9-11.010
Introduction
This chapter contains the Department's policy on grand jury
practice. For a discussion of the law, and a list of resource
materials on grand jury practice, see the
Criminal Resource Manual at 154 et seq.
In dealing with the grand jury, the prosecutor must always
conduct himself or herself as an officer of the court whose
function is to ensure that justice is done and that guilt shall not
escape nor innocence suffer. The prosecutor must recognize that the
grand jury is an independent body, whose functions include not only
the investigation of crime and the initiation of criminal
prosecution but also the protection of the citizenry from unfounded
criminal charges. The prosecutor's responsibility is to advise the
grand jury on the law and to present evidence for its
consideration. In discharging these responsibilities, the
prosecutor must be scrupulously fair to all witnesses and must do
nothing to inflame or otherwise improperly influence the grand
jurors.
9-11.101
Powers and Limitations of Grand JuriesThe Functions of a Grand
Jury
While grand juries are sometimes described as performing
accusatory and investigatory functions, the grand jury's principal
function is to determine whether or not there is probable cause to
believe that one or more persons committed a certain Federal
offense within the venue of the district court. Thus, it has been
said that a grand jury has but two functionsto indict or, in
the alternative, to return a "no-bill." See Wright,
Federal Practice and Procedure, Criminal Section 110.
At common law, a grand jury enjoyed a certain power to issue
reports alleging non-criminal misconduct. A special grand jury
impaneled under Title 18 U.S.C. § 3331 is authorized, on the
basis of a criminal investigation (but not otherwise), to fashion
a report, potentially for public release, concerning either
organized crime conditions in the district or the non-criminal
misconduct in office of appointed public officers or employees.
This is discussed at USAM
9-11.300and USAM 9-11.330,
and the Criminal Resource Manual at
158-59. See Jenkins v. McKeithen, 395 U.S. 411, 430
(1969); Hannah v. Larche, 363 U.S. 420 (1960). Whether a
regular grand jury enjoys a comparable authority to issue a report
is a difficult and complex question. Cf. United States v.
Briggs, 514 F.2d 794 (5th Cir. 1975). The Criminal Division of
the Department of Justice should be consulte d before any grand
jury report is initiated, whether by a regular or special grand
jury. See also USAM 9-11.330.
[cited in
USAM 9-69.400]
9-11.120
Power of a Grand Jury Limited by Its Function
The grand jury's power, although expansive, is limited by its
function toward possible return of an indictment. Costello v.
United States, 350 U.S. 359, 362 (1956). Accordingly, the grand
jury cannot be used solely to obtain additional evidence against a
defendant who has already been indicted. United States v.
Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert. denied
sub nom., Hurt v. United States, 429 U.S. 1062
(1977). Nor can the grand jury be used solely for pre-trial
discovery or trial preparation. United States v. Star, 470
F.2d 1214 (9th Cir. 1972). After indictment, the grand jury may be
used if its investigation is related to a superseding indictment of
additional defendants or additional crimes by an indicted
defendant. In re Grand Jury Subpoena Duces Tecum, Dated January
2, 1985, 767 F.2d 26, 29-30 (2d Cir. 1985); In re Grand Jury
Proceedings, 586 F.2d 724 (9th Cir. 1978).
- Approval Required Prior to Resubmission of Same
Matter to Grand Jury:
Once a grand jury returns a no-bill or
otherwise acts on the merits in declining to return an indictment,
the same matter ( i.e., the same transaction or event and the same
putative defendant) should not be presented to another grand jury
or resubmitted to the same grand jury without first securing the
approval of the responsible United States Attorney.
- Use of Grand Jury to Locate Fugitives:
It is improper
to utilize the grand jury solely as an investigative aid in the
search for a fugitive in whose testimony the grand jury has no
interest. In re Pedro Archuleta, 432 F. Supp. 583 (S.D.N.Y.
1977); In re Wood, 430 F. Supp. 41 (S.D.N.Y. 1977), aff'd
sub nom In re Cueto, 554 F.2d 14 (2d Cir. 1977).
However, if the grand jury has a legitimate interest in the
testimony of a fugitive, it may subpoena other witnesses and
records in an effort to locate the fugitive. Wood,
supra, citing Hoffman v. United States, 341 U.S. 479
(1951). If the present whereabouts of a fugitive is related to a
legitimate grand jury investigation of offenses such as harboring,
18 U.S.C. §§ 1071, 1072, 1381, misprision of felony,
18 U.S.C. § 4, accessory after the fact, 18 U.S.C.
§ 3, escape from custody, 18 U.S.C. §§ 751,
752, or failure to appear, 18 U.S.C. § 3146, the gran d
jury properly may inquire as to the fugitive's whereabouts. See
In re Grusse, 402 F. Supp. 1232 (D.Conn. 1975). Unless such
collateral interests are present, the grand jury should not be
employed in locating fugitives in bail-jumping and escape cases
since, as a rule, those offenses relate to the circumstances of
defendant's disappearance rather than his or her current
whereabouts.
- Generally, grand jury subpoenas should not be used to locate
fugitives in investigations of unlawful flight to avoid
prosecution. 18 U.S.C. § 1073. Normally an unlawful
flight complaint will be dismissed when a fugitive is apprehended
and turned over to State authorities to await extradition.
Prosecutions for unlawful flight are rare and the statute requires
prior written approval of the Attorney General, the Deputy Attorney
General, the Associate Attorney General, or an Assistant Attorney
General. See USAM 9-69.460
(containing prior approval requirement for § 1073
indictments). Since indictments for unlawful flight are rarely
sought, it would be improper to routinely use the grand jury in an
effort to locate unlawful flight fugitives.
- Obtaining Records to Aid in Location of Federal Fugitives:
Alternatives to Grand Jury Subpoenas
:Since the enactment
of the Electronic Communications Privacy Act of 1986, law
enforcement access to telephone records is covered by Federal
statute. See 18 U.S.C. § 2703. Pursuant to 18
U.S.C. §§ 2703(c)(1)(B) and 2703(c)(2) the government
may obtain a "record or other information pertaining to a
subscriber" (telephone toll records) without notice to the
subscriber by obtaining: (1) an administrative or grand jury
subpoena; (2) a search warrant pursuant to State or Federal law; or
(3) a court order pursuant to 18 U.S.C. § 2703(d) based
on a finding that the information is relevant to a legitimate law
enforcement inquiry. See USAM
9-7.000 et seq. for information regarding the Electronic
Communications Privacy Act of 1986.
- Occasionally, there may be records other than telephone toll
records which might be useful in a fugitive investigation but which
cannot be obtained by grand jury subpoena, administrative subpoena,
or search warrant. In such instances, it is appropriate to seek a
court order for production of the records under the All Writs Act,
28 U.S.C. § 1651. The All Writs Act provides:
The Supreme Court and all courts established by the
Act of Congress may issue all writs necessary or appropriate in aid
of their respective jurisdictions and agreeable to the usages and
principles of law.
- The United States Supreme Court has recognized the power of a
Federal court to issue orders under the All Writs Act "as may be
necessary or appropriate to effectuate and prevent the frustration
of orders it has previously issued in the exercise of its
jurisdiction." See United States v. New York Telephone
Co., 434 U.S. 159, 172 (1977).
- Because the purpose of the All Writs Act is to aid the court in
the exercise of its jurisdiction, an application for an order under
the act must be sought only from the United States District Court
in which the complaint or indictment is pending.
- The use of the All Writs Act to obtain records in a fugitive
investigation is not a procedure to be used in every fugitive case.
The willingness of courts to issue such orders may depend on the
selectivity with which such applications are made, and the courts
will not condone a wholesale use of the act for this purpose. Thus,
the procedure should be used only in extraordinary cases where a
strong showing can be made that the records are likely to lead to
ascertaining the whereabouts of the fugitive.
[cited in
USAM 9-69.400]
9-11.121
Venue Limitations
A case should not be presented to a grand jury in a district
unless venue for the offense lies in that district.
9-11.130
Limitation on Naming Persons as Unindicted
Co-Conspirators
The practice of naming individuals as unindicted
co-conspirators in an indictment charging a criminal conspiracy has
been severely criticized in United States v. Briggs, 514
F.2d 794 (5th Cir. 1975).
Ordinarily, there is no need to name a person as an unindicted
co-conspirator in an indictment in order to fulfill any legitimate
prosecutorial interest or duty. For purposes of indictment itself,
it is sufficient, for example, to allege that the defendant
conspired with "another person or persons known." The identity of
the person can be supplied, upon request, in a bill of particulars.
See USAM 9-27.760. With respect
to the trial, the person's identity and status as a co-conspirator
can be established, for evidentiary purposes, through the
introduction of proof sufficient to invoke the co-conspirator
hearsay exception without subjecting the person to the burden of a
formal accusation by a grand jury.
In the absence of some significant justification, federal
prosecutors generally should not identify unindicted
co-conspirators in conspiracy indictments. See
USAM 9-16.500;
9-27.760.
[updated August 2002]
[cited in
USAM 9-16.500]
9-11.140
Limitation on Grand Jury Subpoenas
Subpoenas in Federal proceedings, including grand jury
proceedings, are governed by Rule 17 of the Federal Rules of
Criminal Procedure. Grand jury subpoenas may be served at any place
within the United States. Under Rule 17(g) of the Federal Rules of
Criminal Procedure, a failure by a person without adequate excuse
to obey a subpoena served upon him or her may be deemed a contempt
of the court.
There are special considerations involved when evidence sought
by United States investigators and prosecutors is located in a
foreign country. Before initiating any process to obtain testimony
or evidence from abroad, prior consultation with the Criminal
Division is required pursuant to USAM
9-13.500. Inquiries should be directed to the Office of
International Affairs. See USAM
9-13.500.
"Forthwith" subpoenas should be used only when an immediate
response is justified and then only with the prior approval of the
United States Attorney.
Policies regarding the issuance of subpoenas to members of the
news media and the issuance of subpoenas for telephone toll records
of members of the news media are discussed elsewhere in the USAM.
See USAM 9-13.400 (prior approval
required).
9-11.141
Fair Credit Reporting Act and Grand Jury Subpoenas
Disclosure of consumer credit information is controlled by the
Fair Credit Reporting Act, 15 U.S.C. § 1681. The Fair
Credit Reporting Act, 15 U.S.C. § 1681(b), has been
amended to permit prosecutors to obtain consumer credit report
records by using a federal grand jury subpoena without applying to
the district court for an order.
Regarding access, disclosure and transfer of financial records,
see USAM 9-13.800.
9-11.142
Grand Jury Subpoenas for Financial Records
A bank depositor lacks the necessary Fourth Amendment interest
to challenge a subpoena duces tecum issued to a bank for its
records of the depositor's transactions. United States v.
Miller, 425 U.S. 435 (1976). Because of procedures imposed by
the Right to Financial Privacy Act of 1978, it is important,
nevertheless, that United States Attorneys exercise close control
over the process of obtaining for law enforcement purposes business
records of banks and other financial institutions.
Sound grand jury practice requires that:
- The prosecutor personally authorize the issuance of a
subpoena duces tecum to obtain financial institution account
records to avoid any appearance that the matter was left to the
discretion of an investigative agent serving the
subpoena;
- The subpoena be returnable on a date when the grand jury
is in session and the subpoenaed records be produced before the
grand jury unless the grand jury itself has previously agreed upon
some different course, see United States v. Hilton,
534 F.2d 556, 564, 565 (3d Cir.1976), cert. denied, 429 U.S.
828; and
- If, for the sake of convenience and economy, the
subpoenaed party is permitted voluntarily to relinquish the records
to the government agent serving the subpoena, a formal return of
the records be made in due course to the grand jury.
Every recipient of a grand jury subpoena for financial
institution records should be made aware that civil and criminal
penalties exist for making certain disclosures involving (FIF)
offenses regarding the subpoena. The prohibited notifications and
applicable penalties are set out in 12 U.S.C. § 3402(b) and 18
U.S.C. § 1510(b), respectively. The criminal penalties
include fines and a maximum prison term of five years if an officer
of a financial institution (as defined in 18 U.S.C.
§ 1510(b)) notifies, directly or indirectly, any person
regarding the existence or contents of this subpoena with the
intent to obstruct a judicial proceeding. In addition, fines and a
maximum prison term of one year may be imposed if the notification
is made, directly or indirectly, to a customer of the financial
institution whose records are sought by the subpoena or to any
other person named in the subpoena. Section 3420(b) of the Right to
Financial Privacy Act contains a provision to be read in pari
materia with 18 U.S.C. § 1510(b) under which civil
penalties may also be imposed. See also
USAM 9-13.800 et seq.
[cited in
Criminal Resource Manual 424]
9-11.150
Subpoenaing Targets of the Investigation
A grand jury may properly subpoena a subject or a target of the
investigation and question the target about his or her involvement
in the crime under investigation. See United States v.
Wong, 431 U.S. 174, 179 n. 8 (1977); United States v.
Washington, 431 U.S. 181, 190 n. 6 (1977); United States v.
Mandujano, 425 U.S. 564, 573-75 and 584 n. 9 (1976); United
States v. Dionisio, 410 U.S. 1, 10 n. 8 (1973). However, in the
context of particular cases such a subpoena may carry the
appearance of unfairness. Because the potential for
misunderstanding is great, before a known "target" (as defined in
USAM 9-11.151) is subpoenaed to
testify before the grand jury about his or her involvement in the
crime under investigation, an effort should be made to secure the
target's voluntary appearance. If a voluntary appearance cannot be
obtained, the target should be subpoenaed only after the grand jury
and the United States A ttorney or the responsible Assistant
Attorney General have approved the subpoena. In determining whether
to approve a subpoena for a "target," careful attention will be
paid to the following considerations:
- The importance to the successful conduct of the grand
jury's investigation of the testimony or other information sought;
- Whether the substance of the testimony or other
information sought could be provided by other witnesses; and
- Whether the questions the prosecutor and the grand jurors
intend to ask or the other information sought would be protected by
a valid claim of privilege.
[cited in
USAM 9-11.153]
9-11.151
Advice of "Rights" of Grand Jury Witnesses
It is the policy of the Department of Justice to advise a grand
jury witness of his or her rights if such witness is a "target" or
"subject" of a grand jury investigation. See the
Criminal Resource Manual at 160 for a
sample target letter. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |