United States v. William A. Kilpatrick, Declan J. O'donnell, Sheila C. Lerner, the Bank of Nova Scotia, Michael Alberga, C.S. Gill, and C.M. Smith

proba- doctor and see the fore she went America, she felt ill—the day that STATES the second UNITED

bly on time, according Plaintiff-Appellant, aat It was 30th. testified, probably when she who doctors had she received survived have would KILPATRICK, Declan J. A. William The mis- treatment. diagnosis correct Lerner, O’Donnell, the Bank C. Sheila effectiveness destroyed the diagnosis Scotia, Alberga, Michael C.S. of Nova in evidence. warnings here Smith, Defendants-Ap Gill, C.M. af- by the decedent tampons use of pellees. had TSS intro- that she concern ter her 83-1363-1369, 84-2481-2487. Nos. degree of causation element duced an law, which, under Kansas Appeals, decedent States Court by jury as herein by the Tenth must be evaluated Circuit. trial as not done at This was

described. 18, 1987. June cau- instructed judge trial the' 19, 1987. Rehearing Aug. Denied was not its concern. decedent by the sation observed, and included court Thus the trial Mrs. statement that No. in Instruction considered should “fault”

O’Gilvie’s failed to had jury as the defendant

by the care attrib- of due presumption

rebut the these circum- under to a decedent

uted a directed This was in substance

stances. compara- plaintiff as to her

verdict As to the the statute.

tive fault under to the dece- attributed

presumption of care dent, in Akin v. Estate Kansas court

Hill, 440 P.2d ob- 201 Kan. yields “[tjhis presumption ...

served controverting evidence.”

to direct such evidence as us contains

record before

herein described. comparative causation

The measure for liability law is the products

under Kansas injured consumer de-

degree an to which ordinary duty her

parted from his or giv- Accordingly, should be

care. decedent’s opportunity to assess

en the and reasonable-

conduct as to causation to exam- jury should be allowed

ness. The causation, “phantom any, by the

ine the if Tampax well.

defendants” Kotex judgment of the dis-

I would reverse the for a new trial. remand

trict court and Div., Lindsay, E. Tax Dept,

Robert Justice, (Glenn Washington, D.C. L. Arch- er, Jr., Gen., Atty. Olsen, Asst. Robert M. Acting Atty. Gen., Paup, Asst. Michael L. Hechtkopf Springer, Alan James P. Div., Justice, Dept, Washington, Tax D.C., Miller, and Robert N. Den- Atty., ver, Colo., brief) also on plain- were tiff-appellant. Nesland, Ireland, Stapleton,

James E. Colo., Pascoe, Denver, Pryor & de- all (Theodore fendants-appellees Merriam, H. Wagner Waller, Richard K. Rufner and & P.C., Colo., Englewood, and William C. Waller, Mark, Waller, Jr. Denis and H. P.C., Denver, Allen, Colo., Mark & were on for defendant-appellee brief William A. Kilpatrick). Morvillo, Obermaier, G.

Robert Morvillo Abramowitz, (Robert City & New York J. Anello, brief) defendant-ap- was on the for pellee The Bank Nova Scotia. Grossman, Jr., D. Robert Grossman and Flask, (James Treece, Washington, D.C. L. Treece, Littleton, Arkey, Colo., Bahr & was brief), defendant-appellee on Declan J. O’Donnell. Lemer, pro C.

Sheila se. Fla., Koughnet, Naples, E. Donald Van defendants-appellees Michael L. Alber- ga Casey and S. Gill. HOLLOWAY, Judge,

Before Chief SEYMOUR, Judge, Circuit BOHANON, Judge *. District HOLLOWAY, Judge. Chief investigation a twenty After month con- grand juries, ducted before two this case began with the return twenty-seven of a charging all count indictment defendants- appellants conspiracy, charging with of the defendants with additionally several tax mail fraud and/or fraud.1 Defendant * Bohanon, charged The Honorable L. Bank of Luther United The Nova Scotia was in ten Eastern, conspiracy with Judge counts defraud the United States District Northern (18 (Count 1) 371) aiding Oklahoma, § U.S.C. sitting by and Western Districts 1341, 2) (18 abetting a fraud U.S.C. §§ and (Counts mail designation. 13-21). counsel, 84-1231, charged in Count XXVII Government No.

Kilpatrick was justice. proceeding complaining mandamus also with obstruction concerning publicity adverse Government dismissed the Initially the district court counsel. as counts of the indictment twenty-six first and for failure to improperly pleaded conclude that we must reverse the We allege a charge by failing lack crime order dismissals the district court and underlying in the economic substance of all counts of the indict- reinstatement Kilpatrick, transactions. ment. (D.Colo.1984). Fol- by the lowing separate motion Bank (Bank), the district court dis- Nova Scotia Sufficiency of the indictment the Bank counts which missed the allege requisite for failure to named A knowledge intent Bank to com- dis- appeals The Government the order Id. charged. The mit the crimes Govern- twenty-six first missing the counts of appealed ment all these dismissals Nos. indictment, 83- twenty-seven count Nos. through 83-1369. 83- (I through 274). 83-1369. R. here, requested argument Before alleged indictment was based on two fraud- partially remanded case district enterprises inves- ulent investment sold to court to determine whether misconduct tor-taxpayers in States. attorneys part of in con- twenty-six district court dismissed the first investigation nection with allege of failure counts because their to presentation and constituted additional in lack of economic substance the transac- Following grounds par- dismissal. for underlying program, tax shelter tions remand, Judge opin- tial Winner issued an and of the court’s concern that because which, among things, ion other summarized plead defendants not would be able the status of the cases which were reas- as a acquittal conviction bar to subse- Kane, signed Judge granted a new trial (IV 3-4). quent prosecution. R. Further- justice against on the count obstruction of more, naming the ten the Bank counts Kilpatrick, and ordered disclosure of the were dismissed as to the Bank on the addi- grand jury transcript. See United States ground failed to tional that the indictment (D.Colo. Kilpatrick, F.Supp. allege representatives that the Bank or its 1983). knowledge requisite had or intent to days hearings Judge After ten Kane 7-11). charged. (IV commit the crimes R. twenty-seven dismissed all counts of the I, which related to the structured Count prosecutorial indictment miscon- because States, programs coal in the United appealed duct 2. The Government also charged five of the individual defendants in through these dismissals Nos. 84-2481 willfully, “unlawfully, and Bank with appeals 84-2487. With the latter we con- knowingly consphjmg] and ... to defraud 83-1369, through solidated Nos. 83-1363 by impeding, of America opinion discussed this dis- above. impairing, obstructing defeating the and pose appeals in of the issues raised Nos. lawful functions of the Internal Revenue through 83-1363 Nos. 84-2481 83-1369 and Treasury Department of the in the Service through separate opinion 84-2487. Our ascertainment, computation, assessment follow will address the raised in No. issues 83-2284, through and revenue false appeal collection Government’s from for ad- Kilpatrick for trial and fictitious claims of deductions order a new for chal- lenging publicity concerning royalty ‘payments’ ...” in violation adverse vance justice. standing guilty of See Unit- 2. The district court's first dismissal left found obstruction Kilpatrick, charged ed Count XXVII of the which States v. indictment However, (D.Colo.1983). Kilpa- Kilpatrick obstructing the defendant the defendant with trial, Judge grand jury investigation Win- Af- moved for a new which of the tax shelters. trick Kilpatrick granted. at 342. ter a trial the defendant ner See id. (I 1-2). of 18 U.S.C. R. crux cern defendants § would not be able conspiracy charged in Count I was the plead any subsequent a bar prosecu- creation mineral leases of false tax de- parties stipulated tion. The pro- that the for royalty ductions nonexistant advance grams which formed the basis of Counts payments investor-taxpayers. II and also served as foundation of charging paragraph of Count I is followed alleged fraud through Counts III XXVI. listing an extensive of “Means And (I 274-75). R. The court thus dismissed sixty-four Methods” and overt acts. (Id.) Moreover, those counts. the court II, Count funding which concerned the Bank, finding dismissed as to the research development of methanol knowledge and intent part on the Bank’s processes, charged conversion five sufficiently was not alleged. individual conspiracy defendants with a conspiracy alleged similar to the in Count I B in violation of 18 U.S.C. 371. The crux § conspiracy charged in Count II was An (1) indictment is sufficient if it creation of tax false deductions on no- contains the essential elements the of development nexistant research and pay- (2) fense intended to be charged, sufficient resulting ments from investments limit- ly apprises the accused of what he must be partnerships ed formed to fund research prepared against, (3) to defend enables development of methanol conversion plead judgment the accused to under the processes. any subsequent indictment as a bar to pros through charged III Counts X various ecution for the same offense. Russell v. 7206(2) defendants under 26 U.S.C. with § 749, 763-64, aiding assisting preparation 1038, 1046-47, (1962); 8 L.Ed.2d 240 presentation partnership of false and indi- Salazar, see also United States v. representa- vidual tax returns because of (10th Cir.1983), tions taxpayers made to various that the S.Ct, taxpayers were entitled to claim deductions royalty (Counts payments through III The test whether the indictment VI), development payments research and could have been made more definite and (Counts X), through VII when no such de- Rather, conviction, certain. permissible. allegedly ductions were standing indictment alone must contain charged Counts XI and XII defendants Kil- the elements of the offense intended to patrick willfully and O’Donnell with mak- charged and must be sufficient ing and subscribing false individual tax re- apprise the accused of the of nature in 7206(1). turns violation of 26 U.S.C. § offense so may adequately pre- that he XIII through charged Counts XXVI vari- pare And, conviction, a defense. after a ous defendants with substantive mail fraud the entire record of the case must be 1341, violations under 18 U.S.C. based § sufficient so as to enable the accused to alleged their defrauding of investors subsequently avail plea himself of the programs alleged connection with the jeopardy former if the need to do so Counts I and II. should ever arise. briefing After hearings, extensive States, 196, Clay v. 326 F.2d 198 the district court dismissed Counts I and II. (10th denied, Cir.1963), 1000, cert. First, the court dismissed the two counts 1930, (foot 84 (1964) S.Ct. allege for failure to lack economic sub- omitted); Wright, note 1 see also C. Feder underlying stance of the enterprises. Such 125, al Practice and Procedure at 364-65 § justification necessarily must rest on the (2d 1982). ed. view that such lack of economic substance is an essential element of a 371 in We hold that the indictment crime is sufficient- § Second, ly precise these requirements circumstances. meet the court dis- 7(c) missed the two counts because of its con- Constitution and Rule the Federal 1462 agree innocent We ensnare the as well as of Criminal Procedure.3

Rules States, culpable.” court that the basis of v. United 384 the district with Dennis served as the founda- 16 I and II also Counts U.S. (citations III alleged (1966) omitted). in Counts of the fraud tion first of the through Consideration XXVI. indictment read as However the should be urged in the briefs two counts alone interpreted in a whole and a common-sense Therefore, we direct our atten- submitted. Hajecate, manner. See United States v. I and II. Accord primarily to Counts tion (5th Cir.1982), F.2d 898 cert. de Arge, F.2d nied, U.S. (10th Cir.1969). Moore, (1983); L.Ed.2d see 8 J. also (2d 7.04, Moore’s Federal Practice H at 7-20 C 1985). charges ed. I that five of the Count Bank con individual defendants of the Essential elements (unlaw charged spired to defraud the United States offense objective) by ful false and claims ficticious if The court should dismiss an indictment means). (the of deductions Accord Schino the elements of the it does “contain[] (9th v. United Cir. Russell, charged.” to be offense intended 1953), at 1047. All the 98 L.Ed. 1087 contend, and court defendants the district allege the lack agreed, the failure II charges five of individual Count underlying of economic substance conspiracy defendants the same with but fatally programs the indictment rendered development payments. as to research and disagree. defective. We gist conspir- It states offense of acy adequately lays out charges all individual Count charges general jury’s and the factual cir- defrauding the Bank with defendants and underlying cumstances them. The fact “through the United States America that the defendants substance contest the false and claims of ficticious deductions charged of the does not render the offense (I 2). ‘payments’____” R. royalty advance indictment insufficient. See United States allegation in I of We believe the Count Crooks, Cir. “false and claims of deductions” ficticious 1986). We not feel lack of eco- do that a light entire is sufficient read when allegation required nomic substance Count. It is true that indictments under already alleging an indictment that the de- general conspir- language the broad conspired carefully fendants defraud the United acy statute “must be scrutinized charged through defendants be- each of the claims toas ficticious false development cause of the inherent in a crimi- of deductions for research and possibility, charge, net conspiracy payments.4 nal its wide 1038, 1983), denied, provides part The Sixth in Cir. 464 104 S.Ct. 3. Amendment cert. U.S. 698, (1984); prosecutions, 79 L.Ed.2d 164 all criminal the accused shall "[i]n enjoy 88, 89, Ingredient Technology right Corp., 698 F.2d 94 to be informed of the nature ... 1131, (2d Cir.), accusation;____” 7(c)(1) 462 103 U.S. S.Ct. and cause of the Rule 3111, not, (1983). They 77 L.Ed.2d 1366 do provides part: in however, sufficiency of an indict address be a The indictment or the information shall ment, they provide helpful principles nor do plain, and definite statement concise written sufficiency The of an on a here. indictment constituting of the offense essential facts allegations. to is tested motion dismiss its charged. 12(b)(2). points The Fed.R.Crim.P. defendants argue are to be tested at trial. See United States 4. The a which defendants cite number of cases 7, 363, Knox, 77, v. 396 83 n. 367 n. U.S. given consider a the economic substance of 7, Crooks, (1969); F.2d 804 at pivotal transaction to be to outcome of the cf. States, E.g., Lyon case. Co. v. 435 Frank United 561, 573, 577, 1291, 1298, 1300, holdings U.S. 55 We do feel that the in Frank (1978); Lyon see also States v. or the other cases show a fatal defect in United Mallas, (4th Cir.1985); allegation 762 United here for want of an the indictment (9th Carruth, underlying States v. of economic substance to the 699 F.2d 1021-22 lack funding Bank I nothing The further contends that Count more than a ‘check allege requisite knowledge fails to and kite’ swap'____” 7). and/or ‘check at {Id. says part, intent its which it is neces- charged It is further that the Bank “knew sary to state an under 18 offense U.S.C. this type ficticious, of ‘check kite’ was points “key charging” para- It to § and was conducted to create cheeks to graphs which list individual defend- various it appear make that P J Company & Coal ants, but which do not name the Bank. required 8). had made its loans.” at It {Id. alleged is also that the Bank “knew that P It is that “all the material axiomatic Company & J Coal not in actuality had facts and circumstances embraced in payments its required made and that the stated, be or definition offence must designed transaction was a the indictment be fiction will defective.” United create Hess, States v. the illusion P Company that & J Coal had investors____” Moreover, (1888). 31 L.Ed. 516 payments 9). made at {Id. by implication court cannot add an essen Furthermore, is it stated that the Bank tial element to the indictment. defend “[A conspired with the named defendants to cannot be convicted on the basis ant] “the pertaining have records of and by, perhaps facts not found not even Marlborough Investments, Ltd., as well as to, presented grand jury.” entities, moved, other altered, ... and/or Keith, (9th States v. 605 F.2d {Id.). destroyed.” (citations Cir.1979) omitted). Courts, how Both the charging initial paragraph and ever, any particular do not insist that word para the several “Means And Methods” in phrase stating or be an used essential graphs requisite aver knowledge or in element. See Garcia- part tent on the the Bank. Whether the Geronimo, Cir.1981). 663 F.2d exact term is “knowledge” used or “de requisite mental element for “agreed vised” to conceal” is not rele alleged 371 offense must the indict § vant; magic is no to the words “[t]here Stevens, ment. See United States v. allege guilty knowledge.” used ... (10th Cir.1979), cert. de States, Davis United nied, (10th Cir.1965) curiam). (per Moreover, charging para L.Ed.2d the same mental element re “[w]hen graph phrase in Count I uses “unlaw quired for each act ... an initial recital of fully, willfully, knowingly conspire ... Stevens, the element is sufficient.” to defraud the United States of America depicts F.2d at 1230. I Count the Bank as ascertainment, computation, ... in the as participant conspiracy an active in a sessment and collection reve defraud IRS its assessment and col nue____” (I Moreover, 1-2). R. allega lection income taxes. The essence of go charge tions in Count I further to alleged I Count is the concerted conduct on requisite knowledge and intent. Under the part of all the defendants. Thus Count portion “Means Method” Count charges I adequately conspiracy to de Bank, along alleges indictment that the fraud the United and with re defendants, with other named “devised quired specificity alleges culpable role participated and/or it a scheme to make Dennis, each defendants. appear had, required payments made____” 1843; 86 S.Ct. at see also fact, (Id. 6). been It is fur Turkish, United States v. 623 F.2d charged “agreed ther the to that Bank Cir.1980), (2nd denied, 771 further cert. 449 U.S. purported conceal the fact that the payments by (1981). P 101 Company J Coal S.Ct. & could not be made and the of that basis the 1978 And conclude that the we indictment suffi- charge transactions. The indictment does of resources to make a lack ments of "Means and Methods.” The indict- loans, payments and ficti- is ment thus sufficient as a of statement transactions,

tious and check kites and check charged. offenses therefor, swaps used in the Count and II state- 1464 judgment, use record requisite mental ele- the entire not charged the

ciently indictment, asserting merely Bank.5 in double part of the on the ment 725; Clay, 418 jeopardy. Arge, F.2d at 199; Wright, 326 see 1 C. also D 125, p. per- not supra at 365. We are § charges of the Notice to ade- suaded that indictment fails next whether the indict- must decide We lays quately protect the defendants. It out adequate to inform the defend- ment was necessary specificity facts as with to charges. of the ants times, places, persons, and en- the relevant charges against tities made each Allegations of the means Along with record in defendant. the entire acts be as the overt methods as well case, provide ade- this the indictment will sufficiency judging of the considered against quate safeguards jeopardy. double v. See United States conspiracy counts. (10th Cir.), Watson, 1341 II I and (1979). Counts II set out

L.Ed.2d Prosecutorial misconduct gra be to purporting the transactions A charges spec conspiracy vamen of the with names, dates, companies ificity. Relevant The provides Fifth Amendment involved, money of are and amounts shall be person held to answer a “[n]o listing An extensive of detail. averred crime, capital, or otherwise infamous un- and “Overt Acts” is and Methods” “Means presentment less on indictment of a a replete is Thus the indictment with made. Jury____” Grand acts on which the two particulars of the “grand inquest, body powers of with predicated. adequately It are counts investigation inquisition, scope of defendants and the charges individual inquiries whose is not limited narrow- definiteness, certainty, and with Bank with of ly questions propriety____” Blair v. as to particularity time reasonable States, U.S. S.Ct. United naming persons or entities place, involved 468, (1919). 63 L.Ed. function See, conspiracies. e.g., Wong in the Tai v. only the grand “was not to examine crimes, into the commission but stand (1927). 300, 301, 71 L.Ed. accused, prosecutor between the and the charge and to determine whether the

E testimony upon credible or was founded personal malice or ill will.” dictated jeopardy Preclusion of double Henkel, 43, 59, Hale U.S. Finally consider we must whether (1906). 50 L.Ed. 652 A adequately pro- indictment is sufficient to proceeding parte. is not but ex adversarial against jeopar- tect the double defendants Calandra, See United States dy. 338, 343-44, 613, 617-18, addressing question this We are mindful of the we L.Ed.2d oft-quoted Judge permitted are words Learned Hand note that defendants Moreover, focusing exclusively supplemental authority on the 5. The Bank cites as Golitschek, (2d recognize F.2d 195 fails omission the Bank one 1986), proposition Cir. the omission fundamental canons construction inter- list Bank from the indictment’s of defend indictment; is, preting an an indictment specific knowledge alleged vio ants with interpreted in read as a whole and must be lations of tax laws is fatal. Golitschek does canon, Employing manner. this common-sense indictment; sufficiency address the er, of an rath that the indictment sufficient- are convinced propriety case reviews the of certain ly charged requisite element on the mental concerning instructions the defendant’s part Bank. planned knowledge legality ship helicopters ments of from Iran. Id.

1465 torture, it be alone that would hard al misconduct is not a valid reason to “[s]ave tool tyranny find a more than dismiss an effective indictment. “An indictment ex may power of unlimited unchecked prosecutorial dismissed for miscon v. parte examination.” United States flagrant point duct which is that 567, Cir.1953) Remington, 208 F.2d (2d 573 significant infringement some there is on denied, 347 (L. Hand, J., dissenting), grand jury’s cert. ability to exercise inde 913, (1954). pendent 476, 98 1069 judgment.” Pino, 708 F.2d at U.S. 74 S.Ct. L.Ed. see also United (emphasis added); 530 separation powers The doctrine man Page, States v. 723, (10th 808 F.2d 726-27 judicial respect independence for the dates Cir.1987). grand jury. prosecutor of both the Rosa, United States v. De See 783 F.2d briefing argument Since we now — denied, 1401, (9th Cir.), cert. 1404 U.S. Supreme have the in Unit- opinion Court’s -, 3282, (1986); 106 S.Ct. Mechanik, 91 L.Ed.2d 571 ed v. 66, States 475 U.S. 106 McClintock, v. United States 938, 748 F.2d (1986), S.Ct. 89 L.Ed.2d 50 for which — 1278, Cir.1984), denied, (9th cert. 1283 appeals, we abated these and supplemental -, 75, U.S. 106 S.Ct. 88 L.Ed.2d 61 opinion briefs thereon and our in United (1985). Dismissals of indictments for pros Taylor, States v. 798 F.2d 1337 Cir. rarely are Mechanik, upheld. 1986). ecutorial misconduct the defendants moved Anderson, 602, v. before the verdict for dismissal the in- Pino, (10th Cir.1985); 606 ground dictment on the the simulta- 523, (10th Cir.1983); see F.2d also presence neous and examination of two Buchanan, 477, States v. United agents had violated Fed.R. (10th Cir.1986). 6(d) (i.e., an Dismissal of indict Crim.P. presence unauthorized be- prosecutorial ment misconduct rests the grand jury). at-, fore 475 U.S.

upon though closely two distinct related judge S.Ct. 940. The district took the may theories. A court on dismiss the bas motion under advisement until the conclu- trial, es of Fifth Amendment Due Process or Id. sion when he it. denied Jury Grand Clauses.6 The ---, constitutional 106 S.Ct. at 940-42. The concerns on focus the fairness to the de in part, dismissing Fourth Circuit reversed on remedying any fendant and harm to his per using se one count of indictment McClintock, See rights. basic 748 F.2d at Supreme dismissal rule. The Court re- 1284; Pino, 708 F.2d at 530-31. part, holding “[mjeasured versed in verdict, then, petit jury’s any error in may A court also dismiss an indictment grand jury proceeding connected with by relying its supervisory powers. See on charging decision beyond was harmless Pino, supervisory 708 F.2d at 530. The at-, Id. doubt.” reasonable theory powers premised is on the federal (footnote omitted). Moreover, at 942 ability proce courts’ inherent “formulate Court held: specifically required dural rules not by the diligent the defendants Congress.” or United Constitution [HJowever seeking have been in Hasting, v. discover the States ba- 6(d), sis claimed violation of Rule (1983). L.Ed.2d 96 petit jury’s supervisory powers theory verdict rendered focuses on harmless de any terring charging error illegality protecting judicial conceivable in McClintock, might tegrity. decision that have from 748 F.2d at 1285 flowed (citing case, Payner, States violation. In such a the societal a jury n. n. costs of retrial after verdict of However, (1980)). guilty far too justify the com are substantial prosecutori setting mon theme of cases simply aside verdict because pointed ground 6. We have out dismissal has been Clause as a constitutional for dismissal. Sears, Co., based on the Fifth Due Amendment Process See United. Roebuck (9th Cir.1983), supervisory power. Clause Pino, court’s n. 7 708 F.2d at and cases there cited. Jury Ninth Circuit has cited the Grand 1466 jury nificantly grand infringed grand jury’s error in the earlier the

of an independent ability judgment. to exercise proceedings. Pino, 708 F.2d at 530. Thus assum- even at-, at 943. 106 S.Ct. Id. misconduct, by ing a failure the defendant distinguished between Taylor In significant infringement to show a on the in Me- like those addressed technical errors ability of to exercise its the adversely threat- and errors which chanik independent charging in judgment the deci- right to fair- fundamental en a defendant’s sion will in the denial of a motion to result process. The former ness in the criminal inquiry “The relevant focuses on dismiss. rule an- category of falls within the error impact prosecutor’s of the the misconduct Mechanik, cate- in while the later nounced the jury’s impartiality, on the not on by a not rendered moot gory of error is degree prosecutor’s culpability.” of the De guilt. jury’s petit determination (citation omitted).7 Rosa, 783 at 1405 Taylor, 798 F.2d at in- Here the district court dismissed the and the light In of Mechanik whole, stating dictment as a the indict- opinions, in and analysis Taylor our Pino for ment was dismissed numerous viola- of dismissal we conclude that consideration 6(d); tions of Rule that the indictment was prosecutorial of an indictment because dismissed because of numerous violations a calls misconduct before 6(e); of Rule the indictment was not First, weighing factors. a review several for use of immuni- solely “pocket dismissed the ing court must determine whether ty” in of 18 6002 contravention U.S.C. §§ as should be characterized claimed errors 6003; and the indictment was not dis- affecting only procedural or and technical missed the Fifth solely violations of charging by the probable cause decision the Amendment; the indictment was not alleged errors grand jury, or whether solely knowing dismissed and delib- threatening as be characterized should presentation erate of misinformation right to fundamental fairness defendant’s jury; that the indictment was not If process. the errors can the criminal solely dismissed for violations of the Sixth procedural be characterized as violations Amendment; that the and indictment was affecting only probable charging cause the totality dismissed because of by grand jury, decision then the defend circumstances, including numerous vio- successfully challenged ant must have (e), 6(d) lations of Rule violations petit jury rendered a indictment before the 18 U.S.C. 6002 violations Mechanik, §§ guilty verdict. U.S. at- Amendments, Fifth and Sixth however, --, If, at 941-43. S.Ct. knowing presentation of misinformation to can threaten- the errors be characterized as grand jury, and the mistreatment of ing rights the defendant’s to fundamental witnesses. “go[ing] beyond question as fairness had evi- whether sufficient separate its dismissal for violations indictment, upon dence which to return an employed per Rule the district court se guilt by petit ...” a determination However, dismissing rule of dismissal. Taylor, will not moot the issue. test, totality the indictment under F.2d at 1340. employed explicated court the standard Pino,

Second, 708 F.2d at 530. The Government it must determined in fla contends that the district court’s factual prosecutor engaged whether the sig- grant findings legal as the conclusions egregious misconduct which well by the returned ”[a]n 7. The first is necessitated the Court held that indictment consideration Mechanik, Supreme 66, opinions jury, U.S. legally Court’s constituted unbiased (1986) prosecutor, if like an information drawn Hasting, United States 1974, U.S. face, enough to trial of the valid on its call for The second charge on merits. The Fifth Amendment proper third factors highlighted 359, of the concerns are because nothing requires more.” Id. at in Costello v. United omitted). (footnote (1956), 100 L.Ed. where Moreover, in error. court despite presumption drawn were federal review alleges that the indictment findings). correctness of state court grand product independent the of an Accordingly, as to trial the court’s crit- jury agree We and thus valid. substantial- rulings ical that the misconduct found ly argument and with the Government’s grand the jury tainted indictment with its therefore must reverse. see, illegality, e.g., F.Supp. 1349, 594 systematic

the abuses per- constituted overreaching, grand vasive the jury B usurped “was and that time-honored consti- vigorous defendants-appellees sullied,” principles tutional were 594 ly argue appropriate that the standard of 1352, F.Supp. rulings we the review de findings review for the court’s district novo, accept underlying while we the find- standard, clearly the under erroneous ings fact, excep- of historical some with they is not which contend reversal opinion. Rosa, tions noted in this See De warranted. Our review of whether the (“We 783 F.2d at 1404 review de novo a prosecutors engaged specific flagrant or district court’s of determination whether a grand egregious before misconduct the prosecutor’s alleged misconduct before a of questions involves historical fact grand jury warrants of dismissal the indict- governed clearly by the erroneous stan ). ment.” Campbell

dard. v. United 487, 1356, 83 L.Ed.2d 10 C (1963); City, Anderson v. Bessemer cf. 6(d) by Rule violations unauthorized presence before the (1985). course, Of find such The district found court that “the ings clearly fact are historical erroneous agents many appearances made joint [IRS] only “although when there is evidence grand jury, presence before the without the it, support reviewing the court on the en counsel, government and read tran tire evidence is left with the definite and scripts jurors.” F.Supp. at 1330 firm conviction that a mistake been has (citations omitted). Finding record committed.” City, Anderson Bessemer reading transcripts proceed tandem 470 U.S. at 105 S.Ct. at 1511 ings grand jury by first the IRS Here, however, the essentially facts are agents second violative of specifically admitted or found the dis 6(d), Fed.R.Crim.P. the district court found trict court and the law is undisputed. independent these violations to be one such instances issue is whether law for ground dismissal of the indictment. applied to the legal facts satisfies the stan at 1344. binding dard of conduct prosecutor. 6(d) provides: Rule Although question can be viewed May Attorneys Be Who Present. going fact, i.e., one to an ultimate whether government, the witness under exam- independent judgment ination, interpreters and, when needed infringed, has been we nevertheless purpose taking evidence, conclude that issue primarily involves stenographer operator or recording legal principles, calling consideration present be while the device for de appellate novo review the court. session, person no jury is but other Supre Ricketts, jurors may present while than (10th Cir.1986); Brown, Chaney v. cf. deliberating jury is or voting. Cir.1984), de nied, there agree was a violation of the We (1984) L.Ed.2d (holding clearly The record shows that the issue rule. that on agents appeared might whether withheld evidence af occasions IRS have several be- guilt punishment jury jointly reading fected determination fore the tran- (XIX 482-85; 633-34, XX process scripts. so that due R. R. open was denied is tioning, 709-11). also as discussed below. Thus the 692-93, The record shows dis- 6(d) at times would leave prosecutors missal for violations of Rule without that the allowing agents proceedings, more cannot stand. reading.8 continue Nevertheless, disagree with dis- D Mechanik, which

missal. We believe 6(e) Rule violations him, judge did not have before the district dismissal rule per the use of a se , forecloses The district court found that also of Rule 6: for violations attorneys violated Fed.R. Ap- accept 6(e) the Court of by improperly disclosing We cannot Crim.P. 6(d) of Rule peals’ that a violation grand materials, view using violat- requires reversal of a subse- automatic ing secrecy applicable rules of regardless of the lack of quent conviction jurors, interpreters, stenographers, record- Rule of Criminal Pro- prejudice. Federal ing operators, typists, device 52(a) provides that errors not af- cedure attorneys, persons to whom disclosure rights shall be dis- fecting substantial 6(e)(3)(A)(ii). is made under Rule apply no regarded. We see reason not F.Supp. The at 1331. court held: ‘errors, defects, irregu- provision to this 6(e) violations of Rule are inten- [W]here occurring before a larities or variances’ systematic, or reckless tional jury just applied as we have it to contempt sanction of is insufficient and occurring in the criminal trial such error dismissal of the indictment is warranted. Hasting, itself. States v. See United circumstances, Under such it is not nec- 1974, 1981, 461 U.S. S.Ct. [103 essary for the defendant to show that he (1983); Chapman v. 76 L.Ed.2d Cali- 96] prejudiced by has been the violations. In 21-24 fornia, 386 U.S. S.Ct. [87 case, however, showing the instant such (1967); 826-828, 17 L.Ed.2d 705] prejudice convincingly has been Lane, U.S. made. (1986)]. added). (emphasis Id. at 1348 Mechanik, at -, 475 U.S. 106 S.Ct. at 6(e) implements poli- Rule the traditional 942.9 cy cloaking grand jury proceedings. called to While here violations were Inc., Engineering, United States v. Sells the attention of court before trial so 418, 425, 3133, 3138, guilty that we do not have a verdict of Supreme Court holding preju- serve as a basis that no policy noted several reasons of se- occurred, charging dice in the decision we crecy: per nevertheless are convinced that a se First, preindictment proceedings if are 6(d) Rule rule of dismissal for violations as public, many prospective witnesses made applied in Pigna- earlier would hesitant to come forward volun- be tiello, (D.Colo. 254-55 against tarily, knowing that those whom 1984)(and therein), longer cases cited is no testify they would be aware of that testi- proper since Mechanik. We find no other Moreover, mony. ap- witnesses who showing circumstances that the violation of grand jury prejudice infringe- peared before would be the Rule resulted or likely testify fully frankly, jury’s independent ment on the func- less as grand jury's charging possibly 8. The record further shows that decision and is one affected brought agents placed two of the were not under oath attention of the trial court to the before 486-90; (XIX reading transcripts. Mechanik, R. of trial.” the commencement Nevertheless, 709-11). XX R. we do not believe at-, added) (emphasis 106 S.Ct. at 943 necessary the clarification of this issue is omitted). (footnote language We feel that this resolution of this case. open a determination whether dismis- did leave violation, raised, timely such a be sal for point supplemen- 9. The defendants out in their affecting prejudice justified if is shown expressed briefs that Court in tal Mechanik charging decision. opinion remedy may appro- "no as to what be 6(d) priate for a violation of Rule that has Here the court found open as well district reck they be to retribution would 6(e). systematic of Rule There also be less and violations to inducements. would as opinion as the relied those to be indicted Insofar court’s on risk that about 6(e) flee, per ground try to influence such Rule violations as a se or would would dismissal, against again disagree. We grand jurors we hold to vote individual premised Finally, by preserving that dismissal cannot such be indictment. 6(e) violations, proceedings, ipso we assure Rule secrecy of the facto. exoner- persons who are accused but The court did find addition held will ated caused prejudice, and will violations public ridicule. up to point discussing treat that the dismissal Petrol Douglas Oil Co. totality on the based circumstances. of California Northwest, Stops (1979) L.Ed.2d E ommitted). 6(e) (footnote operates Rule privilege access to the measure totality of misconduct before materials. dis The Government contends opinion The district court concluded its appropri indictment is not an missal of an stating: 6(e) In so remedy for a Rule violation. ate The indictment is dismissed because of relies on the max arguing, the Government totality of the the circumstances which unius alterius.” “expressio im est exclusio 6(d) numerous of Rule include violations knowing of provides Rule violation The “[a] (e), Fed.R.Crim.P., of and violations 18 contempt of may punished Rule 6 as 6002 of U.S.C. and violations the §§ 6(e)(2). The con Fed.R.Crim.P. court.” Fifth and Sixth Amendments Unit- permissive only. In the tempt language Constitution, knowing presen- ed States 6(e) by a usual case Rule can be enforced grand of misinformation to the tation contempt v. citation. See United States of jury and mistreatment witnesses. Cir.1978), Malatesta, (5th 583 753 employed F.Supp. at The court 594 1353. grounds, other 590 F.2d 1379 on modified (5th Cir.) (en totality of the test of the circumstances banc), denied, 444 U.S. cert. Pino, F.2d at to dismiss all twen (1979). L.Ed.2d The counts of indictment. dis ty-seven the 6(e) Nevertheless, violations of Rule findings premised missal was on Rule of where justify dismissal the indictment 6(d) (e) violated; systematically and were has been an abuse of the there “agents agents of that IRS were sworn Kabbaby, process. v. See grand jury;” summaries of evi the (11th Cir.1982) (per cu 672 F.2d granting misleading; that in dence were Malatesta, riam); How F.2d at 753. immunity improper; that call formal was ever, our inquiry the focus of must be solely ing appear seven witnesses process integrity grand jury’s of the the privilege Fifth their Amendment pro assert independence, on the rather than improper; jury that a witness was priety of the Government’s conduct. See mistreated; post- that there were 863; Kabbaby, 672 F.2d Cir.1981), indictment violations of Massiah United Phillips, 664 (1964).10 L.Ed.2d 73 L.Ed.2d F.Supp. judge Massiah Massiah violations. 1351. The district noted that the judge in- said that the "Massi- after the Nevertheless also violations definition occurred quali- returned, my general must defendants ah violations enter into dictment was and that prosecutor’s prejudice vio- assessments demonstrated no from these tative have lations; jury’s apparently performed conduct.” He thus that the Bank’s counsel had Id. litigation.” weighed "ably adequately throughout these as one element violations ground totality of the of the dismissal circumstances —one He therefore concluded that remedy inappropriate an dismissal indictment. indictment was Second, consider We first whether defendants we have held that the use petit challenged immunity,”13 the indictment before of “informal has been which guilty appears frequently upheld, It is entirely proper. rendered verdict. Anderson, successfully that all the named defendants (10th Cir.1985) (and twenty-six first moved dismiss the cases cited there in). Moreover, com- the defendants have counts of indictment before the failed to show how the use of immunity informal mencement trial. defendant prejudiced grand jury. See, e.g., Kilpatrick successfully moved id. at to dismiss (obstruction twenty-seventh count justice) petit jury after the had rendered a Third, findings the district court’s However, guilty judge verdict. district post-indictment violations of Massiah granted motion for new his trial. There- not possibly could have affected fore, Kilpa- will treat the defendant jury’s charging decision. Thus use of twenty-seventh trick’s claim as to the count such justify violations to dismissal was in along that of other with defendants.11 correct. Thus we need not decide which af- errors remaining findings have some only probable fected cause determina- what more force but are insufficient tion of the and which errors warrant dismissal the indictment. The implicated rights the defendants’ to funda- systematic district court found violations of mental fairness. The rationale for fore- 6(d), causing prejudice Rule to the defend closing review recited in is not Mechanik ants. 594 at 1353. After review applicable respect with to this issue. opinions, the district court the records of hearings, proceed persuaded by We are not ings, persuaded we are not that the defend given several reasons for the dismissal. ants were prejudiced by readings First, given summaries of evidence grand prior jury testimony by agents IRS grand jury the permissible are and often subsequent grand to the jury. We do not helpful, especially complicated cases unsupervised condone readings by IRS such as this. It must be remembered agents by unattended Government attor complicated this tax fraud case spanned however, neys; we are any unable to find twenty months and grand ju involved two infringement evidence the record of on Moreover, ries. prohib the district court is grand jury’s ability the to exercise its inde looking ited from the behind indictment pendent judgment.14 determine if it was on inadequate based or incompetent Costello, evidence. system- The district court further found 408; at at see 6(e). also United atic violations of Rule The court (10th Kysar, States v. attorneys found that the Government “re- Cir.1972).12 We cannot in proceed linquished these responsibility the IRS their ings issue, go general trial into the persons determine the to whom disclosure insufficiency proof, the or errors in the would made.” 594 F.Supp. at 1345. grand evidence before jury. The court also found agents that the IRS " every 11. We do not hold immunity’ can defendant 13. ‘Informal is contrasted with ‘stat- utory immunity,' alleging affecting requires attack an indictment which errors statute Department approval of a only Senior Justice probable Official cause determination judge. court district See 18 grand U.S.C. they successfully after for a move Anderson, §§ 6003.” United States v. new trial. That issue not now before us. (10th Cir.1985). n. 2 However, peculiar permit facts of this case Kilpatrick’s preju- us to consider claims without 14. areWe unable to find an instance in the party. any dice to agents IRS where the convened record grand jury sessions without Government attor- 12. We note that no claim was made nor did the Thus, being present. neys findings the district court’s attorneys court find that the Government used agents may that the IRS have convened perjured testimony, knowingly unknowingly, grand jury supported by sessions is not grand jury. before the record. record, to see support in the we fail how mate- grand jury to obtain manipulated the independence usurped grand jury’s litigation. Id. We for civil used rials to be way significant in such a as to amount to findings. support for these find do not Pino, 708 F.2d at grand jury abuse. See the extensive points to district court materials to IRS grand jury disclosure Further, prepara- do not see how the haphazard as the as well employees civil significant- of a catch-all disclosure list identifying those to tion method post hoc infringed grand jury’s independence. ly probative was made disclosure whom investigation lasted twen- note that the F.Supp. at 1343- We 6(e) violations. Rule and involved the efforts of two grounds ty for months cites as The court also Moreover, grand juries grand juries. possibility” that IRS “serious dismissal the complex tax fraud presented with manipulated the were improperly representatives experts aid of IRS was essential for civil liti- case. The materials grand jury to obtain understanding of the case. complete to a judge later found that purposes; the gation personnel jury’s The fact that some of IRS grand “confirms that record were, jury investigation assigned resources powers and extraordinary byis itself from the civil division just were and channeled part, initiated (footnote grand jury sufficient to show abuse. at 1332 purpose.” Id. such a nothing keep in Rule 6 to that the There is omitted). found also The court having from Department for the se- of Justice IRS disregard showed prosecutors 6(e); agents assigned to a inves- civil Rule crecy provisions of tigation. Engineering, in vio- See Sells had been disclosed jury information 3140; 428, 103 see also Coson v. 6(e); prosecutor and that lation of Rule imposed he when improper motives had Cir.1976) curiam). (per obligations secrecy

unauthorized jury witnesses. assisting employees Federal investigation prosecu 6(e)(3)(A)(ii) prosecutor in the permits

Rule disclosure, per tion of federal criminal violations are to make attorney Government order, occurring materials with mitted access court of matters without However, government prior permission. out court such to “such support personnel may not use the materi necessary by personnel as are deemed ... assisting except purposes als government to assist an attorney an attorneys enforce federal per in the government attorney for the Engineering, 463 U.S. duty to en criminal laws. Sells attorney’s formance of such 3140, 3147; 428, 442, 103 S.Ct. at see at law.” Fed.R.Crim.P. force federal criminal ¶ Moore, 6.05.[4][a], at por supra 8 J. at 6(e)(3)(A)(ii). point to also The defendants 6(e) proscription is on The Rule showing that disclosure 6-119.15 of the record tions grand jury material and not made to the use of the grand jury information was of Engineering, 463 on who obtains it. Sells personnel unknown numbers of civil IRS 3140; at see United grand jury 103 S.Ct. subpoenaed U.S. indexed all the who 476, 480, indexing Baggot, U.S. computer was States documents. The 3164, 3167, Colorado, 77 L.Ed.2d 785 in Air Force Base Lowry done at Furthermore, Utah, Dallas, the fact that the in Texas. As Ogden, in proba is sites, indictment no em returned an extensive there were to the latter two it not abused to 6(e) evidence that was disclosure tive ployees shown on the Rule purposes.16 for civil evidence Assuming allegation this finds obtain list. that — U.S. -, -, -, deciding Doe, civil actions in whether consultation 15. United States v. (1987), should be initiated. 95 L.Ed.2d 94 use, showing permissible on a limited illustrates need, jury grand can be used as by records particularized to Govern 16. Whether disclosure of proper- litigation can be Department in future civil attorneys of Jus evidence ly in the ment civil timely suppress in motion to Attorney’s on a decided a United States tice Civil Division and Office, (In re v. United States purposes a case. See Witte of such material for of that The court further found fif contemplates However “Fed.R.Crim.P. 6 by the prepared government teen letters Government the use of agents, such the defendants’ business agents, attorney and mailed to as I.R.S. to assist an identifying subject government the grand tar in of handling jury sociates his a gets investigation Anderson, violated the secre investigation.” 778 F.2d at 605. 6(e) cy obligations of Rule and should We need not decide here use lead whether the “grand jury agents” of the indictment. 594 dismissal violated the 6Rule see prohibition against fail to how such a presence 1334-35. We unauthorized 6(e) in of Rule should result dis or violation unauthorized is disclosure.18 There no There no sup showing by of the indictment. missal the defendants as to how this finding grand port jury’s for a that any prejudice record reveals actual to them judgment infringed any independent proceedings by was overreaching the Moreover, significant investiga grand way. usurping independence its by agents of through tion the IRS numerous inves this conduct. question tors the transactions here Moreover, we do not see how the proper though agents was even IRS rights invocation of Fifth by Amendment by scope limited the the interviews re grand jury witnesses should lead to dismis

vealing subject inquiry. matter sal of the indictment. The record shows Any flagrant was so misconduct not privilege once the was invoked the independence grand jury’s infring attorneys questioning. ceased ed. Thibadeau, See United States v. 671 F.2d agree Finally, (2d Cir.1982). with the district privilege ac “[T]he finding prosecutor imposed court’s grand corded one called before a is the obligations secrecy unauthorized give two election to testimony refuse which jury. might witnesses before Id. at tend to show he had committed a Although 1335-36. the admonition to designed crime. It is not to effect prohi contrary to the against witnesses was dictates of bition inquiry by investigative an 6(e)(2), prejudice body.” Rule no was shown in Cefalu, 338 F.2d admonition, (7th Cir.1964). connection with the see United The fact that sev (10th Radetsky, planned eral witnesses to invoke their Fifth Cir.), privilege Amendment if called (1976), and the admonition jury cannot be transformed into a cannot prohibition against serve as basis for dismissal of inquiry. privi Once the indictment. lege record, was invoked on the prose questioning.19 cutors discontinued all

The district court found that “agents use of the grand jury” title Finally, the district court found agents IRS jury.17 prosecutor’s mislead mistreatment Jury Subpoena (1985) Grand. ("agent Fred R. Witte Center 3), 1976). Glass No. Cir. jury” prosecutor’s request sworn foreman at misconduct) prosecutorial with United beginning indicting 17. At the of work of the Cir.1985), Claiborne, 8, 1981, grand jury July prosecutor on the asked — U.S. -, denied, 1636, rt. ce Raybin Jury for Mr. to be sworn in as a Grand (1986) (use “grand jury of agent, saying very "very, this meant it was clear” agents” proper). agent that when looked at the evidence it was agent so not much an IRS but as the Grand During grand jury investigation, ju- 19. the Jury’s agent. one The oath administered at that grand jury might ror secrecy indicated that the also consider time concerning referred to to be maintained evidence, subject the fact that a witness the the to instructions asserted Fifth Amend- (G.J. Tr., by judge. (G.J. privilege against the Foreman or a federal ment Tr., self-incrimination. 8, 1981, A.M., Colloquoy, 2-3). July 3, 1982, A.M., 7.) 9:11 at Colloquy, May 9:15 at A Agent (G.J. Mendrop given was a similar oath. prosecutor promptly grand jury the cautioned Tr., 8, 1981, P.M., Colloquy, July 2). at 12:14 that it was not to consider the assertion of the privilege. Jones, Compare 994, 18. 766 F.2d — (6th Cir.), U.S. -, focusing court prejudiced primarily to the district erred on favorable defense witness F.Supp. at 1343. We defendants. propriety the the the of Government's conduct witness, an of the mistreatment the find possible than on rather interference with matters, The unjustifiable. on expert tax integrity independence the and the during recess but occurred mistreatment grand jury. “Dismissal an indictment hearing grand jurors, of several within by after returned deliberation witnesses, attorneys. district The and Anderson, very is a drastic action.” however, entirely opinion, focuses court’s only at 606. It can be warranted prosecutor not on and on the conduct complained signifi- when misconduct to resulting prejudice the defendants. any infringes grand cantly jury’s ability “on the have the defendants conclude that We Pino, judgment.” independent to exercise grand inde- jury’s to how the failed show at pendence breached. The defendants put argue hard to this incident are totality We conclude that twenty-month investigation the course of a conduct before the did not war grand jury’s independence. threatened dismissal rant of the indictment. The accu Pino, See F.2d at 530. by mulation of misconduct presumption regulari There is a attorneys significantly infringe did not “on grand ty jury proceedings. attaches grand jury’s ability indepen to exercise Hamling v. 87, 139 Pino, judgment.” dent 708 F.2d at 530. 23, 2887, 23, 41 L.Ed.2d n. n. Accordingly we hold that the district court failed to Here the defendants in its grand erred conclusions overcoming pre their sustain burden usurped jury’s function was and that sumption. grand jury transcripts The illegality, indictment was tainted with active, independent, question show an and the de 1349, 1352, following at record, ing grand jury, familiar with the novo review feel we we should conduct. thoughtfully questioned, rather one that II-B, supra. per Part We also are sugges submitted to statements and than The if attorneys.20 suaded that those determinations are ul- tions the Government grand jury transcripts just ber that Biondin and I that: It is evident from Mr. are you prosecutors frequently we have reminded the advocates. And what said to jury independence duty past say you today and is that of an of its will advocate, you intro- should we its assessment of the evidence consider what make own only light say prosecutor say specifically A ad- of what we makes duced before it. logical? jury is it it rational? that "these men are entitled sense: is it based vised is, impartial you fair it then should consider to a deliberation evidence? If 1981, Tr., 5, (G.J. Aug. argument; you reject Jury.” Colloquy, it Grand if and find it is P.M., 4). prosecutor reject point, further stated then 4:11 at weak at some it. 30, Tr., 1982, A.M., grand jury: (G.J. Sept. Colloquy, at 9:07 5). ques- again, any you Once at time have a transcripts portray an active tion, means, my either or ask all ask me grand jury. questioning During the investi agents. clarify you try I’ll it. told Like gation grand jury vigorously questioned day, the first don’t be satisfied with what Tr., (see, July prosecutors e.g., Colloquy, G.J. you. Make the doc- tell Push us. sure that 9, 12, 13, 17; Tr., A.M., 8:39 at G.J. Collo there uments there and the evidence is are 5, 1981, P.M., 2-4) Aug. quy, at IRS 4:11 and the testimony you the there, is there. don’t think If Tr., (see, e.g., agents Raybin, July G.J. get if I it better to it is tell me and can’t A.M., 16-23, 33; Tr., 13-14, satisfaction, at G.J. Men- my 9:11 drop, your failing you, to then I’m P.M., 3-7; Tr., Aug. at 4:04 G.J. duty. A.M., 14-15, A.M., Sept. Tr., Mendrop, 9:32 at (GJ. Sept. Colloquy, 10:15 47-49, 54; Tr., 20-22, 43-44, Raybin, G.J. 2). P.M., Moreover, 20-21). Furthermore, Sept. just prosecutors 2:32 before the questioned juror whether the evidence one asked the to return an indictment charge presented defendants, one of the they was sufficient the roles of the Executive Branch reiterated Lerner, vigor secretary Ms. and jury: the and the advocates, interrogated point. ously prosecutor that we on Mr. and I are and Blondín A.M., 5-11). Tr., Thus, (G.J. Sept. you 8:52 paid remem- are should advocates. fact-findings, they clearly are erro- have tímate not established a different rule. light of the record.21 Anderson opinion Judge neous Kane is clear that his dismissal on was based an stated, we conclude that the accumu- As supervisory exercise powers. by lation of misconduct the Government (D.Colo.1988) (“It 232-33 significantly infringe attorneys not on did well within supervisory a district court’s ability indepen- grand jury’s to exercise powers grand jury’s to that in- insure infringe- such judgment. dent Without tegrity independent body an is not de- ment, remedy drastic dismissal of stroyed public Judge eye”), and the the indictment is unwarranted. We cannot concluded that Government conduct agree remedy used that can be without significantly there impaired the showing theory on such a exercise of jury’s ability independent judg- to exercise powers, dissent supervisory as the con- reversed, Id. at 234. We support ment. concluding cludes. Our decisions do not such view, Supreme grand jury’s a and those of the Court that the independence was not explained get 21. We earlier our questions have reasons for before we can answers to that we concluding showing justifying propound that no Jury. dismissal before the Grand of the indictment was made in connection with option, give The other we a can witness im- calling pro- of witnesses who asserted their munity; granted immunity, and once he is we against quote We tection self-incrimination. be- compel testify, can privi- to him and he has no colloquy low the cited the dissent which lege. shows discussion and reasons some for call- Targets investigation, immunity. no ing the witnesses: got question you. a JUROR: I for You asked you question. I to right, guess, JUROR: want ask a I him who all had the I to see these files, files; supposed any- we know that are not to think pleaded to obtain these he the Fifth. Amendment; thing they when take incriminating the Fifth How can be that him? to human, being we do. may MR. people BLONDIN: There other your them, MR. BLONDIN: Strike that out of mind. that have to access that we don’t know may You cannot assume— about. not He have known answer and He, you just case, speculate why JUROR: Can may on he took the Fifth. in this have wouldn’t answer for us? gets taken the on Fifth advise of counsel. That reasons, speculation, MR. questions BLONDIN: There are various into and I can’t. The I speculate you. and I can’t for going go asked of I him—and was to in a right, especially target go through He has a piece by piece, since he is a it but I could more— investigation, right any way right. not to answer see there is no we could do that. All shortcut, questions truthful just answer which I to tend tried to laid the foundation that records, to incriminate him. they these were business were authen- Now, speculate I cannot can nor the Grand tic business records that could be admissible. Jurors, room, anybody speculate problem in the hearing as to we had in the You, why. Pettingill, Judge Carrigan foreign corporations reason as well as Mr. have on the you privilege; any compelling production that can for assert it reason: of those records was that counsel, reasons, your maybe objection on advise of your own there was made defense counsel as somebody you gave admissibility aunt or corporate else advice on to the of certain records. it; going speculate get it. are subpoenaed We to on We had Mr. O’Donnell Mr. Kil- it, nothing patrick, rid has it to pro- whatsoever do with had asked we their counsel to your records, deliberations. somebody vide a custodian begin identify We even cannot to think of reasons could that these were business records. very legitimate They that. could provided they There be some rea- a witness that assured us records, identify sons for him to assert say they the Fifth Amendment. could that would specter Jury investigation— corporation corporate Just the of a Grand does not were have a —a you easy privilege. right. JUROR: I’m sure that’s and for Fifth Amendment All There Supreme us because we— are a number of Court cases that have issue, options MR. BLONDIN: two corporation There are resolved provide has to records, identify what we do can when a witness takes the Fifth. custodian right, up compel testimony part govern- All it take his that’s our foundation that — testimony, go Judge; Judge says, lay her prosecutor ment or the had to before the privileged, you "That’s not don’t have a Fifth records could come in as in a evidence trial. privilege, you testify. They objected consequence Amendment Give us an- to it. As a of that said, in, right, calling swers.” people we we are “All "No, point says, they going identify At that the witness are am not these business going testify." why go go again, through Then court records.” And that’s we have to contempt; hold him in and it doesn't end this. there. A.M., Tr., appellate procedure (G.J. Colloquy, There is an elaborate Jan. 9:09 go through 22-25). get we have to the issue resolved

1475 citing supervisory powers Pino. favors an exercise infringed, to have been shown 605, Anderson, 604, 606. Our regard 778 F.2d indictments dismiss without dissent, is ar- quoted by the opinion, Pino jury’s functions were whether does point. on Pino guably unclear (Brennan, infringed. plurality opinion powers supervisory exercise of discuss the Marshall, Stevens, JJ.), Blackmun held separate that on in- from statement in a society’s pros interest in disinterested judgment. jury’s fringement adequately protected would not ecution be opinion full in the discussion However error analysis, harmless but there was holding justi- is a dismissal no shows opinion majority expressing no that view infringe- significant “some fied without Moreover the circumstances that case. exercise grand jury’s ability to ment on the special involved circumstances Young Pino, 708 F.2d at independent judgment.” counsel, appointment of private where hav omitted). requirement (citations That 530 client, ing professional obligations his following citations immediately is stated prosecution contempt pro of a criminal may be statement that “dismissal and a ceeding special problems raised conflicts Due Pro- Fifth Amendment on the based nature. an unusual upon court’s inherent or cess Clause event, any powers.” supervisory Id. remain the dras We convinced that requirement of makes clear the Anderson indictment, remedy tic of dismissal of an indepen- infringement grand jury’s premised process super on or whether due dence. visory powers theories, cannot be exercised Supreme read Court’s do not We significant infringement on the without a opening door to dismissals opinions as jury’s ability independent exercise power notions without supervisory clearly in judgment.22 We are instructed infringement showing on the 499, v. 461 Hasting, United States U.S. this. McNabb jury’s functions cases like 1974, 509, 1980, 103 S.Ct. 76 L.Ed.2d 96 States, 332, 63 S.Ct. 318 U.S. v. United (1983), harmless, ignore errors that are 608, (1943), by the L.Ed. 819 relied on 87 including most constitutional violations.23 dissent, unnecessary to say did that it was Russell, Finally, constitutional issue and reversed reach the 1637, 1644, 93 S.Ct. 36 L.Ed.2d judicial over supervision an exercise of (1973), dismissal, cautioning reversed a 366 justice, “es the administration criminal against a foot” veto over law “chancellor’s tablishing maintaining civilized stan practices court dis enforcement of which a procedure Id. at dards of and evidence.” approves. 340, 63 at 613. this was S.Ct. While reversal, opinion stated basis ruling way suggests should no that such III. regard made to the harmless without court dis- judgment the district Young rule. error See Fed.R.Crim.P. — missing the indictment is reversed and U.S. -, v. United remanded to rein-

2124, (1987), cases are with directions also furnishes 95 for a the Court state all counts the indictment. no basis conclusion that -, (no Rosa, (1986) F.2d United v. De L.Ed.2d 22. Accord States — denied, (9th Cir.), prejudice required). U.S. 1406-07 cert. -, (de (1986) 91 L.Ed.2d 571 prejudice will pointed fendant must show before court is an The Court out that deterrence inappropriate dismiss indictment on either the constitutional atten- basis for reversal where an grounds); supervisory v. United States where means uated violation involved "and Grif denied, (6th Cir.), narrowly objectionable fith, cert. tailored to deter more — U.S. -, (1985) prosecutorial conduct 106S.Ct. 88 L.Ed.2d are available.” McKenzie, (same); Court re- 103 S.Ct. at 1979. And the Cir.), denied, remedy specifically to drastic cert. U.S. ferred such a less (1982) (same). improper attorney Contra a Government made where (3d grand jury. Rosenfield, arguments at 506 n. Id. — Cir.1985) curiam) (per S.Ct. at 1979 n. 5. SEYMOUR, Judge, dissenting. any Circuit prejudice arising that presen- from this grand jury tation to the was eliminated respectfully dissent from the I view prosecutor’s grand admonition. The prejudice majority to defend- jurors previously questioned had prose- can ant must be shown a court cutors on the use of privilege, displayed powers supervisory to exercise its dismiss invocation, frustration over its and dis- egregious an indictment on the basis of pursuing cussed the matter with the dis- prosecutorial misconduct. I would affirm. rec., trict court test privilege. See beyond argument It is that the Govern- grand Remarks jury, at Jan. in this ment’s conduct case was out- 22-29. Significantly, juror one stat- rageous. set in As out two district court “I ed: supposed know that we are not opinions, Kilpatrick, anything think they when the Fifth take (D.Colo.1984), F.Supp. and United Amendment; human, being we do.” at Id Kilpatrick, F.Supp. 22. In admission, view this candid (D.Colo.1983),the record contains evidence potential prejudice arising from seven constituting laundry list of impro- serious witnesses’ refusal for fear of incrimination prieties, majority most of which the neither to discuss their very involvement in the disputes nor condones. Government offi- upon matters which the repeatedly 6(d) jury cials violated Fed.R.Crim.P. was by presenting asked indict two witnesses to the cannot be denied. Unit- Cf. at maj. op. Coppola, the same time. See ed at 1467 States v. 479 F.2d -68, (10th Cir.1973) routinely (condemning ef- conscious secrecy provisions flouted the of Fed.R. fort evidentiary Government to derive 6(e). First, it improperly Crim.P. used from value adverse arising inference from grand jury information civil tax audits invoking privilege). Consequently, this taxpayers tax who invested shelters court has held improper that it is issue, 1471; second, maj. op. at see at it Government to call knowing a witness improperly identity disclosed the he will assert his Fifth privi- Amendment grand jury targets people who were not id.; lege. See see also United States v. but witnesses with whom the Crawford, Cir. targets professional had business rela- 1983). tionships, 1472; third, see id. at it After hearings numerous before two tri- improperly secrecy swore to two grand judges, al judges both found that formerly represent- witnesses who had pervasive Government’s misconduct targets proceedings ed the in S.E.C. involv- alarming evinced deliberate and dis- ing shelters, the same tax see id. at 1472. regard imposed of standards by the Feder- During attorney a recess a Government Rules, al Department guidelines, Justice tax expert, mistreated a had who testified considerations, ethical and civilized behav- before the favorably to the tar- ior. gets, by shouting insults at and intimidat- “The numerous abuses and violations of ing him presence jurors, in the of grand principles rules and witnesses, constitutional attorneys.1 other must at id. particularly be considered 1472-73. serious be- hearings cause the admissions these addition, attorney the Government that, part, for the most the activity was paraded seven witnesses before the knowingly undertaken purposeful- jury knowing they would invoke their ly.” Fifth privilege Amendment to refuse to any answer questions. agree I Kilpatrick, F.Supp. cannot with 1352. Based on the majority’s finding conclusion in footnote its that the Government’s conduct agent’s special hearsay district court also found improper that the use of was not agents se, against who summarized the maj. evidence per op. majority see does defendant Bank of Nova Scotia mischaracter- allegation not address the serious that the hear- Kilpatrick, ized this evidence. See say misleading. itself was inaccurate Although agree majority at 1339-40. with intentional, credibility case, includes “In the which view we take of the how- ever, lightly unnecessary

assessments this court dis- it becomes to reach regard, pressed upon the district court found that “the issue Constitutional us. For, departures prosecutors power substantial while the of this Court to this case from notions of fair- undo convictions in courts established state is limited ness, law, clearly rules of from articulated to the enforcement of those ‘fundamental procedure and, in- specific principles liberty juctice; from rules of Hebert Louisiana, Department from the of Justice’s own deed v. 272 U.S. [47 103, 104, operating (1926)], manual and directives constitute 71 L.Ed. 270 which are overreaching.” systematic pervasive by Amendment, secured the Fourteenth scope The reviewing power Id. court concluded that the cumula- of our over brought tive effect of the Government’s conduct convictions here from the feder- prevented undertaking from al courts is not confined to ascertainment independent action. Id. at 1353. validity. super- Constitutional Judicial vision of the administration of criminal Although acknowledging im- most of the justice implies in the federal courts proprieties opin- set out in the lower court duty establishing maintaining civi- ions, majority agree does not with lized procedure standards of and evi- district court that the Government’s actions dence. Such standards are not satisfied impaired jury’s ability to exercise merely by observance of those minimal independent judgment, its which is the safeguards historic securing by trial must met the in- standard that be before reason which are summarized as ‘due dictment dismissed under the Fifth be process of law’ and below which we Significantly, majority Amendment. reach is really what trial force.” also concludes that the sanction of dismiss- ing proper the indictment is not a exercise Id. at 63 S.Ct. at 613. supervisory power of a district court’s un- In a recent supervisory consideration of met, is, less the same standard is powers, pur- the Court set out the three legally showing unless there is a sufficient 1) poses underlying remedy their use: that the misconduct Government’s adverse- 2) recognized rights; the violation of ly grand jury’s independence. affected the preserve integrity judicial pro- Putting impact aside whether the cess; 3) illegal to deter conduct. See prosecutors’ behavior on the v. Hasting, United States decision-making process of this evaluated, realistically can I do not be- pointed The Court out that secur- showing lieve that such a is prerequisite a ing objectives by these the exercise of su- pre-trial dismissal of an indictment pervisory power may frustrate the societal

under a supervisory power. court’s judicial concern for the conservation of re-

In McNabb v. sources prompt United and the administration of (1943), justice 87 L.Ed. 819 in embodied the harmless error rule. Supreme employ Court did not a harmless 1980. See id. S.Ct. at analysis considering error contemplating whether the Court held that a court supervisory power power invocation of its supervisory exercise of its must appropriate. contrary, weigh To the against Court the benefits to be obtained unnecessary countervailing found it to determine whether the cost to the interest 506-07, prejudiced by the defendants had finality. been a See id. at 103 S.Ct. at exercising weight given constitutional violation its to be the harm- supervisory powers obviously to reverse a conviction. lessness of the error increases in doing, significance balancing so Justice Frankfurter said for is done when the Implicit Court: trial after and conviction.2 Mechanik, Although Supreme Court’s decision to reverse the auto- (1986), 6(d) did not matic dismissal of an indictment for a Rule supervisory power, premised upon importance address the exercise of violation was guidance recog- (citation omitted) issue is its (emphasis Court’s this Id. at 531 add- although nition the harmlessness of ed). separation Our of these distinct bases is an alleged misconduct element to be dismissing an indictment indicates that result, against the desired it balanced is Pino should not be hold read to that the always dispositive. If the exercise of finding prejudice support needed per precluded se supervisory power were process grounds dismissal on due is also finding prejudice, of lack of a bal- required powers supervisory when are in- ancing process necessary. would never be voked. Pino, opinion Our v. citing subsequent Our cases Pino to re- (10th Cir.1983), only 708 F.2d 523 was filed quire showing prejudice simply do not days Hasting three does not after cite indicate dismissing which basis for the in- Moreover, agree I cannot decision. dictment was issue. See United States majority’s reading with of Pino es- Page, Cir.1987); prosecutorial tablish that misconduct must Buchanan, grand be jury’s shown to have affected the (10th Cir.1986); 487 United States v. independence supervisory power can Anderson, 604-05, 606 invoked, pretrial be in particularly a set- Cir.1985).3 It is also important empha- to Pino, ting. In the defendant contended that, contrary case, size present to the Has- prosecutor’s unfairly that the behavior had ting, Pino, Page, and Buchanan are all infringed grand jury’s independent on the cases in argument which the to dismiss the judgment. The district court found no ef- conviction, indictment was made after a fect, appealed and the after defendant his time at the finality which interest in very is pointed out conviction. This court that dis- the substantial and harmlessness of missal the of an indictment based ei- error ther is therefore weighted heavily.4 on the Fifth Amendment Due Process Moreover, Clause or the court’s inherent in supervisory Page: we said powers. distinguished at See id. 530. We clearly is “This not a case involving however, inquiries, those two between stat- abuse, faith, or bad vindictiveness. In- ing: prosecutor’s stead the failure to correct persuaded “We are not that the cir- Agent was, worst, testimony West’s at a cumstances as whole show such fla- oversight. an The extraordinary remedy grant misconduct jury that the of of dismissal the indictment is not was or in sig- overreached deceived some called for here.” prosecutor’s nificant or way, that the 808 F.2d at 727. significantly infringed conduct on the sum, I am convinced that neither the ability to exercise its Supreme in opinions Court nor our Hasting independent judgment. are also We not in Pino its progeny establish that a convinced circumstances here exercising court is barred from supervi- its

justify supervi- exercise the court’s sory powers sory power to dismiss an protect prior indictment integrity to judicial process to by dismissing showing trial absent miscon- indictment.’’ duct jury’s affected charging placed finality Anderson, upon Court is F.Supp. when an indictment United States v. 230- technical, dismissed for harmless error (D.Wyo.1983). opinion Anderson, Our in after trial. See id. 106 S.Ct. at 942-43. supervi- which does not refer to the exercise of sory powers, only concludes that "the record in agree majority 3. cannot with that our support instant does case not the conclu- opinion require- in Anderson makes clear sions of the trial court which formed the basis prejudice. opinion ment of The district court in for the dismissal." 778 F.2d at 606. process to Anderson refers the denial of due as a indictment, basis for its decision to dismiss the Although in Anderson this court did reverse a by both its own discussion of the constitutional trial, granted that, prior dismissal to held by function of the its references here, contrary to the conclusion discussion of that none of constitutional function Dionisio, 1, 16-17, challenged improper. United States v. conduct was 764, 772-73, S.Ct. See Kilpatrick, render requirement e.g., would decision. Such a supports power superfluous clearly The evidence this supervisory court’s credibili- ty affect determination. The misconduct does record because evinces a jury’s independence is a constitution- Government’s conduct determina- simply ignore the Fifth tion to or remediable under circumvent al violation governing grand proceed- standards Amendment. ings when do so would enhance the split on need to show The circuits are presentation of its case. Under cir- these Holloway, prejudice. cumstances, the district court within (11th Cir.1985) (noting F.2d 658-59 exercising its supervisory its discretion issue), authority de sides cert. both protect integrity judi- power — -, nied, conduct, process illegal deter cial see (1986). The Third has Circuit Hasting, U.S. at require specifically rejected prejudice particularly finality when the interest the chal ment when there is “evidence that supported had not been a conviction. something other than lenged activity was it Finally, important point sinister an isolated incident unmotivated out that power type supervisory of misconduct chal the exercise of in this ends lenged separation pow fla does not has become ‘entrenched and case violate by encroaching prosecutor’s ers on the grant’ the circuit.” United States au Cir.1985) (3rd prosecutor may A thority. sep Rosenfield, 780 invoke curiam) powers (per (quoting United v. Ser aration avoid the conse (3rd Cir.1979)), ubo, of his quences disregard ju intentional — U.S. -, denied, specifically S.Ct. dicial standards directed to (1986). Supreme Contra States ward his conduct. The Court re L.Ed.2d 709 Cir.), (6th held cently that a court exercise its Griffith, v. — U.S. -, denied, supervisory authority appoint special cert. 106 S.Ct. a (1985); notwithstanding prosecutor argument Cir.), McKenzie, usurp prosecutor’s that to do so would — Young 74 function. See v. United U.S. -, (1982). This com L.Ed.2d 604 standard L.Ed.2d 740 supervisory “The ports Supreme with Court’s indication exercise au showing prejudice required thority especially appropriate is in the de that a is not procedures of re em pattern reveals “a termination to be when record orders, curring ployed v. Mor courts to enforce their violations.” United States rison, subject directly n. concerns function (1981). Further, at---, ing judiciary.” Id. n. Hasting holding equally This such a test is not inconsistent with is here, when, as a court exercises opinions, particularly applicable and our circuit and is here, when, authority to supervisory as is its enforce appropriate a dismissal Rules, prior directly are also con granted to trial.5 Criminal which functioning judicial cerned with the Although recognize supervisory I process. I powers sparingly, should be exercised finding of prejudice apply the Third Circuit criteria conclude that would required defendant should not be uphold this case district court’s prosecutorial hearing, evidentiary dismiss an indictment when dismissal. After an ongo- during jury proceed- here found that the misconduct the district court Prejudice integri- misconduct, pervaded ings pervasive. is ing the investi- which judicial should be suffi- gation presentation ty process its the case and exercise faith cient. Because the lower court’s jury, was motivated bad See, supported by strategic supervisory power “improper purpose[s]”. of its granted trial. recognizes, Kilpatrick a new majority is in fendant because he was 5. As the maj. op. essentially position pretrial de- the same law, I affirm the the facts and would indictment.

dismissal of the BACA, Lorenzo

Juan

Petitioner-Appellant, SULLIVAN, al.,

George et E.

Respondents-Appellees.

No. 85-1654. Appeals,

United States Court of

Tenth Circuit. 29, 1987.

June Macy,

Edwin Asst. Federal Public De- fender, Albuquerque, N.M., petitioner- appellant. Michel, Gen.,

Kim Atty. Kaufman Asst. N.M., Fe, respondents-appellees. Santa SEYMOUR, Before MOORE and TACHA, Judges. Circuit SEYMOUR, Judge. Circuit examining appel- After briefs record, panel three-judge late this has de- unanimously argument termined that oral would not be material assistance in the appeal. determination this See Fed.R. 34(a); App.P. Tenth Cir. R. 34.1.8. The cause is therefore ordered submitted with- argument. out oral Juan Lorenzo Baca was convicted in degree first state court of murder and sen- imprisonment. appeals tenced to life He court dismissing from a district order his corpus petition for writ habeas under 28 U.S.C. 2254 Baca contends that § (1) photographic proce- identification (2) impermissibly suggestive, dure was juror’s failure disclose certain informa- deprived tion at voir dire defendant of a

Case Details

Case Name: United States v. William A. Kilpatrick, Declan J. O'donnell, Sheila C. Lerner, the Bank of Nova Scotia, Michael Alberga, C.S. Gill, and C.M. Smith

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 19, 1987

Citation: 821 F.2d 1456

Docket Number: 83-1363-1369, 84-2481-2487

Court Abbreviation: 10th Cir.