Petition for Writ of Certiorari — Bigley v. United States

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56-1444 [ft Prony

MAR 8 1987

No. ________*_ J‘ gosemwe. spawou |

jn The |

Supreme Court of the Anited States

@ctober Term, 1986

MICHAEL BIGLEY, GENE AMICARELLI

and SALEEM AZAD,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT M. MORGAN ALAN G. GILCHRIST

Counsel of Record FRIMET, BELLAMY

2180 Penobscot Building & GILCHRIST, P.C.

Detroit, Michigan 48226 333 West Fort Street, Suite 2000

(313) 961-7070 Detroit, Michigan 48226

Attorney for Petitioners (313) 964-2710

Amicarelli and Bigley Attorney for Petitioner Azad

March 6, 1987

Interstate Brief & Record Co., Suite 731, David Whitney Building, Detroit, MI 48226

(313) 962-8745

QUESTIONS PRESENTED

On November 30, 1984, Petitioners and eight (8) other

persons were charged in a multi-count indictment with

the offense of mail fraud contrary to Title 18 United

States Code Section 1341. Petitioners Bigley and

Amicarelli are chiropractors. Petitioner Azad is an allo-

pathic physician specializing in radiology. Each Peti-

tioner was associated with a medical/chiropractic clinic

located in Highland Park, Michigan. There were

155 counts in the indictment and the essence of

the charge was that all Defendants were associated

with the clinic which engaged in the practice of adminis-

tering unnecessary medical tests which were billed

to Blue Cross/Blue Shield of Michigan. Petitioners

Amicarelli and Bigley were charged only in Counts

118 through 155. Petitioner Azad was charged in all

counts.

Petitioners Bigley and Amicarelli had been sub-

poenaed to appear before the grand jury to provide

testimony on April 4, 1984 and April 5, 1984. They

appeared and testified without an attorney. At the time

they were both engaged in the practice of chiropractic in

Orlando, Florida. Subsequent to indictment Petitioner

Amicarelli’s counsel was provided a copy of his grand

jury testimony. Attached to it, apparently through in-

advertence, were nine (9) pages of grand jury commen-

tary including statements by the Assistant United States

Attorney. This inadvertent disclosure caused Petitioners

to file a Motion to Dismiss the Indictment for Grand

Jury Impropriety and Motion for Disclosure Relating to

Grand Jury Proceedings. Each motion was denied by the

District Court.

These facts raise these questions:

DID COMMENTS BY AN ASSISTANT UNITED STATES

ATTORNEY BEFORE THE GRAND JURY IMPINGE UPON

PETITIONERS’ CONSTITUTIONAL RIGHT TO AN UN-

BIASED, INDEPENDENT AND PROPERLY INFORMED

GRAND JURY?

Il.

DID THE AFOREMENTIONED COMMENTS CONSTITUTE

GROUNDS FOR DISCLOSURE OF MATTERS OCCURRING

BEFORE THE GRAND JURY PURSUANT TO RULE 6(C)(ii),

FEDERAL RULES OF CRIMINAL PROCEDURE?

LIST OF PARTIES

The parties to this proceeding in the United States

Court of Appeals for the Sixth Circuit were as follows:

1. Michael Bigley, Defendant-Appellant.

2. Gene Amicarelli, Defendant-Appellant.

3. Saleem Azad, Defendant-Appellant.

4. United States of America, Plaintiff-Appellee.

ill

TABLE OF CONTENTS

ee os iG ee 6 eee 6 8 ew Oe

ES ee a ae

ee pa ce te weet

ee a

Constitutional Provision Involved ............

Federal Rule of Criminal Procedure ...........

SSNS

Reasons for Granting the Writ:

IMPROPER PROSECUTORIAL COMMENT BE-

FORE THE GRAND JURY WHICH IMPLICATES

THE CONSTITUTIONAL REQUIREMENT THAT

A GRAND JURY MUST ACT IN AN UNBIASED,

INDEPENDENT AND INFORMED MANNER RE-

QUIRES THE ACTIVE SUPERVISION OF THIS

COURT IN ORDER TO PRESERVE THE INTEG-

RITY OF THE GRAND JURY PROCESS AND PRE-

VENT DIVERSION OF THE GRAND JURY FROM

ITS CHERISHED AND HISTORICAL ROLE AS A

“PROTECTIVE BULWARK BETWEEN THE ORDI-

NARY CITIZEN AND THE OVER ZEALOUS

ga kid ak we 6 ke Oe Oe

IMPROPER PROSECUTORIAL COMMENT BE-

FORE THE GRAND JURY CONSTITUTES ADE-

QUATE GROUND FOR DISCLOSURE OF OTHER

MATTERS OCCURRING BEFORE THE GRAND

JURY PURSUANT TO RULE 6(C)(ii), FEDERAL

RULES OF CRIMINAL PROCEDURE... . .

Tn ge wae we

TABLE OF AUTHORITIES

Page

Decisions of this Court:

Costello v United States, 350 U.S. 359 (1956) .... 6

United States v Dionisco, 410 U.S. 1 (1973) ..... 4

United States v Mechanik, __ U.S. __ (1986) .. 9, 16, 17

Wood v Georgia, 370 U.S. 375 (1962) ......... 4-5

Decisions cf the Court of Appeals:

United States v Estepa, 471 F2d 1132 (2d Cir. 1972) 5

United States v Fisher, 455 F2d 1101 (2d Cir. 1972) 13

United States v Griffith, 756 F2d 1244 (6th Cir.

1985), cert denied, 106 SCt 114 (1985) ...... 6

United States v Hogan, 712 F2d 757 (2d Cir. 1983) 5, 13

United States v Jacobs, 547 F2d 772 (2d Cir. 1976),

cert denied, 437 U.S. 31 (1978) ........... 5

United States v Samango, 450 FSupp 1097

(D. Hawaii 1978), aff'd, 607 F2d 827 (9th

Re EPS eatats alg aia a's) a eae eae ks 10, 15

Decisions of State Courts:

Demido v Attorney General, 100 Mich App 254

Rr ste erg Boa eck, coy at a at et see an a a 8

Constitutions:

U.S. Constitution, Fifth Amendment ..... 2, 3 if

Federal Rules of Criminal Procedure:

Federal Rules of Criminal Procedure,

rte cet re Or eet ee re oe 2, 3, 15

Page

Other Materials:

U.S. Department of Justice, Narcotic and Danger-

ous Drug Section Monograph “Federal Grand

Jury Practice Manual” (1983) ........... 9-10

United States Attorney’s Manual Title 9, Chapter

11, page 12

In The

Supreme Court of the Gnited States

October Term, 1986

MICHAEL BIGLEy, GENE AMICARELLI

and SALEEM AZAD,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The Per Curiam opinion of the Court of Appeals was

filed on December 5, 1986. It is reproduced in the

Appendix to this Petition at pp. A-1-A-10. The opinion

was not recommended for publication. However, the

government filed a formal motion to publish the opinion

in part, because of the frequency in which grand jury

abuse issues are raised in the Eastern District of Mich-

igan. The government's motion is reproduced in the

Appendix at pp. A-il-A-12. On January 8, 1987 the

Court of Appeals granted the government's motion.

Petitioners filed a Petition for Rehearing and Sugges-

tion for Rehearing En Banc which was denied on jan-

uary 19, 1987. The Court of Appeals’ order is reproduced

in the Appendix at p. A-13.

JURISDICTION

The judgment of the Court of Appeals was entered on

December 5, 1986. Petitioners’ request for a rehearing

and suggestion for rehearing en bane was denied on

January 19, 1987. This Petition has been filed within sixty

(60) days of that date.

This Court's jurisdiction is invoked under 28 U.S.C.

Section 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the United States Constitu-

tion provides:

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy

of life or limb; 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 ot law; nor shall private property be

taken for public use, without just compensation.”

FEDERAL RULE OF CRIMINAL PROCEDURE

Rule 6(e)(2), Federal Rules of Criminal Procedure

provides:

“A grand juror, an interpreter, a stenographer,

an operator of a recording devise, a typist who

transcribes recorded testimony, an attorney for

the government, or any person to whom disclo-

sure is made under Paragraph (3)(A)(ii) of this

subdivision shall not disclose matters occurring

before the grand jury, except as otherwise pro-

vided in these rules. No obligation of secrecy

may be imposed on any person except in accord-

ance with this rule. A knowing violation of Rule

6 may be punished as a contempt of court.”

Rule 6(e)(3)(C)(ii) provides:

“Disclosure otherwise prohibited by this rule of

matters occurring before the grand jury may also

be made —

“(ii) When permitted by a court at the request of

the defendant, upon a showing that grounds

may exist for a motion to dismiss the indict-

ment because of matters occurring before

the grand jury.”

STATEMENT OF THE CASE

On November 30, 1984, Petitioners and eight (8) other

persons were charged in a multi-count indictment with

the offense of mail fraud contrary to Title 18 United

States Code Section 1341. The indictment is reproduced

in the Appendix at pp. A-14-A-28. Petitioners filed a

Motion to Dismiss the Indictment for Grand Jury Impro-

priety and Motion for Disclosure Relating to Grand Jury

Proceedings. The United States District Court denied the

motions. Petitioners began a lengthy jury trial and after

several weeks entered conditional guilty pleas pursuant

to Rule 11(a)(2), Federal Rules of Criminal Procedure

allowing them to preserve their right to challenge the

previously described pretrial rulings. Petitioner Amicarelli

plead guilty to a single count. Petitioners Azad and Bigley

each plead guilty to two counts. All other counts were

dismissed and the maximum terms of possible imprison-

ment were limited to one year, sixteen months and

eighteen months respectively.

Petitioners appealed to the Sixth Circuit Court of

Appeals. Their appeal and Petition for Rehearing were

denied.

REASONS FOR GRANTING THE WRIT

IMPROPER PROSECUTORIAL COMMENT BEFORE THE

GRAND JURY WHICH IMPLICATES THE CONSTITU-

TIONAL REQUIREMENT THAT A GRAND JURY MUST

ACT IN AN UNBIASED, INDEPENDENT AND INFORMED

MANNER REQUIRES THE ACTIVE SUPERVISION OF THIS

COURT IN ORDER TO PRESERVE THE INTEGRITY OF THE

GRAND JURY PROCESS AND PREVENT DIVERSION OF

THE GRAND JURY FROM ITS CHERISHED AND HIS-

TORICAL ROLE AS A “PROTECTIVE BULWARK BETWEEN

THE ORDINARY CITIZEN AND THE OVER ZEALOUS

PROSECUTOR”.

In United States v Dionisio, 410 U.S. 1, 17 (1973), this

Court noted that the grand jury’s historical role is that of

a “protective bulwark between the ordinary citizen and

the over zealous prosecutor . . .” In Wood v Georgia, 370

U.S. 375, 390 (1962), Mr. Chief Justice Warren, writing

the opinion for the Court, described the function of a

grand jury with respect to its protection of the rights of

citizens, in stronger terms, stating:

“Historically, this body has been regarded as a

primary security to the innocent agaiist hasty,

malicious and oppressive prosecution; it serves

the invaluable function in our society of standing

between the accuser and the accused, whether

the latter be an individual, minority group, or

other, to determine whether a charge is founded

upon reason or was dictated by an intimidating

power or by malice and personal ill will.”

The Fifth Amendment therefore requires that a grand

jury act in an informed, independent and unbiased man-

ner. These critical tasks, however, cannot be achieved in

the absence of unbiased prosecuting officials whose con-

cern for justice transcends all considerations other than

those devoted co the sanctity of the grand jury process.

The importance of the grand jury function, as well as

the “gain in prosecutor’s influence over grand juries”,

requires the courts to strictly scrutinize a prosecutor's

conduct in obtaining an indictment. See e.g. United

States v Hogan, 712 F2d 757, 759 (2d Cir. 1983). More-

over, where a prosecutor departs from normal practices

and governing principles of the law intended to protect

all citizens before a grand jury, dismissal may lie for

prosecutorial misconduct, based upon the supervisory

power of the courts. United States v Estepa, 471 F2d 1132

(2d Cir. 1972); United States v Jacobs, 547 F2d 772, 778 (2d

Cir. 1976), cert denied, 437 U.S. 31 (1978).

The American Bar Association Standards Relating to

the Prosecution Function, in particular Standard 3.5(b)

as to Grand Juries, admonishes that a prosecutor should

give due deference to the grand jury’s status as an in-

dependent legal body. A prosecutor should not make

statements or arguments in an effort to influence the

grand jury in a manner that would be inadmissible at

trial before a petit jury. The Standards recognize that a

federal prosecutor's power to influence a grand jury is

great. As a representative of the United States Govern-

ment, a prosecutor possesses potent credibility. There-

fore, when he or she speaks, it must be with the care

that befits the position and duties of the United States

Attorney who holds a special trust.

Neither this Court’s decision in Costello v United States,

350 U.S. 359 (1956) nor any other decision by this Court

invalidate the above articulated principles as they apply

to the grand jury. However, the Sixth Circuit Court of

Appeals has, as demonstrated by this case, established

an intolerable standard which is inconsistent with these

principles and serves no purpose other than to weaken

the bedrock of this historic and constitutionally sanc-

tioned body. This unfortunate circumstance evolves

from earlier Sixth Circuit precedent. See United States v

Griffith, 756 F2d 1244, 1249 (6th Cir.), cert denied, 106

SCt 114 (1985). What the Sixth Circuit refers to as a

“strict standard” has obviously distorted perception of

what type of prosecutorial behavior is appropriate. '

Prior to trial Petitioners, through inadvertence,

received nine (9) pages of commentary during which the

prosecutor was able to generate a host of severely pre-

judicial and improper remarks. Sadly, these included

comments wherein the prosecutor:

1. Gave unsworn testimony to the grand jurors which

purported to summarize the testimony of a prospec-

tive expert witness (Dr. Nelson) who was not called

to testify and who, in fact, was not an expert.

2. Made highly perjorative and derogatory unsworn

statements that Petitioners were guilty of the al-

leged offense under investigation.

3. Made inflammatory and prejudicial unfounded

comments speculating that Petitioners Bigley and

Amicarelli were currently engaged in criminal acti-

' Slip Opinion at page A-4.

“2

vity in the State of Florida at the time of their

appearance and testimony.

4. Made improper statements and arguments in an

effort to influence the judgment of the grand jury.

5. Injected personal opinions of the credibility of

Petitioners Bigley and Amicarelli and another wit-

ness who was later indicted.

Regrettably, the Court of Appeals chose to charac-

terize the offending remarks benignly as a “summary” of

expected testimony: Slip opinion at page A-5. The prose-

cutor’s “summary” of Dr. Nelson’s “statements” and un-

named others was, however, grossly inaccurate and

totally inconsistent with actual trial testimony.*

At trial it was revealed that Dr. Nelson did not even

work at the Hamilton Clinic at the time period involved

in the indictment. He only possessed a limited license

and did not even receive a full license to practice chiro-

practic in Michigan until a year and three months after

he left clinic employment. In fact, he was not an expert

and the government actually objected to defense coun-

sel’s efforts to qualify him as such at trial.

The Court of Appeals also overlooked the fact that Dr.

Nelson’s trial testimony and opinion was considerably

less prejudicial than the inaccurate summary provided to

the grand jury by the prosecutor. Dr. Nelson actually

gave testimony concerning an element of legitimacy at

the clinic by indicating that most of his patients were

“repeat patients, patients who were coming in for main-

tenance care.” Like Petitioners Amicarelli and Bigley, Dr.

Nelson did neurological checks, and performed spinal

adjustments all in the course of seeing an average of

2 Petitioner Amicarelli’s grand jury testimony and the attending

commentary are reproduced in the Appendix at pp. A-29-A-59.

from thirty (30) to forty (40) patients per day. He did

opine that the clinic was not run as professionally as he

thought it should because not everyone wore white and

he felt that everyone should wear white. Also, he felt

that the office staff did not treat patients professionally

and the clinic was not clean since everyone that came in

was smoking and there were several cigarette burns in

the carpet.

Further, the Court of Appeals overlooked the fact that

in Michigan a chiropractor by law is not qualified to give

opinions on the subject of medical necessity. See e.g.

Demido v Attorney General, 100 Mich App 254 (1980). In

short, the prosecutor’s “summary” to the grand jury was

damning; the actual testimony of Dr. Nelson was not.

And Petitioners have always contended that no witness,

expert or otherwise, actually appeared before the grand

jury to give first hand evidence conforming to the prose-

cutor’s “summary”.*’ The prejudice to Petitioners is

obvious since the subject matter of the investigation was

complex and highly technical involving questions con-

cerning the medical necessity of numerous and varying

medical tests and procedures.

Moreover, Petitioners contend that the Court of

Appeals’ opinion has now transformed the word “sum-

mary” into a talisman which renders prejudicial prosecu-

torial comment innocuous. The utilization of such terms

as “summary” by prosecutors to supplant real evidence

is especially dangerous because it necessarily under-

mines grand jury independence and subjects the jury to

manipulation. The Court of Appeals derided Petitioners’

suggestion that the prosecutor’s comments constituted

> The government has never taken issue with Petitioners’ asser-

tion that Nelson never appeared before the grand jury since no

Jencks material was disclosed.

unsworn testimony.* Thus, the Court of Appeals focused

upon one portion of the prosecutor's comments and

characterized it as “preview” of testimony. In so doing,

however, the Court failed to recognize and appreciate

that the overall tenor of the statements constituted asser-

tions of fact. This could be made no more clear than

when the prosecutor stated:

“MR. SOISSON: For example, Dr. Nelson will tell

you everybody got the same test. They were just

routine. There were other people at the clinic

that have been interviewed. They have indi-

cated that it was just routine. Everybody got the

same tests. The record can indicate that everybody

got the same tests.” p. A-55.

It seems unfair and inaccurate in Petitioners’ view for

the Court of Appeals to find that such comments do not

constitute a form of testimony not under oath. Even the

United States Department of Justice takes a contrary

view. Thus, Justice Department publications repeatedly

admonish federal prosecutors to avoid expressing per-

sonal! opinions as to guilt, the strength of the evidence

or credibility of witnesses. United States Department of

Justice, Narcotic and Dangerous Drug Section Mono-

graph “Federal Grand Jury Practice Manual” (1983) at 45.

* It is incongruous that the Court of Appeals found the prose-

cutor’s remarks to be appropriate yet the government actually cited

United States v Mechanik, __ U.S. — (1986), and argued harmless error

as an alternative theory. In the government's view, Petitioners’ con-

ditional guilty pleas rendered harmless any prejudicial conduct im-

pacting upon the grand jury’s charging function. Of course, such an

argument effectively abrogates Rule 11(a)(2), Federal Rules of Crimi-

nal Procedure. Since, however, the government was not forced to

consent to these conditional pleas, any analysis purportedly dealing

with “substantial social costs” has no application here. The govern-

ment also misconstrues the narrow holding in Mechanik and in-

appropriately attempts to extend it beyond a technical violation of

Rule 6 to a constitutional violation involving fundamental fairness

and due process.

In discussing the axiom that a prosecutor cannot act as a

witness before the grand jury, the “Federal Grand Jury

Practice Manual”, supra, observes that the prosecutor

must:

“Be extremely careful in responding to questions

that he or she does not give evidence.” Manual

at 166.

Of course, a prosecutor may effectively give evidence

either under the guise of lengthy leading questions or,

as in this instance, under the guise of responses to

grand jury questions. C.f. United States v Samango, 450

FSupp 1097 (D. Hawaii 1978), aff'd, 607 F2d 827 (9th Cir.

1979). In either case it seems clear to Petitioners that a

grossly inaccurate and incomplete “summary” presented

by a prosecutor not under oath is no less harmful than

the one presented by a government agent or other wit-

ness under oath. In fact, the former is obviously more

insidious since grand jurors are not likely to challenge

an Assistant United States Attorney or question the

accuracy of his comment.

The evidence eventually produced at trial did not con-

form to the prosecutor’s improper “summary”. This is

apparent from the fact that those Defendants charged in

all counts were acquitted on 65 counts and one was ac-

quitted on all counts, Furthermore, the government has

to this day never explained nor did the Court of Appeals

notice that Petitioner Amicarelli was actually charged

with aiding and abetting in certain counts where

patients were seen, examined and received medical

tests or x-rays while Petitioner Amicarelli was off sick

with hepatitis. See at p. A-66. Petitioners’ Sentencing

Memorandum is reproduced at Appendix pp. A-65-

A-72. Moreover, Petitioners contend that the record

shows in this case that the grand jury was not

fully and fairly informed and did not independently

evaluate evidence. This is underscored by the charging

document itself since the indictment contains two (2)

separate counts based on the identical same conduct and

same check. (See Counts 147 and 153 of indictment,

page A-28).

Petitioners contest the notion that the prosecutor's

conduct in the instant case was appropriate. Nor is it

fair to characterize the remarks as “offhand”. The prose-

cutor made no effort to qualify his responses. He gave

lengthy, detailed responses obviously implying famil-

iarity with the “statements” of many witnesses. More-

over, it should have been evident to the Court of

Appeals that the grand jury room is the private preserve

ot the prosecutor. Where he gives detailed answers in-

accurately conveying evidence or makes prejudicial in-

sinuations without basis in fact, it simply runs afoul of

common sense to suggest that such actions do not im-

pinge upon the ability of the grand jury to exercise in-

dependent judgment.

The litmus to gauge the prosecutor's faithfulness to

important Fifth Amendment principles here may first be

found in the prosecutor’s willingness to subpoena Peti-

tioners Bigley, Amicarelli and one other physician who

was later indicted. Petitioners have always noted that it

is contrary to the published policy of the United States

Department of Justice to subpoena a known target of in-

vestigation without providing a supplemental warning

to be administered on the record. See United States

Attorney’s Manual Title 9, Chapter 11, page 12. Peti-

tioners recognize that this Justice Department policy

does not create a procedural right. Yet, Petitioners also

recognize that the apparent willful disregard for the

policy demonstrates a state of mind which in the specific

context of facts herein has probative value on the issue

of intentional grand jury misconduct.

Petitioners Amicarelli and Bigley abide by their belief

that the prosecutor improperly assailed their credibility

as well as injected inflammatory speculation without any

basis in fact that they were engaged in criminal activity

in Florida. The Court of Appeals’ opinion, however,

misconstrues a comment implying misconduct in New

York as an “admonition” curing the reference to possible

criminal conduct in Florida.

“A JUROR: Did this New York thing come up

before?

MR. SOISSON: I never heard of it, that is New

York’s problem.

A JUROR: I don’t know. It might have been an-

other one of those mills if he didn’t think it was

unusual.

MR. SOISSON: I! wouldn’t doubt it a bit. He might

even be operating one in Florida right now.”

p. A-58.

Nor can it be suggested that a fair reading of the

grand jury minutes yields any conclusion other than that

the prosecutor was attacking the veracity of both Peti-

tioners Bigley and Amicarelli immediately after their

testimony. Why else would the prosecutor suggest that

they were “not necessarily selected because of their ver-

acity .. .” p. A-53. And the prosecutor’s disingenuous

remark concerning the circumstance of their appearance

underscores Petitioners’ common sense view of the

record. The prosecutor actually told the grand jury that

Petitioners were selected because the government had

been “unable to contact and interview them before”.

p. A-53. This comment of course makes little sense in

light of the fact the government was obviously able to

contact both Petitioners Bigley and Amicarelli, serve

them a subpoena and they traveled to Detroit from

Orlando, Florida to provide their testimony.

The prosecutor in his response in the District Court

asserted that his damaging commentary was not prejudi-

cial. He also suggested that Petitioners were simply

complaining because he had failed to present all evi-

dence available at the grand jury proceedings. Indeed,

in the District Court the prosecutor suggested that a

grand jury investigation was meant to be “a one-sided

affair”, and the grand jury itself was merely “an inves-

tigative prosecutorial arm of the executive branch of gov-

ernment”. The government’s answer is reproduced in

the Appendix at pp. A-60-A-64. Far from failing to pre-

sent favorable evidence to the grand jury, the prosecutor

not only mischaracterized Dr. Nelson’s information as

previously discussed herein, but more significantly pro-

vided a mountain of his own unsworn conjecture and

opinion which added a false aura of factual support to

the government's case and may well have deceived the

grand jurors. United States v Hogan, supra. Thus, the

prosecutor in both word and action casually ignored and

denigrated important constitutional principles. Quite

frankly, however, “the grand jury is not meant to be the

private tool of a prosecutor”, United States v Fisher, 455

F2d 1101, 1105 (2d Cir. 1972).

The record of improprieties is clear. The prosecutor

testified that the Hamilton Clinic was “. . . nothing more

than a mill . . .” He testified that the clinic was “entirely

unethical . . .” He insinuated racist motives. He testified

that “everybody got the same tests”. He insinuated that

the only reason any patients went to Hamilton Clinic

was to collect money. He testified that all of the persons

going to the clinic were “phony patients”.” And, of

> The overwhelming majority of patients produced at trial, how-

ever, testified that they had legitimate physical problems and valid

symptoms which were far-ranging. See Petitioner Amicarelli’s Sen-

(concluded on page 14)

course, he bolstered his unsworn opinion about un-

necessary medical testing by corroborating it with the

opinion of his own personal and unnamed physician:

“MR. SOISSON: ... You know, I can’t see it

myself. I don’t think my doctor would do that

to me.” p. A-59.

Petitioners respectfully submit, however, it should

never be deemed appropriate for a prosecutor to sup-

plant real evidence with his own personal opinion. The

Court of Appeals, however, chose to view the transcript

of grand jury proceedings in a wooden and unrealistic

manner. The use of unsworn “summary” responses and

a paraphrase of prospective testimony of witnesses who,

in fact, were never presented, necessarily manipulated

the grand jury, deprived them of their independence

and tainted any subsequent indictment. A grand jury is

entrusted with enormous investigative powers so that it

can function as an independent jury reviewing evidence,

assessing witness credibility, analyzing and sifting

through conflicting facts and testimony in order to deter-

mine the sufficiency and appropriateness for indictment

of fellow citizens. This responsibility is not delegated to

an Assistant United States Attorney. It is anomalous to

implicitly suggest, as the Court of Appeals’ opinion has

done, that the prosecutors may relieve the grand jury of

(continued from page 13)

tencing Memorandum. Interestingly, the prosecutor implied that any

employee who worked at the clinic for a substantial time could be a

target, yet none of those others were charged or given immunity

because the government (not the grand jury) concluded they were

not culpable. These included other professionals and another

radiologist who performed the same function as Petitioner Azad. See

Petitioner Amicarelli’s Sentencing Memorandum at 3, Appendix pp.

A-66-A-67. The radiologists performed their task of reading x-rays in

a building separate from the clinic. Thus, non-indicted and non-

culpable professionals who allegedly “wrote” the lie were not charged,

but the man who merely “read” the lie, Petitioner Azad, was.

their task by improper prosecutorial comment. The Sixth

Circuit's measure of what is appropriate is the wrong

one. The case of United States v Griffith, supra, is obvi-

ously predicated upon the notion that a constitutional

violation cannot undermine the jury’s ability to make an

informed and objective evaluation per se. Unfortunately,

such a view eliminates the need for a grand jury and

those functions entrusted to the jury may instead be

wielded by a government attorney relegating the grand

jury’s role to that of a rubber stamp. This Court must

intervene and actively reaffirm those principles so essen-

tial to the grand jury process. A grand jury investigation

should never be subverted or transformed into an empty

ritual or elaborate charade. As stated by the United

States Court of Appeals for the Ninth Circuit:

“If the grand jury is to accomplish either of its

functions, independent determination of probable

cause that a crime has been committed and pro-

tection of citizens against unfounded prosecu-

tions, limits must be set on the manipulation of

grand juries by over zealous prosecutors.” United

States v Samango, 607 F2d 877, 882 (9th Cir. 1979).

IMPROPER PROSECUTORIAL COMMENT BEFORE THE

GRAND JURY CONSTITUTES ADEQUATE GROUND FOR

DISCLOSURE OF OTHER MATTERS OCCURRING BEFORE

THE GRAND JURY PURSUANT TO RULE 6(C)(ii), FEDERAL

RULES OF CRIMINAL PROCEDURE.

By deeming the prosecutor’s conduct appropriate, the

Court of Appeals conveniently eliminated any need to

discuss the question of when a criminal defendant is en-

titled to discovery of grand jury materials. Petitioners

contend here that their Fifth Amendment right to be in-

dicted only by a legally constituted and unbiased grand

jury was at issue in the District Court. Because the

prosecutor gave false, prejudicial, unsworn testimony,

much of which was misleading to the grand jury, it was

both appropriate and imperative that the District Court

allow access to the balance of grand jury proceedings.

What has always been clear to Petitioners was that other

than three (3) witnesses that the government later in-

dicted (Petitioners Amicarelli, Bigley, and Co-Defendant

Dean) and a solitary patient, i.e., Johnny Cobb, the gov-

ernment presented no other witnesses to the grand jury

other than possibly a case agent who would have pre-

sented some kind of summary or synopsis.°®

Of course, Mr. Cobb’s testimony as a lay person could

not and did not demonstrate lack of medical necessity

with regard to the many patient files relating to the

various counts in the indictment. Thus, it is readily

apparent that there was no expert testimony to support

any conclusion regarding medical or chiropractic neces-

sity other than those comments at issue here. Under

these circumstances Petitioners did demonstrate ade-

quate grounds for further disclosure.

Petitioners submit that this Court’s ruling in United

States v Mechanik, — U.S. —— (1986), militates in favor of

more liberal pretrial disclosure because the Court clearly

recognized that dismissal of the indictment is indeed an

appropriate remedy for a violation of Rule 6 of the Fed-

eral Rules of Criminal Procedure. The Fifth Amendment

right to an indictment by an unbiased grand jury, the

procedural and ethical obligations of the United States

Attorney and the societal interest in protecting the in-

no other Jencks material was disclosed other than that mentioned

above. And the case agent did not testify, therefore, his Jencks mate-

rial was not disclosed. The government has never challenged the

accuracy of this suggestion.

tegrity of the grand jury process call for no less consider-

ation. As observed by Justice Marshall in Mechanik:

“Respect for the rule of law demands that im-

properly procured indictments be quashed even

after conviction, because only by upsetting con-

victions so obtained can the ardor of prosecuting

officials be kept within legal bounds and justice

be secured; for in modern times, all prosecution

is in the hands of officials.” (Citation omitted)

CONCLUSION

For these reasons, a Writ of Certiorari should be issued

to the Court of Appeals for the Sixth Circuit.

Respectfully submitted,

By: /s/ ROBERT M. MORGAN

Counsel of Record

2180 Penobscot Building

Detroit, Michigan 48226

(313) 961-7070

Attorney for Petitioners

Amicarelli and Bigley

By: ALAN G. GILCHRIST

FRIMET, BELLAMY & GILCHRIST, P.C.

333 West Fort Street, Suite 2000

Detroit, Michigan 48226

(313) 964-2710

Attorney for Petitioner Azad

Dated: March 6, 1987

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.