# Amicus Curiae 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%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988
- **Citation:** 487 U.S. 250

## Text

Nos. 87-578, 87-602 Supreme Court, US,
“ib 1 D

IN THI FEB 25 set
Supreme Court of the United Prater & sreven, we,

OCTOBER TERM, 1987
a >
THE BANK OF NOVA SCOTIA,

Petitioner,
— \ co

UNITED STATES OF AMERICA,
Respondent.

—__- —— --____ ~~

WILLIAM A. KILPATRICK, ef a/.,
Petitioners.
UNITED STATES OF AMERICA,
Respondent.
ON WRITS OF CERTIORARI 10 THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CiRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION FOUNDATION AND THE AMERI-

CAN CIVIL LIBERTIES UNION FOUNDATION OF
COLORADO IN SUPPORT OF PETITIONERS

JOHN A. POWEFLI
(Counsel of Record)

HELEN HERSHKOFI

STEVEN R. SHAPIRO

American Civil Liberties Union
Foundation

132 West 43 Street

New York, New York 10036

212) 944- )
RICHARD F. ZIEGLER (212) 944-9806

MARTHA F. Davis DAVID H. MILLER

CLEARY, GOTTLIEB, Americen Civil Liberties Union
STEEN & HAMILTON Foundation of Colorado

One State Street Plaza 815 East 22 Avenue

New York, New York 10004 Denver, Colorado 80205
(212) 344-0600 (303) 861-2258

QUESTION PRESENTED

Whether a federal district court may
exercise its supervisory power to dismiss
an indictment before trial, absent proof of
actual prejudice to the defendant, where
prosecutorial misconduct of the grand jury
process is so repeated and egregious as to
undermine the integrity of the criminal

justice system.

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ......... iii
INTEREST OF AMICI
AND SUMMARY OF ARGUMENT ....... 1
Guen ctetlthlckthl tlc lt te ehh] |S 5

I. THE DISTRICT COURTS MUST BE
AUTHORIZED TO DISMISS AN INDICTMENT
BEFORE TRIAL WHERE WILLFUL AND
REPEATED PROSECUTORIAL MISCONDUCT IN
THE GRAND JURY PROCESS UNDERMINES
THE INTEGRITY OF THE CRIMINAL
JUSTICE SYSTEM . . «© ee secre eee §

A. The Grand Jury is Essential to
the of the Criminal Justice
SyGtem «ce se see eceweeees ese §

B. Supervisory Authority Over
the Grand Jury Process Allows
the Federal Courts to Ensure
and Enhance The Integrity of
the Criminal Justice System... 9

Cc. Federal District Courts Must be
Authorized to Dismiss an Indict-
ment Before Trial, Absent Proof
of Actual Prejudice, Where Prose-
cutorial Misconduct Impairs The
Integrity Of The Criminal Justice
SyYGCGM «- ses se ec eo eee ewe ewe be

Il.

CONCLUSION . .

THE PRACTICAL IMPOSSIBILITY OF
PROVING ACTUAL PREJUDICE WOULD
ELIMINATE DETERRENCE OF

PROSECUTORIAL MISCONDUCT IN MANY

Wee a GS os 6 6 wt ct we ae - 23

A. Prosecutorial Misconduct Can
Dramatically Impair Public
Confidence Even if a Particular
Defendant Does Not or Cannot
Prove Actual Prejudice .... 24

B. Actual Prejudice Is

Difficult If Not Impossible
nS be ee eae a 32

. . . 36

- ii -

Ball ited ’
329 U.S. 187 (1946) .....
Be Vv j tates,

295 U.S. 78 (1935) ..

Blair v ited ates,

250 U.S. 273 (1919) : « & %
Branzburg v. Hayes,

408 U.S. 665 (1972) .....
Communist Party v. Subversive
Activities Control Board,

334 UeBe 245 (3956) «. « «© ©

Cos Vv i .

350 U.S. 359 (1956) “a oe te
In re Murchison,

349 U.S. 133 (1955) .....
In re November 1979 Grand Jury,

616 F.2d 1021 (7th Cir. 1980)

V ’
476 U.S. 162 (1986) .....

Mars Vv. j s,
DOO Bue SOO CEOUES tt tl

McNabb v. United States,
318 U.S. 332 (1943) ae Tae

- iii -

27

30

10

12

20

19

34

12

Olmstead v. United States,
oe © St ee ” | ee

Peters v. Kiff,
407 U.S. 493 (1972) Bo ies Ge i ee ae We

Pittsburgh Plate Glass
v. United States,
360 U.S. 395 (1959) ......,

Smith v. Phillips,
455 U.S. 209 (1982) a a a oe

Taylor v. Louisiana,

379 U.S. 466 (1965) :< » ie uw Oo
Tumey v. Ohio,

273 U.S. 510 (1927) “—: oo T+ So oe
United States v. Mudarris,

695 F.2d 1182 (9th Cir.),
cert. denied, 461 U.S. 932 (1983)

Vv. ws,
444 F.Supp. 1238 (E.D.Mich. 1978)

Unit Vv. qd -
476 F.Supp. 939 (N.D.I1l. 1979) .

Uni Vv.
444 U.8. 338 (3974) . . ww ce

Unit S v. Cro .
568 F.2d 1049 (3d Cir. 1977) .

Unit Vv ’
330 F.2d 316 (2d Cir. 1964) ...,

- iv-

12,

15,

12

34

33

26

12

23

17

14

16

27

United States v. DeFabritus,

605 F.Supp. 1538 (S.D.N.Y. 1985) .

nited stat iain
213 F.Supp. 232 (N.D.Ill. 1963) .

.
-

‘
545 F.2d 548 (6th Cir. 1976) ...

ni V. ’
471 F.2d 1132 (2d Cir. 1972) ...

United States v. Gallo,

394 F.Supp. 310 (D.Conn. 1975)...

v ‘
470 F.Supp. 1336 (N.D.Ill. 1979) .

v. Hinton,
543 F.2d 1002 (2d Cir. 1976),
cert. denied, 429 U.S. 1066 (1977)

Uni v. Ho .
712 F.2d 757 (2d Cir. 1983) “te

United States v. Kazonis,
391 F.Supp. 804 (D. Mass. 1975),
aff'd, 530 F.2d 962 (ist Cir.),

cert. denied, 429 U.S. 826 (1976)
United States v. Mechanik,

8 * S £. Serpe

United States v. Omni
International Corp.

‘
634 F.Supp. 1414 (D.Md. 1986)

15,

14

17

28

21

22

20

33

25

14

17

Uni Vv. igna ,
582 F.Supp. 251 (D.Col. 1984)

Uni Vv ,
708 F.2d 523 (10th Cir. 1983) » «

pnAted States v.—Procter & Gamble,
356 U.S. 677 (1958) ..

Unit Vv. ma ,
607 F.2d 877 (9th Cir. 1979)

Uni v. Se

Roebuck & Co.,

579 F.Supp. 1055 (C.D.Cal. 1984) .
U it Vv. s

Engineering, Inc.,
Gip Wee Gee Cmeeee 5 tt tee

Uni ted S tates v. Serubo Oo,

604 F.2d 807 (3d Cir. 1979) e e« 10,
V Vv 9

474 U.S. 254 (1986) oe ee Oe
Wood v. Georgia,

ove weme Gee teeeee «© ec se eo se ee

Vv j :
107 S.Ct. 2124 (1987) ® » Be See

Rules

Federal Rules of Criminal Procedure

ENE eee eee
ee

34

22

35

15

34

15, 18

18

Legislative History

Grand Jury Disclosure: Hearings
on S.1676 before the Senate
Committee on the Judiciary,
99th Cong. (Nov. 19, 1985)...

Grand Jury Reform: Hearings
before the Subcommittee on
Immigration, Citizenship and
International Law," of the House
of Representatives Committee on
the Judiciary, 95th Cong.

(Mar. 17 - June 29, 1977) ° e

ot u ities

M. Frankel & G. Naftalis,
The Grand Jury 120 (1977) ms

Note, Double Jeopardy,
Due Process, and the Breach

f Plea Agreements,
87 Colum.L.Rev. 142 (1987)

Note, The Exercise of

iss
a Grand Jury Indictment,
45 Ohio St. L.J. 1077 (1984) .

Note, The Supervisory Power
of the Federal Courts,
76 Harv.L.Rev. 1656 (1963) .

- vii -

25

25

26

26

—_

INTEREST OF AMICI
AND SUMMARY OF ARGUMENT+/

The American Civil Liberties Union
Foundation (ACLU) is a nationwide, non-
partisan organization of more than 250,000
persons dedicated to protecting and
preserving the civil rights and civil
liberties guaranteed by law. The ACLU
Foundation of Colorado is one of its state
affiliates.

Since its creation 60 years ago, the
ACLU has worked to ensure the integrity and
independence of the criminal justice
system. Within that system, "[t]jhe grand
jury has always occupied a high place as an
instrument of justice ... -= so much so

that it is enshrined in the Constitution."

1/ letters of consent to the filing of this brief
are being filed with the Clerk of the Court
pursuant to Rule 36.2 of the Rules of this Court.

United States v. Sells Engineering, Inc.,
463 U.S. 418, 423 (1983). This Court has
"consistently stood ready to defend [the
grand jury] against unwarranted intrusion,"
id. at 425, "find[{ing] actual prejudice [to
the defendant) irrelevant," Young v.

United States, 107 S.Ct. 2124, 2138-39 n.
21 (1987), where the integrity of the
criminal justice system is at stake.

This case involves the supervisory
authority of the federal district courts to
dismiss an indictment before trial where
prosecutorial misconduct in the grand jury
process is so egregious as to "undermine{ ]
confidence in the integrity of the criminal
proceeding." See id. at 2137. Under such
circumstances, the injury to the grand jury
process is "not limited to the defendant"
but rather extends "to the jury system, to

the law as an institution, to the community

at large, and to the democratic ideal
reflected in the processes of our courts."
Ballard v. United States, 329 U.S. 187,
195 (1946).

The decision of the Tenth Circuit
impermissibly deprives the federal district
courts of supervisory authority to dismiss
an indictment prior to trial absent proof
of actual prejudice to the defendant. This
new and unwarranted standard effectively
eliminates the power of district judges to
deter prosecutorial misconduct before the
grand jury.2/

Certain instances of egregious

prosecutorial misconduct can dramatically

2/ In United States v. Mechanik, 475 U.S. 66, 72
(1986), Justice Rehnquist's majority opinion
specifically left open the question of whether the
federal district courts may exercise supervisory
authority to dismiss an indictment before trial
because of prosecutorial misconduct in the grand
jury process absent proof of actual prejudice to
the defendant.

affect the integrity of the criminal
justice system even if a particular
defendant cannot or does not prove actual
prejudice. "Harmless error” analysis,
which focuses exclusively on prejudice to
the particular defendant, overlooks not
only the effect of such misconduct on the
criminal justice system, but also the
problems that accompany proof of actual
prejudice. As such, the analysis is
dangerously inappropriate. Because the
federal district courts must not be
deprived of remedies that they need to
exercise supervisory authority over the
grand jury process -- in order to promote
public respect as well as the integrity of
the criminal justice system -- the ACLU
submits this brief amici curiae in support

of petitioners.

ARGUMENT
I. THE DISTRICT COURTS MUST BE
AUTHORIZED TO DISMISS AN INDICT-
MENT BEFORE TRIAL WHERE WILLFUL
AND REPEATED PROSECUTORIAL

MISCONDUCT IN THE GRAND JURY
PROCESS UNDERMINES THE INTEGRITY

OF THE CRIMINAL JUSTICE SYSTEM _

This case raises important questions
about the function of the grand jury and
the ability of district judges, exercising
their supervisory authority, to curb
prosecutorial abuse of the grand jury
process.

A. The Grand Jury is Essential
to the of the Criminal

Justice System

The need for supervisory authority to
dismiss an indictment before trial because
of prosecutorial misconduct relates
inextricably to the role of the grand jury

within our system of criminal justice. The

historic role of the grand jury, of course,
is “to provide a fair method for
instituting criminal proceedings," Costello
v. United States, 350 U.S. 359, 362 (1956),
to serve "as a protector of citizens
against arbitrary and oppressive
governmental action," United States v.
Calandra, 414 U.S. 338, 343 (1974), and to
assure tie “protecting [of] citizens
against unfounded criminal prosecutions."
Branzburg v. Hayes, 408 U.S. 665, 686-87
(1972).

Convening “as a body of lay persons
acting in secret," United States v. Hogan,
712 F.2d 757, 759 (2d Cir. 1983), the
grand jury must not only be “independent
and informed," but must also “stand between
the accuser and the accused... to
determine whether a charge is founded upon

reason or dictated by an intimidating

power or by malice and personal ill will."

Wood v. Georgia, 370 U.S. 375, 390 (1962).
In fulfilling its constitutional
mandate, the grand jury is especially
dependent upon the prosecutor throughout
the course of its proceedings. In
principle, as this Court has explained,

The United States At-
torney is the
representative not of
an ordinary party to a
controversy, but of a
sovereignty whose
obligation to govern
impartially is as
compelling as its
obligation to govern at
all; and whose
interest, therefore, in
a criminal prosecution
is not that it shall
win a case, but that
justice shall be done.

Berger v. United States, 295 U.S. 78, 88
(1935). The prosecutor "draws up the

indictment, calls and examines the grand
jury witnesses, advises the grand jury as
to the law, and is in constant attendance

-7-

during its proceedings." United States v.
Hogan, 712 F.2d 757, 75 (2d Cir. 1983).

"By virtue of their position," as one court
acknowledges, prosecutors have "gained such
influence over grand juries that these
bodies' historic independence has been
eroded." Ibid. One commentator states:

[A] prosecutor can greatly
influence the grand jury
because he or she controls
the proceedings and the flow
of information. This
unbounded influence has led
critics to characterize the
grand jury as a "rubber
stamp" of the prosecutor.
These critics fear that
jurors passively accept
whatever a prosecutor
presents. The jurors are
inexperienced in legal
matters and therefore are
inclined to rely improperly
on the prosecutor.

Note, The Exercise of Supervisory Powers to

Dismiss a Grand Jury Indictment, 45 Ohio
St. L.J. 1077, 1079-80 (1984).

The fact that grand jury proceedings
are secret and ex parte magnifies
legitimate concerns about the influence of
the prosecutor on the independence and
impartiality of the grand jury. Public
confidence thus requires that prosecutors
respect and abide the constitutional,
statutory and judicial limits imposed on
their conduct during the grand jury
process. When the purposes of the grand
jury are undermined by severe, deliberate
and repeated instances of prosecutorial
misconduct, the credibility and integrity
of the criminal justice system are
themselves put at risk.

B. Supervisory Authority Over

the Grand Jury Process Allows

the Federal Courts to Ensure
and Enhance The Integrity of

the Criminal Justice System
The federal courts have an interest
"in preserving and protecting the

- 9 -«

appearance and the reality of fair practice

before the grand jury... ." United
States v. Serubo, 604 F.2d 807, 817 (3d

Cir. 1979). This important institutional
interest is separate and "independent of
[the judiciary's] concern for the rights of
the particular defendant." Ibid.

This Court has repeatedly recognized
that "(t]he untainted administration of
justice is one of the most cherished
aspects of our institutions," Communist

a Vv Vv iv
Board, 351 U.S. 115, 124 (1956), requiring
"the Court to make certain that the doing
of justice be made so manifest that only
irrational or perverse claims of its
disregard can be asserted." Ibid. As
Justice Brandeis warned in an analogous

context, lawless government behavior

"breeds contempt for the law" and "invites

- 10 =

every man to become a law unto himself."
Olmstead v. United States, 277 U.S. 438,
485 (1928) (Brandeis, J., dissenting).

Use of the district court's
supervisory authority to promote this
important institutional interest has, with
good reason, traditionally not required
proof of actual prejudice to the defendant.
See generally Note, iso we

of the Federal Courts, 76 Harv.L.Rev.
1656, 1657 (1963). An emphasis on actual

prejudice ignores important institutional
values in the criminal justice system that
are distinct from the individual rights of
a particular defendant. Forms of
misconduct harmless to the particular
defendant can nevertheless have a
deleterious effect on public respect for
the criminal justice system, as well as on

the continued viability of that system.

- ll -

Deterrence of such misconduct is a
legitimate concern of courts responsible
for "maintaining civilized standards of
procedure and evidence in the
administration of criminal justice."

McNabb v. United States, 318 U.S. 332, 340
(1943) .3/

3/ The Fourteenth Amendment does not require a
criminal defendant to show "actual bias in the
tribunal . . . ; due process is denied by
circumstances that create the likelihood of
appearance of bias." Peters v. Kiff, 407 U.S. 493,

502 (1972). See In re Murchison, 349 U.S. 133, 136
(1955) ("Fairness of course requires an absence of

actual bias in the trial of cases. But our system
of law has always endeavored to prevent even the

probability of unfairness"); see also Taylor v.

Louisiana, 379 U.S. 466 (1965); Tumey v. Ohio, 273
U.S. 510 (1927). Similarly, "({w]jhere the interest
infringed is sufficiently important . . . [this

Court has] not hesitated to find actual prejudice
irrelevant when utilizing supervisory authority."
Young v. United States, 107 S.Ct. at 2138-39 n.21,
citing Ballard v. United States, 329 U.S. at 187.

- 12 -

C. Federal District Courts Must be
Authorized to Dismiss an Indict-
ment Before Trial, Absent Proof
of Actual Prejudice, Where
Prosecutorial Misconduct Impairs
The Integrity Of The Criminal

Justice System

District judges possess supervisory
authority not for the purpose of punishing
prosecutors but rather to ensure that the
criminal justice system works the way it is
designed to work. They are in the best
position to know when the criminal justice
system has broken down because they work on
a daily basis with the assistants in the
office of the United States Attorney. When
such a breakdown occurs, it is absolutely
critical that the lower court retain not
only authority to dismiss criminal
indictments as a deterrent, but also
discretion to determine when such a
deterrent is necessary to preserve the
integrity of the criminal justice system.

- 13 -

Dismissal of the indictment before
trial because of prosecutorial abuse is
obviously a serious step. There is no
evidence, however, that it is taken lightly
by district judges. Rather, the sanction
is used with "extreme caution," see United
States v. Asdrubal-Herrera, 470 F.Supp.
939, 942 (N.D. Ill. 1979). The published
cases show that successful motions to
dismiss because of serious irregularities
in prosecutorial behavior are, in fact,
rare. See e.g., United States v.
DeFabritus, 605 F.Supp. 1538, 1543

(S.D.N.Y¥. 1985); United States v. Kazonis,
391 F.Supp. 804, 805 (D. Mass. 1975),

aff'd, 530 F.2d 962 (lst Cir.), cert.
denied, 429 U.S. 826 (1976).

Rather, the lower courts exercise
supervisory authority to dismiss only "when

government conduct has placed in jeopardy

- 14 <-

the integrity of the criminal justice
system," United States v. Samango, 607
F.2d 877, 884 (9th Cir. 1979), or “if there
is evidence that the challenged activity
was something other than an isolated
incident unmotivated by sinister ends,"
United States v. Serubo, 604 F.2d at 817,
or if the incidents of prosecutorial
misconduct were “flagrant and
unconscionable." United States v. Hogan,
712 F.2d at 762. |

In United States v. Crocker, 568 F.2d
1049 (3d Cir. 1977), for example, the
court declined to dismiss an indictment
where the United States Attorney had failed
to inform a target defendant that he was
the subject of a grant jury investigation.
The court warned, however, that dismissal

would be appropriate if similar

- 15 -

prosecutorial inaction tainted future grand
jury proceedings:

[T}here is no suggestion that the
practice of giving such warnings
is long-established among the
United States Attorneys of this
Circuit ... . [{Wje have
recognized that we have
supervisory authority over the
conducting of grand jury
proceedings, [but] we have
declined to exercise that power
to require warnings of a
statutory recantation right

- « « « Thus in the future,
United States Attorneys in the
Third Circuit should not be
surprised if, pursuant to our
supervisory powers over the
manner of conducting grand jury
proceedings, we were to [dismiss
an indictment for failure to
warn] where, as here, specific
inquiry is made on the
defendant's behalf.

Id. at 1056. Adherence to this strict
standard ensures that the judiciary's
supervisory power in no way encroaches on
the prerogatives of the other branches of

government.

- 16 =-

"Sparing use, of course, does not mean

no use," as stated in an analogous context

by the district court in United States v.

Omni International Corp., 634 F.Supp.
1414, 1438 (D.Md. 1986). "Even

‘disfavored remedies'. . . must be used in
certain situations." Ibid. In the

extreme case, the United States Attorney
may fail to “recognize[] that... [hje or
she is ‘an administrator of justice,'" see
United States v. Gold, 470 F.Supp. 1336,

1347 (N.D.I1ll. 1979), quoting United States
v. Andrews, 444 F.Supp. 1238, 1244 (E.D.

Mich. 1978), and act out of "zeal, malice,
partiality or other prejudice." United
States v. DiGrazia, 213 F.Supp. 232, 235
(N.D.Ill. 1963). Where the district court
faces repeated instances of prosecutorial
misconduct, uncorrected despite admonition

from the bench, "judicial ‘tongue clicking'

-17-<-

and adjurations as to the ‘better practice’
are likely to have little impact on the
problem." United States v. Serubo, 604
F.2d at 817-18.

Under such circumstances, disciplinary
actions or contempt proceedings will also
not be adequate to preserve the integrity
of the judicial system. The federal
district courts have little, if any,
control over disciplinary proceedings and,
in any event, many instances of misconduct
are not subject to contempt sanctions. See
e.g., Vasquez v. Hillery, 474 U.S. 254, 262
& n.5 (1986).

In the extreme or egregious case,
therefore, where prosecutorial misconduct
or abuse is cumulative and repeated,
dismissal is the only effective deterrent
to preserve the integrity of the judicial

process. As Judge Friendly explained in a

- 18 -

similar context, “a reversal with
instructions to dismiss the indictment may
help to translate the assurances of the
United States Attorneys into consistent
performance by their assistants." United
States v. Estepa, 471 F.2d 1132, 1137 (2d
Cir. 1972) (Friendly, J.).

As demonstrated by the following
decisions, supervisory authority to dismiss
the indictment before trial cannot and
should not be limited to situations in
which actual prejudice can be shown. Even
in extreme cases, a number of reasons may
preclude proof of actual prejudice. This
Court has recognized, however, in analogous
jury contexts, that the difficulty of
establishing prejudice does not mean that
the error is harmless. See Lockhart v.
McCree, 476 U.S. 162 (1986).

- 19 -

In United States v. Gold, 470 F.Supp.

at 1336, for example, the district court
dismissed the indictment, following an

evidentiary hearing that revealed

“extraordinary facts," see In re November
1979 Grand Jury, 616 F.2d 1021, 1023 (7th

Cir. 1980), including the prosecutor's
conflict of interest, the withholding of
exculpatory evidence, the destruction of
potentially relevant evidence, improper
testimony as a witness before the grand
jury, and improper comments on the exercise
of constitutional rights. "These
circumstances," the district court stated,
“revealing as they are, disclose a

totality of grand jury abuse by government

attorneys." United States v. Gold, 470
F.Supp. at 1355-56.

In United States v. Gallo, 394 F.Supp.
310 (D.Conn. 1975), the district court

- 20 -

likewise granted a motion to dismiss where
the prosecutor obtained a second

indictment by submitting to the grand jury
transcripts of witness testimony before a
prior grand jury. Over the preceding
decade, the Circuit had issued a series of
decisions "“condemn[{ing] the casual attitude
with respect to the presentation of
evidence manifested by the decision of the
Assistant United States Attorney to rely on
{[hearsay] testimony," United States v.
Estepa, 471 F.2d at 1135. In equal
measure, the district court had warned
against the use of hearsay where first-hand
information from live witnesses was readily
available. Nevertheless, the prosecutor
relied on selective portions of a grand
jury transcript that was known to be
"permeated with perjurious statements as to

crucial, material events," without advising

- 21-

the grand jury as to the hearsay quality of
the evidence presented. United States v.
Gallo, 394 F.Supp. at 315. Granting the
motion to dismiss, the district court made
clear that other, less drastic sanctions
had failed to achieve their desired effect:

In the exercise of its supervisory

powers over the conduct of judicial

business in this District, this Court
must not condone the actions of the
prosecutor in the case at bar with

"yet another admonition."

Id. at 316 (citations omitted).

The district courts have thus
recognized that dismissal is a sanction to
be used cautiously, a deterrent more often
threatened than exercised. See e.g.,
United States v. Pino, 708 F.2d 523, 530
(10th Cir. 1983). In the appropriate
case, however, exercise of such supervisory
authority is essential lest the court be
perceived to "brook behavior-that degrades

the grand jury into a rubber stamp, and the

- 22 -

testing of the prosecutor's evidence into

an empty ritual." See United States v. Al
Mudarris, 695 F.2d 1182, 1188 (9th Cir.),
cert. denied, 461 U.S. 932 (1983). It is
essential, therefore, that in an
appropriate case, the district courts be
able to back-up their admonitions and
reprimands with the definitive action of

dismissal.

II. THE PRACTICAL IMPOSSIBILITY
OF PROVING ACTUAL PREJUDICE
WOULD ELIMINATE DETERRENCE
OF PROSECUTORIAL MISCONDUCT

IN _MANY CASES OF ABUSE ___

The decision below nevertheless
authorizes district courts to dismiss
criminal indictments only on a showing of
actual prejudice to the defendant. As we
have seen, harmless error analysis ignores
the fact that repeated prosecutorial abuse

may significantly impair the integrity of

- 23 -

the criminal justice system -- and public
confidence in that system -- without
causing actual prejudice that can be

readily proved by a particular defendant.

A. Prosecutorial Misconduct Can
Dramatically Impair Public
Confidence Even if a
Particular Defendant Does
Not or Cannot Prove Actual

Prejudice _

Limiting the arsenal of weapons
available to the district court in an
egregious or extreme instance of
prosecutorial misconduct can be expected to
undermine public confidence in the criminal
justice system. As this Court recently
stated, even the “appearance of impropriety

. diminishes faith in the fuirness of
the criminal justice system in general."
Young v. United States, 107 S.Ct. at
2139.

- 24 -

1"

The grand jury has been the focus of
increasing criticism in recent years.4/
Some of the criticism has focused on the
availability to the prosecutor of a
"terrible array of coercive methods" that
can be used in secret and out of public
view. Ibid. See United States v. Hogan,
712 F.2d 757, 759 (2d Cir. 1983)("The gain
in prosecutors' influence over grand
juries is all the more reason to insist
that . . . limitations [upon prosecutorial
conduct] be observed strictly") To permit
misuse of these methods -- even in
instances deemed harmless to a particular

defendant -- could “impair public

4/ See, e.g., Grand Jury Disclosure: Hearings on
S.1676 before the Senate Committee on the
Judiciary, 99th Cong. (Nov. 19, 1985); Grand Jury
Reform: Hearings before the Subcommittee on
Immigration, Citizenship and International Law,"
of the House of Representatives Committee on the
Judiciary, 95th Cong. ( Mar. 17 - June 29, 1977).

- 25 -

willingness to accept the legitimate use of
those powers." Young v. United States, 107
S. Ct. at 2139-40. See Taylor v.
Louisiana, 419 U.S. 522, 530 (1975)
(community participation is essential to
public confidence in the criminal justice
system); see also M. Frankel & G.
Naftalis, The Grand Jury 120 (1977)
(importance of grand jury as a vehicle for
citizen participation) .2/

The continued viability of the grand

jury process requires broad powers of

3/ In federal courts, 81 percent of the criminal
convictions obtained in fiscal 1982 were based on
guilty pleas. Note,

, 87 Colum.L.Rev.
142, 142 n.1 (1987). Given this reality of the
criminal justice system, the majority of defendants
will never be judged by a jury of their peers. The
grand jury is the only point where the comunity
will participate in determining whether to impose
criminal sanctions. Prosecutorial misconduct
before the grand jury is thus highly detrimental to
public confidence and the viability of the criminal

justice system.

- 26 -

investigation in order to gather evidence
of criminal activity. "As a grand
inquest," this Court has stated, the grand
jury is "a body with powers of
investigation and inquisition, the scope of
whose inquiries is not to be limited
narrowly by questions of propriety or
forecasts of the probable result of the
investigation... ." Blair v. United
States, 250 U.S. 273, 282 (1919). Public
confidence is undermined, however, if the
prosecutor uses the grand jury process for
purposes inconsistent with its historic
role. This occurs, for example, where the
government attorney uses the grand jury
"'for the sole or dominating purpose of
preparing an aiready pending indictment for
trial.'" United States v. Dardi, 330 F.2d
316, 336 (2d Cir. 1964) (quoting district

court opinion). Where the abuse is

- 27 -

repeated and uncorrected -- despite
admonition -- the public may properly fear
"a possible revival of a version of the
English Star Chamber." United States v.
Doss, 545 F.2d 548, 549 (6th Cir. 1976).
"(E}mployment of the grand jury as a
discovery instrument to help the government
prepare evidence to convict an already
indicted defendant .. . would pervert its
constitutional and historical function,"
ibid., and thus undermine confidence in the
integrity of the judicial process.

By the same token, because a grand
Sury's investigatory powers are so
extensive, it would be extremely tempting
for any Civil Division or agency attorney
to seek impanelment of a grand jury --
thereby gaining access to sworn testimony
and pertinent documents -- when an

independent investigation has become

- 28 -

frustrated. Absent proof of actual
prejudice to a particular defendant, strong
policy reasons may nevertheless warrant
dismissal in the extreme case where
evidence of misconduct is cumulative and
egregious.

Similarly, public confidence is
undermined if the government attorney
improperly enlists the grand jury to
assist in administrative investigations.
Dissemination of grand jury information to
government experts in an unrelated civil
proceeding involving third-parties might
not cause actual prejudice to the defendant
-- but the practice, unchecked and
pervasive, would destroy the appearance of
grand jury independence.

In other instances, as well, public
confidence will be undermined, even where a

particular defendant cannot or does not

- 29 «-

prove actual prejudice, because of
prosecutorial abuse of the grand jury
process. For example, there is a strong
potential for abuse when news reporters or
other media representatives are called as
witnesses before the grand jury, when the
prosecutor has reasonable basis to believe
that they will claim a First Amendment
privilege not to testify. "[(0)fficial
harassment of the press," this Court has
stated, “undertaken not for purposes of law
enforcement but to disrupt a reporter's
relationship with his news sources would
have no justification." Branzburg v.
Hayes, 408 U.S. at 707-08. Under such
circumstances, a particular defendant may
not be able to prove actual prejudice. But
the damage to public trust is great.
Concerns implicated by prosecutorial

misconduct -- the integrity of the

- 30 -

criminal justice system, the perception of
sovereign impartiality, and the ideal of
public participation in the criminal
process -- are too important for public
confidence to leave the district courts
without adequate remedy.£/ "The use of
supervisory powers warns prosecutors that
courts will act if prosecutors behave
improperly. This warning might prevent
future misconduct that otherwise would

require the dismissal of indictments

- + «" Note, The Exercise of Supervisory
Powers to Dismiss a Grand Jury Indictment,
45 Ohio St. L.J. at 1094. Lest the courts

appear to condone conduct detrimental to
the integrity of the judicial system,
dismissal must remain a remedy available to

the district court in an appropriate case.

&’ Dismissal, of course, leaves the prosecutor
free to seek another indictment.

- 31 -

B. Actual Prejudice Is Difficult
If Not Impossible to Prove

Finally, the requirement of actual
prejudice impermissibly shifts to the
defendant the burden of proving that errors
caused by prosecutorial misconduct were not
harmless.2/ This standard is
inappropriate. It is extremely difficult,
if not impossible, to prove actual
prejudice even in cases where the alleged
abuse or misconduct has impaired the
independence and impartiality of the grand
jury.

First, "(t]he prospect of peering
into the grand jurors' minds, or of
examining them individually, to ascertain
whether . . testimony was improperly

used, is both impractical and unpalatable."

2/ by insisting that the defendant prove actual
prejudice, the decision below improperly shifts
the burden of proof from the government.

- 32 -

United States v. Hinton, 543 F.2d 1002,
1010 (2d Cir. 1976), cert. denied, 429 U.S.
1066 (1977). As one commentator explains:

Because the defense attorney is barred
from the proceedings and because grand
jury proceedings are surrounded by
secrecy, the defense attorney is often
uninformed about the substance of the
hearings. Moreover, no one knows
exactly how grand juries function and
what actually influences their
decisions. The testimony of jurors
cannot be determinative on the
question of whether they were
improperly influenced. Few people
will admit that they were biased.
Additionally, some jurors may not
realize that they were improperly
influenced.

Note, The Exercise of Supervisory Powers
to Dismiss a Grand Jury Indictment, supra,

at 1093. As Justice O'Conor stated in an
analogous jury context, "Determining
whether a juror is biased or has prejudged
a case is difficult, partly because the
juror may have and interest in concealing
his own bias and partly because the juror

may be unaware of it." Smith v. Phillips,

- 33 -

455 U.S. 209, 221-22 (1982) (O'Connor, Jr.,
concurring); see also Marshall v. United
States, 360 U.S. 310, 312 (1959) (statement
of jurors that they would not be influenced
by publicity not dispositive).

Moreover, the very inquiry into state
of mind jeopardizes the important policy of
grand jury secrecy. See e.g., United
States v. Pignatiello, 582 F.Supp. 251,

253 (D.Col. 1984); United States v. Sears,

Roebuck & Co., 579 F.Supp. 1055, 1056
(C.D. Cal. 1984). The requirement of

grand jury secrecy is presently codified in
Rules 6(d) and (e) of the Federal Rules of
Criminal Procedure. Its roots, however,
are “older than our Nation itself."
Pittsburgh Plate Glass v. United States,

360 U.S. 395, 399 (1959). As Anglo-
American law has recognized for centuries,

grand jury secrecy prevents intimidation of

- 34 -

jurors, protects the innocent accused, and
insures that the grand jury has the
opportunity to make an independent
examination free from undue influence.
United States v. Procter & Gamble, 356 U.S.
677, 681 (1958). The important policy of
grand jury secrecy should not be undermined
by requiring proof of actual prejudice
before the district court may dismiss an
indictment when prosecutorial misconduct is
so egregious as to taint the criminal

justice system itself.

- 35 -

CONCLUSION

The injury caused by prosecutorial
misconduct in the grand jury process cannot
be properly be assessed if district courts
are limited to asking whether the defendant
would have otherwise been indicted. This
Court has expressly rejected such a narrow
view of its supervisory authority. Most
recently, this Court noted in Young v.
United States, that "what is at stake is
the public perception of the integrity of
our criminal justice system. 107 S.Ct. at
2140. With so much at stake, district
court judges must not be deprived of the
remedies that they legitimately need to
exercise properly supervisory authority
over the grand jury process.

For the foregoing reasons, the

- 36 -

decision below should be reversed.

Respectfully submitted,

John A. Powell
(Counsel of Record)
Helen Hershkoff
Steven R. Shapiro
American Civil Liberties
Union Foundation
132 West 43 Street
New York, New York 10036
(212) 944-9800

David H. Miller
American Civil Liberties
Union Foundation
of Colorado
815 East 22 Avenue
Denver, Colorado 80205
(303) 861-2258

Richard F. Ziegler
Martha F. Davis

Cleary, Gottlieb,

Steen & Hamilton

One State Street Plaza
New York, New York 10004
(212) 344-0600

Dated: February 25, 1988

- 37 «-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0584%3A10. Public record. Not legal advice.