# Appendix — Benjamin v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0880%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1043 ## Text 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 la 2la 23a 38a 56a 95a la 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0880%3A2. Public record. Not legal advice.