United States v. Roberts
| Decision Date | 02 January 1980 |
| Docket Number | No. CR 79-927-AAH.,CR 79-927-AAH. |
| Citation | 481 F. Supp. 1385 |
| Parties | UNITED STATES of America, Plaintiff, v. Dennis Barry ROBERTS, Howard Schneider, Defendants. |
| Court | U.S. District Court — Central District of California |
Andrea Sheridan Ordin, U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Criminal Division by Theresa A. Kristovich, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff.
Hochman, Salkin & DeRoy by Bruce I. Hochman, and Stephen V. Wilson, Beverly Hills, Cal., for defendant Howard Schneider.
Alvin S. Michaelson by Bruce I. Hochman, and Stephen V. Wilson, Beverly Hills, Cal., for defendant Dennis Barry Roberts.
DECISION
Defendants Dennis Barry Roberts and Howard Schneider were indicted by the Kadashaw Grand Jury on November 15, 1979. Count One of the indictment charges the defendants with conspiracy to receive stolen property from a bank, to wit, $45,000 in United States Treasury Notes, in violation of 18 U.S.C. § 371; § 2113(c). Count Two of the indictment charges defendant Schneider with receiving the stolen treasury notes and defendant Roberts with aiding and abetting. 18 U.S.C. § 2113(c); § 2. Both defendants have made motions seeking inspection of grand jury minutes and attendance and voting records for the purposes of determining whether the indictment in this case was returned by twelve "informed" grand jurors. Defendant Schneider, joined by defendant Roberts, has also filed a motion to dismiss the indictment on grounds of alleged prosecutorial misconduct.1
In October 1978 the Churchwell Grand Jury2 commenced an investigation relating to the theft of $45,000 in negotiable United States Treasury Notes from a Los Angeles branch of the Security Pacific National Bank. Wallace Fortune, a former employee of that Security Pacific branch, testified before the Churchwell Grand Jury, as did defendants Roberts and Schneider. At that time, Fortune testified that he did not steal the treasury notes and denied knowing defendant Schneider or selling him the missing treasury notes. Subsequently, however, Fortune was indicted by the Churchwell Grand Jury in March 1979 for misapplication of funds from a bank in violation of 18 U.S.C. § 656 in connection with the theft of the treasury notes. A plea agreement was later entered into between Fortune and the Government permitting him to plead to a superseding misdemeanor charge in exchange for cooperation in the continuing investigation of the theft and use of the stolen treasury notes.
Defendant Schneider when testifying before the Churchwell Grand Jury stated that he purchased the $45,000 of treasury notes from a man whom he later learned was Wally Fortune in December, 1976, for $40,000; that Fortune and another man (later identified as one Eric Touchard) had come to his home in Beverly Hills after an introduction from Schneider's friend and co-defendant Dennis Roberts; that Schneider was told by Fortune's friend that he would sell the notes at a discount because he was going through a divorce and did not want to sell the notes through a brokerage firm; that Schneider had been told that these treasury notes had been offered for sale to the Cantor, Fitzgerald & Co., Inc., a stock brokerage firm with which he had an account and that Schneider telephoned that firm for purposes of checking to see whether the treasury notes were authentic; that Schneider was told by two members of that firm, Jack Meyers and Bert Cohen, that they had checked out the notes and found them to be without any problems; that they thought $40,000 was a good price and were going to buy them but changed their minds. Schneider stated that only after being given this information did he buy the treasury notes.
On July 5, 1979, Fortune testified before the Kadashaw Grand Jury (the Churchwell Grand Jury having completed its term in March 1979). Fortune admitted stealing the treasury notes from the branch of Security Pacific National Bank where he had been employed and sold them with the assistance of a friend, Eric Touchard, to defendant Schneider at the suggestion and direction of defendant Roberts.
Schneider's counsel, in monitoring the Kadashaw Grand Jury's investigation, endeavored in late July 1979 to bring to the attention of the prosecutor in charge of the investigation the exculpatory testimony of one Roland Pagan. Pagan reportedly told Schneider and his counsel that he had overheard conversations between defendant Roberts and Wallace Fortune which tended to exculpate Schneider and shift culpability towards Roberts, Fortune and his accomplice, Eric Touchard.3 These efforts apparently ended in failure as the prosecutor at that time did not subpoena Pagan to appear before the grand jury. Later, in August 1979, Schneider's counsel also requested the prosecutor to present the results of a polygraph examination taken by Schneider which tended to corroborate his version of the events which took place. A conference between counsel, the prosecutor and her superiors in the United States Attorney's Office also proved to be of no avail and the results of the polygraph test were not presented to the Grand Jury. During this period, other exculpatory evidence forwarded to the prosecutor which was not presented to the grand jury included information about the criminal background of Fortune's accomplice Eric Touchard and the affidavit of Bert Cohen, an Executive Vice President of Cantor, Fitzgerald & Co., Inc., corroborating Schneider's contention that he checked with that brokerage firm about the authenticity of the treasury notes before he purchased them.
On September 27, 1979, Judge Pregerson of our District Court heard defendant Schneider's "Motion To Compel Exculpatory Evidence Before The Grand Jury." At that time the Government prosecutor promised to Judge Pregerson she would present to the Grand Jury any exculpatory information brought to her attention and made available to her.4 On that same date defendant Schneider testified before the Kadashaw Grand Jury, as did Roland Pagan, Schneider's exculpatory witness; but none of the other exculpatory evidence that had been brought to her attention and made available to her was presented to the Grand Jury.
Subsequently, on November 15, 1979 an indictment was returned, charging defendants Roberts and Schneider with the aforementioned violations.
While recognizing the independent roll of a prosecutor in grand jury proceedings, the Court also acknowledges its duty to supervise the work of grand juries in instances where there is a clear basis in fact and law for doing so. United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir. 1977); United States v. Samango, 607 F.2d 877 (9th Cir. 1979). To safeguard and preserve the independence of the grand jury proceedings, this Court on several occasions has conducted in-camera reviews of grand jury records, minutes, et al. Here, the serious charges of prosecutorial misconduct have convinced the Court that such an in-camera review of grand jury transcripts, voting and attendance records, etc., was necessary in the interest of justice.
The Court's review of the Kadashaw Grand Jury's attendance and voting records (Court Exhibit 1) reveals that only eight members of the Grand Jury were present for all the sessions in which testimony was presented relating to the investigation of the stolen treasury notes. Even assuming the Government is permitted to count absentee grand jurors to whom was later reread testimony rendered in their absence, the number of "informed" grand jurors totals eleven, and falls short of the twelve required for a viable indictment.
For a grand jury to indict, twelve or more jurors must vote to return an indictment. F.R.Crim.P. 6(f). In United States v. Leverage Funding Systems, Inc., et al., 478 F.Supp. 799 (C.D.Cal.1979), Pregerson, D. J., it was held that an indictment fails to meet the minimum requirements of F.R. Crim.P. 6(a) and due process when it is returned by less than twelve "informed" grand jurors — i. e., by less than twelve jurors who attended all grand jury sessions in which testimony pertaining to the indictments was presented.5 We, in embracing and concurring with the decision of our brother, Pregerson, find that the rule he has and now we have adopted marks the critical point at which the courts must assert themselves in order to protect due process and to preserve established Constitutional principles requiring the maintenance of the grand jury's independence and integrity.6 See: Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962).
Thus, the Court finds that the indictment must be dismissed because here in this case it was returned by less than twelve informed grand jurors. The Court now turns to defendants' motion to dismiss the indictment for prosecutorial misconduct, the merits of which were orally and informally addressed and ruled upon during argument in this matter.
Defendants charge that the Government prosecutor in charge of the investigation leading to their indictment was guilty of flagrant misconduct for failure to provide exculpatory evidence to the indicting Grand Jury and for questionable tactics employed during the course of the investigation. As stated earlier, the Court has a limited responsibility to oversee the work of grand juries, especially where serious allegations of prosecutorial abuse are brought to its attention. United States v. Chanen, supra, 549 F.2d 1306, 1313; In re Grand Jury for November, 1974 Term, 415 F.Supp. 242, 244 (W.D.N.Y.1976). Moreover, the power of the Court to dismiss an indictment for prosecutorial misconduct on the basis of its supervisory powers is unquestioned in this Circuit. United States v. Samango, 607 F.2d 877 (9th Cir. 1979); United States v. Owen, 580 F.2d 365 (9th Cir. 1978).7
An exhaustive review of the voluminous grand jury transcripts (Court...
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