Amicus Curiae Brief — United States v. Resendiz-Ponce

) AUG 25 2006

No. 05-998

In the

Supreme Court of the United States

UNITED STATES OF AMERICA, Petitioner,

Vv.

JUAN RESENDIZ-PONCE, Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE

NATIONAL ASSOCIATION OF FEDERAL DEFENDERS

AS AMICUS CURIAE SUPPORTING RESPONDENT

NATIONAL ASSOCIATION Steven F. Hubachek

OF FEDERAL DEFENDERS Chief Appellate Attorney

Henry J. Bemporad Counsel of Record

Frances H. Pratt, Co-Chairs, Federal Defenders of San

Amicus Committee Diego, Inc.

225 Broadway, Suite 900

San Diego, CA 92101-5030

Telephone: (619) 234-8467

BEST AVAILABLE COPY

i

TABLE OF CONTENTS

. Page

Pe I ba stvanovncckasucs cncuewes lil

Sg | re rere ]

I UII 6 fns's Nia don dite eee ee 2

* Sheik sccineectrkasacewen' id cers ikea ae 3

Because the Effect of the Failure to Present All

Offense Elements to a Grand Jury Cannot Be

Reliably Assessed, Such Errors Are Structural. ... 3

| IRATE A SS Mak Reta eM Mee 3

B. Stirone and Russell Hold That an Indictment

That Omits a Theory of Liability or Fails to

State an Offense Requires Automatic Reversal

Because a Reviewing Court Cannot Substitute

Its Judgment for That of the Grand Jury... .... 4

C. Vasquez Confirms That the Grand Jury

Possesses Broad Discretion to Frame the

Charges in an Indictment, Discretion That

Cannot Be Replicated by a Court Performing a

Harmless-Error Analysis................... 8

1. Vasquez Vindicates the Understanding of the

Grand Jury That Animated Stirone and

2. The Lower Courts Support Vasquez’s

Description of the Scope of the Grand Jury’s

ED Shu Wash eee Means abou Gx 10

ii

TABLE OF CONTENTS - Continued

Page

3. The Court Should Reject the Solicitor

General’s Attempt to Eviscerate Vasquez.. 13

a. Vasquez Affirms Constitutionally-

Mandated Discretion, Not

EE snd Sw k'eho cs Codtaus 13

b. Vasquez’s Explication of the Grand

Jury’s Role Was Not Dicta. ......... 15

c. The Historical Record Demonstrates

That the Framers Likely Shared

Vasquez’s Conception of the Grand Jury

rekabeedees eoes pies hetesavaukeus 19

D. Bank of Nova Scotia and Mechanik Are

Inapposite Because They Involved Non-

Constitutional Errors, Not the Grand Jury’s

PE PUI boc aceddcnnsobeedsens 22

E. Because No Court Can Know What the Grand

Jury Would Be Willing to Charge, the Omission

of an Element From an Indictment Is a

Structural Error, Despite the Solicitor General’s

Speculation That Some Such Errors May Aid

I 6 5b Wala cig ucuwadah aeeelel 23

F. An Indictment’s Failure to State an Offense Is

S .uctural Error Under Rule 34............. 26

IP RA SARE ee NEES a et RL 30

iii

TABLE OF AUTHORITIES

Page

CASES

Application of Jordan, 439 F. Supp. 199 (S.D.W.V.

Arizona v. Fulminante, 499 U.S. 279 (1991)..... 25

Bank of Nova Scotia v. United States, 487 U.S. 250

PS bUleudsavecssdencues 9-10, 18, 22-23, 27

Bordenkircher v. Hayes, 434 U.S. 357 (1978)..... 9

Butz v. Economou, 438 U.S. 478 (1978). ....... 13

Campbell v. Louisiana, 523 U.S. 392 (1998)

Ex parte Bain, 121 U.S. 1 (1887)......... 5, 19, 21

Fields v. Soloff, 920 F.2d 1114 (2d Cir. 1990).... 20

Gaither v. United States, 413 F.2d 1061 (D.C. Cir.

DN 6 o>» + 0ébbaamenhewelunnunes 11, 12,19

Gozlon-Peretz v. United States, 498 U.S. 395

SSS ak dudes en eel he dae ceeds 28

Guam v. Palomo, 511 F.2d 255 (9th Cir. 1975)... 29

Hamling v. United States, 418 U.S. 87 (1974)

Rhbed hhh sale Ciedbidduekn ebakn ined cao a 4,27, 29

In re Kittle, 180 F. 946 (S.D.N.Y. 1910)........ 12

iv

TABLE OF AUTHORITIES -— Continued

Page

In re Report and Recommendation of June 5, 1972

Grand Jury Concerning Transmission of Evidence

to the House of Representatives, 370 F. Supp. 1219

GaP SOPs ci neeeeveavusssebesrearaan 11

Johnson v. United States, 520 U.S. 461 (1997). ... 5

Natwig v. Webster, 562 F. Supp. 225 (D.R.I. 1983)

Neder v. United States, 527 U.S. 1 (1999)....... 24

Russell v. United States, 369 U.S. 749 (1962)

is Raciadheanad 2,3, 4, 5, 7, 8, 9, 10, 21, 22, 23, 24

Seminole Tribe of Florida v. Florida, 517 U.S. 44

CRD s watee kad ax ikiets donee cae 15,17

Spector Motor Service v. McLaughlin, 323 U.S. 101

CORPO oc ono tbo dnk deka eceveie eee 4, 30

Stirone v. United States, 361 U.S. 212 (1960)

(keage be Cee wen 2, 3, 4, 5, 6, 7, 8, 9, 21, 22, 23, 26

United States v. American Trucking Ass’ns, 310

Ds SRO CEPOGR oo vcdevdsncscececenaniowee 29

United States v. Asdrubal-Herrera, 470 F. Supp.

oo tS OR Eee ir ee 11

United States v. Calandra, 414 U.S. 338 (1974)... 26

United States v. Carll, 105 U.S. 611 (1881)...... 26

United States v. Ciambrone, 601 F.2d 616 (2d Cir.

SPIO Rs o0csparnckvesandiveubeneenueeee 8,12

v

TABLE OF AUTHORITIES — Continued

Page

United States v. Cotton, 535 U.S. 625 (2002). .... 5

United States v. Cox, 342 F.2d 167 (Sth Cir. 1965)

PESEVECeeee he ceeddeddeececescseeue 11, 12,14

TS baa eee _.. 4,25, 26

United States v. Jacobo-Zavala, 241 F.3d 1009

eee Oe ek ea debe bs 13

United States v. Mechanik, 475 U.S. 66 (1986)

i tidied eh anh eects odes 10, 17, 18, 22, 23, 27

United States v. Navarro-Vargas, 367 F .3d 896 (9th

PREG hsv daws Seenees eacenceees 10, 12, 14

United States v. Navarro-Vargas, 408 F.3d 1184

(9th Cir.) (en banc), cert. denied, 126 S. Ct. 736

DCC htbbebeschkeséeeeues 10, 12-13, 20, 22

United States v. Sells Engineering, 463 U.S. 418

tin had ot6 ee owed kn ebeuds eebeeee 24

United States v. Sisson, 399 U.S. 267 (1970)..... 29

United States v. Wiggins, 971 F. Supp. 660

che eben dade ws weneeee ee 29

United States v. Williams, 504 U.S. 36 (1992)

EE EEE SS a are 14, 22, 26

Vasquez v. Hillery, 474 U.S. 254 (1986). .... passim

vi

TABLE OF AUTHORITIES -— Continued

Page

Zedner v. United States, 126 S. Ct. 1976 (2006) .. 28

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

U.S. Const. amend. V...... 1, 2,3, 7, 19, 20, 21, 30

Se ED WES bocca >s cbsehecu denen l

ere rT errs ]

SES Shs wedepukahsudbecicaees 28

Pe Gs ae 4 x04 ce nadehsatdesabecas 30

ee MAY Ohno 6 on ndccadsaesndone canes 23

4 £4 gre ree eee 29, 30

TE EG Mes bnicccedcckekeeseekuwal 27

reé. R. Colm. P. 34......... 3, 4, 26, 27, 28, 29, 30

. Fe 8S ee ee 4, 22, 27, 28, 29

i EE: ass oentetnd Gaeedabes benees 1

OTHER AUTHORITIES

Akhil Reed Amar, 7he Bill of Rights as a

Constitution, 100 Yale L.J. 1131 (1991). ....... 11

Sara S. Beale et al., Grand Jury Law and Practice

es BOOT va é ceuaun sadedbncnceueuse 11, 20

Leroy D. Clark, The Grand Jury: The Use and

Abuse of Political Power (1975). ............. 21

Vii

TABLE OF AUTHORITIES — Continued

Page

The Documentary History of the Supreme Court of

the United States, 1789-90: The Justices On

Circuit: 1790-94 (Maeva Marcus ed., 1990)... .. 21

George D. Edwards, The Grand Jury (1906)..... 11

Andrew Horwitz, Taking the Cop Out of Copping a

Plea: Eradicating Police Prosecution, 40 Ariz. L.

Se UES S cbevcctncdbentacececeune 11

Niki Kuckes, The Democratic Prosecutor:

Explaining the Constitutional Function of the

Federal Grand Jury, 94 Geo. L.J. 1265 (2006)

pep ubnekdbada voce dedusbecseausened 11, 13, 21-

Wayne LaFave et al., Criminal Procedure (2d ed.

RN ry re ee ee ee ee 20, 21

Andrew D. Leipold, Why Grand Juries Do Not (and

Cannot) Protect the Accused, 80 Cornell L. Rev.

PEPE on cnadencenedeso56n6heuenes 19, 20

Ralph Lerner, The Supreme Court as Republican

Schoolmaster, 1967 Sup. Ct. Rev. 127........ 21-22

Ric Simmons, Re-Examining the Grand Jury: Is

There Room for Democracy in the Criminal Justice

System?, 82 B.U. L. Rev. 1 (2002)............. 1]

K. Brent Tomer, Ring Around the Grand Jury:

Informing Grand Jurors of the Capital Conse-

quences of Aggravating Facts, 17 Cap. Def. J. 61

DNS bb OScdneer heeebodauuctecaniuuete 11

Vill

TABLE OF AUTHORITIES - Continued

Page

Charles A. Wright et al., Federal Practice and

Procedure: Criminal 3d (1999)............... 30

Richard D. Younger, The People’s Panel: The

Grand Jury in the United States, 1634-1941 (1963)

1

INTEREST OF AMICUS CURIAE'

The National Association of Federal Defenders

(NAFD) was formed in 1995 to enhance representation

provided under the Criminal Justice Act (CJA), 18 U.S.C.

§ 3006A, and the Sixth Amendment to the Constitution.

NAFD is a nationwide, nonprofit, volunteer organization

whose membership includes attorneys employed by federal

public and community defender organizations authorized

under the CJA. NA¢FD promotes fair adjudication by

appearing aS amicus curiae in criminal-law matters,

particularly those affecting indigent defendants. NAFD

has appeared as amicus curiae in a number of recent cases

before this Court.

NAFD files this brief because the Fifth Amendment’s

grand jury right is a central constitutional protection and

the Solicitor General’s position that an insufficient

indictment should be subject to harmless error review

demeans the grand jury’s historic role and reduces that

body’s independence from the Executive and the Judiciary.

The parties have consented to the filing of the instant

brief of Amicus Curiae on behalf of the Respondent. Their

letters of consent were submitted with the brief.

' No counsel for a party authored any part of this brief. S. Ct.

Rule 37.6. No person or entity other than Amicus Curiae made a

monetary contribution to the preparation or submission of the brief.

2

SUMMARY OF ARGUMENT

The denial of the Fifth Amendment right to indictment

by a grand jury is a structural error. The indictment at

issue in this case is constitutionally deficient: it fails to

state an offense. This Court has long held that such an

indictment is subject to automatic reversal.

The Court’s automatic reversal cases vindicate the

independence of the grand jurors and the discretion vested

in them. Stirone v. United States, 361 U.S. 212 (1960),

Russell v. United States, 369 U.S. 749 (1962), and Vasquez

v. Hillery, 474 U.S. 254 (1986), hold that courts may not

substitute their own judgment for that of the grand jurors;

no court can replicate their discretionary review. That

discretion extends to framing the charges, and even to the

question of whether any charge should be filed at all.

The error here — the failure to submit all of the elements

of the offense to the grand jury — directly implicates the

grand jury’s screening function. When the government

fails to submit all of the elements, that omission affects the

grand jurors’ assessment of the case by removing (at least)

one element — and the facts underlying it — from their

consideration. The failure to submit all of the elements

also implicates the grand jurors’ self-directed investigative

function. In order to perform a harmless error analysis, a

court would have to both substitute its assessment of the

missing elements (forbidden by Stirone and Russell) and

speculate as to what investigative activities the grand jury

may have undertaken and what the results of that

investigation might have been. Because courts cannot

reliably engage in these speculative inquiries, the error is

structural.

3

The Court may avoid these difficult constitutional

questions. Fed. R. Crim. P. 34(a)(1) provides that “the

court must arrest judgment if . . . the indictment or

information does not charge an offense.” This mandatory

language demonstrates that Congress did not intend

application of harmless error analysis to this fundamental

defect. -

ARGUMENT

BECAUSE THE EFFECT OF THE FAILURE TO

PRESENT ALL OFFENSE ELEMENTS TO A

GRAND JURY CANNOT BE RELIABLY

ASSESSED, SUCH ERRORS ARE STRUCTURAL

A. Introduction.

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

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury ... .” U.S. Const. amend. V.

The Solicitor General concedes that an indictment not

containing all the elements of the charged offense violates

the Fifth Amendment. U-S. Br. at 9-10. The Court has

held that the omission of an element from the indictment

requires reversal because “[t]o allow the prosecutor, or the

court, to make a subsequent guess as to what was in the

minds of the grand jury at the time they returned the

indictment would deprive the defendant of a basic

protection which the guaranty of the intervention of a

grand jury was designed to secure.” Russell, 369 U.S.

at 770; accord Stirone, 361 U.S. at217. The Court refuses

to make such a “guess” because the grand jury possesses

broad discretion to charge a lesser offense, fewer offenses,

or no offenses at all pursuant to its screening function.

Vasquez, 474 U.S. at 263-64. The discretion identified in

Russell, Stirone, and Vasquez precludes reliable

4

assessment of the effect of the government’s failure to

present all of the elements of an offense to the grand jury.

Therefore, the error is structural. See United States v.

Gonzalez-Lopez, 126 S. Ct. 2557, 2564 n.4 (2006)

(“rest[ing its] conclusion of structural error on the

difficulty of assessing the effect of the error”) (citations

omitted).

The Court may avoid these constitutional issues by

recognizing that under Fed. R. Crim. P. 34, an indictment

that fails to state an offense is not subject to harmless error

review: “[u]pon the defendant’s motion or on its own, the

court must arrest judgment if . . . the indictment or

information does not charge an offense.” Fed. R. Crim.

P. 34(a)(1) (emphasis added). Rule 34 must be read in pari

materia with Fed. R. Crim. P. 52(a). Hamling v. United

States, 418 U.S. 87, 134-35 (1974). Because Rule 34

contains mandatory language, Rule 52(a) cannot be read to

require a harmless error analysis as to such an error. The

Court should avoid the constitutional questions by finding

that in Rule 34 Congress determined that an indictment’s

failure to state an offense is a structural error. See Spector

Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944).

B. Stirone and Russell Hold That an Indictment

That Omits a Theory of Liability or Fails to

State an Offense Requires Automatic Reversal

Because a Reviewing Court Cannot Substitute

Its Judgment for That of the Grand Jury.

In Stirone, 361 U.S. 212, and Russell, 369 U.S. 749, the

Court applied an automatic reversal rule to errors that, like

the error here, went directly to the grand jury’s screening

5

function.’ In Stirone, the defendant was charged, in an

indictment, with interfering with shipments of sand by

William Rider into Pennsylvania. 361 U.S. at 213. The

sand was “to be used for the erection of a steel-processing

plant at Allenport, Pennsylvania.” Jd.

The district judge, over petitioner’s objection as to

its materiality and relevancy, permitted the

Government to offer evidence of an effect on

interstate commerce not only in sand brought into

Pennsylvania from other States but also in

interference with steel shipments from the steel

plant in Pennsylvania into Michigan and Kentucky.

Id. at 214. The latter theory was not charged in the

indictment; the former was. /d. at 217.

The Court held that the district court erred in permitting

the petit jury to consider the theory of liability that the

defendant interfered with steel shipments from the steel

* In United States v. Cotton, 535 U.S. 625 (2002), the Court

noted that Russell and Stirone rejected application of harmless error

analysis to preserved indictment error, stating that “[w]e need not

retreat from this settled proposition of law.” See id. at 631. Cotton

rejected the notion that a defective indictment was a jurisdictional

defect. See id. (overruling Ex parte Bain, 121 U.S. 1 (1887)).

Although both cite Bain, neither Russell nor Stirone relies upon

Bain’s jurisdictional analysis, and Cotton therefore does not

undermine them.

Nor does Cotton’s holding that the omission of a sentencing

“element” from the indictment is reviewable for plain error

undermine Respondent’s argument that the omission of an element

from the indictment is structural error. See Johnson v. United States,

520 U.S. 461, 466 (1997) (forfeited structural error is reviewed under

the plain error standard).

6

~ plant in Pennsylvania into Michigan and Kentucky: “a

court cannot permit a defendant to be tried on charges that

are not made in the indictment against him.” See id.

(citations omitted). The Court observed that “it cannot be

said with certainty that with a new basis for conviction

added, Stirone was convicted solely on tue charge made in

the indictment the grand jury returned.” Jd. In other

words, the Court was concerned that the petit jury may

have convicted Stirone by finding that the government had

proved, beyond a reasonable doubt, that he interfered with

steel shipments from the steel plant in Pennsylvania into

Michigan and Kentucky.

Even though the petit jury could have made that finding

under the beyond-a-reasonable-doubt standard, the Court

reversed because

[t]he grand jury which found this indictment was

satisfied to charge that Stirone’s conduct interfered

with interstate importation of sand. But neither this

nor any other court can know that the grand jury

would have been willing to charge that Stirone’s

conduct would interfere with interstate exportation

of steel from a mill later to be built with Rider’s

concrete.

Id. Because the petit jury could have found Stirone guilty

under the theory of interference with the exportation of

steel beyond a reasonable doubt, a reviewing court could

certainly “know” whether a grand jury would have found

probable cause as to that theory: it would have. But

Stirone recognized that probable cause was not the sole

~ jssue; the question was, would the grand jury “have been

willing to charge” that theory. By recognizing that no

court could know what the grand jury would be willing to

7

charge, Stirone established that the grand jury possessed,

in fulfilling its screening function, discretion that defied

judicial review.

Russell adopted the same approach. There, the

indictment was insufficient for failure to allege an offense

element: the subject under inquiry by a congressional

committee at the time of the defendant’s refusal to answer

questions. 369 U.S. at 753-55. By requiring a grand jury

indictment, “Congress made the basic decision that only a

grand jury could determine whether a person should be

held to answer in a criminal trial for refusing to give

testimony pertinent to a question under congressional

committee inquiry.” Jd. at 770. Russell held that the grand

jury’s prerogative could not be usurped by the other

participants in the criminal justice system, the Executive

and the Judiciary, because “[t]o allow the prosecutor, or

the court, to make a subsequent guess as to what was in the

minds of the grand jury at the time they returned the

indictment would deprive the defendant of [his Fifth

Amendment rights].” /d. If the grand jury’s function is

merely to determine probable cause, Russell’s reluctance

“to make a subsequent guess as to what was in the minds

of the grand jury,” id., makes little sense; a court would be

even more skilled in assessing probable cause than the

grand jury. Rather, Russell vindicated the grand jury’s

broad discretion in performing its screening function.

8

C. Vasquez Confirms That the Grand Jury

Possesses Broad Discretion to Frame the

Charges in an Indictment, Discretion That

Cannot Be Replicated by a Court Performing a

Harmless-Error Analysis.

1. Vasquez Vindicates the Understanding of the

Grand Jury That Animated Stirone and

Russell.

The Court built upon the analytical basis for its

decisions in Stirone and Russell through its explication of

the extent of the grand jury’s discretion in Vasquez v

Hillery:

The grand jury does not determine only that

probable cause exists to believe that a defendant

committed a crime, or that it does not. In the hands

of the grand jury lies the power to charge a greater

offense or a lesser offense; numerous counts or a

single count; and perhaps most significant of all, a

capital offense or a non-capital offense — all on the

basis of the same facts. Moreover, “[t]he grand jury

is not bound to indict in every case where a

conviction can be obtained.”

474 U.S. 254, 263 (1986) (quoting United States v.

Ciambrone, 601 F.2d 616, 629 (2d Cir. 1979) (Friendly, J.,

dissenting)); accord Campbell v. Louisiana, 523 U.S. 392,

399 (1998) (The grand jury “controls not only the initial

decision to indict, but also significant decisions such as

how many counts to charge and whether to charge a

greater or lesser offense, including the important decision

whether to charge a capital crime.”). Thus, “even if a

grand jury’s determination of probable cause is confirmed

in hindsight by a conviction on the indicted offense, that

9

confirmation in no way suggests that the discrimination did

not impermissibly infect the framing of the indictment and,

consequently, the nature or very existence of the

proceedings to come.” Jd.* Vasquez rejects the Solicitor

General’s contention that “the role of the grand jury is to

indict whenever there is probable cause to believe that the

accused committed the charged crime.” U.S. Br. at 28.

Nor is there merit in the Solicitor General’s suggestion,

id. at 20, that Vasquez’s understanding of the grand jury’s

role is somehow limited to the context of racial

discrimination: the Court’s unwillingness to second-guess

the grand jury’s judgment in Russell and Stirone was based

on the grand jury’s broad discretion. Stirone, like Vasquez,

recognized that probable cause was not the sole issue; the

question was, would the grand jury “have been willing to

charge” an additional theory. See Stirone, 361 U.S. at 217.

By recognizing that no court could know what the grand

jury would be willing to charge, Stirone anticipated

Vasquez’s later holding that “[t}he grand jury is not bound

to indict in every case where a conviction can be

obtained.” See Vasquez, 474 U.S. at 263.*

* Justice Blackmun has identified an example of a grand jury’s

traditional discretion, stating that “it is conceivable that a properly

instructed Keutucky grand jury, in response [to the very severe

penalties associated with a habitual offender statute], would have

refused to subject petitioner to such an onerous penalty for his

forgery charge” even though there was sufficient evidence.

Bordenkircher v. Hayes, 434 U.S. 357, 368 n.2 (1978) (Blackmun,

J., dissenting).

* In Bank of Nova Scotia v. United States, 487 U.S. 250 (1988),

the Court observed that “[t]he nature of the violation [in cases such

(continued...)

10

Russell also anticipated Vasquez. There, the Court’s

refusal “to make a subsequent guess as to what was in the

minds of the grand jury at the time they returned the

indictment,” 369 U.S. at 770, fits comfortably within the

Vasquez paradigm. The Court’s reluctance to make a

“guess” as to how the grand jury would have exercised its

discretion is a consequence of the courts’ inability to

interfere with charging decisions.

2. The Lower Courts Support Vasquez’s

Description of the Scope of the Grand Jury’s

Discretion.

Although the lower courts have not often considered

the scope of the grand jury’s prerogatives, a number of

opinions endorse Vasquez’s conception of the grand jury.

See, e.g., United States v. Navarro-Vargas, 408 F.3d 1184,

1200 (9th Cir.) (en banc) (Navarro-Vargas II), cert.

denied, 126 S. Ct. 736 (2005); id. at i211-12 (Hawkins, J.,

dissenting); United States v. Navarro-Vargas, 367 F.3d

896, 899 (9th Cir. 2004) (Kozinski, J., dissenting)

* (...continued)

as Vasquez] allowed a presumption that the defendant was

prejudiced, and any inquiry into harmless error would have been

unguided speculation.” /d. at 257. If the grand jury’s function is

solely to determine probable cause, there is no reason to believe that

the “inquiry into harmless error would have been unguided

speculation,” id., because the analysis of whether there is probable

cause after a jury verdict under the beyond-a-reasonable-doubt

standard is not the least bit complex; there would always be probable

cause. See United States v. Mechanik, 475 U.S. 66, 70 (1986)

(“[Tjhe petit jury’s subsequent guilty verdict means not only that

there was probable cause to believe that the defendants were guilty

as charged, but also that they are in fact guilty as charged beyond a

reasonable doubt.”).

1]

(Navarro-Vargas I); Gaither v. United States, 413 F.2d

1061, 1066 & n.6 (D.C. Cir. 1969); United States v. Cox,

342 F.2d 167, 189-90 (Sth Cir. 1965) (Wisdom, J.,

concurring); Natwig v. Webster, 562 F. Supp. 225, 230 n.2

(D.R.I. 1983); United States v. Asdrubal-Herrera, 470 F.

Supp. 939, 942 (N.D. Ill. 1979); Application of Jordan,

439 F. Supp. 199, 202-04 & n.5 (S.D.W.V. 1977); In re

Report and Recommendation of June 5, 1972 Grand Jury

Concerning Transmission of Evidence to the House of

Representatives, 370 F. Supp. 1219, 1222 (D.D.C. 1974).°

The grand jury’s freedom to decline to return an

indictment even in a “case where a conviction can be

obtained,” Vasquez, 474 U.S. at 263, is fundamental to its

role as a protector of the people from the power of the

Executive.

By refusing to indict, the grand jury has the

unchallengeable power to defend the innocent from

* Numerous commentators agree with Vasquez’s conception of

the grand jury. See Niki Kuckes, The Democratic Prosecutor:

Explaining the Constitutional Function of the Federal Grand Jury,

94 Geo. L.J. 1265, 1299-1309 (2006); K. Brent Tomer, Ring Around

the Grand Jury: Informing Grand Jurors of the Capital Conse-

quences of Aggravating Facts, \7 Cap. Def. J. 61, 76 (2004); Ric

Simmons, Re-Examining the Grand Jury: Is There Room for

Democracy in the Criminal Justice System? , 82 B.U. L. Rev. 1, 2

(2002); Andrew Horwitz, Taking the Cop Out of Copping a Plea:

Eradicating Police Prosecution, 40 Ariz. L. Rev. 1305, 1361-62

(1998); 1 Sara S. Beale et al., Grand Jury Law and Practice § 1:6,

at 1-32 (2d ed. 1997); Akhil Reed Amar, The Bill of Rights as a

Constitution, 100 Yale L.J. 1131, 1183-84 (1991); see also George

D. EdwatJs, The Grand Jury 35-36 (1906) (describing grand juries

rejecting cases in which there was probable cause because the grand

jury viewed the offenses as not serious enough to merit prosecution).

12

government oppression by unjust prosecution. And

it has the equally unchallengeable power to shield

the guilty, should the whims of the jurors or their

conscious or subconscious response to community

pressures induce twelve or more jurors to give

sanctuary to the guilty.

Cox, 342 F.2d at 189-90 (Wisdom, J., concurring). The

grand jury thus acts as the “conscience of the community,”

Gaither, 413 F.2d at 1066 & n.6, in determining, on a

normative basis, whether a prosecution should go forward.

“That a grand jury may legitimately perform a quasi-

equitable function is implicit in its role as ‘an irresponsible

utterance of the community at large, answerable only to the

general body of citizens, from whom they come at random,

and with whom they are at once merged.’” United States

v. Ciambrone, 601 F.2d 616, 629 n.2 (2d Cir. 1979)

(Friendly, J., dissenting) (quoting Jn re Kittle, 180 F. 946,

947 (S.D.N.Y. 1910) (L. Hand, J.)) (emphasis added).

Therefore, as the Court has recognized, the grand jury has

the authority to refuse to authorize a prosecution that it

believes, for whatever reason, is unwarranted. Vasquez,

474 U.S. at 263.

The discretion exercised by the grand jury is thus

analogous to that vested in the prosecutor. See Navarro-

Vargas I, 367 F.3d at 900 (Kozinski, J., dissenting) (the

grand jury’s function “is most accurately described as

prosecutorial”);° accord Navarro-Vargas II, 408 F.3d

* See also Navarro-Vargas I, 367 F.3d at 900 (Kozinski, J.,

dissenting) (“There’s no reason grand juries cannot or should not

make . . . political judgments [as prosecutors do] about which laws

deserve vigorous enforcement and which ones do not, in deciding

(continued...)

13

at 1200 (“‘[T]he public prosecutor, in deciding whether a

particular prosecution shall be instituted or followed up,

performs much the same function as a grand jury.’”)

(quoting Butz v. Economou, 438 U.S. 478, 510 (1978)); id.

at 1213 (Hawkins, J., dissenting). As one commentator has

observed, “[i]t is because the grand jury serves accusatory

and investigative functions that a prosecutorial analogy is

more apt.” Kuckes, 94 Geo. L.J. at 1286. It is well-settled

that the prosecutorial charging function is outside judicial

supervision. See generally United States v. Jacobo-

Zavala, 241 F.3d 1009, 1014 (8th Cir. 2001) (United States

Attorney’s decision to dismiss charges because the

penalties were too severe was not subject to judicial

review). By conducting a harmless error analysis as to the

grand jury’s decision to charge an offense that was never

properly presented to it, a court would intrude upon an

effectively unreviewable discretionary decision.

3. The Court Should Reject the Solicitor

General’s Attempt to Eviscerate Vasquez.

a. Vasquez Affirms Constitutionally-

Mandated Discretion, Not “Nullification.”

The Solicitor General incorrectly demeans the

discretion described in Vasquez as an unreviewable — and

illegitimate — power to “nullify” an otherwise valid

* (...continued)

whom to indict, and on what charges.”); Kuckes, 94 Geo. LJ.

at 1307 (“[B]y viewing the indicting grand jury as a democratic force

within the prosecutorial function, the grand jury’s ‘shield’ and

‘sword’ functions are not distinct and competing functions, but part

of the same integrated role — the exercise of discretionary authority

to approve or decline criminal prosecutions.”).

14

prosecution. U.S. Br. at 31-33.’ But when a prosecutor

chooses not to prosecute a case, that is not nullification; it

is an exercise of prosecutorial discretion. Because the

grand jury’s “function . . . is most accurately described as

prosecutorial,” see Navarro-Vargas I, 367 F.3d at 900

(Kozinski, J., dissenting), its decision not to approve a

prosecution for which probable cause exists is no more

nullification than a similar decision made by a prosecutor.

Vasquez held that one of the reasons why racial

discrimination in grand jury selection is so prejudicial —

even after a petit jury conviction — is that the grand jury

enjoys broad discretion in choosing what to charge and

whether to charge at all, even in a case where there is not

only probable cause, but proof beyond a reasonable doubt.

See 474 U.S. at 263. If a grand jury’s discretion not to

charge an offense, or to charge a lesser offense, was not a

legitimate grand jury function, then Vasquez could not

have relied upon that attribute in determining whether the

error in that case merited reversal.*

” The term “nullify” is a misnomer. Even if a grand jury refused

to indict, jeopardy does not attach. See United States v. Williams,

504 U.S. 36, 49 (1992).

* The Solicitor General’s arguments echo those made in dissent

in Vasquez. See 474 U.S. at 277 (Powell, J., dissenting) (objecting

to the majority’s reliance on the grand jury’s discretion not to indict

even if probable cause is established and arguing that “[a] defendant

has no right to a grand jury that errs in his favor”). The grand jury’s

exercise of its discretion not to return an indictment is no more error

than the prosecutor’s discretionary decision not to seek an indictment

or, in the case of a presentment, not to follow the grand jury’s lead.

See United States v. Cox, 342 F.2d 167 (Sth Cir. 1965) (prosecutor

declined to prosecute a charge made by a grand jury).

15

b. Vasquez’s Explication of the Grand Jury’s

Role Was Not Dicta.

Recognizing that his view of the grand jury contradicts

Vasquez, the Solicitor General erroneously claims that the

Court’s explication of the grand jury’s historic role was

dicta. U.S. Br. at 20. “When an opinion issues for the

Court, it is not only the result but also those portions of the

opinion necessary to that result by which we are bound.”

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67

(1996) (citations omitted). “‘As a general rule, the

principle of stare decisis directs us to adhere not only to

the holdings of our prior cases, but also to their

explications of the governing rules of law.’” Jd. (citation

omitted).

Vasquez decided whether the Court would apply a

harmless error analysis to the racial discrimination that

infected the selection of the grand jury that indicted

Hillery. See 474 U.S. at 260. While the grand jury was

tainted by discrimination, the indictment was adjudicated

by an untainted petit jury. The state argued that Hillery’s

“conviction after a fair trial . . . purged any taint

attributable to the indictment process.” Jd.

The Court’s precedents did not support the state’s

position, id. at 261-62 (citation omitted), but Vasquez

entertained the state’s contention that those precedents

should be overruled. The state argued “that requiring the

State to retry a defendant, sometimes years later, imposes

on it an unduly harsh penalty for a constitutional defect

bearing no relation to the fundamental fairness of the trial.”

Id. at 262. Vasquez rejected the contention that the penalty

was unduly harsh: retrial was not disproportionate to the

16

“grave constitutional trespass” of “intentional

discrimination in the selection of grand jurors.” Jd.

As to the fundamental fairness contention, the Court

explained why it was not “persuaded that discrimination in

the grand jury has no effect on the fairness of the criminal

trials that result from that grand jury’s actions.” Jd. at 263.

The State’s harmless error argument was that a conviction

based upon proof beyond a reasonable doubt necessarily

resolves the question of whether there was probable cause.

Assuming that the grand jury’s sole responsibility is to

determine probable cause, an indictment returned by the

most racially biased grand jury in the world could always

be cured by the return of a guilty verdict by an unbiased

petit jury under the reasonable doubt standard.

Vasquez disagreed, reasoning that the grand jury’s

powers are much more expansive: it need not indict at all,

even where a conviction can be had, and it may choose to

charge lesser or fewer offenses. 474 U.S. at 263.

Harmless error analysis was impossible: “even if a grand

jury’s determination of probable cause is confirmed by a

conviction on the indicted offense, that confirmation in no

way suggests that the discrimination did not impermissibly

infect the framing of the indictment and, consequently, the

nature or very existence of the proceedings to come.” /d.

Vasquez thus found that the error was structural because

racial discrimination was pernicious and because the grand

jury’s broad discretion prevents a reviewing court from

ever knowing whether an unbiased and properly

constituted grand jury would have exercised its discretion

differently: “we simply cannot know that the need to

indict would have been assessed in the same way by a

grand jury properly constituted.” Jd. at 264 (emphasis

added). Vasquez’s grand jury analysis is binding because

17

it is necessary to the decision and part of an “explication[]

of the governing rules of law.” Seminole Tribe, 517 U.S.

at 67.

The dissenters recognized that the majority’s discussion

of the attributes of the grand jury was part of the Vasquez

holding:

The Court nevertheless decides that discrimination

in the selection of the grand jury potentially harmed

respondent, because the grand jury is vested with

broad discretion in deciding whether to indict and

in framing the charges, and because it is impossible

to know whether this discretion would have been

exercised differently by a properly selected grand

jury.

474 U.S. at 275 (Powell, J., dissenting).

The Solicitor General argues that United States v.

Mechanik “concluded that the considerations on which

Vasquez was based ‘have little force outside the context of

racial discrimination in the composition of the grand

jury.”” U.S. Br. at 20 (quoting 475 U.S. 66, 71 n.1 (1986)).

While the Mechanik footnote correctly asserts that Vasquez

rested on “precedent directly applicable to the special

problem of racial discrimination,” and that “racial

discrimination in the selection of grand jurors is so

pernicious, and other remedies so impractical, that the

remedy of automatic reversal was necessary as a

prophylactic means of deterring grand jury discrimination

in the future,” 475 U.S. at 71 n.1, the cited passage from

Mechanik does not purport to describe the entirety of the

Vasquez analysis. In fact, the Court in Vasquez was asked

to overrule the directly applicable precedent mentioned in

Mechanik, and it declined to do so based on its conception

18

of the full range of the grand jury’s discretion. Thus,

Vasquez held, and Mechanik did not question, that

mandatory reversal was required because of both the

discrimination and the grand jury’s discretion to determine

“the nature or very existence of the proceedings.” See

Vasquez, 474 U.S. at 263."

Moreover, twelve years after Mechanik, Campbell v.

Louisiana reaffirmed Vasquez’s description of the grand

jury’s powers: the grand jury “controls not only the initial

decision to indict, but also significant questions such as

how many counts to charge and whether to charge a

greater or lesser offense, including the important decision

whether to charge a capital crime.” 523 U.S. 392, 399

(1998) (citing Vasquez, 474 U.S. at 263).

* The Solicitor General misreads Bank of Nova Scotia v. United

States, when he claims it “characterized Vasquez as involving an

“isolated exception{]’ to the harmless-error rule.” U.S. Br. at 20

(quoting 487 U.S. 250, 256 (1988)). Actually, the Court stated

“cases [such as Vasquez] may be explained as isolated exceptions to

the harmless-error rule.” 487 U.S. at 256 (emphasis added). The

Court rejected that explanation in favor of “an alternative and more

clear explanation . . . that [the cases exemplified by Vasquez] are

ones in which the structural! protections of the grand jury have been

so compromised as to render the proceedings fundamentally unfair,

allowing the presumption of prejudice.” /d. at 256-57. Vasquez

explained that the reason why “the structural protections of the grand

jury have been so compromised” was that no one could know how

a properly selected grand jury would have exercised its broad, quasi-

prosecutorial discretion in evaluating “the need to indict.” Vasquez,

474 US. at 264.

19

c. The Historical Record Demonstrates That

the Framers Likely Shared Vasquez’s

Conception of the Grand Jury.

“There is every reason to believe that our constitutional

grand jury was intended to operate substantially like its

English progenitor.” Costello v. United States, 350 U.S.

359, 362 (1956). “Undoubtedly the framers of the [Fifth

Amendment] had for a long time been absorbed in

considering the arbitrary encroachments of the crown on

the liberty of the subject, and were imbued with the

common-law estimate of the value of the grand jury as part

of its system of criminal jurisprudence.” Ex parte Bain,

121 U.S. 1, 12 (1887).

Historical evidence of the institution’s development in

both England and this country’s colonial period

demonstrates that the grand jury’s role in providing

protection to the people from the Executive by acting as

the “conscience of the community,” Gaither v. United

States, 413 F.2d 1061, 1066 n.6 (D.C. Cir. 1969), was a

significant component of “the common-law estimate of the

value of the grand jury,” Bain, 121 U.S. at 12, as an

important guarantor of personal freedoms. See generally

Andrew D. Leipold, Why Grand Juries Do Not (and

Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 308

(1995).

The Framers certainly would have been aware of the

celebrated case of an English grand jury resisting the

Crown in 1681 with respect to the Earl of Shaftesbury and

Stephen Colledge. See id. at 281-82, 308. In both of those

cases, the grand jury withstood significant pressure from

the courts and the Crown, and refused to indict Shaftesbury

and Colledge on charges that were politically motivated.

—

20

Id. at 281-82. This refusal was perceived as a “turning

point in the relationship between grand jury and

government.” Jd. at 281; accord 1 Sara S. Beale et al.,

Grand Jury Law and Practice § 1:2, at 1-10 (2d ed. 1997).

The tradition begun in the Shaftesbury and Colledge

cases continued in colonial America. In 1734, in the case

of John Peter Zenger, grand juries refused to indict Zenger

on seditious libel charges despite strong evidence of guilt.

See United States v. Navarro-Vargas, 408 F.3d 1184, 1192

(9th Cir.) (en banc) (Navarro-Vargas II), cert. denied, 126

S. Ct. 736 (2005); see also 4 Wayne LaFave et al.,

Criminal Procedure § 15.3(c) (2d ed. 1999) (observing

that “mosi of the celebrated instances of grand jury refusals

to indict involved cases in which the evidence was

sufficient, but the grand jury simply refused to permit an

unjust prosecution”). Similarly, during the Revolutionary

War, grand juries frequently refused to indict in tax

collection cases in which merchants were accused of

avoiding import and export payments. Leipold, 80 Cornell

L. Rev. at 285. “The Revolutionary War experience

helped lay the groundwork for the inclusion of the grand

jury guarantee in the Fifth Amendment.” /d.

There is little doubt that when the Fifth Amendment

was adopted, the Framers were well acquainted with the

full scope of the grand jury’s protective power. See

Richard D. Younger, The People’s Panel: The Grand

Jury in the United States, 1634-1941, at 25-30, 33-34

(1963); accord Navarro-Vargas II, 408 F.3d at 1198-99

(the grand jury institution reached the apex of its influence

and utility in the pre-revolutionary colonial period); Fields

v. Soloff, 920 F.2d 1114, 1117 (2d Cir. 1990) (“Just prior

to the American Revolution, [grand juries] became vigilant

in insulating from prosecution colonists who had violated

21

unpopular British laws.”); Leroy D. Clark, The Grand

Jury: The Use and Abuse of Political Power 17-18 (1975).

It is extremely likely, based on the colonial experience,

that the protective powers set forth in Vasquez were

perceived by the Framers as valued attributes. See Niki

Kuckes, The Democratic Prosecutor: Explaining the

Constitutional Function of the Federal Grand Jury, 94

Geo. L.J. 1265, 1302 (2006) (the grand jury’s discretion

not to indict was “‘arguably . . . the most important

attribute of grand jury review from the perspective of those

who insisted that a grand jury c!ause be included in the Bill

of Rights’”) (quoting LaFave et al., Criminal Procedure

§ 15.2(g)). Because in interpreting the Fifth Amendment

the Court must “place [itself] as nearly as possible in the

condition of the men who framed that instrument,” Bain,

121 U.S. at 12, the Court should reaffirm Vasquez.

Although the post-revolutionary period instructions

cited by the Solicitor General do instruct grand jurors of a

supposed duty to indict, U.S. Br. at 31 n.10,"° those

instructions are merely the views of individual jurists; they

are not precedent, unlike Stirone, Russell and Vasquez.

Moreover, that members of the judiciary have sought to

impose on the grand jurors their views of the jurors’ duties

is certainly not dispositive;'’ the grand jury was envisioned

© But see 2 The Documentary History of the Supreme Court of

the United States, 1789-1800: The Justices on Circuit: 1790-1794,

at 183 (Maeva Marcus ed., 1990) (grand jury charge of Justice

Wilson, May 23, 1791) (advising grand jurors of the available

penalties).

'' Occasionally, such instructions have contained a political

component. See generally Ralph Lerner, The Supreme Court as

(continued...)

22

as an independent body by the Framers: it “belongs to no

branch of government, but is a ‘constitutional fixture in its

own right.” Navarro-Vargas II, 408 F.3d at 1199

(quoting United States v. Williams, 504 U.S. 36, 47-50

(1992)). Judicial instructions could no more cabin the

grand jurors’ discretion than could the King force them to

indict Shaftesbury and Colledge. See id. at 1200 (“The

grand jury’s discretion — its independence — lies in two

important characteristics: the absolute secrecy surrounding

its deliberations and vote and the unreviewability of its

decisions.”). To the extent that the non-precedential

charges cited by the Solicitor General are persuasive at all,

they promote a view of the grand jury that conflicts with

that taken by the Court in Stirone, Russell, Vasquez and

Campbell, and that which the Framers likely held.

D. Bank of Nova Scotia and Mechanik Are

Inapposite Because They Involved Non-

Constitutional Errors, Not the Grand Jury’s

Screening Function.

While a constitutionally deficient indictment that fails

to state an offense cannot be reviewed for harmless error,

other grand jury errors continue to be subject to Fed. R.

Crim. P. 52(a), as was the case in Bank of Nova Scotia v.

United States and United States v. Mechanik. In Bank of

'' (continued)

Republican Schoolmaster, 1967 Sup. Ct. Rev. 127, 131 (“The

Justices were quick to see and seize the chance to proselytize for the

new government and to inculcate habits and teachings most

necessary in their view for the maintenance of self-government. (In

so doing they left later interpreters with the problem of

distinguishing a defense of the regime and the Constitution from a

defense of an administration and of a party.)”).

23

Nova Scotia, “no constitutional] error occurred during the

grand jury proceedings.” 487 U.S. 250, 258 (1988); see

id. (cataloguing violations of Fed. R. Crim. P. 6). In

Mechanik, the Court assumed that the prosecutors had

violated Fed. R. Crim. P. 6(d) by allowing more than one

witness to be present before the grand jury at the same

time. See 475 U.S. 66, 69 (1986). In those cases, the

Court was not required to speculate as to how the grand

jury would have exercised its discretion with respect to an

element that was never presented to it. Therefore, the

structural error argument urged here has no application to

the errors in Bank of Nova Scotia and Mechanik.

E. Because No Court Can Know What the Grand

Jury Would Be Willing to Charge, the Omission

of an Element From an Indictment Is a

Structural Error, Despite the Solicitor General’s

Speculation That Some Such Errors May Aid

the Defendant.

In the event that the Court reaffirms its explication of

the grand jury’s prerogatives in Stirone, Russell and

Vasquez, the Solicitor General argues that the error is not

structural because he speculates that the omission of an

element from the indictment “may actually increase the

likelihood” of a grand jury’s exercise of its discretion on

behalf of the defendant “by jurors who believe that the

remaining elements should not constitute an offense.” U.S.

Br. at 34 (emphasis omitted). While that is a possibility, it

is just as likely that the inclusion of an omitted element —

might lead the grand jury to decline to indict, particularly

where that element substantially increases the potential

penalty or even renders the defendant eligible for the death

penalty See Vasquez, 474 U.S. at 263. Inclusion of an

omitted element may prompt a grand jury to conclude that

24

the prosecutor has over-reached, such as when an attempt

charge is accompanied by a particularly weak overt act. If

evidence is offered regarding an omitted element, that

evidence may cause the grand jury to question “the need to

indict.” Jd. at 264.

But even in cases where there is no obvious benefit to

the defendant in requiring consideration of all of the

elements, the omission of an element” necessarily

constricts the scope of the grand jury’s inquiry. When the

grand jury is presented with all of the elements, the scope

of its inquiry is necessarily broadened; elements, after all,

necessarily involve facts. A broadened inquiry, involving

more facts, can affect the grand jury’s assessment of a case

in ways that a court cannot anticipate. See, e.g., Russell,

369 U.S. at 770. Any broadening of the factual inquiry

may bring to light previously unknown mitigating facts

that may implicate the grand jury’s quasi-prosecutorial

discretion.

The inclusion of additional facts and elements may

even prompt the grand jury to exercise its inherent

investigative power, leading it to uncover still more facts

that may affect its assessment of the case. See United

States v. Sells Engineering, 463 U.S. 418, 423 (1983) (the

grand jury “has always been extended extraordinary power

of investigation and great responsibility for directing its

own efforts... .”). The grand jury’s capacity for self-

directed investigation distinguishes Neder v. United States,

527 U.S. 1 (1999), where the Court applied harmless error

'2 Although the example of a single omitted element is used

here, there are no inherent limitations to the number of elements

subject to the harmless-error rule that the Solicitor General proposes.

25

analysis to the omission ofa single, uncontested element

from the charge given to the petit jury. Petit juries have

neither investigative capacity nor investigative

responsibility. Therefore, the trial record adequately

reflects what the trial jury was called upon to evaluate.

Not so for the grand jury. Because it may perform self-

directed investigations, no one can know what lines of

investigation might have been pursued had the grand jury

been asked to pass on every element of the offense; the

record is incomplete. “Harmless-error analysis in such a

context would be a speculative inquiry into what might

have occurred in an alternate universe.” United States v.

Gonzalez-Lopez, 126 S. Ct. 2557, 2565 (2006).

The grand jury’s ability to apply its community

perspective to new facts and elements, and its potential to

bring new facts to light by way of its self-directed

investigations, “bear[] directly on the ‘framework within

which the [grand jury’s screening function] proceeds.’”

Gonzalez-Lopez, 126 S. Ct. at 2564-65 (quoting Arizona v.

Fulminante, 499 U.S. 279, 310 (1991)). The end result is

similar to that in Gonzalez-Lopez. There, in analyzing the

deprivation of the defendant’s right to choice of counsel,

the Court observed that “[iJt is impossible to know what

different choices the rejected counsel would have made,

and then to quantify the impact of those different choices

on the outcome of the proceedings.” Jd. at 2565. Here, we

cannot know “what different choices [the grand jury]

would have made” with respect to its screening or

investigative functions had it been asked to evaluate all the

elements, nor can “the impact of those different choices”

be “quantiffied].” See id. In short, facts provide context,

context informs discretion, discretion affects results in

ways that cannot be predicted.

26

Ultimately, “neither this nor any other court can know

that the grand jury would have been willing to charge” an

offense containing the omitted element. Stirone, 361 U.S.

at 217.'’ These dueling speculations only make clear that

the grand jury’s broad discretion insulates its decisions

from judicial review: the error is structural because of “the

difficulty of assessing [its] effect.” Gonzalez-Lopez, 126

S. Ct. at 2564 n.4,"*

F. An Indictment’s Failure to State an Offense Is

Structural Error Under Rule 34.

The Court has held that dismissal is the remedy for an

indictment’s failure to state an offense. See, e.g., United

States v. Carll, 105 U.S. 611,613 (1881). Rule 34 codified

that remedy: “Upon the defendant’s motion or on its own,

the court must arrest judgment if . . . the indictment or

'® A defendant is denied his “substantial right to be tried only on

charges presented in an indictment returned by a grand jury,”

Stirone, 361 U.S. at 217, when an element is omitted.

'* The Solicitor General suggests that if grand jurors may

exercise discretion akin to that of the prosecutor, “a similar

conclusion would presumably be required concerning the omission

of an offense element from the petit jury’s instructions.” U.S. Br.

at 34. There is no merit in that suggestion. The institutional

differences between the two types of juries have persisted without

importing the characteristics of one into the other. For instance,

prosecutors may withhold exculpatory evidence from the grand jury,

see United States v. Williams, 504 U.S. 36 (1992), present

unconstitutionally seized evidence, see United States v. Calandra,

414 US. 338 (1974), and offer only hearsay, see Costello v. United

States, 350 U.S. 359 (1956). These characteristics of grand jury

procedure have not been imported into petit jury practice. Nor will

the grand jury’s quasi-prosecutorial role.

27

information does not charge an offense.” Fed. R. Crim.

P. 34(a)(1) (emphasis added). The Solicitor General urges

the Court to abandon its prior cases because it has applied

harmless error analysis, pursuant to Fed. R. Crim. P. 52(a),

to non-constitutional errors in Bank of Nova Scotia, 487

U.S. at 254-56, and Mechanik, 475 U.S. at 71-72. U.S. Br.

at 17-19. These cases are not subject to Rule 34 because

they do not involve an indictment’s failure to state an

offense.

Moreover, Rule 34(b) contemplates a motion made

after trial — the precise situation under which the Solicitor

General claims a harmless-error analysis is proper — and it

requires district courts to arrest judgment if the indictment

does not state an offense. Rule 34, like Rule 52(a), is “as

binding as any statute duly enacted by Congress,” Bank of

Nova Scotia, 487 U.S. at 255, and its mandatory dismissal

provision cannot be disregarded.

Rule 34 must be read in pari materia with Rule 52(a).

See Hamling v. United States, 418 U.S. 87, 134-35 (1974).

In Hamling, the defendant urged an automatic reversal rule

for violation of Fed. R. Crim. P. 30(d)’s procedures for

objections to jury instructions. The Court reasoned that

“such an approach would be unduly mechanical, and

would be inconsistent with interpretation in pari materia

of Rule 30 and other relevant provisions of the Federal

Rules of Criminal Procedure, since Rule 52(a) specifically

provides that ‘(a)ny error, defect, irregularity or variance

which does not affect substantial rights shall be

disregarded.’” 418 U.S. at 134-35. Rule 52(a)’s generic

remedial provisions were applicable because nothing in

Rule 30 said otherwise.

28

Rule 34(a)(1), in contrast, does contain a remedial

provision — one that makes arrest of judgment mandatory.

When that provision and Rule 52(a) are read in pari

materia, it is clear that Rule 52(a)’s generic remedial

provisions do not apply to the specific violation to which

Rule 34 speaks, an indictment’s failure to state an offense.

Rule 34’s adoption of a mandatory remedy is, in effect, a

Congressional determination that the failure to state an

offense does affect substantial rights and cannot be

disregarded.

That specific determination should control here.

Rule 34’s direct application, post-trial, to an indictment

that fails to state an offense dictates that Rule 34’s remedy,

not the general rule contained in Rule 52(a), applies here:

“(a] specific provision controls over one of more general

application.” Gozlon-Peretz v. United States, 498 U.S.

395, 407 (1991) (citation omitted).

The Court reached a similar conclusion in Zedner v.

United States, 126 S. Ct. 1976 (2006). There, the Solicitor

General argued that Rule 52(a) should apply to motions to

dismiss under the Speedy Trial Act. That act, 18 U.S.C.

§ 3162(a)(2), provides that in the event of a violation, “the

information or indictment shall be dismissed on motion of

the defendant.” The Court rejected application of

Rule 52(a), holding that “[t]he argument that the District

Court’s failure to make the prescribed findings may be

excused as harmless error is hard to square with the Act’s

categorical terms.” 126 S. Ct. at 1989-90 (citation

omitted). The language of Rule 34 is no less categorical

than that of § 3162(a)(2). Compare Fed. R. Crim. P. 34(a)

(“the court must arrest judgment”) with 18 U.S.C.

§ 3162(a)(2) (“the . . . indictment shall be dismissed”).

29

Thus, Rule 52(a) is similarly inapplicable to Rule 34’s

mandatory rule.

Because Rules 34(a)(1) and 52(a), taken together,

establish that an indictment’s failure to state an offense

affects substantial rights and cannot be disregarded, the

fact that Respondent moved pre-trial for dismissal pursuant

to Fed. R. Crim. P. 12(b)(2), see 2006 WL 1732858, at *10

(joint appendix), rather than Rule 34(a)(1), is of no

moment. Both motions “essentially ask the same question:

... whether the indictment is sufficient in all respects.”

United States v. Wiggins, 971 F. Supp. 660, 667 (N.D.N.Y.

1997) (citation omitted).'* If Respondent’s motion to

dismiss the indictment was filed under Rule 34, Rule 52(a)

would not apply, and reversal would be mandatory.

Reading Rules 12, 34 and 52 together, the Rule 12 motion

must be subjec* to the same standard in order to read the

Rules as a coh_rent whole, as required by Hamling. See

418 U.S. at 134-35. Put another way, a system that

employs two different standards of review to the same

motion and penalizes a defendant with a worse standard for

raising an issue before trial would be untenable. See

United States v. American Trucking Ass ns, 310 U.S. 534,

543 (1940) (the Court avoids interpreting statutes to

achieve absurd results). The question of whether the error

here is structural cannot turn on whether the motion to

dismiss ts predicated on Rule 12 rather than Rule 34. See

'S Like a Rule 12(b)(2) motion to dismiss, a motion to arrest

judgment for failure to state an offense is based only on the

indictment, not the facts adduced at trial. See United States v.

Esposito, 492 F.2d 6, 9 (7th Cir. 1973) (citing United States v.

Sisson, 399 U.S. 267 (1970)); accord Guam v. Palomo, 511 F.2d

255, 259 (9th Cir. 1975).

30

Fed. R. Crim. P. 2 (the Rules “are to be interpreted to

provide for the just determination of every criminal

proceeding, [and] to secure simplicity in procedure and

fairness in administration .... ”). Rule 12 was

promulgated to eliminate complicated rules of pleading,

see 1A Charles A. Wright et al., Federal Practice and

Procedure: Criminal 3d, § 191, at 319-21 (1999), not to

create them.

Rule 34 permits the Court to affirm without resolving

whether the Fifth Amendment requires automatic reversal

if an indictment fails to state an offense. See Spector

Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944)

(“If there is one doctrine more deeply rooted than any

other in the process of constitutional adjudication, it is that

we ought not to pass on questions of constitutionality .. .

unless such adjudication is unavoidable.”).

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

NATIONAL ASSOCIATION Steven F. Hubachek

OF FEDERAL DEFENDERS Chief Appellate Attomney

Henry J. Bemporad Counsel of Record

Frances H. Pratt, Co-Chairs, Federal Defenders of San

Amicus Committee Diego, Inc.

225 Broadway, Suite 900

San Diego, CA 92101-5030

Telephone: (619) 234-8467

August 2006