U.S. v. Chanen

• Decision Date: 03 February 1977
• Docket Number: No. 76-2571,76-2571
• Citation: 549 F.2d 1306
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Herman CHANEN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1306

549 F.2d 1306

UNITED STATES of America, Plaintiff-Appellant, v. Herman CHANEN et al., Defendants-Appellees.

No. 76-2571.

United States Court of Appeals, Ninth Circuit.

Feb. 3, 1977.

Rehearing and Rehearing En Banc Denied March 28, 1977.

John F. Flynn, Asst. U. S. Atty. (argued), of Phoenix, Ariz., for plaintiff-appellant.

Grant B. Cooper (argued), of Los Angeles, Cal., for defendants-appellees.

OPINION

Before BARNES and WALLACE, Circuit Judges, and SOLOMON, ^* District Judge.

WALLACE, Circuit Judge:

After the government had twice presented evidence to a federal grand jury and once had an indictment dismissed, a third effort resulted in the return of an indictment charging defendants Chanen, Lee and Vanlandingham with the same violations of 18 U.S.C. § 371, conspiracy to commit an offense against or defraud the United States, and of 18 U.S.C. §§ 1001 and 2, conspiring to make and making false, fictitious or fraudulent statements in a matter before a department or agency of the United States. Subsequently, however, the district court once again granted the defendants' motion to dismiss the indictment. The government appeals and we reverse.

I

On May 30 and June 12, 1974, the government presented evidence to a grand jury regarding an allegedly false claim made by National Housing Industries, Inc. (NHI) and several of its officers Chanen, Lee and Vanlandingham against the United States in the Court of Claims. The evidence consisted of the live testimony of five witnesses: Theodore P. Crowley, the FBI agent who conducted the investigation into the NHI claim; Richard Lewis, a former NHI employee who submitted an affidavit in support of the claim; Dewey Trawick, a former NHI employee who also was involved in the alleged conspiracy; Donald Ragsdale, another former NHI employee; and Marilyn Boice, a notary public who notarized the signatures on the affidavits presented in support of the NHI claim. It appears that the government at that time neither drafted and presented an indictment to the jury nor requested that the jury return a true bill. The jury did not vote on the matter. Subsequently, the grand jury was discharged.

There were no further proceedings until October 15, 1975, when the government requested and received from a second and different grand jury an indictment charging the defendants with violating 18 U.S.C. §§ 371, 1001 and 2. The second grand jury returned the indictment after hearing the testimony of Agent Crowley. As part of his presentation, Crowley summarized the testimony of the witnesses given before the first grand jury. He also presented documentary evidence regarding the charges and answered questions.

On the defendants' motion, the district court dismissed the indictment. The court apparently based the dismissal on two grounds: First, no court reporter was present at, and hence no transcript was made of, the proceedings before the second grand jury. Second, the government did not "even make any effort to present the evidence presented to the first grand jury. It's entirely hearsay before the second grand jury by the investigating FBI agent."

On April 15, 1976, with a court reporter present, a government officer read the transcripts containing the testimony given before the first grand jury to a third and different grand jury. ¹ Agent Crowley also presented documentary evidence and responded to questions from jurors. The third jury returned a true bill charging the defendants with violations of 18 U.S.C. §§ 371, 1001 and 2.

The defendants moved to dismiss the second indictment, and the motion was granted. In support of his decision to dismiss, the district judge, after reviewing the procedural history of the case outlined here, stated that "the grand jury is entitled to learn what the Government has to offer and evaluate it on that basis. And as long as the Government presented their case live before that (the first) grand jury, I think any subsequent grand jury should have the same opportunity." The judge made it clear that, in his view, the dismissal was not based on the use of hearsay evidence before the grand jury.

II

Two considerations lead us to the conclusion that the district court improperly dismissed the indictment. First, the facts and holdings of the cases dealing with this issue demonstrate rather plainly that the prosecutor's action here falls far short of the type of conduct which has been held sufficiently egregious to require dismissal of the indictment. Second, our view of the respective roles of the Executive (prosecutor) and Judicial (district court) branches of the federal government with respect to the grand jury convinces us that by dismissing the indictment the district judge overstepped the bounds of his authority and improperly interfered with decisions within the domain of the prosecutor.

A.

On occasion, and in widely-varying factual contexts, federal courts have dismissed indictments because of the way in which the prosecution sought and secured the charges from the grand jury. See, e. g., United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972); United States v. Wells, 163 F. 313 (D.Idaho 1908); United States v. DeMarco, 401 F.Supp. 505 (C.D.Cal.1975), appeal docketed, No. 75-3824, 9th Cir. Dec. 29, 1975; United States v. Gallo, 394 F.Supp. 310 (D.Conn.1975). These dismissals have been based either on constitutional grounds or on the court's inherent supervisory powers. See generally United States v. Basurto, 497 F.2d 781 (9th Cir. 1974); id. at 793 (Hufstedler, J., concurring); United States v. Estepa, supra, 471 F.2d 1132. ² Whatever the basis of the dismissal, however, the courts' goal has been the same, "to protect the integrity of the judicial process," United States v. Leibowitz, 420 F.2d 39, 42 (2d Cir. 1969), particularly the functions of the grand jury, from unfair or improper prosecutorial conduct. ³

Almost every court dealing with the issue raised here has confronted a novel set of facts. The range of prosecutorial conduct capable of inspiring allegations of unfairness appears unlimited. Indeed, the facts of this case are unlike those of any other we have been able to find. Nevertheless, a review of the cases, with particular regard for their facts, serves to define the line between prosecutorial conduct which is inimical to "the integrity of the judicial process" and conduct which does not require dismissal of the indictment.

United States v. Wells, supra, 163 F. 313, involved flagrantly abusive prosecutorial conduct. The prosecutor entered the grand jury room during that body's deliberations. When requested to leave by one of the jurors, he refused. He then expressed to the jury his personal opinion that the evidence established the guilt of the defendants and urged the grand jury to indict. As part of his address, he stated that the Department of Justice in Washington, D.C., had initiated the investigation and now wanted the indictment and that therefore the grand jury had a duty to indict. He also commented on the "forgetfulness" of the defendants in their testimony before the grand jury. In short, "the (prosecutor's) address was a plea for an indictment, substantially in manner and form as a prosecuting officer would plead for the conviction of defendants before a trial jury." Id at 322. This address, coupled with the prosecutor's demand on the foreman to sign the indictment and his brutal, badgering questioning of the defendants-witnesses, led the court to quash the indictment.

In United States v. DeMarco, supra, 401 F.Supp. 505, an attorney in the Watergate Special Prosecutor's office threatened defendant DeMarco with a new indictment in California if he exercised his venue right to move a pending criminal case from Washington, D.C., to his home district, the Central District of California. The prosecutor was anxious to try DeMarco and a co-defendant together. In effect, the venue statutes permitted the defendants to sever their cases. In the face of this threat, DeMarco exercised his statutory right and moved the pending case to California. The prosecutor retaliated by securing a new indictment on an additional charge from a California grand jury. The district court dismissed the new indictment on these grounds:

(T)he prosecutor did not disclose to the (California) grand jury that the charge could be attacked as an unjustifiable exercise of the charging power. The grand jury was entitled to be apprised of that information (i. e., the government's "venue-bargaining") so that it could make an independent judgment as to whether it was appropriate to return an indictment under the circumstances.

In this case, the government did not present information vital to the grand jury's informed and independent judgment.

Id. at 513-14.

Both United States v. Estepa, supra, 471 F.2d 1132, and United States v. Gallo, supra, 394 F.Supp. 310, applied a rule developed by the Second Circuit and dismissed indictments because of allegedly excessive and improper prosecutorial use of hearsay evidence before the grand jury. That rule has been summarized by the Fifth Circuit in these terms:

(A)n indictment based on hearsay is invalid where (1) non-hearsay evidence is readily available; (2) the grand jury is misled into believing it was hearing direct testimony rather than hearsay; and (3) there is high probability that had the grand jury heard the eye witnesses it would not have indicted.

United States v. Cruz, 478 F.2d 408, 410 (5th Cir.), cert. denied, 414 U.S. 910, 94 S.Ct. 259, 38 L.Ed.2d 148 (1973) (citations omitted). ⁴

Despite the holdings of these cases, it is clear that the courts have been reluctant to dismiss indictments because of prosecutorial misconduct. Beatrice Foods Co. v. United States, 312 F.2d 29, 39 (8th Cir.), cert. denied, 373 U.S. 904, 83 S.Ct. 1289, 10 L.Ed.2d 199 (1963). This reluctance is demonstrated by a review of several of the many cases where motions to dismiss were denied. For example, in United States v....