UNITED STATES OF AMERICA, PETITIONER V. MARSHALL MECHANIK, ET AL. No. 84-1640 In the Supreme Court of the United States OCTOBER TERM, 1984 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in this case. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PARTIES TO THE PROCEEDING In addition to the parties shown in the caption, Jerome Otto Lill, Shahbaz Shane Zarintash, and Steven Henry Riddle were appellants below and are respondents herein. Mark Douglas Chadwick was also an appellant below, but his appeal was dismissed and he is accordingly not a respondent herein. TABLE OF CONTENTS Opinions below Jurisdiction Rules involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The per curiam opinion of the court of appeals on rehearing en banc (App., infra, 1a-13a) is not yet reported. The panel opinion (App., infra, 14a-25a) is reported at 735 F.2d 136. The opinion of the district court (App., infra, 26a-53a) is reported at 511 F.Supp.50. JURISDICTION The judgment of the en banc court was entered on March 1, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). RULES INVOLVED Rule 6(d) of the Federal Rules of Criminal Procedure provides: Who May Be Present. Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting. Rule 52(a) of the Federal Rules of Criminal Procedure provides: Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. QUESTIONS PRESENTED 1. Whether a facially valid indictment returned by a legally constituted and unbiased grand jury may be dismissed on the basis of a procedural irregularity in the grand jury proceeding. 2. If so, whether the indictment may be dismissed and a conviction reversed on the basis of such irregularity after an otherwise valid conviction has been entered by a petit jury. 3. Whether reversal of the conviction and dismissal of the indictment is an appropriate remedy in the absence of prejudice to the defendant resulting from the procedural irregularity in the grand jury proceeding. STATEMENT Following a three month jury trial in the United States District Court for the Southern District of West Virginia, respondents Mechanik, Riddle, Zarintash, and Lill were convicted of conspiracy, in violation of 18 U.S.C. 371 (Count One). In addition, respondent Mechanik was convicted of traveling in interstate commerce to carry on an illegal business enterprise, in violation of 18 U.S.C. 1952 (Count Ten), and respondent Lill was convicted of importing marijuana and possession with intent to distribute marijuana, in violation of 21 U.S.C. 952, 841 and 18 U.S.C. 2 (Counts Two and Four). Respondents Mechanik, Lill, and Zarintash were each sentenced to five years' imprisonment and fined $10,000. Respondent Riddle was also sentenced to five years' imprisonment and was fined $5,000. /1/ The court of appeals affirmed Mechanik's and Lill's convictions on the substantive counts and reversed the convictions of all respondents on the conspiracy count (App., infra, 4a). 1. In early June 1979, a DC-9 aircraft carrying approximately ten tons of marijuana crash landed at an airport near Charleston, West Virginia (App., infra, 28a). Among those aboard the plane was respondent Lill. Respondents Riddle, Mechanik, and Zarintash were waiting on the ground for the plane. About a week after the crash, on June 12, 1979, a federal grand jury was convened to investigate the crash. On June 14, 1980, after hearing some 30 witnesses, it returned an indictment consisting of one conspiracy count and seven substantive counts, and naming nine defendants, including all four respondents (ibid.). Subsequently, the same grand jury, consisting of a nucleus of 17 of the same individual grand jurors, /2/ met again on July 31, 1979, and August 2, 9, and 10, 1979, to hear additional evidence relating to the incident. The grand jury then unanimously returned a superseding indictment on August 10, 1979, similar in many respects to the first, but adding three defendants, adding two new substantive counts, and amending and expanding the conspiracy count. App., infra, 29a, 45a. The substantive counts under which respondents Mechanik and Lill were convicted were identical in both indictments. /3/ The principal differences between the original and the superseding indictment were in the conspiracy count (Count One), on which all four respondents were convicted. Each of the alterations in the conspiracy count, other than those redacted by the district court or mooted by the acquittal of Kook and of James Chadwick, /4/ was supported by evidence from at least two independent sources. One of those sources was the testimony of Drug Enforcement Administration (DEA) Agents Jerry Rinehart and Randolph James. On August 10, 1979, these agents were placed under oath and testified together before the grand jury. Agent James testified principally concerning the suspects' travel and rental of Ryder trucks and James Chadwick's alleged involvement in the conspiracy, and Agent Rinehart testified principally about telephone calls made between the various suspects. The agents generally alternated their testimony, occasionally supplementing each other's answers. See App., infra, 29a-32a. 2. The trial began on February 19, 1980, and concluded on July 3, 1980. During the second week of trial, on February 28, 1980, Agent Rinehart testified as a government witness, at which time the government furnished respondents with a portion of the transcript of his grand jury testimony. The transcript disclosed that on August 10, 1979, Agent Rinehart had testified before the grand jury simultaneously with Agent James. Respondents thereupon moved for dismissal of the indictment on the ground that Fed. R. Crim. P. 6(d) had been violated by the presence of two witnesses before the grand jury at the same time. App., infra, 27a-28a. On March 14, 1980, the district court denied this motion. /5/ On May 22, 1980, respondents moved for rehearing on their motion to dismiss the indictment, which motion was taken under advisement. On August 15, 1980, after the trial had concluded, the district court denied the motion. The district court found that the simultaneous appearance of both DEA agents before the grand jury violated Fed. R. Crim. P. 6(d) (App., infra, 33a-38a). However, the court concluded -- after a meticulous examination of the original and the superseding indictments and the evidence supporting the changes in the latter -- that "the existence of actual prejudice as to the conspiracy count is so utterly remote and the absence of actual prejudice as to the * * * substantive counts is so plain that a mere possibility of prejudice can appropriately be disregarded" (App., infra, 51a). The court noted (App., infra, 38a 40a) that Rule 6(d) serves two important public purposes: to protect the secrecy of grand jury proceedings and to guard against undue influence upon grand jury witnesses or the grand jurors. The court found that "(r)ealistically, * * * the secrecy of the grand jury proceedings was not threatened by virtue of the joint appearance in this case" (App., infra, 40a), but that the "joint witness approach * * * tended to inhibit the effective evaluation of the agents' testimony" (id. at 43a). /6/ In light of the sequence of events in this case -- an original, untainted indictment followed by a superseding indictment -- the court was able to conclude that "actual prejudice is conceivable" only "in the sense that all things are possible" (id. at 51a). After reviewing each alteration in the indictment and the evidence supporting it, the court stated that "(i)nsofar * * * as the joint testimony of Agents Rinehart and James ultimately proved to be material, the grand jury also had before it ample independent evidence to support a probable cause finding" (ibid.). The court thus found that "the grand jury would, in my view, undoubtedly have returned the very same second indictment even had Agents Rinehart and James testified separately" (ibid.). The district court observed that, had it been facing the issue prior to trial, "dismissal might well be decreed as the proper and prudent course" (App., infra, 51a); however, in light of the fact that "a three-month trial (had been) conducted at enormous expense to the United States and the defendants," the remedy of dismissal of the indictment after conviction, in the absence of prejudice to the defendants, was not required (ibid.). Noting that "Rule 6(d) does not prescribe the sanction to be imposed for its violation," the district court fashioned a remedy "appropriate to the circumstances" (App., infra, 52a). To guarantee observance of the one-witness rule in future proceedings, the court directed the prosecution "routinely to advise the court with respect to each criminal case indictment whether the requirements of Rule 6(d) have been fulfilled" (ibid.). The district court observed that Jencks Act disclosure (18 U.S.C. 3500) and other occasions when the court must review grand jury material will serve to "monitor the accuracy of the reporting process" (App., infra, 52a-53a). 3. A divided panel of the court of appeals reversed respondents' conspiracy convictions. App., infra, 14a-22a. Relying on its view that "courts consistently have held that the presence of one witness during the testimony of another witness at grand jury proceedings taints an indictment," the court below "reject(ed) the argument that defendants must show that a rule 6(d) violation prejudiced them before an indictment may be dismissed" (id. at 18a-19a). The court reasoned that Rule 6(d) is "plain and unequivocal in limiting who may appear before a grand jury," and that requiring a defendant to show prejudice would "impose a difficult burden that could undermine the protection the rule provides" (App., infra, 19a). As a basis for distinguishing its decision in United States v. Computer Sciences Corp., 689 F.2d 1181 (4th Cir. 1982), cert. denied, 459 U.S. 1105 (1983), in which the court seemingly rejected the application of a per se rule to violations of Rule 6(d), the court of appeals concluded that the agents' joint testimony here "could have" bolstered each agent's credibility and "could have" influenced the grand jurors' decision to return the superseding indictment (App., infra, 20a). The court of appeals panel affirmed the convictions of respondents Mechanik and Lill on the substantive counts of the indictment. Because the three substantive counts in the superseding indictment were identical to counts returned in the original indictment by the same grand jury, the panel found "a valid basis for the charges they set forth that was independent of the unauthorized joint appearance of the agents," and held that the "invocation of a per se rule of invalidity is inappropriate for (those) counts" (App., infra, 21a). Judge Hall dissented from the reversal of the conspiracy convictions. App., infra, 23a-25a. Noting that on appeal appellants had "been unable to advance any basis for a claim of prejudice" (id. at 24a), Judge Hall relied on the "carefully reasoned opinion" (id. at 23a) and "detailed analysis" (id. at 24a) of the district court to conclude that appellants had not suffered demonstrable prejudice. Moreover, he found the majority result "particularly undesirable here, where the part of the superseding indictment found to be bad closely tracked the charging portion of the original indictment and in no way surprised or prejudiced the defendants" (id. at 25a). The full court ordered rehearing en banc (App., infra, 54a-55a). On rehearing, seven of the judges voted to reverse the conspiracy convictions for the reasons stated in the panel opinion (id. at 2a). Two of the seven -- Judges Widener and Phillips -- dissented from the affirmance of the convictions of respondents Mechanik and Lill on the substantive counts. In their view, the indictment on these counts should have been dismissed "for the same reasons" that the conspiracy count was dismissed (ibid.). Judge Wilkinson, joined by Judges Russell, Hall, Chapman, and Sneeden, dissented from the en banc judgment "insofar as it invokes 'a per se rule of invalidity' to reverse the convictions and dismiss the conspiracy count in the superseding indictment" (App., infra, 5a). Although agreeing that Rule 6(d) had been violated, the dissenters stated (App., infra, 13a) that "(t)he comparison of testimony and the history of this particular grand jury fully support the determination that the defendants suffered no prejudice through the joint appearance of the agents. The other factors were properly weighed, and the relief granted by the (district) court was appropriate to the situation." The dissenters pointed out that under the majority's per se approach, "(w)ithout cause or compensation, the public will now pay the price, and convicted criminal defendants will now reap the windfall benefits, of a prosecutorial mistake" (id. at 5a). REASONS FOR GRANTING THE PETITION Two DEA agents appeared as witnesses before the grand jury at the same time, in violation of Rule 6(d) of the Federal Rules of Criminal Procedure. The question presented is whether such an infraction may ever serve as the basis for dismissing an indictment, and especially for reversing an otherwise valid conviction reached by a petit jury after a three month trial. This Court has frequently considered cases in which criminal defendants have sought dismissal of an indictment after conviction on the basis of one or another alleged defect in the grand jury proceedings. With narrow exceptions not applicable here, the Court has consistently held that such defects are not a sufficient basis for attack upon an indictment; the cost to the criminal justice system of permitting such challenges to the grand jury proceedings is too great, and the legitimate protection it would afford defendants is slight. The en banc court below has disregarded this Court's teaching, even going so far as to hold that a procedural irregularity in the grand jury proceeding is a per se basis for reversal of the conviction and dismissal of the indictment. It is our position, (1) that a procedural irregularity, such as a violation of Rule 6(d), is never a sufficient basis for dismissing a facially valid indictment returned by a legally constituted and unbiased grand jury; (2) that, even if such irregularity could warrant dismissal of an indictment before trial, it would not justify reversing an otherwise valid conviction; and (3) that, in any event, dismissal of an indictment is an inappropriate sanction in the absence of substantial prejudice to the defendants. This case is of considerable importance to the administration of the criminal justice system because of the frequency with which criminal defendants raise challenges to the way grand jury proceedings were conducted and the substantial portion of criminal justice system resources allocated to litigation of such challenges at every level of the judicial system, as well as the grave cost of reversing otherwise valid convictions on such grounds. 1. This Court has held that "(a)n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363 (1956); Lawn v. United States, 355 U.S. 339, 349 (1958); see also Holt v. United States, 218 U.S. 245 (1910); United States v. Calandra, 414 U.S. 338, 344-345 (1974); Bracy v. United States, 435 U.S. 1301, 1302-1303 (1978) (Rehnquist, Circuit Justice). In Costello, the Court considered whether the validity of an indictment was impaired by an asserted substantive deficiency -- the exclusive reliance on hearsay evidence before the grand jury. The Court held that it was not. Justice Black, writing for the Court, stated that "(i)n a trial on the merits, defendants are entitled to a strict observation of all the rules designed to bring about a fair verdict" (350 U.S. at 364), but that "(n)either justice nor the concept of a fair trial" requires a preliminary inquiry into the evidentiary basis for the grand jury's return of an indictment. On the contrary, such a requirement "would result in interminable delay but add nothing to the assurance of a fair trial" (ibid.). On a similar rationale, the Court has rejected challenges to grand jury indictments on other evidentiary grounds. See Holt v. United States, supra (indictment may not be quashed on the ground that it was supported by incompetent evidence); Lawn v. United States, supra (defendant is not entitled to hearing to determine whether the grand jury used evidence obtained in violation of his Fifth Amendment rights); United States v. Blue, 384 U.S. 251, 255 n.3 (1966) (presentation of "tainted evidence" to the grand jury is not a basis for dismissal of indictment). See also, e.g., United States v. Adamo, 742 F.2d 927, 935-936 (6th Cir. 1984) (indictment cannot be challenged on the grounds that the prosecutor used evidence later found to be perjured or withheld exculpatory evidence from the grand jury; United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982) (prosecutor's erroneous instruction on a material aspect of the law does not warrant dismissal of indictment); United States v. Ruyle, 524 F.2d 1133 (6th Cir. 1975), cert. denied, 425 U.S. 934 (1976) (indictment valid despite prosecutor's failure to present exculpatory evidence to the grand jury); Silverthorne v. United States, 400 F.2d 627, 634 (9th Cir. 1968), cert. denied, 400 U.S. 1022 (1971) (indictment cannot be challenged on basis of prejudical publicity); Coppedge v. United States, 311 F.2d 128, 131-132 (D.C. Cir. 1962), cert. denied, 373 U.S. 946 (1963) (Burger, J.) (indictment valid despite perjured testimony before grand jury). /7/ The holding of the court below clearly conflicts with these decisions. It is undisputed that the indictment here was returned by a legally constituted and unbiased grand jury. The indictment was, accordingly, "enough to call for trial of the charge on the merits." Costello, 350 U.S. at 363. The simultaneous presence of two witnesses before the grand jury here is no more compelling a reason to dismiss this indictment than were the evidentiary flaws alleged in Costello, Holt, Lawn, or Blue. It is possible, in the abstract, that the joint testimony of two witnesses gained "added persuasiveness" because the witnesses were able "instantly to supplement each other's testimony" (App., infra, 41a). It may thus be true that, to a limited degree, the Rule 6(d) violation "tended to be detrimental to the grand jurors' ability to assess the credibility and personal knowledge" of Agents James and Rinehart (App., infra, 41a). /8/ However, the same might be said of a prosecutor's decision to present only hearsay evidence to the grand jury; the grand jurors' ability to assess the credibility and personal knowledge of the declarants is substantially impaired. And something similar might be said of a prosecutor's use of incompatent, unconstitutionally obtained, or "tainted" evidence; in any such instance the grand jurors' ability to assess the strength of the government's case is impaired or distorted by potential reliance upon improper evidence. Nonetheless, in any such case, an indictment by a legally constituted and unbiased grand jury is not subject to challenge on such a ground. Other, less disruptive, remedies are available to ensure compliance with the procedural rules applicable to grand juries. Rule 6(e)(2) specifically provides that "a knowing violation of Rule 6 may be punished as a contempt of court." Other sanctions might include directing the prosecutor to show cause why he should not be disciplined or publicly chastising him by identifying him in the court's opinion. United States v. Hasting, 461 U.S. 499, 506 n.5 (1983). The district court below crafted a remedy that would be acceptable in appropriate circumstances, and that would appear to be more effective than dismissal of the indictment in enforcing the Rule in future cases. See page 7, supra. These alternative remedies would better satisfy the "general rule" established in United States v. Morrison, 449 U.S. 361, 364 (1981), that "remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests," including society's interest in the administration of justice. /9/ 2. There are additional reasons to be especially reluctant to permit criminal defendants to obtain dismissal of their indictment where, as here, they have already been convicted beyond a reasonable doubt by a petit jury. The cost to society is, of course, much greater. In addition to the "interminable delay" predicted by the Costello Court if defendants could "always insist on a kind of preliminary trial" to determine whether there were flaws in the grand jury proceeding (350 U.S. at 363, 364), there is the additional cost of overturning the results of an otherwise valid trial on the merits. In this case, as the district court observed (App., infra, 51a), reversal would "confer(...) a windfall benefit on four defendants who stand convicted after a three-month trial conducted at enormous expense to the United States and the defendants." It also not infrequently happens that because of the passage of time, critical evidence will be unavailable to the prosecution at a retrial, resulting in inability to establish guilt at the second trial even though this was proven beyond a reasonable doubt at an error-free first trial. Courts should be most reluctant to impose such an extravagant cost on society except when supported by compelling interests. On the other side of the balance, the legitimate value to the defendant of obtaining review of the procedural regularity of the grand jury process is diminished if it takes place after he has stood trial and been convicted. The basic purpose of the grand jury is "to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes." Costello, 350 U.S. at 362. The grand jury "serves the 'dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.'" United States v. Sells Engineering, Inc., No. 81-1032 (June 30, 1983), slip op. 4, quoting Branzburg v. Hayes, 408 U.S. 665, 686-687 (1972). Once a petit jury has determined beyond a reasonable doubt that the defendant is guilty as charged, it can be presumed that the abuse against which the grand jury provides protection has not occurred: the government has not launched an "unfounded criminal prosecution(...)" or haled citizens into court on criminal charges for which there was not probable cause. In this case, a petit jury has convicted respondents of conspiracy and substantive offenses in connection with the unlawful importation of approximately ten tons of marijuana. There is no suggestion that respondents' trial was in any way unfair or defective. Since there was sufficient evidence to convict respondents beyond a reasonable doubt, it follows, a fortiori, that there was probable cause to institute charges against them. United States v. Romano, 706 F.2d 370, 374 (2d Cir. 1983). To examine the procedural regularity of the grand jury at this stage would be like conducting a proceeding to determine, in a civil case after final decision, whether the losing party should have been granted summary judgment. The issue is of no further consequence; it has merged into the final judgment of conviction. As Justice Stewart has observed, "(a) grand jury proceeding * * * is not a proceeding in which the guilt or innocence of a defendant is determined, but merely one to decide whether there is a prima facie case against him. Any possible prejudice to the defendant * * * thus disappears when a constitutionally valid trial jury later finds him guilty beyond a reasonable doubt." Rose v. Mitchell, 443 U.S. 545, 575 (1979) (Stewart, J., concurring). Rose v. Mitchell, supra, demonstrates this proposition. In Rose, this Court considered whether a conviction free of trial error should be set aside when it is found that persons of the defendant's race were systematically excluded from service as grand jury foreman. The Court rejected, in that context, an argument similar to that we make in the instant case. However, in doing so, the Court did not dispute the proposition, put forward by Justice Stewart in concurrence, and earlier by Justice Jackson in dissent in Cassell v. Texas, 339 U.S. 282, 298-305 (1950), that a defendant who has been convicted by a properly constituted petit jury can have "suffered no possible prejudice" from discrimination in the grand jury venire (443 U.S. at 552). /10/ The basis for the Court's holding in Rose was not that the defendant was actually injured by the discriminatory selection of grand jury foreman, but that "discrimination on the basis of race in the selection of members of a grand jury * * * strikes at the fundamental values of our judicial system and our society as a whole" (id. at 556). The Court concluded that the cost of reversals of otherwise lawful convictions is "outweighed" by the Court's "strong policy" of "combatting racial discrimination in the administration of justice" (id. at 558). /11/ The Rose Court's answer to Justices Jackson and Stewart has no analogue here. A violation of Rule 6(d) cannot, in any sense, be deemed to "strike at the fundamental values of our judicial system and our society as a whole." There is no "strong policy" of enforcing Rule 6(d) that would justify reversals of convictions where there is no possibility that the purpose for which the grand jury is constituted has been thwarted. Rose is an exception to the general rule, predicated on the unique considerations of racial discrimination in grand jury selection; where those unique considerations do not pertain, the general rule itself should be given effect. This Court has recently granted a petition for a writ of certiorari in a case reopening the question answered in Rose v. Mitchell, supra. Vasquez v. Hillery, cert. granted, No. 84-836 (Mar. 4, 1985). This action by the Court reinforces the substantiality of the question here, which as a practical matter is far more likely to arise in the everyday administration of federal criminal justice. The problem of racial discrimination in grand jury selection happily arises but rarely, especially in the federal system, where Congress has provided an effective remedy. 28 U.S.C. 1861 et seq. (Vasquez itself involves a grand jury convened some 23 years ago). Claims of procedural irregularity such as that involved here are, by contrast, relatively frequent. If the proper remedy for discriminatory grand jury selection presents a certworthy question, it is all the more vital for the Court to clarify the proper remedy for the far more frequent run of procedural irregularities. /12/ 3. Even assuming, arguendo, that a Rule 6(d) violation may in some cases be sufficient ground for dismissal of an indictment prior to trial or even for reversal on appeal of a judgment of conviction, the court of appeals erred in reversing in the absence of a demonstration that respondents were substantially prejudiced by the violation. It is a general rule that "absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate." United States v. Morrison, 449 U.S. at 365. Cf. Strickland v. Washington, No. 82-1554 (May 14, 1984) (to prevail on a claim of ineffective assistance of counsel, a defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different); United States v. Lovasco, 431 U.S. 783 (1977) (proof of actual prejudice required before a court will consider a due process claim arising from pre-indictment delay); United States v. MacDonald, 435 U.S. 850, 858-859 (1978) (proof of actual prejudice an important element of claim of post-indictment delay under Speedy Trial Clause); Barker v. Wingo, 407 U.S. 514 (1972) (same); United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982) (showing of prejudice required where the government deported witnesses before they could testify for the defendant). As the decision below attests, these principles have been unevenly applied by the courts of appeals in the Rule 6(d) context. Most courts that have reviewed convictions in cases involving the presence of unauthorized persons before the grand jury have held that, absent demonstrable prejudice, dismissal of an indictment is an inappropriate sanction for a violation of Rule 6(d). /13/ See, e.g. United States v. Condo, 741 F.2d 238 (9th Cir. 1984), cert. denied, No. 84-5793 (Jan. 14, 1985); United States v. Kahan & Lessin Co., 695 F.2d 1122 (9th Cir. 1982); United States v. Kazonis, 391 F. Supp. 804, 805 (D. Mass. 1975), aff'd mem., 530 F.2d 962 (1st Cir.), cert. denied, 429 U.S. 826 (1976); United States v. Rath, 406 F.2d 757 (6th Cir.), cert. denied, 394 U.S. 920 (1969). /14/ But see Latham v. United States, 226 F. 420 (5th Cir. 1915) (alternative holding); United States v. Echols, 542 F.2d 948, 951 (5th Cir. 1976), cert. denied, 431 U.S. 904 (1977) (dictum). This conflict in the circuits should be resolved. /15/ The conflict in the circuits is even more pronounced when the decision below is compared to decisions involving other forms of prosecutorial misconduct or mistake before the grand jury. There is no reason to apply a more exacting standard to violations of explicit rules of criminal procedure than to other instances of prosecutorial misconduct; indeed, the latter frequently pose a more substantial threat to the independence and integrity of the grand jury. Yet when considering other such violations, the courts of appeals have generally reached conclusions conflicting with that reached below. In United States v. Birdman, 602 F.2d 547, 559 (3d Cir. 1979), cert. denied, 444 U.S. 1032 (1980), for example, the Third Circuit refused to impose the "extreme sanction" of dismissal of the indictment where the prosecutor appeared also as a witness before the grand jury, because the midconduct did not prejudice the defendant. Pointing out that other remedies would be "more appropriate" than "a windfall dismissal for unharmed parties" (id. at 561), the court of appeals acknowledged that "to attempt to serve a public interest in the purity of the grand jury proceeding, by the per se sanction of dismissing indictments, is to disserve another public interest by frustrating prosecutions of criminals" (602 F.2d at 559). Similarly, other courts of appeals have held that dismissal of an indictment for other types of prosecutorial misconduct before the grand jury is appropriate only where clear prejudice to the defendant is demonstrated. The remedy of dismissal is generally reserved for "flagrant cases," in which the defendant is able to show "that the prosecutor's conduct significantly infringed upon the ability of the grand jury to exercise its independent judgment." United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1391-1392 (9th Cir. 1983), cert. denied, No. 83-1127 (Mar. 5, 1984); United States v. Cederquist, 641 F.2d 1347, 1352-1353 (9th Cir. 1981). "The relevant inquiry * * * focuses not on the degree of culpability of the prosecutor, but on the impact of his misconduct on the grand jury's impartiality." Sears, Roebuck & Co., 719 F.2d at 1392. See also, e.g., United States v. Adamo, 742 F.2d at 940; United States v. Romano, supra; United States v. Al Mudarris, 695 F.2d 1182, 1186 (9th Cir. 1983), cert. denied, 461 U.S. 932 (1983); United States v. Heffington, 682 F.2d 1075 (5th Cir. 1982), cert. denied, 459 U.S. 1108 (1983); United States v. Broward, 594 F.2d 345 (2d Cir. 1979), cert. denied, 442 U.S. 941 (1979). But see United States v. Serubo, 604 F.2d 807, 817-818 (3d Cir. 1979); United States v. Pabian, 704 F.2d 1533, 1540 (11th Cir. 1983) (leaving necessity for showing prejudice unresolved). Even assuming the burden is not on the defendants to make a showing of demonstrable prejudice, the government should still prevail if it can show that the Rule 6(d) violation was harmless. See Kotteakos v. United States, 328 U.S. 750 (1946). Rule 52(a) of the Federal Rules of Criminal Procedure provides that "(a)ny error * * * which does not affect substantial rights shall be disregarded". In United States v. Hasting, 461 U.S. at 509, this Court made it clear that "it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations". See also Chapman v. California, 386 U.S. 18 (1967). Otherwise, appellate courts become "impregnable citadels of technicality," automatically reversing convictions based on nothing more than harmless errors. United States v. Hasting, 461 U.S. at 509, quoting R. Traynor, The Riddle of Harmless Error 14 (1970). The decision below is in clear violation of the requirement that any adjudication of error be accompanied by a harmless error analysis. /16/ If a nonprejudicial constitutional error does not require reversal (United States v. Hasting, 461 U.S. at 509), it follows that a violation of a Rule of Criminal Procedure, which is not of constitutional magnitude, likewise does not. As Judge Wilkinson commented in dissent below, "(h)ow Rule 6(d) should somehow attain a status the Supreme Court has refused to accord non-prejudicial departures from most constitutional norms is inexplicable" (App., infra, 9a). The court of appeals' justification for dispensing with a showing of prejudice in the Rule 6(d) context does not withstand analysis. The court suggested, first, that "Rule 6(d) is plain and unequivocal in limiting who may appear before a grand jury" (App., infra, 19a). This, however, is beside the point. The ease with which the Rule may be understood may have a bearing on the prosecutor's culpability in violating it; but has little relevance to whether the error has "affect(ed) substantial rights" of the defendant (Fed. R. Crim. P. 52(a)). See United States v. Young, No. 83-469 (Feb. 20, 1985), slip op. 15 n.14. The court of appeals suggested, second, that "(r)equiring a defendant to show prejudice would impose a difficult burden that could undermine the protection that the rule provides" (App., infra, 19a). However, we cannot see why the consequences of a Rule 6(d) violation would be any more difficult to trace than the consequences of other prosecutorial mistakes and misdeeds that have been subjected to such an analysis. See, e.g., United States v. Valenzuela-Bernal, 458 U.S. at 871 (while defendant "may face a difficult task in making a showing of materiality, the task is not an impossible one"); Weatherford v. Bursey, 429 U.S. 545, 556-557 (1977) ("Nor do we believe that * * * the difficulties of proof will be so great that we must always assume * * * that (the government's violation) has the potential for detriment to the defendant."). Indeed, the district court's opinion demonstrates that the potential prejudice from a Rule 6(d) violation can be analyzed conscientiously and reliably. If the court of appeals' analysis were adopted, there would be little left of the principle that only errors that have a substantial effect on the outcome of the prosecution are cognizable on appeal. Had the court of appeals inquired whether respondents were prejudiced by the joint appearance of Agents James and Rinehart, it would surely have upheld the convictions. The district court, upon painstaking analysis of the grand jury record, found that the possibility of actual prejudice was "utterly remote" (App., infra, 51a). The court of appeals did not hold this finding clearly erroneous, and the finding is amply supported by the record. The error in allowing Agents Rinehart and James to testify together is only tenuously related to the purposes of Fed. R. Crim. P. 6(d): preserving the secrecy of the grand jury proceedings and avoiding the intimidation of witnesses or grand jurors on account of the presence of unauthorized persons in the grand jury room. App., infra, 38a, 40a; see United States v. Sells Engineering, Inc., No. 81-1032 (June 30, 1983), slip op. 5; United States v. Kazonis, 391 F. Supp. at 805; United States v. Bowdach, 324 F. Supp. 123, 124 (S.D. Fla. 1971). The secrecy of the grand jury was not realistically threatened since both agents already had full access to grand jury materials. /17/ The prospect that the joint testimony might have created a risk of intimidating the grand jurors likewise was remote. /18/ Moreover, since the joint testimony affected only a superseding indictment -- which was merely a modification of an earlier, untainted indictment -- it is especially clear that the "ability of the grand jury to exercise its independent judgment" was not "significantly infringed" (United States v. Cederquist, 641 F.2d at 1353). As the district court found in meticulous detail, every relevant alteration or addition in the superseding indictment was supported by "ample independent evidence" before the grand jury apart from the agents' joint testimony (App., infra, 51a). It follows, as the district court also found (ibid.), that "the grand jury would * * * undoubtedly have returned the very same second indictment even had Agents Rinehart and James testified separately." In sum, the court of appeals has reversed confictions reached after a complicated, lengthy, and costly trial solely because of a procedural irregularity in the grand jury proceeding that could have had no effect on the outcome of the grand jury proceeding, let alone the trial. If allowed to stand, the decision will multiply opportunities for criminal defendants to obtain reversals of otherwise valid convictions and to draw the district and appellate courts into needless and time-consuming controversies over grand jury procedures. CONCLUSION The petition for writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General MICHAEL W. MCCONNELL Assistant to the Solicitor General RANGELEY WALLACE Attorney APRIL 1985 /1/ Two other defendants, James F. Chadwick and Russell Kook, were acquitted. The jury was unable to reach a verdict as to Mark Douglas Chadwick, and a mistrial was declared. Four of the original 12 defendants pleaded quilty to the conspiracy count prior to trial. One defendant is a fugitive. /2/ One of the grand jurors who participated in the original indictment did not participate in the superseding indictment, and two individuals participated in the superseding indictment who had not participated in the original indicment (App., infra, 46a). /3/ Gregory Louis Mccafferty was charged in Counts Two and Four of the original indictment, but not in the corresponding counts of the superseding indictment. App., infra, 46a & n.10. /4/ At the conclusion of the government's case in chief, the district court redacted the superseding indictment to conform to its rulings on the government's motion to dismiss a portion of the indictment and the defendants' motions to strike and for judgment of acquittal. Portions of the superseding indictment that had been changed from the original indictment also pertained to defendants Kook and James Chadwick, who were acquitted by the jury. /5/ While the trial continued, respondents filed a notice of appeal and sought a stay pending appeal. The stay was denied. On April 10, 1980, the court of appeals denied respondents' petition for a writ of mandamus and for a writ of prohibition. /6/ The district court stated that the agents' simultaneous testimony "tended to be detrimental to the grand jurors' ability to assess the credibility and personal knowledge" of the agents and to "contrast and compare" their testimony (App., infra, 41a). /7/ But see, e.g., United States v. Samango, 607 F.2d 877 (9th Cir. 1979) (indictment dismissed for prosecutor's failure to present exculpatory evidence, improper comments, and other prejudicial conduct before the grand jury); United States v. Basurto, 497 F.2d 781 (9th Cir. 1974) (indictment dismissed because of perjured testimony before grand jury); United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972) (conviction reversed because of grand jury's sole reliance on hearsay testimony not identified as such). /8/ Of course, under the circumstances of this particular case, the district court was able to conclude that even this possibility of prejudice was "utterly remote" (App., infra, 51a). But even if there had been no untainted original indictment, and even if the alterations in the indictment were not supported by "ample independent evidence" (ibid.), the potential prejudice stemming from the procedural violation in this case would be of no greater magnitude than that in Costello, Blue, and like cases. Indeed, it is not intuitively obvious that the grand jury could not in some circumstances better perceive the truth by being able to observe the interaction of two witnesses giving testimony together. /9/ There is no claim here that the joint appearance of Agents Rinehart and James could have resulted in any continuing prejudice to respondents' ability to obtain a fair trial. Accordingly, the most specific and tailored remedy would be to require the government to correct the error -- that is, to present its case anew to a grand jury in compliance with Rule 6(d) -- but not to reverse a fair and untainted conviction if a procedurally regular indictment is obtained. Cf. Waller v. Georgia, No. 83-321 (May 21, 1984), slip op. 9-11. Of course, such a remedy would be of little practical benefit to respondents. However, this Court has squarely rejected the notion that merely "because other remedies would not be fruitful" the courts must impose "the most drastic remedy" of dismissal of the indictment. United States v. Morrison, 449 U.S. at 365-366 n.2. /10/ The Court summarized Justice Jackson's argument as follows (443 U.S. at 552 (citations omitted)): Unlike the petit jury, the grand jury sat only to determine probable cause to hold the defendant for trial. It did not consider the ultimate issue of guilt or innocence. Once a trial court heard all the evidence and determined it was sufficient to submit the case to the trier of fact, and once that trier determined that the defendant was guilty beyond a reasonable doubt, Mr. Justice Jackson believed that it "hardly lies in the mouth of a defendant . . . to say that his indictment is attributable to prejudice." "Under such circumstances," he concluded, "it is frivolous to contend that any grand jury, however constituted, could have done its duty in any way other than to indict." /11/ Significantly, in Hobby v. United States, No. 82-2140 (July 2, 1984), the Court refused to reverse the conviction of a white male who challenged the alleged exclusion of women and blacks from the position of federal grand jury foreman. The Court noted (slip op. 10) that "(l)ess draconian measures will suffice to rectify the problem." /12/ We do not recommend that the Court hold this petition in light of Vasquez. We believe the special substantive context -- racial discrimination -- and the procedural context -- habeas corpus review of a state court conviction rendered almost 23 years ago -- make it unlikely that a decision in Vasquez will directly control the disposition of this case. However, we believe that this case, in tandem with Vasquez, would provide the Court an opportunity to reaffirm the basic principles of review of grand jury proceedings, and to clarify the circumstances in which those principles are "outweighed" by other fundamental concerns. Rose v. Mitchell, 443 U.S. at 558. /13/ Many district courts have dismissed indictments prior to trial because of Rule 6(d) violations which had little or no prejudicial impact. See cases cited App., infra, 44a; 1 C. Wright, Federal Practice and Procedure Section 105 (1982). Such dismissals have generally not been appealed because it is simpler and more expeditious to reindict the defendant. /14/ An earlier panel of the Fourth Circuit, in United States V. Computer Sciences Corp., 689 F.2d 1181 (1982), declined to dismiss an indictment automatically when presented with violations of Fed. R. Crim. P. 6(d). Stating that "each situation should be addressed on a sui generis basis," the court found that the "invasions of the grand jury proceedings were rare, inadvertent and nonprejudicial to any defendant" (689 F.2d at 1184-1185). The court concluded that "(i)t is simply inappropriate to nullify grand jury work * * * because of technical, trivial, harmless violations of no significant duration of Fed.R. Crim.P. 6(d)" (id. at 1186). This ruling was made, moreover, in the context of a pretrial challenge to an indictment, where the costs associated with dismissal are far less. While purporting to distinguish Computer Sciences (App., infra, 19a-20a), the court below has in fact overruled it. See App., infra, 12a (Wilkinson, J., dissenting). /15/ The analysis of the court of appeals is itself internally inconsistent. If, as the court purported to hold, a Rule 6(d) violation must be remedied by reversal of the conviction and dismissal of the indictment wholly without regard to whether the defendants were prejudiced thereby, the court should not have affirmed the convictions of respondents Mechanik and Lill on the substantive counts. See App., infra, 2a (Widener, J. and Phillips, J., dissenting in part). To be sure, there is no possibility that Lill or Mechanik was affected by the Rule 6(d) violation as to these counts, since the counts had appeared in identical form in the original indictment; however, according to the court of appeals, that should be deemed irrelevant. App., infra, 18a-19a. /16/ The decision below also violates 28 U.S.C. 2111, which provides that "(o)n the hearing of any appeal * * *, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties." /17/ Both agents had access to all grand jury materials in the case, as allowed by Rule 6(e)(3)(A)(ii). Thus, no disclosure either made to the other during their joint testimony could possibly have revealed information not otherwise known or properly disclosable. While the obligation of secrecy embodied in Rule 6(e) under normal circumstances is not imposed on a witness, the agents were bound by the strictures of Rule 6(e)(2) not to make unauthorized disclosures of any grand jury information to which they were privy. Thus, it is inconceivable that a breach of secrecy could have been caused by their joint testimony, and it has never been suggested that there was any. /18/ Nor was there any serious risk that the unauthorized presence of each agent improperly influenced the testimony of the other. Both agents had testified before the same grand jury in support of an earlier indictment, which was not materially different from the indictment upon which they testified jointly. The grand jurors had ample opportunity to weigh the credibility of each witness prior to the joint appearance. APPENDIX