U.S. v. De Rosa

• Citation: 783 F.2d 1401
• Decision Date: 04 March 1986
• Docket Number: No. 84-1334,84-1334
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank De ROSA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1401

783 F.2d 1401

UNITED STATES of America, Plaintiff-Appellee, v. Frank De ROSA, Defendant-Appellant.

No. 84-1334.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 13, 1985.

Decided March 4, 1986.

Rodolfo Orjales, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Frank R. Ubhaus, San Jose, Cal., for defendant-appellant.

Appeal From United States District Court For the Northern District of California.

Before WALLACE, ANDERSON, and PREGERSON, Circuit Judges.

PREGERSON, Circuit Judge.

INTRODUCTION

Appellant De Rosa seeks reversal of the district court's order denying dismissal of his indictment. He also seeks reversal of his convictions for filing false statements in violation of 18 U.S.C. Sec. 1001 and mail fraud in violation of 18 U.S.C. Sec. 1341.

De Rosa challenges the district court's denial of his motion to dismiss the indictment on the basis of prosecutorial misconduct before the grand jury. In addition, he contends that his criminal convictions should be reversed because he had no duty to disclose the information requested by the government's questionnaire and the government failed to establish that the false statements were material. Finally, he contends that the district court's evidentiary rulings deprived him of a fair trial.

We affirm.

BACKGROUND

Appellant Frank De Rosa worked for the government as a Contract Specialist at NASA-AMES. In July 1978, he became involved in some employment disputes. On September 12, 1978, ¹ he accepted a similar position with Food Machinery Corporation ("FMC") to begin on October 2, 1978. Then on September 22, 1978, while still employed by the government, he applied for disability retirement from NASA-AMES claiming that he could no longer perform his duties because of a degenerative disc disease.

From November 9, 1978 to June 1, 1982, while working at FMC, De Rosa received a total of $54,143.73 in disability payments from the government. During that time, he also received three annual questionnaires from the government to determine continued eligibility ("Eligibility Questionnaires"). The questionnaires asked De Rosa only two questions: (1) whether he had "recovered sufficiently to resume duty" and (2) whether he had been employed at any time during the preceding year. Each year, De Rosa answered "no" to both questions and mailed the form back. He also received an "Annuitant's Report of Income" form ("Annuitant's Report") that requested information on his 1979 and 1980 incomes. Disability annuitants lose their benefits if in any calendar year their income equals or exceeds 80% of the salary they would have earned had they continued to work for the government. 5 U.S.C. Sec. 8337(d). De Rosa reported his income for both years as the total of his salary from FMC less his losses from a dog grooming business. His salary without deducting the losses exceeded the 80% limit.

De Rosa was charged in a 17-count Superseding Indictment with (1) filing a false disability claim in violation of 18 U.S.C. Sec. 287; (2) filing false statements in violation of 18 U.S.C. Sec. 1001; and (3) mail fraud in violation of 18 U.S.C. Sec. 1341. At his first trial, the jury returned a verdict of not guilty with respect to the false disability claim charge, but was unable to reach a verdict with respect to the other 16 counts of the Superseding Indictment. The district court declared a mistrial.

On May 9, 1984, a grand jury returned a Second Superseding Indictment charging

De Rosa with four counts of filing false statements in violation of 18 U.S.C. Sec. 1001 and two counts of mail fraud in violation of 18 U.S.C. Sec. 1341. On June 28, 1984, the jury at his second trial returned verdicts of guilty on the three counts of filing false statements in the Eligibility Questionnaires and one count of mail fraud. The jury acquitted him of the charge of making false statements on the Annuitant's Report and one count of mail fraud. The district court imposed judgment and sentence on November 2, 1984. De Rosa timely appealed, and this court has jurisdiction under 28 U.S.C. Sec. 1291.

DISCUSSION

I. Prosecutorial Misconduct Before the Grand Jury

A. Standard of Review

We review de novo a district court's determination of whether a prosecutor's alleged misconduct before a grand jury warrants dismissal of the indictment. United States v. Sears, Roebuck and Co., 719 F.2d 1386, 1392 n. 9 (9th Cir.1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984). The separation of powers doctrine, however, mandates judicial concern for the independence of the prosecutor and the grand jury. United States v. McClintock, 748 F.2d 1278, 1283 (9th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985).

Generally, we "will not interfere with the Attorney General's prosecutorial discretion unless it is abused to such an extent as to be arbitrary and capricious and violative of due process." United States v. Samango, 607 F.2d 877, 881 (9th Cir.1979) (quoting United States v. Welch, 572 F.2d 1359, 1360 (9th Cir.), cert. denied, 439 U.S. 842, 99 S.Ct. 133, 58 L.Ed.2d 140 (1978)). In addition, the court "may not exercise its 'supervisory power' in such a way which encroaches on the prerogatives of the other two [branches of government] unless there is a clear basis in fact and law for doing so." United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977).

B. Analysis

"The Court's power to dismiss an indictment on the ground of prosecutorial misconduct is frequently discussed but rarely invoked." Samango, 607 F.2d at 881. The prosecution may exercise a wide discretion in grand jury proceedings. United States v. Kaplan, 554 F.2d 958, 970 (9th Cir.) (per curiam), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). "But this prosecutorial discretion is not boundless." United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir.), cert. denied, 461 U.S. 932, 103 S.Ct. 2097, 77 L.Ed.2d 305 (1983). The prosecutor may not circumvent the constitutional safeguard of a grand jury by overreaching conduct that impinges on the grand jury's autonomy and interferes with its exercise of unbiased judgment. Id. Therefore, we have held that an indictment may be dismissed as an exercise of the court's inherent supervisory power, Samango, 607 F.2d at 884, or to protect a defendant's constitutional due process rights, ² United States v. Basurto, 497 F.2d 781, 785 (9th Cir.1974).

De Rosa argues that the prosecutor's line of questioning before the grand jury constituted prosecutorial misconduct that should result in dismissal of the indictment based on either Fifth Amendment due process grounds or on our inherent supervisory power. See Samango, 607 F.2d at 881; Al Mudarris, 695 F.2d at 1185.

Mr. Orjales, the prosecutor, had asked an FBI agent, the only witness to appear before the second grand jury, whether the agent had asked the doctors if the pain associated with De Rosa's disc disease could be faked. The agent answered, "Yes." Mr. Orjales then asked, "And what

                was their response?"    The agent replied, "They indicated that it could be."    Mr. Orjales knew that a doctor had confirmed the existence of the disease with an electromyogram and that De Rosa had been acquitted of the false disability claim charge, but failed to disclose either of these facts to the grand jury
                

1. Constitutional Violation

The constitutional analysis focuses on protecting the integrity of the judicial process, Chanen, 549 F.2d at 1309, and preserving fairness for the individual defendant, McClintock, 748 F.2d at 1284. Thus, the exercise of prosecutorial discretion may not be arbitrary and capricious. Samango, 607 F.2d at 881. Constitutional grounds for dismissal are limited, however, because the grand jury's determination is a preliminary one and because the full panoply of constitutional protection will be available at trial. See Sears, 719 F.2d at 1391 n. 7. Thus, dismissal is warranted only if the misconduct has significantly infringed upon the grand jury's ability to exercise its independent judgment. McClintock, 748 F.2d at 1285. The relevant inquiry focuses on the impact of the prosecutor's misconduct on the grand jury's impartiality, not on the degree of the prosecutor's culpability. Sears, 719 F.2d at 1392.

We have held that an indictment may be dismissed only in flagrant cases of prosecutorial misconduct. Sears, 719 F.2d at 1391. In Sears, a grand jury indicted Sears for conspiring with Japanese manufacturers to defraud the United States Government by overstating the price Sears had paid for television sets purchased from the Japanese manufacturers. 719 F.2d at 1388. The trial court dismissed the indictment after finding that before the grand jury, the prosecutor had, inter alia: (1) allowed a witness to make irrelevant, inflammatory, and potentially prejudicial statements by discussing with patriotic rhetoric, the devastating effect of Japanese products on the American economy; and (2) expressed his personal views concerning the evidence. Id. at 1388-90. Although this court found that the prosecutor had abused his prerogatives, it still held that Sears had failed to demonstrate sufficient prejudice to dismiss the indictment on constitutional grounds. Id. at 1392.

In this case, the testimony elicited by the prosecutor before the grand jury arguably implied that De Rosa had made a false claim. This information is irrelevant to the charges, and the false implication might have produced some prejudice against De Rosa. Even without this evidence, however, there was more than sufficient evidence to indict. Moreover, the testimony was not nearly as damaging as that excused by this court in Sears.

Furthermore, in assessing the impact of the FBI agent's testimony on the grand jury, we consider the prosecutor's admonitions to the grand jury that tended to neutralize the effect of the agent's testimony....