*2 RYAN, Bеfore NELSON and Circuit ENSLEN,* Judges, Judge. District NELSON, Judge. A. DAVID Circuit con- Appellant Thomas Powell entered a charge having guilty plea to a ditional engaged continuing enterprise a through importation and distribution drugs period years. a He now over conviction, contending appeals his indicted him abdicated its duty independеntly to review and evaluate indictment was the evidence on which the Although supposed to have based. been it, appeal is essential- Mr. Powell denies ly challenge competency to the and suffi- ciency of the evidence are nor- grand jury. Because such matters scrutiny of the federal mаlly beyond the conviction; courts, shall affirm the however, so, disapproval doing we note our proceedings in which the of the manner grand jury appear to have been handled.
* Enslen, designation. gan, sitting by A. The Honorable Richard of Michi- District Court for the Western District July
On federal jury in service it considered 131 different criminal the Eastern District of Michigan indicted matters. On their day first duty, appellant Powell two others jurors on five were told that they were an counts. The first two counts charged independent body vio- and were not to act as a " n rubber lations of U.S.C. 846 and 963 in stamp” §§ for the United States At- conspiracy possess form of a marijuana torney’s Office. They were further with intent to distribute it and a formed conspiracy jurors may consider *3 import marijuana over period hearsay begin- testimony, but have the ning in continuing request 1972 and through a witness possessing first-hand Counts Three and knowledge. Four The violations was to have a 841(a)(1) span months, of 21 life of May U.S.C. of and although § and active July possession service was to only months, of last six marijuana of for 12 months with thereafter the to distribute it. intent The final count was sub- ject to complete recall to charged ongoing the defendants having investiga- violat- tions. ed 21 engaging U.S.C. 848 in a con- § tinuing enterprise criminal that cоnsisted The contested indictment was re- of drug a decade of activities. turned July 20, until 1984. The transcript of the jury proceedings for that day On December the contains the testimony of Edward Fonta- filed superceding information, corre- nive, an Internal Revenue agent Service sponding to Count Four of the who was invоlved in the investigation of charging possession, with intent to distrib- appellant the and the two others named in ute, approximately 18,000 of of lbs. mari- the indictment. An Assistant United juana. Mr. agreed then Powell plead States Attorney proposed distributed a guilty to Count of (con- Five the indictment dictment agent’s the testimony and tinuing entеrprise) criminal and to the of- told the grand jurors that agent the would charged fense superceding the informa- provide a summary case, “since this tion, possession 18,000 pounds was one of the first matters you that have marijuana. plea The possession your had in long term Grand Jury ser- charge unconditional, was рlea Agent vice.” After sworn, Fontanive was the continuing enterprise criminal charge prosecutor told him that she would like preserved certain for appellate issues con- “to basically go through this indictment agreed sideration. It was if that Mr. Pow- you you so that can refresh the Grand prevailed ell on appeal he would be Jury’s reicollection far as as the evidence allowed to plea withdraw toas Count that would be used to substantiate the vari- Five. agreed It was further that Counts ous counts of this indictment.” She re- through One Four indictment would quested agent specify what evi- dismissed, be drug that state charges dеnce related to each of the three individu- pending in Florida would dropped be also. charged als in the indictment. The district accepted court the guilty page indictment is a 13 document plea and sentenced Mr. Powell to concur- acts, enumerates over 30 begin- overt ten-year rent pоssession terms for and for ning in continuing 1972 and through 1981, continuing enterprise. criminal Although a involving importation, storage, and dis- reversal of continuing criminal enter- tribution marijuana liquid hashish. prise conviction could affect neither the going through the Agent indictment guilty plea ten-year nor the sentence for provided Fontanivе occasionally some elab- possession charged offense in the infor- oration, (which most of testimony mation, such might a reversal result in Mr. up takes pages of transcript) simply becoming eligible Powell’s for parole soon- paraphrased the indictment’s description of er than he otherwise would. the overt acts and added the name or The record indicting discloses names of the provided individuals had initially was sworn on March investigators with support- 1983, and that during the course of ing information. of the indict- agent’s review vant to the charges ultimate in the After indict- Attorney ment, Assistant United Thomas Powell.” if members askеd the The record before us contains no other for the they had “non-agent reference to the unnamed wit- on of the details a further review wanted ness,” or to that testimony. witness’ We charged. acts numerous overt any of the know, however, do that the testimony of questions, asked grand jurors Several Witness Paxtоn was read to the had answered the been after all testimony on November 1983. Paxton’s grand jurors that: prosecutor informed was to the effect that Mr. had im- Powell statements 1974; witness and ported “The various “hash oil” things of that nature available clearly supported Count Five of the indict- you any particular if (Thе review your indicting ment. grand jury also heard any of those various individ- questions on testimony on certain tax law violations for Agent Special Fontanive uals. And which Mr. Powell was indicted and convict- provide you. those to be able separate proceeding.) ed in a *4 If “Any other at this time? moved, among Mr. things, Powell other not, particular I like to submit this for a dismissal of the entire indictment on which deals with the five indictment ground the that the had de- you that we have reviewed for counts prived grand jury the of the and an indictment for the three request and opportunity to the evidence. Em- review Powell, individuals, D. Thomas Glenn Ka- phasizing Agent pеr- Fontanive had no valich and Solomon Abecasis.” facts, knowledge sonal of the and that his summary included various inaccuracies and grand jurors posed ques- no further The omissions, Mr. Powell contended that the tions, agent, prosecutor, and “grand jury by being given only was biased reporter the court left the roоm. Agent Fontanive’s conclusions and infer- day’s proceedings record The termi- or underlying ences and few none of the point, purposes nates at that and for of this facts.” Mr. Powell also moved to dismiss appeal grand ju- will assume Count for failure to set forth suffi- Five oppor- rors did not avail of the themselves predicate cient criminal offenses. After a tunity supporting to review witness hearing, both motions were denied. Agent statements to re- Fontanive testimony. ferred in his ‡ sjc $ 8j« ‡ J(c The Mr. pertaining other evidence principal grand ju The duties of appears Powell that to have been probable rors are to determine whether is described in the follow- cause exists to believe that a crime has ing rather stipulation: skeletal protect been committed and to the accused prosecutions.
“The agents state- from unfounded criminal took Calandra, United States v. approximately ments from 46 witnesses provided rele- information deemed (1974). office, grand discharging their vant the case Defendant jurors traditionally Thomas been “accorded gave Powell. Ten witnesses tes- timony concerning inquire into prior grand Powell to wide latitude to violations law,” investigation juries. ap- None of and their is these ten witnesses procedural peared person indicting by “unrestrained the technical grand jury. evidentiary governing An rules the con excerpt previous trials.” Id. A jury testimony of one of the wit- duct of criminal nesses, hearing Paxton, adversary proceeding Earl is not an was read to the guilt indicting grand jury by or innocence an Assistant determine accused, ex an Attorney. particular individual year prior One parte investigation that decides whether return of the the in- 343-44, commence. Id. at dicting grand prosecution heard the shall non-agent at 617-18. one witness which was rele- 94 S.Ct. grand jury’s sources of
“The
information
be that before trial on the merits а de-
drawn,
widely
validity
of an
always
fendant could
insist on a kind of
by
is not affected
preliminary
indictment
the charac-
trial to determine the compe-
Thus,
tency
considered.
adequacy
ter of the evidence
of the evidence be-
on its
subject
grand jury.
indictment valid
face is not
fore the
This is
required
ground
by
challenge on
Fifth
Amendment. An indictment
by
on
returned
legally
acted
the basis of
inade-
constituted and un-
evidence,
quate
incompetent
jury,
or
biased
like an
Costello
information
States,
prosecutor,
drawn
v. United
if valid on
[350
face,
enough
(1956)];
to call for
“[Njeither the Fifth
nor
Amendment
indictment because there was no еvidence
other
provision
constitutional
prescribes
support
charge.
to-
canvassing
After
kind of evidence
which
Court
precedent,
and Sixth Circuit
juries must act....
If indictments were
reiterated
Short
that criminal cases should
open
be held
challenge
on the
not
by preliminary
be “further attenuated
ground thаt there was inadequate
concerning
or in-
adequacy
trials
competent evidence
jury proceedings,
a concern particularly
jury,
resulting
delay
great
Short,
be
noted Costello.”
671 F.2d at 182
indeed. The
Barone,
result of such a
(quoting
rule would
United States v.
584 F.2d
denied,
cert.
Cir.1978),
(6th
Jury process,
439 Court over the Grand
118,
аs the
1019,
responsibility
59 L.Ed.2d
Court’s
99 S.Ct.
to enforce the
Consti
the conclusion of
Short
(1979)).
endorsed
tution.” The district
court considered exer
Cruz,
in cising
supervisory
Fifth Circuit
authority anyway,
Cir.),
cert.
(5th
rejected
Citing
the idea.
discretion to dismiss the District here; Mr. ment to have dismissed Powell’s light applicable of the Sixth Circuit indictment, contrary, on the issue, join I precedent on the Supreme do Court been to that which separately Judge opinion. Nelson’s I write says ought a court not do. Given the tradi express my strong displeasure independence tional “unfettered” the Assistant about the manner mechanism, grand part of jury it is not the Attorney presented the States United scope question the federal courts to appel- against government’s evidence grand jurors’ inquiry. grand jury’s grand jury. lant to the there is is determine “whether the district function
Mr. Powell informed a crime has been “challenging depriva probable cause to believe court that he was protect “citizens tion of his individual committed” and to to indictment prosecutions.” United by Jury, preju a rather than unfounded Grand Calandra, 338, 343, v. misconduct. States arising prosecutorial dice from (1974). Tо Indeed, 38 L.Ed.2d Powell is not so much S.Ct. Defendant function, empow- is fulfill this a invoking supervisory powers wide-ranging, parte ered to conduct ex investigation case into the before it. As McSURELY, Alan Plaintiff-Appellant, “ stated, has Court ‘[i]t grand body powers inquest, a of inves- George HUTCHISON, W.
tigation inquisition, scope whose Defendant-Appellee. limited narrowly by is not to be No. 86-5047. propriety or forecasts of the probable investigation, result of the United Appeals, States Court of any particular doubts whether individual Sixth Circuit. properly subject will be found to an accusa- Argued Jan. ” 1987. Branzburg tion of crime.’ Hayes, Decided July 665, 688, U.S. (1972)(quoting Blair v. United 468, 471, 63 L.Ed. (1919)).
Ironically, in this case the limit,
appаrently attempted expand, presented information to the jury appellant.
that indicted the The primary government presented
evidence the was the govern- of a basically repeated the alle-
gations contained in the supply-
ing allegations and, the sources of the occa-
sionally, supporting I details. believe that method which the its case to deni-
grates the role of pre-
vents from fulfilling its
historical and constitutionally established
function. I fully agree Judge Nelson future cases of abuse
jury system in the Eastern District of Mi-
chigan may justify this Circuit’s exercise of
its supervisory power to ensure that Attorney for the Eastern *7 Michigan
District of properly employs the
grand jury system.