U.S. v. Pabian

• Citation: 704 F.2d 1533
• Decision Date: 19 May 1983
• Docket Number: No. 82-5676,82-5676
• Parties: 13 Fed. R. Evid. Serv. 46 UNITED STATES of America, Plaintiff-Appellant, v. Charles T. PABIAN, Ralph W. Nichols, and F. Lee Thorne, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1533

704 F.2d 1533

13 Fed. R. Evid. Serv. 46

UNITED STATES of America, Plaintiff-Appellant, v. Charles T. PABIAN, Ralph W. Nichols, and F. Lee Thorne Defendants-Appellees.

No. 82-5676.

United States Court of Appeals Eleventh Circuit.

May 19, 1983.

Frank W. Trapp, Sp. Asst. U.S. Atty., Jackson, Miss., for plaintiff-appellant.

Foley & Colton, P.A., Roger B. Colton, Douglas N. Duncan, West Palm Beach, Fla., for Thorne.

McGee, Jordan, Shuey, Koons & Schroeder, Stephen R. Koons, Lake Worth, Fla., for Nichols.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

VANCE, Circuit Judge:

The United States appeals the district court's final order granting the motions of Ralph Nichols, F. Lee Thorne and Charles Pabian, defendants in this white collar criminal prosecution, to dismiss their indictment for conspiracy and mail fraud. The court dismissed the indictment based on a finding of prosecutorial abuse of the grand jury process. We reverse.

The Justice Department first presented this case to a federal grand jury impaneled in West Palm Beach, Florida, in November 1978. The government sought indictments against Thorne, Nichols and Pabian for violations of 18 U.S.C. Sec. 371 (conspiracy), Sec. 1341 (devising or intending to devise a scheme to defraud), and Sec. 2 (aiding and abetting). The proposed indictments would have charged defendants with conspiracy to defraud the United States by obstructing the Department of Energy's administration of the Emergency Petroleum Allocation Act of 1973, mail fraud, and conspiracy to commit mail fraud. The first grand jury took testimony over a period of several months but in August 1979 voted not to return a "true bill."

During the pendency of the first grand jury proceeding, Richard Fishkin, one of the prosecutors in the case, appeared before a United States House of Representatives subcommittee holding hearings on white collar crime in the oil industry. Members of the subcommittee were critical of the Justice Department for lack of prosecutions in the industry.

In December 1979, on authorization of Deputy Assistant Attorney General John Keeney, who had appeared with Richard Fishkin at the House hearings, the case was presented to a second West Palm Beach grand jury. At the time of representment, the second grand jury had been only recently impaneled as an official body.

The second grand jury heard live testimony from fifteen witnesses, four of whom had not appeared before the first. Defendants Thorne and Pabian testified before the second grand jury. On January 29, 1980, the second grand jury returned an indictment. The indictment was identical with the proposed indictment which the first grand jury had failed to return.

The district court's order dismissing the indictment stated that a "combination of factors, none conclusive in and of itself," led the court to the finding that misconduct existed "of such a nature as to justify this extraordinary remedial action." Though the court did not specify with particularity the factors it found determinative, from our reading of the order we discern five. Four concerned the representment procedures the government used in this case: the government's motive in representment; its representment to a newly impaneled rather than an experienced grand jury; its alleged failure to adhere to its own resubmission guidelines; and its prosecutors' alleged refusal to allow defendant Nichols to testify before the second grand jury. The court also found that the prosecutor made prejudicial, nonverbal gestures during the grand jury testimony of Thorne and Pabian. Following a discussion of the applicable legal standard, we will consider each of these factors in turn.

In federal criminal prosecutions, the Constitution guarantees the right to an indictment by an unbiased grand jury. The fifth amendment's statement that no person shall be held to answer for a capital or otherwise infamous crime "unless on presentment or indictment of a Grand Jury" necessarily presupposes "an investigative body 'acting independently of either prosecuting attorney or judge.' " United States v. Dionisio, 410 U.S. 1, 16, 93 S.Ct. 764, 772, 35 L.Ed.2d 67 (1973) quoting Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960). The grand jury's historic role has been to serve as a "protective bulwark standing solidly between the ordinary citizen and the overzealous prosecutor." Dionisio, 410 U.S. at 17, 93 S.Ct. at 773. See also Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962); Ex parte Bain, 121 U.S. 1, 11, 7 S.Ct. 781, 786, 30 L.Ed. 849 (1887). The reality that grand jury proceedings are "secret, ex parte and largely under the control of the federal prosecutor, magnifies this concern." United States v. Serubo, 604 F.2d 807, 816 (3d Cir.1979).

Federal courts possess the power and duty to dismiss federal indictments obtained in violation of the Constitution or laws of the United States. In addition, federal courts have a "supervisory power over the administration of justice to regulate the manner in which grand jury investigations are conducted." Serubo, 604 F.2d at 816. See also United States v. Basurto, 497 F.2d 781 (9th Cir.1974); In re Grand Jury Proceedings, 486 F.2d 85 (3d Cir.1973); United States v. Estepa, 471 F.2d 1132 (2d Cir.1972).

Although the federal judiciary exercises a supervisory role over federal grand juries, that role must be informed by a recognition that dismissal of an indictment for prosecutorial misconduct is an "extreme sanction which should be infrequently utilized." United States v. Owen, 580 F.2d 365, 367 (9th Cir.1978). Our function must also be defined in terms of the constitutional separation of powers between the judiciary and the executive, each branch vested with its own purposes and powers in relation to the grand jury. We agree with the ninth circuit's statement in United States v. Chanen that the "tradition and the dynamics of the constitutional scheme of separation of powers define a limited function for both court and prosecutor in their dealings with the grand jury." 549 F.2d 1306, 1312 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977) (emphasis in original). The Chanen court reasoned:

In resolving disputes involving district court, prosecutor and/or grand jury, some appellate courts have attempted to pigeonhole the grand jury into one of the three branches of government created by the first three articles of the Constitution. For example, it has been said that the grand jury is essentially an agency of the court, and that it exercises its powers under the authority and supervision of the court. On the other hand, it has been asserted that grand juries are basically law enforcement agencies and are for all practical purposes an investigative and prosecutorial arm of the Executive branch of the government. To the extent that these apparently conflicting statements reflect the view that the functions of the grand jury are intimately related to the functions of court and prosecutor, we have no disagreement with them. That view is irrefutable as a matter of fact. But under the constitutional scheme, the grand jury is not and should not be captive to any of the three branches. The grand jury is a preconstitutional institution, given constitutional stature by the Fifth Amendment but not relegated by the Constitution to a position within any of the three branches of the government.

Id. at 1312 (citations omitted).

The federal court and the federal prosecutor complement each other in their relationship to the federal grand jury. The prosecutor initiates the grand jury procedure, draws up the indictment, decides which witnesses to call and examines those witnesses who do appear. These functions are in essence "executive" and not subject to judicial review. Id. It is the court, however, which must compel recalcitrant witnesses to appear before the grand jury. Id. at 1313. And, because the court adjudicates the criminal case that results from the indictment, it is the court which, at least as a practical matter, has the power to dismiss an indictment for failure to charge all elements of the offense or for prosecutorial abuse of the grand jury process. These latter functions have prompted a number of circuits to hold that the federal judiciary exercises a supervisory power over the federal grand jury, a power which by definition is not coextensive with the court's power to correct grand jury abuses that violate the Constitution. While we recognize such a power,

given the constitutionally-based independence of each of the three actors--court, prosecutor and grand jury--we believe a court may not exercise its "supervisory power" in a way which encroaches on the prerogatives of the other two unless there is a clear basis in fact and law for doing so. If the district courts were not required to meet such a standard their "supervisory power" could readily prove subversive of the doctrine of separation of powers.

Id. at 1313 (footnotes omitted). Applying these general principles to the present case, we believe that the district court's dismissal of the indictment was an abuse of discretion.

The district judge's order discussed five factors, the combination of which led him to dismiss the indictment. Four factors related to the representment procedures followed by the government, and the fifth related to the prosecutor's conduct before the second grand jury itself. The first four factors must be viewed in the context of the government's virtually plenary power to represent and to control the grand jury's access to witnesses and information. The district court acknowledged that the government has the discretion to represent and that the fact that the first grand jury failed to indict was "not in and of itself legally significant." United...