Opinion
Criminal Action No. 01CR10409-GAO
December 31, 2002
MEMORANDUM AND ORDER
The United States has charged the defendant, John P. Bulger, with two counts of perjury (Counts I and III), and two counts of obstruction of justice (Counts II and IV). Bulger now moves to dismiss Counts I and II of the indictment arguing that they arose out of an improperly conducted grand jury investigation. He alleges two types of government misconduct occurred during his testimony before a grand jury in November 1996. First, he argues that the government's questioning techniques were improper and coercive. Second, he contends that the government was impermissibly using the grand jury to collect information for use in a separate civil forfeiture proceeding. As will be discussed below, the motion to dismiss is denied because the government's motives and techniques during the grand jury proceedings were not so extraordinary or improper as to warrant dismissal of the charges.
A. Summary of Facts
On January 10, 1995, a federal grand jury returned an indictment that charged the defendant's brother, James J. Bulger, with racketeering. That grand jury is referred to as the "Winter Hill-LCN grand jury" because it was investigating the conduct of persons involved with the Winter Hill gang and with the Boston branch of La Cosa Nostra ("LCN"). James Bulger was alleged to be a central figure in the dealings of the two groups. The Winter Hill-LCN grand jury continued to investigate the activities of these groups until its term expired in 1997. On September 27, 1996, John Bulger, the defendant here, was subpoenaed to testify before the Winter Hill-LCN grand jury and to bring along a large number of documents relating to his and his brother James's financial assets and affairs.
On the first day of his testimony, on November 5, 1996, the defendant stated that he had a joint bank account with his brother James at the South Boston Savings Bank. He also said that he had taken between eighty and ninety thousand dollars out of the joint bank account and placed it in a safety deposit box he maintained at a BayBank in Boston. A few days after hearing this testimony, the government moved ex parte to disclose portions of the defendant's grand jury testimony for use in its civil forfeiture proceeding against James Bulger. The motion was reviewed and granted by Judge Woodlock of this Court. The government later filed a second motion for disclosure of portions of the defendant's grand jury testimony. This motion sought to disclose information regarding the joint bank account at South Boston Savings Bank. Again, the motion was granted by Judge Woodlock.
The defendant testified before the Winter Hill-LCN grand jury a second time on November 26, 1996. During this second day of testimony, the government questioned him further about assets held by him and/or his brother James in Florida. While the defendant testified that he himself had a bank account in Florida, he stated that he had no knowledge of a safety deposit box held by his brother James at AmSouth Bank in Clearwater, Florida.
During both of his appearances before the Winter Hill-LCN grand jury, the defendant was questioned by more than one prosecutor. He points to several instances in the transcript where two or more prosecutors ask him questions interchangeably.
On November 8, 2000, a different grand jury returned an indictment charging the defendant with the two counts of perjury and two counts of obstruction of justice at issue in this case. Of these four counts, the defendant was charged with one count of perjury and one count of obstruction of justice for allegedly testifying falsely before the Winter Hill-LCN grand jury about his lack of knowledge of the safety deposit box in Florida. The other two counts relate to testimony the defendant gave to yet another grand jury in November 1998.
B. Discussion
When a federal court reviews conduct that occurred before a grand jury, its powers are limited and its attitude must be deferential. "Although the grand jury operates under judicial supervision, it is essentially an independent institution. In recognition of this status, courts afford grand jury proceedings a presumption of regularity." United States v. Flemmi, 245 F.3d 24, 28 (1st Cir. 2001). When a party asserts a claim of grand jury abuse, he "must shoulder a heavy burden" to overcome this presumption. Id.
This Court also does not have the authority to create and impose general procedural rules on grand juries. The defendant complains that during his appearance before the Winter Hill-LCN grand jury, he was repeatedly questioned by several prosecutors at once. In his briefs and during oral argument, the defendant appears to ask for a ruling that a grand jury witness may not be questioned by more than one prosecutor at a time. However, the Supreme Court has held that while the federal court's supervisory power could be used "as a means of enforcing or vindicating legally compelled standards of prosecutorial conduct before the grand jury," it generally cannot prescribe "those standards of prosecutorial conduct in the first instance." United States v. Williams, 504 U.S. 36, 46-47 (1992).
On the specific facts presented, the defendant has not shown that the government acted improperly during his appearance before the Winter Hill-LCN grand jury. After reviewing the transcript and listening to audio excerpts, it is clear that none of the questioning was so outrageous or aggressive as to warrant dismissal of the perjury and obstruction charges. It is not uncommon for a grand jury witness to face multiple questioners. Grand jurors themselves are permitted to ask witnesses questions, and they may interrupt the flow of the prosecutor's questioning to do so. Nothing that the defendant has produced indicates that the series of questions he faced was so incoherent or aggressive that it rendered the entire proceeding void. See United States v. Regan, 103 F.3d 1072, 1080 (2d Cir. 1997) (holding that the government had not created a "hostile, confusing environment" by letting two prosecutors question the witness).
The defendant also argues that the questioning by the prosecutors was improperly coercive because one of the prosecutors gave him misleading legal advice. The prosecutor reminded the defendant of his obligation to testify fully and truthfully before the grand jury and warned him that he may have committed a crime by possessing property that was subject to forfeiture. Even if the advice that the prosecutor gave the defendant was incorrect — and his argument that it was is not insubstantial — the misleading advice did not create an atmosphere of coercion. It is worth noting that the defendant was apparently aware that if he wished he could consult with his own lawyer who was available outside the grand jury room, and he actually did so on one occasion during his testimony.
To the extent that the defendant argues that the government's questioning techniques confused him or induced him to give incorrect testimony, such issues are left for the jury to decide. The government will have the responsibility to prove to the jury that the defendant "knowingly" made false statements before the grand jury, and that will involve proving that the statements were not the product of mistake, misunderstanding or confusion.
The defendant also attacks the grand jury proceedings by arguing that the government's real purpose in having him testify was to conduct discovery for its civil forfeiture proceeding against property belonging to James Bulger. The defendant correctly points out that the government may not use a grand jury investigation for primarily civil purposes. See In re Grand Jury Subpoena, 175 F.3d 332, 337 (4th Cir. 1999) (affirming district court's decision to quash a grand jury subpoena because it determined that the subpoena's purpose was to obtain discovery for a civil proceeding); United States v. Doe, 341 F. Supp. 1350, 1352 (S.D.N.Y. 1972) (government could not conduct grand jury inquiry "with the explicit purpose of discovering evidence for civil claims"). However, when the government properly engages in a criminal grand jury investigation and discovers evidence that it wishes to use in a civil proceeding, it may do so by demonstrating to a court that it has a particularized need for disclosing the material. See Fed.R.Crim.P. 6(e)(3); United States v. Sells Eng'g, Inc., 463 U.S. 418, 441-42 (1983).
It does not appear that the government's decision to bring the defendant before the Winter Hill-LCN grand jury was principally motivated by a desire to conduct discovery for civil purposes. The movement and whereabouts of James Bulger's assets were relevant to the racketeering charges that the grand jury was investigating. The government also followed the proper procedures for using grand jury material in a related civil matter by requesting court approval before making the disclosures. See also United States v. John Doe, Inc., 481 U.S. 102, 114 (1987) (holding that disclosure of grand jury information "is far less worrisome" when attorneys appear before a court and "demonstrate a particularized need prior to any disclosure"). The defendant's only evidence of the government's intent to use his testimony in the civil proceeding is that he was asked to bring along financial documents and the government did use his testimony in the civil proceeding. These two facts, by themselves, are not sufficient to show that the government's primary purpose in calling the defendant to testify before the grand jury was to attain evidence for its civil case against James Bulger.
C. Conclusion
For the foregoing reasons, the defendant's motion to dismiss counts I and II of the indictment (Docket No. 60) is DENIED.