United States v. Callahan, Cr. 4-77-84.

• Decision Date: 09 January 1978
• Docket Number: No. Cr. 4-77-84.,Cr. 4-77-84.
• Citation: 442 F. Supp. 1213
• Parties: UNITED STATES of America, Plaintiff, v. Kenneth James CALLAHAN and Donald Larson, Defendant.
• Court: U.S. District Court — District of Minnesota

442 F. Supp. 1213

UNITED STATES of America, Plaintiff, v. Kenneth James CALLAHAN and Donald Larson, Defendant.

No. Cr. 4-77-84.

United States District Court, D. Minnesota, Fourth Division.

January 9, 1978.

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Andrew W. Danielson, U. S. Atty., Thorwald H. Anderson, Jr., Asst. U. S. Atty., Minneapolis, Minn., for plaintiff.

Ronald I. Meshbesher, Meshbesher, Singer & Spence, Ltd., Minneapolis, Minn., for defendant Callahan.

Bruce Hartigan, Minneapolis, Minn., for defendant Larson.

MEMORANDUM AND ORDER DENYING MOTIONS FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL

DEVITT, Chief Judge.

Following verdicts of guilty to a one count indictment¹ charging violations of the kidnapping statute, 18 U.S.C. § 1201 (1970), defendants move for judgment of acquittal or for a new trial. They assert many grounds for the relief requested which are considered hereafter in the sequence of the case.

PROSECUTOR'S STATEMENTS TO THE GRAND JURY

Immediately prior to trial, defendant Callahan moved to dismiss the indictment as to him on the ground that the prosecutor informed the grand jury, prior to indictment, that Callahan had taken and failed a polygraph examination regarding his involvement in the offense. The court withheld decision pending submission of briefs. Callahan's brief presents two different contentions. First, he argues that reference to the examination itself was impermissible, or if the statement could be made, that the prosecutor was obligated to inform the grand jury of the technological problems with polygraph examinations generally and the hearsay quality of the examination itself. Second, he contends that the statement was inflammatory and adversely affected the grand jury's neutrality.

At the outset, it should be noted that an indictment regular on its face, returned by a legally constituted grand jury, is presumed to be founded on competent evidence, and a heavy burden is placed on one who seeks to overcome the presumption. United States v. West, 549 F.2d 545 (8th Cir. 1977). The fact that polygraph examination results are inadmissible at trial does not suffice to taint the indictment in this case. In the first place, the federal rules of evidence are inapplicable to grand jury proceedings. Fed.R.Ev. 1101(d)(2). Secondly, even if the rule barring admissibility of such evidence was applicable to a grand jury proceeding, the indictment can stand if there is some competent evidence to support it. Laughlin v. United States, 128 U.S.App.D.C. 27, 385 F.2d 287 (1967), adhered to, 154 U.S.App.D.C. 196, 474 F.2d 444 (1974), cert. denied, 412 U.S. 941, 93 S.Ct. 2784, 37 L.Ed.2d 402 (1974) and Truchinski v. United States, 393 F.2d 627 (8th Cir. 1968). The existence of such competent evidence is clear where, as here, a petit jury subsequently finds the defendant guilty beyond a reasonable doubt after a trial from which the inadmissible evidence is excluded. Coppedge v. United States, 114 U.S.App.D.C. 79, 311 F.2d 128 (1962), cert. denied, 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701 (1963). Thus, the presentation of the evidence to the grand jury does not dictate a dismissal of the indictment.

In support of its contention that the prosecution should have cautioned the grand jury respecting use of polygraph examinations, defendant primarily relies on those few cases in which an indictment was dismissed due to a prosecutor's failure to inform the grand jury that the testimony it was hearing was hearsay.² In analyzing the contention that the indictment should have been dismissed, the courts in these cases first recognized that an indictment is not invalid merely because it was based on hearsay evidence which would be inadmissible at trial. United States v. Estepa, 471 F.2d 1132 (2nd Cir. 1972) and cases cited therein. Furthermore, the courts held that the prosecution does not have an affirmative duty to tell the grand jury that the evidence is hearsay. Estepa, supra, at 1136. The courts dismissed the indictments only after it was found that the prosecutor had misled the grand jury into believing that it was receiving eyewitness testimony when it was actually hearing hearsay. Such action by the prosecutor violated the second component of the "best evidence rule" explained in footnote 1, supra. In this case, there is no indication that the prosecutor affirmatively misled the grand jury into attaching inordinate weight to the polygraph examination. Additionally, when the other two aspects of the "best evidence" rule are considered, the sufficiency of the indictment in this case is unquestionable. There is no readily available evidence which could replace the polygraph examination as is the case when the prosecutor neglects to present the immediate declarant in favor of the hearsay alternative. Secondly, it cannot be said, and defendant does not contend, that there is a high probability that the jury would not have indicted absent the prosecutor's statement. Any doubts on that score were set to rest once the petit jury returned its verdict.

Finally, defendant contends that the statement was improper in the sense that it was inflammatory and prejudicial. The cases cited by defendant as well as many others are discussed in United States v. Chanen, 549 F.2d 1306 (9th Cir. 1977). As the court in that case noted, each case must turn on its own facts. Chanen, supra, at 1309.³ As seen by the Ninth Circuit, the guidelines emerging from the cases ask whether the prosecutor's action constituted "fundamental unfairness" or posed "a threat to `the integrity of the judicial process.'" Chanen, supra at 1311. The prosecutor's statement in this case did not cross these lines. As the extended discussion in United States v. Alexander, 526 F.2d 161 (8th Cir. 1975) indicates, the federal courts currently are taking a much closer look at the admissibility of polygraph examinations than was the case when the results of such examinations were summarily excluded. Given that the legitimacy of polygraph examinations has been heightened by the recent willingness of the courts to reconsider the question of their admissibility in criminal trials, it is hard to see how a reference to an examination before the grand jury raises the high probability of bias mandating dismissal of an indictment.

CONDUCT OF LINE-UP

Some months prior to trial, the court denied the motion of both defendants to dismiss the indictment on the grand that the government was guilty of prejudicial misconduct by preventing counsel for defendant Callahan from interviewing witnesses who attended a lineup, this violating defendant's due process rights. The government did not deny that it would not permit defense counsel to interview its witnesses at that time. It claimed that government officers were conducting the lineup and did not want interference at that time by Callahan's counsel interviewing the witnesses then. It argued there was no interference with Callahan's counsel interviewing witnesses following the lineup or doing so at any time before trial. The only authority cited by defendants, Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966), is inapposite since defendant's access to witnesses was not effectively barred. The court adhers to its earlier ruling denying these motions.

PRE-INDICTMENT DELAY

At the same time, defendants also moved to dismiss the indictment claiming there was unjustified preindictment delay and that this prejudiced defendants and denied them the right to a speedy trial and due process of law. No record was made in support of the claim of prejudice except counsel's affidavits. The court also denied these motions.

Preindictment delay does not violate the speedy trial clause of the Sixth Amendment. The statute of limitations provides "the primary guarantee against bringing overly stale criminal charges." United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971). The due process clause does play a limited role in protecting against oppressive delay. Here, the government's position was that it did not previously indict defendants because it was continuing with its investigation up until the time of the return of the indictment. The Supreme Court held in June 1977 that "to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time." United States v. Lovasco, 431 U.S. 783, 796, 97 S.Ct. 2044, 2052, 52 L.Ed.2d 752 (1977).

It was not claimed, and it did not appear, that there had been an intentional prosecutorial delay. Dismissal of an indictment might be called for in those cases where a defendant could show at trial that preindictment delay caused substantial prejudice to his right to a fair trial and that the delay was an intentional device used by the government to gain a tactical advantage over the defendant. United States v. Matlock, 558 F.2d 1328 (8th Cir. 1977). But due process does not require a dismissal for preindictment investigative delay standing alone. United States v. Lovasco, supra. This claim was without merit and properly overruled.

JURY SEQUESTRATION

Defendants complain of the denial of their motion to sequester the jury. Confinement of the jury during trial is a matter "which rests squarely within the sound discretion of the trial judge." Koolish v. United States, 340 F.2d 513 (8th Cir. 1965).

No claim is made, and there is no showing, that failure to sequester the jury was an abuse of discretion or prejudiced the parties. There is no representation that an attempt was made to tamper with the jury and no showing of prejudicial publicity in the news media.⁴ At least twice each day during the trial the court admonished the jury not to read, listen to or observe newspaper, radio or television news items about the trial or parties involved or to talk to others, or permit others to talk with them about the case....