U.S. v. Furrow, CR 99-838 NM.

• Decision Date: 19 September 2000
• Docket Number: No. CR 99-838 NM.,CR 99-838 NM.
• Parties: UNITED STATES of America, Plaintiff, v. Buford O'Neal FURROW, Jr., Defendant.
• Court: U.S. District Court — Central District of California

125 F.Supp.2d 1170

UNITED STATES of America, Plaintiff, v. Buford O'Neal FURROW, Jr., Defendant.

No. CR 99-838 NM.

United States District Court, C.D. California.

September 19, 2000.

Barbara Bernstein, Special Asst. U.S. Attorney, Carolyn Wittcoff, Micahel J. Gennaco, Michael Terrell, Asst. U.S. Attorneys Criminal Division, Los Angeles, CA, for plaintiff.

Marilyn E. Bednarski, Seal Kennedy, William H. Forman, Office of the Federal Public Defender, Los Angeles, CA, Judy C. Clarke, Office of the Federal Public Defender, Spokane, WA, for defendant.

ORDER DENYING DEFENDANT'S MOTION FOR SANCTIONS FOR ABUSE OF THE GRAND JURY

MANELLA, District Judge.

I. INTRODUCTION

Criminal defendant Buford O'Neal Furrow, Jr. ("Defendant") is facing criminal prosecution for the August 10, 1999 killing of a U.S. postal worker, Joseph Ileto, the shooting of five individuals at the North Valley Jewish Community Center ("NVJCC"), and various firearms offenses. The initial indictment was issued on August 19, 1999 — nine days after commission of the charged crimes. It contained only three counts: murder of a federal employee (18 U.S.C. § 1114); use of a firearm in the commission of a felony resulting in death (18 U.S.C. § 924(c)(j)); and possession of a firearm by a felon (18 U.S.C. § 922(g)(1)). In the three months that followed, the grand jury heard testimony from 43 witnesses on a variety of topics. On December 2, 1999, the grand jury returned a superseding indictment charging Defendant with thirteen additional counts: six counts alleging interference with federally protected activities on account of the victim's race, color, religion, or national origin (18 U.S.C. § 245); five counts alleging use of a firearm in the commission of a crime of violence (18 U.S.C. § 924(c)); unlawful possession of a machinegun (18 U.S.C. § 922(o)(1)); and possession of an unregistered modified firearm (26 U.S.C. § 5861(d)). Now pending before the court is Defendant's motion for sanctions based on the government's alleged abuse of the grand jury.¹

II. DISCUSSION

A. Legal Standard

The Fifth Amendment provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...." U.S. Const., Amend. V. "A grand jury has broad investigative powers to determine whether a crime has been committed and who has committed it. The jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge." United States v. Dionisio, 410 U.S. 1, 15, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (citing Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) ("The investigative powers of the grand jury are necessarily broad if its public responsibility is to be adequately discharged.")); Port v. Heard, 594 F.Supp. 1212, 1217 (S.D.Tex.1984) ("Traditionally, the grand jury has been accorded wide latitude to inquire into violations of criminal law.").

"The investigative power of a grand jury does not necessarily end with the return of an indictment." United States v. Jones, 129 F.3d 718, 723 (2d Cir.1997). Rather, "[a] grand jury investigation is not fully carried out until every available clue has been run down and all witnesses examined. ..." Branzburg v. Hayes, 408 U.S. at 701, 92 S.Ct. 2646. However, use of the grand jury as a means for criminal discovery is prohibited. See, e.g., In re Antitrust Grand Jury Investigation, 714 F.2d 347, 349 (4th Cir.1983); United States v. Kovaleski, 406 F.Supp. 267, 269 (E.D.Mich. 1976) ("[T]he calling of witnesses before a grand jury for the dominant purpose of gathering evidence for use in a pending case is improper.").

"Once a defendant has been indicted the government is precluded from using the grand jury for the `sole or dominant purpose' of obtaining additional evidence against him."² Moss, 756 F.2d at 332; see also United States v. Dardi, 330 F.2d 316, 336 (2d Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964) ("It is improper to utilize a Grand Jury for the sole or dominating purpose of preparing an already pending indictment for trial.").

"The `dominating purpose' test presupposes that the government can have more than one purpose in calling a witness before the grand jury." Kovaleski, 406 F.Supp. at 270; In re Antitrust Grand Jury Investigation, 714 F.2d 347, 349 (4th Cir.1983) ("Even if we assume the government sought the subpoena for an improper purpose, the finding that it was also sought for a legitimate purpose is not clearly erroneous."). For example, the government may properly use the grand jury "to identify or investigate other individuals involved in criminal schemes, or to prepare superseding indictments against persons already charged." United States v. Jones, 129 F.3d 718, 723 (2d Cir.1997) (citing United States v. Sasso, 59 F.3d 341, 352 (2d Cir.1995); United States v. Leung, 40 F.3d 577, 581 (2d Cir.1994)). The grand jury also "may inquire into possible affirmative defenses and the like in order to determine whether a prosecution should proceed." Port v. Heard, 594 F.Supp. at 1217 (grand jury properly investigated existence of affirmative defenses, such as insanity); cf. Dionisio, 410 U.S. at 16-17, 93 S.Ct. 764 (The grand jury's "mission is to clear the innocent, no less than to bring to trial those who may be guilty."); United States v. Mandujano, 425 U.S. 564, 573, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (The grand jury "function[s] as a shield against arbitrary accusations.").

Proof that the government derived an incidental benefit at trial from the disputed grand jury testimony is insufficient to establish that prosecutors have abused the grand jury. See United States v. Ruppel, 666 F.2d 261, 268 (5th Cir.1982) (concluding that the government did not misuse the grand jury by calling convicted coconspirator to testify, even though testimony may have incidentally benefitted prosecution of defendant); In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1040-41 (3d Cir.1980) ("[A] good faith inquiry into other charges within the scope of the grand jury's lawful authority is not prohibited even if it uncovers further evidence against an indicted person.") [hereinafter Johanson].

"[T]he law presumes, absent a showing to the contrary, that a grand jury acts within the legitimate scope of its authority." United States v. R. Enterprises, Inc., 498 U.S. 292, 300, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991) (citing United States v. Mechanik, 475 U.S. 66, 75, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986) (O'Connor, J., concurring) ("The grand jury proceeding is accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process.")); Ruppel, 666 F.2d at 268 (applying "the presumption that the grand jury and the prosecutor have properly performed their duties" to reject defendant's claim of grand jury abuse); cf. In re Antitrust Grand Jury Investigation, 714 F.2d at 350 ("[A] court should not intervene in the grand jury process absent a compelling reason."). Accordingly, Defendant bears the burden of demonstrating that an abuse has occurred.³ See, e.g., United States v. Breitkreutz, 977 F.2d 214, 217 (6th Cir.1992) ("[A] defendant must show that the challenged witnesses were not called to accomplish a proper objective."); Johanson, 632 F.2d at 1041-42 (defendant bears burden of showing sole or dominant purpose was to prepare for pending trial).

B. Application

1. Renewal of Prior Motions

The government first argues that the instant motion is merely a renewal of defense motions filed November 17, 1999 and November 24, 1999. Opp., at 4-5. The November 17, 1999 motion sought an order staying the grand jury proceedings on the ground that the government was using the grand jury to gather penalty phase evidence against Defendant. At that time, defense counsel did not know the identity of the witnesses who had testified and had not had the opportunity to review the grand jury transcripts. Reply, at 3. Judge Paez denied emergency relief, citing a lack of factual support, and scheduled a hearing on the motion. Defendant's November 24, 1999 motion asked the court to quash certain grand jury subpoenas and again sought a stay of the grand jury investigation. On December 6, 1999, Defendant withdrew the pending motions, as the grand jury had returned a superseding indictment and then disbanded. Because Defendant did not receive a full hearing on the merits of his prior motions and because the instant motion is based on new evidence — the grand jury transcripts — the court concludes that the instant motion has not been previously decided and will proceed to address the merits.

2. Improper Use of the Grand Jury

Defendant claims that the government used the grand jury for the improper purpose of gathering evidence for use in connection with the penalty phase of Defendant's upcoming trial. Mot., at 13. Defendant specifically objects to the government's interrogation of witnesses on the following topics: Defendant's mental health; his use of prescription medication, illicit drugs, and alcohol; his ability to behave as "functioning member of society"; his sexual relationships and female companions; his tendency to become angry, initiate conflicts, or issue threats. Mot., at 2. The government contends that the primary purpose of the grand jury investigation was threefold: 1) to identify the individuals responsible for the August 10, 1999 shootings; 2) to determine whether Defendant possessed the requisite religious and racial animus to be charged under Section 245; and 3) to determine whether Defendant possessed the requisite specific intent to be charged under Section 245. Opp., at 7-22.

Defendant argues that the government acted improperly by summoning Defendant's personal friends and family members, none of whom witnessed the August 10, 1999 shootings, to testify before the grand jury. Mot., at 9. The grand jury is not limited,...