U.S. v. Benjamin

• Decision Date: 07 July 1988
• Docket Number: Nos. 86-1337,86-1388,s. 86-1337
• Citation: 852 F.2d 413
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David R. BENJAMIN; Philip C. Bourdette; Miriam R. Bourdette; Cecilia Jason Dederich; Dan L. Garrett, Jr.; Elizabeth Missakian; Sybil Schiff; Steven Simon; Dan Sorkin, Defendants- Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 413

852 F.2d 413

UNITED STATES of America, Plaintiff-Appellee, v. David R. BENJAMIN; Philip C. Bourdette; Miriam R Bourdette; Cecilia Jason Dederich; Dan L Garrett, Jr.; Elizabeth Missakian Sybil Schiff; Steven Simon Dan Sorkin, Defendants- Appellants.

Nos. 86-1337, 86-1388.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 1988.

Decided July 7, 1988.

William C. Brown, Dept. of Justice, Legal Advice Section, Criminal Div., Washington, D.C., for plaintiff-appellee.

Robert D. Luskin, Onek, Klein & Farr, Washington, D.C., Thomas J. Nolan, Nolan & Parnes, Palo Alto, Cal., Jay W. Powell, Powell & MacGlashan, Visalia, Cal., Robert N. Harris, Gonzalez & Harris, Mark E. Overland, Overland, Berke, Wesley, Gits, Randolph & Levanas, Los Angeles, Cal., Kenneth W. DeVaney, Salvatore Sciandra, Elia & Sciandra, Fresno, Cal., John L. Williams, Manchester & Williams, San Jose, Cal., Richard B. Mazer, San Francisco, Cal., Tom Henze, Henze, Ronan & Clark, Phoenix, Ariz., for defendants-appellants.

Appeal from the United States District Court for the Eastern District of California.

Before KOELSCH, SCHROEDER and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

Benjamin and several co-defendants, members of Synanon, have been indicted for obstruction of justice and conspiracy to obstruct justice, in connection with the alleged destruction of documents pertaining to various civil and criminal proceedings. Defendants appeal the district court's denial of their motions to dismiss the indictments. We affirm.

A motions panel of this court has held the district court's order to be an appealable collateral order. United States v. Benjamin, 812 F.2d 548 (9th Cir.1987); United States v. Dederich, 825 F.2d 1317 (9th Cir.1987). These opinions set forth the factual background of the case.

DISCUSSION

This court reviews de novo a district court's determination as to whether a prosecutor's alleged misconduct before a grand jury warrants dismissal of the indictment. United States v. De Rosa, 783 F.2d 1401, 1404 (9th Cir.1986).

Although courts have the power to dismiss indictments either on due process grounds, or under their inherent supervisory power over the administration of justice, that power is exercised sparingly.

United States v. Busher, 817 F.2d 1409, 1411 (9th Cir.1987). A defendant challenging an indictment has the burden of demonstrating that the prosecutor engaged in flagrant misconduct that deceived the grand jury or significantly impaired its ability to exercise independent judgment. Id.

The leading case in this circuit showing circumstances justifying dismissal is United States v. Samango, 607 F.2d 877 (9th Cir.1979). There, the prosecutor's presentation of the transcript testimony of a witness of dubious credibility was combined with the prosecutor's unduly rushing the grand jury decision, improper and prejudicial transcript testimony from the defendant, and testimony from only one live witness, a DEA agent, that was "laden with conclusions concerning the guilt of several defendants, [and] summarized the DEA's investigations, much of which he had not been involved with personally." 607 F.2d at 879, 881. The court concluded that the cumulative effect of these "errors and indiscretions, none of which alone might have been enough to tip the scales, operated to the defendants' prejudice by producing a biased grand jury." Id. at 884. In light of Samango we view the alleged errors by themselves and cumulatively.

I. Witness Bias

The prosecutor presented Dr. Richard Ofshe to the grand jury as a witness. Ofshe, a University of California (Berkeley) sociologist, has "devoted ten years to the study of Synanon." The prosecutor never disclosed to the grand jury that Ofshe, at the time of his testimony, was involved in civil litigation with Synanon in which he was asserting multi-million dollar claims, and which involved some of the same issues of destruction of evidence as were involved in the criminal case. The district court, while acknowledging that "the Grand Jury should have been informed of Dr. Ofshe's involvement as a civil litigant with Synanon and some of the defendants herein," nevertheless held that "Dr. Ofshe's potential bias does not constitute evidence casting serious doubts on the credibility of Dr. Ofshe as a witness."

The prosecutor has no duty to present to the grand jury all matters bearing on witness credibility. United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir.1983); Jack v. United States, 409 F.2d 522, 524 (9th Cir.1969). Nevertheless, the prosecutor is not entitled to deprive the grand jury of its opportunity to evaluate witness credibility. See United States v. Samango, 607 F.2d at 884.

In Samango, this court affirmed the dismissal of a superseding indictment that had been obtained, in part, by the prosecutor's reliance on transcript testimony of a highly dubious witness. The court of appeals stated that the prosecutor should have presented live testimony from this witness to enable the grand jury to determine the witness's credibility. 607 F.2d at 882. "[T]he prosecutor knew but did not warn the grand jury of [the witness's] dubious credibility, nor apparently did he apprise them that they could subpoena his live testimony." Id. at 881.

The defendants here argue that, under Samango, the indictments should be dismissed for the prosecutors' failure to apprise the grand jury of Ofshe's potential bias. Clearly, the prosecutor should have disclosed such obvious sources of witness bias as a witness's involvement in a multi-million dollar lawsuit against defendants. However, Samango does not support the proposition that the breach of the prosecutor's duty in this regard, alone, necessarily requires dismissal of the indictment. In Samango, the failure to disclose witness credibility problems was only one of several errors, "none of which alone might have been enough to tip the scales " justifying the extreme sanction of dismissal. (Emphasis added.) Id. at 884.

II. Rule 6(e) Violation

Defendants also challenge the denial of their motion to dismiss the indictment for alleged improper disclosure of grand jury materials to third parties, in violation of Fed.R.Crim.P. 6(e).

A. Background

Following Dr. Ofshe's testimony before the grand jury, the government decided to use Ofshe to aid its investigation because "the federal investigative agency involved in the investigation lack[ed] familiarity with Synanon records and the voices appearing on Synanon tape recordings." The government obtained from Judge Robinson ¹ an order pursuant to Rules 6(e)(3)(C)(i) and 6(e)(3)(D) to disclose various tape recordings to Ofshe as an "expert" who could assist in the investigation. The government did not inform Judge Robinson of Ofshe's involvement in litigation against Synanon. Specifically, Ofshe had filed a cross-complaint against defendants Dederich, Bourdette, Benjamin, Simon and Dan Garrett for intentional infliction of emotional distress, malicious prosecution and harassment; he had recently amended the cross-complaint to charge defendants with destruction of evidence, which is also the basis for the criminal charges. Defendants argue that the disclosure was improper because it was not authorized under Rule 6(e); and that, even if it was authorized, it was obtained by means of misrepresentation and concealment by the government, and therefore improper. Defendants argue that dismissal of the indictment is the proper remedy.

Judge Robinson, in approving the disclosure order, concluded (and the government argues here) that the materials were not "matters occurring before the grand jury" within the meaning of Rule 6(e), because "they did not reveal the strategy and direction of the grand jury investigation."

If Rule 6(e) applies, the district court has discretion to order disclosure of materials, and this court reviews the order for an abuse of discretion. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 228, 99 S.Ct. 1667, 1677, 60 L.Ed.2d 156 (1979). However, the district court's determination of whether matters are ones "occurring before the grand jury," such that Rule 6(e) applies, is a mixed question of law and fact which we review de novo.

B. Whether Rule 6(e) applies

The cases seem to agree that the touchstone of Rule 6(e)'s applicability is whether the disclosed materials would "elucidate the inner workings of the grand jury." Senate of Puerto Rico v. U.S. Dept. of Justice, 823 F.2d 574, 583 (D.C.Cir.1987) (quoting Fund for Constitutional Gov't. v. National Archives, 656 F.2d 856, 870 (D.C.Cir.1981)). However, doubt exists as to whether subpoenaed documents created for purposes unrelated to the grand jury constitute "matters occurring before the grand jury." Compare Senate of Puerto Rico, 823 F.2d at 584 (mere fact that material was presented to grand jury does not automatically establish that it would reveal grand jury's inner workings); SEC v. Dresser, 628 F.2d 1368, 1382-83 (D.C.Cir.1980) (same); United States v. Lartey, 716 F.2d 955, 964 (2d Cir.1983) (documents not cloaked in secrecy merely because they are presented to grand jury), with National Archives, 656 F.2d at 869 (scope of secrecy encompasses documents which would reveal "the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like"); Tager & Buffone v. U.S. Dept. of Justice, 590 F.Supp. 1012, 1015 (D.D.C.1984) (same); Greenspun v. C.I.R., 622 F.Supp. 551, 555 (D.D.C.1985) (information revealing what documents were placed before the grand jury covered by secrecy provisions).

To resolve this issue, we find it helpful to examine the interests underlying grand jury secrecy and Rule 6(e). In Douglas Oil, 441 U.S. at 219, 99 S.Ct. at 1673, the court noted the need: (1) to protect witnesses' willingness to come forward and testify fully and frankly; (2) to reduce the risk of flight by...