487 U.S. 250 (1988), 87-578, Bank of Nova Scotia v. United States

Docket Nº:No. 87-578
Citation:487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228, 56 U.S.L.W. 4714
Party Name:Bank of Nova Scotia v. United States
Case Date:June 22, 1988
Court:United States Supreme Court
 
FREE EXCERPT

Page 250

487 U.S. 250 (1988)

108 S.Ct. 2369, 101 L.Ed.2d 228, 56 U.S.L.W. 4714

Bank of Nova Scotia

v.

United States

No. 87-578

United States Supreme Court

June 22, 1988

Argued April 27, 1988

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

Syllabus

The District Court dismissed an indictment against petitioners and others on the basis of prosecutorial misconduct and irregularities in the grand jury proceedings, finding that dismissal was proper due to violations of Federal Rule of Criminal Procedure 6 and under the "totality of the circumstances," including "numerous" violations of Rules 6(d) and (e); violations of 18 U.S.C. §§ 6002 and 6003 and of the Fifth and Sixth Amendments to the Federal Constitution; and the prosecution's knowing presentation of misinformation to the grand jury and mistreatment of witnesses. In an apparent alternative holding, the District Court also ruled that dismissal, pursuant to its supervisory authority, was necessary in order to deter future conduct of this sort. The Court of Appeals reversed, ruling that petitioners were not prejudiced by the Government's conduct, and that, absent prejudice, the District Court lacked the authority to invoke its supervisory power to dismiss the indictment.

Held:

1. As a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants. Pp. 254-257.

(a) A federal court may not invoke its supervisory power to circumvent the harmless error inquiry prescribed by Federal Rule of Criminal Procedure 52(a). Since Rule 52 was promulgated pursuant to a statute which invested the Court with authority to prescribe rules of pleading, practice, and procedure, and because that statute provided that "all laws in conflict [with such a rule] shall be of no further force and effect," 18 U.S.C. § 687 (1946 ed.), Rule 52 is, in every pertinent respect, as binding as any federal statute. Courts have no more discretion to disregard the Rule's mandate through the exercise of supervisory power than they do to disregard constitutional or statutory provisions through the exercise of such power. The conclusion that a showing of prejudice is required is supported by United States v. Mechanik, 475 U.S. 66, which also involved prosecutorial misconduct before a grand jury, and by United States v. Hasting, 461 U.S. 499, which, unlike the present cases,

Page 251

involved constitutional error. A rule permitting federal courts to deal more sternly with nonconstitutional harmless errors than with constitutional errors that are likewise harmless would be inappropriate. Pp. 254-256.

(b) At least in cases involving nonconstitutional error, the standard of prejudice that courts should apply in assessing whether to dismiss an indictment prior to the trial's conclusion is that articulated in United States v. Mechanik, supra, at 78 (O'CONNOR, J., concurring in judgment), whereby dismissal is appropriate only "if it is established that the violations substantially influenced the grand jury's decision to indict," or if there is "grave doubt" that that decision was free from such substantial influence. The present cases must be distinguished from that class of cases in which indictments are dismissed because the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice without any particular assessment [108 S.Ct. 2372] of prejudicial impact. See, e.g., Vasquez v. Hillery, 474 U.S. 254 (racial discrimination in selection of grand jury), and Ballard v. United States, 329 U.S. 187 (exclusion of women from grand jury). Pp. 256-257.

2. The record does not support the conclusion that petitioners were prejudiced by prosecutorial misconduct before the grand jury. No constitutional error occurred during the grand jury proceedings, and the instances of alleged nonconstitutional prosecutorial misconduct were insufficient to raise a substantial question, much less a grave doubt, as to whether they had a substantial effect on the jury's decision to indict. Pp. 257-263.

821 F.2d 1456, affirmed.

KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, BLACKMUN, STEVENS, O'CONNOR, and SCALIA, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 264. MARSHALL, J., filed a dissenting opinion, post, p. 264.

Page 252

KENNEDY, J., lead opinion

JUSTICE KENNEDY delivered the opinion of the Court.

The issue presented is whether a district court may invoke its supervisory power to dismiss an indictment for prosecutorial misconduct in a grand jury investigation, where the misconduct does not prejudice the defendants.

I

In 1982, after a 20-month investigation conducted before two successive grand juries, eight defendants, including petitioners William A. Kilpatrick, Declan J. O'Donnell, Sheila C. Lerner, and The Bank of Nova Scotia, were indicted on 27 counts. The first 26 counts charged all defendants with conspiracy and some of them with mail and tax fraud. Count 27 charged Kilpatrick with obstruction of justice. The United States District Court for the District of Colorado initially dismissed the first 26 counts for failure to charge a crime, improper pleading, and, as to charges against the bank, for failure to allege that the bank or its agents had the requisite knowledge and criminal intent. Kilpatrick was tried and convicted on the obstruction of justice count.

The Government appealed the dismissal of the first 26 counts. Before oral argument, however, the Court of Appeals granted a defense motion to remand the case to the District Court for a hearing on whether prosecutorial misconduct and irregularities in the grand jury proceedings were additional grounds for dismissal. United States District Judge Fred M. Winner first presided over the post-trial motions and granted a new trial to Kilpatrick on the obstruction of justice count. The cases were later reassigned to United

Page 253

States District Judge John L. Kane, Jr., to complete the post-trial proceedings. After 10 days of hearings, Judge Kane dismissed all 27 counts of the indictment. The District Court held that dismissal was required for various violations of Federal Rule of Criminal Procedure 6. 594 F.Supp. 1324, 1353 (Colo.1984). Further, it ruled dismissal was proper under the "totality of the circumstances," including the

numerous violations of Rule 6(d) and (e), Fed.R.Crim.P., violations of 18 U.S.C. §§ 6002 and 6003, violations of the Fifth and Sixth Amendments to the United States Constitution, knowing presentation of misinformation to the grand jury and mistreatment of witnesses.

Ibid. We shall discuss these findings in more detail below.

The District Court determined that,

[a]s a result of the conduct of the prosecutors and their entourage of agents, the indicting grand jury was not able to undertake its essential mission

to act independently of the prosecution. Ibid. In an apparent alternative [108 S.Ct. 2373] holding, the District Court also ruled that

[t]he supervisory authority of the court must be used in circumstances such as those presented in this case to declare with unmistakable intention that such conduct is neither "silly" nor "frivolous," and that it will not be tolerated.

Ibid.

The Government appealed once again, and a divided panel of the Court of Appeals reversed the order of dismissal. 821 F.2d 1456 (CA10 1987). The Court of Appeals first rejected the District Court's conclusion that the violations of Federal Rule of Criminal Procedure 6 were an independent ground for dismissal of the indictment. It then held that "the totality of conduct before the grand jury did not warrant dismissal of the indictment," id. at 1473, because

the accumulation of misconduct by the Government attorneys did not significantly infringe on the grand jury's ability to exercise independent judgment.

Id. at 1474. Without a showing of such an infringement, the court held, the District Court could

Page 254

not exercise its supervisory authority to dismiss the indictment. Id. at 1474-1475.

The dissenting judge rejected the

view of the majority that prejudice to the defendant must be shown before a court can exercise its supervisory powers to dismiss an indictment on the basis of egregious prosecutorial misconduct.

Id. at 1476. In her view, the instances of prosecutorial misconduct relied on by the District Court pervaded the grand jury proceedings, rendering the remedy of dismissal necessary to safeguard the integrity of the judicial process notwithstanding the absence of prejudice to the defendants. Id. at 1479-1480.

We hold that, as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.

II

In the exercise of its supervisory authority, a federal court "may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress." United States v. Hasting, 461 U.S. 499, 505 (1983). Nevertheless, it is well established that "[e]ven a sensible and efficient use of the supervisory power . . . is invalid if it conflicts with constitutional or statutory provisions." Thomas v. Arn, 474 U.S. 140, 148 (1985). To allow otherwise "would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing." United States v. Payner, 447 U.S. 727, 737 (1980). Our previous cases have not addressed explicitly whether this rationale bars exercise of a supervisory authority where, as here, dismissal of the indictment would conflict with the harmless error inquiry mandated by the Federal Rules of Criminal Procedure.

We now hold that a federal court may not invoke supervisory power to circumvent the harmless error inquiry prescribed by Federal Rule of Criminal...

To continue reading

FREE SIGN UP