United States v. Felice

• Decision Date: 15 December 1978
• Docket Number: Crim. No. 78-81.
• Citation: 481 F. Supp. 79
• Parties: UNITED STATES of America, Plaintiff, v. John J. FELICE, Jr., Defendant.
• Court: U.S. District Court — Northern District of Ohio

481 F. Supp. 79

UNITED STATES of America, Plaintiff, v. John J. FELICE, Jr., Defendant.

Crim. No. 78-81.

United States District Court, N. D. Ohio, E. D.

Memoranda Opinions and Orders October 23, 1978.

On Motion to Quash Subpoena November 6, 1978.

On Motion for Judgment of Acquittal or New Trial December 15, 1978.

COPYRIGHT MATERIAL OMITTED

Abraham M. Poretz, Special Attorney, U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Robert J. Rotatori, and Gerald A. Messerman, Cleveland, Ohio, for defendant.

MEMORANDA OPINIONS AND ORDERS

NEESE, District Judge.

The defendant Mr. Felice moved herein on August 24, 1978 for the disclosure of certain portions of the record of the grand jury proceedings¹ which led to the indictment returned against him herein. Rule 6(e), Federal Rules of Criminal Procedure.² The motion lacks merit in its entirety.

"* * * The requirement of Rule 6(e) is that the defendant must make `showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.' In the absence of such a showing, the proceedings of a grand jury are required to be kept secret. * * *" United States v. Fife, C.A. 6th (1976), 573 F.2d 369, 3721. Mr. Felice contends that several possible irregularities may have taken place before the grand jury:

(1) that erroneous instructions were given by the government as to the elements of the offenses charged in counts II-XII, inclusive, of the indictment;

(2) that the grand jury failed to vote separately on each count of the indictment;

(3) that the government generated preindictment publicity so as to substantially prejudice his position before the grand jury;

(4) that the government withheld or failed to direct the attention of the grand jurors to certain exculpatory evidence; and

(5) that an unsworn statement of Mr. Louis J. Aratari was used against him before the grand jury (which statement was substantially repudiated under oath on the very day the indictment herein was returned) rather than Mr. Aratari's being presented personally as a witness.

Counsel for the government represents to the Court that no record was made of any instructions given the grand jury by the prosecution. It was not required that such a record be made of any remarks made by the prosecuting attorney. United States v. Perkins, D.C.Ohio (1974), 383 F.Supp. 922, 92918; see also United States v. Barone, C.A. 6th (1978), 584 F.2d 118, 125 (1978) and United States v. Hensley, C.A. 6th (1967), 374 F.2d 341, 35219. Even if counsel for the government misled the grand jury by giving them faulty instructions, such would not appear to be a ground for the dismissal of the indictment. The conduct of the prosecutor in obtaining an indictment is virtually unreviewable by the federal courts. 8 Moore's Federal Practice (2d ed.) 6-66, ¶ 6.04.

It was not necessary that the grand jurors vote separately on each count of the indictment. United States v. Winchester, D.C.Del. (1975), 407 F.Supp. 261, 27810; United States v. Perkins, supra, 383 F.Supp. at 93021; United States v. Bally Manufacturing Corporation, D.C.La. (1972), 345 F.Supp. 410, 42113. The only requirement in this regard was that the indictment itself be based upon the concurrence of 12 or more grand jurors. Bally, idem.

Professor Moore notes that it does not appear that any court has ever dismissed an indictment on the ground of adverse publicity toward a defendant. 8 Moore's Federal Practice (2d ed.) 6-61 ¶ 6.034. The fact that a grand jury may be induced to take action by newspaper reports "* * * forms a continuum with its historic function of ferreting out crime and corruption, and is in no way inconsistent with its duty to decide on and in accordance with the evidence adduced before it. * * *" United States v. Nunan, C.A. 2d (1956), 236 F.2d 576, 593, certiorari denied (1956), 353 U.S. 912, 77 S.Ct. 661, 1 L.Ed.2d 665. The grand jury's sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. United States v. Calandra (1974), 414 U.S. 338, 344-345, 94 S.Ct. 613, 38 L.Ed.2d 561, 5697.

The Court considered a newspaper clipping from the Cleveland Press of April 25, 1978 concerning a report of the testimony of government attorney Mr. Douglas P. Roller before a Senate subcommittee. Such does not demonstrate sufficient adverse publicity toward Mr. Felice as to make even a colorable claim for the dismissal of the indictment herein. The name of Mr. Felice was not mentioned in such newspaper account; it is reported therein that Mr. Roller declined to be more specific in public when asked to do so by Senator John Glenn.

Assuming arguendo that the government's personnel did generate highly prejudicial publicity regarding Mr. Felice, and further assuming that members of the grand jury were aware of that publicity during their deliberations, the disclosure of the grand jury proceedings herein would not indicate what effect, if any, such publicity had on the grand jurors. Even if the defendant were allowed access to the grand jury minutes, such could hardly afford either the Court or counsel for the defendant "* * * any basis for the objective assessment of the existence of prejudice toward Mr. Felice in the minds of the grand jurors. * * *" Silverthorne v. United States, C.A. 9th (1968), 400 F.2d 627, 633-634. The Court will fully protect the right of Mr. Felice to a fair trial by ensuring through voir dire that a fair and impartial jury is empaneled, regardless of any prejudicial publicity. See United States v. Johnson, C.A. 6th (1978), 584 F.2d 148, 155.

Mr. Felice cannot challenge the indictment herein "* * * on the ground that information which he considered favorable to his defense was not presented to the grand jury. * * *" United States v. Ruyle, C.A. 6th (1975), 524 F.2d 1133, 11364, certiorari denied (1976), 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175; accord United States v. Kennedy, C.A. 9th (1977), 564 F.2d 1329, 13387, 8; see also United States v. Mandel, D.C.Md. (1976), 415 F.Supp. 1033, 10405; contra United States v. Phillips Petroleum Co., D.C.Okla. (1977), 435 F.Supp. 610, 619-6206, 7, 8. While the government's counsel may have been under an ethical, see ABA Standards Relating to the Prosecution Function § 3.6(b), or administrative, see U.S. Attorney's Manual § 9-11.334, obligation to bring certain exculpatory matters to the attention of the grand jury, supervision of these duties are best left to agencies other than the federal courts.³ Cf. Newman v. United States, C.A. D.C. (1967), 382 F.2d 479 (opinion by then Circuit Judge Burger).

It does not appear to the Court that it was improper for the government to have used an unsworn statement of Mr. Aratari as evidence against Mr. Felice at the grand jury proceedings. "* * * Neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act. * * *" Costello v. United States (1956), 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397, 401-402. "* * * The validity of an indictment is not affected by the character of the evidence considered by the grand jury. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence. * * *" United States v. Calandra, supra, 414 U.S. at 344-345, 94 S.Ct. at 618, 38 L.Ed.2d at 5697. The indictment herein "* * * is valid even though it may have been based solely upon hearsay evidence. * * *" United States v. Barone, supra, 584 F.2d at 123. Any inconsistency between the statement of Mr. Aratari before the grand jury and his testimony in the state trial is irrelevant to an indictment, good on its face.⁴United States v. Rosenstein, C.A. 2d (1970), 434 F.2d 640, 641, certiorari denied (1971), 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 825.

Motions, such as this, seeking the disclosure of proceedings before a grand jury "* * * are rarely granted." 8 Moore's Federal Practice (2d ed.) 6-75, ¶ 6.05; see also 1 Wright, Federal Practice and Procedure: Criminal 187, § 108. The burden was on the defendant Mr. Felice "* * * to show that `a particularized need' exists for the grand jury minutes which outweighs the policy of secrecy. * * *" Pittsburgh Plate Glass Co. v. United States (1959), 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323, 1327 (headnote 6). Mr. Felice has not demonstrated that grounds may exist for a motion to dismiss the indictment herein because of matters occurring before the grand jury. United States v. Fife, supra, 573 F.2d at 3721. His mere conclusions, without factual support, regarding possible irregularity of the grand jury proceedings do not provide a sufficient showing of the existence of grounds for a motion to dismiss the indictment. Ibid., 573 F.2d at 3722.

Accordingly, the motion of the defendant for the disclosure of portions of the grand jury proceedings hereby is

DENIED.

Mr. Felice also moved the Court to dismiss the indictment herein. In support of that motion, it is contended that irregularities in the grand jury proceedings (primarily the result of alleged misconduct on behalf of the government) and the post-indictment misconduct of the prosecution deprived him of his right to due process of law, Constitution, Fifth Amendment.

A strong presumption attaches to the regularity of a grand jury's proceedings, and the burden was on Mr. Felice to have demonstrated that an irregularity occurred. United States v. Woods, C.A. 6th (1976), 544 F.2d 242, 2506. (The improprieties in the grand jury proceedings, alleged by the defendant in support of this motion, have previously been considered by the Court in connection with his motion to disclose the grand jury minutes.) As heretofore indicated, those purported irregularities are not sufficient to require dismissal of the indictment. "* * * An indictment returned by a legally constituted and unbiased...