Appendix — Benjamin v. United States

Court, U.S,

/ FILED

88-1290 ‘| FEB 3 3a99

JOSEPH F. SPANIOL, JR,

No. ————— CLERK

- ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

Davip R. BENJAMIN, PHILIP C. BOURDETTE, MIRIAM R.

BOURDETTE, CECILIA JASON DEDERICH, DAN L. GARRETT,

JR., ELIZABETH MISSAKIAN, SYBIL SCHIFF, STEVEN

SIMON, and DAN SORKIN,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT D. LUSKIN *

ONEK, KLEIN & FARR

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

* Counsel of Record Counsel for Petitioners

(Additional Counsel Listed on Inside Cover)

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

THOMAS J. NOLAN JOHN L. WILLIAMS

Attorney for Attorney for Steven Simon

Philip C. Bourdette MARK E. OVERLAND

KENNETH W. DE VANEY Attorney for Sybil Schiff

Attorney for David Benjamin picyarp B. MAZER

JAY W. POWELL Attorney for

Attorney for Miriam R. Bourdette

Cecilia Jason Dederich SALVATORE SCIANDRA

ROBERT N. HARRIS Attorney for

Attorney for Dan Sorkin

Elizabeth Missakian

TOM HENZE

Attorney for

Dan L. Garrett, Jr.

TABLE OF CONTENTS

APPENDIX A

Opinion of the Court of Appeals for the Ninth

Circuit Affirming the Denial of Defendants’ Mo-

tions to Dismiss Indictment, Dated July 7, 1988..

APPENDIX B

Order of the Court of Appeals for the Ninth

Circuit Denying Petition for Rehearing and Sug-

gestion for Rehearing en banc, Dated Dec. 19,

SEY io aamiiiccciantcscsadd Ganhglesninundecsnlecrnndlacapmnpdadiincmeaaaminatipnpdcd

APPENDIX C

Oponion of the Court of Appeals for the Ninth

Circuit Denying Government’s Motion to Dismiss

the Appeal in No. 86-1388, Dated Aug. 19, 1987..

APPENDIX D

Opinion of the Court of Appeals for the Ninth

Circuit Denying Government’s Motion to Dismiss

the Appeal in No. 86-1337, Dated Mar. 11, 1987..

APPENDIX E

Order of the District Court for the Eastern Dis-

trict of California Denying Defendants’ Motion

for Dismissal of Indictment Due to Prosecutorial

Misconduct (Except as to Defendant Sybil Schiff),

SE BI ie IEE nhac csnccaccencacschcnasnninapeinaamlantiabiaaiessns

APPENDIX F

Order of the District Court for the Eastern Dis-

trict of California Denying Defendants’ Motion

to Dismiss for Violation of Rule 6(e), Fed. R.

Crim. P., Dated Nov. 4, 1986

APPENDIX G

Order of the District Court for the Eastern Dis-

trict of California Regarding Defendants’ Motion

for Disclosure of Grand Jury Transcripts and

Minutes, Dated May 1, 1986 ..................ceeeeeeeseeeeeeeeoee

Page

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APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Nos. 86-1337, 86-1388

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

DAVID R. BENJAMIN; PHILIP C. BOURDETTE; MIRIAM R.

BOURDETTE; CECILIA JASON DEDERICH; DAN L. GARRETT,

JR.; ELIZABETH MISSAKIAN; SYBIL SCHIFF; STEVEN

SIMON; DAN SORKIN;

_ Defendants-A ppellants.

Argued and Submitted March 15, 1988

Decided July 7, 1988

Appws| from the United States District Court

for the Eastern District of California

William C. Brown, Dept. of Justice, Legal Advice Sec-

tion, Criminal Div., Washington, D.C., for plaintiff-

appellee.

Robert D. Luskin, Onek, Klein & Farr, Washington,

D.C., Thomas J. Nolan, Nolan & Parnes, Palo Alto, Cal.,

Jay W. Powell, Powell & MacGlashan, Visalia, Cal.,

Robert N. Harris, Gonzalez & Harris, Mark E. Over-

2a

land, Overland, Berke, Wesley, Gits, Randolph & Levanas,

Los Angeles, Cal., Kenneth W. DeVaney,-Salvatore Scian-

dra, Elia & Sciandra, Fresno, Cal., John L. Williams,

Manchester & Williams, San Jose, Cal., Richard B.

Mazer, San Francisco, Cal., Tom Henze, Henze, Ronan &

Clark Phoenix, Ariz., for defendants-appellants.

Before KOELSCH, SCHROEDER and FLETCHER,

Circuit Judges.

FLETCHER, Circuit Judge:

Benjamin and several co-defendants, members of Syna-

non, have been indicted for obstruction of justice and

conspiracy to obstruct justice, in connection with the al-

leged destruction of documents pertaining to various civil

and criminal proceedings. Defendants appeal the district

court’s denial of their motions to dismiss the indictments.

We affirm.

A motions panel of this court has held the district

court’s order to be an appealable collateral order. United

States v. Benjamin, 812 F.2d 548 (9th Cir. 1987) ; United

States v. Dederich, 825 F.2d 1317 (9th Cir. 1987). These

opinions set forth the factual background of the case.

DISCUSSION

This court reviews de novo a district court’s determi-

nation as to whether a prosecutor’s alleged misconduct

before a grand jury warrants dismissal of the indict-

ment. United States v. De Rosa, 783 F.2d 1401, 1404

(9th Cir. 1986).

Although courts have the power to dismiss indictments

either on due process grounds, or under their inherent

supervisory power over the administration of justice, that

power is exercised sparingly. United States v. Busher,

817 F.2d 1409, 1411 (9th Cir. 1987). A defendant chal-

lenging an indictment has the burden of demonstrating

that the prosecutor engaged in flagrant misconduct that

3a

deceived the grand jury or significantly impaired its abil-

ity to exercise independent judgment. Jd.

The leading case in this circuit showing circumstances

justifying dismissal is United States v. Samango, 607

F.2d 877 (9th Cir. 1979). There, the prosecutor’s pres-

entation of the transcript testimony of a witness of

dubious credibility was combined with the prosecutor’s

unduly rushing the grand jury decision, improper and

prejudicial transcript testimony from the defendant, and

testimony from only one live witness, a DEA agent, that

was “laden with conclusions concerning the guilt of sev-

eral defendants, [and] summarized the DEA’s investiga-

tions, much of which he had not been involved with per-

sonally.” 607 F.2d at 879, 881. The court concluded that

the cumulative effect of these “errors and indiscretions,

none of which alone might have been enough to tip the

scales, operated to the defendants’ prejudice by producing

a biased grand jury.” Z/d. at 884. In light of Samango

we view the alleged errors by themselves and cumula-

tively.

I. Witness Bias

The prosecutor presented Dr. Richard Ofshe to the

grand jury as a witness. Ofshe, a University of Cali-

fornia (Berkeley) sociologist, has “devoted ten years to

the study of Synanon.” The prosecutor never disclosed to

the grand jury that Ofshe, at the time of his testimony,

was involved in civil litigation with Synanon in which he

was asserting multi-million dollar claims, and which in-

volved some of the same issues of destruction of evidence

as were involved in the criminal case. The district court,

while acknowledging that “the Grand Jury should have

been informed of Dr. Ofshe’s involvement as a civil

litigant with Synanon and some of the defendants here-

in,” nevertheless held that “Dr. Ofshe’s potential bias

does not constitute evidence casting serious doubts on the

credibility of Dr. Ofshe as a witness.”

4a

The prosecutor has no duty to present to the grand

jury all matters bearing on witness credibility. United

States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir.

1983) ; Jack v. United States, 409 F.2d 522, 524 (9th

Cir. 1969). Nevertheless, the prosecutor is not entitled to

deprive the grand jury of its opportunity to evaluate

witness credibility. See United States v. Samango, 607

F.2d at 884.

In Samango, this court affirmed the dismissal of a

superseding indictment that had been obtained, in -part,

by the prosecutor’s reliance on transcript testimony of a

highly dubious witness. The court of appeals stated that

the prosecutor should have presented live testimony from

this witness to enable the grand jury to determine the

witness’s credibility. 607 F.2d at 882. “[T]he prosecu-

tor knew but did not warn the grand jury of [the wit-

ness’s] dubious credibility, nor apparently did he apprise

them that they could subpoena his live testimony.” Jd.

at 881.

The defendants here argue that, under Samango, the

indictments should be dismissed for the prosecutors’ fail-

ure to apprise the grand jury of Ofshe’s potential bias.

Clearly, the prosecutor should have disclosed such obvious

sources of witness bias as a witness’s involvement in a

multi-million dollar lawsuit against defendants. How-

ever, Samango does not support the proposition that the

breach of the prosecutor’s duty in this regard, alone,

necessarily requires dismissal of the indictment. In Sa-

mango, the failure to disclose witness credibility prob-

lems was only one of several errors, “none of which alone

might have been enough to tip the scales” justifying the

extreme sanction of dismissal. (Emphasis added.) Jd. at

884.

II. Rule 6(e) Violation

Defendants also challenge the denial of their motion to

dismiss the indictment for alleged improper disclosure of

grand jury materials to third parties, in violation of

Fed. R. Crim. P. 6(e).

5a

A. Background

Following Dr. Ofshe’s testimony before the grand jury,

the government decided to use Ofshe to aid its investiga-

tion because “the federal investigative agency involved

in the investigation lack[ed] familiarity with Synanon

records and the voices appearing on Synanon tape record-

ings.” The government obtained from Judge Robinson?

an order pursuant to Rules 6(e) (3) (C) (i) and 6(e) (3)

(D) to disclose various tape recordings to Ofshe as an

“expert” who could assist in the investigation. The gov-

ernment did not inform Judge Robinson of Ofshe’s in-

volvement in litigation against Synanon. Specifically,

Ofshe had filed a cross-complaint against defendants

Dederich, Bourdette, Benjamin, Simon and Dan Garrett

for intentional] infliction of emotional distress, malicious

prosecution and harassment; he had recently amended the

cross-complaint to charge defendants with destruction of

evidence, which is also the basis for the criminal charges.

Defendants argue that the disclosure was improper be-

cause it was not authorized under Rule 6(e); and that,

even if it was authorized, it was obtained by means of

misrepresentation and concealment by the government,

and therefore improper. Defendants argue that dismissal

of the indictment is the proper remedy.

Judge Robinson, in approving the disclosure order, con-

cluded (and the government argues here) that the ma-

terials were not “matters occurring before the grand

jury” within the meaning of Rule 6(e), because “they

did not reveal the strategy and direction of the grand

jury investigation.”

If Rule 6(e) applies, the district court has discretion

to order disclosure of materials, and this court reviews

the order for an abuse of discretion. Douglas Oil Co. v.

Petrol Stops Northwest, 441 U.S. 211, 228, 99 S.Ct. 1667,

1 District of Columbia District Court, presiding before the case

was moved to the Northern District of California.

6a

1677, 60 L.Ed.2d 156 (1979). However, the district

court’s determination of whether matters are ones “oc-

curring before the grand jury,” such that Rule 6(e) ap-

plies, is a mixed question of law and fact which we re-

view de novo.

B. Whether Rule 6(e) applies

The cases seem to agree that the touchstone of the Rule

6(e)’s applicability is whether the disclosed materials

would “elucidate the inner workings of the grand jury.”

Senate of Puerto Rico v. U.S. Dept. of Justice, 823 F.2d

574, 583 (D.C. Cir. 1987) (quoting Fund for Constitu-

tional Gov't. v. National Archives, 656 F.2d 856, 870

(D.C. Cir. 1981)). However, doubt exists as to whether

subpoenaed documents created for purposes unrelated to

the grand jury constitute “matters occurring before the

grand jury.” Compare Senate of Puerto Rico, 823 F.2d

at 584 (mere fact that material was presented to grand

jury does not automatically establish that it would re-

veal grand jury’s inner workings) ; SEC v. Dresser, 628

F.2d 1368, 1382-83 (D.C. Cir. 1980) (same); United

States v. Lartey, 716 F.2d 955, 964 (2d Cir. 1983) (docu-

ments not cloaked in secrecy merely because they are

presented to grand jury), with National Archives, 656

F.2d at 869 (scope of secrecy encompasses documents

which would reveal “the identities of witnesses or jurors,

the substance of testimony, the strategy or direction of

the investigation, the deliberations or questions of the

jurors, and the like”); Tager & Buffone v. U.S. Dept. of

Justice, 590 F. Supp. 1012, 1015 (D.D.C. 1984) (same) ;

Greenspun v. C.1.R., 622 F. Supp. 551, 555 (D.D.C.

1985) (information revealing what documents were

placed before the grand jury covered by secrecy provi-

sions).

To resolve this issue, we find it helpful to examine the

interests underlying grand jury secrecy and Rule 6(e).

In Douglas Oil, 441 U.S. at 219, 99 S.Ct. at 1673, the

7a

court noted the need: (1) to protect witnesses’ willing-

ness to come forward and testify fully and frankly; (2)

to reduce the risk of flight by grand jury targets; (3)

to assure that persons accused are not damaged in their

reputations. Also it is important (4) to protect the

grand jury from outside interference. United States v.

Lartey, 716 F.2d 955, 964 (2d Cir. 1983). If any of the

policies underlying grand jury secrecy may be adversely

affected by a disclosure, Rule 6(e) should apply. See id.

at 963-64.

In the instant case, Ofshe’s involvement in the lawsuit

against Synanon implicates the third and fourth ration-

ales of grand jury secrecy: his interests in this lawsuit

would be served by damaging the defendants’ reputa-

tions, and he, accordingly, has an interest in influencing

the grand jury. Thus the tapes in this case should be

considered “matters occuring before the grand jury.”

C. Rule 6(e)(3)(C)(%)

Defendants, relying on United States v. Tager, 638

F.2d 167 (10th Cir. 1980), argue that the district court

was without authority to order the disclosure of grand

jury materials to Ofshe and that, consequently, the in-

dictment must be dismissed. In Tager, the government

obtained the defendant’s indictment for mail and wire

fraud based largely on the investigative work initiated

by an investigator employed by a consortium of insur-

ance companies. After developing sufficient evidence to

turn over to the government, the private investigator

continued to assist the government’s investigation, to

which end he was given access to certain grand jury

2 Defendants state, that the Tager court “ordered dismissal of

the indictment.” In actuality, Tager reversed the defendant’s con-

viction and “remanded for further proceedings consistent with” the

opinion, but contained no discussion of the appropriate remedy. 638

F.2d at 168, 171. On remand, the district court dismissed the

indictment.

8a

materials made available under Rule 6(e) (3) (C) (i).

This rule allows disclosure of grand jury materials, as

an exception to the general rule of secrecy, “when so

directed by a court preliminarily to or in connection with

a judicial proceeding.”

The Tager court held that the district court was not

authorized by this provision to order the disclosure.

First, citing the legislative history of Rule 6/e), the

court reasoned that it is subsection (e) (3) (A) (ii), and

not (e) (3)(C) (i), that governs disclosures to assisting

investigators. Subsection (A) (ii), which allows disclo-

sure to “such government personnel (including personnel

of a state or subdivision of a state) as are deemed neces-

sary by an attorney for the government to assist...

[in the enforcement of] federal criminal law,” apparently

reflected the conscious choice of its drafters to limit such

investigatory disclosures to “government personnel” and

exclude private investigators. 638 F.2d at 170.

Second, the Tager court reasoned that subsection

(C) (i) was “not designed nor has it been used in the

past as a source of authority for a court to order dis-

closure to assist with the present grand jury proceed-

ings.” Id. The court interpreted the phrase in subsec-

tion (e) (8) (C) (i), “preliminarily to or in connection

with a judicial proceeding” as excluding the grand jury

proceeding at issue: “To apply this provision to the very

grand jury from which disclosure is sought seems some-

what illogical.” 638 F.2d at 170 (quoting In re Miami

Federal Grand Jury No. 79-8, 478 F. Supp. 490, 493

(S.D. Fla. 1979) ).

However, Tayer is not the only word on this subject.

In United States v. Mayes, 670 F.2d 12€ (9th Cir. 1982),

this court held that disclosure of certain grand jury mate-

rials to an expert witness before the grand jury was per-

missible under Rule 6(e) (3) (C) (i). The court inter-

preted the phrase “preliminarily . . . to a judicial pro-

9a

ceeding” to include the ongoing grand jury -proceeding at

issue. 670 F.2d at 129; accord United States v. Stanford,

589 F.2d 285, 292 (7th Cir. 1978). The court distin-

guished Jager, “without expressing a view as to

[Tager’s] correctness,” by noting that the expert witness

in Mayes was not asked to assist an ongoing investiga-

tion, but to express his expert medical opinion on evidence

previously presented to the grand jury. 670 F.2d at 129

n.2. The government could have instead “familiarized

[the expert witness] with the facts surrounding the

child’s death by posing a complex hypothetical ... [, but]

this approach would have been unduly cumbersome.” Id.

at 129. In any event, the law in this circuit, contrary to

Tager, is that subsection (e) (3) (C) (i) applies to the

current grand jury proceeding.

Tager has been eroded by a subsequent case from its

own circuit. In United States v. Anderson, 778 F.2d 602,

605 (10th Cir. 1985), an “expert” grand jury witness

was shown grand jury materials, and he commented on

them at the grand jury’s request. The Tenth Circuit re-

versed a district court ruling that that procedure violated

Rule 6(e). The court distinguished Jager on the ground

that Tager involved “a nontestifying investigator [who]

was not in any sense in the employ of the government,

and the prosecution, not the grand jury, made the request

for disclosure.” 778 F.2d at 605 n.1.

Anderson narrows and discredits Tager to the point

that it is doubtful authority even in its own circuit. It is

difficult to see what difference it makes, for Rule 6(e)

purposes, whether the “investigator” or “expert” testifies

or not: the breach of secrecy and ability to influence

grand jury evidence are very similar.’ The fact that the

grand jury asked for the disclosure in Anderson is par-

ticularly problematic, since that fact arguably takes the

3 It also seems irrelevant whether or not Ofshe, like the Anderson

witness, was paid by the government.

10a

disclosure out of (e) (3) (A) (ii), which provides only for

disclosure requests by the prosecutor. If (e) (3) (A) (ii)

is inapplicable, the only possible applicable subsection

would be (e) (3) (C) (i). Significantly, Anderson relies

on no particular subsection of Rule 6(e), so as to avoid

either rewriting section (e) (3) (A) (ii) or expressly over-

ruling Tager.

If Tacver has any vitality at all after Mayes and

Anderson, its effect in this case would be to bar dis-

closures to private investigators or non-expert witnesses.

Ofshe apparently did not testify regarding the tapes,

and even if he had, he was not an “expert” but rather a

percipient witness who could identify the taped voices.

Thus, he is more like a private investigator than an

expert. We hesitate to adopt Tager’s reasoning that sub-

section (e)(8)(A) (ii) precludes resort to private in-

vestigative help. Instead, we read subsection (e) (3) (C)

(i) as giving discretion to the district court to order the

disclosure of grand jury materials to private parties aid-

ing the government’s investigation. However, such dis-

closures under Rule 6(e) (3) (C) (i) can only be ordered

by the court on “a strong showing of particularized need”

that must be weighed against the interests in grand jury

secrecy. United States v. Sells Engineering Inc., 463

U.S. 418, 443, 103 S.Ct. 3133, 3148, 77 L.Ed.2d 7438

(1983). In this case, because Ofshe was uniquely able to

identify the taped voices of Synanon members, the dis-

trict court cannot be said to have abused its discretion

in finding the requisite “particularized need” to order

disclosure under subsection (e) (3) (C) (i).

D. Government Misconeé uct

Defendants argue that, even if the Rule 6(e) disclosure

order was facially proper, the order was “vitiated” by

the government’s concealment of Ofshe’s private interest

in the outcome of the investigation.

lla

As noted above, Ofshe’s involvement in civil litigation

against defendants arguably implicates the policies under-

lying grand jury secrecy. Therefore, that information

could have been relevant to the district court’s exercise of

discretion, which calls upon the court to weigh the gov-

ernment’s need to disclose against the risks of violating

grand jury secrecy. See Sells Engineering, 463 U.S. at

443, 103 S.Ct. at 3148. Had the court been apprised

about Ofshe, it might also have tailored its disclosure

order to restrict Ofshe’s misuse of the grand jury mate-

rials. However, given the order’s general prohibition

against Ofshe’s disclosure of the materials to others and

the strong showing of particularized need for Ofshe’s as-

sistance, we do not consider dismissal of the indictment

to be the appropriate remedy in this case. It would be

more appropriate for the district court to issue an order

foreclosing Ofshe’s use of the grand jury materials.

III. Fifth Amendment Harassment

Defendants assert that the prosecutor engaged in a

systematic pattern of calling and questioning witnesses

who had stated their intention to assert the fifth amend-

ment, solely for the purpose of prejudicing the grand

jury.

The grand jury transcripts show the following. Philip

C. Bourdette claimed the privilege not to answer 17 of 34

questions, pertaining to his address, various Synanon

connections, and destruction of documents. The govern-

ment asked him, document by document, whether he

would produce subpoenaed documents, to which Bourdette

responded by asserting the privilege.* Cecilia Jason

4A substantial percentage of questions which witnesses refused

to answer dealt with the witnesses’ intentions to produce corporate

documents. While the document-by-document questioning might re-

semble “harassment,” those questions may have been justified by

the prosecutor’s need to make a record to challenge the assertions

of privilege. It is well established that the privilege against self

—————————

12a

Dederich claimed the privilege not to answer 115 of 168

questions, pertaining to her address, Synanon affiliations,

her intentions to furnish documents in compliance with

subpoena (accounting for twenty-two pages of colloquy),

her knowledge of Synanon activities and destruction of

evidence. Sybil Schiff asserted the privilege as to 39 of

53 questions, dealing with Synanon ties and destruction

of evidence. Steven Simon asserted the privilege to 31 of

66 questions, dealing with his address, his Synanon con-

nections and destruction of documents. He did answer

certain biographical questions, including questions about

his two marriages and his divoree.® Miriam Bourdette,

Elizabeth Missakian and David Benjamin “were called

briefly, claimed their Fifth Amendment privileges, and

were excused.”

Defendants cite no case, nor have we found one, in

which an indictment was dismissed because the U.S. at-

torney had improperly compelled the witness to invoke,

even repeatedly, the fifth amendment privilege.* In gen-

eral, the fifth amendment does not prohibit calling poten-

incrimination is personal and does not extend to corporate docu-

ments. Bellis v. United States, 417 U.S. 85, 88, 94 S.Ct. 2179, 40

L.Ed.2d 678 (1974).

5 Apparently, witnesses were routinely questioned about marital

status because many of them had asserted marital privilege at prior

proceedings.

8 United States v. Coppola, 479 F.2d 1153 (10th Cir. 1973), cited

by defendants in their reply brief, is inapposite. There, the court

reversed a conviction where a witness was called at trial even

though the prosecutor knew he would assert the privilege. The

prosecutor asked twenty questions which ‘he witness refused to

answer and which implied the witness’s knowledge of facts which

he really did not know. Defendants here do not make this conten-

tion about the grand jury questions. Moreover, the concerns ani-

mating appellate scrutiny of evidentiary rulings at trial, where

the issues are honed to a determination of guilt or innocence, differ

from those governing judicial review of prosecutorial conduct be-

fore the grand jury.

13a

tial defendants or “targets” before the grand jury, not-

withstanding the likelihood that the witness will assert

the privilege against self incrimination. See United

States v. Friedman, 445 F.2d 1076, 1088 (9th Cir. 1971) ;

United States v. Fortunato, 402 F.2d 79, 82 (2d Cir.

1968). Nor is it prosecutorial misconduct to “test the

validity of the defendants’ reliance on their constitutional

right to remain silent.” United States v. Wolfson, 405

F.2d 779, 784-85 (2d Cir. 1968).

We find that the prosecutor’s questioning of the wit-

nesses, so as to cause them repeatedly to assert the fifth

amendment privilege, alone, does not rise to the level of

flagrant prosecutorial misconduct requiring dismissal of

the indictments. See United States v. Duff, 529 F. Supp.

148, 155 (N.D. Ill. 1981) (dismissal not warranted

where prosecutor caus~ —‘efendant to invoke privilege

fifty-five times and questioned good faith of defendant’s

reliance on fifth amendment before grand jury). It is

true that the prosecutor’s conduct here was far from

exemplary. We do not suggest that our tolerance of ex-

cessive prosecutorial zeal in grand jury proceedings is

unlimited. We go only so far as to say that the record

does not show that the prosecutor harangued the wit-

nesses or improperly commented on their assertions of

privilege,“ nor do defendants contend that the questions

placed unfounded allegations before the grand jury. Cf.

United States v. Serubo, 604 F.2d 807, 814-16 (3d Cir.

1979).

The district court found that the alleged “privilege

harassment” was not improper, because all of the wit-

7 Courts have recommended, but not required, that the prosecutor

instruct the grand jury to draw no adverse inferences from asser-

tions of privilege; all that is required is a Miranda-type warning.

See, e.g., Friedman, 445 F.2d at 1088; Duff, 529 F.Supp. at 155.

Here, the prosecutor Mirandized the witnesses, but gave no cau-

tionary instructions to the grand jury. Where, as here, the prose-

cutor repeatedly elicited assertions of privilege, some cautionary

instructions would have been appropriate.

14a

nesses but one were asked either to provide handwriting

samples, to produce documents, or to answer non-

incriminating questions. This may support the legitimacy

of calling the witnesses, but it is not dispositive. The dis-

trict court appears to have relied upon United States v.

Horowitz, 452 F. Supp. 415 (S.D.N.Y. 1978). In Horo-

witz, the court held that questioning defendant ‘‘concern-

ing his knowledge of the events under investigation while

aware that [defendant] intended to assert his privilege

was not improper ... even were the government previ-

ously informed that the privilege would be claimed, un-

less [defendant] were called solely for the purpose of

displaying his claim of privilege to the grand jury.” Id.

at 418 (emphasis added). In making this “sole purpose”

qualification, the Horowitz court cited Fortunato, 402

F.2d at 82; however, Fortunato does not support that

proposition, and we decline to adopt the rule created in

Horowitz.$

The rationale for this “sole purpose” rule is presum-

ably to prohibit prosecutors from questioning witnesses

in bad faith to elicit prejudicial assertions of the privi-

lege. However, it would be easy enough for prosecutors

to avoid a finding that eliciting such responses was the

sole purpose of calling a witness: the prosecutor could

call for some token production of physical evidence, or

ask some token questions that the witness could answer.

Thus, if bad faith is the touchstone of impropriety, cf.

United States v. Basurto, 497 F.2d 781, 786 (9th Cir.

1974) (prosecutor has duty of good faith to Court, grand

jury and defendant), the prosecutor’s ability to show an

8 The same judge, a year earlier in United States v. Goldman,

439 F.Supp. 337, 348-49 (S.D.N.Y. 1977), noted that a prose-

cutor’s question to a grand jury target was improper where the

question, on its face, assumed that the witness would assert the

privilege. However, the court found a lack of prejudice because

the defendant was indicted by a different grand jury. It is diffi-

cult to reconcile the “impropriety” of the question in Goldman

with the “propriety” of the questions in Horowitz.

15a

additional purpose for calling the witness should not nec-

essarily be dispositive, if the prosecutor’s main purpose

is to harass the witness. Conversely, if the prosecutor

has a legitimate purpose in calling and questioning wit-

nesses knowing they will assert the privilege see e.g.,

Wolfson, 405 F.2d at 784-85 (legitimate to “test” wit-

ness’s reliance on privilege), then it is difficult to see why

the prosecutor should be required to show other reasons

for calling the witness.

Defendants assertion that these instances together re-

vealed a “systematic pattern” of misconduct adds little

to their argument.® If it is not improper to cause a lone

defendant to assert the privilege, knowing in advance

that he will do so, we do not see why the same treatment

would be improper directed at multiple defendants (in a

conspiracy or other case). Defendants offer no legal

theory or authority to suggest otherwise.

IV. Interference with Grand Jury Impartiality

The prosecutor has an obligation not to infringe upon

the independent judgment of the grand jury. See, e.g.,

United States v. McClintock, 748 F.2d 1278, 1285 (9th

Cir. 1984). The defendants argue that the prosecutor

violated this obligation by asking the defendants prej-

udicial and irrelevant questions, and making belittling or

derogatory remarks and gestures.

The first alleged incident involved David Benjamin.

During a break in the proceedings, Benjamin, who was

acting as his own attorney, approach the prosecutor to

ask him a question; the prosecutor “yelled” that Benjamin

was a target so that the prosecutor could not speak to

him, causing several listening grand jurors to laugh. This

® Defendants’ contentions regarding witnesses Ronald Cook and

Chris Reynolds boil down to the same general claim that it is

improper knowingly to make grand jury witnesses assert the

privilege.

Ll

l6a

incident, though reflecting adversely on the prosecutor’s

professional demeanor does not rise to the level of mis-

conduct described in United States v. Kilpatrick, 575

F. Supp. 325, 333 (D. Colo. 1983) (defendant’s expert

witness, a University of Washington tax law professor,

was “browbeaten” by government attorney, who told wit-

ness that his testimony was a disgrace and intimated that

Tax Division would complain to witness’s law school).

Moreover, the prosecutor’s conduct did not convey an im-

pression of Benjamin’s guilt, beyond the fact already

known to the grand jury, that Benjamin was a target.

See United States v. Cederquist, 641 F.2d 1347, 1359

(9th Cir. 1981) (dismissal of indictment not justified

where prosecutor’s conduct conveys his belief that indict-

ment is warranted).

Defendants also assert that in questioning Dennis

Speert, then president of Synanon, the prosecutor re-

peatedly expressed disbelief when Speert denied knowing

the answers to certain questions. Defendants also claim

the prosecutor asked Speert to investigate certain matters

and report back, but would not let Speert take notes on

what those matters were. The prosecutor also allegedly

repeatedly insisted to Yvett Van Dalsem, a clerk in Syna-

non’s law office, that she answer questions regarding doc-

ument production “yes” or “no”; when she asserted privi-

lege on one occasion, he made exasperated gestures; the

grand jurors laughed on one occasion when she left the

room to consult with her attorney; and after her testi-

mony, she was ordered to return five days later, disrupt-

ing her plan to return home to California from Washing-

ton, D.C.

The district court, after in camera review of the tran-

scripts, rejected the defendants contentions concerning

Speert and Van Dalsem, as based on inaccurate or ex-

aggregated allegations. We do not have these portions of

the transcript before us. But even if we take the allega-

tions as true, they do not rise to the level of serious mis-

| :

17a

conduct. The exasperated gesture in response to Van

Dalsem’s assertion of privilege does not amount to

“flagrant or abusive conduct” justifying dismissal of the

indictment. United States v. Pabian, 704 F.2d 1533,

1539-40 (11th Cir. 1983) (three or four spontaneous ges-

tures of exasperation, not in conjunction with harassing

or improper questions, not flagrant or abusive).

If their description is accurate, the expressions of dis-

belief in response to Speert’s denials of knowledge attrib-

uted to the prosecutor certainly were unseemly. However,

this conduct is not the same as impugning a witness for

asserting the privilege, does not constitute a direct attack

on Speert’s credibility and does not make false insinua-

tions or create inferences that would not have been ap-

parent to the grand jury, which knew Speert was presi-

dent of Synanon.

The other allegations, dealing with actions by the pros-

ecutor that added to the unpleasantness of the experience

for these witnesses, show a certain amount of disrespect

that could have a subtle and indirect influence on the

grand jury’s impartiality. However, indictments have

been dismissed only in cases involving direct and un-

founded or irrelevant insinuations by the prosecutor of

witness wrongdoing or dishonesty. See United States v.

Hogan, 712 F.2d 757, 761 (2d Cir. 1983) (prosecutor’s

inflammatory rhetoric to grand jury that defendant was

a “hoodlum” plus unfounded allegations of other criminal

activity) ; United States v. Serubo, 604 F.2d 807, 818

j (3d Cir. 1979) (gratuitous unsupported references to de-

ferdant’s violent tendencies and purported Mafia associa-

tions) ; United States v. Roberts, 481 F. Supp. 1385, 1389

& n.9 (C.D. Cal. 1980) (questions insinuating that wit-

ness was getting paid by defendant to testify, coupled

with prosecutor’s broken promise to supervising judge to

provide exculpatory evidence to grand jury).

Finally defendants charge that a colloquy between the

prosecutor and Ronald Cook, in which the prosecutor’s

18a

question insinuated that Cook was present at “the beat-

ing of individuals” at a Synanon facility, was improper.

Defendants rely on United States v. Serubo, 604 F.2d

807, 815-16 (3d Cir. 1979), in which the prosecutor’s

conduct, found “improper, reprehensible and unaccepta-

ble,” by the court, included the following colloquy between

the prosecutor and a witness (not the defendant in that

case) :

Q. Have you ever heard the name Frank Sin-

done?

A. No.

Q. Do you know Frank Sindone is probably the

number three man of the Philadelphia Cosa Nostra?

A. No.

Q. Do you know Frank Sindone was tried for

loan sharking in 1971? [He was acquitted. ]

A. No.

Q. Do you know that during the course of his

loan-sharking case there were tapes played in open

Court that he stated that in referring to someone

that owed him money, a woman, he was going to

take a hatchet and slice her head in two; that is on

tape. Do you know that was said in open Court?

Id. at 815. We find Serubo distinguishable from this

case. In Serubo the government conceded that it had

failed to lay any evidentiary foundation for its attempt

to link the defendant to organized crime; further, the

prosecutor failed to reveal to the grand jury that the

defendant had been acquitted of loansharking. In this

case, there is no allegation that the insinuation is un-

true or misleading. More importantly, the insinuations

against Cook could not have prejudiced Cook in the same

way the insinuations in Serubo prejudiced that defend-

ant, because Cook was testifying under a grant of im-

munity. Finally, the court in Serubo remanded, threat-

ening dismissal of the indictment as a sanction to deter

“entrenched and flagrant,” as opposed to isolated, mis-

19a

conduct of that sort by prosecutors. Jd. at 817. We do

not find that the prosecutor’s conduct here, if it is mis-

conduct, justifies dismissal.

V. Abuse of Subpoena Authority

Defendants argue that the prosecutor issued certain

grand jury subpoenas for the improper purpose of pre-

venting disclosure of those documents to the defendants.

According to defendants, the prosecutor’s subpoena of

documents in June and September 1983, prior to the

empaneling in October of the particular grand jury

which investigated the charges leading to this indictment,

raises an inference of such an impropriety. This vague

allegation appears to lack legal and factual support.

There is nothing in the record to suggest that the prose-

cutor abused the grand jury’s subpoena authority. See

United States v. Kleen Laundry & Cleaners, 381 F. Supp.

519, 523 (E.D.N.Y. 1974).

VI. Evidentiary Hearing and Disclosure of Transcripts

An evidentiary hearing is required on a motion to dis-

miss an indictment if defendants raise a material issue

of fact which, if resolved in accordance with defendants’

contentions, would entitle them to relief. United States

v. Irwin, 612 F.2d 1182, 1187 (9th Cir. 1980). There

were factual disputes as to whether certain witnesses

had communicated to the prosecutor, prior to their ap-

pearing before the grand jury, their intention to assert

the privilege. There were also disputes as to whether the

prosecutor had harassed certain witnesses by gestures

that would not appear in the record. However, no evi-

dentiary hearing was or is necessary, because dismissal

would not be warranted even if defendants’ versions of

the facts were true.

We also reject the defendants’ claim that the district

court abused its discretion by refusing to disclose grand

jury transcripts to the defendants under Rule 6(e) (3)

20a

(C) ii). A defendant has no right to pre-trial discovery

of grand jury transcripts absent a particularized need.

United States v. Ferreboeuf, 632 F.2d 832, 835 (9th Cir.

1980); Lancey v. United States, 356 F.2d 407, 412-13

(9th Cir. 1966). No such need exists, in light of our

resolution of the above issues.

CONCLUSION

We have found real merit only to one of the several

contentions raised by defendants. The prosecutor’s fail-

ure to disclose Ofshe’s source of potential bias was a

breach of duty to the grand jury and the district court.

Under slightly different circumstances, this lapse could

have compromised the government’s Rule 6(e) disclosure

motion as well. However, it does not by itself justify

dismissal of the indictment. See Samango, 607 F.2d at

884. The other alleged conduct either does not rise to

the level of misconduct, or else is not sufficiently serious,

even taken together with the Ofshe situation, to merit

dismissal. See id.

AFFIRMED.

Zla

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 86-1337

86-1338

D.C. No. CR-F-86-1-REC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

Davi R. BENJAMIN; PHILIP C. BOURDETTE; MIRIAM R.

BOURDETTE; CECILIA JASON DEDERICH; DAN L. GAR-

RETT, JR.; ELIZABETH MISSAKIAN; SYBIL SCHIFF;

STEVEN SIMON; DAN SORKIN,

Defendants-A ppellants.

ORDER

[Filed Dec. 19, 1988]

Before: KOELSCH, SCHROEDER and FLETCHER,

Cireuit Judges.

Appellants have urged this panel to grant a rehearing

in this case, Nos. 86-1337 and 86-1388 (July 7, 1988),

in light of Bank of Nova Scotia v. United States, ——

U.S. ——-, 108 S.Ct. 2369 (1988), handed down almost

concurrently with the filing of this opinion. Nova Scotia

holds that dismissal of an indictment is appropriate only

““f it is established that the violation substantially in-

22a

fluenced the grand jury’s decision to indict,’ or if there

is ‘grave doubt’ that the decision to indict was free from

the substantial influence of such violations.” 108 S.Ct.

at 2374, quoting United States v. Mechanik, 475 U.S.

66, 78 (1986) (O’Connor, J., concurring). This stand-

ard differs from that used in the opinion: “flagrant mis-

conduct that deceived the grand jury or significantly im-

paired its ability to exercise independent judgment.” Slip

op. at 8272. These two standards, although similar, in

that both require a violation by the prosecutor combined

with an effect on the grand jury, are not precisely equiv-

alent. See 108 S.Ct. at 2376.

Nevertheless, we ccnclude that reconsideration under

the new standard would not affect the result in this case.

In any analysis of the flagrancy of prosecutorial miscon-

duct under our old standard, the likely effect on the grand

jury played a crucial role. See United States v. Samango,

607 F.2d 877, 884 (9th Cir. 1979) (prejudice to defend-

ant resulting from bias of grand jury serves as bench-

mark of misconduct). In this case, we found no decep-

tion of the grand jury nor impairment of its independent

judgment. A new analysis of the prosecutorial miscon-

duct in this case, directed at its possible “substantial in-

fluence” on the grand jury, would not lead to a different

result. Although there may be cases where misconduct

fails to deceive a grand jury, or to bias it against a

defendant, while still exercising a ‘“‘substantial influence”

on its decision to indict, this is not such a case.

The full court has been advised of the suggestion for

rehearing en banc and the intent of the panel to file this

order, and no judge of the court has requested a vote on

the suggestion for rehearing en bane. Fed. R. App. P.

35(b).

The petition for rehearing is denied and the suggestion

for rehearing en banc is rejected.

23a

APPENDIX C

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Nos. 86-1287, 86-1388, 87-7052

and 87-7055

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

CECILIA JASON DEDERICH; ELIZABETH A. MISSAKIAN,

Defendants-A ppellants.

THE UNITED STATES OF AMERICA,

PY Plaintiff-A ppellee,

DAviID R. BENJAMIN; PHILIP C. BOURDETTE; MIRIAM R.

BOURDETTE; CECILIA J. DEDERICH; DAN L. GARRETT,

JR.; ELIZABETH MISSAKIAN; STEVEN SIMON; 1 ~ Sor-

KIN,

Defendants-A ppellants.

DAVID R. BENJAMIN, MIRIAM R. BOURDETTE, PHILIP C.

BOURDETTE, CECILIA JASON DEDERICH, DAN L. GARRETT,

J&., ELIZABETH A. MISSAKIAN, STEVEN SIMON AND DAN

SORKIN,

~: . Petitioners,

UNITED STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF CALIFORNIA,

Respondent,

UNITED STATES OF AMERICA,

Real Party in Interest.

24a

CECILiA JASON DEDERICH and ELIZABETH MISSAKIAN,

Petitioners,

V.

UNITED STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF CALIFORNIA,

Respondent,

UNITED STATES OF AMERICA,

Real Party in Interest.

Aug. 19, 1987

Appeal from the United States District Court

for the Eastern District of California

Guy L. Goodwin, Washington, D.C., for plaintiff-

appellee.

Robert D. Luskin, Washington, D.C., Kenneth W. De

Vaney, Fresno, Cal., Thomas J. Nolan, Palo Alto, Cal.,

Richard Mazer, San Francisco, Cal., Jay W. Powell,

Visalia, Cal., Tom Henze, Phoenix, Ariz., Robert N.

Harris, Los Angeles, Cal., John L. Williams, San Jose,

Cal., and Salvatore Sciandra, Fresno, Cal., for defend-

ants-appellants.

Before CANBY, REINHARDT and THOMPSON, Cir-

cuit Judges.

CANBY, Circuit Judge:

25a

ON MOTIONS TO DISMISS

INTERLOCUTORY APPEALS

CONDITIONAL PETITIONS FOR MANDAMUS

Eight defendants appeal the district court’s denial of

their motions to dismiss an indictment on grounds of

prosecutorial misconduct before the grand jury. Two of

the defendants, Dederich and Missakian, also separately

appeal the district court’s denial of their motion to dis-

miss the indictment for violation of transactional im-

munity granted by the Superior Court of California.

Each of the appeals is accompanied by an alternative,

conditional petition for a writ of mandamus. The gov-

ernment moves to dismiss both interlocutory appeals for

lack of jurisdiction. We conclude that the district court’s

denial of dismissal for prosecutorial misconduct is re-

viewable prior to final judgment under the collateral

order doctrine. We agree with the government, however,

that we lack jurisdiction over Dederich and Missakian’s

separate appeal because those claims will remain review-

able on appeal from any conviction. We deny Dederich’s

and Missakian’s petition for writ of mandamus, and dis-

miss that of all eight defendants as moot.

FACTS

Following len.thy federal grand jury proceedings, de

fendants were charged on October 21, 1985, in a 22-count

indictment.1 The indictment grew out of an Internal

Revenue Service audit of The Synanon Church, and out

of civil litigation between Synanon, the United States,

and private parties in California State and District of

Columbia courts. Defendants are charged with commit-

ting perjury and making false statements to conceal the

destruction and alteration of documents and tape record-

ings pertaining to those proceedings.

1 Defendants were indicted for conspiracy, concealment of ma-

terial facts, obstruction of justice, and perjury.

26a

All defendants moved to dismiss the indictment on the

ground that prosecutorial misconduct undermined the in-

dependence and impartiality of the grand jury.? Defend-

ants alleged that the prosecutor’s misconduct before the

grand jury included calling witnesses for the sole pur-

pose of repeatedly forcing them to assert their fifth

amendment privilege, harassing Synanon-associated wit-

nesses, failing to present evidence that cast doubt on the

credibility of witnesses, making derogatory comments

about Synanon and the Synanon lifestyle, presenting ir-

relevant and false, prejudicial evidence, and abusing the

grand jury’s subpoena authority. The district court ex-

amined grand jury transcripts in camera. On December

2, 1986, without holding an evidentiary hearing, the dis-

trict court denied defendants’ motion to dismiss the in-

dictment.*

Dederich and Missakian were granted transactional

immunity by the Los Angeles County Superior Court, to

compel them to testify before a state grand jury. In the

district court, they moved to dismiss the indictment.

Dederich and Missakian alleged that the federal prose-

cutor, Mr. Guy Goodwin, instigated and controlled the

parallel state and federal grand jury investigations into

conduct underlying the federal indictment. Dederich and

Missakian contended that because Goodwin’s involvement

in the state investigation established an agency relation-

ship between federal and state prosecutors, due process

bound Goodwin to honor the state prosecutors’ promise

of transactional immunity. The district court determined

that Dederich and Missakian failed to establish agency

and denied their motion to dismiss on December 2, 1986.

2 Defendants also requested a hearing and renewed their pre-

vious motion for disclosure of grand jury transcripts.

3 The government conceded, however, that one defendant might

have been called before the grand jury for an improper purpose.

That defendant is not a party to this appeal.

27a

Defendants appeal both of the district court’s orders,

asserting appellate jurisdiction under 28 U.S.C. § 1291.

On January 15, 1987, by separate motions, the govern-

ment moved to dismiss the appeals. We consider the mo-

tions and the conditional petitions for mandamus together

because they arise from the same prosecution and involve

related legal issues.*

APPEALABILITY

I. PROSECUTORIAL MISCONDUCT

The government contends that our decision in United

States v. Garner, 632 F.2d 758 (9th Cir. 1980), cert.

denied, 450 U.S. 928, 101 S.Ct. 13873, 67 L.Ed.2d 351

(1981), bars interlocutory review of the district court’s

denial of the motion to dismiss for prosecutorial miscon-

duct.” The government further argues that the order is

not appealable under the doctrine of Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221,

1225, 98 L.Ed. 1528 (1949). We disagree.

An appealable interlocutory order must meet three re-

quirements under Cohen’s collateral order doctrine:

First, it “must conclusively determine the disputed

question”; second, it must “resolve an important

issue completely separate from the merits of the ac-

4This motions panel previously ruled on appealability of two

earlier pretrial orders in this prosecution. We first determined

that we lacked jurisdiction to review the denial of a motion to

dismiss several indictment counts on the basis of the statute of

limitations. Nos. 86-1307 & 86-7684. Later, in United States v.

Benjamin, 812 F.2d 548 (9th Cir. 1987), we determined that juris-

diction existed under the collateral order doctrine to review the

district court’s denial of defedants’ motion to dismiss the indictment

for violation of Fed.R.Crim.P. 6(e) (prohibiting disclosure of grand

jury materials).

5 The government also relies on United States v. Linton, 655 F.2d

930 (9th Cir. 1980), a brief per curiam decision which relied solely

on the authority of Garner for its result.

28a

tion”; third, it must “be ‘effectively unreviewable on

appeal from a final judgment.”

Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct.

1051, 1055, 79 L.Ed.2d 288 (1984) (quoting Coopers &

Lybrand v. Livesay, 487 U.S. 463, 468, 98 S.Ct. 2454,

2458, 57 L.Ed.2d 351 (1978) ).

The government contends that this appeal is insepara-

ble from the merits of the action, thereby failing the

second requirement. In support of its contention, the

government relies on the harmless error rule of United

States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.

2d 50 (1986), which “inextricably link[s]” analysis of the

grand jury’s probable cause determination to the suffi-

ciency of evidence at trial. Government Motion to Dis-

miss Appeal for Lack of Jurisdiction at 8.

It is true that Mechanik requires post-conviction anal-

ysis of grand jury irregularities to focus on the petit

jury’s verdict, 106 S.Ct. at 942-48, and Mechanik is rele-

vant to this appeal, as discussed below. However, prose-

cutorial misconduct before the grand jury, examined

prior to trial for its effect on the irdictment, is not truly

related to the merits of the criminal trial. For purposes

of the collateral order doctrine’s second requirement, it

is enough that a decision by this Court on the present

appeal will have no effect on the trial court’s determina-

tion of guilt or innocence under the present or any super-

seding indictment.

The more critical issue here is whether defendants’

present claims will be “effectively unreviewable on appeal

from final judgment.” Flanagan, 465 U.S. at 265, 104

S.Ct. at 1051 (citations omitted). To determine whether

appellants’ claims meet this third requirement of the col-

lateral order rule, we must decide whether the claims

“are sufficiently aimed at the charging process that they

fall within the ambit of Mechanik.” United States v.

Benjamin, 812 F.2d 548, 553 (9th Cir. 1987). Despite

29a

the government’s contention that our review of prosecu-

torial misconduct must await appeal from final convic-

tion, we have already determined in Benjamin that simi-

lar grand jury irregularities may well be considered

harmless and effectively unreviewable after trial under

Mechanik. Id. at 551-53; but see United States v. Taylor,

798 F.2d 1337 (10th Cir. 1986) (because allegations

went beyond issue of probable cause to “fundamental

fairness,” claims would escape Mechanik’s harmless er-

ror analysis in post-conviction appeal).

Appellants’ prosecutorial misconduct charges essen-

tially go to improper effect on the grand jury’s decision

to indict. We think, and the government agrees, that

Mechanik’s harmless error rule- would apply if the claims

were reviewed on appeal from final judgment. Benjamin,

812 F.2d at 552-53; Government Motion to Dismiss at 7

n.2. Other circuits have also concluded that the Supreme

Court’s language in Mechanik bears broad interpretation.

United States v. Hintzman, 806 F.2d 840, 843 (8th Cir.

1986); Porter v. Wainwright, 805 F.2d 930, 941-42

(11th Cir. 1986); United States v. Thomas, 788 F.2d

1250, 1254 (7th Cir. 1986), cert. denied, USS. .

107 S.Ct. 187, 93 L.Ed.2d 121 (1987) ; see United States

v. Page, 808 F.2d 723, 726-27 (10th Cir. 1987); but ef.

Taylor, 798 F.2d at 1339-40.

Post-conviction review under Mechanik would lead us

to conclude that the petit jury’s verdict “wipe[s] out”

any prejudice to defendants resulting from the allegedly

erroneous charging decisions. Benjamin, 812 F.2d at

553; see Mechanik, 106 S.Ct. at 941-43. Therefore, if we

do not permit defendants’ appeal at this stage, “[e]rrors

that affected the grand jury proceedings to the detriment

of the acccused, and that would have justified the district

court in dismissing the indictment before trial,° would

6 We have upheld dismissal of indictments based on cumulative

prosecutorial errors and indiscretions before the grand jury. £.g.,

80a

go wholly unremedied if the district court itself erred in

denying dismissal.” 812 F.2d at 853-54 (footnote added).

Appellants’ prosecutorial misconduct claims consequently

meet the third requirement of the collateral order rule.”

Il. GRANT OF IMMUNITY

Dederich and Missakian argue that this court has ju-

risdiction over their appeal from the district court’s pre-

trial denial of dismissal based on the state grant of

transactional immunity from prosecution.

The collateral order exception to the final judgment

rule must be applied with “the utmost strictness in crimi-

nal cases.” Flanagan, 465 U.S. at 265, 104 S.Ct. at 1051.

As we recently stated in United States v. Ohnick, 803

F.2d 1485 (9th Cir. 1986), “[t]he Cohen principle is

limited to an ‘asserted right the practical and legal value

of which could be destroyed if it were not [immediately ]

vindicated.’” Id. at 1487 (quoting Firestone Tire &

Rubber Co. v. Risjord, 449 U.S. 368, 377, 101 S.Ct. 669,

675, 66 L.Ed.2d 571 (1981) (in turn quoting United

States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547,

1552, 56 L.Ed.2d 18 (1978))) (brackets in original).

Appellants Dederich and Missakian contend that their

immunity is such a right.

United States v. Samango, 607 F.2d 877, 884-85 (9th Cir. 1979);

see also United States v. Basurto, 497 F.2d 781 (9th Cir. 1974).

However, “[a] defendant who challenges the indictment . . . bears a

heavy burden to demonstrate that the prosecutor engaged in flagrant

misconduct deceiving the grand jury or significantly impairing its

exercise of independent, unbiased judgment.” United States v.

Venegas, 800 F.2d 868, 869-70 (9th Cir. 1986) (citations omitted).

7 The result we reach today and our prior decision in Benjamin

are consistent with Garner, 632 F.2d at 765-66. In fact, Benjamin

relied on Garner’s analysis. Benjamin, 812 F.2d at 551. The

Benjamin decision also addressed Garner’s concern for the dis-

ruptive effect of interlocutory appeals on the criminal justice sys-

tem. Id. at 553.

sla

The Supreme Court has permitted a narrow exception

to the final judgment rule which allows interlocutory

appeals from denials of qualified or absolute immunity

to government officials. £.9., Mitchell v. Forsyth, 472

U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We

reject appellants’ contention that the jurisdictional ques-

tion here is governed by Mitchell and other governmental

immunity cases. This case does not implicate the policy

behind that narrow exception, which grows from the

necessity of government officials to act expeditiously

without having to defend themselves from legal actions.

Appellants also rely on the Second Circuit’s suggestion

that a plea agreement barring prosecution protects a de-

fendant not merely from punishment. but from trial it-

self. United States v. Abbamonte, 759 F.2d 1065, 1070-

71 (2d Cir. 1985) (upholding interlocutory appeal).

This court, however, has taken the opposite position.

United States v. Solano, 605 F.2d 1141, 1142-43 (9th Cir.

1979) (concluding that court of appeals lacked jurisdic-

tion over interlocutory appeal involving plea-bargain im-

munity). Indeed, the majority of courts have denied in-

terlocutory appeals grounded in plea-bargain promises or

grants of immunity. United States v. Bird, 709 F.2d 388,

392 (5th Cir. 1983):% United States v. Brizendine, 659

F.2d 215 (D.C. Cir. 1981); Solano, 605 F.2d at 1142-

43: United States v. Cavin, 553 F.2d 871, 873-74 (4th

Cir. 1977) (citing Heike v. United States, 217 U.S. 423,

30 S.Ct. 539, 54 L.Ed. 821 (1910) ).

While Dederich’s and Missakian’s immunity was not

granted pursuant to a plea agreement, we conclude that

8 The promise of “nonprosecution” in Bird bears some similarity

to the California statute under which immunity was conferred

on Dederich and Missakian. See Cal.Pen.Code § 1324. The Bird

court concluded that the promise was one of immunity from punish-

ment, not immunity from any prosecution. Bird, 709 F.2d at 392.

See also United States v. Eggert, 624 F.2d 973 (10th Cir. 1980)

(per curiam).

82a

the same policy considerations govern it. The guarantee

afforded by the immunity can be adequately protected by

appeal after conviction. Their rights will not be irretriev-

ably lost if interlocutory appeal is denied. Theirs is not

an “immunity from suit rather than a mere defense to

liability.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2816

(emphasis in original).

CONCLUSION

Since any rights Dederich and Missakian may have to

transactional immunity can be vindicated on appeal from

final judgment, we lack jurisdiction over their interlocu-

tory appeal. The government’s motion to dismiss in No.

86-1387 is granted. Because the district court’s denial

of dismissal may be reviewed by direct appeal, we also

deny Dederich and Missakian’s conditional petition for

writ of mandamus (No. 87-7055). See, e.g., Schlaugen-

hauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d

152 (1964); Public Utilities Commission v. FERC, 814

F.2d 560, 562 (9th Cir. 1987); Bauman v. District

Court, 557 F.2d 650, 654 (9th Cir. 1977).

Our decision in United States v. Benjamin establishes

that we have jurisdiction over defendants’ appeal based

on prosecutori%} misconduct before the grand jury. That

interlocutcry appeal meets the requirements of Cohen.

Consequently, the government’s motion to dismiss No.

86-1388 is denied.®

APPEAL NO. 86-1387 DISMISSED.

MOTION TO DISMISS APPEAL NO. 86-1388 DE-

NIED.

® We of course express no opinion on the outcome of appellants’

claims, which will be considered by a merits panel of this court.

A briefing schedule will be established by separate order. Our

denial of the government’s motion to dismiss renders superfluous

the defendants’ conditional petition for writ of mandamus (No.

87-7052). It is dismissed as moot.

33a

PETITION FOR WRIT OF MANDAMUS NO. 87-

7055 DENIED.

PETITION FOR WRIT OF MANDAMUS NO. 87-

7052 DISMISSED.

DAVID R. THOMPSON, Circuit Judge, dissenting:

This circuit has held that a district court’s pre-trial

order denying a motion to dismiss an indictment because

of grand jury irregularities is not immediately appeal-

able. United States v. Garner, 632 F.2d 758, 765 (9th

Cir. 1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373,

67 L.Ed.2d 351 (1981). See United States v. Bendis,

681 F.2d 561, 569 (9th Cir. 1981), cert. denied, 459 U.S.

973, 103 S.Ct. 306, 74 L.Ed.2d 286 (1982); United

States v. Linton, 655 F.2d 930, 932 (9th Cir. 1980) (per

curiam), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68

L.Ed.2d 201 (1981). In Garner we stated:

We are convinced that, especially in the criminal

context, the policy against piecemeal appellate ad-

judication is sound and that the exceptions to the rule

should be few. To allow an interlocutory appeal in

this instance would create nothing short of chaos in

the criminal justice system.

Garner, 632 F.2d at 766. Today, however, as they did in

United States v. Benjamin, 812 F.2d 548 (9th Cir. 1987)

(“Benjamin I’), the majority once again permits piece-

meal appellate adjudication. In their view, if the defend-

ants are not permitted to appeal at this stage of the case,

Mechanik v. United States, 475 U.S. 66, 106 S.Ct. 938,

89 L.Ed.2d 50 (1986) will prevent any post-conviction

appellate review of errors that affected the grand jury

proceedings to the defendants’ detriment. I do not agree.

In Benjamin I, the claimed grand jury irregularity

was an alleged violation of Federal Rule of Criminal

Procedure 6(e). Benjamin I, 812 F.2d at 550. In moving

to obtain disclosure of grand jury transcripts, the gov-

[a

34a

ernment had failed to disclose to the district court that

the government’s expert consultant, whto was a grand

jury witness, was a party to a pending civil suit against

the defendants. The district court denied a defense mo-

tion to dismiss the indictment for the claimed Rule 6(e)

violation. The defense appealed the denial of that mo-

tion. A majority of a three-judge motions panel of this

court denied the government’s motion to dismiss the ap-

peal, because according to the majority’s reading of Me-

chanik the claim of error would be unreviewable if it

were not raised prior to trial. Jd. at 551-52. I dissented

in Benjamin J

[blecause of (1) the strong policy against piecemeal

appellate adjudication; (2) the view that Mechanik;

should be narrowly construed (see United States v.

Taylor, 798 F.2d 1337, 1340 (10th Cir. 1986) (“Me-

chanik was carefully crafted along very narrow

lines, and it has not resulted in anvther exception to

the final judgment rule.’”) }; and (3) the distinction

between a Rule 6(d) violation which affects the

grand jury’s decision to indict and a Rule 6(e) vio-

lation which may contravene the policy of grand

jury secrecy... .

Id. at 556.

ration. The view that Mechanik should be narrowly con-

strued leads me to conclude that while Mechanik does not

apply to the present case, United States y. Taylor, 798

F.2d 1337 (10th Cir. 1986) does. In Taylor

The defendants moved in the district court for

dismissal of a multicount mail fraud indictment on

several grounds: (1) invasion of the defense camp

by the prosecution in violation of the attorney-client

privilege and defendants’ Sixth Amendment rights;

35a

(2) abuse of the grand jury through prosecutorial!

misconduct in the form of the prosecution’s failure

to present exculpatory evidence and its biasing of

the grand jury with inadmissible, inflammatory, and

prejudicial evidence; and (3) improper utilization of

state officers in the grand jury investigation.

Taylor, 798 F.2d at 1338.

The district court in Taylor denied a defense motion

to dismiss. The defense appeaied. The government

moved to dismiss the appeal, contending that the district

court’s order was not immediately appealable because it

did not fall within the collateral order exception created

by Cohen v. Beneficial [ndustrial Loan Corp., 337 U.S.

541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Tenth

Cireuit stated: “The dispositive issue presented for re-

view is whether the order has been made appealable by

[Mechanik].” Taylor, 798 F.2d at 1338. The court held

it had not and distinguished Mechanik:

In Mechanik, no allegations were made that the gov-

ernment attempted to unfairly sway the grand jury

or to otherwise affect the fairness of the accusatory

process. There was no alleged pervasive attempt to

charge without cause or to undermine the defense.

In short, there was no question whether the govern-

ment had transgressed the defendants’ rights to

fundamental fairness. The error of which the prose-

cution was guilty, at worst, was technical, and, at

most, could have affected only the grand jury’s de-

termination of probable cause. Since the error was

not discovered until after the trial began, the trial

was more than three months in duration, and the out-

come effectively eliminated any question of whether

there was probable cause, the Court found the error

was harmless.

The Supreme Court in Mechanik did not hold that

a Rule 6 violation of any sort of any other act which

36a

affects the fundamental fairness of the criminal pro-

ceedings discovered prior to trial is not justiciable

after conviction. That is a critical distinction.

The issues raised by the defendants are not of the

technical varitey. They are asserting that their

right to fundamental fairness has been adversely af-

fected by the various acts of which they complain.

A petit jury determination of guilt will not moot

these issues because they go beyond the question of

whether the grand jury had sufficient evidence upon

which to return an indictment. Accordingly, to the

extent they have been properly preserved, these is-

sues can be raised upon appeal if the defendants are

convicted. See, e.g., United States v. Hinton, 543

F.2d 1002 (2d Cir.), cert. denied, 429 U.S. 980, 97

S.Ct. 493, 50 L.Ed.2d 589 (1976). We see no justi-

fication for abandonment of the long-standing prin-

ciple that disfavors piecemeal appeals; therefore,

this appeal must be dismissed. United States v.

Hollywood Motor Car Co., 458 U.S. 263, 102 S.Ct.

3081, 73 L.Ed.2d 754 (1982).

Taylor, 798 F.2d at 1340 (footnote omitted).

The claims made by the defendants in the present case

resemble the claims made in Taylor. As in Taylor, the

issues raised by the defendants in this case “are not of

the technical variety. They are asserting that their right

to fundamental fairness has been adversely affected by

the various acts of which they complain. A petit jury

1In the present case, the “[d]Jefendants alleged that the prose-

cutor’s misconduct before the grand jury included calling witnesses

for the sole purpose of repeatedly forcing them to assert their

fifth amendment privilege, harassing Synanon-associated witnesses,

failing to present evidence that cast doubt on the credibility of

witnesses, making derogatory comments about Synanon and the

Synanon lifestyle, presenting irrelevant and false, prejudicial evi-

dence, and abusing the grand jury’s subpoena~-authority.” (Ma-

jority opinion at 1319).

37a

determination of guilt will not moot these issues because

they go beyond the question of whether the grand jury

had sufficient evidence upon which to return an indict-

ment.” Id.

I would grant the government’s motion to dismiss the

appeals because I do not believe Mechanik compels the

conclusion reached by the majority. I would deny the

petitions for writs of mandamus due to the absence of

any Bauman factors. See Bauman v. United States, 557

F.2d 650 (9th Cir. 1977).

I concur in the grant of the government’s motion to

dismiss the Dederich and Missakian appeal in No. 86-

1387, and to deny Dederich and Missakian’s conditional

petition for writ of mandamus (No. 87-7055).

88a

APPENDIX D

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Nos. 86-1337, 86-7717

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

V.

DAvip R. BENJAMIN; PHILIP C. BOURDETTE; MIRIAM R.

BOURDETTE; CECILIA J. DEDERICH; DAN L. GARRETT,

JR.; ELIZABETH MISSAKIAN; SYBIL SCHIFF; STEVEN

SIMON; DAN SORKIN,

Defendants-A ppellants.

DAVID R. BENJAMIN; PHILIP C. BOURDETTE; MIRIAM R.

BOURDETTE; CECILA J. DEDERICH; DAN L. GARRETT,

JR.; ELIZABETH MISSAKIAN; SYBIL SCHIFF; STEVEN

SIMON; DAN SORKIN, Petitioners,

We

' UNITED STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF CALIFORNIA,

Respondent,

UNITED STATES OF AMERICA,

Real Party in Interest.

Motion to Dismiss Appeal

Submitted Dec. 11, 1986 *

Decided March 11, 1987

* The panel finds this case appropriate for submission without

oral argument pursuant to Ninth Circuit Rule 3(f) and Fed.R.App.

P. 34(a).

39a

Appeal from the United States District Court

for the Eastern District of California

Robert D. Luskin, Washington, D.C., Kenneth W. De-

Vaney, Fresno, Cal., Thomas J. Nolan, Palo Alto, Cal.,

Richard Mazer, San Francisco, California; Jay W. Pow-

ell, Visalia, Cal., Tom Henze, Phoenix, Arizona; Robert

N. Harris, Los Angeles, Cal., Mafk E. Overland, Los

Angeles, Cal., John L. Williams, San Jose, Cal., and Sal-

vatore Sciandra, Fresno, Cal., for defendants-appellants.

Guy L. Goodwin, Washington, D.C., for plaintiff-appellee.

Before CANBY, REINHARDT and THOMPSON, Cir-

cuit Judges.

CANBY, Circuit Judge:

Defendant-appellants seek review of the district court’s

denial of their motion to dismiss an indictment on the

ground of irregularities in the grand jury proceedings.

The government moves to dismiss the appeal for lack of

jurisdiction. In light of the Supreme Court’s decision in

United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938,

89 L.Ed. 250 (1986), we find the district court order ap-

pealable under the collateral order doctrine.

I. FACTS

Following lengthy federal grand jury proceedings, de-

fendants were charged on October 1, 1985 in a 22-count

indictment with conspiracy, concealment of material facts,

obstruction of justice, and perjury. The indictment grew

out of an IRS audit of The Synanon Church, and civil

litigation between Synanon, the United States, and pri-

vate parties in California State and District of Columbia

1 Defendants’ appeal was submitted to this motions panel for con-

siderations of the jurisdictional question. Accordingly, we rule

only on the appealability of the district court order; the merits

of appellants’ appeal will be considered separately in due course.

40a

courts. Defendants are charged with committing perjury

and making false statements to conceal the destruction

and alteration of documents and tape recordings pertain-

ing to those proceedings.

From the outset, defendants apparently were concerned

about participation of a government consultant, Dr. Rich-

ard Ofshe, in the grand jury investigation. At the time

of the grand jury proceedings, Ofshe was involved in a

civil action for intentional infliction of emotional distress,

abuse of process, and malicious prosecution against six

of the nine criminal defendants in this action.

Ofshe amended his civil action to charge the six de-

fendants with systematic destruction and concealment of

evidence in his and other civil suits, placing in issue the

exact allegations that form the basis for the later indict-

ment against defendants. Immediately after amendment

of Ofshe’s action, the government obtained an order from

the United States District Court for the District of Co-

lumbia authorizing release of “documents and recordings

subpeonaed by the grand jury to the government’s ex-

pert, Richiard [sic] J. Ofshe.”* District of Columbia

Chief Judge Aubrey Robinson Jr. granted the request

“for the purpose of assisting the federal grand jury and

the United States Attorney in the investigation.” ®

2 United States v. Benjamin, No. CR-F-86-1 REC, slip op. at 23

(E.D.Cal. May 1, 1986) (Decision & Order Re Defense Motion for

Disclosure of Grand Jury Transcripts and Minutes) (quoting gov-

ernment’s Application for Disclosure Order Pursuant to Rule

6(e)(3)(C)(i) & 6(e)(3)(D), F.R.Cr.P.) (ER at 85).

By this time, Ofshe had already appeared several times as a

witness before the grand jury. The extent of Ofshe’s participation,

and whether the charging grand jury was aware of his adverse

interests to the defendants, is unclear.

3 In re Grand Jury Proceedings: Grand Jury 84-I, Possible Vio-

lations of 18 U.S.C. 1505, 1508, 371, 1001, 1962, Misc. No. 84-096,

slip op. at 3 (D.D.C. Aug. 2, 1984).

Although proceedings were initiated in the District of Columbia,

on December 20, 1985, the case was transferred to the Eastern

4la

To secure disclosure of the tape recordings and details

of the investigation to Ofshe, the government represented

to the district court that Ofshe’s assistance was necessary

to the investigation because “the federal investigative

agency involved lacks familiarity with Synanon records

and the voices appearing on Synanon tape _ record-

ings... .”* The record on appeal indicates that the gov-

ernment did not, however, inform the district court of

Ofshe’s civil suit against the defendants.® The record

also indicates that before the government’s ex parte mo-

tion for disclosure of the grand jury materials, the gov-

ernment was well aware of the civil suit and the fact that

its expert consultant was seeking damages from defend-

ants for the very conduct underlying the grand jury in-

vestigation.°®

Defendants moved for discovery of the grand jury

transcripts under Fed.R.Crim.P. Rule 6(e) (3) (C) (ii)

in the District Court for the Eastern District of Cali-

fornia. Through the court’s May 1, 1986 order denying

discovery in part, defendants learned of Ofshe’s involve-

ment in the grand jury proceedings; at the same time,

defendants learned that the governmeni failed to disclose

Ofshe’s interest to the District Court for the District of

Columbia in moving to secure disclosure of the materials.

District of California on defendants’ motion. United States v.

Benjamin, 623 F.Supp. 1204 (D.D.C. 1985).

* United States v. Benjamin, supra, note 2, slip op. at 23.

5 The Eastern District assumed this lack of notice for purposes

of ruling on defendants’ Motion to Dismiss the indictment. United

States v. Benjamin, No. CR-F-86-1 REC, slip op. at 10 (E.D.Cal.

Nov. 4, 1986) (Order Re Motion to Dismiss for Violation of Rule

6(e), Fed.R.Crim.P.).

8 United States v. Benjamin, supra, note 5, slip op. at 10.

42a

Defendants then moved for dismissal of the indictment

for violation of Rule 6(e) (2)*. Judge Robert E. Coyle of

the Eastern District of California denied the motion.*

While acknowledging the government’s failure to disclose

Ofshe’s interest to the District Court for the District of

Columbia, he concluded that the problem was not serious

_and that the irregularity did not warrant dismissing the

indictment.

Defendants appeal the order denying dismissal, assert-

ing jurisdiction in this court under 28 U.S.C. § 1291. The

government has now moved to dismiss.

II. APPEALABILITY

As a general rule, a party must “raise all claims of

error in a single appeal following final judgment on the

merits.” Firestone Tire & Rubber Co. v. Risjord, 449

U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981).

Appellants seek to escape that rule by establishing that

the district court’s denial of their motion to dismiss is

appealable as a “collateral order” under the doctrine of

Cohen v. Beneficial Industrial Loan Corporation, 337 U.S.

541, 546, 69 S. Ct. 1221, 1225, 93 L.Ed. 1528 (1949). To

qualify for this exception to the final judgment require-

ment, the order under appeal must meet three conditions.

First, it “must conclusively determine the disputed

question”; second, it must “resolve an important

issue completely separate from the merits of the

7 (2) General Rule of Secrecy. A grand juror, an interpreter,

a stenographer, an operator of a recording device, a typist who

transribes recorded testimony, an attorney for the government,

or any person tc whom disclosure is made under paragraph

(3)(A)(ii) of this subdivision shall not disclose matters oc-

curring before the grand jury, except as otherwise provided

for in these rules.

Rule 6(e)(2), Fed.R.Crim.P.

8 United States v. Benjamin, supra, note 5.

~ —"~

43a

action”; third, it must “be effectively unreviewable

on appeal from a final judgment.”

Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct.

1051, 1055, 79 L.Ed.2d 288 (1984) (quoting Coopers &

Lybrand v. Livesay, 4837 U.S. 463, 468, 98 S.Ct. 2454,

2457, 57 L.Ed.2d 351~(1978)). It is the third require-

ment that is in dispute in this case, and it is the third

requirement that has traditionally presented the greatest

obstacle to interlocutory appeals like this one.

We have entertained claims of violations of Rule 6(e)

and of other grand jury irregularities on appeal after

final judgment. United States v. De Rosa, 783 F.2d 1401,

1404-07 (9th Cir.1986) ; United States v. Claiborne, 765

F.2d 784, 794-96 (9th Cir. 1985), cert. denied, U.S.

——, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986); United

States v. Stone, 633 F.2d 1272, 1275 (9th Cir.1979).

As a corollary, we have refused to entertain such claims

on interlocutory appeal of a district court’s denial of a

motion to dismiss an indictment. Our leading decision

to that effect is United States v. Garner, 632 F.2d 758

(9th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct.

1373, 67 L.Ed.2d 351 (1981). Accord United States v.

Bendis, 681 F.2d 561, 569 (9th Cir.1981) (following

Garner), cert. denied, 459 U.S. 973, 103 S.Ct. 306, 74

L.Ed.2d 286 (1982). While we also based our decision

in Garner on the disruptive effect interlocutory appeals

would have on the crimina: justice system, the founda

tion of our decision was the availability of review after

final judgment. We stated that the one unanswered ques-

tion that the appeal presented under the Cohen analysis

was “whether the particular right involved would be ‘lost,

probably irreparably’ if immediate appellate review

fwere] not available.” Garner, 632 F.2d at 765 (quoting

Cohen, 337 U.S. at 546, 69 S. Ct. at 1225). And we

answered that question in the concluding sections of our

opinion when we quoted In re Grand Jury Proceedings

(Johanson), 632 F.2d 1033, 1039 (3d Cir.1980) :

44a

[F]lawed grand jury proceedings can be effectively

reviewed by this court and remedied after a con-

viction [has] been entered and all criminal proceed-

ings have been terminated in the district court... .

Because delayed appellate review will not irreparably

deny Johansen his right to an impartial grand jury

(his conviction could be reversed if at a later stage

we conclude the grand jury was tainted) the order

is not reviewable immediately as a collateral order.

Garner, 632 F.2d at 766.

Appellants contend, however, that we cannot today

deny their interlocutory appeal on the ground that their

claim may effectively be reviewed after final judgment.

They argue that effective review after conviction has been

rendered unavailab'e by the recent decision of the Su-

preme Court in United States v. Mechantk, 475 U.S. 66,

106 S.Ct. 938, 89 L.Ed.2d 50 (1986). In Mechanik, the

defendants asserted, on appeal after conviction, that an

irregularity in the grand jury proceedings rendered their

convictions void. Although Fed.R.Crim.P. 6(d) provides

that only “the witness under examination” shall be pres-

ent at grand jury proceedings, two government witnesses

had testified in tandem. The defendants did not discover

the violation until after trial commenced. Defendants

moved for dismissal, but the district court deferred ruling

on the motion until the trial’s conclusion. The district

court then denied the defendants’ motion. The Fourth

Circuit set aside Mechanik’s conspiracy conviction, which

had been “tainted” by the Rule 6 violation. A divided

Supreme Court reversed.

In its majority opinion, the Court assumed that simul-

taneous presence of the two witnesses violated Rule 6(d)

and that the district court might have been justified in

dismissing portions of the indictment prior to trial. Me-

chanik, 106 S.Ct. at 941. The Court held, however, that

the supervening jury verdict established that any error

45a

in the grand jury proceeding was harmless under Fed.Rd

Crim.P. Rule 52(a). Therefore, reversal of the convic-

tion and dismissal of the indictment were inappropriate:

The error involving Rule 6(d) in these cases had the

theoretical potential to affect the grand jury’s deter-

mination whether to indict these particular defend-

ants for the offenses with which they were charged.

But the petit jury’s subsequent guilty verdict not

only means that there was probable cause to believe

that the defendants were guilty as charged but they

are in fact guilty as charged beyond a reasonable

doubt. Measured by the petit jury’s verdict, then,

any error in the grand jury proceedings connected

with the charging decision was harmless beyond a

reasonable doubt.

Mechanik, 106 S.Ct. at 941-42 (footnote omitted).

The question before us, then, is whether the effect of

Mechcenik will be to deprive appellants of any effective

review of their claim after final judgment. Another way

to put the question is to ask whether, after giving full

precedential effect to Mechanik, we would be able to

afford appellants any relief if their contentions proved

to be meritorious. We conclude that the answer is “no.”

First, it seems clear enough that the harmless error

doctrine adopted by the majority in Mechanik rendered

the claim of grand jury irregularities asserted by the

defendant there effectively unreviewable. Indeed, the gov-

ernment concedes that a similar application of the harm-

less error rule to appellants’ claims in this case would

render them effectively unreviewable after final judg-

ment.

It is true that there are distinctions between this case

and Mechanik. Appellants here assert a violation of Rule

6(e)’s prohibition on disclosure of matters occurring

before the grand jury, while Mechanik asserted a viola-

46a

tion of Rule 6(d). We fail to see how this distinction

could cause a difference in result, however. Appellants

contend that the improper disclosure was to an interested

witness for the purpose of assisting in the grand jury’s

investigation. The argument is primarily one of taint, or

an improper effect on the grand jury’s decision to indict.

Yet any such effect on the grand jury’s probable cause

determination will, under the rationale of Mechanik, be

rendered harmless if a petit jury finds appellants guilty

beyond a reasonable doubt. We would not be free to

avoid a harmless error analysis under Federal Rule of

Criminal Procedure 52(a) because the Mechanik major-

ity saw “no reason not to app'y this provision to ‘errors,

defects, irregularities or variances’ occurring before a

grand jury just as we have app'ied it to such error

occurring in the criminal trial itself.” Mechanik, 106

S.Ct. at 942 (citation omitted) .’

There is another distinction between this case and

Mechanik. The grand jury irregularity in this case was

the subject of a motion made and ruled upon before

trial. In Mechanik the irregularity was discovered, and

the motion made, after the trial had begun. The majority

in Mechanik stated: “We express no opinion as to what

remedy may be appropriate for a violation of Rule 6(d)

that has affected the grand jury’s charging decision and

is brought to the attention of the trial court before the

commencement of trial.” Jd. at 943 (footnote omitted).

This disclaimer means that Mechanik does not automat-

ically apply to our case, involving as it does the denial of

a pretrial motion to dismiss.

Nevertheless, we are convinced that we would be fail-

ing to accord Mechanik the precedential effect that is

9 We intimate no views on the standard of review or application

of the harmless error doctrine to be applied in an interlocufory

appeal. We leave those matters for decision, if necessary, when the

merits of this appeal are addressed.

EE

47a

fairly due it if we failed to apply its harmless error

doctrine to appellants’ claims after final judgment. Cer-

tainly the harmless error analysis that we have already

quoted above would apply: the grand jury’s reasonable

cause determination would have been mooted by convic-

tion upon a finding of guilt beyond a reasonable doubt.

In addition, much of the emphasis of the Mechanik ma-

jority opinion is on the societal costs of retrial, including

loss of witness’ memory or availability, the possibility

that the offender may escape retrial altogether, and delay

in the administration of justice that may impede deter-

rence and rehabilitation. Id. at 942-43.

These societal costs of reversal and retrial are an

acceptable and often necessary consequence when an

error in the first proceeding has deprived a defend-

ant of a fair determination of the issue of guilt or

innocence. But the balance of interest tips decidedly

the other way when an error has had no effect on the

outcome of the trial.

_. . In such a ease, the societal costs of retrial after

a jury verdict of guilty are far too substantial to

justify setting aside the verdict simply because of an

error in the earlier grand jury proceedings.

Id. at 943. We fail to see how this language could be

considered inapplicable to the present contentions of ap-

pellants if they were raised after trial and conviction.

Two other Circuits have applied Mechanik’s harmless

error analysis to allegations of grand jury irregularities

other than violations of Rule 6(d). In Porter v. Wain-

wright, 805 F.2d 930, 941-42 (llth Cir. 1986), the

Eleventh Circuit applied Mechanik’s harmless error rule

to a claim of grand juror bias, brought on appeal after

trial and conviction. The Seventh Circuit did the same

with a claim of alleged prosecutor misconduct before the

grand jury in United States v. Thomas, 788 F.2d 1250,

1254 (7th Cir.1986).

48a

We conclude, therefore, that the effect of Mechanik is to

render appellants’ claims effectively unreviewable after

trial. See Mechanik, 106 S.Ct. at 943 (concurring opin-

ion of Justice O’Connor). Appellants’ interlocutory ap-

peal consequently satisfies the third Cohen requirement.

See id. at 947 n. 1 (dissenting opinion of Justice Mar-

shall) (Mechan’k ruling could render denial of Rule 6(d)

motion appealable before trial as collateral order).

We are aware of the decision of the Tenth Circuit in

United States v. Taylor, 798 F.2d 1337, 1339-40 (10th

Cir.1986). In that case, appellants had moved for dis-

missal of the indictment because the prosecution had “in-

vaded the defense camp,” had failed to present exculpa-

tory evidence to the grand jury, had biased the grand jury

with “inadmissible, inflammatory, and prejudicial evi-

dence,” and had improperly used state officers in the grand

jury investigation. The district court denied the motion

and appellants sought an interlocutory appeal. Jd. at

1338. The court of appeais dismissed, holding that the

grand jury irregularities could be effectively reviewed

after final judgment notwithstanding Mechanik. The

court of appeals ruled that the allegations of the appel-

lants went beyond the question of probable cause and

attacked the “fundamental fairness” of the criminal pro-

ceedings, which would be justiciable after final judgment

and not subject to the Mechanik harmless error analysis.

Id. at 1340.

We need not decide whether we agree with the court

of appeals’ characterization of the appellants’ claims in

Taylor. It is enough that we conclude that appellants’

claims of violation of Rule 6(e) in the present case are

sufficiently aimed at the grand jury’s charging process

that they fall within the ambit of Mechanik. The preju-

dice in this case that Mechanik would require us to

evaluate in an appeal after conviction is an erroneous

charging decision by the grand jury, for violations of

Rule (6) (e), and Mechanik holds that any such prejudice

49a

is wiped out by the petit jury’s verdict. Nothing in Tay-

lor leads us to change our conclusion that appellants’

claim of irregularities has been rendered effectively un-

reviewable after final judgment.

The government does not seriously contest the fact that

the order being appealed, having met the third Cohen re-

quirement, also meets the first two. The district court’s

order was a final determination of the question whether

the asserted violations of Rule 6(e) required dismissal of

the indictment. Moreover, the order is collateral to the

claims of guilt or innocence that are to be determined at

the trial by a petit jury, under this indictment if appel-

lants’ appeal is unsuccessful or possibly under a later

indictment if the appeal is successful. See Garner, 632

F.2d at 765.

We conclude, therefore, that the district court’s order

meets all of the requirements of Cohen and is now ap-

pealable under 28 U.S.C. § 1291 as a collateral order. We

recognize that interlocutury appeals can be disruptive of

the criminal justice system, see Garner, 632 F.2d at 766,

but means may be found to expedite such appeals and to

weed out groundless ones promptly. See Richardson v.

United States, 468 U.S. 317, 322, 104 S.Ct. 3081, 3084,

82 L.Ed.2d 242 (1984); Abney v. United States, 431

U.S. 651, 662 n. 8, 97 S.Ct. 2034, 2042 n. 8, 52 L.Ed.2d

651 (1977). Our conclusion that the district court’s

order in this case is appealable as a collateral order

stems not only from its meeting the technical require-

ments for an interlocutory appeal, but also from the fact

that if no appeal is allowed at this stage, appellants will

wholly fail to benefit from the protections Rule 6(e) im-

poses on the constitutionally-mandated grand jury proc-

ess."° Errors that affected the grand jury proceedings to

104 major characteristic of the denial or granting of a claim

appealable under Cohen’s ‘collateral order’ doctrine is that ‘unless it

can be reviewed before [the proceedings terminate], it can never

be reviewed at all.’” Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct.

50a

the detriment of the accused, and that would have justi-

fied the district court in dismissing the indictment before

trial, would go wholly unremedied if the district court

itself erred in denying dismissal. We cannot believe that

Congress and the Supreme Court intended such ineffec-

tiveness for the Rule.’ An interlocutory appeal will pre-

vent that untoward result, and § 1291 is to be given a

“practical rather than a technical construction.” Cohen,

337 U.S. at 546, 69 S.Ct. at 1226 (citing Cobbledick v.

United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542, 84

L.Ed. 783 (1940) ).

The government’s motion te dismiss is denied. A brief-

ing schedule will be established by separate order. Our

disposition of this motion makes it unnecessary to ad-

dress appellants’ conditional petition for writ of man-

damus.

MOTION TO DISMISS DENIED.

DAVID R. THOMPSON, Circuit Judge, dissenting:

This circuit has held that a district court’s pre-trial

order denying a motion to dismiss an indictment because

of grand jury leapt oa is not immediately appeal-

able. United States Garner, 632 F.2d 758, 765 (9th

Cir.1980), cert. patra 450 U.S. 923, 101 S.Ct. 1373,

67 L.Ed.2d 351 (1981). See United States v. Bendis, 681

F.2d 561, 569 (9th Cir.1981), cert. denied, 459 U.S. 973,

103 8.Ct. 306, 74 L.Ed.2d 286 (1982): United States v.

2806, 2815, 86 L.Ed.2d 411 (1985) (quoting Stack v. Boyle, 342

U.S. 1, 12, 72 S.Ct. 1, 7, 96 L.Ed. 3 (1951) (brackets in original) ).

' We reject the government’s contention that the right asserted

by wae ants under Rule 6(e) is not “important” enough to justify

the delay in trial that is inherent in an interlocutory appeal. Rule

6(e) certainly protects important interests in ensuring grand jury

secrecy. Whether the facts of appellants’ case justify the remedy

of dismissal of the indictment is not to be determined as a threshold

test of appealability, but is rather a matter for determination when

the appeal is heard on its merits.

5la

Linton, 655 F.2d 930, 932 (9th Cir.1980) (per curiam),

cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d

301 (1981). In Garner we stated:

We are convinced that, especially in the criminal

context, the policy against piecemeal appellate ad-

judication is sound and that the exceptions to the rule

should be few. To allow an interlocutory appeal in

this instance would create nothing short of chaos in

the criminal justice system.

Id. at 766. Today, however, the majority would permit

piecemeal appellate adjudication. In its view, United

States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89

L.Ed.2d 50 (1986), will “deprive appellants of any effec-

tive review of their claim after final judgment” (Major-

ity Opinion at 551). Because I do not believe Mechanik

compels this result, I respectfully dissent.’

In Mechanik, a federal grand jury returned an indict-

ment charging defendants with drug-related offenses and

conspiracy. The indictment was concededly free from any

claim of error. The grand jury then returned a super-

seding indictment in which the conspiracy charge was

expanded. In support of the superseding indictment, the

United States Attorney presented the testimony of two

law enforcement enforcement agents who were sworn

together and questioned in tandem before the grand jury.

The court stated:

We assume for the sake of argument that the

simultaneous presence and testimony of the two Gov-

ernment witnesses before the grand jury violated

Rule 6(d), and that the District Court would have

been justified in dismissing portions of the indict-

1 As the majority notes, “Mechanik does not automatically apply

to our case” (Majority Opinion at 552). The Mechanik Court

stated: “We express no opinion as to what remedy may be ap-

propriate for a violation of Rule 6(d) that has affected the grand

jury’s charging decision and is brought to the attention of the trial

court before the commencement of trial.” 106 S.Ct. at 943.

52a

ment on that basis had there been actual prejudice

and had the matter been called to its attention be-

fore the commencement of trial.

Id. at 941. Through no lack of diligence on the part of

the defense, the irregularity in the grand jury proceed-

ings was not discovered until the second week of trial.

A motion to dismiss the indictment was made at that

time. Initially, the district court denied the motion on

the ground that the two agents’ testimony had not vio-

lated Rule 6(d). The motion was renewed during trial,

taken under submission by the district court and denied

after trial. The district court concluded Rule 6(d) had

been violated, but the violation had not harmed the de-

fendants. A divided Court of Appeals and a divided en

bane panel of the Fourth Circuit reversed the conspiracy

convictions and affirmed the defendants’ convictions on

other charges. In reversing the Fourth Circuit’s dis-

missal of the conspiracy portion of the indictment, the

Supreme court stated:

Both the District Court and the Court of Appeals

observed that Rule 6(d) was designed, in part, “to

ensure that grand jurors, sitting without the direct

supervision of a judge, are not subject to undue in-

fluence that may come with the presence of an un-

authorized person.” 735 F.2d [136] at 139. The

Rule protects against the danger that a defendant

will be required to defend against a charge for which

there is no probable cause to believe him guilty. The

error involving Rule 6(d) in these cases had the

theoretical potential to affect the grand jury’s de-

termination whether to indict these particular de-

fendants for the offenses with which they were

charged. But the petit jury’s subsequent guilty ver-

dict not only means that there was probable cause to

believe that the defendants were guilty as charged,

but that they are in fact guilty as charged beyond a

reasonable doubt. Measured by the petit jury’s ver-

53a

dict, then, any error in the grand jury proceedings

connected with the charging decision was harmless

beyond a reasonable doubt. (emphasis added)

Id. at 941-42.

In the present case, appellants claim that Rule 6(e)

was violated. The government failed to disclose to the

district court, in an ex parte motion to obtain disclosure

of grand jury materials, that a grand jury witness (the

government’s expert consultant Ofshe) was also a party

to a pending civil action against the appellants. Ofshe’s

civil action involved claims based on allegations identical

to those in the criminal case. The district court granted

the ex parte motion. As a result, appellants argue, grand

jury evidence, required to be kept secret by Rule 6(e),

was disclosed to Ofshe.

Although the majority characterizes the alleged viola-

tion as one of “taint, or [having] an improper effect on

the grand jury’s decision to indict” ( Majority Opinion at

552), the record does not suggest that the grand jury’s

decision to indict was affected in any way by the dis-

closure of information to Ofshe. I believe a distinction

may be drawn between the Rule 6( d) violation in Me-

chanik and the Rule 6(e) violation claimed by appellants.

In Mechanik, the Supreme Court noted that Rule 6(d)

was designed, in part, to ensure that grand jurors are

not subject to undue influence in their decision to indict.

106 §.Ct. at 941-42. Rule 6(e), however, was designed

to “codif[y] the traditional rule of grand jury secrecy.”

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

425, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 745 (1983).

The Supreme Court has delineated the interests served

by safeguarding the secrecy of grand jury proceedings:

First, if pre-indictment proceedings were made

public, many prospective witnesses would be hesitant

to come forward voluntarily, knowing that those

against whom they testify would be aware of that

54a

testimony. Moreover, witnesses who appeared before

the grand jury would be less likely to testify fully

and frankly, as they would be open to retribution as

well as to inducements. There would also be the risk

that those about to be indicted would flee, or would

try to influence individual grand jurors to vote

against the indictment. Finally, by preserving the

secrecy of the proceedings, we assure that persons

who are accused but exonerated by the grand jury

will not be held up to public ridicule.

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211,

219, 99 S.Ct. 1667, 1673, 60 L.Ed.2d 156 (1979) (quoted

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

424, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 743 (1983)). See

United States v. Proctor & Gamble Ce., 356 U.S. 677,

681-82, n.6, 78 S.Ct. 983, 985-86 n.6, 2 L.Ed.2d 1077

(1958).

While one might hypothesize circumstances in which a

violation of Rule 6(e) could affect a grand jury’s deci-

sion whether to indict, those circumstances are not pres-

ent in this case. Since they are not, should the appellants

be convicted at trial, Mechanik will not preclude post-trial

appellate review of the issue appellants seek to raise in

this interlocutory appeal. “[{T]he petit jury’s verdict

(will only render] harmless any conceivable error in the

charging decision that might have flowed from the viola-

tion.” Mechanik 106 S.Ct. at 943 (emphasis added). The

grand jury’s charging decision in this case did not flow

from the claimed violation of Rule 6(e) and, therefore,

Mechanik is inapposite. The appellants will retain what-

ever post-conviction right of review they had pre-

Mechanik. Accordingly, they should be precluded from

raising in this interlocutory appeal their claim that Rule

6(e) was violated.”

2 See United States v. Taylor, 798 F.2d 1337 (10th Cir. 1986),

in which the Tenth Circuit held that Mechanik would not preclude

ol

50a

Because of (1) the strong policy against piecemeal ap-

pellate adjudication; (2) the view that Mechanik should

be narrowly construed (see United States v. Jaylor, 798

F.2d 1337, 1340 (10th Cir. 1986) (“Mechanik was care-

fully crafted along very narrow lines, and it has not re-

sulted in another exception to the final judgment

rule.”)): and (3) the distinction between a Rule 6(d)

violation which affects the grand jury’s decision to indict

and a Rule 6(e) violation which may contravene the pol-

icy of grand jury secrecy, I respectfully dissent.

post-trial review of claims of grand jury irregularity which raised

issues “beyond the question of whether the grant jury had sufficient

evidence upon which to return an indictment.” Jd. at 1340. And

see United States v. Stone, 633 F.2d 1272 (9th Cir. 1979), court

of appeals in a pre-Mechanik decision reviews claimed violation of

Rule 6(e) in post-trial appeal; comments that contempt rather

than dismissal of indictment is more appropriate sanction for

Rule 6(e) violation. Jd. at 1275.

—

56a

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

No. CR-F-86-1 REC

UNITED STATES OF AMERICA,

Plaintiff,

We

DAVID BENJAMIN, et al.,

Defendants.

ORDER RE MOTION FOR DISMISSAL OF

INDICTMENT DUE TO PROSECUTORIAL

MISCONDUCT

[Filed Dec. 2, 1986]

On September 29, 1986, the court heard defendants’

Motion for Dismissal of Indictment Due to Prosecutorial

Misconduct. Upon due consideration of the written and

oral arguments of the parties and the record herein, the

court enters its order denying defendants’ (except as

to defendant Sybil Schiff) motion for the reasons set

forth herein.

By this motion, defendants move the court for an order

dismissing the indictment due to serious and prejudicial

prosecutorial misconduct that permeated the Grand Jury

proceedings. Defendants further assert that they have a

right to an evidentiary hearing for the purpose of prov-

ing the claim of prosecutorial misconduct.

Defendants cite United States Oaks, 508 F.2d 14

1404 (9th Cir. 1974). cert. denied, 426 U.S. 952 (1976

a case involving a claim of discriminatory selective

cution, that “[h]jearings on similar pretria! objections are

usually in order when enough facts are eged

wy Eee gene ae VS oe soe ——s | ay ee

the question past the frivolous stage.” More to the

"AY N11 ff +h} matinam { ry r Cen r

tor purposes of this motion 1S United, es

F.2d 1182, 1187 (9th Cir. 1980):

As stated earlier the district court deni

tions to dismiss the indictment without an evident

hearing. If, in fact, a material issue of fact

raised ‘which if resolved in accordance with [appel-

lant’s} contentions would entitle him to relief’,

evidentiary hearing would be required... . On

other hand, if the affidavits show as a matter of

that appellant was or was not entitled to re

hearing was required."

14 As this court s:

‘Evidentiary hearings need

papers allege facts with sufficient definiteness

. . -4 - P , , , . } ”

specificity to enabie the triai court to

be granted if the facts alleged are prove

Factual conflicts which are not sufficiently material d

not mandate an evidentiary hearing, United States

Mitchell, 572 F.Supp. 709, 711 n.2 (N.D.Cal. 1983

aff'd. 736 F.2d 1299 (9th Cir. 1984), cert. denied sul

nom. Patterson v. United

L.Ed.2d 77 (1985).

B. Dismissal for Prosecutorial Abuse of Grand Jury.

There are two theories governing dismissal of an in-

dictment for prosecutorial misconduct: constitutional and

Supervisory powers. As explained in United States v.

5Ra

Sears, Roebuck & Co., Inc., 719 F.2d 1386, 1391-1392

(9th Cir. 1983), cert. denied, 465 U.S. 1079 (1984):

Because the constitutional doctrine of separation of

powers mandates judicial respect for the independ-

ence both of the grand jury . . . and of the prose-

cutor . . ., an indictment may be dismissed only

in ‘flagrant case|s]’ of prosecutorial misconduct.

Dismissal of an indictment is therefore war-

ranted on constitutional grounds if the prosecutorial

misconduct has undermined the grand jury’s ability

to make an informed and objective evaluation of the

evidence presented to it... . The relevant inquiry

therefore focuses not on the degree of culpability of

the prosecutor, but on the impact of his misconduct

on the grand jury’s impartiality.

Dismissal based on the exercise of a court’s supervisory

power serves the purposes of deterring illegality and

protecting judicial integrity. United States v. Payner,

447 U.S. 727, 735 n.8 (1980), rehearing denied, 448

U.S. 911 (1980). In deciding whether to invoke the

supervisory power to dismiss an indictment, the court

considers the egregiousness of the prosecutor’s miscon-

duct, the need to discipline the particular prosecutor in

light of any past misconduct, and the effectiveness of

any available sanctions that are less drastic than dis-

missal of the indictment. United States v. McCuntock,

748 F.2d 1278, 1284-1285 (9th Cir. 1984), cert. denied,

USS. , 88 L.Ed.2d 61 (1985). In addition, the

cumulative effect of a prosecutor’s improprieties before

the Grand Jury may require dismissal even though the

instances of misconduct, taken separately, would not.

United States v. Samango, 607 F.2d 877, 884 (9th Cir.

1979). However, even when relying upon the cumulative

effect, a defendant must demonstrate that the prosecutor

engaged in flagrant misconduct that deceived the Grand

59a

Jury or significantly impaired its ability to exercise in-

dependent judgment, United States v. Al Mudarris, 695

F.2d 1182, 1185 (9th Cir.), cert. denied, 461 U.S. 932

(1983). The Ninth Circuit has recently reemphasized the

stringent standards and burden placed upon a defendant

seeking to dismiss an indictment based on either due

process grounds or the court’s inherent supervisory

powers.

A defendant who challenges the indictment on either

ground bears a heavy burden to demonstrate that

the prosecutor engaged in flagrant misconduct de-

ceiving the grand jury or significantly impairing its

exercise of independent, unbiased judgment

Moreover, the defendant must show that the prose-

cutorial misconduct prejudiced him.

United States v. Venegas, 800 F.2d 868, 869-870 (1986).

Moreover, “[e]ven if the prosecutor’s actions constitutec

misconduct, {a defendant] must demonstrate a reason-

able inference of bias on the part of the grand jury

resulting from those actions.” United States v. De Rosa,

783 F.2d 1401, 1406-1407 (9th Cir.), cert. denied,

U.S. , 91 L.Ed.2d 571 (1986).

Defendants assert that dismissal of this indictment on

either or both of these theories is required because the

prosecutor engaged in conduct which impaired the inde-

pendence and impartiality of the Grand Jury by 1)

systematically forcing witnesses associated with Synanon

to assert their privilege against self-incrimination; 2)

1 During oral argument, defendants contended that the standards

set forth in Al Mudarris apply only to post-conviction appeals.

They further argued that Samango, involving affirmance from a dis-

missal of an indictment under the supervisory powers, utilized a

different standard, which standard should be employed in ruling

on this motion. The court, after reviewing both decisions with

defendants’ argument in mind, can find no hint that the standards

quoted above are not applicable to a pretrial motion to dismiss for

prosecutorial misconduct.

60a

making prejudicial and derogatory remarks about de-

fendants in front of grand jurors and harassing Grand

Jury witnesses; 3) failing to present evidence of the

doubtful credibility of certain witnesses; 4) making de-

rogatory references to the Synanon lifestyle, biasing the

Grand Jury and violating defendants’ First Amendment

rights to freedom of religion, association, and expression;

and 5) undermining the independence of the Grand Jury

by the introduction of irrelevant, false and highly preju-

dicial evidence. Defendants also assert as a ground for

dismissal that the prosecutor abused the Grand Jury’s

subpoena authority.

The court concludes that many of the alleged instances

of prosecutorial misconduct either did not occur or were

not misconduct. Those few instances wherein the actions

of the prosecutor might have been improper, the court

does not believe that dismissal of this indictment upon

either constitutional or supervisory grounds is mandated

given the controlling standards cited above. This is

especially the case herein given defendants’ admission

that they are seeking dismissal of this indictment under

the cumulative effect standard set forth in United States

v. Samango, supra.

1. Systematic Pattern of Calling Witnesses for Sole

Purpose of Forcing Them to Claim the Fifth

Amendment Privilege.

It is not ipso facto misconduct for a prosecutor to call

a witness knowing in advance that the witness will claim

the Fifth Amendment privilege against self-incrimination.

As explained in United States v. Horowitz, 452 F.Supp.

415, 418 (S.D.N.Y. 1978) :

Little need be said with regard to Mongello’s claim

of prosecutorial misconduct. That the government

sought to question Mongello concerning his know]l-

edge of the events under investigation while aware

that Mongello intended to assert his privilege was

6la

not improper. United States v. Wolfson, 405 F.2d

779, 785 (2d Cir. 1968), cert. denied, 394 U.S. 946,

89 S.Ct. 1275, 22 L.Ed.2d 479 (1969). Indeed, even

were Mongello subpoenaed to testify, it would not

have been improper to call him even were the govern-

ment previously informed that the privilege would be

claimed, unless Mongello were called solely for the

purpose of displaying his claim of privilege to the

grand jury. United States v. Fortunato, 402 F.2d

79, 82 (2d Cir. 1968), cert. denied, 394 U.S. 933, 89

S.Ct. 1205, 22 L.Ed.2d 463 (1969).

Moreover, Title 9, Chapter 9-11.254 of the United States

Attorneys’ Manual (3-6-80) provides:

A question frequently faced by federal prosecutors is

how to respond to an assertion by a prospective

grand jury witness that if called to testify he will

refuse to testify on Fifth Amendment grounds. Some

argue that unless the prosecutor is prepared to seek

an order pursuant to 18 U.S.C. § 6003, the witness

should be excused from testifying. However, such

a broad rule would be improper and too convenient

for witnesses to avoid testifying truthfully to their

knowledge of relevant facts. Moreover, once com-

pelled to appear, the witness may be willing and

able to answer some or all of the grand jury’s ques-

tions without incriminating himself. However, if a

‘target’ of the investigation (as defined in 9-11.250,

supra) and his attorney state in a writing signed by

both that the ‘target’ will refuse to testify on Fifth

Amendment grounds, the witness ordinarily should

be excused from testifying unless the grand jury

and the U.S. Attorney agree to insist on the ap-

pearance. In determining the desirability of insist-

ing on the appearance of such a person, considera-

tion should be given to the factors which justified

the subpoena in the first place, i.e., the importance

of the testimony or other information sought, its

62a

unavailability from other sources, and the applica-

bility of the Fifth Amendment privilege to the likely

areas of inquiry. (See 9-11.251, supra).

In arguing that the prosecutor engaged in a sys-

tematic pattern for the sole improper purpose, defend-

ants have submitted the transcripts of the Grand Jury

testimony of defendants Philip C. Bourdette, Cecilia

Jason Dederich, Sybil Schiff and Steven Simon. How-

ever, the transcripts show that Philip Bourdette claimed

the Fifth Amendment to 17 of 34 questions, that Cecilia

Jason Dederich did so to 115 of 168 questions, that Sybil

Schiff did so to 39 of 53 questions, and that Steven

Simon did so to 31 of 66 questions. Moreover, Philip

Bourdette and Dederich had been served with grand

jury subpoenas duces tecum. Philip Bourdette, Dederich

and Simon had been directed by the Grand Jury to pro-

vide handwriting exemplars for the use of the Grand

Jury in its investigation. ;

Defendants also state that in footnote 6 that defendants

Elizabeth Missakian, Miriam Bourdette, and David Ben-

jamin, “were called briefly, claimed their Fifth Amend-

ment privileges, and were excused [and that i]n all

these cases, Goodwin knew in advance that the privilege

would be claimed.” Defendants refer the court to para-

graph 3 of the Declaration of Thomas J. Nolan in Sup-

port of Motion for Dismissal of Indictment Due to Prose-

cutorial Misconduct, which avers in pertinent part: “I

am informed and believe that counsel for the other indi-

viduals had informed Goodwin that these individuals

would also assert their Fifth Amendment privilege.”

While there is serious question that Goodwin was in-

formed prior to testifying that Missakian intended to

invoke the Fifth Amendment privilege to all questions of

the Grand Jury, see Declaration of Guy Goodwin, para-

graph 3, and Declaration of William Schaffer, paragraphs

7 and 8, filed in connection with the Motion for Dis-

closure of Grand Jury Transcripts and Minutes, it is

not disputed by the Government that Goodwin was so

63a

informed by counsel for Miriam Bourdette and David

Benjamin. Miriam Bourdette and Missakian, however,

had been directed by the Grand Jury to provide hand-

writing exemplars for the use of the Grand Jury in its

investigation.

While at oral argument the Government conceded that

Sybil Schiff might have been called for an improper pur-

pose, the Government argues that this concession does

not establish the systematic pattern alleged by defend-

ants. The court agrees. The court, moreover, does not see

that any prejudice that may have resulted to defendant

Schiff transmutes to prejudice to each defendant herein

such that dismissal of this indictment against all de-

fendants is required. With regard to defendant Schiff,

however, the court cannot determine from the record now

before it whether the prosecutor’s actions compel dis-

missal of the indictment against Schiff. In order to do

so, the government is ordered to submit in camera those

portions of the Grand Jury transcripts setting forth the

evidence presented against Sybil Schiff on or before Jan-

uary 5, 1987. Upon receipt of these transcripts, the

court will make such further orders as are necessary.

As further support for this portion of the motion, de-

fendants refer the court to the prosecutor’s action in fail-

ing tu inform witness Ronald Cook or his counsel that

Goodwin had already obtained a court order granting

Cook immunity prior to Cook’s appearance before the

Grand Jury on November 13, 1984, thereby causing Cook

to assert his Fifth Amendment privilege during his testi-

mony on November 13, 1984.?

In this motion, defendants assert that they “are not

disputing whether Mr. Goodwin had a legal duty to dis-

2 See page 31, line 7 through page 36, line 24 of Decision and

Order Re Defense Motion for Disec!ssure of Grand Jury Transcripts

and Minutes filed May 1, 1986 for the parties’ respective factual

positions.

64a

close the immunity.” -Rather, they argue that Goodwin’s

action had a dual prejudicial impact:

First, Mr. Cook’s refusal to answer questions was

yet another in Goodwin’s parade before the Grand

Jury of claims of privilege by residents and former

residents of Synanon—each separately and all cumu-

latively casting a prejudicial negative light on Syna-

non and all defendants here. Second, Mr. Cook’s

claim of privilege prejudicially affected the Grand

Jury’s view of his testimony, later given under im-

munity: because of the initial refusal to testify, the

incriminating portions doubtless were taken to be

only the tip of the iceberg, while the exculpatory por-

tions (of which there were many) doubtless were

viewed as unbelievable, a vestige of the same un-

cooperative and secretive attitude that led to the

initial claim of privilege. In this way, Goodwin en-

sured that the negative impact of Mr. Cook’s later

immunized testimony would be maximized.

The court cannot accept this argument. Any witness

testifying under a grant of immunity is going to have a

“negative impact” and the court does not see that the

timing of the disclosure of that immunity will make any

difference. The first part of defendants’ argument is a

bootstrap based on a premise of which the court is not

persuaded. See discussion supra.

Defendants further refer to the fact that the prose-

cution called Christopher Reynolds as a witness, despite

the fact, according to paragraph 2 of the Declaration of

Chris P. Andrian, counsel for Reynolds:

2. In the spring of 1984, Mr. Reynolds was con-

tacted by Guy Goodwin of the United States Depart-

ment of Justice. Mr. Reynolds referred Mr. Goodwin

to me and during my conversation with Mr. Good-

win, he told me that he wanted to interview Mi.

Reynolds regarding document destruction at Syna-

65a

non. I informed Mr. Goodwin that Mr. Reynolds

was not interested in speaking with him. Mr. Good-

win told me that the Government knew that Mr.

Reynolds had information about document destruc-

tion at Synanon and that if Mr. Reynolds did not co-

operate with the Government, he could be indicted.

Mr. Goodwin gave me a subpoena compelling Mr.

Reynolds to appear before a grand jury in Wash-

ington, D.C. I informed Mr. Goodwin that under the

circumstances, Mr. Reynolds would be asserting his

Fifth Amendment privilege against self-incrimina-

tion in response to any questions. Despite this fact,

Mr. Goodwin required Mr. Reynolds to travel to

Washington, D.C. from the San Francisco Bay Area

and to testify before the Grand Jury for approxi-

mately five minutes. Mr. Reynolds claimed the Fifth

Amendment privilege to a few questions and was

excused. No further effort has been made by any

member of the Department of Justice to secure in-

formation from Mr. Reynolds, concerning this

matter.

In paragraph 6 of the Declaration of Guy L. Goodwin,

filed in opposition to this motion, it is averred:

6. Chris Reynolds we subpoenaed to appear before

the federal grand jury in the District of Columbia

on April 19, 1984. Neither Chris Reynolds nor his

attorney Chris Andrian advised declarant in writing

that Mr. Reynolds intended to invoke Fifth Amend-

ment rights to all questions asked in the grand jury.

Declarant did not state to Chris Reynolds or his at-

torney that if Reynclds did not cooperate with the

grand jury he would be indicted, however Reynolds

and his attorney were advised that evidence impli-

cated Mr. Reynolds as a target.

The government further points out that neither Andrian

nor Reynolds executed a writing expressing Reynolds’ in-

66a

tention to claim the Fifth Amendment privilege. The

government contends:

Reynolds appeared and was asked a very few ques-

tions to which he claimed the Fifth Amendment.

It can hardly be said this was a prejudicial incident

in the long and exhaustive grand jury investigation.

Nor does it demonstrate a systematic pattern suffi-

cient to override the grand jury’s independent judg-

ment. Since the grand jury did not indict Mr. Reyn-

olds it seems obvious that they were not prejudiced

by his invocations of the Fifth Amendment.

Defendants reply that this argument misses the point.

They argue that the lack of prejudice to Reynolds does

not diminish the prejudice to the defendants result-

ing from “compelling witnesses closely associated with

Synanon to assert their Fifth Amendment privilege... .

The Government has not shown any reason for bringing

Mr. Reynolds across the country after Mr. Reynolds told

Mr. Goodwin of his intention to assert his privileges.

In the absence of any explanation, this Court can only

conclude that there was no legitimate purpose for this

conduct.” Even if, however, the court were to conclude

that the prosecutor had no legitimate purpose for calling

Reynolds as a witness, the court cannot further conclude

that a systematic pattern has been established or that an

inference thereof results.

The court concludes, therefore, that the prosecutor did

not engage in a systematic pattern of calling witnesses

for the sole purpose of forcing them to claim the Fifth

Amendment privilege.*

3In the absence of a declaration from Geoff Gitner, the court

disregards defendants’ assertion that Goodwin asked Gitner during

his testimony before the Grand Jury “[h]ow [Gitner] could...

continue to work with and rely on Phil and Miriam Bourdette, who

had indicated their intention to assert the Fifth Amendment

privilege?” In paragraph 2 of his declaration filed in connection

with this motion, Goodwin denies that Gitner was asked this

question.

67a

2. Prejudicial and Derogatory Remarks and Harass-

ment of Grand Jury Witnesses.

Defendants assert that the prosecutor breached his con-

stitutional obligation not to use the grand jury to make

personal attacks or to influence the grand jury’s ability

to evaluate the evidence independently and impartially.

As explained in United States v. Di Grazia, 213 F.Supp.

232, 235 (N.D.IIl. 1963) :

The Grand Jury exists as an integral part of Anglo-

American jurisprudence for the express purpose of

assuring that persons will not be charged with

crimes simply because of the zeal, malice, partiality

or other prejudice of the prosecutor, the government

or private persons .... It is the duty of a prose-

cutor presenting a case to a Grand Jury not to

inflame or otherwise improperly influence the jurors

against any person.

In arguing that the prosecutor made prejudicial and

derogatory remarks about defendants in front of grand

jurors and that he harassed grand jury witnesses, de

fendants refer the court to David Benjamin, Dennis

Speert, Yvette Van Dalsem, and Ronald Cook.*

With regard to the arguments concerning David Ben-

jamin, Benjamin avers in paragraph 2 of his declara-

tion:

2. On September 26, 1985, I approached Mr. Good-

win to speak with him in the hallway outside the

grand jury room in the United States Courthouse in

the District of Columbia during a recess of the

Grand Jury. In the hallway, I told Mr. Goodwin

4In its Decision and Order Re Defense Motion for Disclosure

of Grand Jury Transcripts and Minutes filed on May 1, 1986, the

court ordered the transcripts of Dennis Speert’s August 27, 1985

testimony, of Yvette Van Dalsem’s September 12, 1985 testimony,

and of Ronald Cook’s November 29, 1984 testimony provided to the

court in camera.

ans |

68a

that I was acting as my own counsel to date and

that I wanted to speak with Mr. Goodwin as a tar-

get and a lawyer representing myself. I asked Mr.

Goodwin whether, if there were indictments handed

down, I could surrender, rather than being trans-

ported from California to Washington in custody.

Mr. Goodwin said that he would not talk to me.

Thereupon, Mr. Goodwin walked toward a group of

about seven Grand Jurors in recess in the hallway

and loudly stated that he would not speak with me.

All of the Grand Jurors present could easily hear

his comments, if they had normal hearing. Mr.

Goodwin then motioned the Grand Jurors to enter

the grand jury room from their recess, laughed, and

said to the group, ‘I keep telling him I can’t talk

to him.’ Several of the Grand Jurors laughed.

In paragraph 6 of Goodwin’s declaration filed in opposi-

tion to the Motion for Disclosure of Grand Jury Tran-

scripts and Minutes, it is averred in pertinent part:

“(This declarant at no time yelled at David Benjamin

in the presence of Grand Jurors.”

Defendants assert: “Mr. Goodwin simply chose this

opportunity to ridicule and embarrass Mr. Benjamin in

front of several Grand Jurors, in sharp contrast to his

previous dealings with Mr. Benjamin wherein he was

always cordial and courteous. The image Goodwin gave

the Grand Jurors of Mr. Benjamin was that of a target

seeking favors by violating a rule he had previously been

told about.” Defendants futher assert “that the prejudi-

cial impact is obvious and is akin to that condemned by

the court in United States v. Kilpatrick, 575 F.Supp.

325, 333 (D.Colo. 1983). The court does not agree that

Benjamin’s averment, assuming it to be true, even re-

motely approaches the conduct condemned in Kilpatrick.

Moreover, the inferences of ridicule and special consid-

eration drawn by defendants from this occurrence are,

in the court’s opinion, highly overstated. The court does

not consider that Goodwin’s actions were misconduct.

69a

With regard to the alleged harassment of Dennis

Speert, defendants believe that the court’s review of

Speert’s testimony will reveal the following misconduct:

Goodwin demanded that Mr. Speert act as the Grand

Jurors’ and Goodwin’s investigator, ordering Mr.

Speert to uncover information about various topics

(on which Mr. Speert had no first-hand knowledge)

and to report to the Grand Jury at a later date.

Despite making these demands on a large number of

different subjects, the prosecutor refused to permit

Mr. Speert to take notes of the questions he was

supposed to answer at his next appearance.

The court has reviewed Speert’s August 27, 1983 testi-

mony. Defendants’ belief quoted above as to what

Speert’s testimony will reveal is not correct and consti-

tutes a highly exaggerated, if not inflammatory, state-

ment of what did occur before the Grand Jury. The

requests made of Speert were entirely proper.

Defendants further ar,ue:

Moreover, Goodwin repeatedly expressed cynicism

and skepticism when Mr. Speert stated that he did

not know the answer to a specific question. Goodwin

made statements to the effect of ‘as President of

Synanon you mean to say you don’t know the answer

to that question?’ This conduct was threatening, op-

pressive, intimidating, and served no legitimate pur-

pose other than to terrify Mr. Speert as a witness

and to prejudice Synanon and Synanon’s leadership

in the eyes of the Grand Jurors.

Again, the court concludes from its review of Speert’s

testimony that Goodwin did not act improperly in his

questioning of Speert.

With regard to the alleged harassment of Van Dalsem,

defendants submit the Declaration of Yvette Van Dalsem

filed in connection with defendants’ Motion for Disclosure

’

70a

of Grand Jury Transcripts and Minutes, which declara-

tion avers in pertinent part:

3. On September 12, 1985, I had been testifying at

length about the manner in which tape recordings

were gathered under my direction at Synanon to re-

spond to the Grand Jury’s subpoena duces tecm. Mr.

Goodwin asked me if Synanon had produced all of

the tape recordings in its possession which were re-

sponsive to that subpoena. Mr. Goodwin demanded

that I answer this question only with a yes or a no.

I explained to Mr. Goodwin that I could only tell

him that Synanon had produced the responsive tape

recordings which could be located based upon a

reasonable search in the short time available, and I

explained the scope of that search many times. I

explained several times that I could not state under

oath that every responsive tape recording in Syna-

non’s possession anywhere had been found, due to

the fact that tapes may not have been located in our

search. I assured Mr. Goodwin that I produced

every responsive tape I could find and that I felt

satisfied that the search was thorough. Mr. Good-

win’s insistence on a yes or no answer caused me

to leave the grand jury room to consult with my

attorney. One of the times I left the room to dis-

cuss this situation with my attorney, I heard Grand

Jurors laughing. Mr. Goodwin’s facial expressions

and tone throughout this questioning made me ex-

tremely uncomfortable, because it seemed that he

believed I was being untruthful.

5. Shortly after this incident and before I was ex-

cused, I asked to make something clear. I felt it

was important to remind Mr. Goodwin that in the

documents Synanon had produced more than two

weeks before, there were sheets of paper indicating

where privileges were claimed for certain withheld

paper documents. Therefore, I stated that it was

Tla

my understanding that Mr. Goodwin had already

been informed that certain paper documents which

had been subpoenaed by the Grand Jury had been

withheld from production on a claim of privilege.

Upon hearing this, Mr. Goodwin put his foot up on

the table in front of him and used it to shove his

chair away from the table, threw his writing instru-

ment on the table and rolled his eyes. Mr. Goodwin

previously had let me to be believe that his need of

me as a witness was soon to be done and that 1

could return to my home in California that day.

Instead, Mr. Goodwin ordered me to appear again

before the grand Jury in five days, on Tuesday,

September 17, 1985, to answer questions about the

privileged documents. Upon leaving the grand jury

room, I was in tears by Mr. Goodwin’s harassment

of me on the witness stand and because I had ex-

pected to be excused so that I could return home.

Through negotiations between my attorney and Mr.

Goodwin, I was not required to reappear on Septem-

ber 17, so I could return home as scheduled, but I

had to return to testify again on September 24 and

26.

Paragraph 6 of the Declaration of Guy Goodwin filed in

connection with the Motion for Disclosure of Grand Jury

Transcripts and Minutes avers in pertinent part: “This

declarant did not make facial expressions of disbelief or

disapproval when Yvette Van Dalsem, Ronald V. Cook

or any other witness testified before the Grand Jury;

this declarant did not throw a pen or pencil on a table

in an expression of disbelief, disapproval, or for any

other reason during the testimony of Yvette Van Dalsem

or any other witness; this declarant did not at any time

order or direct Yvette Van Dalsem or any other person

to answer yes or no to questions insusceptible of such

answers during appearances in the grand jury.”

The court has reviewed Van Dalsem’s September 12,

1985 testimony and it simply does not support her claims

72a

of harassment set forth in paragraphs 3 and 5 of her

declaration. While there is a factual conflict concerning

the making of gestures during the presentation of Van

Dalsem’s testimony, the court does not consider this con-

flict to be sufficiently material to require an evidentiary

hearing with regard to it, especially given the exag-

gerated averments in paragraphs 3 and 5 of her declara-

tion. And even were the court to find that the prosecutor

made gestures during Van Dalsem’s testimony, the court

is persuaded from the context that they would not con-

stitute misconduct or misconduct such that dismissal of

the indictment against all of the defendants herein is

required. See United States v. Pabian, 704 F.2d 1533,

1539-1540 (11th Cir. 1983).

With regard to the November 29, 1984 testimony under

grant of immunity of Ronald V. Cook, defendants assert

that Goodwin “overstepped the line between proper and

impermissible questioning by asking questions in a way

calculated to bias the Grand Jury against the defend-

ants.” According to the declaration of Cook’s counsel,

Dominic P. Gentile, filed in connection with the Grand

Jury discovery order:

28. On his trips out of the Grand Jury room to con-

sult with me, Mr. Cook reported to me that when he

would assert the marital privilege from to time

Mr. Goodwin was deliberately utilizing facial expres-

sions and bodily gestures which communicated his

disapproval and scorn of Mr. Cook’s assertion of the

marital privilege and that these expressions were

done in the presence and within the view of the

Grand Jurors. It was Mr. Cook’s belief that the

Grand Jurors were responding to Mr. Goodwin’s

body language. Mr. Cook advised me that this belief

was based upon the fact that at one time he actually

heard a Grand Juror hiss simultaneously with Mr.

Goodwin’s gestural ridicule of Mr. Cook.

73a

29. Mr. Cook also advised me from time to time

that Mr. Goodwin would use the technique of asking

him a question which called for a narative [sic]

response and, when Mr. Cook would assert a marital

privilege to that question, Mr. Goodwin would fol-

low the marital assertion with another question

which was framed in such a manner to assume as

a fact what was sought by the previous question.

For example, at one time in the proceedings Mr.

Goodwin asked Mr. Cook a question to the following

effect :

Question: Were you present at the beating of four

people in the basement at the Synanon facility in

Santa Monica?

Answer: I refuse to answer that question based

upon my marital testimonial privilege.

Question: During that beating of four people in

Santa Monica, for which you were present, was

(so-and-so) ... also present?

30. In addition to the foregoing example, there were

many, many reports made to me by Mr. Cook that

Mr. Goodwin would ask questions that were both

leading, compound and pregnant. For example, just

prior to Mr. Cook being resleased from the Grand

Jury at approximately 4:03 p.m., Mr. Cook was

asked the question which he reported to me in the

following language:

Question: Were you aware that Paul Marantz was

assaulted and that Charles E. Diedrich and others

pled nolo contendere to that charge?

When Mr. Cook came out to report this question to

me it was obvious to me that it was compound and

that if he were to answer it ‘yes’ or ’no’ he could

easily be prosecuted for perjury because he could

have been aware that Mr. Marantz was assaulted

74a

but not aware that Mr. Diedrich and others had

pled, or vice versa, or he could have been totally un-

aware of either aspect of the question.

However, the court’s review of the transcript does not

reveal any improper questioning by Goodwin rising to

the level of misconduct. Defendants assert that the ques-

tions asked of Cook concerning his presence at the beat-

ing in Santa Monica is misconduct similar to that con-

demned in United States v. Serubo, 604 F.2d 807, 814-

815 (3d Cir. 1979). The court does not agree. In

Serubo, the concern was with the prosecutor’s failure to

lay a foundation for his attempt to link the defendants

with organized crime and with the prosecutor’s failure

to inform the grand jury that the persons of whom the

witness was being questioned concerning his knowledge

of loan sharking brought against those persons had in

fact been acquitted of those charges. Here, Cook was

testifying under a grant of use immunity. Cook, how-

ever, claimed the marital testimonial privilege to vir-

tually every question asked of him, including the ques-

tions concerning his presence at or knowledge about the

beating in Santa Monica. While the court must agree

with defendants that the questions concerning this inci-

dent were to some extent leading and based on facts the

foundation for which is not apparent in this witness’s

testimony, defendants do not argue that the foundation

could not be laid.

While Judge Robinson subsequently granted the gov-

ernment’s motions to compel with regard to questions

propounded to Cook and to which he claimed the marital

testimonial privilege, see Exhibit S, defendants nonethe-

less assert that “it was improper for the prosecutor to

discredit Mr. Cook’s reliance upon his privileges [by ges-

tures and tone of voice], and that the resulting prejudice

was suffered not only by Mr. Cook, a Synanon associate,

but by all the defendants associated with Synanon.”

They further contend that “[i]n an analogous situation,

75a

an indictment was dismissed because the prosecutor, in

the presence of the grand jury, challenged the sincerity

of the witness’ claim against self-incrimination and

threatened to bring her before the judge. See United

States v. Di Grazia, 213 F.Supp. 232 (N.D.IIl. [19]63.

The misconduct here was much the same.” Here, Mr.

Goodwin made no overt challenge to the sincerity of

Cook’s claim of the marital testimonial privilege in the

presence of the Grand Jury and certainly did not

threaten to take Cook before a judge. Moreover, from the

courts review of this transcript, any discrediting of

Cook, if indeed any occurred, resulted primarily if not

entirely from Cook’s repeated invocation of the marital

testimonial privilege in response to questions to which it

clearly did not apply.

3. Failure to Present Evidence of Doubtful

Credibility.

The government need not produce before the Grand

Jury evidence which tends to undermine the credibility

of its witnesses. Jack v. United States, 409 F.2d 522,

524 (9th Cir. 1968), Loraine v. United States, 396 F.2d

335, 339 (9th Cir.), cert. denied, 393 U.S. 933 (1968).

However, “‘{i]f evidence exists, however, which casts

serious doubts on the credibility of testimony which the

jurors are asked to rely upon in finding an indictment,

the prosecutor has an ethical duty to bring it to their

attention.’” United States v. Samango, supra at 882

n.8. And “where a prosecutor is aware of any substan-

tial evidence negating guilt he should, in the interest of

justice, make it known to the grand jury, at least where

it might reasonably be expected to lead the jury not to

indict. See ABA Project on Standards for Criminal

Justice—The Prosecution Function, § 3.6, pp. 90-91.”

United States v. Ciambrone, 601 F.2d 616, 623 (2d Cir.

1979).

Here, defendants contend that the apparent failure by

the prosecutor to inform the Grand Jury that Dr. Richard

76a

Ofshe was a defendant and counter-claimant in a libel

action involving Synanon and some of the defendants

herein and the apparent failure by the prosecutor to in-

form the grand jury about doubts expressed concerning

the credibility of witness Linda James in other proceed-

ings is misconduct requiring dismissal of the indictment.*

At oral argument, defendants urged the court to equate

the apparent failure of the prosecutor to inform the

Grand Jury of these matters with a deliberate presenta-

tion of perjured testimony, an equation this court will

not make under the circumstances of this case. Further-

more, defendants conceded at oral argument that dis-

missal of this indictment because of this apparent failure

can be justified only under the cumulative effect standard

set forth in United States v. Samango.

The government’s entire response to this portion of

the motion is to refer the court to the court’s ruling at

pages 43-48 of its Decision and Order Re Defense Motion

for Disclosure of Grand Jury Transcripts and Minutes

and to assert:

Even assuming that this allegation [sic] regarding

Richard J. Ofshe and Linda James are true, and the

government does not contend they are, the showing

is insufficient to satisfy the showing of flagrant mis-

conduct sufficient to override the independent judg-

ment of the grand jury which heard substantial

other evidence of guilt during its lengthy investiga-

tion.

With regard to Richard Ofshe, defendants renew their

claim in the face of the court’s previous conclusion: “The

5 Defendants have dropped their claim that the prosecutor com-

mitted misconduct by failing to present to the grand jury affidavits

of Lee Stewart Coleman, M.D., Jack D. Douglas, Ph.D., Armand L.

Mauss, Ph.D., and George Nash, Ph.D., which affidavits are severely

critical of certain sociological studies, conclusions and publications

concerning Synanon prepared by Ofshe and assert generally that

he is prejudiced and biased against Synanon.

77a

court is persuaded that the allegations concerning Ofshe’s

prejudice do not suffice to require disclosure of any

Grand Jury transcripts. They do not case [sic] the

serious doubts on his credibility such as was the case in

Samango.” Defendants argue:

Ofshe had a multi-million dollar claim pending

against Synanon and several of the defendants

here. The destruction of evidence was among the

central issues in that litigation. Moreover, Ofshe

was not coming to the Grand Jury as a witness inde-

pendent of the Government, since the prosecutor had

shared Grand Jury material with him and employed

him as a consultant. Thus, Ofshe was both personally

biased and an arm of the prosecutor.

Additionally, wholly apart from the questions relat-

ing to Mr. Ofshe’s personal credibility, the principle

that the grand jury must be independent is violated

when a person working for the prosecutor is placed

on the stand as a witness, at least when it is not

revealed that the witness is dependent on the govern-

ment for considerable financial support. By using a

government consultant as a witness without reveal-

ing his employment with the Government the prose-

cutor deceives the grand jury and turns it, un-

wittingly, into an arm of the government.

While this court is of the opinion that the Grand Jury

should have been informed of Dr. Ofshe’s involvement

as a civil litigant with Synanon and some of the defend-

ants herein, the court remains persuaded that no prose-

cutorial misconduct results from this lapse, especially

under a cumulative effect standard. Dr. Ofshe’s potential

bias does not constitute evidence casting serious doubts

on the credibility of Dr. Ofshe as a witness. Defendants’

assertion that the Grand Jury was not aware during

Dr. Ofshe’s second appearance before it that he was

assisting the prosecutor as an expert in the analysis of

78a

certain tape recordings, see Order Re Motion to Dismiss

for Violation of Rule 6(e), Fed. R. Crim. P., is pure

speculation.

The arguments made by defendants concerning the

credibility of Linda James constitute, in the court’s opin-

ion, an exaggeration of the record. In the Decision and

Order Re Defense Motion for Disclosure of Grand Jury

Transcripts and Minutes at pages 43-46, the following is

recited:

In the Declaration of Thomas J. Nolan, it is averred

in pertinent part:

C. The 1984 Los Angeles County, California

Indictments.

9. On June 21, 1984, thirteen current and

former residents of Synanon were indicted by

the Los Angeles County Grand Jury on charges

of preparing false evidence, offering false evi-

dence, conspiracy to obstruct justice, and per-

jury. Eight of the nine defendants in the cur-

rent proceedings were indicted by the Los An-

geles County Grand Jury. Of the persons pres-

ently indicted, only David R. Benjamin was not

indicted in Los Angeles.

10. Due to numerous defects on the face of the

Indictment, the Los Angeles defendants filed a

Demurrer on October 19, 1984. Examples of

defects in the Indictment included charging per-

jury for statements which were simply not made,

charging a witness for an act for which she had

been granted immunity, and misleading the

Grand Jury about the applicable statute of lim-

itations. This Demurrer was never responded to

by the prosecution. Instead, on December 28,

1984, the Honorable Robert Devich, Judge of

the Los Angeles Superior Court (now an Associ-

ate Justice on California’s Second District Court

79a

of Appeal), dismissed the Indictment against all

thirteen individuals at the request of the Dis-

trict Attorney’s office, which wrote in a letter -

dated December 19, 1984, that it had devel. ped

further evidence and that, “This independent

evidence corroborated some Grand Jury wit-

nesses but cast serious doubts on the credibility

of other key witnesses including some current

Synanon members.’ In a later letter, dated

November 18-1985, the Los Angeles District At-

torney revealed that at least some of the ‘key

witnesses’ referred to were Linda James and

Jay Nolan. Attached hereto as Exhibits ‘O”

and “P” are true and correct copies of cor-

respondence authored by the Los Angeles County

District Attorney’s office, dated December 19,

1984 and November 18, 1985, respectively.

Defendants assert that it is known that Linda James

testified before the Washington, D.C. Grand Jury

but that it is not known whether Jay Nolan testified.

They contend that “it is imperative that the defend-

ants review the Grand Jury Transcripts of the testi-

mony of Linda James (and Jay Nolan, if any), to

see if grounds for dismissal exist based upon the

failure to provide evidence negating guilt.”

Defendants’ Exhibit P states: “This independent

evidence consists of the affidavits of Linda James,

dated September 19, 1984, and the thirty-three affi-

davits pertaining to Jay Nolan. These affidavits were

offered by defense counsel at the probation violation

hearing of Charles E. Dederich.” This court has not

been provided a copy of the dismissed indictment or

the affidavits referred to in Exhibit P. While de-

fendants assert that “[t]he Los Angeles indictments-

and the present action are based on some of the same

factors, i.e., alleged destruction of documents and ob-

struction of justice,” the court has no way of gaug-

ia aaa

80a

ing whether or not the testimony of these witnesses

was of the same events in both grand jury proceed-

ings or what caused the Los Angeles District Attor-

ney’s Office to question James’ and Nolan’s credi-

bility. Furthermore, defendants’ Exhibit O states in

its entirety:

The District Attorney’s Office intends to move

to dismiss Indictment A 754010 (eight counts)

in the interest of justice pursuant to Penal Code

Section 1385. This motion will be made on the

ground that the Indictment has been superseded

by a twelve-count felony complaint, filed in the

Los Angeles Municipal Court. The Indictment

was the result of Grand Jury hearings concern-

ing the evidence available at that time.

After the Grand Jury returned the Indictment

on June 25, 1984, the District Attorney’s Office

continued the investigation and further devel-

oped the evidence produced at the Grand Jury

Hearing. This independent evidence corrobo- |

rated-senre-Grand Jury witnesses but cast seri-

ous doubts on the credibility of other key wit-

nesses, including some current Synanon mem-

bers. The continuing investigation also revealed

a much clearer view of plausible defense argu-

ments by some indictees. Based on our reevalua-

tion of the evidence and plausible defenses, we

must conclude that the evidence does not war-

rant continued prosecution under the indictment.

It is the position of the District Attorney’s

Office that all substantial allegations of wrong-

doing raised by the Grand Jury investigation

will be fully litigated by the superseding com-

plaint and that all major participants in the

alleged wrongdoing have been ascertained. Fi-

nally, all indications are that post-indictment

preliminary hearings are desired, at least by

ee

8la

some of the current defendants, pursuant to

their rights accorded by People ». Hawkins, 22

Cal.38d 584. Therefore, the procedure outlined

above seems to be truly in the interest of justice.

The court has now been provided with a copy of Linda

James’ affidavit which the district attorney referred to

as the independent evidence casting serious doubts on her

credibility. This affidavit, submitted as defendants’ Ex-

hibit BB, avers in pertinent part:

2. I was a resident of Synanon from October 3,

1967 to February 238, 1981. On June 12, 1984 I was

called as a witness before the Los Angeles Grand

Jury. During my testimony, I was asked questions

regarding Charles E. Dederich and events which

may have taken place after the time Mr. Dederich

was placed on probation in what has been referred

to as the ‘rattle snake case.’ At the time I was asked

questions, I did not know exactly when Mr. Dederich

was placed on probation. Nor did I fully understand

what the term ‘probation’ meant in the context of

the questions asked of me during my testimony. This

declaration should clarify my testimony of June 12,

1984 before the Los Angeles Grand Jury.

3. After Charles E. Dederich was arrested in De-

cember, 1978, there were numerous changes in the

manner in which he conducted himself in Synanon.

He did not participate in many Synanon Games, nor

was he regularly heard on the Wire, which is Syna-

non’s internal radio-like communications network. In

my experience, residents of Synanon were very aware

of these changes in Mr. Dederich’s actions. It would

have been unusual for Mr. Dederich to participate in

a Synanon Game or speak over the Wire after De-

cember, 1978.

4. I recently learned that Mr. Dederich was placed

on probation in September, 1980, which is only five

months before I left Synanon. With this new in-

82a

formation in mind, and with an opportunity to re-

view certain documents in my possession, I have

additional information regarding the date on which

I heard Mr. Dederich live on the Wire. I heard Mr.

Dederich live on the Wire on February 10, 1980.

5. I was asked, during my testimony before the Los

Angeles Grand Jury, whether or not certain other

events involving the Synanon Game occurred while

Mr. Dederich was on probation. My testimony on

pages 595-596 of the transcript of testimony before

the Los Angeles Grand Jury is attached as Exhibit

“A” to this declaration. To the best of my recollec-

tion; I cannot pinpoint the exact period of time dur-

ing which these situations occurred. Knowing that

Mr. Dederich’s actions within Synanon had changed

after his arrest in December, 1978 (as described in

paragraph 3) the situations described on pages 595-

596 may have occurred before September, 1980, and

not during the last five months that I was a resident

in Synanon.

6. Had I been informed of the precise date Mr.

Dederich was placed on probation before being asked

the questions by the Deputy District Attorney, this

confusion would not have occurred. I am not a

lawyer, not was I ever trained as a lawyer. The

terms regarding probation are not familiar to me.

Defendants parlay this affidavit into a serious doubt

on the part of the district attorney as to all of her testi-

mony, an inference which is not supportable from the

documents before this court. The court is of the opinion

that any doubts as to Linda James’ credibility which the

prosecutor herein may have had certainly do not rise to

the level of misconduct if not disclosed and certainly do

not necessitate dismissal of this indictment if disclosure

was in fact not made.

83a

4. Derogatory References to the Synanon Lifestyle,

Biasing the Grand Jury and Violating Defend-

ants’ First Amendment Rights of Freedom of

Religion, Association and Expression.

In this portion of defendants’ motion, defendants argue

that dismissal of the indictment is required because the

prosecutor’s questions to witnesses before the Grand Jury

concerning Synanon’s lifestyle, religion and internal af-

fairs biased the Grand Jury, thereby compromising its

impartiality, and violated the First Amendment rights

of Synanon and its members to freedom of religion, asso-

ciation and expression.

In arguing that this occurred during the Grand Jury

proceedings leading to this indictment, defendants refer

the court to paragraph 2 of Count One of the indictment:

2. It was part of the conspiracy that the defendants

and unindicted co-conspirators who were and are

officials, attorneys and residents of The Synanon

Foundation, Ine., later known as The Synanon

Church, a corporation incorporated under the laws

of the State of California as a nonprofit charitable

corporation, sought to conceal and cover-up from

agents of state agencies, .rom the Internal Revenue

Service of the U.S. Treasury Department investigat-

ing whether the tax-exampt status of The Synanon

Foundation, Inc., should be revoked, and from liti-

gants in lawsuits in the courts of the State of Cali-

fornia, the District of Columbia, and the courts of

the United States in the District of Columbia, con-

duct and evidence and discussions thereof by Synanon

officials, attorneys and residents which was contrary

to Synanon’s status as a charitable, non-violent, non-

profit foundation, to wit, the inflicting of physical

violence by Synanon residents on Synanon’s enemies,

the acquisition of an arsenal of guns, the ‘Holy War’,

the diversion of Synanon money into private hands,

84a

salaries, bonuses, Synanon ‘Love Matches,’ ‘Chang-

ing Partners’ and other activity harmful to Syna-

non’s status as a charitable, non-profit, non-violent

foundation.

Defendants also refer the court to the declaration of

Yvette Van Dalsem filed in Connection with the Grand

Jury discovery motion: “6. While testifying before the

Grand Jury, I was asked questions about my former

husband and my Synanon Love Match, a religious mar-

riage ceremony.” Defendants further state that “[d]efend-

ant Judy [Cecilia Jason] Dederich’s Grand Jury testi-

mony is rife with this type of outrageous, prejudicial,

and irrelevant inquiry.” Defendants then cite three ques-

tions of Dederich, in answer to all of which she claimed

the Fifth Amendment.

Q In Formia, Italy while you were there, were

there discussions among the group, which consisted

of the board of directors of Synanon—discussions of

group sex and group marriage?

A I respectfully decline to answer on the grounds

of the Fifth Amendment.

Q Were you ever involved in any experiments in-

volving group sex with other people, other than your

present or existing spouse at the time?

A I respectfully decline to answer on the grounds

of the Fifth Amendment.

Q At the Synanon Foundation, during the iime

you’ve resided there—which has been a substantial

amount of time, I understand—was the Dederich

family referred to as the Royal Family?

A I respectfully decline to answer on the grounds

that my answer may tend to incriminate me.

85a

Defendants contend:

These questions had no place in the proceedings. The

only possible reason for asking these questions was

to inflame the grand jury into believing that Jady

Dederich and her colleagues are immoral. In addi-

tion, the Grand Jury testimony of Steve Simon and

Ron Cook contains several more instances of this

type of inflammatory and irrelevant examination.

See Exs. ‘D’, ‘E’ and ‘W’.

In the questioning of witnesses Ms. Van Dalsem,

Miss Dederich, Steven Simon and Ron Cook there

was no ‘substantial connection’ between the subject

matter of the investigation and the information of

who they were married to, there sexual activities, or

the status of the Dederich family in Synanon. Spe-

cific inquiries by the Government regarding group

sex and group marriage have nothing to do with this

Indictment; indeed, ‘group sex’ and ‘group mar-

riages’ are totally unrelated to the topics ‘Love

Matches’ and ‘Changing Partners’ indicated in the

Indictment. It is difficult to imagine any questions

that could have been more prejudicial.

The government responds that the questions complained

of were relevant to the Grand Jury’s investigation:

The questions objected to were about Board Meeting

discussions of plans for group marriages and group

sex by Synanon residents and whether these board

meetings were tape recorded. These questions were

highly relevant to the grand jury’s investigation be-

cause, as demonstrated by the declarations of Bette

Fleishman and George Farnsworth, such discussions

took place in Formia, Italy, the meetings were tape

recorded and later the tape recordings were concealed

or destroyed on instructions of some of these defend-

ants....

86a

The defendants also object to questions asked of

Ronald V. Cook, Yvette Van Dalsen, and Steven

Simon regarding the nature of their ‘marriage’ to

several of their claimed wives. The relevance of

these questions to the grand jury investigation is

two fold. Part of the damaging documents and tape

recordings which the indictment alleges were con-

cealed from litigants and investigators dealt with

subjects pertaining to the Synanon ‘Love Match’ and

‘Changing Partners.’ This aspect of the so-called

Synanon life-style because [sic] relevant to the in-

vestigation because the defendants perceived it to be

damaging. The grand jury was entitled to inquire

why and how. These questions are also relevant

because the grand jury was entitled to learn whether

the marital privileges claimed by several of the

grand jury witnesses were in fact based on legally

cognizable marriages and whether the limited rela-

tionship called the Synanon ‘Love Match’ entitled the

witnesses to claim marital privilege.

At oral argument, defendants contended that the ques-

tions concerning “love matches” and sexual activities, etc.,

had no legal relevance to the grand Jury’s investigation.

In so arguing, defendants referred the court to 26 U.S.C.

§ 501(c) (3)’s definition of a tax exempt organization,

which definition includes “[cjorporations and any .. .

foundation, organized and operated exclusively for re-

ligious, charitable, scientific, testing for public safety,

literary, or educational purposes .. ., no part of the net

earnings of which inures to the benefit of any private

shareholder or individual, no substantial part of the ac-

tivities of which is carrying on propaganda, or otherwise

attempting, to influence legislation . . . and which does

not participate in, or intervene in... any political cam-

paign on behalf of any candidate for public office.” De-

fendants assert that “love matches,” etc. could not in any

respect affect Synanon’s tax exempt organization status

under Section 501(c) (3). Therefore, the destruction of

87a

documents or tapes concerning “love matches” by per-

sons acting under the erroneous impression that these

documents and tapes did affect Synanon’s tax exempt

status is not criminal because the destruction is not un-

lawful. Consequently, defendants contend that any ques-

tions in this area by the prosecutor were irrelevant to

the Grand Jury’s investigation. The analysis presented

by defendants at oral argument is a slightly expanded

version of the argument presented in footnote 22 of

defendants’ opening brief. In footnote 22; defendants

refer the court to the separate opinion of Justice Mack

of the District of Columbia Court of Appeals in which

Justice Mack concluded that the commercial activity and

deviant sexual practices of Synanon were irrelevant to

the issues raised by the complaint in Synanon Founda-

tion, Inc. v. Bernstein, and that the nonproduction and/

or destruction of documents germane to these two issues

worked no prejudice to the defendants’ case therein.

See Synanon Foundation, Inc. v. Bernstein, 503 A.2d 1254

(D.C. App. 1986). Footnote 22 further stated:

In Synanon v. United States of America the central

issue was Synanon’s entitlement to its tax exemp-

tion. Arguably, facts concerning lifestyle may be

related to certain narrow portions of that case. But

questions regarding ‘group sex,’ such as that [sic]

posed by Goodwin, were outside the scope of that tax

dispute. Even under the most liberal view of rele-

vancy, it is incomprehensible to see how Goodwin's

baseless questions to Cecelia Jason Dederich and

Ronald V. Cook could serve any purpose but to in-

flame and prejudice the Grand Jury.

The court cannot agree in the context of this motion.

The Grand Jury was investigating charges of destruc-

tion of documents and tapes and perjury with respect to

that destruction. The materiality of these documents and

tapes and Synanon’s lifestyle including those concerning

“love m

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