Application for stay of Court of Appeals' judgment affirming
applicants' narcotics convictions and denying rehearing, pending a
petition for certiorari wherein it is claimed that the indictment
should be dismissed because a witness committed perjury before the
grand jury, is denied where it does not appear that four Justices
would vote to grant certiorari. An indictment is not invalidated by
the introduction of inadmissible evidence before the grand jury,
which sits not to determine the truth of the charges, but only to
determine whether there is probable cause to believe them true so
as to require the defendant to stand trial.
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicants were convicted of several related narcotics offenses
in the United States District Court for the Southern District of
California. The Court of Appeals for the Ninth Circuit affirmed
their convictions, and denied their petition for rehearing on
February 28, 1978. That court granted their request for a stay of
its mandate only pending consideration of their petition for
rehearing, and not pending their petition for certiorari. The Court
of Appeals denied rehearing and issued its mandate, and applicants
now request that I stay the enforcement of the judgment of the
Court of Appeals pending disposition of that petition for
The chief contention raised by applicants in their petition for
certiorari is that a witness committed perjury before the grand
jury which indicted them. The witness admitted his perjury at
trial, and applicants moved to dismiss the indictment, contending
that the prosecutor should have immediately
Page 435 U. S. 1302
informed the defense and the court when he became aware of the
perjury. The District Court denied the motion, and the Court of
Appeals affirmed, relying on its opinion in United States v.
497 F.2d 781, 785-786 (1974), which held that perjury
by a witness would invalidate an indictment only when his testimony
Applicants rely upon such cases as Mooney v. Holohan,
294 U. S. 103
(1935), in support of their contention that the disclosure of the
perjury required the court to declare a mistrial on its own motion.
Pet. for Cert. 10. In that case, this Court first held that the
knowing introduction of perjured testimony at a criminal trial
rendered the resulting conviction constitutionally invalid. Later
cases have held that the prosecutor has a duty to correct testimony
he knows to be false, even if its introduction was not knowing and
intentional. Giglio v. United States, 405 U.
(1972); Napue v. Illinois, 360 U.
(1959). Applicants suggest that the prosecutor
has a similar duty with regard to testimony introduced in grand
jury proceedings which is later shown to have been false.
Because it seems to me that applicants misconceive the function
of the grand jury in our system of criminal justice, I cannot
conclude that four Justices of this Court are likely to vote to
grant their petition. The grand jury does not sit to determine the
truth of the charges brought against a defendant, but only to
determine whether there is probable cause to believe them true, so
as to require him to stand trial. Because of this limited function,
we have held that an indictment is not invalidated by the grand
jury's consideration of hearsay, Costello v. United
States, 350 U. S. 359
(1956), or by the introduction of evidence obtained in violation of
the Fourth Amendment, United States v. Calandra,
414 U. S. 338
(1974). While the presentation of inadmissible evidence at trial
may pose a substantial threat to the integrity of that factfinding
process, its introduction before the grand jury poses no such
threat. I have no reason to believe this Court
Page 435 U. S. 1303
will not continue to abide by the language of Mr. Justice Black
in Costello, supra,
at 359 U. S.
"An 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. The Fifth Amendment requires nothing more."
The application is denied.