U.S. v. McKenzie, 81-3551

• Decision Date: 18 June 1982
• Docket Number: No. 81-3551,81-3551
• Parties: 10 Fed. R. Evid. Serv. 1484 UNITED STATES of America, Plaintiff-Appellants, v. John E. McKENZIE, Dale Bonura, Stephen Farrar, Stephen Reboul, Ronald F. Brink, Thomas R. Woodall and Richard LeBlanc, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 629

678 F.2d 629

10 Fed. R. Evid. Serv. 1484

UNITED STATES of America, Plaintiff-Appellants, v. John E. McKENZIE, Dale Bonura, Stephen Farrar, Stephen

Reboul, Ronald F. Brink, Thomas R. Woodall and

Richard LeBlanc, Defendants-Appellees.

No. 81-3551.

United States Court of Appeals, Fifth Circuit.

June 18, 1982.

John P. Volz, U. S. Atty., Morris Reed, Asst. U. S. Atty., New Orleans, La., Michael Johnson, Mark L. Gross, William Bradford Reynolds, Walter W. Barnett, Attys., Daniel F. Rinzel, Crim. Section, Civil Rights Division, Dept. of Justice, Washington, D. C., for plaintiffs-appellants.

Ralph Capitelli, New Orleans, La., for McKenzie.

Ralph S. Whalen, New Orleans, La., for Bonura, Farrar, Reboul and Brink.

Wally Rothschild, New Orleans, La., for Woodall and LeBlanc.

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

Before CLARK, Chief Judge, GEE and GARWOOD, Circuit Judges.

GEE, Circuit Judge:

The district court dismissed the indictment in this case because of prosecutorial misconduct, and the government appeals.

On November 8, 1980, a New Orleans police officer was shot to death. There followed an intensive investigation by the police department to learn the identity of his murderers. During the investigation four citizens were killed by New Orleans police officers amidst allegations of beatings, illegal interrogations, and illegal arrests by police. The Department of Justice empaneled a grand jury to investigate whether the alleged police misconduct violated federal law. The grand jury sat between December 1980 and July 1981, hearing about 50 witnesses, and returned an indictment charging seven New Orleans homicide detectives with violating 18 U.S.C. § 2, § 242 (deprivation of liberty without due process while acting under color of law) and 18 U.S.C. § 241 (conspiracy to deny liberty rights without due process). In response to defendants' motion for a bill of particulars, the district court reviewed in camera the transcript of discussions between the prosecution and the grand jury over the last two days of the grand jury. The court ordered the bulk of the transcripts released to the defendants, and the defendants moved to dismiss the indictments for prosecutorial misconduct before the grand jury. After a two-day hearing, the court dismissed the indictment on two grounds: (1) defendants' constitutional right not to be brought to trial except after a valid indictment and (2) the district court's supervisory power to protect the integrity of the grand jury process. The district court further stated that "(i)n those situations where it is necessary for the court to exercise its supervisory powers due to an abuse of the grand jury process, the existence of actual prejudice to the accused is unnecessary," citing United States v. Phillips Petroleum Co., 435 F.Supp. 610 (N.D.Okla.1977).

This conclusion contradicts the rule of this circuit, which states that even in the case of the most "egregious prosecutorial misconduct," the indictment may be dismissed only "upon a showing of actual prejudice to the accused." United States v. Merlino, 595 F.2d 1016, 1018 (5th Cir. 1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed.2d 752 (1980). Thus, whether the court is acting under its supervisory authority or its duty to protect the constitutional rights of defendants, an indictment may be dismissed only where the defendants' case has been unfairly prejudiced. In an attempt to define prejudice in this situation, we have stated that "(i)nflammatory remarks made by a prosecutor justify the dismissal of an indictment if the improper remarks so bias the grand jurors that their votes were based on their bias." United States v. Cathey, 591 F.2d 268, 273-74 (5th Cir. 1979). In other words, we will dismiss an indictment only when prosecutorial misconduct amounts to overbearing the will of the grand jury so that the indictment is, in effect, that of the prosecutor rather than the grand jury.

The defendants urge us to reconsider this rule and to apply a different standard when we are reviewing an indictment under supervisory powers rather than on constitutional grounds. It is argued that even in the absence of actual prejudice we must not condone such misdeeds; that to do so would impugn the integrity of our judicial system. However, we believe that as long as the grand jury maintains its discretion and independence our hands have not been sullied.

The defendants also point out that the prosecutorial conduct in this case would have required reversal had it occurred before a petit jury in a trial situation. The arguments that apply to petit juries do not apply to grand juries, and there is much prosecutorial conduct that is forbidden at trial but is permitted before the grand jury. The indictment is a preliminary step, and the defendant will have the safeguards associated with trial to insure that he will not be improperly convicted.

Thus it is our task to see that the grand jury served its proper function in the case before us. The fifth amendment states that no person shall be held to answer for a capital or otherwise infamous crime "unless on a presentment or indictment of a grand jury." "This constitutional guarantee presupposes an investigative body 'acting independently of either prosecuting attorney or judge,' Stirone v. United States, 361 U.S. 212, 218 (80 S.Ct. 270, 273, 4 L.Ed.2d 252) (1960), whose mission is to clear the innocent, no less than bring to trial those who may be guilty." United States v. Dionisio, 410 U.S. 1, 16-17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973). The grand jury has HISTORICALLY SERVED AS A "PROTECTIVE BULwark standing solidly between the ordinary citizen and the overzealous prosecutor." Id. at 17, 93 S.Ct. at 773. The grand jury performed precisely this function in the case before us.

The initial indictment proposed by prosecutors had eleven counts and ten defendants and was rejected by the grand jury. The indictment that was returned by the grand jury had only five counts and seven defendants. The transcript of the last two days of grand jury proceedings shows an active, independent, and questioning grand jury that was familiar with a long and involved record and that questioned, rather than submitted to, statements and suggestions of the federal prosecutors.

The district court, in dismissing the indictment, listed several indiscretions by the prosecution but never actually found "prejudice." We will therefore review the prosecutors' activities under the standards enunciated above to determine whether the will of the grand jury was overborne.

The prosecutors referred to unsuccessful attempts to obtain information from the district attorney on either an exchange or subpoena basis. The prosecutors told the grand jury that the court was wrong in quashing a subpoena served on the district attorney but that they had decided not to appeal because it would delay the grand jury's consideration of the indictment. The district court found that the prosecutors conveyed the impression that the evidence the district attorney refused to turn over would provide additional support for an indictment. However, the prosecutors stated that they wanted this information only to insure that no evidence had been overlooked and to compare the identifications the alleged victims had made to state officials with the identifications those same persons made for the federal grand jury. Further, the discussion of this matter was brief and...