Summary
rejecting motion to open grand jury minutes where grand jury testimony was based on double-hearsay testimony of a single witness
Summary of this case from U.S. v. ShyneOpinion
No. 04 Cr 594 (NRB).
January 25, 2005
Christoper Garcia, AUSA, New York, NY, Counsel for Government.
David Patton, Esq., The Legal Aid Society, Federal Defender Division, New York, NY, Counsel for Defendant.
MEMORANDUM AND ORDER
The defendant in this case was indicted on June 22, 2004 for criminal possession of a firearm in violation of 18 U.S.C. 922(g) (1). Defendant now moves to dismiss that indictment based on grand jury misconduct, or, in the alternative, for disclosure of the grand jury minutes. For the reasons stated below, defendant's motion is denied.
BACKGROUND
This factual statement is based on the testimony of four officers at a suppression hearing which we found credible in denying the suppression motion.
Defendant was stopped on June 1, 2004 in the Bronx, New York, by the New York City Police Department ("NYPD") after he made a turn without signaling. There were four officers in the police vehicle. The defendant was driving a rental car. After pulling the car over, the defendant was unable to provide the officers with registration or insurance information for the rental car, nor could he provide the officers with the name of the individual who had rented the car. The officers then placed the defendant under arrest for unauthorized use of a motor vehicle, and proceeded to search the rental car. In the trunk of the car, the officers found a .44-caliber Ruger handgun and four .44-caliber bullets. According to Officer Zerafa, they referred to the handgun as "lunch" to avoid alerting defendant to its discovery, whereupon defendant spontaneously denied ownership of the handgun (although from where he was standing defendant could not see into the trunk of the car). Defendant, his passenger, and the car were all taken to the local police precinct. The defendant was held initially on state charges, and was later indicted by a federal grand jury for possession of a firearm by a previously-convicted felon.
Initially, defendant disputed the basis of his initial stop and the validity of the subsequent search, and accordingly, moved under Federal Rules of Criminal Procedure 12(b) (3) and 41(f) to suppress the handgun. Defendant challenged the legality of the stop and the subsequent search on two bases: first, defendant asserted that he did signal while turning, and thus the stop was illegal; second, defendant contended that the police searched the trunk of the car prior to his arrest for illegal investigatory purposes. Following briefing of the motion, we ordered a suppression hearing, held on November 19 and December 2, 2004, at which all four police officers involved in the arrest testified. The defendant himself did not testify, nor did he call any other non-officer witnesses.
After hearing the relevant testimony and the arguments of both sides, we found based on the testimony heard from each of the officers present that the police had a reasonable basis to stop the car, namely, that defendant failed to signal prior to turning, and thus that the stop was legal. See United States v. Whren, 517 U.S. 806 (1996).
To the extent they had a recollection regarding defendant's failure to signal, the officers' testimony was consistent and we found it credible.
Before turning to the issue of the validity of the search itself, we addressed defendant's standing to challenge the search. Recognizing that burden was on the defendant to establish standing, we found that the defendant "ha[d] not met his burden of showing that he has standing to complain of the search." United States v. Sanchez, 635 F.2d 47, 64 (2d Cir. 1980). As in Sanchez, defendant had "demonstrated neither ownership of the [vehicle], nor license from the owner to possess the [vehicle]."Id. Rather, defendant's statement that he had been given permission by an essentially unidentified person to use the car — which had been rented by another unnamed person — was plainly insufficient. Finally, we noted that neither the registered renter of the car nor the third party who allegedly loaned the car to the defendant had come forth to corroborate defendant's claim of authorized use. Sanchez, 635 F.2d at 64; United States v. Triana-Mateus, No. 98 Cr. 958, 2002 WL 562649 at *3 (S.D.N.Y. Apr. 15, 2002). Thus, the defendant had not met his burden of establishing standing.
Further, assuming arguendo that the defendant had standing to challenge the search, we nonetheless found that the motion to suppress should be denied. First, we found that the evidence established that the search had been performed after the defendant's arrest for unauthorized use of the vehicle. Furthermore, the officers' testimony established that the search had been a proper inventory search, and thus was constitutional regardless of whether the search was performed at the precinct or on the side of the road. United States v. Mendez, 315 F.3d 132, 137 (2d Cir. 2002).
Finally, we found that even if the search as performed had been improper, the evidence would still be admissible under the doctrine of inevitable discovery. Once the defendant had been arrested, the police had legitimate custody of the vehicle. The testimony of the officers established that it was standard Police Department procedure to search the trunk of a vehicle that has been impounded. Therefore the discovery of the handgun and bullets was inevitable and the evidence admissible.Id. at 138; United States v. Jenkins, 876 F.2d 1085, 1088 (2d Cir. 1989)
At the suppression hearing, the government acknowledged that the only witness presented to the grand jury, Detective A1 Hickey ("Detective Hickey"), was not one of the four arresting officers, and in fact, had not spoken directly with any of the arresting officers. Instead, Detective Hickey based his testimony to the grand jury on an interview with the defendant's passenger and on an interview with another New York Police Department officer, Detective Joe Torres ("Detective Torres"), who himself had only interviewed the arresting officers, rather than witnessed the events first-hand. Therefore, the grand jury indictment was founded, at least in part, on the double-hearsay testimony by a single witness. Based on that disclosure, the defendant now moves for dismissal the indictment due to prosecutorial misconduct, or, in the alternative, to require disclosure of the grand jury testimony.
The defendant contends the indictment is based on double-hearsay insofar as it concerns the defendant's statement disclaiming ownership of the handgun.
DISCUSSION
A. Defendant's Motion for Dismissal of the Indictment
Relying on United States v. Brito, 907 F.2d 392 (2d Cir. 1990), defendant argues that the government's policy of using of a single, hearsay witness to obtain an indictment has become so systematic and pervasive as to render the defendant's grand jury proceeding fundamentally unfair. In Brito, the Second Circuit stated that district courts may dismiss an indictment for prosecutorial misconduct if the grand jury was mislead or misinformed, or "possibly if there is `a history of prosecutorial misconduct, spanning several cases, that is so systematic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process.'" Id. at 394 (quoting Bank of Nova Scotia, 487 U.S. 250, 259 (1988)). Accordingly, the defendant urges this Court to use its supervisory power to dismiss the grand jury's indictment. The defendant's argument is fatally flawed because it relies on authority that was undermined by the Supreme Court's decision in United States v. Williams, 504 U.S. 36 (1992), decided two years after Brito.
In Williams, the Supreme Court clarified the type of prosecutorial misconduct before the grand jury that could lead to dismissal on an indictment. The Court in Williams held that an indictment may be dismissed only when a prosecutor violates one of the "`few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury's functions.'" Id. at 46 (quoting United States v. Mechanik, 475 U.S. 66, 74 (1986)). Accordingly, courts may use their supervisory power to dismiss indictments for prosecutorial misconduct if that misconduct violates a Rule of Criminal Procedure, statute, or constitutional guarantee. Id. at 46 n. 6. The Supreme Court, however, cautioned that courts' supervisory power over grand jury proceedings does not include the power to "prescrib[e] those standards of prosecutorial conduct in the first instance." Id. at 46-47. Therefore, the Court held that Tenth Circuit's rule requiring prosecutors to disclose exculpatory evidence at grand jury proceedings exceeded that court's authority. Id. at 47.
The Supreme Court's decision in Williams must be understood in the context of the operation of the grand jury as a body separate from the courts. Thus, district courts have traditionally exercised limited supervisory power over their proceedings. See Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988) (noting that "a challenge to the reliability or competence of the evidence presented to the grand jury" will not be heard); United States v. Calandra, 414 U.S. 338, 349 (1974) (rejecting application of exclusionary rule to grand jury evidence);Costello v. United States, 350 U.S. 359, 363 (1956) (declining to apply hearsay rules to grand juries). Nevertheless, in Bank of Nova Scotia, the Supreme Court held that district courts had the power to dismiss an indictment when based on prosecutorial misconduct in front of the grand jury if the misconduct resulted in prejudice to the defendant. Bank of Nova Scotia, 487 U.S. at 263. In Williams, the Supreme Court addressed the scope of this power to dismiss an indictment based on prosecutorial misconduct.
Defendant acknowledges that other district courts in this circuit have held that the Supreme Court's decision in Williams invalidates the Second Circuit's rule in Brito. See United States v. Fleurissant, No. 03 Cr. 906, 2004 U.S. Dist. Lexis 18758 at *8 (S.D.N.Y. Sept. 21, 2004); United States v. Rodriguez, No. 95 Cr. 0754, 1996 U.S. Dist. Lexis 12222 at *3 (S.D.N.Y. Aug. 22, 1996); United States v. Gibbons, No. S1 92 Cr. 1146, 1995 WL 121297, at *4 (S.D.N.Y. Mar 21, 1995); United States v. Torres, No. 93 Cr. 673, 1994 U.S. Dist. Lexis 1554, at *9-*11 (S.D.N.Y. Feb. 16, 1994). Nevertheless, defendant maintains that the district court's power to punish systematic and pervasive prosecutorial misconduct, as opposed to individual prosecutorial misconduct, survives Williams, and argues that we should dismiss the indictment because of the widespread use of single, hearsay witness in grand jury proceedings, claiming it undermines the fundamental fairness of the grand jury as an institution. We disagree.
Although we recognize the existence of language suggesting otherwise, we admit to some trouble understanding how prosecutorial conduct, appropriate in a single instance, becomes improper misconduct warranting dismissal of an indictment solely by its repetition.
The language regarding systematic misconduct in Brito, decided prior to the sharp curtailment of the courts' supervisory power in Williams, was based upon dicta in Bank of Nova Scotia that is no longer good law.Williams, 504 U.S. at n. 6 (noting that some of the prosecutorial misconduct alleged in parts of Bank of Nova Scotia does not meet the standard for dismissal announced in Williams). In the Bank of Nova Scotia dicta, the Supreme Court considered forms of prosecutorial misconduct, not presented to it in, that might possibly justify dismissal of an indictment. Bank of Nova Scotia, 487 U.S. at 260 (noting that the Court is "not faced with a history of prosecutorial misconduct . . . that is so systematic and pervasive as to raise a substantial question about the fundamental fairness of the process which resulted in the indictment") (emphasis added). Relying on this dicta, the Second Circuit postulated in Brito that the systematic use of single, hearsay witnesses in grand jury proceedings might raise questions about the fundamental fairness of grand jury proceedings. This is precisely the type of judicially-prescribed code of prosecutorial conduct that the Supreme Court invalidated two years later in Williams. Rodriguez, 1996 WL 479441, at *1 (noting that Brito creates a judicial standard of prosecutorial conduct for which courts lack authority post-Williams). Therefore, we join the numerous district courts before us in holding that the rule for prosecutorial misconduct espoused in Brito is no longer valid.
Applying the standard set out in Williams, we find that we do not have the authority to dismiss the defendant's indictment for the violation alleged. In Williams, the Supreme Court ruled that the failure to disclose substantial exculpatory evidence did not warrant dismissal of an indictment because there was no rule requiring disclosure of such material other than one prescribed by the Tenth Circuit. Williams, 504 U.S. at 55. Similarly, there is no rule preventing a grand jury from voting an indictment based solely on the testimony of a single, hearsay witness, even if this practice is systematic, besides that suggested by the Second Circuit in Brito. Defendant makes no allegations that this misconduct at the grand jury proceeding violated any clear constitutional, statutory, or procedural rules. Additionally, given that the practice in Williams that the Supreme Court found to be outside its supervisory power was far more likely to benefit a grand jury target than the one challenged here, the rejection of the instant motion follow a fortiori from Williams.
Furthermore, even assuming that the Brito rule is still valid, we find that dismissal of the indictment is not warranted in this case. An allegation of prosecutorial misconduct is still subject to review for harmless error to determine whether the defendant actually suffered prejudice from the misconduct. Bank of Nova Scotia, 487 U.S. at 256 ("[A] district court exceeds its powers in dismissing an indictment for prosecutorial misconduct not prejudicial to the defendant."); United States v. Mechanik, 475 U.S. at 71-72.
Defendant alleges two forms of prejudice from the use of hearsay testimony. First, defendant argues that in situations of pervasive prosecutorial misconduct, the grand jury proceeding is so flawed as to allow for a presumption of prejudice. Bank of Nova Scotia, 487 U.S. at 256-57. Second, defendant argues that, because the sole evidence demonstrating that defendant had knowledge of the handgun in the trunk is his alleged spontaneous disclaimer of ownership of the handgun, the grand jury could not make a proper probable cause assessment based on double hearsay testimony alone.
We find both of these arguments unpersuasive. First, courts seldom presume prejudice to the defendant as a result of a grand jury error. Such cases are extraordinary, and the few cases where such a presumption of prejudice may be permissible are exemplified by errors of "constitutional magnitude," such as racial discrimination in the selection of grand jurors. Bank of Nova Scotia, 487 U.S. at 256-57 (noting that prejudice had been presumed in cases involving exclusion of grand jury members on the basis of race as well as exclusion based upon gender); cf. United States v. Soberon, 929 F.2d 935, (3d Cir. 1991) (finding that presentation of "allegedly perjured testimony to grand jury does not fall in narrow category of cases in which dismissal of charges without a showing of prejudice is warranted"). In such cases, "[t]he nature of the violation allowed a presumption that the defendant was prejudiced, and any inquiry into harmless error would require unguided speculation." Id.
Here, defendant has alleged the widespread use of a single, hearsay witness in grand jury proceedings. While, under Brito and Bank of Nova Scotia, an allegation of systematic prosecutorial misconduct allows the defendant "to raise a substantial and serious question about the fundamental fairness of the process," Bank of Nova Scotia, 487 U.S. at 259, it does not provide a basis for creating a presumption of prejudice. Nothing in either the Brito decision or the Bank of Nova Scotia decision obviates the requirement that a defendant show prejudice from misconduct, even if systematic and pervasive, and defendant cites no cases for such a proposition. Therefore, defendant's motion cannot succeed without a showing that he has been harmed by the alleged misconduct. Bank of Nova Scotia, 487 U.S. at 263 (holding that District Court "had no authority to dismiss the indictment on the basis of prosecutorial misconduct absent a finding that petitioners were prejudiced by such misconduct").
To avoid this requirement of prejudice, defendant attempts to graft the Supreme Court's language allowing for a presumption of prejudice in the few "isolated cases" where defendant can show a constitutional error, Bank of Nova Scotia, 487 U.S. at 256-57, to the Court's language regarding systematic prosecutorial misconduct in a separate section of the opinion. Id. at 259.
Moreover, we find that the defendant suffered no prejudice from the alleged prosecutorial misconduct. "The prejudicial inquiry must focus on whether any violations had an effect on the grand jury's decision to indict." Id. The defendant attempts to argue that the use of double-hearsay prevented the grand jury from evaluating the credibility of the witnesses and therefore was prejudicial. However, there is no logical difference between the use of single and double-hearsay in front of the grand jury, and the defendant points to no case law where courts have found prejudice based on this distinction. Further, in light of the testimony given by the four arresting officers at the suppression hearing, we can perceive no reasonable scenario that the grand jury would not have returned an indictment if presented with first-person testimony from the arresting officers. United States v. Dyman. 739 F.2d 762, 767 (2d Cir. 1984); see also United States v. Ruggiero, 934 F.2d 440, 447 (2d Cir. 1991). Accordingly, we find the defendant suffered no prejudice from any alleged misconduct and the indictment is not dismissed.
B. Defendant's Motion for Disclosure of the Grand Jury Minutes
In addition to his motion for dismissal, the defendant moves for disclosure of the grand jury testimony. That motion is also denied.
The secrecy of grand jury proceedings is fundamental to our criminal justice system. See United States v. Proctor Gamble Co., 356 U.S. 677, 682 (1958). Therefore, a party seeking disclosure of grand jury minutes must "show a `particularized need' that outweighs the need for secrecy."United States v. Moten, 582 F.2d 654, 662 (2d Cir. 1978); see also Fed.R.Crim.P. 6(e) (3) (E) (ii). Such review is rarely granted without specific factual allegations of government misconduct, Moten, 582 F.2d at 662, and "unsupported suspicions of grand jury abuse are not sufficient to justify disclosure of grand jury minutes." United States v. Abrahms, 539 F. Supp. 378, 389 (S.D.N.Y. 1982). This standard applies to in camera review of grand jury proceedings as well as disclosure to parties. United States v. Sullivan, No. 02 Cr. 1144, 2004 WL 253316 at *6 (S.D.N.Y. Feb. 10, 2004).
In this case, defendant has not demonstrated a particularized need to review the grand jury minutes. Defendant's sole allegation of misconduct in the defendant's grand jury proceeding is the use of double-hearsay testimony. As noted above, the use of such testimony in front of a grand jury is permitted, and does not raise suspicion of abuse. Furthermore, defendant's argument that the grand jury might not have been fully-informed about the nature of double-hearsay, or that the prosecutor might have asked leading questions are speculative at best. Accordingly, defendant's motion for disclosure of the grand jury minutes or for in camera review is also denied.