United States v. Caron, Crim. A. No. 82-00087-01.

• Decision Date: 02 December 1982
• Docket Number: Crim. A. No. 82-00087-01.
• Citation: 551 F. Supp. 662
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, Plaintiff, v. Fern A. CARON, Defendant.

551 F. Supp. 662

UNITED STATES of America, Plaintiff, v. Fern A. CARON, Defendant.

Crim. A. No. 82-00087-01.

United States District Court, E.D. Virginia, Richmond Division.

December 2, 1982.

Justin W. Williams, U.S. Atty., Alexandria, Va., N. George Metcalf, Asst. U.S. Atty., Richmond, Va., for plaintiff.

Plato Cacheris, Larry S. Gondelman, Hundley & Cacheris, P.C., Washington, D.C., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Defendant is charged in a four-count indictment with perjury and obstruction of justice. In connection therewith, he has filed numerous motions seeking dismissal. Having heard the arguments of counsel for the government and the defendant, the Court will address the motions seriatim:

I. Motion to Dismiss the Indictment on the Ground of Defective Grand Jury

In support of his motion to dismiss the indictment, defendant contends the grand jury before which he allegedly perjured himself was "incompetent," and, accordingly, any false testimony given to such grand jury could not constitute perjury. For essentially the same reason, defendant asserts his actions could not constitute obstruction of justice.

Defendant's contention that the grand jury before which he testified, though not that by which he was indicted, was incompetent is purportedly founded upon the ruling of the Court in United States v. Branscome, 529 F.Supp. 556 (E.D.Va.), aff'd, 682 F.2d 484 (4th Cir.1982), that an indictment returned by that grand jury had to be dismissed due to a substantial failure to comply with the Jury Selection and Service Act of 1968 ("the Act") in the empanelling of the grand jury.

As defendant reads the Branscome opinion, "the defect in the selection of the grand jury rendered it a nullity. In essence, it had no authority to do anything." Defendant concludes therefrom that any false testimony given before a grand jury so tainted could not amount to perjury.

Challenges to the composition of a grand jury may be asserted under the Act or on constitutional grounds. In the case at bar, defendant apparently raises his challenge only under the statute. Noting the uniqueness and substantiality of the question presented by these facts, however, the Court has also considered the possible ramifications of the grand jury taint from a constitutional perspective.

The determination as to whether the Act requires dismissal of the instant indictment turns entirely on the question whether defendant has standing under the Act to challenge the grand jury before which he testified. The Branscome decision conclusively established that the grand jury in question was empanelled in substantial noncompliance with the Act. 529 F.Supp. at 562. Accordingly, if defendant is within the narrow class of litigants contemplated by the Act, the indictment must be dismissed, for defendant need not demonstrate prejudice in order to prevail on his challenge; rather, a showing of a substantial failure to comply with the requirements of the Act is all that is necessary. See United States v. Rodriquez, 588 F.2d 1003, 1009 (5th Cir.1979); United States v. Jenison, 485 F.Supp. 655, 659 (S.D.Fla.1979).

In determining whether defendant has standing to challenge the method by which the grand jury was empanelled, it is to the language of the relevant statute, 28 U.S.C. § 1867(a), that the Court first refers:¹

In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.

Defendant argues that the language of the statute does not strictly limit the statutory remedy to challenges by a defendant against the indicting grand jury. Defendant further contends the policy declaration of the Act as set forth in 28 U.S.C. § 1861 indicates a broad congressional intent to afford "all litigants" a randomly selected jury. The only qualification on this entitlement, defendant asserts, is that the litigant be one entitled to trial by jury. From all of this, defendant concludes he, as a litigant entitled to trial by jury, has standing to challenge the composition of a grand jury before which he appeared as a witness, notwithstanding the fact that the instant indictment was returned against him by another grand jury, the composition of which he does not challenge. Finally, defendant contends "the plain language of sections 1861 and 1867 permits a defendant to challenge the composition of any grand jury related to his case."

As an initial matter, the Court cannot agree that the language of §§ 1861 and 1867 affords a defendant the right to challenge "any grand jury related to his case." To the contrary, in the Court's view, the common-sense impression engendered by those sections is that a criminal defendant is entitled to challenge the composition of the grand jury which returned the indictment. While § 1867(a) is not endowed with an overabundance of clarity, the language suggests the availability of a challenge to the composition of a grand jury is limited to criminal defendants who have been indicted by that grand jury. This reading derives from that portion of the statute which states: "The defendant may move to dismiss the indictment ... on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury." Emphasis added. In eschewing the use of the terms "a grand jury" or "any grand jury" in favor of "the grand jury," Congress apparently intended to limit grand jury challenges to those made by a "criminal defendant" to "the grand jury" that indicted such defendant. This conclusion is, of course, directly contrary to defendant's unsupported assertion that he has standing under § 1867 to challenge "any grand jury related to his case"; the Court, however, can discern no support for defendant's contention in the language or purpose of the statute, or in the case law.²

The policy reasons supporting the Court's reading of the statute are evident. It may reasonably be inferred that Congress, in enacting the Act, was attempting to prevent systematic exclusion of racial, ethnic, or religious minorities from jury service by constructing a statutory scheme designed to ensure random selection of juries from a fair cross section of the community. See United States v. Maskeny, 609 F.2d 183, 191 (5th Cir.), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980); United States v. Manbeck, 514 F.Supp. 141, 144 (D.S.C.1981). The Act is rather clearly designed to accommodate the equal protection concerns presented as these minority groups have been systematically underrepresented or excluded from grand and petit juries. These concerns overlap, of course, with the principle of being judged by one's peers. This principle and its attendant equal protection ramifications do not come into play where the jury being challenged neither indicted nor tried the defendant making the challenge. Accordingly, the Court concludes neither the language nor the purposes of the Act require that a defendant be found to have standing to challenge the composition of a grand jury which neither indicted him nor took any other action against him.³

Having concluded that the defendant lacks standing under the Act to challenge the method by which the grand jury was selected, the Court turns to the question of defendant's standing to raise irregularities in the empanelling of the grand jury on constitutional grounds. Because defendant stands indicted of a criminal offense, considerations of due process dictate that he be afforded the opportunity to raise all defenses not waived. To the extent defendant's challenge to the composition of the grand jury could reveal a violation of his constitutional rights or could negate an element of the charged offense as a matter of law, defendant certainly has standing to place such matters before the Court. See, e.g., In re Archuleta, 432 F.Supp. 583, 589 (S.D.N.Y.), aff'd, 561 F.2d 1059 (2d Cir. 1977). The Court discerns no constitutional violations in this case; thus, the Court must examine the substance of defendant's contentions to determine whether they would negate an element of the offense.

Defendant's fundamental premise, often repeated, that the grand jury in question was "incompetent" and a "nullity" is simply incorrect, and no support for this contention is intimated in the opinions of the District and Circuit Courts in United States v. Branscome, 529 F.Supp. 556 (E.D. Va.), aff'd, 682 F.2d 484 (4th Cir.1982). Those courts merely concluded the grand jury had been selected in substantial noncompliance with the Act and, under the terms of the Act, the indictment was required to be dismissed upon motion timely made. This, of course, does not mean the grand jury was a "nullity" having "no authority to do anything," as defendant urges. Indeed, the existence of a timeliness requirement indicates any technical defects under the Act in the jury selection process are waivable, as the court held in United States v. Kennedy, 548 F.2d 608 (5th Cir. 1977), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1978) (conviction affirmed where defendant failed to meet strict formal prerequisites for challenging the composition of the jury under the Act). If a defendant indicted by the tainted grand jury can be validly convicted after waiving his challenge, it cannot seriously be contended that the grand jury was a "nullity."

The question thus becomes whether the grand jury taint found to exist in Branscome provides a basis for dismissal of the instant indictment. In reviewing the elements of the offense with which defendant is charged, it appears the only element that arguably could be affected by the grand jury taint is the requirement...