# Petition — McInnis v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1567%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 962 ## Text ( 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. “§ 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 the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1567%3A1. Public record. Not legal advice.