Opinion
Criminal Action No. 03-10190-RWZ.
January 5, 2005
MEMORANDUM OF DECISION
On June 4, 2003, a federal grand jury returned an indictment against defendant Nabih Hamdan and three others, charging them with eleven counts of credit card fraud and aiding and abetting in violation of 18 U.S.C. §§ 1029 and 2, and one count of conspiracy to commit credit card fraud in violation of 18 U.S.C. § 371. Defendant moves to dismiss the indictment because the government's case agent incorrectly informed the grand jury that the government had a videotape showing the defendant committing credit card fraud.
To successfully dismiss the indictment, defendant must show serious and blatant prosecutorial misconduct, which distorted the integrity of the process. United States v. Giorgi, 840 F.2d 1022, 1030 (1st Cir. 1988). He must demonstrate that the prosecution intentionally submitted the false testimony to the grand jury. United States v. Bonaventura, 337 F. Supp. 2d 209, 211 (D. Mass. 2003). "Misstatements or mistakes alone do not justify dismissing an indictment that is facially valid." United States v. Maceo, 873 F.2d 1, 4 (1st Cir. 1989), quoting United States v. Johnson, 767 F.2d 1259, 1275 (8th Cir. 1985). A district court may dismiss an indictment if the prosecutorial misconduct prejudiced the defendant. Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988). Once defendant shows that a non-constitutional error occurred in the grand jury proceeding, the government has the burden to establish an absence of prejudice under the harmless error standard. Bonaventura, 337 F. Supp. 2d at 211. In general, "because of the constitutionally mandated independence of the grand jury and the prosecutor, courts should be reluctant to dismiss an indictment." United States v. Giorgi, 840 F.2d 1022, 1030 (1st Cir. 1988).
Defendant argues that the case against him was built on circumstantial evidence and the only direct evidence linking him to the alleged crime was the videotape. The government concedes that the agent erroneously believed that the government obtained a video of the allegedly fraudulent transaction by defendant on January 10, 2001, from which a still photograph was made. In fact, the government had such a photograph, but no videotape. The government contends that the agent's later statements about other photographs in connection with other allegedly fraudulent transactions by co-defendants further undercut any significance the videotape may have had.
First, defendant has not established that the prosecution intentionally submitted the agent's erroneous testimony to the grand jury. Second, the government has demonstrated the absence of prejudice as a result of the agent's misstatements. Defendant's attempt to analogize this case to United States v. Martinez, 710 F. Supp. 415 (D. Puerto Rico 1989), is unconvincing. In Martinez, the material on the nonexistent videotape went "directly to the issue of probable cause to believe that the targets of the investigation had committed a crime." Id. at 418. Here, defendant speculates that without the statements about the videotape, the grand jury might have questioned the authenticity of the photographs. However, the grand jury returned an indictment on the other co-defendants, including two whose transactions were captured on photograph, not videotape. Furthermore, there was other incriminating evidence presented to the grand jury, such as the use of defendant's addresses on credit card applications, and the use of the same bad bank accounts to purportedly pay the credit card bills. In light of this evidence and the agent's correct statements concerning the photographs, the government has shown that the statements about the videotape did not prejudice the defendant nor were the grand jury proceedings so fundamentally unfair as to allow for a presumption of prejudice.
Defendant's motion to dismiss the indictment is denied as are his requests for a dismissal of the indictment without prejudice, a dismissal of the three counts pertaining to the January 10, 2001, transaction, and the suppression of any evidence regarding that transaction at trial. As the government points out, defendant may cross examine the agent about his grand jury testimony.