A federal grand jury returned an indictment charging respondents
and cross-petitioners (hereafter defendants) with drug-related
offenses and conspiracy, and later returned a superseding
indictment expanding the conspiracy charge. Two law enforcement
agents testified in tandem before the grand jury in support of the
superseding indictment. The defendants did not learn about this
until the second week of their trial, when the Government furnished
them with a transcript of the grand jury testimony. The defendants
were found guilty after a jury trial, and the District Court denied
their motion to dismiss the superseding indictment on the ground
that the two agents' simultaneous presence before the grand jury
violated Federal Rule of Criminal Procedure 6(d), which provides
that only specified persons including "the witness under
examination" may be present at a grand jury proceeding. The Court
of Appeals reversed the conspiracy convictions and dismissed the
conspiracy portion of the indictment, holding that, although Rule
6(d) was violated, the violation tainted only that portion of the
indictment.
Held: However diligent the defendants may have been in
seeking to discover the basis for the claimed violation of Rule
6(d), the petit jury's guilty verdict rendered harmless any error
in the grand jury's charging decision that may have flowed from the
violation. In such case, the societal costs of retrial are far too
substantial to justify setting aside the verdict simply because of
an error in the grand jury proceeding. Pp.
475 U. S.
69-73.
756 F.2d 994, affirmed in part and reversed in part.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and STEVENS, JJ., joined. BURGER,
C.J., filed a concurring opinion,
post, p.
475 U. S. 73.
O'CONNOR, J., filed an opinion concurring in the judgment, in which
BRENNAN and BLACKMUN, JJ., joined,
post, p.
475 U. S. 73.
MARSHALL, J., filed a dissenting opinion,
post, p.
475 U. S.
80.
Page 475 U. S. 67
JUSTICE REHNQUIST delivered the opinion of the Court.
Federal Rule of Criminal Procedure 6(d) states that only
specified persons, including "the witness under examination," may
be present at a grand jury proceeding. In these cases, two
Government witnesses testified in tandem before the grand jury,
which indicted respondents and cross-petitioners (hereafter
defendants) Mechanik and Lill for various drug-related offenses and
conspiracy to commit such offenses. The Court of Appeals for the
Fourth Circuit held that the simultaneous presence of these two
witnesses violated Rule 6(d), and that, even though the petit jury
subsequently returned a verdict of guilty against defendants, the
verdict must be set aside on any count that corresponds to a
"tainted" portion of the indictment. We believe that the petit
jury's verdict of guilty beyond a reasonable doubt demonstrates
a fortiori that there was probable cause to charge the
defendants with the offenses for which they were convicted.
Therefore, the convictions must stand despite the rule
violation.
A fairly detailed summary of the District Court proceedings will
help to illustrate the nature and extent of our holding. A grand
jury returned an indictment charging defendants with drug-related
offenses and conspiracy. This indictment was concededly free from
any claim of error. The grand jury then returned a superseding
indictment in which the conspiracy charge was expanded. In support
of this superseding indictment, the United States Attorney
presented the testimony of two law enforcement agents who were
sworn together and questioned in tandem before the grand jury.
Page 475 U. S. 68
The defendants did not learn about this joint testimony until
after trial began. Before trial, they filed an omnibus motion
requesting,
inter alia, the names of all the people who
appeared before the grand jury. The Government responded that there
were no unauthorized persons appearing before the grand jury, and
the District Court denied the motion. Trial began in February,
1980, and concluded in early July of the same year. During the
second week of trial, one Jerry Rinehart, an agent of the Drug
Enforcement Administration, testified as a Government witness. At
the time of his testimony, the Government furnished the defendants
with a portion of the transcript of his grand jury testimony, as
required by the Jencks Act, 18 U.S.C. § 3500. The transcript
disclosed that Rinehart and his fellow agent, Randolph James, had
testified in tandem before the grand jury.
The defendants moved for dismissal of the indictment on the
ground that the simultaneous presence of the two agents had
violated Federal Rule of Criminal Procedure 6(d). Chief Judge
Knapp, presiding over the trial, concluded that the presence and
testimony of the two agents had not violated Rule 6(d), and he
denied the motion. In May, 1980, however, Chief Judge Knapp was
unexpectedly hospitalized, and Judge Copenhaver took over as the
trial judge. The defendants then moved for a rehearing of their
motion to dismiss the indictment. Judge Copenhaver took the motion
under advisement until the conclusion of trial.
In August, 1980, after the jury had returned its guilty verdict,
Judge Copenhaver ruled upon and denied the defendants' motion for
dismissal of the indictment.
511 F. Supp.
50 (SD W.Va.1980). He first decided, contrary to Chief Judge
Knapp's earlier ruling, that the joint testimony of Agents Rinehart
and James
did constitute a violation of Rule 6(d).
Id. at 53-58. But he declined to set aside the defendants'
indictment and convictions because, on the basis of a comparison
between the two indictments and the evidence on which the
indictments rested, the violation of Rule 6(d) had
Page 475 U. S. 69
not harmed the defendants.
Id. at 58-61. He justified
this conclusion with respect to the substantive counts on the
ground that they were materially unchanged from the valid initial
indictment to the superseding indictment.
Id. at 58-59.
With respect to the conspiracy count, which had been expanded by
the superseding indictment, he justified his conclusion on the
ground that the grand jury "had before it ample independent
evidence [apart from the joint testimony] to support a probable
cause finding of the charges."
Id. at 61. In light of
these conclusions, Judge Copenhaver determined that a post-trial
dismissal of the indictment would simply confer a windfall benefit
on the defendants "who stand convicted after a three-month trial
conducted at enormous expense to the United States and the
defendants."
Ibid. The judge nevertheless undertook to
ensure future compliance with the one-witness rule by directing the
Government to keep the court advised concerning compliance with
Rule 6(d) in future criminal cases.
Ibid.
A divided Court of Appeals reversed the conspiracy convictions,
affirmed the others, and dismissed the conspiracy portion of the
indictment. 735 F.2d 136 (1984). It reasoned that the language of
Rule 6(d) is so "plain and unequivocal in limiting who may appear
before a grand jury,"
id. at 139, that its transgression
requires automatic reversal of any subsequent conviction regardless
of the lack of prejudice.
Id. at 139-140. But the court
reversed only the conspiracy convictions, because it found that the
violation of Rule 6(d) tainted only the portion of the superseding
indictment that related to them.
Id. at 140. A divided en
banc decision agreed. 756 F.2d 994 (1985) (per curiam).
We assume for the sake of argument that the simultaneous
presence and testimony of the two Government witnesses before the
grand jury violated Rule 6(d), and that the District Court would
have been justified in dismissing portions of the indictment on
that basis had there been actual prejudice and had the matter been
called to its attention before the commencement
Page 475 U. S. 70
of the trial. But although the defendants appear to have been
reasonably diligent in attempting to discover any error at the
grand jury proceeding, they did not acquire the transcript showing
that the two agents had appeared jointly in the grand jury
proceeding until the second week of trial. Nor is there any
suggestion that the Government designedly withheld the information.
When the defendants made their motion to dismiss the indictment
based on the joint testimony, Chief Judge Knapp denied the motion
because of his view that there had been no violation of Rule 6(d).
Judge Copenhaver eventually issued a contrary ruling on the
resubmitted motion, but not until after the long and costly trial
had been brought to its conclusion. Although we do not believe that
the defendants can be faulted for any lack of diligence, we
nonetheless hold that the supervening jury verdict made reversal of
the conviction and dismissal of the indictment inappropriate.
Both the District Court and the Court of Appeals observed that
Rule 6(d) was designed, in part,
"to ensure that grand jurors, sitting without the direct
supervision of a judge, are not subject to undue influence that may
come with the presence of an unauthorized person."
735 F.2d at 139. The Rule protects against the danger that a
defendant will be required to defend against a charge for which
there is no probable cause to believe him guilty. The error
involving Rule 6(d) in these cases had the theoretical potential to
affect the grand jury's determination whether to indict these
particular defendants for the offenses with which they were
charged. But the petit jury's subsequent guilty verdict means not
only that there was probable cause to believe that the defendants
were guilty as charged, but also that they are in fact guilty as
charged beyond a reasonable doubt. Measured by the petit jury's
verdict, then, any error in the grand jury proceeding connected
with the charging decision was harmless beyond a reasonable doubt.
[
Footnote 1]
Page 475 U. S. 71
It might be argued in some literal sense that, because the Rule
was designed to protect against an erroneous charging decision by
the grand jury, the indictment should not be compared to the
evidence produced by the Government at
trial, but to the
evidence produced before the
grand jury. But even if this
argument were accepted, there is no simple way after the verdict to
restore the defendant to the position in which he would have been
had the indictment been dismissed before trial. He will already
have suffered whatever inconvenience, expense, and opprobrium that
a proper indictment may have spared him. In courtroom proceedings
as elsewhere, "the moving finger writes, and, having writ, moves
on." Thus reversal of a conviction after a trial free from
reversible error cannot restore to the defendant whatever benefit
might have accrued to him from a trial on an indictment returned in
conformity with Rule 6(d).
We cannot accept the Court of Appeals' view that a violation of
Rule 6(d) requires automatic reversal of a subsequent conviction
regardless of the lack of prejudice. Federal Rule of Criminal
Procedure 52(a) provides that errors not affecting substantial
rights shall be disregarded. We see no reason not to apply this
provision to "errors, defects, irregularities, or variances"
occurring before a grand jury, just as we have
Page 475 U. S. 72
applied it to such error occurring in the criminal trial itself.
See United States v. Hasting, 461 U.
S. 499,
461 U. S. 509
(1983);
Chapman v. California, 386 U. S.
18,
386 U. S. 21-24
(1967);
United States v. Lane, 474 U.
S. 438 (1986).
The reversal of a conviction entails substantial social costs:
it forces jurors, witnesses, courts, the prosecution, and the
defendants to expend further time, energy, and other resources to
repeat a trial that has already once taken place; victims may be
asked to relive their disturbing experiences.
See Morris v.
Slappy, 461 U. S. 1,
461 U. S. 14
(1983). The "[p]assage of time, erosion of memory, and dispersion
of witnesses may render retrial difficult, even impossible."
Engle v. Isaac, 456 U. S. 107,
456 U. S.
127-128 (1982). Thus, while reversal "may, in theory,
entitle the defendant only to retrial, in practice it may reward
the accused with complete freedom from prosecution,"
id.
at
456 U. S. 128,
and thereby "cost society the right to punish admitted offenders."
Id. at
456 U. S. 127.
Even if a defendant is convicted in a second trial, the intervening
delay may compromise society's "interest in the prompt
administration of justice,"
United States v. Hasting,
supra, at
461 U. S. 509,
and impede accomplishment of the objectives of deterrence and
rehabilitation. These societal costs of reversal and retrial are an
acceptable and often necessary consequence when an error in the
first proceeding has deprived a defendant of a fair determination
of the issue of guilt or innocence. But the balance of interest
tips decidedly the other way when an error has had no effect on the
outcome of the trial.
We express no opinion as to what remedy may be appropriate for a
violation of Rule 6(d) that has affected the grand jury's charging
decision and is brought to the attention of the trial court before
the commencement of trial. [
Footnote 2] We hold only
Page 475 U. S. 73
that, however diligent the defendants may have been in seeking
to discover the basis for the claimed violation of Rule 6(d), the
petit jury's verdict rendered harmless any conceivable error in the
charging decision that might have flowed from the violation. In
such a case, the societal costs of retrial after a jury verdict of
guilty are far too substantial to justify setting aside the verdict
simply because of an error in the earlier grand jury proceedings.
The judgment of the Court of Appeals is therefore reversed to the
extent it set aside the conspiracy convictions and dismissed the
indictment, but is otherwise affirmed.
It is so ordered.
* Together with No. 84-1700,
Lill v. United States, and
No. 84-1704,
Mechanik v. United States, also on certiorari
to the same court.
[
Footnote 1]
In
Vasquez v. Hillery, 474 U.
S. 254 (1986), the Court set aside a final judgment of
conviction because of racial discrimination in the composition of
the grand jury that indicted the defendant. It found this result to
be compelled by precedent directly applicable to the special
problem of racial discrimination.
Id. at
474 U. S.
260-262. It also reasoned that racial discrimination in
the selection of grand jurors is so pernicious, and other remedies
so impractical, that the remedy of automatic reversal was necessary
as a prophylactic means of deterring grand jury discrimination in
the future,
id. at
474 U. S. 262,
and that one could presume that a discriminatorily selected grand
jury would treat defendants of excluded races unfairly.
Id. at
474 U. S.
263-264.
We think that these considerations have little force outside the
context of racial discrimination in the composition of the grand
jury. No long line of precedent requires the setting aside of a
conviction based on a rule violation in the antecedent grand jury
proceedings, and the societal interest in deterring this sort of
error does not rise to the level of the interest in deterring
racial discrimination.
See, e.g., Gerstein v. Pugh,
420 U. S. 103,
420 U. S.
119-123 (1975);
Coleman v. Alabama,
399 U. S. 1,
399 U. S. 10-11
(1970);
Chapman v. California, 386 U. S.
18 (1967).
[
Footnote 2]
The Government argues that it was improper to reverse the
conspiracy convictions because
"[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,
350 U. S. 363
(1956). We need not reach this argument of the Government because
of the narrower ground upon which we rest our decision.
CHIEF JUSTICE BURGER, concurring.
I concur in JUSTICE REHNQUIST's opinion for the Court. I write
separately only to state my view that this case is controlled by
Justice Black's opinion for the Court in
Costello v. United
States, 350 U. S. 359
(1956).
JUSTICE O'CONNOR, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN
join, concurring in the judgment.
I agree with the Court that the convictions obtained in the
trial court against defendants Mechanik and Lill should not have
been set aside. I write separately because I believe that the
analysis adopted by the Court for determining the effect of a
violation of the rules governing the conduct of grand juries
effectively renders those rules a dead letter, thereby seriously
undermining the grand jury's traditional function of protecting the
innocent from unwarranted public accusation.
The grand jury has two principal functions. First, it bears the
weighty responsibility of investigating crime and determining
whether there is probable cause to believe that a crime has been
committed.
United States v.
Calandra, 414
Page 475 U. S. 74
U.S. 338,
414 U. S. 343
(1974). The second, and no less important, task of the grand jury
is to
"serv[e] the invaluable function in our society of standing
between the accuser and the accused, whether the latter be an
individual, minority group, or other, to determine whether a charge
is founded upon reason or dictated by an intimidating power or by
malice and personal ill will."
Wood v. Georgia, 370 U. S. 375,
370 U. S. 390
(1962). To further the grand jury's investigative function, the
grand jury traditionally has been given "wide latitude" in its
inquiries.
Calandra, supra, at
414 U. S. 343.
See also United States v. Dionisio, 410 U. S.
1,
410 U. S. 17-18
(1973). Prosecutors have been accorded similar leeway in presenting
their cases to the grand jury,
see, e.g., United States v.
Adamo, 742 F.2d 927, 936-938 (CA6 1984),
cert.
denied, 469 U.S. 1193 (1985), but they are bound by a few,
clear rules which were carefully drafted and approved by this Court
and by Congress to ensure the integrity of the grand jury's
functions.
Federal Rule of Criminal Procedure 6(d) is one such rule; it is
designed to guard the secrecy of the grand jury proceedings,
prevent intimidation of jurors, and guarantee that the grand jury
is given the opportunity to make an independent examination of the
evidence and render its probable cause and charging determinations
free of undue prosecutorial influence.
See, e.g., United States
v. Echols, 542 F.2d 948, 951 (CA5 1976),
cert.
denied, 431 U.S. 904 (1977);
United States v.
Lill, 511 F. Supp.
50, 55-57 (SD W.Va.1980); 1 C. Wright, Federal Practice &
Procedure § 105, p. 237, and n. 1 (2d ed.1982). For example, if the
Government, in violation of Rule 6(d), were to have all witnesses
remain in the courtroom while the grand jury investigation was
going on to ensure that all testified in a consistent manner, it
cannot seriously be doubted that this practice would hinder the
grand jury in its task of uncovering the truth. Similarly, if the
prosecuting attorney were to remain in the jury room during the
jury's deliberations in contravention of the Rule, a very real
possibility would arise that the jury's deliberations
Page 475 U. S. 75
or vote would be unduly influenced by the prosecutor's
presence.
The Federal Rules clearly envision that dismissal of the
indictment may be an appropriate remedy for such violations of Rule
6(d).
See, e.g., Fed.Rule Crim.Proc. 12(b)(2). Indeed,
courts have consistently employed the remedy of dismissal of the
indictment for deviations from Rule 6(d) which may imperil the
grand jury's independence.
See, e.g., Lill, supra, at 58
(collecting federal cases).
See also Nadel, Presence of
Unauthorized Persons During State Grand Jury Proceedings as
Affecting Indictment, 23 A.L.R. 4th 397 (1983) (hereinafter Nadel)
(collecting state cases dealing with similar violations of state
rules). To be sure, a violation must be clearly established before
dismissal may be contemplated. The grand jury proceeding is
accorded a presumption of regularity, which generally may be
dispelled only upon particularized proof of irregularities in the
grand jury process.
See, e.g., United States v. Johnson,
319 U. S. 503,
319 U. S.
512-513 (1943). And not every violation of Rule 6(d)
will create such a likelihood of prejudice as to warrant the
drastic remedy of dismissal. The Federal Rules dictate that
dismissal is appropriate only when a violation has impaired the
substantial rights of the accused.
See Fed.Rule Crim.Proc.
52.
Rule 52(a) provides that its harmless error inquiry extends to
"[a]ny error, defect, irregularity or variance." The Advisory
Committee's notes to Rule 52 state that "[t]his rule is a
restatement of existing law," which specifically provided for a
harmless error analysis of objections going to the validity of the
indictment in 18 U.S.C. § 556 (1946 ed.).
See 18
U.S.C.App. p. 657. The language of Rule 6 does not exempt the Rule
from a harmless error scrutiny. In fact, the commentary
accompanying it states that the Rule "generally continues existing
law" and expressly refers to the harmless error rule of 18 U.S.C. §
556 (1946 ed.), thereby confirming the rulemakers' intent that
violations of Rule 6(d) would be among those errors subject to
harmless error review.
See
Page 475 U. S. 76
Advisory Committee's Notes on Fed.Rule Crim.Proc. 6(d), 18
U.S.C.App. p. 568.
A Rule 6(d) violation is one affecting the grand jury
proceeding, and is not in any sense a trial error. Accordingly, the
logical focus of the harmless error inquiry is an examination of
the influence of the error on the charging decision. Indeed, in
most Rule 6(d) cases, a court conducting a harmless error inquiry
will of necessity focus on the effect of the alleged error on the
grand jury's charging decision, rather than the verdict, because
the rules governing the disclosure of grand jury materials to
defendants and the waiver provision of Rule 12(f) virtually ensure
that all claims of violations of Rule 6(d) will be made before or
during trial.
See, e.g., 18 U.S.C. § 3500; Fed.Rules
Crim.Proc. 6(e)(3)(C)(i), (ii);
Dennis v. United States,
384 U. S. 855,
384 U. S.
868-875 (1966); 8 J. Moore, Federal Practice � 6.05[3]
(2d ed.1985) (discussing defendants' access to grand jury materials
under the above cited authorities).
See also Lill, supra,
at 58, 61 (most reported Rule 6(d) claims raised and disposed of
before trial).
In my view, when, as in these cases, a court decides to reserve
the ruling on a timely raised and diligently pursued motion to
dismiss based on an alleged violation of Rule 6(d) until after a
verdict is returned, the focus of the court's inquiry should remain
on the grand jury's charging decision. Yet the Court shifts the
focus of the harmless error analysis in such circumstances from an
examination of the violation's effect on the indictment to an
assessment of the violation's effect on the trial verdict, without
regard to the timing of the defendants' objection.
See
ante at
475 U. S. 70-71.
The Court then concludes that a conviction automatically renders
harmless any violation of Rule 6(d). This holding is not justified
by the applicable rules, nor can it be reconciled with
precedent.
A number of federal courts have employed a rule directly in
conflict with that adopted by the Court: they presume the existence
of prejudice from the presence of unauthorized persons
Page 475 U. S. 77
in the grand jury room, and apply a rule of automatic dismissal
of the tainted indictment.
See, e.g., United States v.
Fulmer, 722 F.2d 1192, 1195, n. 5 (CA5 1983);
Echols,
542 F.2d at 951;
Latham v. United States, 226 F. 420 (CA5
1915);
Lill, 511 F. Supp. at 58 (collecting lower federal
cases).
See also Nadel § 4 (collecting state cases); 2 W.
LaFave & J. Israel, Criminal Procedure § 15.6 (1984). Other
courts have applied a harmless error test to Rule 6(d) violations,
but have uniformly evaluated the prejudice to the defendant by
looking to the violation's likely effect on the grand jury's
deliberations, not merely to its significance in light of the trial
verdict.
See, e.g., United States v. Condo, 741 F.2d 238,
239 (CA9 1984) (per curiam),
cert. denied, 469 U.S. 1164
(1985);
United States v. Computer Sciences Corp., 689 F.2d
1181, 1185-1186 (CA4 1982),
cert. denied, 459 U.S. 1105
(1983);
United States v. Kahan & Lessin Co., 695 F.2d
1122, 1124 (CA9 1982) (per curiam);
United States v. Rath,
406 F.2d 757, (CA6),
cert. denied, 394 U.S. 920 (1969). I
have found no Rule 6(d) cases in which a
per se rule based
on the ultimate verdict at trial has been applied.
Cf. also
United States v. Lane, 474 U. S. 438,
474 U. S.
447-448 (1986) (disapproving use of
per se
rules in harmless error analysis).
The Court's focus on the effect of the verdict, in combination
with its
per se rule, gives judges and prosecutors a
powerful incentive to delay consideration of motions to dismiss
based on an alleged defect in the indictment until the jury has
spoken. If the jury convicts, the motion is denied; if the jury
acquits, the matter is mooted. The Court's approach thus undermines
the authority of Rule 6(d), exposes to the ordeal of trial any
defendants who would otherwise have a right to dismissal of the
indictment, and undermines adherence to the very measures that this
Court proposed and Congress implemented to guarantee that the grand
jury is able to perform properly its screening function.
Page 475 U. S. 78
In my view, when a defendant makes a timely objection to the
grand jury indictment based on a violation of Rule 6(d), the remedy
of dismissal of the indictment is appropriate if it is established
that the violation substantially influenced the grand jury's
decision to indict, or if there is grave doubt as to whether it had
such effect.
See Lane, supra, at
474 U. S. 449;
Kotteakos v. United States, 328 U.
S. 750,
328 U. S. 765
(1946). The focus of the prejudice inquiry should be on the effect
of the alleged error on the grand jury's decision to indict, even
if the court postpones its decision until the conclusion of the
trial.
This approach would not impose unwarranted costs on the criminal
justice system. The prosecution has it within its power to avoid
dismissals by adhering to the simple dictates of Rule 6(d), and to
remedy any violation of the Rule by obtaining a superseding
indictment so as to avoid the risks of subsequent dismissals. Even
where an unremedied violation is proved, the trial judge must still
be satisfied that the violation resulted in grand jury intimidation
or improper influence on important witnesses' testimony, and thus
had a "substantial influence" on the indictment returned, or that
there is grave doubt as to whether it had such effect.
Kotteakos, supra, at
328 U. S. 765.
See also Lane, supra, at
474 U. S.
449.
In these cases, the District Court found, after a scrupulous
examination of the record, that the violation was harmless, a
finding which was not found wanting on appeal. The District Court
preliminarily observed:
"It is especially significant to note that the two indictments
were returned by the same grand jury. The court's review of the
attendance and voting records of that grand jury reveals that each
of these indictments was returned by a unanimous vote. A nucleus of
the same seventeen grand jurors voted for each indictment. In
addition, one other grand juror voted for the first indictment but
did not vote on the second, while two others voted for the second
indictment but did not vote on the first."
511 F. Supp. at 58-59.
Page 475 U. S. 79
Both agents had testified separately before the same grand jury
in support of the first, untainted indictment, giving the jury
ample opportunity to weigh the credibility of each agent prior to
their joint appearance. Moreover, both agents had access to all
grand jury materials in the case pursuant to Rule 6(e)(3)(A)(ii),
and thus the likelihood that their joint testimony created a
potential for collusion not already available is minute.
Turning to an examination of the indictment itself, the District
Court found that the substantive counts of which the defendants
were convicted were "identical or virtually so" to the counts
returned in the superseded indictment, and that those counts had "a
probable cause basis entirely independent of the testimony
presented to the grand jury after the return of the [superseded]
first indictment."
Id. at 59. It concluded that, as to the
substantive counts, "there was neither prejudice nor potential for
prejudice."
Ibid. Thus, the only count upon which the
defendants could have been prejudiced by the objectionable joint
testimony of the Drug Enforcement Administration agents was the
conspiracy count.
Although the District Court conducted its post-trial harmless
error review in part with an eye to the effect of the error on the
verdicts, its findings also make clear that the effect of the joint
testimony on the grand jury's decision to indict on the conspiracy
count was negligible. The District Court carefully isolated the
alterations and additions to that count which were the subject of
the joint testimony. After examining the testimony given by other
grand jury witnesses, the trial judge concluded that
"the grand jury would, in my view, undoubtedly have returned the
very same second indictment even had [the] Agents . . . testified
separately."
Id. at 61. Accordingly, I would reverse the judgment of
the Court of Appeals insofar as it set aside the defendants'
conspiracy convictions and affirm the Court of Appeals' judgment
regarding the defendants' cross-petitions.
Page 475 U. S. 80
JUSTICE MARSHALL, dissenting.
The Court concedes that federal prosecutors violated Rule 6(d)
of the Federal Rules of Criminal Procedure in presenting their case
against defendants Mechanik and Lill to the grand jury. The Court
holds, however, that, because defendants were ultimately convicted
of some of the counts against them, "any error in the grand jury
proceeding connected with the charging decision was harmless beyond
a reasonable doubt."
Ante at
475 U. S. 70.
Because I believe that the majority's rule misconceives the role
both of the grand jury and of the harmless error doctrine, I
dissent.
I
The Court's decision today renders Rule 6(d) almost
unenforceable. As the facts of this litigation demonstrate, Rule
6(d) violations are difficult for defendants to uncover. The grand
jury conducts its investigation in secret, aided only by the
prosecutors and witnesses.
United States v. Calandra,
414 U. S. 338,
414 U. S. 343
(1974). Defendants are not entitled to grand jury transcripts
before trial; due to the strictly enforced tradition of grand jury
secrecy, defendants generally have access to no information
whatsoever regarding the conduct of the grand jury proceedings.
See M. Frankel & G. Naftalis, The Grand Jury 81-89
(1977). Requests by defendants pursuant to Rule 6(e)(3)(C)(ii) for
disclosure of grand jury materials, "upon a showing that grounds
may exist for a motion to dismiss the indictment because of matters
occurring before the grand jury," are rarely granted; a defendant
often can make the necessary showing only with the aid of the
materials he seeks to discover.
See 1 C. Wright, Federal
Practice and Procedure § 108, pp. 263-265 (2d ed.1982). Defendants'
only access to grand jury materials is likely to be through the
medium of the Jencks Act, 18 U.S.C. § 3500, which requires the
prosecutor, after direct examination of a Government witness, to
produce the witness' prior statements. That disclosure, however,
does not
Page 475 U. S. 81
take place until after trial has begun, and then only on a
piecemeal and incomplete basis.
There is thus little likelihood that a defendant can raise a
substantial claim under Rule 6(d) before his trial begins. After
the start of trial, overwork and the press of events may prevent
the district judge from disposing of a newly raised Rule 6(d)
claim. The most attractive course for the district judge will be to
defer a ruling until the close of trial, the course ultimately
followed in this case. Indeed, the district judge may not have the
opportunity to rule until that time. Under today's decision,
however, deferring a meritorious Rule 6(d) claim until the close of
trial disposes of it permanently. If the movant is acquitted, then
his Rule 6(d) motion is moot; if the movant is convicted, under the
majority's reasoning, then any error was harmless. The Court's
decision thus offers busy district judges a new and unique way to
reduce their workload; one need not believe in a judicial
conspiracy against the assertion of Rule 6(d) rights to suspect
that district judges, faced with Rule 6(d) motions necessarily
raised in the middle of trial, will follow the Court's
invitation.
Should a district judge decide a Rule 6(d) motion during trial,
the majority's scheme insulates that ruling from appellate review.
Appeal before judgment is unlikely; the Court has never allowed
immediate appeal of an order issued after the start of a criminal
trial.
See Flanagan v. United States, 465 U.
S. 259,
465 U. S. 269
(1984). [
Footnote 2/1] And under
the decision today,
Page 475 U. S. 82
such rulings cannot be appealed after judgment. Enforcement of
Rule 6(d) is thus left to the unreviewable largesse of the district
court.
II
A
We have no reason to believe that Congress intended Rule 6(d) to
have so little practical meaning. The legislative history of Rule
6, indeed, belies that approach. In 1933, Congress was faced
with
"a conflict of legal decision as to the right, under existing
law, to permit stenographers in grand jury rooms without
invalidating the subsequent conviction of defendant."
S.Rep. No. 64, 73d Cong., 1st Sess., 1 (1933). It responded by
adding a narrow clause to the harmless error statute, Rev.Stat. §
1025 (later codified as 18 U.S.C. § 556 (1946 ed.)), providing that
no indictment should be found insufficient, or conviction be
reversed, because of the presence of stenographers in the grand
jury room. But Congress nowhere expressed disagreement with the
general proposition that the presence of an unauthorized person in
the grand jury room invalidates a subsequent conviction.
E.g.,
United States v. Fall, 56 App.D.C. 83, 84, 10 F.2d 648, 649
(1925);
Latham v. United States, 226 F. 420, 424 (CA5
1915).
More recently, Congress amended Rule 6 in 1972 to incorporate by
reference the provisions of the Jury Selection and Service Act of
1968; it provided that a defendant may move to dismiss the
indictment based on the Government's failure to comply with that
Act in the selection of the grand jury array or of individual grand
jurors. Fed.Rule Crim.Proc. 6(b)(2). The advisory notes expressly
state that the district judge may rule on such a challenge to the
grand jury either before or after the verdict. Advisory Committee
Notes on Fed.Rule Crim.Proc. 6, 18 U.S.C.App. p. 568 (1972
amendment). There is no hint that Congress, in providing for a
Page 475 U. S. 83
ruling after the verdict, intended that ruling to be a mere
intellectual exercise.
B
The majority's opinion misconceives the role of harmless error
analysis. We have recognized that harmless error doctrine, denying
any remedy in cases of clear prosecutorial misconduct, "can work
very unfair and mischievous results."
Chapman v.
California, 386 U. S. 18,
386 U. S. 22
(1967). Denying defendants relief for clear violations of their
procedural rights reduces the law to "
pretend-rules,'"
United States v. Borello, 766 F.2d 46, 58 (CA2 1985),
quoting United States v. Antonelli Fireworks Co., 155 F.2d
631, 661 (CA2) (Frank, J., dissenting), cert. denied, 329
U.S. 742 (1946); it means that prosecutors are free to engage in
prohibited conduct subject only to "purely ceremonial" words of
appellate displeasure. 155 F.2d at 661.
The Court's rule that all grand jury misconduct becomes harmless
after conviction, however, is especially pernicious. Contrary to
the majority's suggestion that reversal is too costly a remedy for
grand jury misconduct,
ante at
475 U. S. 72, it
is the majority's refusal to reverse convictions for demonstrated
grand jury misconduct that imposes unacceptable costs. There are
few limitations on the conduct of the prosecutor before the grand
jury. Those limitations are found only in Federal Rule of Criminal
Procedure 6, the text of which takes up little more than a page in
the official compilation of United States laws. Violations of even
those isolated restrictions, in by far the majority of cases, will
go undetected by defendants. The only way to allow even minimally
effective enforcement of those rules is to reverse the convictions
of defendants whose indictments were tainted by Rule 6
violations.
Such an approach would not hamper the enforcement of the
criminal law. Violations of Rule 6(d) will be nonexistent if the
prosecutor exercises proper control over access to the grand jury
chambers. The substantive law is not onerous or
Page 475 U. S. 84
ambiguous, and most violations are the product of the
prosecutor's failure to adopt safeguards to ensure compliance.
See 2 W. LaFave & J. Israel, Criminal Procedure §
15.6, p. 333 (1984). There is no danger of a prosecutor slipping
into an inadvertent Rule 6(d) violation comparable to that, say, of
making an ill-worded remark in the heat of trial. Courts would not
often have cause to reverse convictions because of Rule 6(d)
violations.
The majority's goal of upholding criminal convictions not marred
by substantial defect does not justify reducing Congress' command
regarding the proper conduct of grand jury proceedings to a mere
form of words, without practical effect. Respect for the rule of
law demands that improperly procured indictments be quashed even
after conviction, because
"only by upsetting convictions so obtained can the ardor of
prosecuting officials be kept within legal bounds and justice be
secured; for in modern times, all prosecution is in the hands of
officials."
United States v. Remington, 208 F.2d 567, 574 (CA2
1953) (L. Hand, J., dissenting). [
Footnote 2/2]
Page 475 U. S. 85
III
The opinion concurring in the judgment suggests that the Rule
6(d) violation in this litigation should be viewed as harmless on
the theory that the grand jury would have returned the same
indictment regardless of the prosecutor's misconduct. Under that
approach, a district court faced with a Rule 6(d) violation should
examine the grand jury transcripts in an attempt to divine the
effect of the violation on the jury's charging decision, and allow
the indictment or conviction to stand only if it finds that there
was no such effect. Such a rule would be contrary to the
traditional black-letter law that "[a]ny violation of Rule 6(d) is
per se prejudicial to the defendant and will result in
dismissal of the indictment," 8 J. Moore, Federal Practice �
6.04[7], p. 6-91 (2d ed.1985). [
Footnote 2/3] I believe that such an approach would be
unworkable and would undermine the limits Congress imposed on the
conduct of grand jury investigations.
Many of the reasons given above for rejecting the majority's
view that grand jury impropriety is
always harmless
Page 475 U. S. 86
once a verdict is reached, apply in this context as well. Given
defendants' difficulty in discovering Rule 6(d) violations, it is
all the more important that dismissal of the indictment be certain
when violations of the Rule are found. Only such a sanction can
come close to providing prosecutors with an incentive to obey the
Rule's commands.
See United States v.
Pignatiello, 582 F.
Supp. 251,
255
(Colo.1984).
Such harmless error analysis, moreover, overlooks the practical
impossibility of determining the effect of a Rule 6(d) violation.
The prejudicial impact of the unauthorized presence of persons in
the grand jury room will often be impossible to quantify, and may
not be apparent from the grand jury transcript. As one court
wrote:
"A change in expression, a pressure on the hand or a warning
glance would not be shown upon the minutes, but might well
influence, suppress or alter testimony to the prejudice of the
defendant. There may have been prior expressions or conversations
between the two witnesses which the one then giving testimony might
well hesitate to repudiate or modify in the presence of the other.
The District Attorney here contends . . . that defendant suffered
no prejudice by the joint presence of the two sisters, but . . .
'[t]he court cannot know that this suggestion represents the fact.'
We think the practice offers too great a possibility for the
exercise of undue influence to be condoned."
State v. Revere, 232 La. 184, 207,
94 So. 2d
25, 34 (1957) (emphasis omitted; citations omitted; internal
quotations omitted). Any case-by-case analysis to determine whether
the defendant was actually prejudiced is simply too speculative to
afford defendants meaningful protection, and imposes a difficult
burden on the courts that outweighs the benefits to be derived. The
distinction between the truly harmless error and the more dangerous
one is not "such a pronounced one that the Court can cloak the one
with the mantle of legality and
Page 475 U. S. 87
yet recognize the dangers of the other and prohibit it."
United States v. Carper, 116 F.
Supp. 817, 821 (DC 1963).
That approach, finally, is likely to require a detailed inquiry
that will frustrate and undermine the secrecy of grand jury
inquiry.
See United States v. Treadway, 445 F.
Supp. 959 (ND Tex.1978). The district court may have to discuss
the testimony of grand jury witnesses who did not appear at trial.
The goals of grand jury secrecy, however, counsel that such
analysis should not be spread across the public record.
See
United States v. Sells Engineering, Inc., 463 U.
S. 418, 424-425 (1983). [
Footnote 2/4]
IV
This litigation illustrates the extent to which the Court is
willing to reduce the substantive law to "pretend-rules,"
Borello, 766 F.2d at 58, in order to affirm a criminal
conviction. But by denigrating Congress' commands and eviscerating
enforcement of Rule 6(d), the Court creates "a greater danger to a
free people than the escape of some criminals from punishment."
United States v. Di Re, 332 U. S. 581,
332 U. S. 595
(1948). I believe that the District Court in this case
Page 475 U. S. 88
should have reversed defendants' conspiracy convictions without
inquiry into the prejudice done to defendants by the Rule 6(d)
violation. I therefore would affirm the judgment of the Court of
Appeals.
[
Footnote 2/1]
Denial of a Rule 6(d) motion could conceivably be subject to
interlocutory appeal under the collateral order doctrine of
Cohen v. Beneficial Industrial Loan Corp., 337 U.
S. 541 (1949). Such an order may be both collateral to
the main action and, as a result of today's opinion, wholly
unreviewable after final judgment.
Cf. United States v.
Hollywood Motor Car Co., 458 U. S. 263,
458 U. S. 267
(1982) (claim that indictment should be dismissed on grounds of
prosecutorial vindictiveness not subject to interlocutory appeal
because reviewable after conviction);
United States v.
Garner, 632 F.2d 758 (CA9 1980) (claim that indictment should
be dismissed on grounds of grand jury irregularities not subject to
interlocutory appeal because reviewable after conviction);
United States v. Bird, 709 F.2d 388, 391, and n. 17 (CA5
1983) (collecting cases).
[
Footnote 2/2]
Our case law, further, is inconsistent with the majority's broad
holding that
any error in the grand jury proceedings, no
matter how egregious, is rendered harmless beyond a reasonable
doubt by a petit jury's subsequent guilty verdict.
Vasquez v.
Hillery, 474 U. S. 254
(1986), involving the "grave constitutional trespass" of racial
discrimination,
id. at 262, belies that holding. The
Court's assessment of the nature of the grand jury process refutes
the rationale articulated by the majority today:
"Nor are we persuaded that discrimination in the grand jury has
no effect on the fairness of the criminal trials that result from
that grand jury's actions. The grand jury does not determine only
that probable cause exists to believe that a defendant committed a
crime, or that it does not. In the hands of the grand jury lies the
power to charge a greater offense or a lesser offense; numerous
counts or a single count; and perhaps most significant of all, a
capital offense or a noncapital offense -- all on the basis of the
same facts. Moreover, '[t]he grand jury is not bound to indict in
every case where a conviction can be obtained.'
United States
v. Ciambrone, 601 F.2d 616, 629 (CA2 1979) (Friendly, J.,
dissenting).
Thus, even if a grand jury's determination of
probable cause is confirmed in hindsight by a conviction on the
indicted offense, that confirmation in no way suggests that the
discrimination did not impermissibly infect the framing of the
indictment and, consequently, the nature or very existence of the
proceedings to come."
Vasquez v. Hillery, supra, at
474 U. S. 263
(emphasis added).
[
Footnote 2/3]
See also 2 W. LaFave & J. Israel, Criminal
Procedure §15.6, p. 332 (1984) ("Most federal courts . . . treat
unauthorized presence as a
per se ground for dismissal,
requiring no showing of prejudice"). Cases cited by the Solicitor
General as requiring harmless error analysis are distinguishable.
Those cases involved only brief, inadvertent interruptions of the
grand jury, during which the grand jury proceedings came to an
immediate halt,
United States v. Computer Sciences Corp.,
689 F.2d 1181, 1185-1186 (CA4 1982),
cert. denied, 459
U.S. 1105 (1983);
United States v. Kahan & Lessin Co.,
695 F.2d 1122, 1124 (CA9 1982);
United States v. Rath, 406
F.2d 757 (CA6),
cert. denied, 394 U.S. 920 (1969), or a
"fleeting" appearance in the grand jury room by a person assisting
in the movement of bulky documents,
United States v.
Condo, 741 F.2d 238, 239 (CA9 1984),
cert. denied,
469 U.S. 1164 (1985). Indeed, the Fourth Circuit panel, whose
reasoning was adopted by the en banc court, saw no inconsistency
between
Computer Sciences, supra, and the
per se
rule of the instant case. 735 F.2d 136, 139-140 (1984).
[
Footnote 2/4]
JUSTICE O'CONNOR suggests, noting the reference to 18 U.S.C. §
556 (1946 ed.) in the Advisory Committee Notes to Rule 6, that the
rulemakers intended violations of Rule 6(d) to be subject to the
harmless error rule.
Ante at
475 U. S. 75-76.
The legislative history of former § 556 does not support that view.
The section, as first enacted in 1872, provided that
"[n]o indictment . . . shall be deemed insufficient, nor shall
the trial, judgment, or other proceeding thereon be affected by
reason of any defect or imperfection
in matter of form
only, which shall not tend to the prejudice of the
defendant."
Rev.Stat. § 1025 (emphasis added). There is no indication that
this law was meant to disturb the settled law regarding
unauthorized persons in the grand jury room,
see United States
v. Edgerton, 80 F. 374 (Mont. 1897); rather, it seems likely
that the statute was directed at technical defects in the
wording of the indictment,
see, e.g., People v. St.
Clair, 56 Cal. 406 (1880) (reversing conviction because word
"larceny" in indictment was misspelled);
People v. Vice,
21 Cal. 344 (1864) (reversing conviction because indictment, while
alleging that defendant took certain property by threats and force,
failed to allege that the property did not belong to defendant).
See also supra at
475 U. S. 82.