United States v. Andres Soberon, Armando Cartaya, Franklin Pena

929 F.2d 935

• Court: Court of Appeals for the Third Circuit
• Decided: April 12, 1991
• Docket: 90-3244
• Status: Published

Opinions

OPINION OF THE COURT

COWEN, Circuit Judge.

This criminal appeal concerns the propriety of the district court dismissing two counts of an indictment against three defendants charged in a conspiracy to distribute cocaine. The district court dismissed the indictment because it concluded that a government agent committed perjury at the grand jury hearing in which the indictment was obtained. The district court found that use of allegedly perjurious testimony in obtaining the indictment amounted to prosecutorial misconduct and warranted dismissal of the indictment.

We find that the district court erred in dismissing the charges against one defendant on the basis of prosecutorial misconduct without a finding that the defendant had been prejudiced. We will, therefore, reverse the dismissal of charges against that defendant. Secondly, we find that the district court’s conclusion that the government agent committed perjury before the grand jury and that the government committed prosecutorial misconduct by seeking an indictment based on this testimony was clearly erroneous. Accordingly, we will reverse the dismissal of the indictment against the second defendant. Finally, we will reverse the dismissal of the charges against the remaining defendant because he was not before the court at the time.

I.

On August 14,1988, Carrie Abraham and Daniel Bruno were arrested at the Greater Pittsburgh International Airport and charged with possessing with intent to distribute two kilograms of cocaine. The police found the cocaine in a suitcase Abraham had transported from Florida. As part of a plea agreement, Bruno and Abraham agreed to assist the Federal Bureau of Investigation (“F.B.I.”) in arranging to buy cocaine from their sources.

After a series of preliminary telephone calls, Bruno and Abraham arranged a “buy.” On May 2, 1989, Bruno and several F.B.I. agents traveled to Florida where Bruno was supposed to meet Cartaya to buy the cocaine. Once in Florida, Bruno, Special Agent Linda Lee (posing as Bruno’s girlfriend), and Special Agent Peter McCann checked into adjoining hotel rooms. The FBI agents wired Bruno’s room so that they could record conversations that took place there. On May 3, Bruno called Cartaya to make the buy. But, Bruno was unable to reach him so he called Soberon. Soberon told Bruno that he would send a “buddy” to his hotel room to pick up his “receipts” and that his friend would return a couple of hours after obtaining the “receipts.” App. at 1112-13. Soberon’s “buddy” turned out to be Franklin Pena, the third defendant in this case.

Later that day, defendant Pena arrived at Bruno’s hotel room where Bruno and Agent Lee were waiting. Agent McCann was in the adjoining room recording what was said. Bruno and Agent Lee had a package of money, which they planned to give to Pena in exchange for the cocaine. Pena told Bruno and Agent Lee to take “it” (the package) to the bathroom and he would place “it” in his “fly.” Pena then told Bruno that he should call Soberon in two hours. App. at 25-26. When Bruno asked Pena whether he was going to count “it” (the money in the package), Pena replied that he would just take “it” with him. App. at 26. When Agent Lee objected to the manner in which the deal was being conducted, Pena responded “that’s the way he [presumably Soberon] wants it,” and indicated that he would call “him” and tell “him” that Lee did not want to “do it that way.” App. at 28, 31. Pena was then arrested.

After Pena’s arrest, Bruno had two telephone conversations with Soberon and one with Cartaya regarding when and how the cocaine would be delivered. Soberon was arrested later that day. Because Cartaya could not be found, however, he was not arrested until after the drug trial against Pena and Soberon had begun.

At the grand jury hearing, the government presented several witnesses regarding Cartaya’s, Pena’s, and Soberon’s activities in order to support the issuance of an indictment against them. In particular, Agent McCann described the conversation between Pena, Bruno, and Agent Lee which he recorded from the adjoining hotel room. Agent McCann testified that:

Mr. Pena came in and was granted access to the room and they had a conversation where he indicated he was sent there to pick up to the receipts, it’s what they were referring to the money as, and that our girl was resisting letting the money walk, leave the room. We are not permitted to [let] the money leave under those kind of conditions. It has to stay in the care and custody of the agent. So there was a conversation about she didn’t want to do it that way and Mr. Pena indicated, fine, you’ll have to call the guy and we’ll do it some other way. He guaranteed her and Bruno that there’d be no problem, that the deal would go through. She offered to have him count it if he wished. He didn’t even want to count the money. He just said that his job was to come over and pick up the money, take it back and in two hours they would have the dope.

Everyone was getting mixed up on the Andy [Soberon] and Mandy [Cartaya] thing and he said that, ... I would quote him, he said, “Actually it’s Armando and Andy,” speaking about Mandy and Andy. And he indicated also in that conversation that although everybody was talking to Andy on all these phone calls, that it was going through Mandy, that Mandy was going to be the actual source this time of the cocaine.

App. at 85-86 (emphasis added).

The grand jury handed down a five count indictment. Only two of the five counts are relevant to this appeal: Count 1, charging Cartaya, Pena, and Soberon with conspiring to possess more than 500 grams of a substance containing cocaine with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1) (1981) and 21 U.S.C.A. § 846 (Supp.1989), and Count 3, charging Cartaya and Soberon with using a public telephone to facilitate their conspiracy to distribute cocaine in violation of 21 U.S.C.A. § 843(b)(1981).

On March 19,1990, the trial against Pena and Soberon began and the jury was sworn. Cartaya had not yet been arrested, and was not on trial and not before the district court. Agent McCann testified during the government’s case-in-chief. When McCann acknowledged on cross-examination that Pena had not uttered the precise words “dope” or “cocaine” in the conversation that took place in the hotel room, Pena moved to dismiss the indictment. Pena contended that McCann’s use of the words “dope” and “cocaine” was perjury, amounting to prosecutorial misconduct that warranted dismissal of the indictment.

Without the benefit of an evidentiary hearing, the district court summarily determined that Agent McCann’s testimony before the grand jury was in fact perjured and the government committed prosecutorial misconduct by obtaining an indictment based in part on Agent McCann's testimony. The district court apparently believed that the only factual determination to be made at an evidentiary hearing was whether the prosecutor was aware of the discrepancy in Agent McCann’s testimony, and decided there was prosecutorial misconduct, regardless of whether the prosecutor was aware of the discrepancy.¹

The district court found that Pena was prejudiced by the prosecutorial misconduct before the grand jury, and dismissed Count 1 of the indictment with respect to him. The district court explicitly found that So-beron was not prejudiced by the misconduct, and made no finding one way or the other regarding prejudice to Cartaya. Despite the absence of a finding of prejudice to Soberon or Cartaya, the district court, in what it denominated an exercise of its supervisory power, dismissed Count 1 with respect to both of these defendants as a sanction against the government. The district court also dismissed Count 3 of the indictment, against Cartaya and Soberon based on its conclusion that the government would be unable to prove the public communications charge in the absence of the count charging the underlying offense.

This appeal by the government followed, with our jurisdiction predicated on 18 U.S. C.A. § 3731 (Supp.1990). We must decide the following issues: (1) is this appeal barred by the Double Jeopardy Clause; (2) did the district court err in dismissing the charge against Soberon in light of its finding that he was not prejudiced by the purported prosecutorial misconduct; (3) did the district court err in dismissing the indictment with respect to Pena based on its finding that Agent McCann committed perjury before the grand jury; and (4) did the district court err in dismissing the indictment with respect to Cartaya, who was not before the Court.²

II.

Pena challenges our jurisdiction to hear this appeal based on his rights under the Double Jeopardy Clause. He argues that, consistent with their constitutional rights, the defendants cannot be tried again since the indictment was dismissed for insufficient evidence, an acquittal on the merits. We address this threshold jurisdictional question first.

The Double Jeopardy Clause of the Fifth Amendment protects an individual from being put in jeopardy twice for the same offense. Jeopardy in a jury trial attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978). If a defendant is thereafter acquitted on the basis of a ruling by the court that the evidence is insufficient to convict, the government may not appeal the judgment because reversal would result in a second trial. United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2193, 57 L.Ed.2d 65 (1978). In cases where the defendant has successfully sought to have a trial terminated without a factual determination of his guilt, however, the government may appeal the dismissal and the defendant may be retried. Id. at 101, 98 S.Ct. at 2199. We have interpreted Scott as prohibiting an appeal on Double Jeopardy grounds only where “in terminating the proceeding, the trial court actually resolves in favor of the defendant a factual element necessary for a criminal conviction.” United States v. Maker, 751 F.2d 614, 622 (3d Cir.1984) (emphasis added).

We find that the Double Jeopardy Clause was not implicated in these dismissals, and does not bar this appeal with respect to any of the defendants. As to Cartaya, he was not even before the court with Pena and Soberon, and no jury was sworn to hear the charges against him. In fact, he had not even been arrested when the trial commenced. Obviously, the indictment was dismissed before jeopardy had attached with respect to Cartaya.

While jeopardy did attach with respect to Pena and Soberon, the dismissal of the charges against them was not based on a finding of insufficient evidence or the resolution of any essential factual element. The plain language of the orders reveals that the charges were dismissed on the basis of prosecutorial misconduct. The record of the court proceeding further indicates that the court based its dismissal solely on what it perceived to be the discrepancy between Agent McCann’s trial testimony regarding the conversation between Bruno, Pena, and Agent Lee, and the actual tape recorded conversation. This discrepancy, if indeed it was a discrepancy, is unrelated to an actual finding on the merits.

One defendant points to a portion of the record where the court stated “we addressed a lot of the factual elements,” and “it’s not clear at all that you have a right to appeal this case,” to support his assertion that we have no jurisdiction over this appeal because the charges were dismissed on the basis of insufficient evidence. App. at 948. These assertions by the district court do not render its dismissal of the indictment a disposition on the merits and certainly do not determine our jurisdiction. See Maker, 751 F.2d at 621 n. 2 (“[T]he determination of whether there has been an acquittal does not turn on how the district court labels its decision.”). In fact, the district court could not possibly have rendered a decision based on insufficient evidence since the government had not yet rested its case when the district court dismissed the indictment.

III.

A. Soberon

Having determined our jurisdiction to hear this matter, we turn now to the merits of the appeal. We first examine the dismissal of the charges against Soberon. Our disposition here turns on whether the district court erred in dismissing Count 1 on the basis of prosecutorial misconduct in light of its finding that Soberon was not prejudiced by the purported misconduct.

Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) established the standard for dismissing an indictment based on error in a grand jury proceeding. The Supreme Court held in Bank of Nova Scotia that a district court is bound by the doctrine of “harmless error” and may not dismiss an indictment on the basis of prosecutorial misconduct before the grand jury without making a factual finding that the defendant was prejudiced by that misconduct. Id. at 255, 108 S.Ct. at 2374. See also United States v. Martino, 825 F.2d 754, 759 (3d Cir.1987). To find prejudice, the district court must establish that “ ‘the violation substantially influenced the grand jury’s decision to indict,’ or ... there is ‘grave doubt’ that the decision to indict was free from the substantial influence of such violations.” Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374 (quoting United States v. Mechanik, 475 U.S. 66, 78,106 S.Ct. 938, 945, 89 L.Ed.2d 50 (1986)).

One defendant argues that the alleged prosecutorial misconduct at issue, the use of perjured testimony before a grand jury, falls within the narrow exception to the harmless error rule articulated in Bank of Nova Scotia. He refers to the Court's recognition that prejudice need not be shown in cases where the errors are such that the “structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice.” Bank of Nova Scotia, 487 U.S. at 257, 108 S.Ct. at 2375.

We hold that the presentation of the allegedly perjured testimony to the grand jury does not fall into the narrow category of cases in which dismissal of charges without a showing of prejudice is warranted. According to Bank of Nova Scotia, the requirement of prejudice is excused only in extreme cases, where the “structural protections of the grand jury” have been compromised and remedies other than dismissal would be impractical. Id. at 257, 108 S.Ct. at 2375. The only instances in which the Supreme Court has recognized this exception to the harmless error rule have involved grand juries selected in a discriminatory manner, which tainted the fact finding process itself. See, e.g., Vasquez v. Hillery, 474 U.S. 254, 260-64, 106 S.Ct. 617, 621-24, 88 L.Ed.2d 598 (1986) (dismissal of indictment mandated by racial discrimination in selection of grand jurors); Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181 (1946) (dismissal of indictment because women were excluded from grand jury). The purported error here does not rise to this level. Accordingly, the district court erred in dismissing Count 1 against a defendant who had not been prejudiced.

Because the district court erred in dismissing Count 1 against Soberon, we will reverse the dismissal of Count 3 as well. The district court dismissed Count 3, which charged Cartaya and Soberon with using a public telephone to facilitate the conspiracy charged in Count 1, on the basis of its finding that the government would be unable to prove that charge without the count charging the underlying conspiracy in Count 1. Even if the district court’s rationale for dismissing Count 3 is valid, it is no longer viable in light of our reversal of the dismissal of Count 1. Accordingly, we will reverse the district court’s dismissal of Count 3 against Soberon.

On appeal, Soberon points to another alleged instance of prosecutorial misconduct and argues that we should affirm the dismissal of the charges against him on that basis. We can affirm the judgment of the district court on any grounds that are supported by the record. United States v. Cahalane, 560 F.2d 601, 608 (3d Cir.1977). We cannot, however, base our decision on grounds that were not raised before the district court. United States v. Aguilar, 849 F.2d 92, 99-100 (3d Cir.1988). Because Soberon did not raise before the district court this other alleged incident of prosecu-torial misconduct, we will not consider it now.

B. Pena

Next, we turn to the dismissal of Count 1 against Pena on the basis of prose-cutorial misconduct. The district court found that Agent McCann committed perjury before the grand jury and that the use of this testimony to obtain an indictment constituted prosecutorial misconduct. Perjury is defined as knowingly making a false, material declaration under oath. See 18 U.S.C.A. § 1623 (1984). Because the determination of the district court that Agent McCann committed perjury is a factual finding, it will stand unless found to be clearly erroneous. After reviewing the basis of the district court’s determination, we hold that its finding of perjury by Agent McCann is indeed clearly erroneous.

The district court found that Agent McCann admitted at trial to committing perjury before the grand jury because he acknowledged the words “dope” and “cocaine” were not actually used in the conversation about which he testified. McCann’s admission that those two words were not actually part of the conversation is certainly not an admission of a knowing misrepresentation. In fact, it cannot be reasonably interpreted even to suggest perjury. ■

It is obvious from the record before us, as it should have been obvious to the district court, that Agent McCann was paraphrasing the conversation. Agent McCann carefully indicated a direct quote when he quoted Pena verbatim, demonstrating the absence of any attempt to mislead the grand jury. Specifically, he preceded direct quotes of Pena by the phrase “I would quote him.” App. at 86. Furthermore, on the record before us, we fail to comprehend how the grand jury could reasonably have been led to believe that Agent McCann was testifying that the words “dope” and “cocaine” were part of the actual conversation he was recounting.

Because we find that the record fails to suggest perjury, we hold that the district court’s finding of prosecutorial misconduct based on this imagined perjury is clearly erroneous. If the district court could have formed a reasonable suspicion that perjured testimony was presented to the grand jury, the proper course would have been to hold an evidentiary hearing on the issue. In the absence of anything in the record even suggesting perjury, however, we find no need to remand for an evidentiary hearing at this point. Accordingly, we will reverse the dismissal of the charges in Count 1 against Pena, and remand for a new trial.

C. Cartaya

Finally, we consider the dismissal of the indictment with respect to Cartaya. The district court dismissed the charges against Cartaya on the basis of prosecutorial misconduct, despite the fact Cartaya was not even before the court at the time. A court cannot sua sponte dismiss the charges against a defendant not currently before it during another defendant’s trial. We will therefore reverse the dismissal of the charges against Cartaya.³

IV.

In conclusion, we hold that the district court erred in dismissing the charges against Soberon on the basis of prosecuto-rial misconduct in the absence of a showing that he was prejudiced by the purported misconduct. We further hold that the district court erred in dismissing the charge against Pena because its finding that the F.B.I. agent committed perjury before the grand jury is clearly erroneous. Finally, we hold that the district court erred in dismissing the charges against Cartaya because he was not on trial before the court. In accordance with these holdings, we will reverse dismissal of the indictment with respect to all defendants and remand for a new trial.

1 . According to the district judge, if the attorney was aware of the discrepancy, he committed prosecutorial misconduct by using the testimony. If he was unaware of the discrepancy, he committed prosecutorial misconduct by not discovering it.

2 . The government also sought assignment of the case to another district court judge on remand. However, the government withdrew this request at oral argument in light of the fact that Judge Paul A. Simmons (who heard the matter) has retired.

3 . As Cartaya was not on trial before the district court, he obviously made no motion for dismissal on the basis of prosecutorial misconduct. Before us on appeal, however, he requests an evidentiary hearing on the issue of prejudice, in light of our holding that an indictment cannot be dismissed on the basis of this type of prose-cutorial misconduct without a finding of prejudice. As we held with respect to Pena, an evi-dentiary hearing on the issue of prejudice would serve no purpose because nothing in the record indicates perjury or prosecutorial misconduct. Accordingly, we decline to remand for an evi-dentiary hearing on the issue of prejudice to Cartaya.