U.S. v. Daniels

• Decision Date: 21 June 1990
• Docket Number: 89-2017,89-2025 and 89-3176,89-2015,Nos. 89-2014,s. 89-2014
• Citation: 902 F.2d 1238
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roosevelt DANIELS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1238

902 F.2d 1238

UNITED STATES of America, Plaintiff-Appellee, v. Roosevelt DANIELS, et al., Defendants-Appellants.

Nos. 89-2014, 89-2015, 89-2017, 89-2025 and 89-3176.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 18, 1990.

Decided May 10, 1990.

Rehearing and Rehearing En Banc Denied June 11, 1990.

Rehearing and Rehearing En Banc Denied June 21, 1990.

Thomas M. Durkin, Asst. U.S. Atty., Lisa K. Osofsky, Victoria J. Meyers, Barry R. Elden, Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, Ill., for the U.S Jon K. Stromsta, Michael H. King, Kurt H. Feuer, Ross & Hardies, Chicago, Ill., for Roosevelt Daniels.

Chris Averkiou, Chicago, Ill., for Edward Fitzgerald.

Michael B. Cohen, Chicago, Ill., for Lawrence Lee.

Lawrence Lee, pro se.

Douglas P. Roller, Rooks, Pitts & Poust, Chicago, Ill., for Sandra Campbell.

Before CUMMINGS, POSNER, and MANION, Circuit Judges.

POSNER, Circuit Judge.

The five defendants whose appeals we have consolidated were charged with large-scale federal drug offenses orchestrated by defendant Daniels, in part through telephone calls to the other defendants from the Metropolitan Correctional Center in Chicago, where he was awaiting trial for his drug activities. The evidence of guilt being overwhelming, the defendants pleaded guilty, reserving however several issues for appeal. Later they moved to set aside their guilty pleas, but Judge Holderman denied the motion and in 1989 sentenced the defendants to prison for terms ranging up to 55 years (for Daniels). Although the sentences are exceedingly long (especially since they are not subject to parole), the defendants' offenses were brazen, far-flung, and enormously profitable.

The principal issue is the validity of the indictment. Section 3331 of the Criminal Code places an eighteen-month limit on the life of a federal grand jury, unless the district court enters an order extending it. An indictment issued by a grand jury whose term is up and has not been validly extended is void, United States v. Bolton, 893 F.2d 894 (7th Cir.1990) (per curiam), so like other jurisdictional rules this is a technicality with teeth. The term of the Special October 1984 Grand Jury that indicted the defendants expired on April 1, 1986, and the defendants were not indicted till August, so it is critical whether the life of the grand jury was extended. No order extending it exists but in United States v. Taylor, 841 F.2d 1300, 1306 (7th Cir.1988), a case involving the same grand jury, we held that it was enough that Chief Judge McGarr, who had presided over the Special October 1984 Grand Jury, had made a determination to extend it for another six months. As evidence that he had made such a determination we cited a "nunc pro tunc " order that he had issued on March 3, 1987, after the grand jury's term had (even if extended) expired. When, shortly after Taylor came down, the defendants asked us for a writ of mandamus directing Judge Holderman to dismiss the indictment because the grand jury's term had expired, we denied the writ, stating that Taylor "controls this case." In re Daniels, No. 88-1750 (7th Cir. April 25, 1988) (unpublished).

The government argues that In re Daniels establishes the law of this case, thus providing another reason besides stare decisis why we should not reexamine Taylor. But we are not disposed to reexamine the holding of Taylor in any event, the holding being only that a formal order is not necessary to extend the life of a grand jury. Although the defendants in this case disagree with that holding, the main thrust of their argument is different. It is that the nunc pro tunc order is not reliable evidence of Judge McGarr's determination to extend the grand jury.

When the order was issued, not only had the grand jury's term, even if it had been extended by six months, expired, but Judge McGarr was no longer chief judge and hence was no longer presiding over grand juries. On both accounts he had no authority to extend the life of the grand jury. A judge may correct a clerical error at any time, pursuant to Rule 36 of the criminal rules, a parallel provision to the better known rule 60(a) of the civil rules. But he may not rewrite history. United States v. Janik, 723 F.2d 537, 545 (7th Cir.1983); King v. Ionization International, Inc., 825 F.2d 1180, 1188 (7th Cir.1987). The significance of Judge McGarr's nunc pro tunc "order" (not really an order) is evidentiary, as is apparent from its wording, which speaks of Judge McGarr's recollections and intentions during the grand jury's initial eighteen-month term. In Taylor we were given no reason to doubt the reliability of these recollections and intentions and treated the "order" as, in effect, an unrebutted affidavit. The present defendants have submitted evidence, which Judge Holderman may have brushed aside too quickly, that the order is not reliable. The order was drafted by government lawyers and given to Judge McGarr to sign without notice to the defendants or to their lawyers. It is signed but of course not attested.

Imagine that Judge McGarr had retired before March 1987 and it became necessary to determine whether he had extended the term of the grand jury during its initial eighteen-month term. The government could not have gone to Judge McGarr and asked him for an order; a retired judge (as distinct from a judge who, having reached retirement age, remains in service as a senior judge) has no authority to issue orders. The government would have had to ask Judge McGarr for an affidavit and the defendants would have been entitled to contest the affidavit by suitable means which might have included questioning both the grand jurors and Judge McGarr under oath. What difference should it make that Judge McGarr had not yet retired (he has retired since, and returned to the practice of law) when the government lawyers came to see him? He was no longer presiding over grand juries and had no authority to issue orders concerning them; in any event the Special October 1984 Grand Jury had disbanded and its members had dispersed.

The issue of the adequacy of Judge McGarr's order as evidence was not clearly presented in Taylor. The defendants' subsequent petition for mandamus raised it clearly enough but the issue was not a suitable one for mandamus and our remark in denying the petition that Taylor "controls this case" was dictum. In both of those proceedings we assumed rather than determined the reliability of the nunc pro tunc order as evidence of Judge McGarr's recollections and intentions. What is more, in disposing of still another futile effort by the defendants to obtain a premature determination of the issue, the same panel that had denied the petition for mandamus later reassured the defendants that their challenge to the indictment would be considered on the merits when properly raised. United States v. Daniels, 848 F.2d 758, 760 (7th Cir.1988). There was no suggestion that the law of the case doctrine would prevent such consideration.

We did say in Taylor that we were examining Judge McGarr's order to determine whether "it contains evidence" that the judge had made the requisite determination to extend the grand jury's life, and that "this evidence [the order, plus the fact that the grand jury had voted to extend itself] suffices to show that the [Special October] 1984 Grand Jury was properly extended for six months." 841 F.2d at 1308-09. But the word "evidence" was not used with its technical legal meaning. The ex parte character of the order and the fact that Judge McGarr was no longer chief judge when he signed it should have been evident but they were not discussed and their significance was not grasped. The order's adequacy as evidence was, in short, not confronted. Judicial assumptions concerning, judicial allusions to, and judicial discussions of issues that are not contested are not holdings. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 918, 79 L.Ed.2d 67 (1984); Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372, 1377 n. 5, 39 L.Ed.2d 577 (1974); Zenith Radio Corp. v. United States, 437 U.S. 443, 459-62, 98 S.Ct. 2441, 2449-51, 57 L.Ed.2d 337 (1978); United States v. House, 808 F.2d 508, 511 (7th Cir.1986); Glidden v. Chromalloy American Corp., 808 F.2d 621, 625 (7th Cir.1986); Zbaraz v. Hartigan, 763 F.2d 1532, 1544-45 (7th Cir.1985). The holding of Taylor is simply that the absence of an order entered before the initial term of the grand jury had expired was not a fatal defect invalidating the indictment. That holding would not be impaired by a conclusion based on the different record and arguments in the present case that the evidentiary foundations for the finding that the grand jury was in fact extended are too wobbly to permit the matter to rest.

Taylor refers repeatedly to Judge McGarr's "determination," made during the life of the grand jury though memorialized afterward, to extend that life. Another name for "determination" is, it might seem, "order," making the failure to memorialize it in a writing the kind of clerical oversight that can be corrected (without notice) under Rule 60(a) of the civil rules or, as here, Rule 36 of the criminal rules. Such a correction can be made, in the words of Rule 36, "by the court at any time." Judge McGarr was a judge of the district court when he made the correction, and the proper member of a court to correct an oversight is the judge who committed the oversight in the first place. Since Rule 36 empowers the judge to act on his own initiative, the fact that the oversight was drawn to his attention by an ex parte submission of one of the parties would not invalidate the corrective order.

Unfortunately there is no way in which Judge McGarr's "determination" to extend the life of the grand jury can be deemed an "order." Not only does Taylor deny the possibility of such a characterization, 841 F.2d at 1306, but an order is a public act,...