United States v. Basurto

• Decision Date: 19 July 1974
• Docket Number: 72-2612,No. 72-2781,72-2679.,72-2781
• Citation: 497 F.2d 781
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest Raymond BASURTO et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

497 F.2d 781 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Ernest Raymond BASURTO et al., Defendants-Appellants.

Nos. 72-2781, 72-2612, 72-2679.

United States Court of Appeals, Ninth Circuit.

May 10, 1974.

Rehearing Denied July 19, 1974.

COPYRIGHT MATERIAL OMITTED

Mickey L. Clifton (argued), Phoenix, Ariz., for defendants-appellants in 72-2781.

David S. Hoffman, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appellee in all three cases.

John J. Flynn (argued), Michael D. Kimerer, Flynn, Kimerer, Thinnes & Galbraith, Phoenix, Ariz., for defendant-appellant in 72-2679.

Ronald W. Sommer (argued), Tucson, Ariz., for defendant-appellant in 72-2612.

Before HUFSTEDLER and WRIGHT, Circuit Judges, and FERGUSON,^* District Judge.

FERGUSON, District Judge:

Appellants and 14 others were charged in a one-count indictment with conspiring to import and distribute marijuana, in violation of 21 U.S.C. §§ 176a, 841 and 952. The conspiracy was alleged to have occurred between February 1, 1971 and December 4, 1971, and to have involved smuggling marijuana from Mexico into the United States by airplane. Following the denial of motions to suppress evidence and to dismiss the indictment, appellants were convicted of the charged offense after a jury trial. We reverse.

The issues presented by these appeals include: (1) the duty of the prosecuting attorney following pre-trial disclosure of perjury before the grand jury; (2) the nature of "exigent circumstances" which will make the warrantless search of a home constitutionally permissible; (3) the applicability of the "harmless error" rule set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); (4) the search of a wallet; and (5) the sufficiency of the evidence to sustain a conviction.

Perjury By A Witness Before The Grand Jury

William Barron was named in the indictment as a co-conspirator but not a defendant. He testified as to appellants' activities in the conspiracy before the grand jury which brought the indictment. Prior to the commencement of trial, Barron informed the Assistant United States Attorney prosecuting the case that he had committed perjury before the grand jury in important respects. In particular, he told the prosecutor that all his grand jury testimony relating to his knowledge of appellants' activities in the conspiracy prior to May 1, 1971, was untrue. That date is significant, because effective then 21 U.S.C. § 176a was repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, 84 Stat. 1236, 21 U.S.C. § 801 et seq., Persons convicted of narcotics offenses under 21 U.S.C. § 176a were subject to a mandatory minimum sentence of five years, while those convicted under the new statute were not subject to such inflexible sentencing.

The only witness other than Barron to testify before the grand jury as to appellants' activities in connection with the conspiracy prior to May 1, 1971, was Thomas Waddill, a Customs agent. Both Barron's and Waddill's testimony was unrecorded. The parties dispute whether Agent Waddill, at the time of his grand jury appearance, had any knowledge of appellants' activities prior to May 1, 1971, other than what Barron had told Waddill.¹

Upon learning of Barron's perjured grand jury testimony, the prosecuting attorney informed opposing counsel. He did not, however, notify the court or the grand jury. In his opening statement at trial, he made reference to Barron's perjury before the grand jury, but sought to minimize its scope and importance:

"Mr. Barron did testify at the Grand Jury, but part of his testimony was a lie. Mr. Barron will take the stand and tell you that today, or excuse me, when he takes the stand. He will tell you he lied about where he met Buddy Wilson, Buddy Waggoner, the man seated here in the brown suit. He will tell you that the reason he told this lie is he was protecting a friend of his in Seattle, Washington. He will tell you that other than minute details which he has since recalled, such as a change in a date or a change in possibly who was present at exactly a particular moment, other than those details this is the only material lie that he told before the Grand Jury, but it was a lie. He will tell you that when he takes the stand in this trial he will tell the truth."

The conduct of the prosecutor in this case reinforces the expression by Professor Moore that, over the years, the government prosecutor has gained substantial influence over the grand jury, and subsequently that institution has lost much of its former independence. See 8 J. Moore, Federal Practice, ¶ 6.021.

The Fifth Amendment provides 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." The purpose of that requirement is to limit a person's jeopardy to offenses charged by a group of his fellow citizens acting independently of either the prosecutor or the judge. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).

It is clear, however, that when a duly constituted grand jury returns an indictment valid on its face, no independent inquiry may be made to determine the kind of evidence considered by the grand jury in making its decision. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). To do so would further invade the independence of the grand jury. The holding reached by this court does not affect that established rule.

Today, the grand jury relies upon the prosecutor to initiate and prepare criminal cases and investigate which come before it. The prosecutor is present while the grand jury hears testimony; he calls and questions the witnesses and draws the indictment. With that great power and authority there is a correlative duty, and that is not to permit a person to stand trial when he knows that perjury permeates the indictment.

At the point at which he learned of the perjury before the grand jury, the prosecuting attorney was under a duty to notify the court and the grand jury, to correct the cancer of justice that had become apparent to him. To permit the appellants to stand trial when the prosecutor knew of the perjury before the grand jury only allowed the cancer to grow.

As we have noted above, the perjury before the grand jury was material because of the change in the law; all of Barron's grand jury testimony relating to the appellants' activities before May 1, 1971 was perjured. The grand jury, if it returned an indictment, might have done so under the Comprehensive Drug Abuse Prevention and Control Act of 1970, supra had it known of the perjury.

We also note that jeopardy had not attached at the time the prosecutor learned of the perjured testimony, nor had the statute of limitations for the offenses charged run. Under Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066 35 L.Ed.2d 425 (1973), if the prosecutor had brought the perjury to the court's attention before the trial commenced and the indictments had been dismissed, the Double Jeopardy Clause of the Fifth Amendment would not have barred trial under a new indictment.

We hold that the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached. Whenever the prosecutor learns of any perjury committed before the grand jury, he is under a duty to immediately inform the court and opposing counsel — and, if the perjury may be material, also the grand jury — in order that appropriate action may be taken.

We base our decision on a long line of cases which recognize the existence of a duty of good faith on the part of the prosecutor with respect to the court, the grand jury, and the defendant. While the facts of these cases may not exactly parallel those of the instant case, we hold that their rulings regarding the consequences of a violation or abuse of this prosecutorial duty must be applied where the prosecutor has knowledge that testimony before the grand jury was perjured. See Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L. Ed.2d 9 (1957); Hysler v. Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed. 392 (1942); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942).

In Napue v. Illinois, supra, the Supreme Court reaffirmed the principle stated in many of its prior decisions that

"a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, citations. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. Citations." 360 U.S. at 269.

The Court reiterated "the principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty . . . ." Id. See Giles v. Maryland, supra, at 74.

The Court held in Napue that the prosecution's use of known false testimony at trial required a reversal of the petitioner's conviction. The same result must obtain when the government allows a defendant to stand trial on an indictment which it knows to be based in part upon perjured testimony. The consequences to the defendant of perjured testimony given before the grand jury are no less severe than those of perjured testimony given at trial, and in fact may be more severe. The defendant has no effective means of cross-examining or rebutting perjured testimony given before the grand jury, as he might in court.

In Mesarosh v. United States, 352 U. S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), while a...