REVISED APRIL 17, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20558
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
DARRELL H. STROUSE; JAMES R. WILLIS,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
March 20, 2002
Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A federal grand jury indicted Darrell Strouse and James
Willis, both formerly of the Houston Police Department, for
conspiring to violate the civil rights of Rogelio Oregon Pineda and Pedro Oregon Navarro in violation of 18 U.S.C. § 241. The district
court dismissed the indictment because Pineda’s1 testimony before
the grand jury was perjurious, and, according to the district
court, tainted the grand jury’s decision to indict the Defendants.
We hold that perjury before the grand jury that was not knowingly
sponsored by the government may not form the basis for a district
court’s dismissal of an indictment under its limited supervisory
power over the grand jury process. We REVERSE the judgment of the
district court and REMAND for further proceedings.
I
In July of 1998, Strouse and Willis were members of the
Houston Police Department’s Divisional Gang Task Force. Strouse
commanded the Task Force for three precincts, and Willis was
assigned to Strouse’s unit.
On the evening of July 11, 1998, Willis and his partner Pete
Herrada arrested Ryan Baxter and two minors for possessing drug
paraphernalia associated with the use of crack cocaine. During the
course of the arrest, the officers learned that Baxter was on
probation for a prior drug offense. Baxter made the now-familiar
"flip," identifying Pineda as his cocaine supplier and offering to
assist the officers in apprehending Pineda.
1 For brevity, we will refer to the brothers Rogelio Oregon Pineda and Pedro Oregon Navarro by their mothers’ maiden names. Thus, Rogelio Oregon Pineda will be referred to as “Pineda” and Pedro Oregon Navarro as “Navarro.”
2 Then back at the precinct headquarters, officers, including
the Defendants, laid plans for Baxter to purchase drugs from Pineda
to confirm Pineda’s status as a dealer. Baxter first arranged a
buy at a Jack in the Box restaurant near Pineda’s apartment, but
Pineda failed to show. When Baxter paged Pineda a second time,
Pineda told Baxter that Navarro would be at Pineda’s apartment and
would be able to sell Baxter the crack cocaine he needed. Per the
officers' instructions, Baxter agreed. As Baxter and a group of
officers approached the apartment, Strouse charted their plan.
Baxter was to knock on the door to initiate the drug sale. When
the door was answered, Baxter was to talk until police officers
could take over. The officers maintain that the plan was to seek
consent to enter the apartment. When Baxter knocked on the door,
however, there was no response, and the group left.
As the officers were driving back to their headquarters with
Baxter early on the morning of July 12, Pineda apparently called
Baxter, telling him that he was now at the apartment and able to
sell Baxter the cocaine that Baxter had requested. At least six
officers returned to the apartment, including the Defendants and
Herrada. The plan remained unchanged, except Strouse apparently
stressed to Baxter that he was to “get down and out of the way”
when the door was answered. Strouse also told Baxter that, to
disguise his role, he would also be arrested.
The precise events that took place at Pineda’s apartment
during the second trip to the apartment are not clear. Most of the
3 officers lined up in a stairwell near Pineda’s apartment, out of
the immediate line of sight from the door to Pineda’s apartment.
Two officers were stationed outside, near the back windows of
Pineda’s apartment. Baxter knocked, and Pineda answered. Baxter
then spoke with Pineda and moved forward inside the apartment.
Once inside, according to Baxter, he heard the rustling of feet
behind him and dropped to the floor. Officers, led by Herrada, who
had his gun drawn, immediately entered the apartment announcing
“Houston police” and “HPD.”2 According to Herrada, he rushed into
the apartment only after Baxter hit the ground; he had not expected
Baxter to fall and entered the apartment because he feared that
Baxter may have been hurt. It is undisputed that the officers had
neither a warrant nor consent to enter the apartment at any time.
Once inside, the officers handcuffed Baxter, Pineda, and
Pineda’s girlfriend, Nelly Mejia. Officer Herrada pursued Salvador
Lopez, also an occupant of the apartment. Two other officers,
Tillery and Barrera, proceeded to the back bedroom of the
apartment. In the bedroom, they found Navarro holding a gun. As
the officers approached the back bedroom, a shot--apparently fired
by one of the officers--hit Tillery in the back of his bullet-proof
vest. Various officers opened fire on Navarro, eventually firing
more than thirty rounds of ammunition. Shot twelve times, Navarro
2 Officer Herrada had been asked to stand closest to the door because he spoke both Spanish and English and it was not clear to the officers whether Pineda spoke English.
4 died at the scene. Navarro never fired his gun. No drugs were
found in the apartment.
II
The Harris County district attorney convened a state grand
jury to investigate the events of July 11 and 12. Pineda and the
Defendants testified before the state grand jury. The state grand
jury returned only one indictment, against officer Willis for
misdemeanor trespass. On trial, officer Willis was acquitted.
Following the acquittal, the Department of Justice convened a
federal grand jury seeking indictments against officers involved in
the July 12 raid for conspiring to violate and violating the civil
rights of Pineda and Navarro. The government called sixteen
witnesses before the grand jury, including Pineda. The prosecutors
also read Pineda’s state grand jury testimony to the federal grand
jury and furnished them with a transcript of that testimony. The
Defendants did not testify before the federal grand jury.
In September 1999, the grand jury returned the indictment in
this case charging conspiracy to violate the civil rights of Pineda
and Navarro, in violation of 18 U.S.C. § 241. Specifically, it
charged that the Defendants:
did willfully and knowingly conspire to injure, oppress, threaten, and intimidate Rogelio Oregon Pineda and Pedro Oregon Navarro in the free exercise and enjoyment of the rights secured to them by the Constitution and laws of the United States, that is, the right to be secure against unreasonable searches and seizures.
5 The grand jury did not indict the Defendants for actually violating
the civil rights of Pineda and Navarro pursuant to 18 U.S.C. § 242,
the object offense of the conspiracy. The Defendants moved to
dismiss the indictment based on the fact that Pineda had offered
material, false testimony before the state and federal grand
juries.
In a careful exegesis, the district court found that “Pineda’s
entire testimony before the grand jury is severely tainted by his
perjury,” offering several examples of knowingly false statements
by Pineda. They included: (1) he had never sold drugs; (2) he did
not know Baxter; (3) he returned Baxter’s page because he thought
it might be a wrong number; (4) he did not know Baxter was coming
to his apartment on the night of the raid; (5) police officers
entered the apartment immediately as Pineda opened the door; and
(6) a police officer immediately hit Pineda on the night of the
raid and he lost consciousness. The district court also noted that
Pineda had admitted in a civil deposition that he lied to the state
and federal grand juries about these events.3
3 On April 17, 2000, a Harris County grand jury indicted Pineda for two counts of aggravated perjury and one count of perjury. The two counts of aggravated perjury related in part to statements made under oath during the state grand jury proceedings. Pineda has since pled guilty to one count of aggravated perjury. The government maintains that because Pineda’s guilty plea to state perjury charge is outside the record, this court cannot consider it on appeal. Because Pineda’s plea of guilt to state perjury charges was not a basis for the district court’s ruling and is unnecessary to our resolution of the case, we do not consider this evidence.
6 The district court then determined that Pineda’s false
statements were material because they related to whether entry by
the officers was supported by exigent circumstances. Finally, the
court rejected the government’s argument that any perjury by Pineda
did not harm the Defendants because there was sufficient truthful
testimony before the grand jury to support the indictment returned
and dismissed the indictment without prejudice on April 19, 2000.4
4 The district court refused to impose a prejudice requirement, explaining that no such requirement had been adopted by this circuit. It nevertheless reviewed the record and concluded that the untainted testimony was insufficient to support a finding of probable cause.
7 III
The government here makes three primary arguments. First,
that Pineda did not perjure himself before the grand jury. Second,
that, even if Pineda lied, a dismissal of an indictment would be
appropriate only if the court found that the government knew of the
perjury and did nothing to rectify or prevent it. Finally, the
government contends that any perjury by Pineda did not
substantially influence the grand jury’s decision to indict the
Defendants.
We review the district court’s factual finding of perjury for
clear error and find none here.5 As the district court noted,
Pineda’s testimony before the federal grand jury, particularly the
portions of his state grand jury testimony read to the federal
grand jury, contained numerous statements that Pineda knew to be
false. Specifically, Pineda stated that (1) he had never sold or
used cocaine, (2) he had never met and did not know Baxter prior to
the events of July 12, (3) police officers entered his apartment
instantly when he opened the door on the morning of July 12, and
(4) he was beaten severely, perhaps even to unconsciousness, after
they entered. Pineda has since acknowledged in a civil deposition
that he knowingly made false statements during his grand jury
testimony, further confirming the propriety of the district court’s
factual findings. We have no difficulty concluding that the
5 See United States v. Cathey, 591 F.2d 268, 272 (5th Cir. 1979).
8 district court did not clearly err when it found that Pineda
knowingly provided false information to the grand jury.
The materiality of Pineda's false statements is a legal issue
that we review de novo.6 The standard is “whether the false
testimony was capable of influencing the tribunal on the issue
before it.”7 We are to be mindful that “[f]alse statements 'need
not be material to any particular issue, but may be material to
collateral matters that might influence the court or the jury in
the decision of the question before the tribunal.'”8
The grand jury was charged to investigate any denial of the
civil rights of Pineda and Navarro. Pineda's lies, particularly
about events inside his apartment, were undoubtedly capable of
influencing the grand jury’s determination of whether to indict the
Defendants for violating Pineda’s civil rights. Precisely how and
when the police entered would bear on whether exigent circumstances
required their warrantless entry into Pineda’s apartment and thus
on whether the Defendants violated Pineda and Navarro’s right to be
free of unreasonable searches. For that reason, we agree with the
6 United States v. Williams, 993 F.2d 451, 455 (5th Cir. 1993), abrogated on other grounds by Texas v. Cobb, 532 U.S. 162 (2001). 7 Id. (quoting United States v. Salinas, 923 F.2d 339, 341 (5th Cir. 1991)) (internal quotation marks omitted; emphasis in original). 8 Id. (quoting United States v. Damato, 554 F.2d 1371, 1373 (5th Cir. 1977)).
9 district court that Pineda’s false statements were material to the
grand jury’s investigation.
IV
After indictment, the judiciary’s role in policing the
credibility of witnesses before a grand jury is minimal. It is
true that we have authority to enforce the Grand Jury Clause by
ensuring that grand juries act independently from the executive.9
We may also, and indeed on occasion we must, use our supervisory
power to safeguard the integrity of the grand jury process. The
Supreme Court has, for example, recognized that a district court
may use its supervisory power “to dismiss an indictment because of
misconduct before the jury, at least where that misconduct amounts
to a violation of one of those ‘few, clear rules which were
carefully drafted and approved by this Court and by Congress to
ensure the integrity of the grand jury’s functions.’”10 The Supreme
Court has also recognized that the supervisory power of Article III
judges should be used “to implement a remedy for violation of
recognized rights, to preserve judicial integrity by ensuring that
9 See United States v. McKenzie, 678 F.2d 629, 631 (5th Cir. 1982). 10 See United States v. Williams, 504 U.S. 36, 46 (1992) (quoting United States v. Mechanik, 475 U.S. 66, 74 (1986) (O'Connor, J., concurring in the judgment)); see also United States v. Greer, 137 F.3d 247, 251 n.5 (5th Cir. 1998).
10 a conviction rests on appropriate considerations validly before the
jury, and finally, as a remedy designed to deter illegal conduct.”11
That said, we are persuaded that perjury before the grand jury
that was not knowingly sponsored by the government may not form the
basis for a district court’s dismissal of an indictment under its
supervisory power. The district court did not under its approach
reach the question of whether the government knew of the perjury at
the time it offered Pineda's testimony before the federal grand
jury. In denying the government's motion to reconsider, the
district court observed:
First, the Court again reminds the parties that Defendants moved to dismiss the indictment because it was based on false, material testimony. Dismissals on this basis, if jeopardy has not attached, are without prejudice. Whether the indictment could be dismissed with prejudice because of prosecutorial misconduct was not, and is not now, before the Court. Moreover, the Government's admission that it presented state grand jury testimony which it now concedes may have been perjured is not an admission of prosecutorial misconduct.
The district court explained in dismissing the indictment that "the
Court need not and does not reach the issue of the Government's
knowledge or bad faith" and that "[t]his issue could not be
resolved without a full evidentiary hearing." In the absence of a
finding of government misconduct, we hold that the district court
was without authority to exercise its limited supervisory power to
11 United States v. Hastings, 461 U.S. 499, 505 (1983) (citations omitted).
11 dismiss the indictment on the basis of perjury before the grand
jury.12
The district court and the Defendants have pointed to language
in several cases as support for the proposition that a district
court in an exercise of its supervisory power may dismiss an
indictment for such material lies to a grand jury. We read these
decisions to support the conclusion we reach today, including, for
example, the following language from United States v. Williams:13
Thus, Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988), makes clear that the supervisory power can be used to dismiss an indictment because of misconduct before the grand jury, at least where that misconduct amounts to a violation of one of those "few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury's functions," United States v. Mechanik, 475 U.S. 66, 74, 106 S. Ct. 938, 943, 89 L. Ed. 2d 50 (1986) (O'CONNOR, J., concurring in judgment).14
Footnote 6, accompanying this text, states that "Rule 6 of the
Federal Rules of Criminal Procedure contains a number of such
12 The indictment was dismissed without prejudice. Cf. United States v. Welborn, 849 F.2d 980, 985 (5th Cir. 1988) ("The supervisory authority of the district court includes the power to impose the extreme sanction of dismissal with prejudice only in extraordinary situations and only where the government's misconduct has prejudiced the defendant."); cf. also United States v. Fulmer, 722 F.2d 1192, 1195 (5th Cir. 1983) ("For this reason, we have held that a district court may dismiss an indictment with prejudice only where it has been shown that governmental misconduct or gross negligence in prosecuting the case has actually prejudiced the defendant."). 13 504 U.S. 36 (1992). 14 Id. at 46.
12 rules, providing, for example, that 'no person other than the
jurors may be present while the grand jury is deliberating or
voting,' Rule 6(d), and placing strict controls on disclosure of
'matters occurring before the grand jury,' Rule 6(e)."15 The
footnote then notes that "[a]dditional standards of behavior for
prosecutors (and others) are set forth in the United States Code,"
listing "18 U.S.C. §§ 6002, 6003 (setting forth procedures for
granting a witness immunity from prosecution); § 1623
(criminalizing false declarations before grand jury); § 2515
(prohibiting grand jury use of unlawfully intercepted wire or oral
communications); § 1622 (criminalizing subornation of perjury)."16
The phrase "prosecutors (and others)" does not foreclose on
its face a conclusion that a lying witness might support dismissal
under the district court's supervisory power. Similarly, we stated
in United States v. Sullivan17 that "we refuse to adopt the
proposition that, absent perjury or government misconduct, an
indictment is flawed simply because it is based on testimony that
later may prove to be questionable."18
The language from Sullivan, however, only states in passing a
breed of rule this court refused to endorse, rather than one that
15 Id. at 46 n.6. 16 Id. 17 578 F.2d 121 (5th Cir. 1978). 18 Id. at 124 (emphasis added).
13 it did adopt. In any event, any such reading of Sullivan would be
superseded by Williams: "'the mere fact that evidence itself is
unreliable is not sufficient to require a dismissal of the
indictment'" and "'a challenge to the reliability or competence of
the evidence presented to the grand jury' will not be heard."19
Allowing courts to evaluate the quality of evidence presented to a
grand jury would "'run counter to the whole history of the grand
jury institution.'"20 This rule is so strongly enforced that
evidence obtained in violation of the Fifth Amendment21 and in
violation of the Fourth Amendment22 can be used before a grand jury
without giving the district court power to dismiss an indictment.
Dismissing an indictment to punish the government for its
misconduct, however, entails no implicit second-guessing of the
grand jury and thus steers clear of the prohibition of Williams.
Our approach today is supported by Bank of Nova Scotia v. United
States,23 in which the Supreme Court upheld a Tenth Circuit decision
19 Williams, 504 U.S. at 54 (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988)); see also id. (noting that, under long-standing Court precedent, an indictment may not "be challenged 'on the ground that there was inadequate or incompetent evidence before the grand jury.'" (quoting Costello v. United States, 350 U.S. 359, 363-64 (1956))). 20 Id. (quoting Costello, 350 U.S. at 364). 21 Id. at 49. 22 Id. at 50; see also United States v. Calandra, 414 U.S. 338, 354 (1974). 23 487 U.S. 250 (1988).
14 refusing to uphold a dismissal of an indictment. The district
court had rested its decision in part on its factual finding that
"IRS agents gave misleading and inaccurate summaries to the grand
jury just prior to the indictment."24 The Supreme Court stated:
Because the record does not reveal any prosecutorial misconduct with respect to these summaries, they provide no ground for dismissing the indictment. The District Court’s finding that the summaries offered by IRS agents contained evidence that had not been presented to the grand jury in prior testimony boils down to a challenge to the reliability or competence of the evidence presented to the grand jury. We have held that an indictment valid on its face is not subject to such challenge.25
The Nova Scotia Court then recited the rule that unreliability of
evidence presented to a grand jury will not support the use of the
supervisory power to dismiss an indictment in holding that a
district court has "no authority to dismiss [an] indictment on the
basis of prosecutorial misconduct absent a finding that [the
defendants] were prejudiced by such misconduct."26
Congress has proscribed false testimony by witnesses before
the grand jury, regardless of the government's involvement or
knowledge, and has authorized criminal sanctions against those
giving such testimony.27 However, the fact that 18 U.S.C. § 1623
24 Id. at 260. 25 Id. at 260-61. 26 Id. at 261, 263. 27 See 18 U.S.C. § 1623; United States v. Abroms, 947 F.2d 1241, 1245 (5th Cir. 1991).
15 can be violated without government knowledge and that criminal
charges can be brought against the offending witness does not, by
itself, suggest a supervisory reach beyond cases where the
government knew of the violation of section 1623 at the time of the
perjured testimony. The phrase "(and others)" in footnote 6
supports this observation. Most of the statutes listed with this
phrase are primarily violated by persons other than prosecutors.
In footnote 6, the Court is merely describing the general nature of
these sections of the United States Code in service of enumerating
the misconduct that "amounts to a violation of one of those 'few,
clear rules which were carefully drafted and approved by this Court
and by Congress to ensure the integrity of the grand jury’s
functions.'"28 The import of the statements in footnote 6 must be
read in light of the textual statement that the footnote
accompanies, because footnote 6 by its own terms merely identifies
the rules described generally in the textual statement.
Williams states that the rule limiting the use of the
supervisory power to instances of violations of these rules arises
from the depiction of the limits on the court's supervisory power
in Nova Scotia.29 In other words, the Williams decision, by its own
terms, ties its statement of the scope of the supervisory power to
the holding in Nova Scotia. In Nova Scotia, the Court did not use
28 Williams, 504 U.S. at 46 (quoting Mechanik, 475 U.S. at 74 (O'Connor, J., concurring in the judgment)). 29 Id.
16 the language regarding a "few, clear rules" from Justice O'Connor's
concurring opinion in United States v. Mechanik. The Nova Scotia
Court did, however, hold that misleading and inaccurate summaries
provided by IRS agents to a grand jury would not support the use of
the court's supervisory power to dismiss the indictment "[b]ecause
the record does not reveal any prosecutorial misconduct with
respect to these summaries."30 What the Williams Court's explicit
reliance on Nova Scotia makes clear, then, is that the "misconduct"
that "amounts to a violation of one of those 'few, clear rules'"--
which the Williams Court held included certain provisions of the
United States Code as well as sections of Federal Rule of Criminal
Procedure 6--must involve government misconduct.
Furthermore, the language from Justice O'Connor's concurring
opinion in Mechanik, which the Williams Court explicitly quotes,
limits the scope of violations of these "few, clear rules" to the
conduct of prosecutors. In her opinion, Justice O'Connor observes:
Prosecutors have been accorded similar leeway in presenting their cases to the grand jury, see, e.g., United States v. Adamo, 742 F.2d 927, 936-938 (CA6 1984), cert. denied, 469 U.S. 1193, 105 S. Ct. 971, 83 L. Ed. 2d 975 (1985), but they are bound by a few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury's functions.31
30 487 U.S. at 260. 31 475 U.S. at 74 (O'Connor, J., concurring in the judgment) (emphasis added).
17 Justice O'Connor then argues that Federal Rule of Criminal
Procedure 6(d) is such a rule and that dismissal of an indictment
is an appropriate remedy, in some cases, for violations of Rule
6(d).32 Accordingly, the language in footnote 6 of Williams and the
accompanying text, when read in the context of the two decisions
from which the stated rule is drawn, supports our conclusion that
an indictment may not be dismissed under a court's supervisory
power for perjury which the government did not sponsor.
The immediate next sentence in Williams further supports this
conclusion. There, the Court implicitly limited the scope of the
supervisory power just discussed by stating:
We did not hold in Bank of Nova Scotia, however, that the courts' supervisory power could be used, not merely as a means of enforcing or vindicating legally compelled standards of prosecutorial conduct before the grand jury, but as a means of prescribing those standards of prosecutorial conduct in the first instance--just as it may be used as a means of establishing standards of prosecutorial conduct before the courts themselves.33
As such, the Williams Court understood its own discussion to be
limited to prosecutorial misconduct in violation of these "few,
clear rules," notwithstanding the use of the phrase "(and others)."
The district court also relied on United States v. Greer34 as
support for its conclusion that perjury which the government did
32 Id. at 74-75. 33 504 U.S. at 46-47 (emphasis added). 34 137 F.3d 247 (5th Cir. 1998).
18 not knowingly sponsor is an authorized ground for dismissal under
Williams. Specifically, that Greer, after reciting the language we
quoted from Williams, noted that "[t]he statutory prohibition
against making a false declaration before a grand jury, set forth
in Title 18 U.S.C. § 1623, was cited by the Williams Court as an
example of one such rule."35 We are not persuaded. Like its source
in footnote 6 of Williams, this statement in Greer is consonant
with a rule limiting the court's use of its supervisory power to
violations of section 1623 of which the government had prior
knowledge. Greer holds only that, under a plain error analysis,
the defendant had not shown any perjury was committed.36 Greer's
further statement that the defendant had not demonstrated that the
challenged testimony violates one of the "few, clear rules" under
Williams may easily be read to be consistent with an insistence
that the government know of the falsity of the testimony it
sponsored.37 Of course, because the Greer court found that perjury
had not been demonstrated, it had no occasion to discuss the
government's knowledge of the falsity of the testimony.
V
Our limit today of the use of our supervisory power is
consistent with our treatment of the repercussions of perjury
35 Id. at 251 n.5. 36 Id. at 251. 37 See id.
19 before a petit jury. Before a petit jury, the rule in this circuit
is that "due process is not implicated by the prosecution’s
introduction or allowance of false or perjured testimony unless the
prosecution actually knows or believes the testimony to be false or
perjured."38 We see little sense in a rule which would provide
criminal defendants greater protection before the grand jury than
defendants have at trial, where the use of perjured testimony
arguably poses a greater threat, despite the defendant's
opportunity at trial to confront the untruths. Finally, as the
government aptly notes, a rule allowing dismissal of an indictment
without a showing of government misconduct would open the door to
attacks on grand jury evidence for which there are large incentives
including discovery by the accused. The result would be the sort
of "interminable delay" against which the Supreme Court long ago
38 United States v. Brown, 634 F.2d 819, 827 (5th Cir. 1981); see also May v. Collins, 955 F.2d 299, 315 (5th Cir. 1992).
20 warned in the context of attacks on grand jury proceedings.39 A
petit trial before the trial is just too much.
For the foregoing reasons, we conclude that the district court
erred in dismissing the indictment.
REVERSED and REMANDED.
ENDRECORD
39 See Costello, 350 U.S. at 363-64 ("Petitioner urges that this Court should exercise its power to supervise the administration of justice in federal courts and establish a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence. No persuasive reasons are advanced for establishing such a rule. It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial."); cf. United States v. Sullivan, 578 F.2d 121, 124 (5th Cir. 1978) ("The only plausible effect Housand's recantation could have had on his grand jury testimony would have been to undermine its credibility, but we decline to adopt the proposition that grand jury testimony that has merely been thrown open to suspicion by postindictment events is an invalid basis for an indictment. Such a rule of law would necessitate independent judicial review of the credibility of grand jury witnesses, an exercise that would seriously infringe upon the traditional independence of the grand jury. We consequently hold that where subsequent events merely cast doubt on the credibility of grand jury witnesses, due process does not require the prosecution to notify the grand jury of those events and seek a new indictment.").
21 BENAVIDES, Circuit Judge, specially concurring in the
judgment:
I cannot agree with the majority opinion that prosecutorial
misconduct is always required before the district court may
exercise its supervisory role over grand jury proceedings. The
majority takes a very narrow view of the circumstances under which
this may be done, relying on Supreme Court opinions that, while
referencing prosecutorial misconduct in their analysis of the
appropriateness of a district court’s exercise of its supervisory
powers, do not explicitly hold that such misconduct is required for
the exercise of such powers. I am not convinced that the Supreme
Court has cabined in the circumstances under which supervisory
powers may be exercised to the extent suggested by the majority.
In United States v. Williams, 504 U.S. 36, 112 S.Ct. 1735
(1992), the Supreme Court explained that district courts may use
their supervisory powers to enforce established rules and
procedures intended to protect the integrity of the grand jury
process. Id. at 46. The Court drew a distinction between the
permissible use of supervisory powers for the purpose of enforcing
existing rules, and the impermissible exercise of supervisory
powers for the purpose of creating new rules to govern the grand
jury system. Id. at 46-47. Thus, the Court stated that, as made
clear by its decision in Bank of Nova Scotia v. United States, 487
U.S. 250, 108 S.Ct. 2369 (1988), “the supervisory power can be used
22 to dismiss an indictment because of misconduct before the grand
jury, at least where that misconduct amounts to a violation of one
of those ‘few, clear rules which were carefully drafted and
approved by this Court and by Congress to ensure the integrity of
the grand jury’s functions.’” Id. (citing United States v.
Mechanik, 475 U.S. 66, 74, 106 S.Ct. 938, 943 (1986)(O’Connor, J.,
concurring in judgment)). In a footnote to this statement the
Court pointed out that, in addition to the standards outlined in
Federal Rule of Criminal Procedure 6, other judicially-enforceable
“standards of behavior for prosecutors (and others) are set forth
in the United States Code.” Id., n.6. Among the rules that the
Court specifically identified in Williams were 18 U.S.C. § 1623,
which prohibits perjury before a grand jury, and 18 U.S.C. § 1622,
which criminalizes the subornation of perjury. Id. Thus,
Williams establishes that the prohibition of perjury is among “the
few, clear rules” that a court may enforce using its supervisory
powers. And by listing “standards of behavior for prosecutors (and
others)” the Court intimated that misconduct independent of the
government, if precluded by an established standard of behavior,
could provide a basis for overturning an indictment. Id.(emphasis
added).
Citing Williams, this Court has indicated that the “statutory
prohibition against making a false declaration before a grand jury”
exemplifies one of the “few, clear rules” intended to protect the
23 integrity of the grand jury’s functions. United States v. Greer,
137 F.3d 247, 251 (5th Cir. 1998); see also United States v.
Sullivan, 578 F.2d 121, 124 (5th Cir. 1978); United States v.
Cathey, 591 F.2d 368, 271-72 (1979)(suggesting that witness perjury
could provide a basis for investigating a grand jury indictment).
Other circuits have also suggested that perjury before a grand
jury, even without prosecutorial knowledge, can provide a basis for
dismissing indictments returned by the grand jury in reliance on
the perjured testimony. See, e.g., United States v. Hyder, 732
F.2d 841, 845 (11th Cir. 1984) (“[W]e refuse to adopt the
proposition that, absent perjury or government misconduct, an
indictment is flawed simply because it is based on testimony that
later may prove to be questionable.”) (emphasis added) (citations
omitted); United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir.
1977) (“[O]nly in a flagrant case, and perhaps only where knowing
perjury, relating to a material matter, has been presented to the
grand jury should the trial judge dismiss an otherwise valid
indictment returned by an apparently unbiased grand jury.”).
The majority’s opinion disagrees with this reading of
Williams, arguing that the phrase “prosecutors (and others)” should
be interpreted narrowly, as simply descriptive of the nature of the
sections of the United States Code in relation to which
prosecutorial misconduct would trigger the exercise of supervisory
powers. Ante at 13, 16. In support of this interpretation, the
24 majority points to the fact that the Supreme Court has held on
previous occasions that challenges to the reliability or competence
of the evidence before the grand jury will not be heard. Ante at
14-16. Indeed, the majority notes that in Bank of Nova Scotia, the
Supreme Court held that the fact that IRS agents gave misleading
and inaccurate summaries to the grand jury was insufficient, in the
absence of prosecutorial misconduct, to support a dismissal of the
indictment because the complaint amounted to a challenge to the
reliability of the evidence. Ante at 14-17.
But the Supreme Court’s holding that challenges to the
reliability of evidence will not be heard, and its application of
that rule in Bank of Nova Scotia, have no bearing on the question
of whether, where there is an actual finding of perjury before the
grand jury, dismissal of the indictment is appropriate. The rule
that challenges to the reliability of evidence will not be heard
flows directly from the distinction drawn in Williams between
enforcing existing laws governing grand jury procedures, and
creating new rules for the grand jury. Williams, 504 U.S. at 46-
47. Whereas to dismiss the indictment because of unreliability of
the evidence would involve the creation of a new standard for the
grand jury process, to dismiss the indictment because of perjury
before the grand jury simply enforces existing legal standards.
The majority also points out that in Mechanik, which the
Williams Court quoted, Justice O’Connor discussed the “few clear
25 rules which were carefully drafted and approved... to ensure the
integrity of the grand jury’s functions” in relation to
prosecutors’ obligation to follow those rules. Ante at 17.
However, nothing in Justice O’Connor’s statement indicates that
those “few clear rules” apply exclusively to prosecutors; rather,
as noted in Williams, the rules relating to behavior before the
grand jury, such as the prohibition on perjury, apply to
prosecutors “and others.” Williams, 504 U.S. at 46 n.6.
The majority’s final argument for requiring government
misconduct before allowing dismissal of an indictment is that in
Williams itself, the Court stated that “[w]e did not hold in Bank
of Nova Scotia, however, that the courts’ supervisory power could
be used, not merely as a means of enforcing or vindicating legally
compelled standards of prosecutorial conduct before the grand jury,
but as a means of prescribing those standards of prosecutorial
conduct in the first instance... It is this latter exercise that
respondent demands.” Williams, 504 U.S. at 46-47. The majority
latches on to the fact that in this particular passage the Court
spoke of prosecutorial misconduct, and argues that this suggests
that the Williams Court understood the exercise of its supervisory
powers to be limited exclusively to instances of misconduct by
prosecutors, not others. Ante at 18. But the Williams Court’s
reference to prosecutorial misconduct in that passage is easily
explained by the fact that the primary issue on appeal in that case
26 was whether dismissal of an indictment due to a prosecutor’s
failure to present exculpatory evidence before a grand jury was
appropriate. Because the central issue in that case was
prosecutorial behavior, it was natural for the Court to speak in
terms of prosecutorial misconduct. To read into this language an
additional, never before discussed, requirement of prosecutorial
misconduct for the exercise of supervisory powers, is a stretch.
In the absence of a more explicit articulation of such a
requirement by the Supreme Court, I would not limit a district
court’s exercise of its supervisory powers in this manner.
Beyond the fact that Supreme Court precedent does not
sufficiently support the rule upon which the majority relies, it is
important to bear in mind that perjury by an ordinary witness that
is not sponsored by or known to the government can also corrupt the
grand jury process. Indeed, by criminally sanctioning the act of
providing false material testimony to a grand jury, Congress has
indicated that the integrity of grand jury proceedings depends in
large part on grand jury witnesses providing honest testimony.40
When a grand jury is provided with perjured testimony, the
integrity of its deliberations and decisions are threatened. That
would seem to be precisely the sort of egregious, well-established
40 Section 1623(d) supports the conclusion that Congress’ primary aim in passing the perjury statute was to protect the integrity of the proceeding. That section provides that a person who has perjured himself before a grand jury can immunize himself from prosecution by recanting his misstatements and thus facilitating the restoration of the grand jury’s integrity. 18 U.S.C. § 1623(d).
27 grand jury misconduct that courts may use their supervisory powers
to correct.
I am sympathetic to the majority’s concern that a rule
allowing dismissal of an indictment without a showing of government
misconduct would open the door to attacks on grand jury evidence,
for which there would be great incentives. Ante at 20. However, it
is only when a district court discovers that the grand jury process
has been corrupted by a witness that knowingly deceived grand
jurors by providing false testimony that the court may act to
preserve the integrity of the grand jury process. This surely will
be a rare occurrence. In order to invoke a district court’s
supervisory powers over grand jury proceedings, a defendant must
demonstrate that a witness knowingly lied to a grand jury about
matters material to the grand jury’s investigation. In this case,
the district court’s findings were at least partially supported by
such evidence, specifically an admission of perjury by the witness.
Only when faced with an admission of or conviction for perjury, or
other such substantial evidence, should a district court exercise
its supervisory powers to determine the impact of the perjury on
the grand jury process. Certainly, a district court could not
overturn a grand jury’s finding of probable cause based solely upon
inconsistencies between the testimony of one witness and others.
The majority also argues that it would be senseless to provide
defendants greater protection before the grand jury than at trial,
where due process is only violated if the prosecution knew of
28 perjury. Ante at 20. However, at trial defendants have a greater
opportunity to participate and uncover falsehoods thanks to the
adversary process, whereas at the grand jury stage perjured
testimony is likely to go unchallenged. See United States v.
O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997).
I recognize that whether there is a prosecutorial misconduct
requirement for the courts to exercise their supervisory powers is
a difficult issue. However, it was not necessary to address it in
the context of this case, inasmuch as the perjury did not prejudice
the defendant. See Bank of Nova Scotia, 487 U.S. at 255 (“[A]
federal court may not invoke supervisory power to circumvent the
harmless-error inquiry prescribed by Federal Rule of Criminal
Procedure 52(a).”). In the present case, the grand jury indicted
the defendants for conspiracy to violate civil rights under 18
U.S.C. § 241, while, as noted by the district court, Pineda’s
perjurious testimony related to the possible existence of exigent
circumstances justifying the Defendants’ warrantless entry into
Pineda’s apartment. To be convicted of a conspiracy, defendants
“need not... have committed the crime that was its object.” United
States v. Manges, 110 F.3d 1162, 1176 (5th Cir. 1997) (citations
omitted). Thus, even if the Defendant’s entry into Pineda’s
apartment may have been supported by exigent circumstances, the
grand jury could have concluded that, prior to entry, the
Defendants conspired to violate Pineda’s and Navarro’s rights to be
29 secure from unreasonable searches. Thus, Pineda’s perjury before
the grand jury constituted harmless error, a fact that provides an
alternate basis for vacating the district court’s ruling.
As a final note, while the majority does limit the
circumstances under which the court may exercise its supervisory
powers to situations where there has been prosecutorial misconduct,
it vacates for further proceedings. I would point out that it has
been the appellees’ contention all along that the government did
engage in misconduct, and that the district court should conduct an
evidentiary hearing to determine whether the government had
knowingly sponsored Pineda’s perjury before the grand jury. Thus,
the majority’s own reasoning would suggest that rather than
rejecting the claim, it should remand for a determination of
whether there was misconduct that would invoke the district court’s
exercise of its supervisory powers.
For the foregoing reasons, I specially concur in the judgment
only.