v. Hayes, 408 U.S. 665 (1972) ... 8

Brewer v. Williams, 430 U.S. 387 (1977) ... 13 | United States v. Mandujano,

Chatwin v. United States | re BS. cs | ee ena tee POLS,

SON 0G A AOE. ikl. 9 Fan Ale Oe

Costello v. United States United States v. U.S. Gypsum Co.,

SG SURI Sook a 8 ue ction... 10

) United States v. Washington,

Cupp v. Naughten, 414 U.S. 141 (1973) .... 18 | MENS S SRE BOI i i ol 15, 23, 25

mee + yi preprore 20 | United States v. White,

Pe ey biol ce Siro acateuae Aart | Me Ms OOO es ca Sok cee we 15

Giles v. Maryland, 386 U.S. 66 (1967) ..... 23 | hiciins 0: Ubi Beale.

In re Winship, 397 U.S. 358 (1970) ........ 23 | 245 F.2d 549 (8th Cir. 1957) ........... 8, 10, 11, 23

Ker v. California, 374 U.S. 23 (1963) ...... 20 | Burton v. United States, 483 F.2d 1182

La Buy v. Howes Leather Co., | CM NE felsic Hee Owsko-e 18

Be a CAINE oe) Coe oo wk Ka 8 Oe eae 18 Delay v. United States,

‘ines ¥. Uaiden Gabe 602 F.2d 173 (8th Cir. 1979) ........... 16, 21°

op | A a gree are rir ae 15 | Levison v. Attorney General,

Miranda v. Arizona, 384 U.S. 436 (1966) ... 13 . | 321 F.Supp. 984 (E.D. Pa. 1970) ........ 8

: | Masinia v. United States, 296 F.2d 871

Mapp Ys nis, 307, 0:5..649 (1961)... - . | CMe TORR ee |, 10

: i tes, e .

Bree Soper % 12. 18. 19 United States v. Alberico, —F.2d—, Nos. 78-

PET RRR Se ecnttnen ies 4 cea ase tes 90. a1 ; | 1053-1062-63 (10th Cir. Aug. 24, 1978) .. 21

ae oa s he | United States v. Basurto, 497 F.2d 781 :

ere ee ae Ui TES) + 4 WAT BRN es ee eee oh 23

i ; it tates, :

mons a poker . 23 United States v. Brown, 411 F.2d 930

abt kia Ney ARON Be te Rn i (7th Cir. 1969) cert. denied,

Spencer v. Texas, 385 U.S. 544 (1967) ..... 23 RS a ea cr 21

United States v. Caceres, —U.S.—, 99 S.Ct. United States v. Ciambrone, 601 F.2d 616

1465, 59 L.Ed.2d 733 (1979) ............. 11, 12, 13, 14, | I A ge ge i a 23, 25

5, 16, 17, 19 ' ;

| United States v. Coast of Maine Lobster Co.,

Unites States v. Calandra, 538 F.2d 899 (ist Cir. 1976)............ 21

14 US. 338 (1973 4h aw Oe B16 6 @ 6S. oF Ore, Cie 0: 88 8 United States Vv. Doss, 563 F.2d 265

United States v. Dionisio, (Gt Cir; 1977) ton betel oho os ieee 15, 23, 24, 25

ENE Sk REET, 3 oo ask PFS RAED by b 0's 8

United States v. Estepa, 471 F.2d 1132 OTHER:

Gr Pree oa ox Sa es 18, 23 A.B.A. Project on Standards for Criminal

United States v. Heffner, 420 F.2d 809 | Justice, The Prosecution Function (1971) ...

(4th Cir. 1969)... 2. e eect es ee ese. 6,21 | BM icc eee + <5 5.

United States v. Jacobs, 531 F.2d 87 §2.5 Pane deo Kes 8 ee 6 Ole e eM eeled & ke fhe aa

(2nd Cir.), vacated and remanded, §3.6(d) tack h a 6 e O-t ae Ae oe ele 6 abe b 66 48 4.8

429 U.S. 909 (1976), aff'd on remand, Code of Professional Responsibility .........

547 F.2d 772 (2nd Cir. 1976), cert.

granted, 431 U.S. 937 (1977) cert. Federal Rules of Civil Procedure —

dism’d as improvidently granted, ........ 12, 14, 16, 17 SESE TS ke ae

436 U.S. 31 (1978) «6... ee ee. + 18, 19, 21 Manual for United States Attorneys .........

United States v. Jacobs, 543 F.2d 18 Supreme Court Rules — Rule 19(b) .........

(7th Cir.) cert. denied,

SS) Vice Me CORED co a ceo eke ote 10

United States v. Leahey, 434 F.2d 7

Gat Cae. Peas 6 ithe OO ese 16, 21

United States v. Payner, 434 F.Supp.

113 (N.D. Ohio 1977), appeal dismissed

for want of jurisdiction, 572 F.2d

144 (6th Cir. 1978), aff'd after remand

per curiam, 590 F.2d 206 (6th Cir. 1979)

(rehearing end banc denied) ............ 20

United States v. Phillips, 540 F.2d 319

(8th Cir. 1976) cert. denied, 429

FS: NOOG HIPs co a eb ex came whewntads 10

United States v. Sourapas, 515 F.2d 295

(Oe Ce. SUPRE s ec ces ae, Sea 16, 21

United States v. Thomas, 474 F.2d 100

(10th Cir. 1973)

cert. denied,

S32 US. SRR ELE 5 54 ca Kha wh wk cee 22

United States v. Thomas, 146 U.S. App.

D.C. 101, 449, F.2d 1177 (1971) ........ 21

Williamson v. United States, 311 F.2d 441

COR a SD ee A ca 21

iv v

IN THE

SUPREME COURT OF THE

UNICED STATES

October Term, 1979

NO.

OSCAR MCINNIS,

Petitioner

V.

THE UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Oscar McInnis prays that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals for

the Fifth Circuit, entered in this case on September 10, 1979,

petition for rehearing denied November 19, 1979.

OPINION BELOW

The opinion of the Fifth Circuit Court of Appeals in United

States v. McInnis is reported at 601 F.2d 1319. A copy of the

slip opinion is attached hereto and marked “Appendix A-1.”

The judgment based thereon appears as Appendix A-2. The

opinion affirmed in part and reversed in part the decision of

]

the Honorable Robert O’Conor, Jr., Judge of the United

States District Court for the Southern District of Texas, dis-

missing an eight-count indictment against Petitioner. Judge

O’Conor’s Memorandum and Order, unreported, is attached

hereto and marked “‘Appendix B.’’ The Fifth Circuit affirmed

the trial court’s dismissal of the count of conspiracy to

kidnap with intent to murder, stating that Petitioner’s alleged

actions and intentions could not constitute a federal offense.

However, the Fifth Circuit reversed the trial court’s dismissal

of seven perjury counts against Petitioner. Petitioner’s request

for rehearing and rehearing en banc on this point was denied

on November 19, 1979 (Appendix A-3). It is this portion of

the Fifth Circuit’s opinion which is sought to be reviewed

here.

JURISDICTION

The judgment of the United States Court of Appeals for the

Fifth Circuit was rendered on September 10, 1979 (see:

opinion attached as Appendix A-1). Defendant-Appellee’s

Petition for Rehearing and Suggestion for Rehearing En Banc

was denied on November 19, 1979 (see Appendix A-3). A

thirty day enlargement of time in which to petition for

certiorari was granted by the Honorable Lewis F. Powell, Jr.,

in chambers, on December 4, 1979, extending until January

18, 1980, the time in which to file this appiication.

Jurisdiction of this Court lies under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Does a federal grand jury have the jurisdictional power to

investigate conduct that could not possibly be a federal

crime? And if not, can prosecutable perjury be committed

before such a grand jury?

2. Do lower federal courts, particularly U.S. District Courts,

have the discretionary “supervisory power” to suppress tes-

timony or dismiss indictments for violations of the Justice

2

Department’s internal guidelines respecting the treatment of

target witnesses?

. Did the government’s misconduct, including attempted

manufacture of federal jurisdiction and violation of its own

internal guidelines, cross over the constitutional line into the

area of fundamental unfairness as the trial court found?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

. The Sixth Amendment, United States Constitution:

In all criminal prosecutions, the accused shall enjoy the

right to... be informed of the nature and cause of the ac-

cusation; ... and to have the Assistance of Counsel for his

defense.

. The Fifth Amendment, United States Constitution:

No person shall . . . nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law;... .

18 U.S.C. section 1201 (a) and (c). Kidnapping.

(a) Whoever unlawfully seizes, confines, inveigles, decoys,

kidnaps, abducts, or carries away and holds for ransom or

reward or otherwise any person, except in the case of a mi-

nor by the parent thereof, when:

(1) the person is willfully transported in interstate or for-

eign commerce;

* * *

shall be punished by imprisonment for any term of years or

for life.

* * *

(c) If two or more persons conspire to violate this section

and one or more of such persons do any overt act to effect

the object of the conspiracy, each shall be punished by im-

prisonment for any term of years or for life.

* * *

rey greene

4. 18 U.S.C. section 1623 (a). False declarations before a grand

jury or court.

(a) Whoever under oath... in any proceeding before or

ancillary to any court or grand jury of the United States

knowingly makes any false material declaration . . . shall be

fined not more than $10,000 or imprisoned not more than

five years, or both.

STATEMENT

Petitioner Oscar McInnis and his co-defendant, Patricia Pa-

rada, hereinafter called defendants, were indicted by the United

States Grand Jury empaneled for the Southern District of Texas,

Brownsville Division, on June 7, 1978, and charged with the

offense of conspiracy to kidnap and hold for murder one Noe

Villanueva. 18 U.S.C. §1201. Following the filing of defen-

dants’ Motion to Dismiss said: indictment, a superseding in-

dictment was presented on August 1, 1978, adding to the

kidnapping conspiracy count seven counts of perjury based on

the testimony of defendants before the federal grand jury on the

day of their first indictment. 18 U.S.C. §1623.

The government’s evidence of the kidnapping conspiracy

was based on a series of tape-recorded conversations from

April 19 to June 6, 1978, between McInnis and Daniel

Rodriquez, an inmate in the Hidalgo County Jail. The

government also had a_ tape-recording of purported con-

versation on May 21 between Parada and her ex-husband

Noe Villanueva, the intended victim. The government

contends that these tapes show, in a nutshell, that McInnis

and Parada conspired to lure Villanueva across the border to

Reynosa where one Cantu, a Mexican police official friend of

Rodriquez’, would kill Villanueva and dispose of the body.

Transcripts of the foregoing conversations were introduced at

the September 8, 1978, hearing on defendants’ pretrial

motions and were appended to the government’s brief in the

Fifth Circuit. With some factual inaccuracies noted in

4

ert ate

Petitioner’s first Reason for Granting the Writ, this scenario

was summarized in the Fifth Circuit’s opinion at 7377-7378

Following the September 8 hearing on defendants’ motion

to dismiss the indictment, Judge O’Conor granted the motion

and dismissed the indictments in their entirety. ‘See

Memorandum and Order of September 15, 1978 (Appendix

B).' On the conspiracy to kidnap count, he ruled that no such

federal offense could have occurred because the tapes showed

only that the defendants had sought to induce the victim to

cross the United States border alone and of his own volition.

Instead, there must be ‘“‘a taking or holding of ... [the

victim] against his will and then a transporting of the victim

against his will or under false pretenses in foreign com-

merce.” (Id. at 2B). The government took an appeal from the

trial court’s order dismissing all counts of the indictment, but

this aspect of the ruling was affirmed by the Court of Ap-

peals for the Fifth Circuit in Part III. A. of its opinion

(Appendix A).

The circumstances surrounding defendants’ grand jury

appearance and conspiracy indictment on June 7, and their

subsequent perjury indictment were also developed at the pre-

trial hearing on September 8 and proved to be quite unusual.

Following the presentation of the tape-recordings to the

grand jury, the United States Attorney’s office (hereinafter,

the government) determined to subpoena the putative

‘On the basis of the tapes themselves, defendants also sought to quash

the indictments on the grounds that they were entrapped by government

agents. The trial court, of course, did not have to reach this issue. It was

dispositive, however, of the state conspiracy to kidnap charges which were

filed against defendants shortly after their federal charges were dismissed.

An extensive hearing was held November 13-15, 1978, into the govern-

ment’s role in advancing this alleged conspiracy in cause no. CR-652-78-D

in the 206th District Court of Hidalgo County, Texas, the Honorable

Vernon D. Harville, Special Judge, presiding. In granting McInnis’ Motion

to Suppress the tape-recorded conversations, the state judge found that

Rodriquez originated the criminal enterprise in this case and entrapped

McInnis into joining. (See Order on Defendant's Motion to Suppress, at-

tached as Appendix C-1; See also State's Motion to Suppress, attached as

Appendix C-1; See also State’s Motion to Dismiss and Order, attached as

Appendix C-2).

defendants, McInnis and Parada. Some of the details of the

service of these subpoenaes are narrated in the Fifth Circuit's

opinion (p. 7378, n.4). Defendants’ testimony before this

grand jury resulted in their indictments on seven counts of

perjury (six charging McInnis and one charging Parada). The

superseding indictment was not filed until after defendants’

Motion to Dismiss the initial indictment was filed on July 10,

1978. The significance of this timing was not lost on the dis-

trict judge. See Memorandum and Order at 7B, infra.

Assistant United States Attorney Ron Woods testified at the

pretrial hearing on September 8. He admitted that he thought

that the grand jury possessed sufficient evidence in the tape-

recorded conversations to bring forth an indictment on the

kidnapping conspiracy charge without the defendants’ testi-

mony. He attempted to justify the necessity for calling the de-

fendants as witnesses, the issuance of subpoenaes instead of

summonses, and the decision to keep the defendants ignorant

of their target witness status until they were in the grand jury

room.

The trial court found as a matter of fact (See Memorandum

and Order at 4B-7B, infra) that the government's actions had

violated its own guidelines for the treatment of target wit-

nesses contained in Section 9-11.250 of the Manual for U.S.

Attorneys (reprinted in Appendix D). These guidelines were

introduced into evidence at the September 8 pretrial hearing,

appended to the government’s brief in the Fifth Circuit, and

were correctly summarized in the trial court’s Memorandum

and Order (4B-5B, infra). As to the necessity for calling the

defendants as witnesses, the district court found:

[T]he real purpose for calling Parada and Mcelnnis

before the grand jury was to get them to perjure them-

selves .... The government was using the crime of

perjury to insure that the defendants did not slip away.

This is not the purpose of a grand jury. (Memorandum

and Order, at 7B, infra).

The trial court also placed little stock in Woods’ reasons for

keeping the defendants ignorant of the investigation, saying,

6

it is doubtful that the defendants would leave family,

friends and jobs to flee to Mexico; the two government wit-

nesses were safe from harm — Noe Villanueva’s where-

abouts being known only to the government, and Daniel

Rodriquez being safely in the hands of Brig Marmolejo,

who was cooperating with the government. (Jd. at 6-B).

In his September 15 order dismissing the perjury counts

against defendants (Appendix B), Judge O’Conor cited two rea-

sons for his decision. First, since the alleged kidnapping con-

spiracy could not have been a federal offense (and since the

grand jury should have known this before defendants were

called),

it follows that the grand jury was also without jurisdiction

to consider the matter. That being the case, any statements

made before the grand jury would lack materiality to any

legitimate area of inquiry for the grand jury, materiality

being a requisite of the crime of perjury. (Id. at 3B-4B).

Secondly, the government’s violation of its own internal guide-

lines, the manufacture of federal jurisdiction, and the abuse of

the grand jury process all combined to deprive defendants of

fundamental fairness. (Id. at 4B-7B). The government appealed

this aspect of the trial court’s decision and the Fifth Circuit

Court of Appeals reversed in Part III. B. of its opinion dated

September 10, 1979 (Appendix A). Petitioner sought rehearing

and rehearing en banc of this portion of the panel’s opinion, but

said requests were denied on November 19, 1979 (Appendix

A-3). It is this portion of the Fifth Circuit’s opinion which

Petitioner brings to this Court for review.

REASONS FOR GRANTING THE WRIT

I. THE OPINION BELOW WOULD EXPAND THE

SCOPE OF THE GRAND JURY’S INVESTIGA-

TORY POWERS BEYOND EXISTING LAW AND

WOULD HOLD SUCH POWERS TO BE VIRTUAL-

LY WITHOUT LIMIT.

This case presents yet another challenge to the increasing abuse

7

nema fp —

$a en gree

A TER gen

of the grand jury process. The question to be answered is

whether this Court will recognize any limitation on grand jury

investigatory powers.

It is well-established that the grand jury has enormous investi-

gatory prerogatives extending to areas which may never, for a

variety of reasons, result in the initiation of criminal prosecu-

tions. Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63

L.Ed. 979 (1919). This Court has taken a dim view of any

preliminary, procedural or time-consuming inquiries into the

grand jury’s functioning. Thus, no complaint will be heard

about the quality of evidence upon which an indictment was

obtained. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406,

100 L.Ed. 397 (1956); this Court does not require preliminary

showings which would impede the grand jury’s functioning.

United States v. Dionisio, 410 U.S. 1,17, 93 S.Ct. 764, 35

L.Ed.2d 67,81 (1973); and this Court will not allow most

claims of privilege or constitutional violations to deprive a

grand jury of the evidence it needs to discharge its functions.

Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.Ct. 2646, 35

L.Ed.2d 626, 651 (1972); United States v. Calandra, 414 U.S.

338, 349-350, 94 S.Ct. 614, 38 L.Ed.2d 561, 572-573 (1973).

This court has never spoken to the jurisdictional limitations, if

any, on a grand jury’s investigatory powers.

The federal courts, however, have stopped short of issuing a

blank check to the federal grand jury. See, e.g., Levinson v. At-

torney General, 321 F.Supp. 984 (E.D. Pa. 1970). Thus, Brown

v. United States, 245 F.2d 549 (8th Cir. 1957) quashéd an

indictment and condemned a federal grand jury which had

become a “roving commission” investigating matters outside its

lawful authority. This holding has been cited in other circuits

and has even been recognized by this Court. United States v.

Mandujano, 425 U.S. 564, 582, 96 S.Ct. 1768, 1779, 48

L.Ed.2d 212, 226 (1976) at fn. 8. Similar to Brown, this case

presents a picture of a federal grand jury, loose from its

jurisdictional moorings, running amok in areas clearly outside

its authority. Therefore, certiorari is appropriate to correct the

ruling of the Fifth Circuit in an important area of federal law

not heretofore settled by this Court. Rule 19(b), Supreme Court

Rules.

Petitioner will now turn to a consideration of the errors in

and implications of the opinion of the Fifth Circuit below. It

has been Petitioner’s contention from the outset that the govern-

ment’s theory of prosecution did not constitute the federal

offense of © nspiracy to kidnap for the purpose of murder. Part

III. A. of the opinion of the court below concurred in this

conclusion, stating that the federal kidnapping statute has never

and still does not apply when the interstate transportation is

accomplished by the victim on his own. This has been the law

since Chatwin v. United States, 326 U.S. 455 (1945). The

United States Attorney, and the grand jury which he directs, are

charged with knowing the law. At the time when the defendants

were subpoenaed to give their testimony before the grand jury

in the instant case, it was established as a matter of law that no

federal kidnapping crime had been contemplated by the

defendants.

In addition to seeking a correct statement of the law in this

area, Petitioner regrets the necessity of pointing out gross fac-

tual inaccuracies in the opinion below which went uncorrected

even after he petitioned for rehearing. These factual inaccura-

cies do double damage to Petitioner’s own rights in this case,

even as they ameliorate the . ifth Circuit’s incorrect statement

of the law.

The opinion below relied upon the acknowledged authority of

a grand jury to investigate even the mere possibility that a

crime had been committed. In so doing, however, the court in-

dulged in several speculative assumptions not supported in the

record and flatly contradicted by the tape-recordings already

before the grand jury:

The plot brought to the attention of the grand jury might

have turned out to be a federal crime. The tapes and the

other evidence might have revealed that McInnis and

Parada planned to take Villanueva to Mexico themselves,

or even that the Mexican police officer planned to bring

Villanueva across the border. Slip op. 7376, 7358-86

(Appendix A-1).

Petitioner does not quarrel with the initial authority of the

9

grand jury to investigate this possible crime and to listen to

every tape-recording containing evidence of it. But it was estab-

lished at the hearing on Defendant’s Motion To Dismiss that the

tapes had been played, the investigation of the kidnapping plot.

was complete, and the grand jury did not need any further

evidence to return its indictment (Memorandum and Order, at

6B-7B, infra). The transcripts of these tape-recordings were

before both the trial court and the Fifth Circuit and

unequivocally revealed a plot as outlined at pp. 7377-7378 of

the opinion below which could not have constituted a federal

offense. Thus the grand jury knew the defendants’ anticipated

testimony would fall in an area beyond federal jurisdiction. It

was uncontroverted that the defendants were called not to shed

light on the kidnapping plot but simply to get them to perjure

themselves (Memorandum and Order, at 6B-7B, infra). These

fact-findings made by the trial court should not be disturbed on

appeal unless found to be “clearly erroneous,” Rule 52(a),

F.R.Civ.P.; United States v. U.S. Gypsum Co., 333°U.S. 364,

394-95, 92 L.Ed. 746, 765-66 (1948), and certainly do not

permit the kind of factual inaccuracies quoted above.

To state an offense under 18 U.S.C. §1623, the statute expli-

citly requires that the charge be based on testimony material to

a proper inquiry of the grand jury. See United States v. Phillips,

540 F.2d 319, 328 (8th Cir.), cert. denied, 429 U.S. 1000

(1976). False declarations made before a grand jury material

only to an investigation beyond its jurisdiction or authority do

not constitute perjury. See United States v. Mandujano, 425

U.S. 564, 582 n.8 (1976); United States v. Jacobs, 543 F.2d 18,

20 (7th Cir. 1977), cert. denied, 431 U.S. 929 (1977); Masinia

v. United States, 296 F.2d 871, 877 (8th Cir. 1961): Brown v.

United States, 245 F.2d 549, 552 (8th Cir. 1957). Not only

could the grand jury not properly proceed beyond the whole

theory of the case as developed by all the tape recordings, it was

not influenced and could not possibly have been influenced by

anything the defendants had to say.

Lest we belabor these elementary factual and legal points,

however, we should return to the reasons for granting certio-

rari in this case. Unfounded factual speculation contained in

10

the court’s opinion has already been noted and quoted above.

Careful consideration of the opinion reveals profound impli-

cations for grand jury jurisdiction and raises serious questions

about the role of that body in both a federal system and a

free society. It is now established that the defendant’s alleged

plans (or were they the government’s?) could not have consti-

tuted a federal crime and that the government and the grand

jury knew this before the defendants were called. If the Fifth

Circuit’s opinion goes uncorrected, it will have sanctioned the

“roving commissions’”’ condemned in Brown, supra; it will

permit wide-ranging investigations knowing no jurisdictional

bounds; and it will threaten individual liberties in a way rem-

iniscent of the Star Chamber.

Il. THE SUPERVISORY POWER OF THE FEDERAL

COURTS TO ENFORCE THE JUSTICE DEPART-

MENT’S INTERNAL GUIDELINES HAS BEEN IN-

TERPRETED DIFFERENTLY BY THE SECOND

AND FIFTH CIRCUITS AND REMAINS IN DOUBT

AFTER UNITED STATES V. CACERES, —U.S.—,

99 S.Ct. 1465, 59 L.Ed.2d 733 (1979).

A. Introduction.

As noted in the Statement, supra, and Memorandum and

Order, Appendix B, infra, Judge O’Conor found numerous vio-

lations by the government of Department of Justice Guidelines

for United States Attorneys’ treatment of “‘target’’ grand jury

witnesses (reprinted in Appendix D, infra). Together with the

government’s attempt to ‘‘manufacture federal jurisdiction”’

and “‘abuse of the grand jury process’”” (Memorandum and

Order at 7B, infra) in this case, the violations of internal Justice

Department policies and guidelines convinced the district court

that the defendants had been deprived of their rights to fun-

damental fairness, and that the perjury counts should be

dismissed. (Jd. at 4B, 6B-7B).

The Fifth Circuit panel’s opinion in the instant case, in addi-

tion to upholding the jurisdiction of the grand jury to investi-

_ gate “possible” federal offenses (cf. Petitioner’s first Reason for

Granting the Writ, supra), held that “the courts are not charged

with enforcing internal governmental guidelines and will not

11

remedy an alleged violation by the dismissal of an indictment

. or the exclusion o evidence ....” slip op. at. 7386.

Apparently reasoning that federal courts are powerless to ex-

clude evidence or dismiss indictments unless governmental mis-

conduct ‘‘cross[es] the constitutional line,’’ id.,? the Fifth

Circuit panel misconceived the state of the law in the Fifth and

other Circuits, and misconstrued the holding of this Court in

Unites States v. Caceres, —U.S.—, 99 S.Ct. 1465, 59 L.Ed.2d

733 (1979) and McNabb v. United States, 318 U.S. 332 (1943).

Petitioner maintains that Caceres is not, contrary to the Fifth

Circuit panel, dispositive of the propriety of the trial court’s

dismissal of the perjury counts; that this Court’s dismissal of a

previously granted writ of certiorari to the Second Circuit in

United States v. Jacobs, 547 F.2d 772 (1976) indicates that the

superficially inconsistent Caceres should be read and applied

narrowly; and that the exercise of supervisory powers by federal

courts pursuant to McNabb — a viable and universal practice

— requires that the trial judge’s dismissal of the perjury counts

be affirmed.

B. United States v. Caceres is not Dispositive.

In reversing the trial court’s dismissal of the perjury counts,

the Fifth Circuit cited United States v. Caceres, —U.S.—, 99

S.Ct. 1465, 59 L.Ed.2d 733 (1979) as holding that courts may

not remedy government misconduct — particularly the

violation of internal governmental guidelines — by the ex-

clusion of otherwise admissible evidence. In Caceres, this Court

held only that where the violation of an IRS regulation con-

trolling the use of ‘‘consensual electronic surveillance”’ reflected |

a “reasonable, good faith attempt to comply,” id. at —, 99 S.Ct.

at 1474, 59 L.Ed.2d at 746, had “‘no discernible effect ... on

the action taken by the agency and its treatment of respon-

dent,” id. at —, 99 S.Ct. at 1472, 59 L.Ed.2d at 743-44, and did

not prejudice the respondent in any way, id., “‘we decline to

adopt any rigid rule requiring federal courts to exclude any

evidence obtained as a violation of these [executive agency]

*See Petitioner’s third Reason for Granting the Writ, infra, arguing that

a violation of due process — fundamental fairness did, in fact, occur.

12

rules.”’ id. at —, 99 S.Ct. at 1473, 59 L.Ed.2d at 745 (emphasis

added).

Importantly, this Court expressly reserved the power to adopt

such an exclusionary rule, id. n.22, left open the possibility of a

“more limited, individualized . . . case-by-case approach,” id.

—, 99 S.Ct. at 1474, 59 L.Ed.2d at 746, and noted that under

the narrow facts of Caceres, “there is no reason why a court

should exercise whatever discretion it may have to exclude

evidence obtained in violation of the [agency] regulations,”

(emphasis added). Petitioner maintains that the facts of the

instant case are fundamentally different than the facts of

Caceres in every critical respect. By failing to recognize these

crucial distinctions, and by reading Caceres as barring any

judicial enforcement of internal governmental guidelines, the

Fifth Circuit panel misconceived and misapplied the holding in

that case.

This Court’s uneasiness with inflexible exclusionary rules is a

well-known and- valid concern. See, e.g., Brewer v. Williams,

430 U.S. 387, 421 (1977) (Burger, C.J., dissenting); Bivens v.

Six Unknown Named Agents, 403 U.S. 388, 412-24 (1971)

(Burger, C.J., dissenting). Thus, any extension of the rigid ex-

clusionary rule of Mapp v. Ohio, 367 U.S. 643 (1961) or

Miranda v. Arizona, 384 U.S. 436 (1966) from constitutional

violations to nonconstitutional wrongs is unlikely. Cf. United

States v. Caceres, —U.S.—, 99 S.Ct. 1465, 1474, 59 L.Ed.2d

733, 747 (1979) (Marshall, J., dissenting) (treating all violations

of internal regulations affording procedural protections as due

process violations). However, whether a defendant has the

right to demand the application of a rigid exclusionary rule is a

legally and conceptually distinct issue from whether a federal

district court has the discretionary power to exclude evidence

or dismiss indictments as a remedy for particular agency

violations of internal guidelines. While this Court rejected the

*But see Petitoner’s Point Three, infra (arguing that the quantum of

government misconduct in this case did: rise to the level of a due process

violation).

13

former in Caceres, it expressly reserved judgment on the latter.‘

The violation of IRS regulations for obtaining authorization

to record telephone conversations with taxpayers ‘in Caceres

was de minimus because, as noted, the local agents acted in

good faith and, as the Court pointed out,

precisely the same prejudice would have ensued if the

approval [eventually obtained on February 11, 1975]

had been issued more promptly. For the record makes it

perfectly clear that a delay in processing the request

rather than any doubt about its propriety or sufficiency,

was the sole reason why advance authorization was not

obtained before February 11.

—U.S. at —, 99 S.Ct. at 1472, 59 L.Ed.2d at 744 (emphasis

added). The instant case, however, does not involve a good-faith

misinterpretation of the applicable rules. Despite the prosecu-

tor’s protestations to the contrary, Judge O’Conor found as a

fact that the government purposefully and maliciously violated

“all” of the prescribed Justice Department guidelines (see

Memorandum and Order at 5B, infra), acting in bad faith for

the sole purpose of tricking the defendants into committing

perjury. (Id. at 6B-7B). The trial court in this case found that

[hjad the defendants been given the opportunity [that

the violated guidelines would have afforded] to consult

with an attorney prior to their appearance before the

grand jury it is predictable that they would not have tes-

tified before the grand jury. :

(Id. at 6B) (emphasis added).

While the violation of IRS regulations in Caceres was in good

faith, caused no injury and had no effect on Caceres’ sub-

stantive rights, the violation of internal guidelines in the instant

case was in bad faith, had a clear causal connection with

defendants’ subsequent indictment for perjury, and very

materially affected the government’s treatment of Petitioner.

‘In addition, as Petitioner argues in Reason II(c) & (d) infra, the saga of

United States v. Jacobs, 547 F.2d 772 (2nd Cir. 1976), supports the latter

concept.

14

Moreover, the conduct regulated by the IRS guidelines in

Caceres was clearly constitutional, legal, and fair. See Lopez v.

United States, 373 U.S. 427 (1963) and United States v. White,

401 U.S. 745 (1971). In contrast, the guidelines in the instant

case advance vital protections sounding in Fifth and Sixth

Amendment law and were promulgated by the Justice

Department to supplant the protection withdrawn by United

States v. Mandujano, 425 U.S. 564 (1976) and United States v.

Washington, 431 U.S. 181 (1977). See Appendix D, infra.

Additionally, subpoenaing ‘‘target”’ witnesses who are putative

defendants actually or effectively’ under indictment is a

violation of due process, United States v. Doss, 563 F.2d 265,

278 (6th Cir. 1977) and a violation of the A.B.A. Standards

Relating to the Prosecution Function. See A.B.A. Project on

Standards for Criminal Justice, The Prosecution Function

§3.6(d) (1971):

If the prosecutor believes that a witness is a potential de-

fendant he should not seek to compel his testimony before

the grand jury without informing him that he may be

charged and that he should seek independent legal advice

concerning his rights.

See also id. §§1.1(d) & 2.5 (treating both internal guide-

lines and the canons of ethics as standards of professional

conduct).

*See Petitoner’s Third Reason for Granting the Writ, arguing that the

Fifth Circuit panel’s assumption in 601 F.2d at 1328 & n.16 that “there is

no evidence in the record that the indictment had actually been issued at

the time that the two testified,’’ is erroneous, and contrary to the district

court’s findings that “‘[t}here was no need for the defendants to appear

before the grand jury,” (Memorandum and Order at 6B, infra) and “t]he

evidence shows that the real purpose for calling . . . [the defendants] before

the grand jury was to get them to perjure themselves.” (Jd. at 7B). Under

these circumstances, the assumption of the Fifth Circuit panel that “the

indictment was prepared and filed after . . . [the defendant] testified to the

grand jury,” 601 F.2d at 1328 n.16 seems both unwarranted and strangely

formalistic in its emphasis on “the precise time of filing.” For if the in-

vestigation and evidence were already complete, and the subpoenas were

purely to surprise the defendants into perjuring themselves, the unfairness

and due process violation should not turn on the distinction of the defend-

ants’ “actual” versus “‘effective’’ indictment.

15

—

The Supreme Court in Caceres did not purport to overrule

United States v. Heffner, 420 F.2d 809 (4th Cir. 1969); United

States v. Sourapas, 515 F.2d 295, 298 (9th Cir. 1975); or

United States v. Leahey, 434 F.2d 7 (1st Cir. 1970). These cases

all involved reversals of tax prosecutions because of IRS

violations of its own regulations more closely affecting taxpay-

er’s rights than those involved in Caceres.* These cases were

cited with authority three months after Caceres in Delay v.

United States, 602 F.2d 173 (8th Cir. 1979).

If a case-by-case approach is adopted in the granting of judi-

cial remedies for violations of internal governmental guidelines,

unlike Caceres the instant case would be one in which a remedy

would be granted. Thus this case affords this Court an op-

portunity to answer the question left open in Caceres.

C. This case is in conflict with the Second Circuit’s deci-

sion in United States v. Jacobs.

The facts of the instant case are very similar to the facts of

United States v. Jacobs, 531 F.2d 87 (2nd Cir.), vacated and re-

manded, 429 U.S. 909 (1976), aff'd on remand, 547 F.2d 772,

(2nd Cir. 1976), cert. granted, 431 U.S. 937 (1977), cert.

dismissed as improvidently granted, 436 U.S. 31 (1978), and

the failure of the Fifth Circuit panel to mention or attempt to

reconcile the contrary result reached by the Second Circuit in

that case highlights the ambiguity created by Caceres, the

conflicts between the circuits, and the importance of this case.

The vitality and scope of the federal courts’ “supervisory

power” needs to be affirmed and defined. The diametrically

opposed holdings of the Second Circuit in Jacobs and the Fifth

Circuit in the instant case cannot be reconciled on their facts

and present an important and significant question of law that

can be resolved only by this Court. A writ of certiorari to the

*In fact, the IRS regulations enforced in those cases were regulations

requiring the Service to give fair notice to taxpayers who were being in-

vestigated for criminal tax fraud. Thus, the regulations enforced in those

cases closely parallel the Justice Department internal guidelines violated in

this case. Both sets of regulations prescribe fair notice to putative defend-

ants. For a further discussion of these and other “supervisory powers”

cases, see Petitioner’s Reason II.(d), infra.

16

U.S. Court of Appeals for the Fifth Circuit should, therefore, be

granted.

The most complete statement of the facts in Jacobs appears in

the first opinion of the Second Circuit, 531 F.2d 87 (1976).

District Judge Neaher had granted a motion to suppress Jacobs’

grand jury testimony, and dismissed the corresponding perjury

count of the indictment against her, id. at 88, because the

federal prosecutor had not informed her of her status as a

putative defendant when she was subpoenaed to appear before

a grand jury. Judge Neaher, in an unreported opinion, made

findings of fact that the prosecutor’s failure to warn her of her

status was improper conduct, and that Jacobs had been led into

a trap because “the questions which led to the alleged per-

jurious responses served no other function than to give the

government an additional prop on which to base its case against

defendant” (emphasis in original). Id. at 89. Finding a violation

of the due process clause of the Fifth Amendment, the district

judge dismissed the perjury count and suppressed the grand

jury testimony. It should be noted that the findings of Judge

Neaher in Jacobs and Judge O’Conor in the instant case are

remarkably similar. The only difference is that while Judge

Neaher rested his decision solely on constitutional grounds,

Judge O’Conor invoked both due process and supervisory

powers.

The Second Circuit did not reach the constitutional

question, holding instead that because the failure to warn a

target witness violated §3.6(d) of the A.B.A. Standards

Relating to the Prosecution Function (see 531 F.2d at 89-90)

and was contrary to the standard practice of prosecutors

within the circuit, the district court’s suppression and

dismissal would be affirmed solely in the exercise of

supervisory powers. Id. at 90-91. The Supreme Court vacated

the judgment of the Second Circuit and remanded for

consideration in light of United States v. Mandujano, 425

U.S. 564 (1976). See 429 U.S. 909 (1976). Justice Stevens, the

author of Caceres, concurred in the Jacobs remand because

[T]he Court of Appeals opinion seems to assume that the

conclusion [that the witness cannot be prosecuted for

17

—

perjury] necessarily follows from the premise [that the

prosecutor may have erred in failing to give a grand

jury witness adequate warnings]. Since I think it would

be appropriate for that court to address that precise

point in the first instance, I acquiesce in the remand.

429 U.S. at 910. Dissenting from the remand, Justice Marshall,

with whom Justices Brennan and Stewart joined, observed that

[O]jur holding [in Mandujano] that respondent would not

have had a constitutional right to have her testimony sup-

pressed simply has no bearing on a lower court decision

which did not assume the existence of such a constitutional

right. And it is clear that the well-established supervisory

power of the courts of appeals over the district courts in

their respective jurisdictions is not limited to enforcing

constitutional rights .... Accepting the Government’s

suggestion that we vacate and remand so th: :t the Court of

Appeals can reconsider its decision in light of an irrelevant

case is a waste of the time of two courts.

Id. at 910-11 (citations omitted).

On remand, the Second Circuit made clear that it was aware

of Mandujano and affirmed the district court solely in the

exercise of its supervisory powers. 547 F.2d 772, 773-78. The

Second Circuit eschewed the formulation of a rigid, ‘‘inexora-

ble” rule, id. at 775, noting that the limited exercise of

supervisory powers in Jacobs “‘is not intended to mandate any

specific procedure, but to serve as an ad hoc sanction, as in

[United States v.] Estepa [471 F.2d 1132 (1972)], to enforce

‘consistent performance’ one way or another.” 547 F.2d at 778.

Citing Cupp v. Naughten, 414 U.S. 141, 146 (1973) (Rehnquist,

J.); La Buy v. Howes Leather Co., 352 U.S. 249, 259-60 (1957);

McNabb v. United States, 318 U.S. 332, 340 (1943); and

Burton v. United States, 483 F.2d 1182 (9th Cir. 1973), the

Second Circuit rejected the claim that the Courts of Appeal do

not have, or cannot exercise, supervisory power.

The Supreme Court again granted certiorari, 431 U.S. 937

(1977), this time without opinion. After argument in the Su-

preme Court, however, the writ of certiorari was dismissed as

18

ee

PONS SPE OW EE CE RY! BD Oe

wet

having been improvidently granted. 436 U.S. 31 (1978) (per

curiam). Implicit in the dismissal is the vindication of the dis-

senting opinions of Justices Marshall, Brennan, and Stewart,

429 U.S. 909, 910-11 (1976), and the recognition of lower

federal courts’ supervisory power over the administration of

justice in their respective jurisdictions.

In contrast, the Fifth Circuit panel’s opinion in the instant

case denies the power of lower federal courts to remedy or deter

unfair and improper prosecutorial misconduct unless there has

been a constitutional or statutory violation. The Fifth Circuit

panel in the instant case misread Caceres and failed to even cite

Jacobs, and arrived at a conclusion at odds with the Second and

other Circuits, and inconsistent with well-established Supreme

Court doctrines. The Fifth Circuit’s confusion as to the

existence and scope of lower federal courts’ supervisory power

needs to be corrected. The confusion is compounded by the full

history of Jacobs and the failure of Caceres to mention or

distinguish Jacobs. Only the granting of a writ of certiorari in

this case will resolve this important conflict in the ad-

ministration of federal criminal justice.

D. McNabb v. United States: The Need for an Ad Hoc Dis-

cretionary Approach to the Exercise of Supervisory

Powers.

In McNabb v. United States, 318 U.S. 332 (1943) this Court

went beyond the constitution in articulating a rule of procedure

for the federal judiciary that otherwise voluntary statements

obtained by defendants who were not promptly arraigned

would be rendered inadmissible. With the following language

Justice Frankfurter created the concept of ‘‘supervisory

powers”:

Judicial supervision of the administration of criminal jus-

tice in the federal courts implies the duty of establishing

and maintaining civilized standards of procedure and

evidence. Such standards are not satisfied merely by ob-

servance of those minimal historic safeguards . . . which

are summarized as “‘due process of law... .

19

The principles governing the admissibility evidence in

federal criminal trials have not been restricted, therefore,

to those derived solely from the Constitution. In the exer-

cise of its supervisory authority over the administration of

criminal justice in the federal courts ... the Court has

been guided by considerations of justice not limited to the

strict canons of evidentiary relevance.

318 U.S. at 340-41 (emphasis added) (citations omitted). See

also Ker v. California, 374 U.S. 23, 30 (1963).

These “considerations of justice,”’ the core of the notion of su-

pervisory powers, are not a rigid, inexorable exclusionary rule.

Rather, considerations of justice involve the careful balancing

of interests and first hand observation of the circumstances and

realities of the administration of criminal justice that federal

district judges are uniquely qualified to perform. The

philosophy of McNabb requires that federal district courts be

able (not required) to remedy and deter prosecutorial miscon-

duct and other governmental abuses falling short of constitu-

tional violations with selective, discretionary power to exclude

evidence and dismiss indictments on an ad hoc basis. This

power is, contrary to the Fifth Circuit panel in the instant case,

recognized throughout the federal judiciary and has not been

curtailed by this Court’s decision in Caceres.

United States v. Payner, 434 F.Supp. 113, 133-36 (N.D. Ohio

1977), appeal dismissed for want of jurisdiction, 572 F.2d 144

(6th Cir. 1978), aff'd after remand per curiam, 590 F.2d 206

(6th Cir. 1979) (rehearing en banc denied), for example,

recognized that “federal courts sustain supervisory power to

exclude evidence which the Government obtained in a manner

so inconsistent with American standards of justice [though

short of a constitutional violation] that to allow admission of

the evidence calls into question the integrity of the entire fed-

eral judicial system.” 434 F.Supp. at 125 (citing McNabb v.

United States, 318 U.S. 332, 340-44 (1943) and Elkins v.

United States, 364 U.S. 206, 216-23 (1960)). Though the dis-

trict court in Payner held that the exclusion was “required

under Due Process and supervisory powers because the Gov-

ernment might . . . argue that supervisory power to exclude is

20

limited to ... instances specified under the federal criminal

rules,” 434 F.Supp. at 133 n.72 (emphasis added), the Sixth

Circuit expressly held that “the district court did not err in

suppressing the evidence in the exercise of its supervisory

powers.” 590 F.2d at 207 (emphasis added). Thus it is clear

that in the Sixth Circuit, supervisory power pursuant to

McNabb not only exists, but extends to district courts.

In varying factual circumstances, the First (see United States

v. Leahey, 434 F.2d 7 (1st Cir. 1970); United States v. Coast of

Maine Lobster Co., 538 F.2d 899, 902 (lst Cir. 1976)

(supervisory powers exercised to overturn conviction and order

new trial because prosecutor, in violation of the A.B.A.

Standards Relating to the Prosecution Function and Code of

Professional Responsibility made a public statement concerning

pending trial that fell short of a constitutional violation));

Second (see United States v. Jacobs, 547 F.2d 772, 775 (2nd

Cir. 1976) cert. granted, 431 U.S. 937 (1977), cert. dismissed as

improvidently granted, 436 U.S. 31 (1978) (violation of A.B.A.

Standards and long-standing practice in circuit)); Fourth (see

United States v. Heffner, 420 F.2d 809 (4th Cir. 1969)

(violation of IRS regulations); Fifth (see Williamson v. United

States, 311 F.2d 441, 444 (5th Cir. 1962) (conviction re-

versed under supervisory powers because “it becomes the

duty of the courts in federal criminal cases to require fair

and lawful conduct from federal agents’’)); Seventh (see

United States v. Brown, 411 F.2d 930, 933 (7th Cir. 1969),

cert. denied, 396 U.S. 1017 (1970)); Eighth (see Delay v.

United States, 602 F.2d 173 (8th Cir. 1979)); Ninth (see

United States v. Sourapas, 515 F.2d 295 (9th Cir. 1975) (re-

hearing en banc denied) (violation of IRS regulations)); Tenth

(see United States v. Thomas 474 F.2d 110 (10th Cir.), cert.

denied, 412 U.S. 932 (1973); United States v. Alberico,

—F.2d—, Nos. 78-1053-1062-63 (10th Cir. Aug. 24, 1978)

(following United States v. Coast of Maine Lobster, supra));

and D.C. Circuits (see United States v. Thomas, 146 US.

_ App. D.C. 101, 449 F.2d 1177, 1186 (1971)) have gone be-

yond the dictates of the fourth, fifth, and fourteenth amend-

ments of the U.S. Constitution to exclude evidence, dismiss

21

indictments, and order new trials in the exercise of superviso-

ry powers.

The essential role of trial courts in the exercise of supervisory

powers was identified in United States v. Thomas, 474 F.2d 110

(10th Cir.), cert. denied, 412 U.S. 932 (1973), in which the

court held that a voluntary statement that a prosecutor ob-

tained from a criminal defendant without the presence of his

counsel, in violation of the canon of ethics (though admissible

under the U.S. Constitution),

may not be offered in evidence for any purpose .... To

hold otherwise . . . would be to overlook conduct which vi-

olated both the letter and the spirit of the canon of ethics

. This does not necessarily present a constitutional

question, but this is an ethical and administrative one

relating to attorneys before the United States courts. The

problem is initially for trial courts .

474 F.2d at 112 (emphasis added).

Therefore, the Fifth Circuit panel’s reversal of the district

judge’s dismissal of the perjury counts of the indictment against

Petitioner was erroneous, and a writ of certiorari should be

granted to the Fifth Circuit to preserve the exercise of super-

visory powers by lower federal courts.

Ill. GOVERNMENTAL MISCONDUCT, INCLUDING VI-

OLATION OF ITS OWN INTERNAL GUIDELINES,

ATTEMPTED MANUFACTURE OF FEDERAL JURIS-

DICTION, AND ABUSE OF THE GRAND JURY

PROCESS, DEPRIVED PETITIONER OF FUNDA-

MENTAL FAIRNESS.

As one alternative reason for dismissing the perjury counts of

the indictment Judge O’Conor found that the misconduct of the

prosecutors deprived Petitioner of fundamental fairness. (See

STATEMENT, supra, and Memorandum and Order, Appendix

B).

The impact of the due process clause is not limited to the spe-

cific provisions of the Bill of Rights. The clause also sets a stan-

22

amps ap OTe Nete me yn

FEI OL ROO NEE ETE ET LETTE eee a PA Rt pee em

yee sey

ad eal = te ee oe ae, on, ee ee es

dard of fundamental fairness. For example, Simmons v. United

States, 390 U.S. 377 (1968), recognized that certain kinds of

identification procedures might be inherently unfair. See also

Rochin v. California, 342 U.S. 165 (1952); Spencer v. Texas,

385 U.S. 544 (1967); Brady v. Maryland, 373 U.S. 83 (1963);

Giles v. Maryland, 386 U.S. 66 (1967); and In re Winship, 397

U.S. 358 (1970).

This Court has recognized that abuse of the grand jury proc-

ess or prosecutorial misconduct that undermines the fairness of

grand jury proceedings can properly result in dismissal of in-

dictments or reversal of convictions obtained on those indict-

ments. United States v. Washington, 431 U.S. 181, 190 n.6

(1977); United States v. Mandujano, 425 U.S. 564, 582 n.8

(1976); Id. at 609 (Stewart, J., concurring). The doctrines of

fundamental fairness and grand jury abuse are firmly estab-

lished in the Courts of Appeals. See, e.g., United States v.

Ciambrone, 601 F.2d 616, 623 (2nd Cir. 1979); United States

v. Doss, 563 F.2d 265 (6th Cir. 1977) (en banc); United States v.

Basurto, 497 F.2d 781, 785-786 (9th Cir. 1974); United States

v. Estepa, 471 F.2d 1132 (2nd Cir. 1972); Brown v. United

States, 245 F.2d 549 (8th Cir. 1957). Indeed the Court of

Appeals in this case recognized the existence of the doctrine,

but, disregarding the misconduct specifically found by the trial

court, found no fundamental unfairness in Petitioner’s treat-

ment (Appendix A-1, Part III. C.).

While this Court has recognized the due process implications

of prosecutorial misconduct, little guidance has been afforded

the Courts of Appeals in this area. No clear constitutional

standards for prosecutorial conduct exist. The Ninth Circuit has

held that an indictment cannot stand when it is based on

testimony known by the prosecutor to be perjurious. United

States v. Basurto, supra. The Second Circuit has further

required that the prosecutor not rely on hearsay testimony

when eyewitness testimony is available, especially when the

grand jury is mislead into believing it is receiving eyewitness

testimony. United States v. Estepa, supra. In United States v.

Ciambrone, supra, the Second Circuit indicated that in order to

require dismissal of an indictment, deception of the grand jury

23

by the prosecutor must reach some particular level, although

the level was not articulated. 601 F.2d at 623.

In the present case the trial judge found three separate

types of misconduct, which in the aggregate constituted fun-

damental unfairness. The trial judge cited as misconduct the

manufacture of federal jurisdiction, violation of the Justice

Department’s internal guidelines respecting treatment of tar-

get witnesses, and abuse of the grand jury process, which

finding of abuse was based on the Judge’s determination that

Petitioner was called before the grand jury for the sole

purpose of affording him ai opportunity to perjure himself.

(Memorandum and Order at 4B-7B, infra). Despite these find-

ings by the trial judge, the Court of Appeals determined that

the proceedings were not fundamentally unfair. The Fifth

Circuit would thus appear to have substantially lower

standards for prosecutorial conduct than the Second Circuit.

In United States v. Doss, supra, the Sixth Circuit held that

grand fury proceedings were void where a defendant was

called to testify concerning activities for which he had al-

ready been indicted. The court degermined that the grand ju-

ry process had been abused since the defendant was not

called for purposes of investigation but rather to elicit incrim-

inatory statements. The Fifth Circuit in the instant case dis-

tinguished Doss by assuming that the indictment against Peti-

tioner was prepared after his testimony was received. Slip op.

at. 7386, n.16). Considering standard prosecutorial practice,

the complexity of the indictment, the fact that it was filed on

the same day as defendant’s appearance, and that a superseding

indictment containing the perjury counts was not returned until

August 1, 1978, the assumption is quite unrealistic. Yet even

accepting the assumption as correct, the distinction between the

instant case and Doss is one of fori: rather than substance.

Whether the indictment was typed before or after Petitioner

testified is of little moment in the presence of the trial court’s

finding that Petitioner was called for the sole purpose of

allowing him to perjure himself, and the government’s ad-

mission that they thought they had enough evidence to obtain

the indictment without defendants’ testimony. Judge O’Conor

24

found that the grand jury had no need for defendant’s testimony

and that the evidence already gathered was such that nothing

defendants could say would prevent an indictment. The con-

duct of the prosecutor in the instant case was no less abusive

than that of the prosecutor in Doss.

This case differs only slightly from the fundamentally

unfair situation envisioned by this Court in United States v.

Washington, 430 U.S. at 190, n.6, where a target witness is

hailed before a grand jury with the aid of governmental mis-

conduct and then is not properly warned of his target status.

The “‘governmental misconduct which undermined the fair-

ness of the proceedings” in the instant case was found as a

fact by the trial judge and has already been noted above.

And Petitioner’s target witness warning came only after he

was already in the grand jury room, and not, as the guide-

lines required, on a printed form attached to the subpoena he

received the previous day.

Grand jury reform is currently a popular topic and propos-

als’ are numerous. See e.g., citations in United States v. Ciam-

barone, 601 F.2d at 622, n.5. Reflected in the movements for

reform is a growing lack of confidence in the grand jury as a

buffer between the citizen and the sovereign. This lack of

confidence is fully justified when the process is abused and

reduced to a mere tool of overzealous prosectuion. Clear lim-

its on prosecutorial conduct with respect to grand jury pro-

ceedings are a must if the grand jury is to serve its historic

function. The isolated and uncoordinated pronouncements of

the Courts of Appeals are of no help in defining these limits.

It is thus of the utmost public importance that this Court

instruct the lower courts as to what those limits are.

CONCLUSION

For the foregoing reasons it is respectfully submitted that

the petition for certiorari should be granted to review the

25

judgment of United States Court Of Appeals for the Fifth

Circuit.

Francis James Maloney, Jr.

Counsel for Petitioner

505 West 12th Street

Austin, Texas 78701

CERTIFICATE OF SERVICE

I, a member of the bar of this Court, in accordance with

Rule 33, Supreme Court Rules, certify that three true and

correct copies of the foregoing Petition for Writ of Certiorari

were served on the parties involved in this case on the

—_______ day of January, 1980, by placing the same in the

United States Mails, first-class postage prepaid, addressed to

the Honorable Wade H. McCree, Jr., Solicitor General, De-

partment of Justice, Washington, D.C. 20530, and the Honor-

able A.J. ““Tony’’ Canales, United States Attorney for the

Southern District of Texas, P.O. Box 61129, Houston, Texas

77208, Counsel for the Government; and to Mr. Ramon Gar-

cia, 107 N. 10th Street, Edinburg, Texas 78539, ee for

Co-Defendant Patricia Parada.

Francis James Maloney, Jr.

26

eps ab 2 tn mherin hy Nee masitcblde res ~

APPENDIX A-1:

APPENDIX A-2:

APPENDIX A-3:

APPENDIX A

Opinion of the Court Below

Judgment of the Court Below

Order of the Court Below on Petition for

Rehearing and Suggestion for Rehearing

En Banc

UNITED STATES v. McINNIS

UNITED STATES of America,

Plaintiff-Appellant,

Vv.

Oscar McINNIS and Patricia Parada,

Defendants-Appellees.

No. 78-3277.

United States Court of Appeals,

Fifth Circuit.

Sept. 10, 1979.

The United States appealed decision

of the United States District Court for

the Southern District of Texas, Robert

O’Conor, Jr., J., dismissing charges of

conspiracy to kidnap and perjury; de-

fendants filed motions to dismiss the ap-

peal. The Court of Appeals, Alvin B.

Rubin, Circuit Judge, held that: (1) no

jeopardy attached when district court

heard evidence in course of deciding de-

fendants’ motions to dismiss indictment,

and thus Government’s appeal was not

barred under statute proscribing an ap-

peal by United States where double jeop-

ardy clause of United States Constitu-

tion prohibits further prosecution; (2) a

charge of conspiracy to lure victim

across international boundary with Mexi-

co with purpose of later kidnapping vic-

tim in Mexico was not proscribed by the

federal antikidnapping statute; (3)

gragd jury had jurisdiction to investigate

conduct that might have been a federal

crime and thus could properly call wit-

nesses who could shed light on events in

question; and (4) although Government’s

attempts to conceal its investigation

from defendants because one defendant’s

status as a law enforcement officer may

have been ill-considered, Government’s

conduct surrounding defendant’s appear-

ances before grand jury did not cross

7376

constitutional line and thus could not af-

ford basis for dismissal of indictment for

perjury.

Affirmed in part; reversed and re-

manded in part.

1. Criminal Law @177

No jeopardy attached when district

court heard evidence in course of decid-

ing defendants’ motions to dismiss indict-

ment, and thus Government’s appeal was

not barred under statute proscribing an

appeal by United States where double

jeopardy clause of United States Consti-

tution prohibits further prosecution. 18

U.S.C.A. § 3731; U.S.C.A.Const. Amend.

5.

2. Criminal Law @1069(1)

Government’s appeal within 80 days

of entry of a written and signed order

granting dismissal of indictment was

timely, notwithstanding that more than

30 days had passed after district court

had by oral statement dismissed the in-

dictment from the bench, absent evi-

dence that formal order had been pre-

pared to circumvent rule or to extend

time for appeal. Fed.Rules App.Proc.

rule 4(b), 28 U.S.C.A.

3. Indictment and Information @=>144.-

1(1)

Court of Appeals would not enforce,

by dismissal of indictment, claimed poli-

cy of Justice Department precluding a

federal trial where a state prosecution

on same matter is pending when federal

charges were filed.

4. Conspiracy @25

It is not an offense to conspire to do

an act that, if completed, would not be a

crime.

APPENDIX A-1

28

7377 UNITED STATES v. McINNIS

5. Kidnapping @1

A charge of conspiracy to lure vic-

tim across international boundary with

Mexico with purpose of later kidnapping

victim in Mexico was not proscribed by

the federal antikidnapping statute. 18

U.S.C.A. § 1201.

6. Grand Jury 26

Grand jury had jurisdiction to inves-

tigate conduct that might have been a

federal crime and thus could properly

call witnesses who could shed light on

events in question, notwithstanding that

subsequent charged conspiracy to lure a

victim across an international boundary

with purpose to then kidnap him was not

proscribed by federal antikidnapping

statute; thus, charges of making false

material declarations to a grand jury

while grand jury was investigating such

events were proper. 18 U.S.C.A.

§§ 1201, 1623(a).

7. Indictment and Information ¢ 144.-

1(1)

Courts are not charged with enforc-

ing internal government guidelines such

as guidelines of Justice Department pro-

scribing manner in which defendants are

brought before grand jury, and courts

will not remedy such an alleged violation

by dismissal of an indictment.

8. Indictment and Information = 144.-

1(1)

Although Government’s attempts to

conceal its investigation from defendants

because of one defendant’s status as a

law enforcement officer may have been

ill-considered, Government’s conduct sur-

rounding defendants’ appearances before

grand jury did not cross constitutional

line and thus could not efford basis for

_ dismissal of indictment for perjury.

Appeal from the United States Dis-

trict Court for the Southern District of

Texas.

Before GOLDBERG, FAY and RU-

BIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The United States contends that the

Lindberg Act, the federal anti-kidnap-

ping statute, as amended, 18 U.S.C.

§ 1201, forbids a conspiracy to lure a

victim across an international boundary

and then to kidnap him, and seeks to set

aside a judgment dismissing an indict-

ment charging those acts as a federal

offense. It also appeals the dismissal of

several counts of making false material

declarations to a grand jury, in violation

of 18 U.S.C. § 1623(a), while the grand

jury was investigating those events. We

conclude that the conspiracy charged is

not proscribed by the federal statute.

However, the grand jury did have juris-

diction to conduct an investigation and

we remand for further proceedings on

the false swearing counts.

I. Facts

Defendant Oscar McInnis was the dis-

trict attorney for Hidalgo County, Texas,

and also conducted a private law prac-

tice. The co-defendant, Patricia Parada,

was his client. Noe Villanueva, the al-

leged victim of the kidnapping plot, was

once married to Parada. Villanueva,

who was confined in the Hidalgo County

Jail, was secretly working as a govern-

ment agent during the events under con-

sideration in this case.

The government alleged that McInnis

planned to arrange for Villanueva to be

29

UNITED STATES v. McINNIS 7378

released from jail, so that, in accordance

with a scheme plotted with Parada, Vil-

lanueva could then be lured by Parada

into Mexico, where he would be kid-

napped and killed by Mexican police au-

thorities in Reynosa, Mexico. However,

Parada did not plan to go to Mexico;

Villanueva was to travel alone. Daniel

Rodriguez, an inmate at Hidalgo County

Jail and a government informant, was

enlisted by McInnis to contact a Mexican

police officer named Cantu who would

1. Recordings of conversations between MclIn-

nis and Rodriguez comprise the bulk of the

government’s evidence against the defendants.

2. The indictment does not reveal any motive

for this scheme. However, in its brief, the

government says, “McInnis had animosity to-

ward Villanueva, as he was bothering women

whom the former knew” and Mclinnis “felt

that Villanueva was a ‘bastard’ and a ‘pest.’”

The government suggests no reason for Para-

da’s alleged complicity in the plot.

3. For the purposes of this opinion, we will

accept, without deciding, the government’s al-

legation that the grand jury was investigating

the conspiracy to kidnap Villanueva and possi-

ble violations of his civil rights. But see Unit-

ed States v. Cosby, 5 Cir. 1979, slip op. 7111,

— F.2d ——.

4. The circumstances surrounding the defend-

ants’ appearances before the grand jury were

unusual. The subpoenas did not advise the

defendants that they were targets of the grand

jury investigation nor were they accompanied

by the customary list of the rights of a grand

jury witness. However, each of the defend-

ants was warned immediately before testifying

that he or she was a target of the grand jury

investigation, that his or her testimony could

be used against each of them, and each was

informed of the constitutional rights against

self-incrimination and to consultation with an

attorney.

When Mclinnis was served with his subpoe-

na, the United States Marshal told him that “‘it

might be about some narcotics cases” that he

was handling as the district attorney. The

United States Attorney’s office refused to give

McInnis any information about the subpoena

until he was formally warned on the record

30

intercept Villanueva, hold him and ar-

range for his murder.' The meeting in

Reynosa, the kidnapping, and the murder

never occurred.”

The counts of making false material

declarations to a grand jury arose out of

MclInnis’s and Parada’s testimony before

the grand jury on June 7, 1978.2 McIn-

nis and Parada were called to testify

after tape-recordings of their conversa-

tions with Rodriguez and Villanueva

were played for the grand jury.‘

just before entering the grand jury room to

testify.

Parada’s subpoena was served in a more

dramatic fashion. Four FBI agents and two

U.S. Marshals served her with it at the univer-

sity she was attending in Edinburg, Texas.

Because her subpoena required her appearance

instanter, the government agents took her to

the grand jury in Brownsville. She was al-

lowed to call her mother, but did not call her

attorney. The district court found that Parada

was “dissuaded from calling her attorney” at

the time the subpoena was served on her and

“was told that her attorney, Mr. McInnis, was

waiting for her at the grand jury.” According

to Parada’s testimony, immediately after she

was served with the grand jury subpoena she

asked to consult with her attorney and her

request was refused. Shortly thereafter she

was told that Mr. McInnis had also been sub-

poenaed and.was before the grand jury at the

courthouse. -

At the pre-trial hearing on the motion to

dismiss the indictments, the Assistant United

States Attorney explained that he directed that

the unusual steps be taken to prevent Parada

from fleeing to Mexico before she testified,

and to prevent the defendants from getting

together and talking about their testimeny in

advance. Had Parada been refused the oppor-

tunity to consult with counsel during the grand

jury proceedings, or misled by the government

into foregoing that right, her right to counsel

may have been denied. However, her testimo-

ny and the grand jury record make clear that

(1) Parada was aware of Mr. MclInnis’s pres-

ence at the courthouse where the grand jury

proceedings were in progress; (2) the Assist-

ant U.S. Attorney who conducted the question-

ing during her grand jury testimony advised

7379 UNITED STATES v. McINNIS

In the course of his testimony, McInnis

denied that: (1) he knew the details of

the planned meeting between Villanueva

and Parada in Reynosa or related them

to Rodriguez; (2) he recalled meeting

Parada at the time that she had agreed

to meet Villanueva in Mexico; (8) he

discussed the murder of Villanueva with

Dan Rodriguez; (4) he discussed Officer

Cantu with Rodriguez; (5) he received

Villanueva’s identification papers; and

(6) he discussed the porsibility of setting

vp Villanueva for arrest on narcotics

charges or on charges of hiring someone

to kill Villanueva’s mother-in-law.

These statements formed the basis of the

six charges of perjury against McInnis.

During her testimony to the grand

jury, Parada denied that she had agreed

to meet Villanueva in Mexico and that

Mcianis had advised her to deny that

such a meeting had been agreed upon.

These statements were used as the basis

for the charge of perjury brought

against her.

The defendants were charged by in-

dictment with conspiracy to kidnap and

perjury. They filed motions to dismiss

the kidnapping charge, premised on the

theory that the acts alleged to have oc-

curred in the course of the conspiracy to

kidnap Villanueva were not prohibited

by 18 U.S.C. § 1201, and motions to dis-

miss the perjury charges, based primarily

on the contentions that the declarations

were not material to an investigation

within the jurisdiction of the grand jury,

and that the institution of the prosecu-

Parada of her right to consult with an attorney

before answering any question; and (3) she

was informed of the subject matter of the in-

vestigation and told that she was a target of

the investigation.

Appellees do not contend that Parada’s right

to counsel was denied. Nor do they suggest

that the government’s actions in this regard

tion was defective because the govern-

ment failed to follow the internal guide-

lines of prosecutorial practice established

by the Department of Justice. After a

pre-trial hearing on September 8, 1978,

the district court dismissed all counts of

the indictment from the bench. A writ-

ten Memorandum and Order, denominat-

ed “the ruling of the Court” was signed

September 15 and filed September 19.

The government filed a notice of ap-

peal from the dismissal on October 13,

1978. It contends that the trial court

was clearly erroneous in dismissing the

kidnapping conspiracy count and the per-

jury counts. In response, the defendants

filed motions to dismiss the appeal con-

tending that the government’s appeal

was barred by statute, that the appeal

was not timely, and that the prosecution

violated the Justice Department’s Petite

policy.

II. Motions to Dismiss the Appeal

{1] There is no merit to the conten-

tion that jeopardy attached when the

district court heard evidence in the

course of deciding the motions to dismiss

the indictment and that the govern-

ment’s appeal, therefore, is barred by 18

U.S.C. § 3731, which provides “no appeal

[by the United States] shall lie where

the double jeopardy clause of the United

States Constitution prohibits further

prosecution.” The Supreme Court has

recently cut the ground from under the

appellant’s thesis by holding: that “the

defendant, by deliberately choosing to

seek termination of the proceedings

violated fundamental fairness or constituted an

abuse of grand jury process. Given the evi-

dence that Parada was informed of her right to

counsel and was neither coerced nor manipu-

lated into abandoning that right, we cannot

join the district court’s assumption of govern-

ment misconduct.

31

UNITED STATES v. McINNIS 7380

against him on a basis unrelated to fac-

tual guilt or innocence of the offense of

which he is accused, suffers no injury

cognizable under the Double Jeopardy

clause”; therefore, the government may

appeal from the dismissal of an indict-

ment after evidence has been taken on a

motion to dismiss. United States v.

Scott, 1978, 437 U.S. 82, 97, 98 S.Ct.

2187, 2197-98, 57 L.Ed.2d 65, 78.5 Here

as in Scott, none of the grounds upon

which the district court dismissed the in-

dictment related to the factual guilt or

innocence of the defendants.

[2] The defendants also contend that

the government’s appeal was not timely

because notice of the appeal was filed

more than thirty days after the district

court dismissed the indictment from the

bench. However, the appeal was filed

within thirty days of the entry of a writ-

ten and signed order granting the mo-

tion. The signed formal order is the

“judgment” *® and the prior oral state-

ment from the bench was not an appeal-

able order. United States v. Hark, 1944,

320 U.S. 531, 534-35, 64 S.Ct. 359, 361,

88 L.Ed. 290, 294-295; United States v.

St. Laurent, 1 Cir. 1975, 521 F.2d 506,

511, cert. denied, 1976, 423 U.S. 1049, 96

5. See also Serfass v. United States, 1975, 420

U.S. 377, 389, 95 S.Ct. 1055, 1063, 43 L.Ed.2d

265, 274 (“jeopardy had not yet attached when

the District Court granted petitioner’s motion

to dismiss the indictment”); Cooper, Govern-

ment Appeals in Criminal Cases: The 1978

Decisions, 81 F.R.D. 539 (1979).

6. Rule 4(b), F.R.A.P., provides in pertinent

part:

When an appeal by the government is autho-

rized by statute, the notice of appeal shall be

filed in the district court within 30 days after

the entry of the judgment or order appealed

from. A judgment or order is entered within

the meaning of this subdivision when it is

entered in the criminal docket.

7. The Petite policy bars a federal trial follow-

ing a state prosecution for the same acts, “un-

32

S.Ct. 775, 46 L.Ed.2d 637; United States

v. Lee, 1974, 163 U.S.App.D.C. 330, 339,

501 F.2d 890, 891 n. 1. There is no evi-

dence that the formal order was prepar-

ed to circumvent the rule or to extend

the time for the appeal.

{3} It is equally vain to invoke the

Justice Department’s Petite policy’ on

te basis that a state prosecution of the

s.me matter was pending when the fed-

eral «harges were filed. We have re-

peatedly refused to enforce that policy

by dismissing an indictment; the prac-

tice of avoiding dual prosecution sets

only an internal guideline for the Justice

Department. E. g., United States v. Mi-

chel, 5 Cir. 1979, 588 F.2d 986, 1003 n. 19,

pet. for cert. filed, 47 U.S.L.W. 3672;

United States v. Nelligan, 5 Cir. 1978,

573 F.2d 251, 255.8

III. Dismissal of the Indictment ’

A. Conspiracy to Kidnap

[4,5] The district court dismissed the

conspiracy to kidnap count of the indict-

ment on the ground of “legal impossibili-

ty”; it is not an offense to conspire to

less the reasons are compelling.” Rinaldi v.

United States, 1977, 434 U.S. 22, 25 n. 5, 98

S.Ct. 81, 82, 54 L.Ed.2d 207, 211. See also

Petite v. United States, 1960, 361 U.S. 529, 80

S.Ct. 450, 4 L.Ed.2d 490.

8. Cf. United States v. Caceres, 1979, -— U.S.

——, 99 S.Ct. 1465, 59 L.Ed.2d 733 (evidence

obtained in violation of IRS internal regula-

tions would not be excluded from a criminal

prosecution; enforcement of the regulations

left to the executive agency); United States v.

Hayes, 5 Cir. 1979, 589 F.2d 811, 818 (state-

ment by the Attorney General that was not

promulgated and published as an official regu-

lation cannot be used to invalidate an other-

wise valid grand jury indictment).

7381 UNITED STATES v. McINNIS

do an act that, if completed, would not

be a crime The government contends

that the federal statute is violated when

a victim is merely inveigled into crossing

an international boundary with the pur-

pose of later kidnapping him; the de-

fendants’ scheme to seduce Villanueva

across the international boundary so that

a Mexican officer could kidnap him made

them responsible as principals under 18

U.S.C. § 2b). That theory will not

bear exposure to the words of the stat-

ute. The federal kidnapping statute, 18

U.S.C. § 1201, as originally enacted in

1932, clearly reached only a kidnapping

followed by interstate transportation, for

it read: ;

Whoever knowingly transports in in-

terstate or foreign commerce, any per-

son who has been unlawfully seized,

confined, inveigled, decoyed, kidnaped,

abducted, or carried away and held for

ransom or reward or otherwise, except,

in the case of a minor, by a parent

thereof, shall be punished (1) by death

if the kidnaped person has not been

liberated unharmed, and if the verdict

of the jury shall so recommend, or (2)

by imprisonment for any term of years

or for life, if the death penalty is not

imposed.

The anti-kidnapping statute was

adopted following the kidnapping of the

son of Charles and Ann Morrow Lind-

9. See, e. g., United States v. Pheaster, 9 Cir.

1976, 544 F.2d 353, 362, cert. denied, 1977, 429

U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546.

10. “Whoever willfully causes an act to be done

which if directly performed by him or another

would be an offense against the United States,

is punishable as a principal.”

11. See also United States v. Atchison, 7 Cir.

1975,.524 F.2d 367, 370 n. 4, quoting Gawne v.

United States, 9 Cir. 1969, 409 F.2d 1399, cert.

denied, 1970, 397 U.S. 943, 90 S.Ct. 956, 25

L.Ed.2d 123 (“the true elements of the offense

berg, which was then prosecutable only

as a state offense, to assist the states in

combatting a “growing and serious men-

ace.” Chatwin v. United States, 1946,

326 U.S. 455, 463, 66 S.Ct. 233, 237, 90

L.Ed. 198, 902. “Comprehensive lan-

guage was used to cover every possible

variety of kidnaping followed by inter-

state transportation.” Ibid (emphasis

supplied)." However, despite its broad

language, the statute did not make ei-

ther all abductions or even every seduc-

tion of victims into another state a fed-

eral crime. “In short, the purpose of the

Act was to outlaw interstate kidnapings

rather than general transgressions of

morality involving the crossing of state

lines.” Ibid.

In oral argument, the government con-

ceded that the plan would not have been

a federal offense under the language of

the original Lindberg Act even if it had

been consummated. It asserted instead

that the definition of the crime had been

broadened by an amendment passed by

the 92d Congress in 1972, P.L. 92-539, 86

Stat. 1070, to expand protection of for-

eign officials and other “official guests”

of the United States. See S.Rep. No.

92-1105, 92d Cong., 2d Sess. 1, reprinted

in [1972] U.S.Code Cong. & Admin.News,

p. 4316. The full text of the statute as

then amended is set forth in the mar-

are an unlawful seizure and holding, followed

by interstate transportation’’).

The Fifth Circuit’s formulation of the ele-

ments of kidnapping under the statute is not

materially different. See United States v.

McBryar, 5 Cir. 1977, 553 F.2d 433, cert. de-

nied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d

136; Hattaway v. United States, 5 Cir. 1968,

399 F.2d 431 ((1) transportation in interstate

commerce; (2) of an unconsenting person who

is (3) held “for ransom or reward, or other-

wise”; (4) such acts being done knowingly and

willfully).

33

UNITED STATES v. McINNIS 7382

gin.” While the clarity of the descrip-

tion of the federal offense as kidnapping

followed by interstate transportation

was blurred, there is nothing in the his-

tory of the amendment to indicate an

intention to convert the statute into a

proscription of interstate transportation

in order to accomplish a later kidnap-

ping. The Senate Judiciary Committee

noted that the law was amended “to

make the thrust of the offense the kid-

napping itself rather than the interstate

transporting of the kidnapped person.”

Id. U.S.Code Cong. & Admin.News at

4317-4318. In the section-by-section

analysis of the bill, the report explained:

In lieu of the sole jurisdictional base

of transportation in interstate or for-

eign commerce jurisdiction to punish

kidnapping is provided when (1) the

victim is transported in interstate or

foreign commerce (as under existing

law ) (2) the kidnapping occurs within

the special maritime and _ territorial

jurisdiction of the United States, or (3)

in the special aircraft jurisdiction of

12. Ҥ 1201. Kidnaping

“(a) Whoever unlawfully seizes, confines,

inveigles, decoys, kidnaps, abducts, or car-

ries away and holds for ransom or reward or

otherwise any person, except in the case of

a minor by the parent thereof, when:

“(1) the person is willfully transported in

interstate or foreign commerce;

“(2) any such act against the person is

done within the special maritime and terri-

torial jurisdiction of the United States;

“(3) any such act against the person is

done within the special aircraft jurisdic-

tion of the United States as defined in sec-

tion 101(32) of the Federal Aviation Act of

1958, as amended (49 U.S.C. 1301(32)); or

“(4) the person is a foreign official as

defined in section 1116(b) or an official

guest as defined in section 1116(c)(4) of

this title,

shall be punished by imprisonment for any

term of years or for life.

34

the United States; or (4) the victim is

a foreign official within the purview

of section 1116 of title 18.

Id. U.S.Code Cong. & Admin.News at

4326 (emphasis supplied). The Secretary

of State and the Attorney General of the

United States shared this view of the

impact of the new legislation. See id.

U.S.Code Cong. & Admin.News at 4323.

Thus, the 1972 amendments expanded

federal statutory jurisdiction over kid-

napping and made the kidnapping rather

than interstate transportation the heart

of the offense but it did not alter the

definition of the federal crime, as de-

scribed in Chatwin, for kidnappings that

do not take place within the special mar-

itime, territorial or aircraft jurisdictions

of the United States, or do not involve

foreign officials, internationally protect-

ed persons, or official agents of the

United States. Compare, e. g., United

States v. Young, 4 Cir. 1975, 512 F.2d

321, cert. denied, 424 U.S. 956, 96 S.Ct.

1432, 47 L.Ed.2d 362 (kidnapping at

Washington National Airport).”

“(b) With respect to subsection (a)1),

above, the failure to release the victim with-

in twenty-four hours after he shall have been

unlawfully seized, confined, inveigled, de-

coyed, kidnaped, abducted, or carried away

shall create a rebuttable presumption that

such person has been transported in inter-

state or foreign commerce.

“(c) If two or more persons conspire to

violate this section and one or more of such

persons do any overt act to effect the object

of the conspiracy, each shall be punished by

imprisonment for any term of years or for

life.”

13. Other amendments to the kidnapping act

have not made material changes’ in

§ 120l(aX1) or (c). See, e. g., H.Rep. No.

94-1614, 94th Cong., 2d Sess., reprinted in

[1976] U.S.Code Cong. & Admin.News, pp.

4480, 4483 (accompanying P.L. 94-467, 90

Stat. 1997, providing criminal penalties if the

victim of a kidnapping is an internationally

protected person and for attempted kidnapping

7383 UNITED STATES v. McINNIS

The alleged plan did not encompass

taking or holding Villanueva against his

will and then transporting him in for-

eign commerce. The government has

never contended that Villanueva was to

be detained involuntarily in any fashion

before he was to be transported in for-

eign commerce. The contention that the

statute was violated when McInnis and

Parada conspired to cause Villanueva to

transport himself across an international

line by a Lorelei-promise of a south-of-

the-border meeting with Parada must

fail for it lacks support either in the

statute or the jurisprudence.

Under various statutes predicated on

interstate commerce, defendants have

been held responsible for causing the in-

terstate or foreign transportation of a

person or an article, even where the de-

fendants have not done the transporting

themselves. For example, the National

Stolen Property Act, 18 U.S.C. § 23814,

which prohibits, among other things, the

transporting in interstate commerce of

goods taken by fraud, has been held to

reach the action of a defendant who, by

presenting a check drawn on a California

bank for payment in a Texas bank,

thereby “caused” the check to be trans-

ported in interstate commerce since it

was reasonably foreseeable that in the

ordinary course of business the Texas

bank would use the mails to collect a

check drawn on a California bank. Per-

eira v. United States, 1954, 347 U.S. 1,

8-9, 74 S.Ct. 358, 363, 98 L.Ed. 485, 444.

Similarly, prison inmates who caused

others to ship narcotics in interstate

commerce were held to have violated 18

U.S.C. § 1952, which provides that

“[wjhoever travels in interstate or for-

of foreign officials, internationally protected

persons, and official guests); S.Rep. No. 2820,

84th Cong., 2d Sess., reprinted in [1956] U.S.

Code Cong. & Admin.News, pp. 4373, 4374

eign commerce or uses any facility in

interstate or foreign commerce, including

the mail, with intent to” further unlaw-

ful activities violates the section. Unit-

ed States v. Levine, 10 Cir. 1972, 457

F.2d 1186. In the same vein, a defend-

ant who induced an automobile salesman

to drive a stolen car across state lines

violated 18 U.S.C. § 2312, which pro-

scribes the interstate transportation of

stolen vehicles, even though the sales-

man was unaware that the automobile

was stolen. United States v. Leggett, 7

Cir. 1959, 269 F.2d 35, cert. denied, 361

U.S. 901, 80 S.Ct. 209, 4 L.Ed.2d 156. In

none of those cases did the defendants

physically participate in the interstate

transportation element of the offense,

but in each case some instrumentality

was employed by the defendant to

“cause” interstate movement—for exam-

ple, the postal service, Pereira, supra; an

accomplice, Levine, supra; or an inno-

cent agent, Leggett, supra. No case has

been cited in which causation has been

imputed because the victim transported

himself.

Moreover, the interstate travel in each

case occurred after some significant and

unlawful step had been taken toward the

commission of the federal offense—for

example, the fraudulent receipt of a

check, Pereira, supra; the establishment

of an illegal business enterprise, Levine,

supra; or the theft of an automobile,

Leggett, supra.

The federal anti-kidnapping statute

similarly contemplates situations where

an offender “unlawfully seizes, confines,

inveigles, decoys, kidnaps, abducts, or

carries away and holds” the victim, and

(accompanying P.L. 84—983, 70 Stat. 1043, au-

thorizing the FBI to investigate kidnappings if

the victim has not been released within 24

hours after seizure).

35

UNITED STATES v. McINNIS 7384

then transports him in interstate or for-

eign commerce. 18 U.S.C. § 1201 (em-

phasis added). In contrast to the cases

cited to this court where the interstate

transportation followed some illegal ac-

tivity, McInnis and Parada did not con-

template any unlawful act before Villan-

ueva crossed the international boundary.

It is true that Parada attempted to “de-

coy” Villanueva into Mexico, but, prior

to his arrival in Mexico, no unlawful in-

terference with Villanueva’s actions was

intended.

The kidnapping statute thus fits into a

common statutory model for federal of-

fenses that premise federal jurisdiction

on the offender’s unlawful exercise of

contro] over a person or object followed

by the interstate transportation of that

person or object. See The National

Comm’n. on Reform of Federal Criminal

Laws, Study Draft of a New Criminal

Code 14 (1970). See, e. g. 18 U.S.C.

§§ 2312, 2314. The racketeering statute,

18 U.S.C. § 1952, involved in Levine, su-

pra, deviates from this pattern only inso-

far as it premises federal jurisdiction on

the interstate travel of or use of inter-

state facilities by an offender in further-

ance of certain illegal activities. The

proposed Federal Criminal Code provi-

sions would broaden the kidnapping stat-

ute to fit that model by permitting fed-

eral prosecution of kidnapping if the of-

fender crosses interstate or national

boundaries to commit the offense. The

National Comm’n. on Reform of Federal

Criminal Laws, supra, at §§ 201, 1634.

Even that broad jurisdictional base

would not reach the conduct of McInnis

and Parada who planned neither to cross

state or international borders themselves

nor to follow the abduction of Villanue-

va with international travel. The

government’s theory in this case would

invert the sequence of events contem-

36

plated by the anti-kidnapping statute by

allowing a victim’s unrestraincd and un-

coerced crossing of state or national

boundaries, when followed by his abduc-

tion, not only to serve as the basis for

federal jurisdiction of the offense but

also to constitute an element of the

crime.

We have held the statute might be

violated if the interstate transportation

was accomplished at the direction of the

defendant by a victim forced to comply,

involuntarily, with his wishes, but this

was on the thesis that transportation

brought about as a result of the defend-

ant’s threats was in effect accomplished

by the defendant. In Bearden v. United

States, 5 Cir. 1962, 304 F.2d 532, vacated

on other grounds, 1963, 372 U.S. 252, 83

S.Ct. 875, 9 L.Ed.2d 732, rev’d on rehear-

ing, 320 F.2d 99, cert. denied, 1964, 376

U.S. 922, 84 S.Ct. 679, 11 L.Ed.2d 616, an

airplane hijacker ordered the pilot to fly

to the plane’s original destination. After

reconsideration at the direction of the

Supreme Court, 372 U.S. 252, 83 S.Ct.

875, 9 L.Ed.2d 732, a panel of this court

reversed the conviction and granted a

new trial, finding that not instructing

the jury that the defendant had to be

“doing the transporting himself” was a

“fundamental error.” 320 F.2d at 108.

The Eighth Circuit Court of Appeals

has twice held that the anti-kidnapping

statute proscribes the decoying or invei-

gling of a victim to accompany the de-

fendant in interstate commerce. See

United States v. Hoog, 8 Cir. 1974, 504

F.2d 45, cert. denied, 1975, 420 U.S. 961,

95 S.Ct. 1349, 43 L.Ed.2d 487; Miller v.

United States, 8 Cir., 1943, 188 F.2d 258,

cert. denied, 1944, 320 U.S. 803, 64 S.Ct.

429, 88 L.Ed. 485. We cannot subscribe

to this extension of the act to reach the

entireiy voluntary act of a victim in

crossing a state line even though it is

induced by deception.

rea

7385 UNITED STATES v. McINNIS

There is still truth in ancient wisdom

and law in maxims older than, but re-

spected by, the Constitution. Criminal

statutes are to be strictly construed. E.

g., United States v. Enmons, 1973, 410

U.S. 396, 411, 93 S.Ct. 1007, 1015, 35

L.Ed.2d 379, 389; United States v. Dud-

ley, 5 Cir. 1978, 581 F.2d 1193, 1197. Pe-

nal statutes must not be stretched to

enable the government to prosecute a

defendant merely because what he has

done is vile, or, as the government here

suggests, a violation of state law that is

likely to go unpunished by state authori-

ties. The district court correctly con-

cluded that the indictment should be dis-

missed because the conduct alleged was

not what Congress forbade by the stat-

ute. Because of the conclusion we have

reached, it is unnecessary to consider the

further issue that the statute does not

reach a conspiracy that would reach frui-

tion only on foreign soil.

B. Perjury

{6} The district court believed that

the grand jury was without jurisdiction

to consider the alleged conspiracy to kid-

nap because the conduct exposed did not

constitute a federal offense. The experi-

enced trial judge was misled by the de-

fendants into a false equation of what

actually constitutes a crime with juris-

diction to investigate to determine

whether an offense has been committed.

The grand jury has a unique investiga-

tive function in our system of criminal

justice. It is a “fair method for institut-

ing criminal proceedings.” Cosby v.

United States, 5 Cir. 1979, slip op. 7111,

14. Other circuits have reached the same con-

clusion about the extent of grand jury authori-

ty. E. g., United States v. Williams, 8 Cir.

1977, 552 F.2d 226, 230 quoting United States

v. Sisack, 9 Cir. 1976, 527 F.2d 917, 920 (“The

mere possibility that violations of federal law

have occurred is sufficient authority for a

grand jury investigation.”); United States v.

7115, —— F.2d ' , quoting Cos-

tello v. United States, 1956, 350 U.S. 359,

362, 76 S.Ct. 406, 408, 100 L.Ed. 397, 401.

See also United States v. Calandra, 1974,

414 U.S. 338, 342-46, 94 S.Ct. 613, 617—

19, 38 L.Ed.2d 561, 568-570. Because it

is an investigatory agency, and because

its primary function is to safeguard de-

fendants from prosecution without prob-

able cause, not to aid the government,

the grand jury must necessarily be able

to investigate activities that it might la-

ter decline to indict. See In re Grand

Jury Proceedings, 5 Cir. 1977, 558 F.2d

1177, 1179. A grand jury might, follow-

ing an investigation, decide that a feder-

al offense had likely been committed but

refuse to return an indictment; it might

decide that the conduct investigated was

a state, but not a federal crime; or that

the actions were not criminal. Unless

the grand jury has such latitude, there is

little reason for its existence, and it

would be incapable of protecting citizens

by exercise of its independent judgment.

See United States v. Shaw, 5 Cir. 1977,

555 F.2d 1295, 1300 (“The historic task of

the grand jury is to inquire into the ex-

istence of possible criminal conduct and

to return only well-founded _indict-

ments”).!4

The plot brought to the attention of

the grand jury might have turned out to

be a federal crime. The tapes and the

other evidence might have revealed that

McInnis and Parada planned to take Vil-

lanueva to Mexico themselves, or even

that the Mexican police officer planned

Jacobs, 7 Cir. 1976, 543 F.2d 18, 21, cert. de-

nied, 1977, 431 U.S. 929, 97 S.Ct. 2632, 53

L.Ed.2d 244 (“The mere possibility that the

grand jury would not find conduct indictable

would not deprive it of authority to

investigate to see whether indictable offenses

had been committed.”’)..

37

a a a a eee

UNITED STATES v. McINNIS 7386

to bring Villanueva across the border.

Nothing came to pass, but this was in

part because the hare was himself se-

cretly a hound. However, since the

grand jury was investigating conduct

that might have been a federal crime it

had jurisdiction to call witnesses who

could shed light on the events in ques-

tion.'§

{7] The district court also noted that

the manner in which the defendants

were brought before the grand jury vio-

lated “the doctrine of fundamental fair-

ness and the guidelines of the Justice

Department.” However, the courts are

not charged with enforcing internal gov-

ernmental guidelines and will not reme-

dy an alleged violation by the dismissal

of an indictment, Hayes, supra, 589 F.2d

at 818, or the exclusion of evidence, Ca-

ceres, supra, - U.S. at ——, 99 S.Ct.

at 1473, 59 L.Ed.2d at

[8] If prosecutorial conduct is so fun-

damentally unfair as to deny a defend-

ant’s constitutional rights, dismissal of

the tainted indictment is warranted.

See, e. g., United States v. Graves, 5 Cir.

1977, 556 F.2d 1319, cert. denied, 1978,

435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d

516; United States v. McCord, 1974, 166

U.S.App.D.C. 1, 15-17, 509 F.2d 334,

348-51, cert. denied, 1975, 421 U.S. 930,

95 S.Ct. 1656, 44 L.Ed.2d 87. In this

case, the government’s attempts to

conceal its investigation from the de-

fendants because of McInnis’s status as a

15. Of course, speculation in this opinion does

not prove the scope of the grand jury investi-

gation or the materiality of the witnesses’

statements. These tasks are for the govern-

ment at trial. E. g., United States v. Cosby, 5

Cir. 1979, slip op. 7111, 7113, F.2d ——,

38

er rn ne rn ee rr en ne eee :

law enforcement officer may have been

ill-considered; however, its conduct,

which we have outlined fully in note 4,

did not cross the constitutional line.

The district court also relied upon

what it found to be abuse of the grand

jury process. The court referred to the

pf ¢y reasons enunciated in United

States v. Doss, 6 Cir. 1977, 563 F.2d 265,

to justify its dismissal of the perjury

counts. In Doss, the court found that

the defendant’s rights to due process and

to counsel were violated by the question-

ing of a witness before the grand jury

on a matter for which he had already

been indicted by that body. Accord,

United States v. Mandujano, 1976, 425

U.S. 564, 594, 96 S.Ct. 1768, 1785, 48

L.Ed.2d 212, 232 (Brennan, J., concur-

ring). However, the court noted the

“distinction of great moment between

grand jury questioning of a _ witness

(even one who might subsequently be in-

dicted) and grand jury questioning of an

indicted defendant on the subject of the

crime with which he is charged.” Doss,

supra, 563 F.2d at 278. The prosecutor

and the grand jury may have thought it

likely that McInnis and Parada would be

indicted; however, there is no evidence

in the record that the indictment had

actually been issued at the time that the

two testified."* Indeed, the testimony of

McInnis and Parada might have per-

suaded the grand jury not to indict them

or the grand jury might have concluded

eventually as we have, that the conduct

16. We note, however, that McInnis and Parada

testified on the morning of June 7, 1978, the

same day that the first indictment (for conspir-

acy to kidnap only) was filed. The filing

stamp does not indicate the precise time of

filing. We assume, without deciding, that the

indictment was prepared and filed after McIn-

nis and Parada testified to the grand jury.

7387 UNITED STATES v. McINNIS

they planned was not a federal offense.

“A grand jury’s investigation is not fully

carried out until every available clue has

been run down and all witnesses exam-

ined in every proper way to find if a

crime has been committed.” United

States v. Cuesta, 5 Cir. 1979, 597 F.2d

908, 921 quoting United States v. Stone,

2 Cir. 1970, 429 F.2d 138, 140.

In short, we cannot agree that the per-

jury indictments should have been dis-

missed as a matter of law. The govern-

ment must be given the opportunity to

prove at trial that the defendants were

guilty as charged.

IV. Conclusion

For the reasons discussed above, the

motion to dismiss the appeal is DE-

NIED; the dismissal of the conspiracy to

kidnap count of the indictment is AF-

FIRMED; and the dismissal of the per-

jury counts is REVERSED. The case is

REMANDED for trial of the perjury

counts only.

AFFIRMED IN PART; REVERSED

AND REMANDED IN PART.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

39

|

United States Court of Appeals

For the Fifth Circuit

October Term, 19

No. 78-3277

D. C. Docket No. B-78-333-S

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

OSCAR McINNIS and PATRICIA PARADA,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Texas

Before GOLDBERG, FAY and RUBIN, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Southern

District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the order of the District

Court appealed from, in this cause be, and the same is here-

by, affirmed as to the conspiracy to kidnap count, and _re-

versed as to the perjury counts; and that this cause be, and

the same is hereby remanded to the said District Court in ac-

cordance with the opinion of this Court.

September 10, 1979

ISSUED AS MANDATE:

APPENDIX A-2

40

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

November 19, 1979

Gilbert F. Ganucheau Tel 504-589-6514

Clerk 600 Camp Street

New Orleans, La. 70130

TO ALL PARTIES LISTED BELOW:

No. 78-3277 — USA V. OSCAR MCGINNIS AND PATRICIA PARADA

Dear Counsel:

This is to advise that an order has this day been entered de-

nving the petition( ) for rehearing, and no member of the

panel nor Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc (Rule

35, Federal Rules of Appellate Procedure; Local Fifth Circuit

Rule 10) the petition( ) for rehearing en bane has also been

denied.*

See Rule 41, Federal Rules of Appellate Procedure for issu-

ance and stay of the mandate.

Very truly yours,

GILBERT F. GANUCHEAU, Clerk

By Sally Hayward

Deputy Clerk

*On behalf of Oscar MelInnis.

Mr. John Potter

Mr. Frank Maloney

Mr. Ramon Garcia

APPENDIX A-3

4]

ar ates Ol TELM Nabe a bee

APPENDIX B

MEMORANDUM AND ORDER

42

1B

MEMORANDUM AND ORDER

(Caption Omitted)

This Court on September 8, 1978 in Brownsville,

Texas heard the motion for dismissal of the above named

defendants. All parties had announced ready. Evidence

and arguments were presented by all parties. This Court

ruled from the bench, dismissing all counts of the super-

ceding indictment in this case as to both defendants. This

Memorandum and Order is the ruling of the Court.

ES

Defendant McInnis is the district attorney for Hidalgo

County, Texas. Defendant Patricia Parada is a client of

McInnis. (Hidalgo County evidently permits its district

attorney to maintain a private practice) Noe Villa-

nueva is the ex-husband of Patricia Parada; Villanueva

had been in the Hidalgo County jail during part of the

events made the basis of the indictment and was an

agent of the government. Daniel Rodriguez was a prisoner

in the Hidalgo County jaii during all of the relevant

events herein and was throughout those events an agent

of the government. Likewise, Brig Marmelejo, the Sheriff

of Hidalgo County, was an agent of the government. The

rather bizarre fact situation appears well documented in

written transcripts of taped conversations attached to

motions to dismiss and answers to those motions. Both

Villanueva and Rodriguez were equipped with sound

recording devices during their various conversations with

the defendants. It is not clear how Rodriguez and Mc-

~

43

Nien an a AEN —

2B

Innis met or who actually proposed the murder of Villa-

nueva, but it is quite clear that Rodriguez offered to ar-

range for a friend of his, Cantu, a policeman in Reynosa,

Mexico, to murder Villanueva if Vallanueva could be

persuaded to go to Reynosa. McInnis accepted Rodriguez’

seemingly simple solution to his malevolence toward

Villanueva. Defendant Parada was used to induce Villa-

nueva to go to Reynosa, Mexico to discuss his visitation

rights.

Il.

The taped conversation between Parada and Villa-

nueva reveals that Villanueva suggested Reynosa as the

meeting place to which she agreed. Villanueva was to

travel alone to Reynosa and was to provide his own

transportation.

The plan to murder Villanueva did not contemplate a

taking or holding of Villanueva against his will and then

a transporting of the victim against his will or under

false pretenses in foreign commerce. Both the transport-

ing across state lines and the holding against the vic-

tim’s will are necessary elements of the crime of kid-

napping. U. S. v. McBryar, 553 F.2d 433 (Sth Cir.

1977). The government did not address the issue of

holding, but did attempt to overcome the deficiency of

the transportation element by contending the 18 U.S.C.

§ 2(b) imputes Vilanueva’s transportation of himself to

Reynosa to McInnis and Parada. For an example of the

appropriate and an analogous application of 18 U.S.C.

§ 2(b) imputes Villanueva’s transportation of himself to

347 U.S. 1 (1954), wherein a fraudulently obtained

California check was presented to a Texas bank for

44

3B

collection, which act resulted in the check being mailed to

California. The Pereira court held that “[w]here one does

an act with knowledge that the use of the mails will

follow in the ordinary course of business, or where such

use can reasonably be foreseen, even though not actually

intended, then he ‘causes’ the mails to be used” within

the meaning of the mail fraud statute 18 U.S.C. § 1341.'

Id at 362. The government’s application of Pereira to

the facts of this case is inapposite. Had Parada and Mc-

Innis caused someone else to transport Villanueva

against his will or under false pretenses to Mexico, then

the Pereira rationale would work to attribute Villa-

nueva’s transportation to the defendants. Also, had

Parada and MclInnis coniined Villanueva in a box and

had him transported by an innocent carrier, such as a

train or bus, then the defendants would have caused

Villanueva’s foreign transportation within the meaning of

18 U.S.C. § 2(t). The requisite elements of kidnapping

herein are missing. The defendants’ motion to dismiss

was granted on the grounds of legal impossibility due to

this Court being without jurisdiction of a crime beyond

the parameters of federal law.

II.

The perjury counts of this indictment as to both de-

fendants were dismissed for several reasons. The first

reason related to this Court’s holding that Count One

of the indictment does not state nor does the evidence

show a crime falling within the jurisdiction of this

Court. The Court being without jurisdiction it follows

1. 18 U.S.C. § 1341 required proof of a scheme to defraud and

then mailing of a letter, etc., for the purpose of executing the scheme.

Pereira at 362.

45

Se ee ee et ee

4B

that the grand jury was also without jurisdiction to con-

sider the matter. That being the case, any statements

made before the grand jury would lack materiality to

any legitimate area of inquiry for the grand jury, ma-

teriality being a requisite of the crime of perjury. The

making of false declarations before a grand jury on an

issue material only to an investigation beyond its juris-

diction or authority does not constitute perjury. United

States v. Jacobs, 543 F.2d 18 (2nd Cir. 1976), cert-

iorari denied 431 U.S. 929.

The second reason and perhaps more importantly is

that in bringing the two defendants before the grand jury

the government was violative of the doctrine of funda-

mental fairness and the internal guidelines of the Justice

Department. It is the internal policy of the Justice De-

partment to advise a grand jury witness: (1) of the

general subject matter of the grand jury’s inquiry (to the

extent that such disclosure does not compromise the

progress of the investigation or otherwise inimically af-

fect the administration of justice), (2) of his right to

refuse to answer any question if a truthful answer to the

question would tend to incriminate him, (3) that any-

thing the witness does say may be used against him, and

(4) that the grand jury will permit the witness a reason-

able opportunity to consult with an attorney outside the

grand jury room. This notification is to be contained on

a printed form that will be appended to all grand jury

subpoenas. The Justice Department warns that, while

it is a common practice to have target witnesses testify

before the grand jury, it may appear unfair in certain

cases. Therefore, a target witness should be given an

opportunity to appear voluntarily. If voluntary appear-

ance cannot be obtained, the target witness should be

46

5B

subpoenaed only after the grand jury and U. S. Attorney

or the responsible Assistant Attorney General have ap-

proved the subpoena. Three criteria are to be applied

in making the decision to approve a subpoena: (1) the

importance to the successful conduct of the grand jury’s

investigation of the target’s testimony or other informa-

tion sought; (2) whether the substance of his testimony

or other information could be provided by other wit-

nesses; and (3) whether the questions the prosecutor and

the grand jury intend to ask or the other information

sought would be protected by a valid claim of privilege.

The facts show violation of all of the above rules. The

afternoon before he was to appear before the grand jury,

defendant McInnis was subpoenaed. Absent from the

subpoena was the custemary warning to a “target” wit-

ness. When McInnis asked the supervisor of U.S. Mar-

shals, who served the subpoena, on what matter the

grand jury desired his testimony, the marshal responded

that he did not know but guessed that it concerned some

narcotics cases. Defendant McInnis made further efforts

to learn the subject matter of the grand jury investigation

by trying to contact some knowledgeable person in the

U.S. Attorney’s office in Brownsville. However, that office

had been instructed to answer that no one with any

knowledge was available. The next morning, four F.B.I.

agents and two U.S. Marshals served a subpoena in-

stanter to appear before the grand jury on Patricia Parada,

who was in school at Pan American University in Edin-

burg, Texas. Parada was dissuaded from calling an

attorney and was told that her attorney, Mr. MclInnis,

was waiting for her at the grand jury. She was finally

allowed to make one call in English to her mother. She

was then escorted to the U.S. Courthouse in Brownsville

47

SO Oe ee ee oe eno

6B

under the pretext of some great rush to testify before the

grand jury. Her subpoena also failed to state that she

was a target of the grand jury investigation nor did her

subpoena inform her of her rights as a target witness.

The government intended that the defendants be ignor-

ant of each other’s grand jury subpoena and that they

both be ignorant of their own status as a target witness.

The government claims that it did not issue the usual

target witness warnings because it feared compromise

to the investigation, flight of the defendants, and en-

dangerment of witnesses. There is no evidence to support

the government’s excuse for lack of warning. The taped

conversations provided the substantive evidence for the

crime; it is doubtful that the defendants would leave

family, friends and jobs to flee to Mexico; the two govern-

ment witnesses were safe from harm—Noe Villanueva’s

whereabouts being known only to the government and

Daniel Rodriguez being safely in the hands of Brig Mar-

melejo, who was cooperating with the government. Had

the defendants been given the opportunity to consult with

an attorney prior to their appearance before the grand

jury it is predictable that they would not have testified

before the grand jury.

Even more unfair than the procedures by which Parada

and McInnis were brought before the grand jury was the

fact that they were compelled to appear and give testi-

mony. There was no need for the defendants to appear

before the grand jury. The grand jury had already heard

the tapes uvfore the defendants’ appearance. The govern-

ment had the benefit of the testimony of Daniel Rod-

riguez, Noe Villanueva and Sheriff Brig Marmelejo, all

agents of the government. None of the three criteria of

the Justice Department for calling a target witness to

48

7B

testify was present—(1) the grand jury could return an

indictment without the defendants’ testimony, (2) the

same information was provided by the taped conversa-

tions, and (3) the questions to be asked of McInnis and

Parada would be protected by a valid claim of privilege.

The only reason the government could give for calling

the defendants before the grand jury was to learn their

motive for their planned killing of Villanueva, a detail

. unnecessary to proving the crime of kidnapping. The

evidence shows that the real purpose for calling Parada

and McInnis before the grand jury was to get them to

perjure themselves. Gail Simmons, a reporter, testified

that Brig Marmelejo, the Sheriff of Hidalgo County, said

the purpose of subpoenaing defendant McInnis was so

that he could perjure himself before the grand jury.

Further, the first indictment returned against the defend-

ants charged only a conspiracy to kidnap. Thereafter, the

defendants filed their motion for dismissal based on juris-

dictional grounds. The government then returned a super-

ceding indictment with the perjury counts appended. The

government was using the crime of perjury to insure that

the defendants did not slip away. This is not the purpose

of a grand jury.

The government cannot manufacture federal jurisdic-

tion by calling a conspiracy to murder a conspiracy to

kidnap for the purpose of seeking perjury indictments of

targets of their investigations. This Court will not con-

done such inquisitorial tactics. For policy reasons similar

to those of the court in U.S. v. Doss, 563 F.2d 265 (6th

Cir. 1977), this Court finds that the facts herein show

an abuse of the grand jury process.

49

8B

It is, therefore,s ORDERED, ADJUDGED and DE-

CREED that the indictment in this case is dismissed as

to all counts and as to both defendants.

Signed at Houston, Texas, this 15th day of September,

1978.

/s/ ROBERT O’CONOR, JR.

Robert O’Conor, Jr.

United States District Judge

50

NO. CR-652-78-D

THE STATE OF TEXAS § IN THE 206TH DISTRICT

COURT

APPENDIX C :

VS. § OF

APPENDIX C-1: Order on Defendant’s Motion to Suppress

in State Court OSCAR B. MCINNIS § HIDALGO COUNTY,

TEXAS

APPENDIX C-2: State’s Motion to Dismiss and Order in State

Court

a en ee ee es

ORDER ON DEFENDANT’S MOTION TO SUPPRESS

ime sn

On this the 5th day of January, 1979, came on to be

heard the Defendant’s Motion To Suppress all tape record-

ings and transcriptions thereof of conversations between

Daniel Rodriguez and the Defendant Oscar McInnis, and

all tape recordings and_ transcriptions thereof of | the

Defendant's testimony before the Grand Jury of the United

States District Court for the Southern District of Texas,

Brownsville Division, and the Court heretofore on Novem-

ber 13, 14 and 15 of 1979 having heard evidence thereof,

having had submitted to it briefs by both the State and the

Defendant makes the following findings of fact and conclu-

sions of law:

Se

That Daniel Rodriguez was at all times relevant to this

| indictment acting as an agent for the Hidalgo County Sher-

iff and/or as an agent for other law enforcement agencies,

and as such agent Daniel Rodriguez originated the alleged

criminal plot in his own mind which was no more than an

imaginary scheme created by said Rodriguez for the sole

purpose of inducing and entrapping the Defendant into vio-

lating the law, and that such alleged violation of Article

51 52

~

15.03 of the Texas Penal Code by the Defendant would not

have occurred except for such inducement;

The Court therefore finds as a matter of law that en-

trapment was established by the Defendant in violation of

Article 8.06 of the Texas Penal Code and that all tape re-

cordings and transcriptions thereof of conversations —be-

tween Daniel Rodriguez and the Defendant were obtained

in violation of said article, and that said tape recordings

and transcriptions thereof as per the provisions of Article

38.23 of the Texas Code of Criminal Procedure should) be

suppressed.

It is therefore ORDERED, ADJUDGED AND DECREED

by the Court that said tape recordings and transcriptions

therefore shall be and they are hereby suppressed, and the

Court directs that no evidential use of them shall be made

against the Defendant on the trial of any criminal case.

DONE. AND ENTERED this the 5th day of January,

1979.

VERNON D. HARVILLE

Vernon D. Harville,

Judge Presiding

DATE: JAN 29 1979

A true copy I certify

LUCILA TREVINO

District Clerk, Hidalgo County, Texas

By GLORIA EDONER Deputy

APPENDIX C-1

53

i a a tn eR NR TIE

SEE hie NON OAIMINT 9 te a oe

NO. CR-652-78-D

THE STATE OF TEXAS ) IN THE 206TH DISTRICT

COURT

VS. ) OF

OSCAR B. McINNIS ) HIDALGO COUNTY,

TEXAS

STATE’S MOTION TO DISMISS

TO THE HONORABLE JUDGE VERNON D. HARVILLE,

SPECIAL JUDGE IN THE ABOVE CAUSE:

Now comes STATE OF TEXAS, by and through its Ap-

pointed Special Prosecutors, MICHAEL J. HINTON and

PRESTON E. HENRICHSON, and presents this Motion to

Dismiss for the following good and sufficient reasons:

That on November 13, 14 and 15, 1978 an extensive hear-

ing was conducted by this Honorable Court concerning the

entrapment issue and that following the submission of briefs

the Court, on January 5, 1979, having ruled that the Defend-

ant, OSCAR B. MCINNIS, was entrapped as a matter of law,

and

The Court, based upon said ruling of entrapment (as a

matter of law) thereafter having suppressed all tapes obtained

as evidence in the case, and

The Court, having indicated upon said ruling that if the

above cause proceeded to trial (without the tapes) that the

jury, at the close of the evidence, would be instructed that

there existed in said cause entrapment as a matter of law,

therefore directing and requiring the jury to enter «+ verdict of

not guilty;

54

THEREFORE, based upon said rulings any further attempt

at prosecution in this cause would serve no useful purpose

but would in fact and in effect be nullified by said rulings, it

is respectfully requested that this cause be dismissed.

Respectfully submitted,

MICHAEL J. HINTON

Preston E. Henrichson Michael J. Hinton

222 West Cano 4200 Westheimer, Suite 290

Edinburg, TX 78539 Houston TX 77027

512/383-7453 713/961-0777

SPECIAL PROSECUTOR SPECIAL PROSECUTOR

FOR FOR

STATE OF TEXAS STATE OF TEXAS

ORDER

The above and foregoing Motion to Dismiss having this date

been presented to the Court, and after having considered same,

the Court is of the opinion that same should be granted in all

things and that the matter is therefore dismissed.

SIGNED and ENTERED this 22d day of January, 1979.

VERNON HARVILLE

Hon. Vernon D. Harville

Special Judge

DATE JAN 29 1979

A true copy I certify

LUCILA TRAVINO

District Clerk, Hidalgo County, Texas

By GLORIA EDONER Deputy

APPENDIX C-2

55

Bot er meme ee et ere res 2 Oa lal

ne aaah ben olsen

Pore ees

YABB

APPENDIX D

UNITED STATES ATTORNEYS’ MANUAL

Internal Guidelines for Trea.ment

of Target Witnesses

56

INTERNAL GUIDELINES

9-11.250 Advice of “Rights”

The Supreme Court recently declined to decide whether a

grand jury witness must be warned of his Fifth Amend-

ment privilege against compulsory self-incrimination before

his grand jury testimony can be used against him. See

United States v. Washington, Sup. Ct. No. 74-1106 (May

23, 1977) at 5 & 10; United States v. Wong, Sup. Ct. No.

74-635 (May 23, 1977); United States v. Mandujano, 425

U.S. 564, 582 n.7 (1976). It is important to note, however,

that in Mandujano, the Court took cognizance of the fact

that federal prosecutors customarily warn “‘targets” of their

Fifth Amendment rights before grand jury questioning be-

gins. United States v. Mandujano, supra. Similarly, in

Washington the Court pointed to the fact that Fifth

Amendment warnings were administered as negating “‘any

possible compulsion to self-incrimination which might

otherwise exist” in the grand jury setting. United States v.

Washington, supra at 7.

Notwithstanding the lack of a clear constitutional im-

perative, it is the internal policy of the Department to

advise grand jury witnesses of the following matters: 1) the

general subject matter of the grand jury’s inquiry (to the

extent that such disclosure does not compromise the

progress of the investigation or otherwise inimically affect

the administration of justice) 2) that the witness may refuse

to answer any question if a truthful answer to the question

would tend to incriminate him; 3) that anything that the

witness does say may be used against him; and 4) that the

grand jury will permit the witness the reasonable opportu-

nity to step outside the grand jury room to consult with

counsel if he desires. This notification will be contained on

a printed form (to be provided by the Department) which

will be appended to all grand jury subpoenas. In addition,

these “‘warnings” should be given by the prosecutor on the

record before the grand jury when necessary and appropri-

ate (e.g., when witness has not been subpoenaed), and the

57

ono stan

Cain SOOT AP TTS IAIN ROE NaS De Senthil Sha

Ae Ne OR A a PP HS Wel ND ADR Mover! ter.

Pb teal i

oe

witness should be asked to affirm that the witness under-

stands them.

Moreover, although the Court in United States v. Wash-

ington, supra, held that “targets’’ of the grand jur” ’s inves-

tigation are entitled to no special warnings relative to their

status as “‘potential defendant(s) in danger of indictment,”

we will continue the long-standing internal practice of the

Department to advise witnesses who are known “targets” of

the investigation (as defined in 9-11.250, supra) that their

conduct is being investigated for possible violation of

federal criminal law. This supplemental “warning’’ wil! be

administered on the record when the target witness is

advised of the matters discussed in the preceding

paragraph.

A “subject” of an investigation is a person whose

conduct is within the scope of the grand jury’s_in-

vestigation. A “target” is a person as to whom the

prosecutor or the grand jury has substantial evidence

linking him to the commission of a crime and who, in the

judgment of the prosecutor, is a putative defendant.

9-11.251 Subpoenaing Targets of the Investigation

A grand jury may properly subpoena a subject or a target

of the investigation and question him about his involvement

in the crime under investigation. (United States v. Wong,

Sup. Ct. No. 74-635 at 6 n.8 (slip opinion) (May 23, 1977);

United States v. Washington, Sup. Ct. No. 74-1106 at 9 n.6

(slip opinion) (May 23, 1977); United States v. Mandujano,

425 U.S. 564, 573-75 & 584 n.9 (1976); United States v. Dio-

nisio, 410 U.S. 1, 10 n.8 (1973); Kastigar v. United States,

406 U.S. 441, 446 (1972); Murphy v. Waterfront Com-

mission of New York Harbor, 378 U.S. 52, 102 (1964) (con-

curring opinion); Brewn v. Walker, 161 U.S. 591, 610

(1896); United States v. Friedman, 445 F.2d 1076 (9th Cir.

1971); United States v. Capoldo, 402 F.2d 821 (2d Cir.

1968); United States v. Scully, 225 F.2d 113 (2d Cir.), cert.

58

denied, 350 U.S. 897 (1955)). However, in the context of par-

ticular cases such a subpoena may carry the appearance of

unfairness. Because the potential for misunderstanding is

great, before a known “target” (as defined in 9-11.250,

supra) is subpoenaed to testify before the grand jury about his

involvement in the crime under investigation, an effort should

be made to secure his voluntary appearance. If his voluntary

appearance cannot be obtained, he should be subpoenaed

only after the grand jury and U.S. Attorney or the responsible

Assistant Attorney General have approved the subpoena. In

determining whether to approve a subpoena for a “target,”

careful attention will be paid to the following considerations:

1) the importance to the successful conduct of the grand

jury’s investigation of his testimony or other information

sought; 2) whether the substance of his testimony or other in-

formation sought could be provided by other wintesses; 3)

whether the questions the prosecutor and the grand jurors

intend to ask or the other information sought would be pro-

tected by a valid claim of privilege.

59

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