U.S. v. Al Mudarris, s. 82-1332

• Citation: 695 F.2d 1182
• Decision Date: 06 January 1983
• Docket Number: Nos. 82-1332,82-1333,s. 82-1332
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nabil S. AL MUDARRIS, and Salah S. Al Mudarris, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1182

695 F.2d 1182

UNITED STATES of America, Plaintiff-Appellee, v. Nabil S. AL MUDARRIS, and Salah S. Al Mudarris, Defendants-Appellants.

Nos. 82-1332, 82-1333.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 1982.

Decided Jan. 6, 1983.

Joseph Francis Walsh, Beverly Hills, Cal., for Nabil S. Al Mudarris.

Donald B. Marks, Marks & Brooklier, Beverly Hills, Cal., for Salah S. Al Mudarris.

D. Blair Watson, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT, KENNEDY, and BOOCHEVER, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Appellants seek to have us overturn their conviction for mail fraud against a medical insurance carrier. They contend that prosecutorial misconduct before the grand jury necessitated dismissal of their indictment.

I. FACTS

Appellants Nabil and Salah Al Mudarris are brothers. Salah had medical insurance, Nabil did not.

On Christmas Eve 1974 a man later identified as Salah, but using a false name, delivered a severely burned man to the hospital. The patient, later identified as Nabil, was admitted as Salah.

Nabil's wife later testified that Salah told her this was done for insurance purposes. Salah signed insurance claims for the patient's treatment as though Salah himself had received it. These claims, which amounted to more than $25,000, were processed by mail.

The government sought a mail fraud indictment against appellants and a treating doctor who knew them before the injury. Grand juries heard testimony but their terms expired before an indictment was returned. The indicting grand jury, in one afternoon, heard only a summary witness, an agent of the Bureau of Alcohol, Tobacco and Firearms (BATF), and returned the indictment.

That morning, this grand jury had heard summary testimony by the same witness on a different indictment, sought against appellants' brother Anthony Al Mudarris and others. It concerned four arsons and charged conspiracy, racketeering, and mail fraud for fire insurance proceeds. Though the morning indictment did not charge appellants, the prosecutors believed they were setting fires for the arson conspirators when the burns precipitating the medical insurance fraud were incurred.

Alleging prosecutorial misconduct before the grand jury, appellants moved to dismiss their indictment. The trial judge denied the motion and convicted them after a bench trial on stipulated facts. Appellants, relying on United States v. Samango, 607 F.2d 877, 884 (9th Cir.1979), argue that the cumulative effect of the prosecutors' numerous alleged improprieties before the grand jury requires reversal.

II. JUDICIAL REVIEW OF GRAND JURY PROCEEDINGS

The Constitution provides that "[n]o 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 the task of determining whether there is probable cause to believe a crime has been committed.

Its functions are related to those of the judicial branch and those of the prosecutorial arm of the executive branch. But the fifth amendment gives this preconstitutional institution independent stature. See United States v. Chanen, 549 F.2d 1306, 1312 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977). Courts therefore are reluctant to intrude in its proceedings.

Judicial oversight implicates the balance of powers between the judicial and executive branches as well. The prosecutor But this prosecutorial discretion is not boundless. The Framers, considering the grand jury an institution central to the protection of our basic liberties, interposed it in the law enforcement process to safeguard citizens against governmental oppression. United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974).

                properly has wide discretion in grand jury proceedings.   United States v. Kaplan, 554 F.2d 958, 970 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977)
                

The prosecutor may not circumvent this safeguard by overreaching conduct that deprives the grand jury of autonomous and unbiased judgment.

If the grand jury is to accomplish either of its functions, independent determination of probable cause that a crime has been committed and protection of citizens against unfounded prosecutions, limits must be set on the manipulation of grand juries by overzealous prosecutors.

United States v. Samango, supra, 607 F.2d at 882. Prosecutors share with courts the duty not to interfere with the grand jury's function. "Under the constitutional scheme, the grand jury is not and should not be captive to any of the three branches." United States v. Chanen, supra, 549 F.2d at 1312.

Courts therefore will act when the grand jury's function has been so subverted as to compromise the integrity of the judicial process. United States v. Everett, 692 F.2d 596, 601 (9th Cir.1982). They may dismiss an indictment as an exercise of their inherent supervisory power, United States v. Samango, supra, at 884, or to protect a defendant's due process rights, United States v. Basurto, 497 F.2d 781, 785 (9th Cir.1974).

They will not invoke this harsh remedy lightly. One challenging an indictment carries a difficult burden. He must demonstrate that the prosecutor engaged in flagrant misconduct that deceived the grand jury or significantly impaired its ability to exercise independent judgment. United States v. Wright, 667 F.2d 793, 796 (9th Cir.1982). Appellants argue that prosecutorial conduct in this case fell to that level.

III. SUMMARY WITNESS PROCEDURE

Appellants contend that the government presented its case in an unacceptable fashion. It used only the summary hearsay testimony of a BATF agent. It did not call available witnesses who testified before previous grand juries and it allegedly gave the indicting grand jury the transcribed testimony of only some previous witnesses. Appellants argue that this prevented the grand jury from evaluating witnesses' credibility and from hearing possible exculpatory testimony.

This argument must fail. An appellate court may not attack an indictment on the ground of incompetent or inadequate evidence. United States v.Vallez, 653 F.2d 403, 406 (9th Cir.1981), cert. denied, 454 U.S. 904, 102 S.Ct. 412, 70 L.Ed.2d 223 (1982).

It is well settled that an indictment may be based solely on hearsay. See United States v. Castillo, 350 U.S. 359, 363-64, 76 S.Ct. 406, 408-09, 100 L.Ed. 397 (1956). In this circuit that rule applies even if the government could have produced percipient witnesses. United States v. Seifert, 648 F.2d 557, 564 (9th Cir.1980). We have explicitly rejected the Second Circuit's rule authorizing dismissal of indictments exclusively based on hearsay when better evidence is available. United States v. Samango, supra, 607 F.2d at 880 n. 6.

The prosecutor has no duty to present to the grand jury all matters bearing on the credibility of witnesses or any exculpatory evidence. United States v. Tham, 665 F.2d 855, 862 (9th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2010, 72 L.Ed.2d 466 (1982); United States v. Trass, 644 F.2d 791, 796-97 (9th Cir.1981).

The Samango court drew the line at the prosecutor's failure to alert the grand jury to latent credibility problems of a suggestible, drug-addicted, and possibly biased informant's transcribed key testimony. 607 F.2d at 883. In the present case, however The unsubmitted transcripts were of one hospital worker's testimony, which was cumulative, and that of persons who allegedly provided an alibi for the fires, which was not relevant to the indictment. Though it would be better practice to provide the grand jury with transcripts of all former testimony they hear summarized, this omission was not forbidden.

absent witnesses were not of this character. Most of them were hospital and insurance personnel and handwriting experts. Apparently the only one with credibility problems was the codefendant and he, according to appellants, would have been an exculpatory witness.

This summary procedure, standing alone, was not improper under the generous standards this circuit has set.

IV. PREJUDICIAL REMARKS

Appellants argue that the prosecutor and summary witness needlessly injected irrelevant subject matter that was highly prejudicial and sometimes misleading. The government representatives persistently asserted that the burn injuries were incurred setting an arson fire and that appellants were participants in the arson conspiracy. ¹ On two occasions they referred to news stories, including some about arsons resulting in deaths.

The first reference to news stories was blameless. It occurred when both indictments were introduced, during instructions on confidentiality and juror excusal in view of media interest in the other indictment. The second reference, mentioning arson deaths, appears more inept than calculated. When the prosecutor answered a juror's question about the delay in seeking this indictment, the BATF witness added that fatal arsons such as those the jurors may have read about received priority. Though they might have inferred that appellants were responsible for deaths, he did not say or mean this.

As for the rest, the government responds that "other crimes" evidence is relevant and acceptable to prove intent. Cf. Fed.R.Evid. 404(b). Apparently it is referring to appellants' motive to confuse identities.

This argument is specious. Two arsonists reporting to a hospital after setting a fire might have a motive to conceal the identity of the burn victim, but not to attribute to him the identity of the unburned arsonist.

We recognize that the grand jury is an investigatory body. But here, though the prosecutors were clearly eager to bring arson home to appellants, they had already decided not to seek an arson indictment, as one admitted when a grand juror complained about...