United States v. Mandel, Crim. No. HM75-0822.
| Decision Date | 05 April 1976 |
| Docket Number | Crim. No. HM75-0822. |
| Parties | UNITED STATES of America v. Marvin MANDEL et al. |
| Court | U.S. District Court — District of Maryland |
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Jervis S. Finney, U. S. Atty. for the District of Maryland, Barnet D. Skolnik, Ronald S. Liebman and Daniel J. Hurson, Asst. U. S. Attys., Baltimore, Md., for the United States of America.
Arnold M. Weiner, Baltimore, Md., for Marvin Mandel.
William G. Hundley, Washington, D.C., for W. Dale Hess.
Thomas C. Green, Washington, D.C., for Harry W. Rodgers, III.
Michael E. Marr, Baltimore, Md., for William A. Rodgers.
Norman P. Ramsey, Baltimore, Md., for Irvin Kovens.
Joseph A. DePaul, College Park, Md., for Ernest N. Cory, Jr.
Defendant Mandel has moved the Court for dismissal of the indictment or in the alternative, for suppression of evidence and other appropriate relief for alleged prosecutorial misconduct. It is claimed that the proceedings in this case have been so "infected" by such misconduct that "the Defendant has been deprived of his constitutional rights to an unbiased, unprejudiced, independent and informed Grand Jury, to due process of law, and to a fair trial." Other defendants in the case have adopted the motion, although none has individually filed any supporting memoranda or affidavits.
Defendant Mandel raises five points in support of his motion. They are as follows:
1. The prosecution abused the subpoena power by employing it for the purpose of conducting private interrogations.
2. The prosecutors violated their duty to present exculpatory evidence to the grand jury.
3. The intimidation of witnesses deprived the defendant of an unbiased grand jury.
4. The prosecutors abused the process of this Court in connection with the indiscriminate issuance of subpoenas duces tecum, amounting to an unlawful search and seizure and an impermissible circumvention of the requirements for subpoenas in connection with tax investigations.
5. The prosecutor's intemperate remarks at the arraignment hearing amounted to professional misconduct.
In its response to defendant's motion, the government asserted that these claims are false or otherwise without merit. It contended there was no abuse of power; that the entire investigation was carefully and thoroughly documented. It offered to supply to the Court for its review every subpoena issued during the investigation, the verbatim transcribed testimony of every witness who appeared before the grand jury, every file, memorandum or other documentation of any step or action taken by any government representative in connection with the case, and if requested, sworn statements from any and every government representative who worked on the investigation, detailing his investigative activities.
In view of the conclusory nature of the allegations in both defendant's motion and the government's response, the Court lacked sufficient factual information to make an informed decision on the claim of prosecutorial misconduct. In order to flesh out the charges made, defense counsel sought an evidentiary hearing. Government counsel, while leaving the matter to the Court's discretion, observed in its response to the motion that the publicity which might be generated by an evidentiary hearing conducted shortly prior to the impaneling of a jury and commencement of trial, might operate to prejudice the rights to a fair trial of other defendants in the case who already were seeking severances and change of venue because of claimed prejudicial publicity. It was suggested instead that any evidentiary hearing be deferred until after the trial.
The Court met with counsel on March 23rd to discuss how the matter should be handled. After hearing counsel, the Court directed that the defense amplify its factual contentions by the filing of supporting affidavits by March 29, 1976 and that the government file opposing affidavits by April 2, 1976. The Court indicated that upon the filing of the affidavits it would determine whether or not to make them a matter of public record immediately or whether they should be sealed to be opened at an appropriate time after trial. The Court has decided to adopt the latter course, although general references to the content of some of the affidavits will be made in the discussion which follows of the points raised by the motion.
Did the prosecution abuse the subpoena power by employing it for the purpose of conducting private interrogations?
The defendant contends that throughout the grand jury investigation, the office of the United States Attorney caused the issuance of grand jury subpoenas, under color of law, for the purpose of compelling persons to appear at the office of the United States Attorney, so as to subject such persons to private interviews by the staff of the United States Attorney, thereby abusing the process of this Court. The affidavits show that approximately five people were subpoenaed for private interviews. Defendant contends that such a use of the subpoena power to secure private interviews in government offices is strongly condemned as an abuse of process, stating:
It is inherently coercive; it provides opportunities for subtle intimidation; and when used to screen witnesses favorable to the defendant, it is manifestly prejudicial. (Memorandum at 8)
The government in its affidavit responds to defendant's contentions as follows:
No one subpoenaed was ever refused the opportunity to appear before the grand jury if that was his preference. No one subpoenaed, to the knowledge of the affiant, was ever knowingly led to believe that he did not have the absolute right to appear before the grand jury if he so chose. Many people of course preferred not to appear; such preferences were honored, wherever possible, consistent with the requirements of sound investigative procedure. (Affidavit at 3)
It is the opinion of the Court that the defendant has failed to make out a sufficient showing of abuse of process to warrant dismissal of the indictment. This investigation was a lengthy one, and it is clearly no abuse of process for five people to be subpoenaed for interviews but not brought before the grand jury. In addition, the Court thinks it is sound and customary procedure for the prosecutors to interview witnesses before taking them to the grand jury in order to eliminate unnecessary material before the grand jury and save the time of the grand jurors.
Defendant relies in part on Durbin v. United States, 94 U.S.App.D.C. 415, 221 F.2d 520 (1954). The facts of this case deserve attention because it is apparent that the court did not hold that a prosecutor could never use the subpoena power to conduct interviews. In that case the prosecutor told the witness he could not leave the city until the prosecutor gave him permission. The witness left and was prosecuted for traveling in interstate commerce with intent to avoid giving testimony before the grand jury in a criminal proceeding. The court stated:
It is quite apparent that the Assistant thought the grand jury subpoena empowered him to restrain appellant's movements indefinitely, or at least until appellant made a statement which satisfied him; and this despite the fact that the grand jury recessed. (221 F.2d at 522)
In such extreme circumstances, the court held that the defendant could not be prosecuted for avoiding grand jury testimony. The instant case is clearly not such an extreme one.
The decisions in United States v. Gurney, 393 F.Supp. 683 (M.D.Fla.1974), and United States v. Keen, 509 F.2d 1273 (6th Cir. 1975), also relied on by the defendant, are not relevant to grand jury proceedings but hold that the government cannot issue subpoenas to compel witnesses to attend pre-trial interviews.
On the other hand, courts have commented on the screening function played by the prosecutor in presenting a case before a grand jury. See United States v. Johns-Manville Corporation, 213 F.Supp. 65 (E.D. Pa.1962). See also United States v. Miller, 508 F.2d 588 (5th Cir. 1975), in which the seven dissenters reasoned:
The U. S. Attorney is the guiding arm of the grand jury, concerned with the orderly presentation of information before that body. It is customary practice in the courts for documents and witnesses to be subpoenaed in advance to eliminate unnecessary material, allow for the orderly presentation of evidence, and save the time of grand jurors. (508 F.2d at 594)
This Court agrees with the reasoning in Miller that the prosecutor may, and even should, take an active role in organizing the presentation of witnesses and documents before the grand jury to avoid needless repetition of evidence and to conserve the time of the grand jurors. Therefore, in the absence of compelling evidence of abuse of process, such as that in Durbin, supra, this Court will not dismiss an indictment because the prosecutors used the subpoena power to interview witnesses who were not subsequently brought before the Grand Jury. Such compelling evidence is lacking in the instant case where it has been shown only that five persons were interviewed privately and were not brought before the grand jury.
Is there a duty of the prosecutors to present exculpatory evidence before the grand jury?
Defendant contends that key witnesses, with substantial exculpatory information directly contradicting the allegations of the indictment, were purposefully not taken before the grand jury investigating this matter. The Court does not consider the several instances of witnesses not being called before the grand jury outlined in the affidavits sufficient to warrant dismissal of the indictment.
In the first place, the Court notes that the affidavits show that the defendant was given the opportunity to present the government with a list of exculpatory witnesses to be called before the grand jury but decided not to do so. The fact that...
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