U.S. v. LaRouche Campaign

• Citation: 829 F.2d 250
• Decision Date: 17 September 1987
• Docket Number: No. 87-1731,87-1731
• Parties: UNITED STATES, Appellee, v. The LAROUCHE CAMPAIGN, et al., Defendants, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 250

829 F.2d 250

UNITED STATES, Appellee, v. The LAROUCHE CAMPAIGN, et al., Defendants, Appellants.

No. 87-1731.

United States Court of Appeals First Circuit.

Submitted Sept. 11, 1987.

Decided Sept. 17, 1987.

William B. Moffitt, Lisa Bondareff Kemler, William B. Moffitt & Associates, Alexandria Va., L. Barrett Boss, and Asbill, Junkin, Myers & Buffone, Washington, D.C., on brief, for defendants, appellants.

John J.E. Markham, II, Asst. U.S. Atty., Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., and Mark D. Rasch, Trial Atty., U.S. Dept. of Justice, Washington, D.C., on brief, for appellee.

Before BOWNES, BREYER and SELYA, Circuit Judges.

PER CURIAM.

Defendants have been charged in an over one hundred count indictment with credit card fraud, conspiracy to obstruct the grand jury investigation of the credit card fraud, and criminal contempt. They seek to bring an interlocutory appeal from the district court's July 30, 1987, June 12, 1987, and August 29, 1987 orders denying their motion to dismiss the indictment because of various alleged abuses of the grand jury process. We conclude we lack appellate jurisdiction to hear these appeals because the orders sought to be appealed are not immediately appealable.

The type of grand jury abuse defendants complained about to the district court included the following. They contended that it was improper for the grand jury which was the victim or object of an alleged conspiracy to obstruct justice to be the one to return an indictment charging conspiracy to obstruct justice; that the grand jury was used to investigate a pending indictment; that exculpatory evidence had been withheld from the grand jury; that the prosecutor had asked questions before the grand jury implying wrongdoing without any basis for the questions; that just outside the door of the grand jury room the prosecutor had accused a witness of lying in a loud voice; that the indicting grand jury may have been presented with excessive hearsay, misleading summaries of earlier grand jury testimony or truncated, out of context excerpts from the transcripts of earlier testimony; and that the government had violated Fed.R.Cr.P. 6(e)(2)'s secrecy provisions by disclosing impounded material to the press and public. ¹ In general, according to defendants, the government had engaged in a persistent and pervasive pattern of grand jury abuse designed to compromise and undermine the impartiality of the grand jury in violation of the Fifth Amendment.

Defendants sought discovery of "ministerial" grand jury materials (including whether either transcripts of testimony or summaries of testimony had been presented to the grand jury and, if so, whose) as well as a description of the evidence presented to the first grand jury but not the second to substantiate and prove their allegations. Broad discovery was not allowed. In a June 12, 1987 memorandum and order, the district court denied all of defendants' motions to dismiss on the grounds of grand jury abuse with two exceptions. First, with respect to defendants' hearsay claims, the court requested the government to submit affidavits indicating whether transcripts or transcript summaries had been presented to the grand jury and, if so, the manner in which it was done and the reasons why entire transcripts had not been submitted. This explanation was to be presented initially ex parte in camera if the government contended such was necessary to protect grand jury secrecy. Second, with respect to the improper disclosure claims, the court concluded, on an incomplete record, that the government appeared to have misinterpreted an unimpoundment order (see footnote 1), but that defendants had not made a prima facie showing of prejudice justifying any sanctions. Because of the incomplete record, the court gave the parties additional time to supplement the record in particular respects.

Thereafter, an ex parte in camera affidavit with respect to the manner in which information was conveyed from one grand jury to the next was received, and the court, in a July 8, 1987 order, denied defendants relief with respect to their hearsay allegations. Similarly, in a July 30, 1987 order, the court, after receiving further submissions, denied relief with respect to defendants' claims predicated on the government's allegedly improper disclosure of impounded grand jury materials to the press and public. A further August 29, 1987 order denied defendant LaRouche's motions to dismiss.

On appeal, defendants contend, with respect to the merits of their appeal, that the district court erred both in refusing them an evidentiary hearing or further disclosure of grand jury material and in denying the motions to dismiss the indictment because of grand jury abuse.

First, however, is the jurisdictional question. As defendants recognize, with narrow exceptions, ordinarily a defendant may only appeal from a final judgment of conviction. They contend, however, that an interlocutory appeal from the denial of their motions to dismiss the indictment should be allowed in this case under the collateral order doctrine. Defendants say they have a right to be tried only upon charges brought by an unbiased, informed grand jury. Unless interlocutory appeal is allowed, this right will be irrevocably lost for two reasons. First, under the Supreme Court's decision in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), if defendants are convicted, relief because of grand jury irregularities may not be available. Second, even if Mechanik does not preclude setting aside a conviction because of grand jury abuse, relief after conviction comes too late, for the asserted right not to be tried except upon indictment by an unbiased grand jury is lost. In other words, the asserted right is not merely a right not to be convicted in certain circumstances, but a right not to be tried unless the indicting grand jury was properly informed and unbiased.

Defendants point to no case accepting the argument that the Fifth Amendment confers a right not to stand trial unless grand jury proceedings are free of irregularities and that hence any denial of such a right is immediately reviewable. Indeed, prior to Mechanik, the argument that the character of the Fifth Amendment grand jury provision was a right not to stand trial absent grand jury irregularities was rejected and it was concluded that flawed grand jury proceedings could be effectively reviewed and remedied after conviction. United States v. Garner, 632 F.2d 758, 765-766 (9th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981). We turn, therefore, to defendants' argument based on United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986).

The defendants in Mechanik were convicted of both conspiracy and substantive drug offenses. During their trial, they discovered that two witness had been present testifying together before the grand jury which had returned the superceding indictment on which defendants were tried, and they moved to dismiss the superceding indictment on the ground the simultaneous presence violated Fed.R.Cr.R. 6(d). The district court denied the motion, but on appeal from their final judgment of conviction, the Fourth Circuit determined that the simultaneous presence had violated Rule 6(d), that this violation had tainted the conspiracy portion of the superceding indictment, and that regardless of whether or not defendants had been prejudiced, the conspiracy conviction must be reversed and that portion of the indictment dismissed. The Supreme Court disagreed and reinstated the conviction. It reasoned that the purpose of Rule 6(d) was to protect a defendant against having to stand trial when there was no probable cause to believe him guilty. A petit jury's return of a guilty verdict, however, meant that there in fact had been probable cause, and hence "any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt." 106 S.Ct. at 942. The Court expressly stated no opinion concerning what remedy a district court, presented with a pre-trial motion to dismiss an indictment because of a Rule 6(d) violation, might properly grant. Cataloging the costs of retrial after conviction, however-- the expense of retrial, the pain of victims' having once again to retell their experiences, the risk that due to passage of time, dimming of memories, and dispersion of witnesses the prosecution may not be able to reprove its case, the adverse effect on deterence and rehabilitation-- the Court concluded "the societal costs of retrial after a jury verdict of guilty are far too substantial to justify setting aside the verdict simply because of an error in the earlier grand jury proceedings." Id. at 942-943.

Consequently, defendants argue that if they were convicted and if Mechanik 's harmless error analysis were then applied on appeal to defendants' claim of grand jury abuse, defendants likely would be denied relief, and grand jury abuse would go uncorrected. They therefore contend...