U.S. v. Samango

• Decision Date: 05 November 1979
• Docket Number: No. 78-2297,78-2297
• Citation: 607 F.2d 877
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Alfred Joseph SAMANGO et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 877

607 F.2d 877

UNITED STATES of America, Plaintiff-Appellant, v. Alfred Joseph SAMANGO et al., Defendants-Appellees.

No. 78-2297.

United States Court of Appeals Ninth Circuit.

Nov. 5, 1979.

As Amended Dec. 13, 1979.

Brook Hart, Honolulu, Hawaii, F. Lee Bailey, Boston, Mass., Robert L. Shapiro, Los Angeles, Cal., George W. Dixon, Tacoma, Wash., Stephen D. Quinn, Honolulu, Hawaii, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before ELY and GOODWIN, Circuit Judges, and EAST, ^* District Judge.

EAST, District Judge:

The Government appeals from an order dismissing a Superseding Indictment returned by a federal Grand Jury for the District of Hawaii on December 19, 1977. ¹ We affirm.

GRAND JURY PROCEEDINGS

On May 5, 1975, Dionisia Ferrer arrived in Honolulu from Tahiti with 13 1/2 pounds of cocaine concealed in the false bottoms of two suitcases. On August 29, 1975, she was indicted. The grand jury, after indicting Ferrer, took further testimony on possible drug smuggling conspiracies but failed to return indictments for conspiracy. As part of this continuing investigation, Samango appeared before the grand jury on March 19, 1976. ²

At the outset of Samango's testimony, the prosecutor gave the grand jury a lengthy and heated account of the Government's dissatisfaction with Samango's performance "Mr. Samango, do you intend to confer with him question by question? Just so we know what the timing is here. We have got a lot of business to do and if you intend to do that then it's going to frustrate the proceedings and we have to take some other course of action."

under a nonprosecution agreement. When Samango requested to confer with his attorney after the first question relating to the subject of the investigation, the prosecutor responded:

Instead of questioning Samango directly concerning his admitted acquaintance with several of the defendants, the prosecutor dwelled on Samango's alleged statements to DEA Agent Joel Wong on October 29, 1975 statements which Samango repeatedly denied or could not recall having made. ³ One such question was: "Did you tell Mr. Wong on that same date, the 29th of October, that everyone is afraid of Joe (Avila) because he is capable of killing people?" The prosecutor also questioned Samango extensively concerning his dealings with a businessman the Government suspected of financing cocaine purchases dealings Samango continuously characterized as legitimate. ⁴ The prosecutor insinuated that Samango was lying and stated that if he refused to testify he would be charged as a defendant. They bickered at length over Samango's failure to cooperate to the Government's satisfaction. Samango eventually asserted his Fifth Amendment privilege.

On September 14, 1977, a second grand jury reviewed the transcript of Samango's testimony before the first grand jury and transcripts from related grand jury proceedings, and received live testimony from Wong, defendant Stephen Granat, and others. Granat's testimony consisted almost exclusively of monosyllabic affirmance or denial of the prosecutor's statements and leading questions. The prosecutor even elicited unthinking agreement to several of his own erroneous calculations of profits from drug deals. On the same day, the grand jury returned an indictment, later characterized by the District Court as an "embarrassment." The hearing on defendants' motion to dismiss the indictment was scheduled for December 21, 1977.

On December 12, 1977, in an attempt to get a "sanitized" indictment, the prosecutor left an accumulated 1,000 pages of transcripts and a prepared Superseding Indictment with a third grand jury and informed them off the record that he had a December 20th deadline. The third grand jury also heard live testimony from one witness, Wong. Wong's testimony, laden with conclusions concerning the guilt of several defendants, summarized the DEA's investigation, much of which he had not been involved with personally. On December 19, 1977, the third grand jury returned its Superseding Indictment which was identical to the original.

Count I of the Superseding Indictment charged named defendants with conspiracy to knowingly and intentionally import, to knowingly and intentionally possess with intent to distribute, and to knowingly and intentionally distribute cocaine. 21 U.S.C. §§ 841(a)(1), 846, 952, 960 and 963. The indictment alleged 125 overt acts from October 15, 1974, to October 8, 1975, in furtherance of the conspiracy. Count II charged six of the defendants with importation of cocaine. 21 U.S.C. § 952(a). Count III charged Alfred Joseph Samango and Joe Cerda Avila with continuing criminal enterprise. 21 U.S.C. § 848.

DISTRICT COURT PROCEEDINGS

On March 7, 1978, the District Court orally granted defendants' motion to dismiss the indictment. The oral ruling was recorded in the criminal docket. On May 16, the District Court's written decision and order dismissing the indictment were entered in the criminal docket. The Government filed its notice of appeal on June 14, 1978.

ISSUES

1. Whether this Court lacks jurisdiction because the Government's notice of appeal was untimely.

2. Whether the District Court properly dismissed the Superseding Indictment for grand jury bias created by the evidence presented by the Government's manner of presentation.

DISCUSSION

1. Timeliness of Appeal

Rule 4(b) of the Federal Rules of Appellate Procedure reads:

"(b) Appeals in Criminal Cases . . . When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of the judgment or order appealed from. A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. . . ."

"Compliance with Rule 4(b) is both mandatory and jurisdictional." United States v. Stolarz, 547 F.2d 108, 109-10 (9th Cir. 1976). See also United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960).

The District Court's oral ruling on March 7, 1978, was not intended to be final. The Court repeatedly expressed its intention to issue a written order incorporating and elucidating its March 7th ruling. The written order was entered 70 days after the oral ruling. Although there could be occasions when an informal oral order, which was intended to be final and was noted in the docket, would commence the time period within which notice of appeal must be filed, this case is not one of those occasions. See, e. g., Carnes v. United States, 279 F.2d 378, 379-80 (10th Cir. 1960) (dictum). ⁵ The order was entered in the criminal docket on May 16, 1978. The Government's June 14th notice of appeal was, therefore, timely.

2. Grand Jury Bias

We note at the outset that the indictment in this case was not dismissed on the grounds of insufficient or incompetent evidence. ⁶ Here the defendants contend that the prosecutor's behavior was so improper and prejudicial that it created a biased grand jury. They ask this Court to affirm the District Court's dismissal as a legitimate exercise of the Court's supervisory power or, in the alternative, because it would be a violation of due process to try the defendants on an indictment returned by a biased grand jury.

The Court's power to dismiss an indictment on the ground of prosecutorial misconduct is frequently discussed but rarely invoked. Courts are rightly reluctant to encroach on the constitutionally-based independence of the prosecutor and grand jury. The Court "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. Welch, 572 F.2d 1359, 1360 (9th Cir.), Cert. denied, 439 U.S. 842, 99 S.Ct. 133, 58 L.Ed.2d 140 (1978). Nevertheless:

"On occasion, and in widely-varying factual contexts, federal courts have dismissed indictments because of the way in which the prosecution sought and secured the charges from the grand jury. . . . These dismissals have been based either on constitutional grounds or on the court's inherent supervisory powers. . . . Whatever the basis of the dismissal, however, the courts' goal has been the same, 'to protect the integrity of the judicial process,' . . . particularly the functions of the grand jury, from unfair or improper prosecutorial conduct." (Citations and footnotes omitted.) Chanen, 549 F.2d at 1309.

For the reasons later stated, we do not in this cause reach the constitutional issue of due process infringement.

The District Court's role as an overseer of the grand jury is limited, and it "may not exercise its 'supervisory power' in a way which encroaches on the prerogatives of the (prosecutor and grand jury) unless there is a clear basis in fact and law for doing so." Chanen at 1313.

In Chanen, the Court of Appeals reversed the dismissal of an indictment in circumstances superficially similar to the present case. Like the case at bar, Chanen involved three separate grand juries and two indictments. The second indictment was obtained by presentation of only hearsay evidence. Nevertheless, the Court found no fundamental unfairness nor threat to the integrity of the judicial process. The facts in Chanen were significantly different from the facts in this case in the following respects: (1) the transcripts of testimony before previous grand juries were read aloud to the third grand jury in Chanen ; (2) the prosecutor advised the Chanen grand jury that the witnesses had made statements inconsistent with their testimony; and (3) the transcripts included confessions that the witnesses had submitted false affidavits. In other words, the grand jury was alerted to the credibility problem, and the Court was assured that the jurors actually heard the evidence.

In the instant case, on the other hand, the lengthy transcripts were merely deposited with the grand jury, and the record does...