Franzi v. Superior Court of Arizona In and For Pima County

• Decision Date: 13 March 1984
• Docket Number: No. 17016-PR,17016-PR
• Citation: 139 Ariz. 556,679 P.2d 1043
• Parties: Emil FRANZI, Petitioner, v. The SUPERIOR COURT OF ARIZONA, In and For the COUNTY OF PIMA, and the Honorable Joseph Livermore, judge pro tempore, Respondents. and The STATE of Arizona, Respondent/Real Party in Interest.
• Court: Arizona Supreme Court

Page 1043

679 P.2d 1043

139 Ariz. 556

Emil FRANZI, Petitioner, v. The SUPERIOR COURT OF ARIZONA, In and For the COUNTY OF PIMA, and the Honorable Joseph Livermore, judge pro tempore, Respondents. and The STATE of Arizona, Respondent/Real Party in Interest.

No. 17016-PR.

Supreme Court of Arizona, In Banc.

March 13, 1984.

William J. Risner, Tucson, for petitioner

Stephen D. Neely, Pima County Atty., Tucson, for respondents.

HAYS, Justice.

Petitioner Emil Franzi is under indictment for six counts of perjury, A.R.S. § 13-2702(A), and six counts of false swearing, A.R.S. § 13-2703(A), based on his testimony before a grand jury in Pima County. We have jurisdiction pursuant to the Rules of Procedure for Special Actions, rule 8.

In August of 1982, the 51st grand jury for Pima County began an investigation into a contract awarded by the Pima County Board of Supervisors to an Arizona company. The investigation number was 51 G.J. 43. That investigation led to an investigation into the ultimately unsuccessful congressional campaign of one of the members of the Board of Supervisors. The second investigation number was 51 G.J. 263.

Franzi was granted immunity to testify during the latter investigation as to any violation of substantive campaign law. After being duly sworn, but before testifying, Franzi was told that false statements would result in prosecution for perjury or After this indictment, which is the only indictment to be returned by the 51st grand jury, Franzi filed motions to dismiss on various grounds, all of which the trial court denied. Franzi also filed a motion for discovery which was granted in part and denied in part. Franzi filed a special action in the court of appeals raising all the issues that had been decided adversely to his position. The court of appeals denied jurisdiction except to grant Franzi relief on his discovery motion. Franzi filed a petition for review in this court contesting the remaining issues on which he had been denied relief. The state filed a petition for review stating that the ruling of the court of appeals on the discovery issue was erroneous. We accepted jurisdiction on both petitions for review. The proceedings below were stayed pending the resolution of this matter. Additional facts will be discussed as necessary.

false swearing. He indicated he understood his obligation to testify truthfully.

JURISDICTION

Franzi argues that the indictment against him ought to be dismissed because the Pima County Grand Jury does not have jurisdiction to investigate a congressional campaign. He states that a county grand jury cannot indict for federal crimes and this grand jury's investigation is therefore void. The resolution of this claim requires us to determine the scope of the grand jury's power to investigate. If the instant investigation exceeded that power, we must determine if this is a defense to the present charges.

The question presented is whether the investigative powers of the county grand jury exceed its power to indict. A.R.S. § 21-407(A) provides in pertinent part: "The grand jurors shall inquire into every offense which may be tried within the county ...." In Marston's Inc. v. Strand, 114 Ariz. 260, 560 P.2d 778 (1977), we discussed the function and powers of the grand jury. We said that the grand jury is an independent investigative body designed to bring to trial those who may be guilty and free the innocent from suspicion. Id. at 264, 560 P.2d at 782. To fulfill that function the grand jury has the right to every person's evidence, absent a constitutional, common law, or statutory privilege. Id. And a witness before the grand jury cannot set limits to the grand jury's investigation; furthermore, to fulfill its task of returning only well-founded indictments, the grand jury's power to investigate is necessarily broad. Id. at 264-65, 560 P.2d 782-83.

In Marston's, supra, we did not reach the precise issue presented today; however, the courts that have addressed this issue have resolved the issue in favor of the grand jury's right to investigate beyond its authority to indict. In Samish v. Superior Court, 28 Cal.App.2d 685, 83 P.2d 305, 306 (1938), the California Court of Appeals said:

One of the chief purposes of a grand jury is to investigate and ascertain whether crimes have been committed within the borders of its county and to institute criminal prosecutions thereof. A grand jury is not deprived of jurisdiction to investigate asserted public offenses merely because its members are uncertain as to whether a crime was actually committed, whether it was really committed within the borders of the county, or because of a lack of identity of the particular individual who perpetrated the crime. If it should develop after a thorough investigation by a grand jury that the alleged crime was really committed in another county that does not render the proceedings invalid or void, but merely precludes the presenting of an indictment therefor in that county.

And in United States v. McInnis, 601 F.2d 1319, 1327 (5th Cir.1979), cert. denied, 445 U.S. 962, 100 S.Ct. 1649, 64 L.Ed.2d 237 (1980), the Fifth Circuit said:

A grand jury might, following an investigation, decide that a federal offense had likely been committed but refuse to return an indictment; it might decide that the conduct investigated was a state, but not a federal crime, or that the actions See also United States v. Jacobs, 543 F.2d 18, 21 (7th Cir.1976), cert. denied, 431 U.S. 929, 97 S.Ct. 2632, 53 L.Ed.2d 244 (1977) (grand jury may investigate even though result may be that no indictable offenses had been committed); United States v. Doulin, 538 F.2d 466, 470 (2d Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976) (assuming grand jury had no authority to indict defendant for substantive crime out of which his perjury conviction stemmed, it would be, if true, irrelevant, as the grand jury's responsibility to investigate is not coterminous with its power to indict); United States v. Cuevas, 510 F.2d 848, 852 (2d Cir.1975) (E.D.N.Y. federal grand jury can investigate criminal activity in S.D.N.Y. as the information could lead to prosecution of offenses in E.D.N.Y.); Brown v. United States, 245 F.2d 549, 554 (8th Cir.1957) ("broad investigatory powers of a grand jury ... extend ... to an inquiry into facts that occurred in another district provided that such inquiry has to do with relevant matters.").

were not criminal. Unless the grand jury has such latitude, there is little reason for its existence, and it would be incapable of protecting citizens by exercise of its independent judgment. (citation omitted)

We agree with these courts that the grand jury's power to investigate may exceed its authority to indict. The grand jury's power to investigate events that occurred within the jurisdictional boundaries of another political entity exists only to the extent that the lead or tip being investigated is reasonably calculated to result in information concerning indictable criminal activity.

The next question, therefore, would seem to be whether the grand jury was acting within its jurisdiction while investigating the congressional campaign. However, Franzi did answer the questions and allegedly answered them falsely. What effect do his alleged false statements have, if any, on his claim that the grand jury's lack of jurisdiction to investigate is a defense to the charges against him? In United States v. Mandujano, 425 U.S. 564, 576-77, 96 S.Ct. 1768, 1776, 48 L.Ed.2d 212 (1976), the United States Supreme Court said that in our

constitutional process of securing a witness' testimony, perjury simply has no place whatever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings....

... [O]ur cases have consistently--indeed without exception--allowed sanctions for false statements or perjury; they have done so even in instances where the perjurer complained that the Government exceeded its constitutional powers in making the inquiry. See, e.g., United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969); Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Kay v. United States, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 607 (1938); United States v. Kapp, 302 U.S. 214, 58 S.Ct. 182, 82 L.Ed. 205 (1937).

In Bryson, supra, the Court said:

[I]t cannot be thought that as a general principle of law a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government's right to ask questions--lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and wilfully answer with a falsehood.

396 U.S. at 72, 90 S.Ct. at 360 (footnote omitted).

In the context of a county grand jury, we hold that lack of jurisdiction on the part of the grand jury to make an inquiry may not be raised as a defense if the response to the objectionable question is allegedly false. See generally Model Penal Code and Commentaries, Part II, § 241.1, at 128-29 (1980). We note that to prove the crime of perjury, the state is required to prove the materiality of the Although the state need not prove materiality for the crime of false swearing, A.R.S. § 13-2703(A), and, therefore, need not prove the propriety of its inquiry, we hold that a defendant charged with the crime of false swearing may not raise at trial the defense of lack of jurisdiction on the part of the grand jury. Our system provides another method to test the power of the grand jury.

statement. A.R.S. § 13-2702(A). If the state proves the statement was material (see infra section entitled "Materiality"), the state will also have proved that the grand jury was within its authority to ask the question. Thus, the issue of jurisdiction will...