U.S. v. Maceo, 88-1300

• Citation: 873 F.2d 1
• Decision Date: 07 December 1988
• Docket Number: No. 88-1300,88-1300
• Parties: UNITED STATES of America, Appellee, v. Roberto MACEO, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1

873 F.2d 1

UNITED STATES of America, Appellee, v. Roberto MACEO, Defendant, Appellant.

No. 88-1300.

United States Court of Appeals, First Circuit.

Heard Dec. 7, 1988.

Decided April 19, 1989.

Joel D. Landry, by Appointment of the Court, with whom Connors & Kilguss, Providence, R.I., was on brief, for defendant, appellant.

Michael E. Davitt, Sp. Atty., Dept. of Justice, Washington, D.C., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

Roberto Maceo is appealing his conviction and fifteen year sentence for knowingly and intentionally distributing in excess of five grams of a mixture containing cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B). Maceo claims that his conviction must be reversed because there was insufficient evidence to support the underlying indictment or to support his conviction, because of prosecutorial misconduct before the trial which led to the violation of his constitutional rights, and because of jury prejudice. Also, he argues that, even if his conviction is upheld, his case must be remanded for resentencing because he was sentenced under a statute that was enacted after the date of the alleged offense and thus is an ex post facto law in violation of Article 1, Sec. 9 of the Constitution. We disagree and therefore affirm.

I.

The government's case against appellant is based largely on the testimony of George Haddock, a detective with the East Providence Police Department that was working on this case with the Drug Enforcement Administration (the "DEA"). On July 15, 1987, Haddock met with Maceo and another man, Johnny Velasquez. They agreed to supply Haddock with 250 vials of "crack." After discussing the terms of this transaction, Maceo and Velasquez left the meeting area for approximately one-half hour. When they returned, detective Haddock gave the two men $1,500 for the purchase of "a clear plastic bag containing a quantity of vials containing a grayish, gummy substance," presumably the desired "crack." No arrests were made at that time.

On September 23, 1987, detective Haddock testified before a federal grand jury. Maceo contends, and the record appears to support his allegations, that Haddock made a number of misrepresentations at this time. First, detective Haddock testified that he was introduced to "a subject by the name of Robert Maceo," although later trial testimony revealed that he had only been introduced to the man as "Roberto." Also, Haddock testified that Maceo was arrested shortly after the original sale. Finally, he testified that the drugs had been immediately field tested, when in fact no field test had ever been conducted. Maceo does not allege that the prosecutor knew that these statements were false at the time of this testimony.

On the basis of this testimony, the Grand Jury issued a one count indictment against Maceo. He moved to quash the indictment, which, after conducting a hearing, the trial judge denied.

On the morning that Maceo's trial was set to begin, a United States Marshal, allegedly acting upon the instructions of the prosecutor in the case, went to appellant's cell and carefully examined his teeth and gums. Appellant asserts that this examination was conducted in order to verify detective Haddock's description of Maceo's teeth as rotten. Maceo's counsel was never informed of this incident and neither party introduced any evidence at trial about the examination. After a jury verdict of guilty, appellant's motion for a new trial was denied.

II.

It is now well-settled that "[a]n indictment returned by a legally constituted and unbiased grand jury, ... if valid on its face, is enough to call for trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956). A court should not inquire into the sufficiency of the evidence before the indicting grand jury, because the grand jury proceeding is a preliminary phase of the criminal justice process and all constitutional protections will be afforded during trial. See United States v. De Rosa, 783 F.2d 1401, 1405 (9th Cir.), cert. denied, 477 U.S. 908, 106 S.Ct. 3282, 91 L.Ed.2d 571 (1986). Any other rule would force criminal defendants and the court to bear two trials on the charges:

If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the fifth amendment.

Costello, 350 U.S. at 362-63, 76 S.Ct. at 408-09.

Under certain circumstances, however, it is appropriate to inquire into the proceedings surrounding a grand jury's decision to indict. Generally, a court, under its supervisory powers, will dismiss an indictment if there has been prosecutorial misconduct that actually biases the grand jury in performing its fact-finding function. See, e.g., United States v. Basurto, 497 F.2d 781 (9th Cir.1974). See generally, Arenella, Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication, 78 Mich.L.Rev. 463, 539-58 (1980).

In Basurto, the Ninth Circuit Court of Appeals reversed the appellant's conviction when the prosecutor in the case discovered, before trial, that a key witness in the case had perjured himself during his grand jury testimony. The prosecutor, upon discovering the perjury, informed defense counsel but did not tell the court and the trial proceeded. The appeals court held, in reversing Basurto's conviction, that "the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached." Id. at 785.

This circuit has not yet adopted the holding in Basurto. See United States v. Flaherty, 668 F.2d 566, 584 (1st Cir.1981). In Flaherty, this court was able to avoid the question by focusing on the materiality of the misrepresentations, as the perjured testimony at issue was found to be completely immaterial to the indictment. Id.

Other courts have specifically rejected the strict approach adopted in Basurto. See United States v. Adamo, 742 F.2d 927, 940 (6th Cir.1984) (agreeing with the "basic ethical philosophy of the Ninth Circuit[ ]," but rejecting the imposition of such stringent requirements on the prosecutor), cert. denied, 469 U.S. 1193, 105 S.Ct. 971, 83 L.Ed.2d 975 (1985). The court in Adamo specifically rejected the contention that a prosecutor would be obliged to move for dismissal if evidence at trial indicates that a witness before the grand jury had committed perjury. Instead, the Sixth Circuit required a finding that the defendant's right to a fair trial had actually been undermined and that "actual prejudice" had occurred. Id. at 941. "It is enough that there is some competent evidence to sustain the charge issued by the Grand Jury even though other evidence before it is incompetent or irrelevant in an evidentiary sense or even false." Coppedge v. United States, 311 F.2d 128, 132 (D.C.Cir.1962) (emphasis in original), cert. denied, 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701 (1963), quoted in Adamo, 742 F.2d at 939.

Our role in this case is only to review the determination made by the court below in deciding not to dismiss the indictment. Thus, our review is limited to determining if the district court abused its discretion in making that decision. See United States v. Powell, 823 F.2d 996, 1001 (6th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 464, 98 L.Ed.2d 403 (1987); Flaherty, 668 F.2d at 583.

Although Maceo basically argues that there was insufficient evidence to support the indictment, a claim which we would not review, Maceo also argues prosecutorial misconduct because the government's witness allegedly perjured himself while testifying before the grand jury. He does not, however, argue that the prosecutor was aware that the witness was testifying untruthfully. Moreover, there are no detailed allegations that perjury, defined as an intentional, voluntary, and knowing false statement, see United States v. Johnson, 767 F.2d 1259, 1275 (8th Cir.1985), actually occurred. Three misrepresentations are at issue: first, using defendant's full name, Roberto Maceo, in connection with the original meeting, although later testimony indicated that he was only introduced as Roberto; second, testimony which could be construed as alleging that Maceo was arrested soon after the drug transaction; and third, that the drugs were positively field tested when in fact these tests were never conducted.

Although the first two statements were unclear, there is no evidence that Haddock was intentionally and knowingly making false statements. "Misstatements or mistakes alone do not justify dismissing an indictment that is facially valid." Id. The last statement is more difficult as Haddock knew that no field test was performed and yet specifically stated the opposite during his grand jury testimony. ¹ Clearly, there was other sufficient evidence that was both competent and material (such as Officer Haddock's eyewitness testimony about the actual transaction) to sustain the charge issued. Moreover, even Maceo does not claim that the prosecutor was aware of the falsity of this statement. Thus, because no actual prejudice has been shown, we affirm the district court's decision not to dismiss the indictment, without deciding whether this statement amounted to perjury by the officer in question.

III.

Maceo also argues that the Marshal's examination of his teeth...