# Respondents Brief — Bank of Nova Scotia v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0584%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1988 - **Citation:** 487 U.S. 250 ## Text In the Supreme Court of the Wnited States OcTOBER TERM, 1987 THE BANK OF NOVA SCOTIA, PETITIONER Vv. UNITED STATES OF AMERICA WILLIAM A. KILPATRICK, ET AL., PETITIONERS V. UNITED STATES OF AMERICA ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES CHARLES FRIED Solicitor General WILLIAM S. ROSE, JR. Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General ROBERT H. KLONOFF Assistant to the Solicitor General GARY R. ALLEN ROBERT E. LINDSAY ALAN HECHTKOPF Attorneys Department of Justice Washington, D.C. 20530 (202) 633-2217 on —_—_—— =e OLESTION PRESENTED Whether a district court may dismiss an indictment for misconduct in the course of a grand jury investigation, where the misconduct has not prejudiced the defendants. = a PARTIES TO THE PROCEEDINGS In addition to the parties named in the caption, the following individuals were appellees in the court of ap- peals and are petitioners here: Declan J. O’Donnell and Sheila C. Lerner. Michael Alberga and C.S. Gill were also appellees in the court of appeals but are not petitioners here. TABLE OF CONTENTS Opimons below. __._. Jurisdiction | Statute and rules invol\ ed Statement Summary of argument. ................ {2 se Argument: An indictment may not be dismissed for grand jury abuse in the absence of prejudice to the defendant A. A facially valid indictment is ordinarily immune from challenge based on alleged defects in the prejudice would conflict with 28 U.S.C. 211] and Fed. R. Crim. P.52(a) ss. ones This Court’s decisions compel the conclusion that an indictment may not be dismissed for pro- cedural irregularities in the grand jury in the absence of prejudice ....... a Dismissal of an indictment for procedural defects in the grand jury that do not affect the grand jury's charging decision would be unsound asamatter of policy........................ Dismissal of the indictment wouid be inappropriate in this case even if an indictment may be dismissed without a showing of prejudice...... A be wets — s ~J Use of the term “agents of the grand jury”. Presentation of summaries of evidence ____. Mistreatment of an expert witness Granting informal immunity eee Calling witnesses who asserted their privilege against compulsory self-incrimination Violations of Rule 6(d) Alleged use of grand jury to gather intorma- tion tor civil purposes | dil) ~v a oS % 4 NY Nw WN IV Contents — Continued: Page 8. Disclosure of the identity of targets of the in- WOUMITIDD onc ccc ccscccccccccccescvcess 46 9. Imposition of secrecy obligations on two EE cccetinteccvecesssvescascceuses 47 iv ccscctsebieiieueensavenceeens 640006000" 51 p PPPPPPrerrrrrrrrrTrTrrrrrr irri titer la TABLE OF AUTHORITIES Atterbury, In re, 323 F.2d 726 (6th Cir. 1963) ........... 30 Baker v. United States, 389 F.2d 629 (7th Cir.), cert. denied, 393 U.S. 875 (1968) .... 2... 6. ccc eee ee 41 Beavers v. Henkel, 194 U.S. 73 (1904) ... 2... 60. eee 9 Bracy v. United States, 435 U.S. 1301 (1978) ........... 9-10 Chambers v. Maroney, 399 U.S. 42 (1970) ............. 17 Chapman v. California, 386 U.S. 18 (1967) .......... 17, 18, 21 Coleman v. Alabama, 399 U.S. 1 (1970) ..... 2.6.2.6... 17 Costello v. United States, 350 U.S. 359 (1956) ......... 8, 9, 10, 11, 12, 22, 23, 25, 32 Delaware v. Van Arsdall, 475 U.S. 673 (1986) .......... 17, 28 Ewing v. United States, 386 F.2d 10 (9h Cir. 1967), cert. denied, 390 U.S. 991 (1968) ....... 0.6.66 e eee 40 Grand Jury Proceedings (Mills), In re, 686 F.2d 135 (3d Cir.), cert. denied, 459 U.S. 1020 (1982) ........... 30 Grand Jury Proceedings (Pavlick), In re, 680 F.2d 1026 CES, TE oo cecccbeeseeccdcscencndecoesccoses 40 Greer v. Miller, No. 85-2064 (June 26, 1987) ........... 37 Harrington v. California, 395 U.S. 250 (1969) .......... 17 Holland v. United States, 348 U.S. 121 (1954) .......... 40 Kotteakos v. United States, 328 U.S. 750 (1946) ......... 21 Lawn v. United States, 355 U.S. 339 (1958) ............ 9, 49 Massiah v. United States, 377 U.S. 201 (1964) .......... 49 Milton v. Wainwright, 407 U.S. 371 (1972) ............. 17 Moore v. Illinois, 434 U.S. 220 (1977) ..... 2.0. oe ee 17 Namet v. United States, 373 U.S. 179 (1963) ............ 41 Palermo v. United States, 360 U.S. 343 (1959) .......... 12 Perlin, In re, 589 F.2d 260 (7th Cir. 1978) .............. 30 Pope v. Illinois, No. 85-1973 (May 4, 1987) ............ 17 Richardson v. Marsh, No. 85-1433 (Apr. 21, 1987) ...... 37 Vv Cases — Continued: Page Rose v. Clark, 478 U.S. 570 (1986) .............. 17, 18, 19, 20 Rushen v. Spain, 464 U.S. 114 (1983) ................. 17 Sealed Case, In re, 676 F.2d 793 (D.C. Cir. 1982) ....... 49 Spies v. United States, 317 U.S. 492 (1943) ............. 40 Strickland v. Washington, 466 U.S. 668 (1984) ......... 17 Thomas v. Arn, 474 U.S. 140 (1985) ............0...... 12, 13 United States v. Anderson, 577 F. Supp. 223 (D. Wyo. 1983), rev'd, 778 F.2d 602 (10th Cir. 1985) ........... 38 United States v. Arnold, 773 F.2d 823 (7th Cir. 1985) .... 40 United States v. Baggot, 463 U.S. 476 (1983) ........... 44, 45 United States v. Bagley, 473 U.S. 667 (1985) ............ 17 United States v. Baker, 611 F.2d 964 (4th Cir. 1979) ..... 40 United States v. Blitz, 533 F.2d 1329 (2d Cir.), cert. denied, 429 U.S. 819 (1976) .... 2... cece eee 42 United States v. Brown, 602 F.2d 1073 (2d Cir.), cert. Ge Gs PTE occ eve cevesccccecccccess 27 United States v. Bump, 605 F.2d 548 (10th Cir. 1979) .... 49 United States v. Calandra, 414 U.S. 338 (1974) ......... 9, 10, 32, 49 United States v. Cefalu, 338 F.2d 582 (7th Cir. 1964) .... 39 United States v. Chanen, 549 F.2d 1306 (9th Cir.), cert. BE a 45 United States v. Claiborne, 765 F.2d 784 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986) .................. 30 United States v. Cosby, 601 F.2d 754 (Sth Cir. 1979) ..... 30 United States v. Crow Dog, $32 F.2d 1182 (8th Cir. 1976), cert. denied, 430 U.S. 929(1977) .............. 22 United States v. DeSapio, 299 F. Supp. 436 (S.D.N.Y. RIE REA aS p e y ey ee e 39 United States v. Dozier, 672 F.2d $31 (Sth Cir.), cert. I oo vnc dccccccccvceceses: 24 United States v. Drake, 494 F.2d 648 (7th Cir. 1974) ..... 37 United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972) .... 22 United States v. Fields, $92 F.2d 638 (2d Cir. 1978), cert. denied, 442 U.S. 917 (1979) ................... 27 United States v. Friedman, 445 F.2d 1076 (9th Cir.), rrr rrr eee 39 United States v. Griffith, 756 F.2d 1244 (6th Cir.), cert. Ss ee PO ED 0 6 Pe a vcd cd voce seeecscsce: 22 Vi Vil Cases — Continued: Page Cases — Continued: Page United States vy. Gullett, 713 F.2d 1203 (6th Cir. 1983), United States v. Rogers, 751 F.2d 1074 (9th Cir. 1985)... 22, 49 cert. denied, 464 U.S. 1069 (1984) ....... 2... 0.068. 38 United States v. Sears, Roebuck & Co., 719 F.2d 1386 United States v. Hasting, 461 U.S. 499 (1983) ......... 7, 8, 12, (9th Cir. 1983), cert. denied, 465 U.S. 1079 (1984)... .. 36 16, 17, 21, 24 | United States v. Sells Engineering, Inc., 463 U.S. 418 United States v. Hawkins, 765 F.2d 1482 (lith Cir. SER ap ie ta ES epee eee 31, 36, 44, 45 1985), cert. denied, 474 U.S. 1103 (1986) ...... ...... 36 United States v. Serubo, 604 F.2d 807 (3d Cir. 1979) .... 27 United States v. Jacobs, §3\ F.2d 87 (2d Cir.), vacated, United States v. Solomon, 679 F.2d 1246 (8th Cir. 429 U.S. 909, on remand, 547 F.2d 772 (2d Cir. 1976), SE Nae kgunns enbuwe hid asian dues adul ina sks ss 22 cert. dismissed, 436 U.S. 31 (1978) ............0...... 22 United States v. Stanford, 589 F.2d 285 (7th Cir. 1978), United States v. Jones, 696 F.2d 1069 (4th Cir. 1982) .... 49 cert. denied, 440 U.S. 983 (1979) ................... 3-31 United States v. Jones, 766 F.2d 994 (6th Cir.), cert. United States v. Valenzuela-Bernal, 458 U.S. 858 denied, 474 U.S. 1006 (1985)... 2. 2 eee 30 NG ite aki cede Ties eek ees a dbaenh ox 18 United States v. Kelly, $43 F. Supp. 1303, supp. opinion, United States v. Widgery, 778 F.2d 325 (7th Cir. 1985) .. 15 550 F. Supp. 901 (D. Mass. 1982)... . 2... 6... eee, 25 United States v. Winter, 663 F.2d 1120 (ist Cir. 1981), United States v. Lane, 474 U.S. 438 (1986) .......... 13, 17, 21 cert. denied, 460 U.S. 1011 (1983) .................. 38 United States v. Leighton, 265 F. Supp. 27 (S.D.N.Y. United States v. Wolfson, 405 F.2d 779 (2d Cir. 1968), SD 6 a) ool eee hee ieee dee ines tees 39, 40 cert. denied, 394 U.S. 946 (1969) ................... WwW United States v. Librach, 536 F.2d 1228 (8th Cir.), cert. United States v. Wolfson, 558 F.2d 59 (2d Cir. 1977) .... 49 denied, 429 U.S. 939 (1976) .. 1... ccc eee eee 38 United States v. Zirpolo, 288 F. Supp. 993 (D.N.J. United States v. Mara, 410 U.S. 19(1973) ... 0.0... 6.6... 30 Py Sualsdbducanesesseenbeeieded \ -ceekhevidews 9 United States v. Martino, 825 F.2d 754 (3d Cir. 1987) .... 22, 28 Vasquez v. Hillery, 474 U.S. 254 (1986)... ........... 18, 20 United States v. McKenzie, 678 F.2d 629 (Sth Cir.), cert. Weatherford v. Bursey, 429 U.S. 545 (1977) ........... 18 CE Gs CE h ccccceccndcccecceccess 21-22 Young v. United States ex rel. Vuitton et Fils S.A., United States v. Mechanik, 475 U.S. 66 (1986) .......... 14, 19, I os ccc ccceceeeaseses 18 20, 22-23, 42 United States vy. Mitchell, 777 F.2d 248 (Sth Cir. 1985), Constitution, statutes and rules: cert. denied, 476 U.S. 1184 (1986) .................. 36 United States v. Morrison, 449 U.S. 361 (1981) ......... 8, 16 U.S. Const.: United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), I re ns DoT ag ee 16, 17, 19, 21 cert. denied, 475 U.S. 1012 (1986) ...............00. 38 Amend. V ...... sreee eres eee eres eens 11, 16, 39, 40, 41 United States v. Nathan, 816 F.2d 230 (6th Cir. 1987).... 22 | Grand Jury Clause .......-..- 000s eee eseees 10 United States v. National City Lines, Inc., 334 U.S. $73 Amend. Vi sted i ysln ah gad hea thai ald diate he 4, 16, 17, 50 EEE LISLE 12 TEED CUMNS «...- + 2-20 2e eer eeees 17, 19 United States v. Nealy, 729 F.2d 961 (4th Cir. 1984) ..... 35 Speedy Trial Act of 1974, 18 U.S.C. 3162(ay2) ......... 25 United States v. O'Keefe, 825 F.2d 314 (11th Cir. 1987) .. 22 pa a A Te Fe United States v. Owen, 580 F.2d 365 (9th Cir. 1978) ..... 22 . Unised States v. Peas, 008 F.24 723 (0th Cie. 1987) 18 US.C. ee es sw ananaducai 13 cert. denied, No. 86-6848 (June 8, 1987) ............. 36 IB USC. WBA eee eee . 2 United States v. Payner, 447 U.S. 727 (1980) ........... 13, 21 Ps MF nec dcunsucnencbececeocses Vill Statutes — Continued: Page EE ng occ cbc bee eEsseeeseseneneeseaies 4 8. cue eeececuveseuneesoseecess 4 i CD... Although Rule 52(a) is a court rule and has never formally been enacted by Congress, it is clear that Congress intended for that rule to govern harmless error questions and that the rule states congressional policy regarding the principles of harmless error. See United States v. Lane, 474 U.S. 438, 454-455 (1986) (Brennan, J., concurring in part and dissenting in part). Rule $2(a) was designed to take the place of two statutory provisions, 18 U.S.C. (1946 ed.) 556 and 28 U.S.C. (1946 ed.) 391. When Congress revised both the Criminal Code and the Judicial Code several years later, it relied on Rule 52(a) as the reason for repealing the two predecessor statutes so as to avoid redun- dancy. See H.R. Rep. 304, 80th Cong., Ist Sess. 8 (1947) (“effect was given to the changes [made by the Federal Rules of Criminal Pro- cedure] by revising modified sections and repealing superseded provi- sions”); H.R. Rep. 308, 80th Cong., Ist Sess. A236 (1947) (former Section 391 is “superseded by Rule 61 of said Civil Rules, and Rule $2 of said Criminal Rules”). The following year, Congress enacted 28 U.S.C. 2111 to ensure that the harmless error provisions applicable to the district courts through the Civil and Criminal Rules would be ap- plicable to appellate courts as well. See H.R. Rep. 352, 81st Cong., Ist Sess. 18 (1949). : 14 As this Court has made clear, 28 U.S.C. 2111 and Rule $2(a) apply not only to errors occurring at trial, but also to errors occurring before the grand jury. Thus, in United States v. Mechanik, 475 U.S. 66, 71-72 (1986), the Court stated that “[w]e see no reason not to apply [Rule 52(a)] to ‘errors, defects, irregularities, or variances’ occurring before a grand jury just as we have applied it to such error occurring in the criminal trial itself.” The Court held that the defendant’s conviction at trial rendered harmless the violation of Fed. R. Crim. P. 6(d) that occurred in that case (475 U.S. at 72-73). In her concurring opinion in Mechanik, Justice O’Connor, joined by Justices Brennan and Blackmun, expressed complete agreement with the majority’s ruling that Rule 52(a) applies to violations of Rule 6.‘ In reaching that conclusion, Justice O'Connor reviewed the history of Rule 52(a). She noted (475 U.S. at 75) that “{t}he Advisory Committee’s notes to Rule 52(a) state that ‘[t}his rule is a restatement of existing law,’ which specifically provided for a harmless error analysis of objections going to the validity of the indictment in 18 U.S.C. § 556 (1946 ed.).” She further pointed out (475 U.S. at 75) that “[t}he language of Rule 6 does not exempt the Rule from a harmless error scrutiny” and that, to the contrary, the commentary to Rule 6 expressly confirms “the rulemakers’ intent that violations of Rule 6(d) would be among those errors subject to harmless error review.” Petitioners appear to recognize that a court may not ex- ercise its supervisory power if to do so would violate Con- gress’s intent. Thus, the Bank of Nova Scotia asserts that * Justice O'Connor's disagreement with the majority was over whether the Rule $2(a) inquiry should focus on the petit jurors’ verdict or on the grand jury’s charging decision. In her view, the focus should be on the grand jury's charging decision, regardless of whether there has been a conviction (475 U.S. at 76). 15 “[t}here is no doubt that Congress intended that the dismissal sanction be employed in appropriate situations for misconduct before the grand jury” (Br. 37 n. 28). See also id. at 36 (noting that “[dJismissal implements the essential rules established by Congress and this Court for the administration of proceedings before federal grand juries”). Yet neither petitioners nor amici explain how the position they urge —i.e., that dismissal of an indictment is appropriate even in the absence of prejudice (Kilpatrick Br. 7-26; Bank Br. 30-42; ACLU Br. 5-35; NACDL Br. 6-27)—can be reconciled with 28 U.S.C. 2111 and Rule $2(a). At bottom, petitioners’ argument consists of reasons why, in their view, requiring proof of prejudice in connec- tion with grand jury misconduct would be unwise as a matter of policy. While we disagree with petitioners’ analysis of the policy issues (see pages 22-26, infra), the flaw in their argument is that, as 28 U.S.C. 2111 and Rule $2(a) demonstrate, Congress and this Court have already weighed those policy considerations and have decided that errors that have not prejudiced a defendant should not provide a basis for dismissing an indictment. See generally United States v. Widgery, 778 F.2d 325, 329 (7th Cir. 1985). A court — whether acting pursuant to its supervisory authority or otherwise — has no authority to disregard that determination. C. This Court's Decisions Compe! The Conclusion That An In- dictment May Not Be Dismissed For Procedural Irregularities In The Grand Jury In The Absence Of Prejudice Wholly apart from 28 U.S.C. 2111 and Fed. R. Crim. P. 52(a), this case is controlled by numerous decisions of this Court holding that nonprejudicial errors must be disregarded. Those decisions, several of which require a harmless error analysis even of constitutional violations, cannot be meaningfully distinguished from the present case. 16 For example, in United States v. Morrison, 449 U.S. 361 (1981), the Court held that an indictment should not be dismissed because of a violation of the Sixth Amendment right to counse! that did not result in prejudice to the de- fendant. In Morrison, the court of appeals set aside the de- fendant’s conviction and dismissed the indictment, without any showing of prejudice, because government agents had intentionally sought to undermine the defend- ant’s relationship with her attorney. This Court reversed, holding that because the violation had no effect on the criminal proceedings, the remedy fashioned by the lower court was inappropriate. The Court reasoned that “[t}he remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression” (id. at 366). Ac- cording to the Court, “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainiy inappropriate, even though the violation may have been deliberate” (id. at 365 (footnote omitted)). The Court further noted (id. at 365-366) that the requirement of prej- udice applies not only in the Sixth Amendment context, but also in the Fourth and Fifth Amendment contexts.’ In United States v. Hasting, supra, the Court held that a court May not use its supervisory power to reverse a con- viction based on a prosecutor’s improper comment on the * The dissenting judge below stated that this Court in Morrison in- dicated that “a showing of prejudice is not required when the record reveals ‘a pattern of recurring violations’ ” (Pet. App. A40 (quoting 449 U.S. at 366 n.2)). In fact, the Court left that issue open; it simply noted that “the record before us does not reveal a pattern of recurring violations by investigative officers that might warrant the imposition of a more extreme remedy in order to deter further lawlessness” (ibid. (emphasis added)). In any event, that language strongly suggests that, if dismissal is ever warranted in the absence of prejudice, there must be a history of misconduct, not simply isolated violations in a single case. As discussed on pages 26-27, infra, under that standard, dismissal ts inappropriate in the present case. 17 defendant's failure to testify if the error is harmless. The Court noted (461 U.S. at 506) that “[s]upervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by defini- tion, the conviction would have been obtained notwith- standing the asserted error.” The Court stressed that it “has consistently made clear that it is the duty of a review- ing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitu- tional violations” (id. at 509). In addition, the Court observed that “deterrence is an inappropriate basis for reversal” where the prosecutor’s violation is “attenuaied” and “where means more narrowly tailored to deter objec- tionable prosecutorial conduct are available,” such as disciplinary proceedings or “publicly chastis[ing] the pros- ecutor by identifying him in [a judicial] opinion” (id. at 506 & n.5).° * This Court has held numerous other errors to be subject to harmless error analysis. See, ¢.g., Pope v. Illinois, No. 85-1973 (May 4, 1987), slip op. 4-7 (erroneous jury instruction); Rose vy. Clark, 478 U.S. $70 (1986) (same); Delaware vy Van Arsdall, 475 U.S. 673, 68 1-684 (1986) (violation of Confrontation Clause), United States v. Lane, supra (misjoinder under Fed. R. Crim. P. 8(b)), Rushen v. Spain, 464 U.S. 114, 117-120 (1983) (right to be present at trial); Moore v. Illinois, 434 U.S. 220, 232 (1977) (admission of identifica- tion obtained in violation of right to counsel); Milton v. Wainwright, 407 U.S. 371, 372-373 (1972) (admission of confession in violation of the Sixth Amendment); Chambers vy. Maroney, 399 U.S. 42, 52-53 (1970) (admission of evidence obtained in violation of the Fourth Amendment); Coleman v. Alabama, 399 U.S. |, 10-11 (1970) (denial of right to counsel at a preliminary hearing), Harrington v. Califor- nia, 995 U.S. 250, 254 (1969) (improper admission of statement of nontestifying co-defendant); Chapman v. California, 6 US. 18 (1967) (comments and instructions on a defendant's silence); cf. United States v. Bagley, 473 U.S. 667, 681-684 (1985) (opinion of Blackmun, J.), and id. at 685 (White, J., concurring in part and dissenting in part) (failure to disclose exculpatory material is reversible error only if there is reasonable probability that the material would have affected the outcome of the trial), Strickland vy. Washington, 466 U.S. 668, 694 (1984) (to prevail on a claim of ineffective assistance of To be sure, this Court has dispensed with harmless error analysis in the case of certain types of errors, but those situations are plainly “the exception and not the rule.” Rose v. Clark, 478 U.S. at 578. Recent decisions of this Court leave no doubt that courts must apply the harmless error doctrine where an error, even a constitutional one, is susceptible to meaningful harmless error analysis, does not necessarily render the factfinding process fundamen- tally unfair, and does not involve a right that protects fun- damental values unrelated to the factfinding process. See id. at 576-579; compare Young v. United States ex rel. Vuitton et Fils S.A., No. 85-1329 (May 26, 1987), slip op. 21-26 (plurality opinion) (appointment of interested prose- cutor raised doubt that prosecution could be conducted in disinterested manner, created appearance of impropriety to which harmless error analysis would not have been sen- sitive, and did not lend itself to ready assessment of its ef- fects on the prosecution); Vasquez v. Hillery, 474 U.S. 254, 260-264 (1986) (racial discrimination in selection of grand jurors struck at fundamental values of judicial system and society, and was not susceptible to evaluation of resulting harm); see generally Chapman, 386 U.S. 18, 23 & n.8 (1967). Exceptions to the harmless error rule are rare and must be based on extraordinary circumstances. As this Court recently stated, “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have counsel, a defendant must show reasonable probability that, but for counsel's errors, the result of the proceeding would have been dif- ferent); United States v. Valenzuela-Bernal, 458 U.S. 858, 873-874 (1982) (showing of prejudice required where the government deported potential witnesses before they could testify for the defendant); Weatherford v. Bursey, 429 U.S. $45, 554-557 (1977) (defendant's right to counsel not infringed where attorney-client information ob- tained by government informant had no effect on trial). 19 occurred are subject to harmless error analysis” (Rose v. Clark, 478 U.S. at 579 (emphasis added)). The conduct at issue here plainly falls within the general rule requiring a harmless error evaluation. There is simply no reason why the alleged misconduct here — procedural violations, primarily of Fed. R. Crim. P. 6—should be given a preferred status over such errors as improper com- ments on a defendant's silence, erroneous jury instruc- tions, violations of the Confrontation Clause, admission of evidence in violation of the Fourth Amendment, mis- joinder, or the myriad other errors that this Court has held to be subject to harmless error analysis (see note 6, supra). The errors involved in this case are in no way comparable to the limited class of errors that are not subject to harmless error analysis, such as racial discrimination in the selection of grand jurors or the complete denial of the right to counsel at trial. Rather, as the court of appeals recognized (Pet. App. Al6-A33), the conduct at issue in this case consisted of discrete acts whose nature and poten- tial impact were ascertainable from grand jury transcripts and testimony at the hearings in the district court. See, e.g., Mechanik, 475 U.S. at 78-79 (O'Connor, J., concur- ring in judgment) (issue of whether simultaneous appear- ance of two witnesses in the grand jury was harmless could be resolved by reviewing pertinent grand jury tran- scripts).’ ’ Contrary to the ACL U's contention (ACLU Br. 3 n.2), this Court in Mechanik did not leave open the question whether errors at the grand jury stage that have not prejudiced the defendant may justify dismissal of an indictment. The Court's analysis in. Mechanik is fully consistent with the Court's many other decisions holding that a de- fendam is not entitled to relief for nonprejudicial errors. In Mechanik, the Court rejected the proposition that a violation of Rule 6id) requires automatic reversal of a subsequent conviction and dismissal of an indictment in the absence of prejudice. While the dismissal in Mechanik was ordered after trial, both the majority and 20 Finally, unlike conduct such as racial discrimination in the selection of grand jurors, the conduct at issue in this case does not “ ‘strike{] at the fundamental values of our judicial system and our society as a whole’ ” (Vasquez, 474 U.S. at 262 (citation omitted)). In Mechanik, the Court ex- plicitly stated that the considerations expressed in Vasquez “have little force outside the context of racial discrimina- tion in the composition of the grand jury” (475 U.S. at 71 n.1). According to the Court (/bid.), “[njo long line of precedent requires the setting aside of a conviction based on a rule violation in the antecedent grand jury pro- ceedings, and the societal interest in deterring this sort of error does not rise to the level of the interest in deterring racial discrimination.” In light of Mechanik, it is apparent that petitioners cannot overcome the “strong presump- tion” (Rose v. Clark, 478 U.S. at 579) that the alleged errors here are subject to harmless error inquiry." concurring opinions suggested that, even in the pretrial setting, a showing of prejudice is required before an indictment may be dis- missed. Early in its opinion, the majority “assume|d] for the sake of argument” that a violation of Rule 6(d) would have permitted the district court to dismiss portions of the indictment “had there been ac- tual prejudice and had the matter been called to its attention before the commencement of the trial” (475 U.S. at 69-70 (emphasis added)). At the end of its opmion, the Court stated that it was “express{ing} no opimon as to what remedy may be appropriate for a violation of Rule 6d) that has affected the grand jury's charging decision and is brought to the attention of the trial court before the commencement of trial” (475 U.S. at 72 (emphasis added; footnote omitted)). Thus, the ques- tion left open in Mechanik was not whether dismissal would be ap- propriate prior to trial in the absence of prejudice, but whether dismissal prior to trial is appropriate even when there Aas been pre)- udice. See also 475 U.S. at 75 (O'Connor, J., concurring in judgment) (recognizing that dismissal of an indictment is a “drastic remedy” tha: . under Fed. R. Crim. P. S2(a), is “appropriate only when a violation has ompaired the substantial rights of the accused”). * Petitioners devote considerable attention (Kilpatrick Br. 26-45) to thew clamm that the court of appeals erred in finding that the alleged 21 Just as a lower court may not avoid the effect of a statute or court rule by invoking the supervisory power, it may not avoid the effect of this Court's precedents by the same device. In United States v. Payner, supra, the Court held that a judge may not suppress evidence in a defend- ant’s case based on an illegal search of a third party, even when the judge bases his decision on his supervisory authority. In reaching its decision, the Ceurt indicated that the conclusion was compelled by its cases interpreting the Fourth Amendment (447 U.S. at 731-732), and that “[t}he values assigned to the competing interests do not change because a court has elected to analyze the question under the supervisory power instead of the Fourth Amendment” (id. at 736). The logic of that rule is clear: if a court could dismiss an indictment or reverse a conviction for harmless error merely by invoking its supervisory authority, this Court's numerous harmless error decisions would be rendered meaningless. Such a rule, at bottom, would give lower courts “discretionary power to disregard” decisions of this Court with which they do not agree (id. at 737). Plainly, “the supervisory power does not extend so far” (ibid.); accord, Hasting, 461 U.S. at 506-507 .* misconduct was not prejudicial According to petitioners (:bed_), the errors in question were not harmless beyond a reasonable doubt In the first place, however, that argument addresses the issue on which this Court did not grant certiorari (Question 2), 1.¢., whether the court ot appeals erred in holding that the errors were not prejudicial. In any event, petitioners’ claim is without merit. The harmless beyond a reasonal.. doubt standard applies only to constitutional errors. The errors alleged in the present case, by contrast, involve primarily pro- cedural violations of Fed. R. Crim. P. 64d) and (ce). See Lane, 474 US. at 446 2.9; compare Chapman, 386 U.S. at 24, with Aotteotos + United States, 328 U.S. 750, 765 (1946). * The vast majority of the circuits that have addressed the issue agree that an indictment may not be dismissed for procedural i- regularities in the grand jury (or other instances of governmemal misconduct) in the absence of prejudice. See, ¢ ¢ . United Sretes + In addition to violating 28 U.S.C. 2111, Rule $2(a), the principles of Costello, and this Court's decisions regarding harmless error, a rule allowing the dismissal of an indict- ment in the absence cf prejudice would be unsound as a matter of policy. An analysis of the competing policy con- siderations demonstrates that where the defendant has not been prejudiced, the public interest is disserved by the dismissal of an indictment. In Mechanik, this Court identified a number of costs associated with the reversal of a criminal conviction: (1) it forces jurors, witnesses, courts, and the parties to expend further time, energy, and other resources to repeat the trial; (2) the loss of memory and disappearance of witnesses may make retrial more difficult, if not impossi- ble; and (3) even if a defendant is convicted on retrial, the resulting delay undermines the goals of deterrence, reha- biluation, and the prompt administration of justice. 475 McKenzie, 678 F 2d 629, 631 (Sth Cir.) (requiring a showing of pre)- wdice “even on the case of ‘egregious prosecutorial misconduct" ™ (cita- thon ometted)), cert. demed, 499 U.S. 1038 (1982); United States v. Nerhen, 816 F 2d 230, 234 (6th Cir. 1987); United States v. Griffith, 786 Fld 1244, 1249 (6th Cir.), cert. denied, 374 U.S. 837 (1985); nued States ». Solomon, 679 F 2d 1246, 1250-1251 (Sth Cir. 1982): United States v. Crow Dog, $32 F 2d 1182, 1196-1197 (8th Cir. 1976), cert. demed, 430 U.S. 929 (1977), United States v. Rogers, 751 Fld 1074, 1077 (oth Cir. 1985), United States ». Owen, S80 Fld 365, 367.368 (9th Cir, 1978), Unwed States v. O'Keefe, 825 Fld 314, 118 (tith Cir, 1987): of. Unwed States v. Martine, 825 F.2d 754, 799-760 (3d Cor 1987) (stateng that, notwithstanding some of the language in carher cases, the Turd Cirowit has mm fact “looked to prejudice” in “every case”). Cont a, Unwed Sretes v. Jocods, $31 F 2d 87 (2d Cir), vacated, 429 US. 9. on remand, £47 F.2d 772 (2d Cir. 1976), cont desmessed, 436 US. 31 (1978) Uned States v. Estepe, 471 F.2d 1132 (jd Cw. 1997) 23 U.S. at 72. Contrary to petitioners’ contention (Kilpatrick Br. 26), those costs are not avoided simply because a dismissal occurs before trial, particularly when the grand jury investigation is a lengthy and complex one, as was the case here. When an indictment is dismissed, the case must be presented to a new grand jury. And while some testimony from the first proceeding can be read to (or summarized for) the second grand jury, a prosecutor will often feel compelled, at least in a complex case, to let the grand jury hear from some witnesses in person, so that the grand jurors may ask questions and make credibility deter- minations. The presentation of the case to a new grand jury consumes the time of prosecutors, witnesses, and grand jurors. In addition, it necessarily postpones the trial, thus delaying the administration of justice and in- creasing the likelihood that witnesses will disappear or that their memories will fade. And if the defendant is ultimate- ly convicted, the goals of deterrence and rehabilitation will be undermined by the delay. In addition, a rule sanctioning the dismissal of an indict- ment in the absence of prejudice would almost certainly generate considerable litigation, particularly in cases in- volving lengthy and complex investigations. The possibili- ty of some imperfection in a grand jury proceeding is not difficult to allege. Litigation regarding such allegations would entail a substantial expenditure of prosecutorial and judicial resources and would impede the prompt ad- judication of the central question in the case — the defend- ant’s guilt or innocence. See generally Costello v. United States, 350 U.S. at 363-364. Moreover, the absence of a re- quirement of prejudice would eliminate a defendant’s need to explain how an alleged error was prejudicial. Hearings would thus be required not only in cases involving a likelihood of prejudice, but in many other cases as well. Cf. R. Traynor, The Riddle of Harmless Error 50 (1970) (footnote omitted) (“Reversal for error, regardless of its 24 effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.”). Petitioners and amici claim that dismissal in the absence of prejudice is necessary to deter prosecutorial misconduct (see Kilpatrick Br. 9; Bank Br. 38; ACLU Br. 18-23; NACDL Br. 21-27). However, remedies other than dis- missal of the indictment are available to ensure com- pliance with grand jury procedural requirements. For ex- ample, Fed. R. Crim. P. 6(e)(2) specifically states that “[a} knowing violation of Rule 6 may be punished as a con- tempt of court.” See United States v. Dozier, 672 F.2d 531, 545 (Sth Cir.), cert. denied, 459 U.S. 943 (1982). Other sanctions that a court has available in cases of proved prosecutorial misconduct include directing the prosecutor to show cause why he should not be discip- lined, requesting the Department of Justice to initiate disciplinary proceedings against the prosecutor,'® report- ing the prosecutor’s conduct to the disciplinary commitiee of the bar of which he is a member, or chastising the pros- ecutor in a public judicial opinion. See generally Hasting, 461 U.S. at 506 n.5. Because these alternatives focus on the person responsible for the improper conduct and do not impose unjustified costs on the criminal justice '° The Department of Justice has established procedures for in- vestigating alleged misconduct by federal prosecutors. Department regulations establish penalties for the violation of rules governing of- ficial conduct that range in severity from an official reprimand for a single instance of minor misconduct to removal from office for serious offenses or repeated acts of misconduct. See U.S. Dep't of Justice, DOJ Order 1752.1A, Discipline and Adverse Actions ch. 2 & app. | (Apr. 27, 1981). The Attorney General has established an Of- fice of Professional Responsibility (OPR) for the purpose of in- vestigating allegations of unethical conduct by Department attorneys and other personnel. See 28 C.F.R. 0.39a. During 1985, the year after the dismissal of the indictment in this case, OPR completed 278 in- vestigations of complaints involving alleged misconduct by Depart- ment of Justice employees. See OPR, Anv. Rep. to Att'y Gen. (1985), at 3-5; see id. at 6-7 (discussing specific examples). 25 system, they are plainly preferable to the remedy of dismissal. See generally United States v. Kelly, 543 F. Supp. 1303, 1314, supp. opinion, 550 F. Supp. 901 (D. Mass. 1982). Where, as in this case, the errors did not affect the grand jury’s charging decision, dismissal of the indictment in the absence of prejudice would be an exercise in futility. If the errors in the grand jury proceeding did not affect the first grand jury’s charging decision, it logically follows that, absent some unusual circumstance, another grand jury will hand down an indictment as well.'' In such cases, the whole process of dismissal and reindictment would ac- complish very little except for delay.'? In contrast, where prejudice Aas occurred, dismissal is more likely to have a meaningful effect on the disposition of the case, because of the prospect that a new grand jury, not exposed to the '' As we have discussed (pages 9-12, supra), under the Costello rule, an indictment may not be dismissed unless an error has so profoundly tainted the grand jury process as to render the charging document in effect something other than the “indictment of a Grand Jury” (U.S. Const. Amend. V). Under Costello, there may be circumstances in which dismissal is not appropriate even where there Aas been an effect on the grand jury’s charging decision. No such issue is presented here, however, since the court of appeals viewed this case as one in which the errors did nor affect the grand jury's decision to indict (see Pet. App. Al8 & n.9, A22; see also id. at A39 (dissenting opinion)). '2 To be sure, the prospect of having to reindict a case — an incon- venient and often time-consuming task — will provide some deterrence when a prosecutor is otherwise deliberately inclined to commit error. Cf. Speedy Trial Act of 1974, 18 U.S.C. 3162(a)(2) (authorizing dismissal of an indictment when a defendant is not brought to trial within specified time limits). Yet, a prosecutor who deliberately engages in misconduct presumably has concluded that such miscon- duct will benefit his case. The threat of dismissal when the defendant has been prejudiced would itself provide a deterrent in that situation. More fundamentally, we believe that the threat of contempt, disciplinary action, or judicial disapproval in a published decision provides a greater deterrent against prosecutorial misconduct without imposing the substantial costs on the public described above. 26 error, will refuse to indict. Thus, a requirement of preju- dice does not, as the Bank of Nova Scotia alleges (Br. 36), render the rules governing grand jury proceedings “dead letters,” any more than the harmless error rule makes “dead letters” of the rules of evidence and procedure that are designed to ensure a fair trial. Finally, petitioners have not offered a workable test for determining when a court should dismiss an indictment in the absence of prejudice. For example, would one deliberate error count for more than a large number of negligent errors? Would dismissal ever be appropriate in the absence of bad motive? Cf. Kilpatrick Br. 11 (noting that even unintentional misconduct threatens the grand jury’s integrity). Should a court be less willing to dismiss an indictment stemming from a lengthy investigation? Would dismissal ever be appropriate when an error is not a recurrent one in a particular jurisdiction? Should constitu- tional errors weigh more heavily than violations of rules of procedure? Would the extent of the prosecutor’s prior ex- perience in conducting grand jury investigations be rele- vant? In addition, questions would no doubt arise as to whether dismissal in the absence of prejudice would be ap- propriate during trial but before the jury has rendered its verdict. These difficult questions underscore the prospect of endless litigation — and widely varying standards among jurisdictions —if this Court were to sanction dismissals of indictments in the absence of prejudice. il. DISMISSAL OF THE INDICTMENT WOULD BE INAP- PROPRIATE IN THIS CASE EVEN IF AN INDICTMENT MAY BE DISMISSED WITHOUT A SHOWING OF PREJ- UDICE A. Even if dismissal of an indictment in the absence of prejudice were appropriate in some class of cases, dismissal would be inappropriate in this case. The Second Circuit, which is the only circuit that has ever dismissed an indictment in the absence of prejudice, 27 has stated that dismissal is appropriate only when “the course of official misconduct is a demonstrated, long- Standing one,” i.e., when “the pattern of misconduct is widespread or continuous.” United States v. Fields, $92 F.2d 638, 648 (2d Cir. 1978), cert. denied, 442 U.S. 917 (1979); accord, e.g., United States v. Brown, 602 F.2d 1073, 1076-1077 (2d Cir.), cert. denied, 444 U.S. 952 (1979). In the present case, there is no claim that the conduct at issue has been widespead in the District of Colorado (or in any other district). The district judges never suggested that any of the conduct that the court of appeals found to be improper had arisen regularly in other cases or involved persons other than the prosecutors who conducted the in- vestigation in this case. To the contrary, Judge Winner went out of his way to point out that “I have had my fair share of experience in dealing with Tax Division lawyers for whose ability and ethics I have the highest regard” (Pet. App. D10). He expressed similar high regard for the United States Attorney’s Office in Denver (see id. at D1, D2). And petitioners have likewise made clear that they are not alleging any widespread abuse extending beyond this case. As Judge Winner noted (id. at D2), “[djefense counsel carefully point out that neither they nor their clients complain about anything other than acts of the IRS and Department of Justice Tax Division lawyers who ran the grand jury and tried the [obstruction of justice] case.” Thus, even under the standard applied in the Second Cir- cuit, dismissal would not be appropriate here. A second possible standard for dismissing indictments in the absence of prejudice is the one proposed by amici (NACDL Br. 26; ACLU Br. 15): to dismiss if the error was more than an inadvertent or isolated occurrence. Even under that standard, which has not been applied by any court of appeals,'* dismissal would not be required here. The test advocated by amici was proposed by the Third Circuit in United States \. Serubo, 604 F.2d 807, 817 (1979). The Third Circuit, 28 The record in this case reveals that the alleged errors were isolated instances in a 20-month investigation that in- volved dozens of witnesses and thousands of documents. It would be unreasonable to expect that no errors would be uncovered following such a lengthy investigation, par- ticularly when thousands of pages of grand jury materials were made available to the defense for line-by-line scrutiny.'* See generally Van Arsdall, 475 U.S. at 681 (noting the “virtually inevitable presence of immaterial error” ina criminal trial and stating that a defendant 1s en- titled “to a fair trial, not a perfect one”). The record in the present case reveals that, on the whole, the investigation was conducted fairly and professionally. The transcripts of the prosecutors’ statements to the grand jury throughout the 20-month investigation demonstrate that the prosecutors undertook to ensure that any indictment returned would be the result of a fair and independent grand jury investigation (see generally Pet. App. A27-A28 n.20 (citing examples)). For instance, the prosecutors repeatedly admonished the grand jury that an indictment should not be returned unless the grand jurors were con- vinced that the targets of the investigation had willfully violated the law (J.A. 95-97, 165, 167-169, 176, 181). On several occasions, the prosecutors stated that they were ad- vocates and that the grand jurors should evaluate their remarks in that light (J.A. 116, 177, 191-192). In addition, the prosecutors explained that the grand jurors were the however, has never applied that test, as it has never dismissed an in- dictment in the absence of a showing of prejudice. See United States v. Martino, 825 F.2d 754, 759-760 (1987). '* The Bank of Nova Scotia errs in asserting (Br. 4, 6-7 & n.6) that the prosecutors deliberately tried to conceal misconduct by suppress- ing certain grand jury transcripts. While some proceedings were ap- parently overlooked and not transcribed, there is nothing in the record to indicate that the failure was intentional, and the district court made no such finding (see Pet. App. C2-C3). 29 sole judges of credibility (J.A. 171). Those remarks of the prosecutors — made throughout the investigation — belie the view that the prosecutors were deliberately attempting to usurp the grand jury’s independence. By the same token, the transcripts rebut the district court’s assertion (Pet. App. C54) that the grand jury “was converted into litth more than a rubber stamp.” As the court of appeals noted, “[t}he grand jury transcripts por- tray an active and questioning grand jury,” one that was “familiar with the record,” asked “thoughtful{]” ques- tions, and “vigorously questioned the prosecutors” (Pet. App. A27-A28 & n.20 (citing numerous examples)). In short, while we concede that the prosecutors com- mitted certain nonprejudicial errors, we submit that peti- toners are wrong in describing the record in this case as reflecting “[ujmprecedented, deliberate and pervasive governmental misconduct” (Kilpatrick Br. 3). Since the overall conduct of the prosecutors during the investigation was proper, the extreme sanction of dismissal of the in- dictment would be inappropriate. B. An analysis of the specific allegations of miscon- duct made by petitioners further shows that petitioners have greatly exaggerated the seriousness of the alleged misconduct and that dismissal would be inappropriate here. Petitioners cite nine purported violations committed by the prosecutors in this case (see Bank Br. 8-25).'* In several instances, the “errors” involve conduct that is en- tirely lawful. In others, there is no evidence to support the district court's findings. And in the remainder of the categories, the errors constitute at most exercises of poor judgment on the part of the prosecutors, rather than deliberate efforts to undermine the integrity of the grand pury. '* For convenience, we will follow the Bank of Nova Scotia's categories in discussing the vanous alleged errors. 30 1. Use of the term “agents of the grand jury” During the grand jury investigation, one of the pros- ecutors administered an oath to certain IRS agents who appeared before the grand jury and referred to them as “agents of the grand jury” (see, e.g., J.A. 91). The court of appeals did not decide whether the use of that term was error; rather, it held that petitioners had not suffered any prejudice from its use (Pet. App. A26). In our view, the designation of the agents as “agents of the grand jury” was not error at all. In any event, it is surely not the kind of egregious misconduct that would warrant dismissal of an indictment. The term “agents of the grand jury” was not created by the prosecutors; that term has been used by this Court and numerous other courts.'® In United States v. Jones, 766 F.2d 994, 1001, cert. denied, 474 U.S. 1006 (1985), the Sixth Circuit specifically rejected the view of the district court in this case and held that the swearing of a govern- ment agent as an “agent of the grand jury” was not prose- cutorial misconduct and did not warrant dismissal of an indictment. The court stated that it was “not persuaded *** that use of the word ‘agent’ in connection with government personnel assisting a grand jury will under- mine the foundation of public trust and confidence in the system” (idid.). See also United States v. Stanford, 589 F.2d 285, 292 (7th Cir. 1978) (expressing approval of the grand jury’s taking “precautions to preserve secrecy * * * by swearing the FBI personnel as agents and cautioning them about the need for secrecy”), cert. denied, 440 U.S. '6 See, e.g., United States v. Mara, 410 U.S. 19, 20 (1973); id. at 24 (Douglas, J., dissenting); Jn re Grand Jury Proceedings (Mills), 686 F.2d 135, 136 (3d Cir.), cert. denied, 459 U.S. 1020 (1982); Jn re Perlin, 589 F.2d 260, 262 (7th Cir. 1978); see also United States v. Cosby, 601 F.2d 754, 757-758 n.6 (Sth Cir. 1979); In re Atterbury, 323 F.2d 726 (6th Cir. 1963); but cf. United States v. Claiborne, 765 F.2d 784, 794-796 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986). 31 983 (1979).'’ The term “agent of the grand jury” was a reasonable shorthand way to refer to the agents’ proper role in the investigation, in which they served as “govern- ment personnel * * * deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law.” Rule 6(e)(3)(A)(ii); see also Pet. App. A25-A26; United States v. Sells Engineering, Inc., 463 U.S. 418, 430 & n.13 (1983). The prosecutors did not attempt to mislead the grand jury by referring to the IRS agents as “agents of the grand jury.” In particular, they did not urge the grand jurors to treat the agents as somehow more reliable because they were serving as the grand jurors’ agents. Indeed, it is significant that, On numerous occasions, the prosecutor referred to the agents as “my agent(s)” (see, e.g., J.A. 96, 98, 99, 108, 110, 113, 114, 115, 117, 137, 153, 163, 165, 171, 176). Similarly, contrary to the Bank of Nova Scotia’s contention (Br. 12), the record reveals that the grand jury understood that the agents were aligned with the prose- cutors and that their testimony could not be accepted without assessment of their governmental bias. For in- stance, during discussions with the prosecutors, grand jurors referred to the agents as “your guys” or “your agents” (see J.A. 117, 157).'* For these reasons, the use of ‘7 Moreover, the prosecutor who administered the oath to the agents testified at the hearing that in Atlanta, Georgia, where he had had prior experience, government agents had been sworn and referred to as agents of the grand jury (J.A. 45-46). He also testified that he was aware that the practice was followed in the Southern District of Florida (J.A. 46). The prosecutor admitted that he was not authorized to administer an oath (J.A. 57; Pet. App. C4). The real issue, however, is not that technical error but the propriety of the designa- tion “agents of the grand jury” and the role played by the agents. '8Similarly, there is no evidence that the agents attempted to make use of their designation in performing their duties. The agents testified at the hearing that, to their recollection, they never used the term 32 the term “agent of the grand jury,” even if it was technical- ly inaccurate, was not the type of conduct that warrants dismissal in the absence of prejudice. 2. Presentation of summaries of evidence The district court found that the government presented inaccurate and misleading summaries of evidence to the grand jury (Pet. App. C25-C31). The court of appeals ap- proved the use of summaries in general, especially in com- plex cases (id. at A21). The court, however, found it un- necessary to decide whether the summaries were accurate, since the court concluded that any error on that score resulted in no prejudice to the defendants (id. at A28-A29). At bottom, the challenge to the accuracy of the summaries is indistinguishable from the argument that unreliable or incompetent evidence was presented to the grand jury, a claim that this Court has held not to be a valid basis for dismissing an indictment. See Calandra, 414 US. at 344-345 (validity of an indictment “is not af- fected by the character of the evidence considered”); Costello, 350 U.S. at 364 (defendants may not challenge indictments “on the ground that they are not supported by adequate or competent evidence”). Although the court of appeals did not expressly reject the district court’s findings as to the accuracy of the sum- maries, the court rejected the argument that the Bank of Nova Scotia makes in this Court —that the government’s handling of the summaries deprived the grand jury of its ability to make an independent determination of probable cause with respect to the Bank. See Pet. App. A28-A29. “agent of the grand jury” when interviewing witnesses (J.A. 29, 31, 35). On a related point, the district court was plainly wrong in finding (Pet. App. C8) that the agents convened grand jury sessions. The court of ap- peals, in rejecting that finding, stated that it was “unable to find an in- stance in the record [where] the IRS agents convened the grand jury ses- sions without Government attorneys being present” (id. at A23 n.14). 33 We submit that the record supports that finding by the court of appeals, and fails to support the district court’s finding that the summaries were inaccurate and were presented in a misleading fashion. The summaries in dispute relate primarily to testimony by IRS Agent Richard Mendrop on September 29, 1982, the day before the indictment was returned, regarding the evidence against the Bank of Nova Scotia. The district court found that the government misled the grand jury in- to believing that the summaries were based solely on prior testimony before the grand jury rather than on other in- formation obtained by Mendrop during his investigation (Pet. App. C26). In fact, Mendrop never testified that he was just sum- marizing prior testimony, and the prosecutor never said that he was. The district court’s conclusion was based in large part on the following statement by a prosecutor shortly before Mendrop appeared (J.A. 176): “I will put my agents up here to summarize, just walk through, one more time, and refresh your memory.” See also J.A. 161. But the prosecutor, in making that remark, did not state that Mendrop would be summarizing only testimony previously heard by the grand jury. And Mendrop himself made it clear that he was discussing not only evidence previously presented to the grand jury but also evidence he had obtained in assisting the prosecutor in conducting the grand jury investigation. Thus, at the beginning of the testimony at issue, Mendrop informed the grand jury that he had “analyzed the evidence which [he had] gathered” and that he would “summarize the evidence” for the grand jury (J.A. 181). Later, in discussing information that he had obtained, Mendrop referred to a “statement” (as op- posed to “testimony”) from a particular person (J.A. 190). Moreover, the grand jury was well aware that some of the information it received during the investigation was based on interviews conducted outside the grand jury’s presence (see, e.g., J.A. 113-115, 136-137, 155-156, 158-159; see 34 also J.A. 163-164). And a grand jury can reasonably be ex- pected to know which witnesses have testified before it and to recall the testimony of such witnesses. The district court found that Mendrop’s summary was “an inaccurate recitation of ‘facts’ in several significant respects” (Pet. App. C28). Specifically, Mendrop testified that Tom Waters—a former owner of another bank (to which petitioner Kilpatrick owed money) — had stated that he had been introduced to Monte Smith, the manager of the Bank of Nova Scotia’s Cayman Islands branch, at Kilpatrick’s offices in Denver (J.A. 189-190). The district court found (Pet. App. C28) that this testimony was incor- rect because Waters’ description of Smith at petitioner Kilpatrick’s trial on the obstruction of justice count of the indictment did not seem to fit Smith. In the first place, the question whether Smith visited Kilpatrick in Denver was not essential to the government’s proof of the Bank’s criminal conduct. Other evidence per- taining to the Bank was presented both during Mendrop’s summary'? and during other parts of the investigation.?° '? For instance, Mendrop noted that the Bank permitted Kilpatrick to close a certain account and remove the funds even though Kilpatrick did net have signature authority (G.J. Tr., Mendrop, 9/29/82, 9:32 a.m., at 68-69); that the Bank had knowledge of Kilpatrick’s various business entities involved in the tax shelters (id. at 70-71); that, in trans- actions involving purported financing of the tax shelter scheme, the Bank stopped payment on a check and backdated another check (in- volving about $18 million) under suspicious circumstances (id. at 65-66; see Indictment 17); and that the Bank received a legal bill for work per- formed in examining a tax shelter that the Kilpatrick organization had put together (but did not sell) (J.A. 188). 20 For instance, testimony of various witnesses demonstrated that the Bank was knowingly involved in a check kiting scheme that was part of the fraud under investigation (J.A. 101-108, 117-119). In addi- tion, exhibits before the grand jury included records of the Bank relating to fraudulent tax shelter transactions (see, e.g., J.A. 172-173). The exhibits showed that the Bank had received a prospectus regard- ing an investment entity put together by the Kilpatrick organization, 35 In any event, there was no showing that the prosecutors o.fered evidence that they knew to be false, even on the narrow question of whether Smith had visited Kilpatrick in Denver.?' In short, petitioners have failed to show that there was any misconduct concerning the summaries, let alone any conduct that was so egregious as to warrant dismissal of the indictment.?? 3. Mistreatment of an expert witness Both the district court (Pet. App. C33-C34) and the court of appeals (id. at A27) criticized the treatment of Roland Hjorth, a tax professor at the University of and that the Bank therefore had reason to know that Kilpatrick was in the tax shelter business (see Gov't C.A. Br. 29). There was also testimony (J.A. 174-175) relating to the Bank’s suspicious backdating and substitution of a check. 2! As recounted by Mendrop, Smith’s visit was described not only by Waters, but also by Kilpatrick’s chauffeur (see J.A. 189). The district court noted that the government had doubts about the ac- curacy of Waters’ statement regarding Smith (Pet. App. C28). In the testimony cited by the district court, however, the prosecutor was referring to doubts that arose several months prior to the indictment; he testified that steps were subsequently taken to resolve those doubts (J.A. 88). In any event, doubts by the government would not necessarily mean that Waters’ statement was wrong. And there is no requirement that a prosecutor inform a grand jury any time he is not absolutely certain that a particular piece of evidence is reliable. 22 Similarly, the district court erred in determining (Pet. App. C30-C31) that a prosecutor mischaracterized the evidence against the Bank when he stated, shortly before Mendrop’s summary (J.A. 178-179): “ ‘{A]s my agents will tell you there is evidence that the bank knew it was the IRS—they were in fact told that it was the IRS they were defrauding.’ ” The evidence (see, e.g., notes 19 and 20, supra) provided a reasonable inference that the Bank knew that the IRS was being defrauded, even if it was not “told” that explicitly. Cf. United States v. Nealy, 729 F.2d 961, 962-963 (4th Cir. 1984). In any event, the prosecutors repeatedly stated during the investigation that they were advocates and that the grand jury should scrutinize their statements as such (see J.A. 116, 177, 191-192). 36 Washington Law School, by one of the prosecutors.?? As the court of appeals concluded, that incident did not prej- udice petitioners (id. at A27). We submit that the prose- cutor’s actions, while regrettable, do not warrant dismissal of the indictment. The incident, which occurred during a lunch break while the grand jury was not in session (W. Tr. 491-493), was at worst a debate between two lawyers arising out of a dis- agreement as to legal theories, in which the prosecutor may have expressed himself too strongly in the heat of the moment (see W. Tr. 496-507 (testimony of Hjorth)). In- deed, in appearing before the grand jury after the incident, Hjorth stated that he appreciated the prosecutor’s “prod- ding” him into thinking things through (G.J. Tr., Hjorth, 7/20/82, 4:05 p.m., at 6). And Hjorth testified at the mo- tions hearing that his grand jury testimony was not af- fected by the prosecutor’s conduct (W. Tr. 481-482). In fact, when the incident occurred, Hjorth had already said all that he intended to say to the grand jury, and he was ** Hjorth testified as an expert witness at the request of a target (see Pet. App. D1S). The prosecutors called Hjorth to discuss tax law even though they were under no legal duty to do so. Although the law is not entirely settled, several circuits have held that a prosecutor has no duty to present exculpatory evidence to the grand jury. See, e.g., United States v. Mitchell, 777 F.2d 248, 263 (Sth Cir. 1985), cert. denied, 476 U.S. 1184 (1986); United States v. Hawkins, 765 F.2d 1482, 1488 (11th Cir. 1985), cert. denied, 474 U.S. 1103 (1986); United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1394 (9th Cir. 1983), cert. denied, 465 U.S. 1079 (1984). Subsequent to the indictment, the Tenth Circuit held, contrary to several circuits, that a prosecutor is required to pre- sent “substantial” exculpatory evidence to the grand jury. See United States v. Page, 808 F.2d 723, 727-728 (1987) (collecting conflicting authorities), cert. denied, No. 86-6848 (June 8, 1987). It is doubtful that the prosecutors would have been required to present Hjorth’s legal theory to the grand jurors, much less call Hjorth as a witness, even under the standard later adopted by the Tenth Circuit. Cf. United States v. Selis Engineering, Inc., 463 U.S. 418, 430 (1983) — that the prosecutor “advises the [grand] jury on the applicable aw”). ‘ 7 : { 37 asked only a few questions when he appeared again before the grand jury later in the day (see W. Tr. 472-473, 491).** Finally, although two grand jurors may have heard the conversation (see J.A. 61; W. Tr. 377, 493), the prose- cutors later instructed the grand jury (on the day the in- dictment was returned) to disregard anything they may have heard in conversations between a prosecutor and a witness (J.A. 191).?° 24 Contrary to Judge Winner's suggestion, which Judge Kane ap- parently adopted (see Pet. App. C34), Hjorth did not testify that the prosecutor “ ‘impl{ied) that the Tax Division of the Department of Justice will take after the witness and will complain to the University of Washington.’ ” Hjorth testified that during the conversation at issue, the prosecutor stated, “I'll see you in court” (W. Tr. 502). The prosecutor acknowledged that he had made such a statement, but he testified that he did not mean it as a threat to prosecute the witness (J.A. 50). The prosecutor described the statement as “a rather flippant expression meaning * * * I don’t think you can support that position anyway, anywhere” (J.A. 63). Hjorth conceded at one point during the hearing that he was not intimidated by the statement and that, in the context of two lawyers debating a legal point, the statement could be characterized as, “I sure as heck don’t agree with that and I'll have a judge test this one if you want to keep that concept alive” (W. Tr. §03-504). Hjorth also testified that the prosecutor had called him a discredit to his profession as a law professor for testifying on behalf of one of the targets (W.Tr. 377-378, 496-497). The prosecutor denied making such a statement (J.A. 60), and Hjorth was unable to recall when in the sequence of events the statement was allegedly made (W. Tr. 504-507). 25 As this Court has indicated with respect to petit jurors, there is an “almost invariable assumption of the law that jurors follow their in- structions.” Richardson v. Marsh, No. 85-1433 (Apr. 21, 1987), slip op. 6; accord, e.g., Greer v. Miller, No. 85-2064 (June 26, 1987), slip op. 9 n.8; see also United States v. Drake, 494 F.2d 648, 650 (7th Cir. 1974) (possibility that petit jurors may have overheard a witness tell the prosecutor that the defendant’s alibi witness sas “lying” not re- versibie error, since there was no direct evidence that any jurors ac- tually heard the remark and the trial court gave a general curative in- struction). 38 4. Granting informal immunity In dismissing the indictment, the district court stated that the prosecutors “ignored entirely the federal immuni- ty statute (18 U.S.C. §§ 6001, et seg.) * * * and, instead, secured testimony by engaging extensively in * * * bestow- ing ‘informal immunity’ through ‘letters of assurance’ ” (Pet. App. C20). According to the district court, that prac- tice was “not merely damnable * * * [but] clearly illegal” (id. at C20 n.13). In reaching that decision, the district judge relied heavily on one of his own decisions, which was later reversed by the Tenth Circuit, United States v. Anderson, 577 F. Supp. 223, 233 (D. Wyo. 1983) (Kane, J.), rev’d, 778 F.2d 602, 606 (10th Cir. 1985). The court of appeals rejected the district court’s holding that the use of informal immunity was illegal (Pet. App. A22 (citing authority)).2© The court of appeals’ ruling ac- cords with the ruling of every other circuit that has square- ly faced the issue. See United States v. Winter, 663 F.2d 1120, 1133 (Ist Cir. 1981) (citing cases), cert. denied, 460 U.S. 1011 (1983); United States v. Librach, 536 F.2d 1228, 1230 (8th Cir.), cert. denied, 429 U.S. 939 (1976); cf. United States v. Murphy, 768 F.2d 1518, 1532 (7th Cir. 1985), cert. denied, 475 U.S. 1012 (1986); United States v. Gullett, 713 F.2d 1203, 1208 (6th Cir. 1983), cert. denied, 464 U.S. 1069 (1984).?’ 26 As the court of appeals’ treatment of this issue illustrates (see also pages 39-41, 43-46, infra), the Bank of Nova Scotia is profoundly wrong in repeatedly asserting that the Tenth Circuit did “not disput[e] the impropriety of the [prosecutors’] conduct” (Br. 27) and that “[t}he misconduct findings of Judge Kane were not disturbed by the majority of the panel of the Court of Appeals” (id. at 7); see also id. at 4, 26, 32; but see Kilpatrick Br. 40). 2’? The Bank of Nova Scotia attempts to argue that the manner in which informal immunity was used prejudiced petitioners (Br. 17-18), but its argument is in essence just a quarrel with the practice of pro- viding promises of immunity to prospective witnesses in exchange for their cooperation and truthful testimony. The court of appeals found (Pet. App. A22) that the defendants suffered no prejudice based on the use of informal immunity. 39 5. Calling witnesses who asserted their privilege against com- pulsory self-incrimination The district court held (Pet. App. C23-C25) that the prosecutors engaged in misconduct by bringing before the grand jury seven witnessess who the prosecutors believed were likely to invoke the Fifth Amendment. That holding was erroneous, and it was properly rejected by the Tenth Circuit (id. at A26-A27). The courts have held that even a target of an investiga- tion may be compelled to appear before a grand jury and, in effect, be tested in front of the grand jurors. See, e.g., United States v. Friedman, 445 F.2d 1076, 1088 (9th Cir.), cert. denied, 404 U.S. 958 (1971); United States v. Cefalu, 338 F.2d 582, 584 (7th Cir. 1964). It follows, a fortiori, that there is no bar to calling a third party, whose assertion of the privilege would have little likelihood of prejudicing the target. = The rule is no different even when the prosecutor Is in- formed (or otherwise has reason to believe) that a witness intends to invoke the Fifth Amendment. Numerous courts have held that calling a witness before the grand jury under such circumstances is not improper. See, e.g., United States v. Wolfson, 405 F.2d 779, 784-785 (2d Cir. 1968) (collecting cases), cert. denied, 394 U.S. 946 (1969); United States v. DeSapio, 299 F. Supp. 436, 440 (S.D.N.Y. 1969); United States v. Zirpolo, 288 F. Supp. 993, 1007 (D.N.J. 1968); United States v. Leighton, 265 F. Supp. 27, 36-38 (S.D.N.Y. 1967). The logic of these cases is apparent. Even if the prose- cutors expected that the witnesses would assert the Fifth Amendment, they could not be certain of that until the witnesses actually appeared under oath before the grand jury. Witnesses not infrequently change their strategies when they must actually appear before a grand jury. Moreover, by calling the witnesses, the government was able to make a complete record on the thoroughness of its investigation (see J.A. 65), an issue that sometimes arises 8 40 at trial in tax prosecutions. See generally Holland v. United States, 348 U.S. 121, 135-136 (1954). If petitioners weie correct that prosecutors may not call before the grand jury witnesses who announce an inten- tion to assert their Fifth Amendment privilege, a witness “could automatically gain immunity from Grand Jury sub- poena” merely by advising the prosecutor that he intends to invoke the Fifth Amendment; in such a case the witness “ ‘would denude that ancient body of a substantial right of inquiry’” (Leighton, 265 F. Supp. at 38 (citation omitted)).?8 Finally, as the court of appeals pointed out (Pet. App. A26, A27), the record reveals that the prosecutors ceased their questioning once each witness invoked the Fifth Amendment (see J.A. 139-140, 141-142, 143, 150-151, 153-154, 154-155, 158). And the prosecutors in no way tried to build their case around these assertions of the Fifth Amendment. To the contrary, they took care to pre- vent prejudice to the defendants by repeatedly advising the ?* Contrary tc the district court’s conclusion (Pet. App. C46-C47), there is nothing improper in the fact that four of the witnesses were asked questions concerning payment of their attorneys’ fees (see J.A. 139-140, 141-142, 143, 149-150). The grand jury was entitled to know whether one of the targets was paying the attorneys’ fees for witnesses who were refusing to testify before the grand jury. Payment of such fees, for example, could constitute an act in furtherance of a con- spiracy. See generally Jn re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1028 (Sth Cir. 1982). In addition, “any conduct, the likely effect of which would be to mislead or conceal,” is evidence of willfulness in a criminal tax prosecution. Spies v. United States, 317 U.S. 492, 499 (1943). An attempt by a target to induce witnesses to withhold information from the grand jury would constitute such con- duct and would therefore be evidence of intent and guilty knowledge. See generally Ewing v. United States, 386 F.2d 10, 15 (9th Cir. 1967) (attempt to bribe a witness), cert. denied, 390 U.S. 991 (1968). Fur- thermore, a corrupt endeavor to cause a witness to assert the Fifth Amendment constitutes obstruction of justice. See, e.g., United States v. Arnold, 773 F.2d 823, 824 (7th Cir. 1985); United States v. Baker, 611 F.2d 964 (4th Cir. 1979). 41 grand jurors that they should not draw any adverse in- ferences from a witness’s invocation of the Fifth Amend- ment (see, e.g., J.-A. 109, 130-131, 131-132, 155, 169-170). That advice was given not only months prior to the time the witnesses asserted the privilege, as acknowledged by the district court (Pet. App. C25), but also virtually con- temporaneously with the testimony of two of the witnesses (see J.A. 153-155; see also J.A. 169-170). In short, there is nothing about the brief appearances of the seven witnesses who invoked the Fifth Amendment that would warrant dismissing the indictment. See generally Namet v. United States, 373 U.S. 179, 186-189 (1963); Baker v. United States, 389 F.2d 629, 630-633 (7th Cir.), cert. denied, 393 U.S. 875 (1968). 6. Violations of Rule 6(d) We do not dispute that Fed. R. Crim. P. 6(d) was violated by the simultaneous appearances before the grand jury of two IRS agents to read testimony given before the prior grand jury. The violations, however, were only technical ones. The prosecutors did not have any improper motive, and, as the court of appeals found (Pet. App. A18), the joint appearances could not possibly have preju- diced the grand jury. The joint reading of transcripts began when the agents complained of colds and sore throats and asked the prose- cutors whether they could read together to break up the procedure (J.A. 52-53). Previously, only one agent had appeared at a time to read transcripts (see, e.g., J.A. 119). The prosecutors agreed to permit two agents to read transcripts at the same time (one reading the questions and the other reading the answers) (J.A. 54). Thus, the pro- cedure was initiated for an entirely innocent reason, even though it was technically inconsistent with Rule 6(d). . The two special agents who did most of the joint readings —Mendrop and Raybin — were familiar figures who had appeared before the grand jury individually prior to their joint appearances (e.g., G.J. Tr., Mendrop, 42 8/4/81, 9:25 a.m.; G.J. Tr., Raybin, 9/9/81, 10:02 a.m.). It is not disputed that the agents gave no testimony of their own when they appeared together before the grand jury. And according to the agents’ testimony in the hearing before Judge Kane (J.A. 66-67)— which was not contra- dicted by the transcripts of the grand jury proceedings (see J.A. 53-54)—no questions were asked during the readings. Indeed, the prosecutors took steps to make sure that ques- tioning would not occur. Thus, as the district court noted (Pet. App. C8), the grand jurors were advised not to ask questions when the agents appeared to read transcipts. In- stead, they were instructed to jot down any questions they had, so that the prosecutors could answer them later (J.A. 137-138). And the prosecutors instructed the agents not to answer any questions (J.A. 53). The prosecutors also ad- vised the grand jurors that if they were not satisfied with having particular evidence introduced through the transcript, the witness could be called in person (J.A. 138). The joint reading of transcripts was a purely ministerial function that did not place the agents’ credibility at issue. Cf. United States v. Blitz, 533 F.2d 1329, 1344 (2d Cir.), cert. denied, 429 U.S. 819 (1976). Thus, the technical violation of Rule 6(d) in this case did not implicate the concerns to which the rule is addressed —i.e., to safeguard the secrecy of the grand jury proceedings and to protect the grand jurors from the possibility of undue influence. See Mechanik, 475 U.S. at 74 (O’Connor, J., concurring in judgment). Here, grand jury secrecy was not jeopar- dized; the agents were persons to whom disclosures of grand jury information could properly be made under Rule 6(e)(3)(A)(ii). And there was no danger of undue in- fluence or intimidation of the grand jurors. Unlike in the case of in tandem testimony, where there is a potential for undue influence because each witness may corroborate the other’s account and add to the other’s credibility, a risk of undue influence is not present when the joint appearance of witnesses involves only the reading of transcripts. And 43 there is nothing inherently intimidating about two agents reading transcripts to the grand jury.2? In short, the technical violation of Rule 6(d) in this case does not even remotely warrant dismissal of the indictment. 7. Alleged use of grand jury to gather information for civil purposes The district court found that the record “suggests that information was disclosed to other IRS agents for use in civil cases” (Pet. App. C9). The district court also found that there was a “serious possibility” that the grand jury was “manipulated in order to obtain evidence useful in later civil litigation” (id. at C12). The court of appeals re- jected those findings, noting the lack of record support for them (id. at A23) and pointing out (id. at A25 (footnote omitted)) that the grand jury’s return of “an extensive in- dictment is probative evidence that it was not abused to obtain evidence for civil purposes.”*° ~— The court of appeals correctly rejected the district court’s findings. The district court’s determination that in- formation may have been disclosed for civil purposes is not only without evidentiary support but is in conflict with prior findings made by the district court itself. Near the end of the hearing, Judge Kane stated (J.A. 89-90), “[Ajs I recall the testimony of the I.R.S. special agents, they have emphatically denied turning over grand jury material to 29 Indeed, multiple government personnel routinely appear before grand juries. For example, Rule 6(d) provides that government “{a}ttorneys” (emphasis added) may be present in the grand jury, along with “the witness under examination” (who may himse!f be a govern- ment agent). Thus, the presence of more than one government official in the grand jury is not deemed dy Rule 6(d) to be coercive per se. © The Bank of Nova Scotia misstates the court of appeals’ holding in noting that the court “held that the return of an indictment demonstrates that the grand jury wag not abused for solely civil pur poses” (Bank Br. 21 n.19 (emphasis in original)). The italicized language is nor part of the court’s holding. 44 the civil branch and I haven’t seen any evidence yet that Says that that indeed was done.” No such evidence was of- fered at any time after Judge Kane made that observation. Similarly, the district court’s finding of manipulation is based entirely on speculation. In making that finding, the district court cited the fact that the IRS had an interest in the evidence-developed (Pet. App. C12-C13), that several investors in the tax shelters were interviewed by govern- ment agents but were not called before the grand jury (id. at ©13), and that the IRS civil personnel performed calculations of the taxes due on some of the investors’ tax returns and that those calculations were not presented to the grand jury (id. at C13-C14). Those factors do not sup- port the district court’s finding of possible manipulation. Most criminal tax cases involve alleged violations of provisions of the tax laws that, in the absence of willfulness, would still constitute civil violations. Thus, the mere fact that the government performed calculations of tax liability and gathered information that may also have been relevant in a civil action is not enough to permit an inference that the grand jury was manipulated. That is especially true in the present case. As one of the special agents testified (J.A. 29-30), the computations of tax liability had no civil purpose, and those computations were not turned over to anyone at the IRS who had a civil function. And as the court of appeals noted (Pet. App. A24), nothing in Fed. R. Crim. P. 6 prohibited the prose- cution from availing itself of the expertise of IRS civil per- sonnel, who performed the computations. See Fed. R. Crim. P. 6(e)(3)(A)ii); United States v. Sells Engineer- ing, Inc., 463 U.S. 418, 428 (1983).3! me According to the district court (Pet. App. C38), the government acted “in direct contravention” of this Court’s decisions in United States v. Sells Engineering, supra (holding that Justice Department Cc ° Division attorneys may not obtain grand jury materials for use in civil actions without a court order), and United States v. Ba ) , . Baggot, 463 U.S. 476 (1983) (holding that an IRS civil tax audit is not 45 Furthermore, the investor interviews were entirely proper as part of a thorough investigation. It is apparent that in a criminal investigation involving a tax shelter, in- vestors can be a source of information on the harm caused to the government by the shelter. Moreover, the interviews were relevant to possible mail fraud charges. At a trial for mail fraud, the testimony of investors as to their reasons for investing in the tax shelters would be relevant to establish the representations that were made to investors and to show that those representations had the potential to defraud the investors. Indeed, during the hearings before the district court, an agent explained the purpose of the in- vestor interviews and indicated their relationship to mail fraud (J.A. 26). In addition, the grand jury transcripts reveal that at least three investors appeared before the grand jury (see G.J. Tr., Long, 12/9/81, 10:04 a.m., at 5-6; G.J. Tr., Henkel, 2/4/82, 12:52 p.m., at 6-7, 9; G.J. Tr., Moffet, 3/2/82, 3:05 p.m., at 4-8).*? Finally, the 27-count indictment itself confirms that the interviews were conducted for a valid criminal purpose. The indict- ment names investors whom the defendants assisted in fil- ing false returns and to whom the defendants mailed items (Indictment 48, 55). In short, the court of appeals properly “preliminarily to or in connection with a judicial proceeding” for pur- poses of Rule 6(e)(3)(C)(i). The district court’s conclusion is factually incorrect, as we have shown. Moreover, it should be noted that Sei/s Engineering and Baggot were not decided until after the indictment in the present case was returned. And the law was anything but clear prior to those decisions, as Chief Justice Burger's dissenting opinions in those cases demonstrate. 32 There is, of course, no requirement that every person interviewed by government attorneys or agents be presented to the grand jury. Cf. United States v. Chanen, $49 F.2d 1306, 1312 (9th Cir.) (noting that “the grand jury generally relies on the prosecutor to determine what witnesses to call” and that the prosecutor “determines what evidence to present before the grand jury”), cert. denied, 434 U.S. 825 (1977). The fact that various investors were interviewed but did not testify before the grand jury does not show that the investors were inter- viewed for an improper purpose. 46 rejected the district court’s finding that the grand jury had been manipulated for civil purposes.?? 8. Disclosure of the identity of targets of the investigation During the investigation, the government sent letters to potential witnesses who had had business relationships with the targets of the grand jury investigation, but who were beyond the reach of the grand jury’s subpoena power. Those letters identified the targets and the general nature of the investigation. The letters indicated that “[i]t has been determined that your testimony will be helpful in resolving questions which still face the Grand Jury,” and they invited the recipients to appear before the grand jury. Pet. App. C15-C16. The district court concluded (id. at C15-C17) that the government’s disclosure of the identities of targets of the investigation violated Rule 6(e). In our view, that ruling is erroneous and provides no basis for dismissal of the indictment. The letters in question did not constitute improper disclosures of “matters occurring before the grand jury” (Fed. R. Crim. P. 6(e)(2)); they revealed no more than would typically be revealed to a witness during questioning when he appeared to meet with a prosecutor or to testify before the grand jury. Any blanket prohibition against disclosing to potential witnesses the identity of the targets or the general subject matter of an investigation would make it impossible for the prosecutor to direct a witness’s testimony to the matter under investigation or for him to determine whether the witness had any information that was of use to the grand jury. Petitioners have cited no authority—and we know of none—holding that the >> There is likewise no merit jn the district court’s finding (Pet. App C9) that the prosecutors relinquished to the IRS their responsibility to determine the persons to whom disclosures of grand jury material would be made. As the court of appeals concluded (id. at A23), the district court’s finding is unsupported by the record. 47 government, in private letters to, or discussions with, potential witnesses, may not reveal anything about the subject matter of a grand jury investigation. Thus, it was not unreasonable for the prosecutors to believe that such disclosures were a permissible way of obtaining informa- tion for the grand jury investigation.** 9. Imposition of secrecy obligations on two witnesses In two instances, a prosecutor instructed witnesses, con- trary to Fed. R. Crim. P. 6(e), that they should not reveal the fact that they had testified before the grand jury or the contents of their testimony (Pet. App. C18). Both witnesses were attorneys who had previously represented petitioners Kilpatrick and O’Donnell in administrative 34 Also failing to support dismissal of the indictment is the district court’s finding (Pet. App. C9-C12) that disclosure lists required by Rule 6(e) were inaccurate and were not filed promptly. The district court noted, without any citation to the record, that numerous IRS personnel given access to grand jury material were never identified on the lists and “remain unknown even now” (Pet. App. C9). The district court also found (id. at C11) that persons involved in a project to prepare a computerized index of grand jury materials were “apparent- ly” omitted from the lists. However, the record does not show that any IRS employee was omitted from the disclosure list. Moreover, an agent had an imprecise recollection at the hearing that three people on the disclosure list were key punch operators involved in the computer project (K. Tr. 76). And we know of no evidence that any key punch operators were actually omitted. As for the promptness of the preparation of the disclosure lists, it is true that the government prepared a “catch-all” disclosure list at the end of the investigation (see Pet. App. A24). But in a 20-month investigation, it was inevitable that some personnel would not have been listed previously. There is no evidence that the prosecutors and agents deliberately delayed the addi- tion of names to the disclosure lists for some improper purpose. On the contrary, an agent testified (J.A. 19) that the U.S. Attorney's Of- fice, which handled the preparation of the lists, was requested to add names to the lists “at or about the time that people were to be in- volved.” Significantly, Judge Winner stated, “I have no fault to find with the paper trail left in this matter insofar as the disclosure re- quirements are concerned” (Pet. App. D25). 48 proceedings involving the tax shelters (id. at C19). The prosecutor told the grand jury that they were calling the attorneys as witnesses because “[t]he primary focus of our investigation involving the financing is the factual repre- sentations made concerning Marlborough Investments Limited, IFDC.” The prosecutors explained that they wanted “to know what the lawyers were told by the prin- cipals, and what information they relayed to the parties” (ibid.). Based on that statement, the district court con- cluded that the secrecy obligations were imposed for the strategic purpose of “prevent{ing] defendants from deter- mining the nature and extent of any such communication so _ have been revealed and to foreclose a challenge oO such testimony based upon an i ivilege” (ibid.). That conclusion is — — During the hearing before Judge Kane, the prosecutor acknowledged that he had made a mistake when he at- tempted to impose a secrecy obligation on the witnesses but that he had done so because of his concern over grand jury leaks (J.A. 72-75).35 The prosecutor also testified that he had conducted only one grand jury investigation prior to the instant investigation (J.A. 87). He further testified that, at the time he examined the two attorneys, while he was familiar with Rule 6(e)(2), he was not focusing on the provision of that rule that has been interpreted as pro- ake of secrecy obligations on witnesses Statements of the prosecutor before the grand jury show that the prosecutor was seeking only unprivileged ma- terials and information from the targets’ attorneys, as to which the privilege had already been waived (A. 125-126, 128-129).3* Neither the court nor petitioners have ** Earlier, there had been allegations by Kilpatrick’s attorney that someone had approached Kilpatrick and attempted to sell hi jury information (J.A. 73, 75). P im grand | ‘© The fact that the prosecutor expressed interest in communica- tions between the attorney witnesses and their clients does not by itself 49 cited anything in the grand jury testimony of the two witnesses (or in any other part of the record) to indicate that the prosecutor attempted to pressure either witness in- to violating the attorney-client privilege. Finally, it does not appear that the prosecutors had anything to gain by imposing the secrecy obligations. If the two attorneys had voluntarily disclosed privileged communications before the grand jury, those communica- tions could not have been suppressed at the grand jury stage, even if petitioners had learned about the testimony immediately after it occurred. Cf. United States v. Calan- dra, supra; Lawn v. United States, supra; United States v. Rogers, 751 F.2d 1074, 1079 (9th Cir. 1985). More fun- damentally, a secrecy obligation that takes effect after a witness has testified in the grand jury could not have the effect of inducing the witness to breach the attorney-client privilege (or preventing the client from stopping such a breach).*’ 7 * * * * indicate that he was seeking privileged information, since not every communication between a lawyer and his client is privileged. See, e.g., United States v. Jones, 696 F.2d 1069, 1072-1073 (4th Cir. 1982); Jn re Sealed Case, 676 F.2d 793, 808-809 (D.C. Cir. 1982); United States v. Bump, 605 F.2d $48, 550-551 (10th Cir. 1979); B. Gershman, Prose- cutorial Misconduct § 2.4(d), at 2-22 to 2-23 (1987); cf. United States v. Wolfson, $58 F.2d 59, 66 (2d Cir. 1977) (noting that the “ordinary presumption [is] that a lawyer is competent to protect his client’s con- fidential interests before the grand jury”). }? In addition to the nine grounds discussed above, petitioners cite additional alleged misconduct that warrants only brief response. First, they claim (Bank Br. 29; Kilpatrick Br. 41) that one of the prosecutors violated this Court’s decision in Massiah v. United States, 377 U.S. 201 (1964), by interviewing employees of the Bank of Nova Scotia, without counsel for the Bank being present, after the issuance of the indictment. As the court of appeals (Pet. App. A22) and Judge Kane (id. at C49) recognized, that incident obviously could not have af- fected the grand jury’s charging decision, since it occurred after the in- dictment was returned. Moreover, the prosecutor involved, who was 50 In sum, we submit that there is no legal or policy basis for dismissing an indictment in the absence of prejudice. But even if it were proper in some circumstances for a court to do so, that drastic step would not be appropriate here. For the most part, the present investigation was handled in a professional manner, and the record reflects that the grand jury was independent and active. Much of the alleged misconduct found by the district court was en- tirely lawful. The rest of the acts were isolated incidents limited to this case. Thus, even if petitioners were not re- quired to demonstrate prejudice, the alleged errors, taken together, would not warrant the drastic remedy of dismissal of the indictment in this 20-month investigation. not one of the prosecutors who conducted the grand jury investiga- tion, had only a limited role in the case prior to the return of the in- dictment (J.A. 36; K. Tr. 1095-1096). In any event, the conduct does not appear to have been improper. Since a corporation is a distinct en- tity from its stockholders, officers, and employees, the prosecutor could reasonabiy conclude that there was no Sixth Amendment princi- ple that barred him from interviewing an unindicted employee of the Bank without first contacting the Bank’s counsel. In addition, the Bank of Nova Scotia refers to a statement pur- _portedly made by a prosecutor that even if the target was not guilty, the government would “break” him with the cost of the defense (Bank Br. 3). The prosecutor strongly denied making that statement (Pet. App. C14), and both Judge Kane and Judge Winner declined to resolve the question whether the witness who attributed the statement to the prosecutor was telling the truth (see Pet. App. C14, D14-D15). ee ee a 51 CONCLUSION The judgment of the court of appeals should be af- firmed. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM S. ROSE, JR. Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General ROBERT H. KLONOFF Assistant to the Solicitor General GARY R. ALLEN ROBERT E. LINDSAY ALAN HECHTKOPF Altorneys MARCH 1988 APPENDIX STATUTE AND RULES INVOLVED Section 2111 of 28 U.S.C. provides: Harmless error On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties. Rule 6, Federal Rules of Criminal Procedure, provides in relevant part: The Grand Jury * * * * * (d) Who May Be Present. Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting. (e) Recording and Disclosure of Proceedings. (1) Recording of Proceedings. All proceedings, except when the grand jury is deliberating or voting, shall be recorded stenographically or by an elecronic recording device. An unintentional failure of any recording to reproduce all or any portion of a proceeding shall not affect the validity of the prosecution. The recording or reporter’s notes or any transcript prepared therefrom shall remain in the custody or control of the attorney for the government unless other- wise ordered by the court in a particular case. (la) 2a (2) General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for 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. (3) Exceptions. (A) Disclosure otherwise prohibited by this rule of mat- ters occurring before the grand jury, vwcher than its deliberations and the vote of any grand juror, may be made to— (i) an attorney for the government for use in the performance of such attorney’s duty; and (ii) such government personnel (including person- nel of a state or subdivision of a state) as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law. (B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the perform- ance of such attorney’s duty to enforce federal criminal law. An attorney for the government shall promptly pro- vide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made, and shall certify that the attorney has advised such persons of their obligation of secrecy under this rule. ee —— or a eee i ee el ein hee 3a (C) Disclosure otherwise prohibited by this rule of mat- ters occurring before the grand jury may also be made — (i) when so directed by a court preliminarily to or in connection with a judicial proceeding; (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 indictment because of matters occurring before the grand jury; (iii) when the disclosure is made by an attorney for the government to another federal grand jury; or (iv) when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivi- sion of a state for the purpose of enforcing such law. If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such man- ner, at such time, and under such conditions as the court may direct. (D) A petition for disclosure pursuant to subdivision (e)(3)(C)(i) shall be filed in the district where the grand jury convened. Unless the hearing is ex parte, which it may be when the petitioner is the government, the petitioner shall serve written notice of the petition upon (i) the at- torney for the government, (ii) the parties to the judicial proceeding if disclosure is sought in connection with such a proceeding, and (iii) such other persons as the court may direct. The court shall afford those persons a reasonable opportunity to appear and be heard. (E) If the judicial proceeding giving rise to the petition is in a federal district court in another district, the court shall transfer the matter to that court unless it can reasonably obtain sufficient knowledge of the proceeding to deter- mine whether disclosure is proper. The court shall order 4a transmitted to the court to which the matter is transferred the material sought to be disclosed, if feasible, and a writ- ten evaluation of the need for continued grand jury secrecy. The court to which the matter is transferred shall afford the aforementioned persons a reasonable oppor- tunity to appear and be heard. (4) Sealed Indictments. The federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and ex- ecution of a warrant or summons. (5) Closed Hearing. Subject to any right to an open hearing in contempt proceedings, the court shall order a hearing on matters affecting a grand jury proceeding to be closed to the extent necessary to prevent disclosure of matters oc- curring before a grand jury. (6) Sealed Records. Records, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury. * * * * » Rule 52, Federal Rules of Criminal Procedure, provides in relevant part: Harmless Error and Plain Error (a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. ~- US GOVERNMENT PRINTING OFFICE 1987— 202-.037'60367 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0584%3A07. Public record. Not legal advice.