Entries categorized "Grand Jury"

Grand Jury Nullification

Does a grand jury have the power to nullify the application of an unjust law in a particular case?  If so, must the trial court inform the grand jury of its power?  It appears not, according to a 6-5 en banc panel of the Ninth Circuit.  United States v. Navarro-Vargas, No. 02-20663 (9th Cir. May 23, 2005) (en banc).  Although the panel technically holds that a grand jury may refuse to return an indictment even "where a conviction can be obtained," slip op. at 5440-41, it allows to stand instructions that clearly tell the jury it may not judge the justness of laws. 

Here was one instruction given:

You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should or should not be a federal law designating certain activity as criminal. That is to be determined by Congress and not by you. Furthermore, when deciding whether or not to indict, you should not be concerned about punishment in the event of conviction. Judges alone determine punishment.

Slip op. at 5564 (emphasis added).  Hmm...  So a grand jury has the power to nullify, but a judge may tell the grand jury that it does not have the power to nullify.  If you don't know that you have the power to do something, does your power mean anything?

The majority opinion is tortured (as are all cases of judicial activism).  But the dissent is worth reading.  It leads:

The majority tells us that a constitutionally created institution, designed precisely to filter prosecutorial desire through citizen judgment, must give way to the unbridled exercise of prosecutorial discretion. The majority arrives at this remarkable conclusion by relying principally upon British history and the use of the grand jury in England prior to King George III. Yet the presence of the grand jury in our constitutional system is a uniquely American institution, born out of concern for unchecked government power and the experience of American colonists that led them to separate themselves from the very history the majority embraces.

Id. at 5558.  Here is another (of many) powerful point:

And herein lies the essential hypocrisy of the government's position. Standing firmly in the defense of its exercise of [prosecutorial] discretion (amounting at times to nullification), it just as firmly argues that grand jurors are without authority to make similar judgments about which laws deserve vigorous enforcement and which ones do not, in deciding whom to indict, and on what charges. In the government's eye, the grand jury is a mere instrument of prosecutorial will, a probable cause screening device obligated to act at the direction of the prosecutor and then only when the prosecutor has decided whom and how much to charge.

Id. at 5566.  You can read the full dissent here.

The Ham Sandwich Privilege

Federal prosecutors scare me half to death. Lots of power, and virutally unlimited resources, give them an edge in any fight they pick. In Connecticut, they have in recent years lauched a series of public corruption prosecutions that some times make it feel as though the United States Attorney's Office wants to run the state.

So a recent ruling by the United States Court of Appeals for the Second Circuit comes as a relief. In In Re: Grand Jury Instruction, 2nd Circuit Decision, the Circuit held that even a governor suspected of corruption is entitled to the full-benefit of the attorney-client privilege.

The facts underlying the decision are as follows. Former Gov. John G. Rowland of Connecticut was the target of a federal grand jury investigation. The Government wanted to compel his lawyer to testify before a grand jury about her communications with the governor involving gifts and the manner in which certain state contracts were approved. The governor's lawyer evoked the privilege, and the District Court ordered the lawyer to testify.

"Reason and experience dictate that, in the grand jury context, any governmental attorney-client privilege must yield because the interests served by the grand jury's fact-finding process clearly outweigh the interest served by the privilege," wrote Judge Robert N. Chatigny. Footnote: He is the same jurist who sua sponte threatened to swipe a lawyer's license in a death-penalty case because he disagreed with the manner in which the lawyer represented his client, all in the "interest of justice," of course. Chatigny-gate

Rowland has now resigned, pleaded guilty and awaits sentencing.

It turns out the Circuits are not all on the same page on this issue.  The Seventh,  Eighth and D.C. Circuits bend the privilege to the breaking point when grand juries want to question government lawyers.

It is chilling to think that any Circuit would permit piercing of the privilege in, of all places, a grand jury proceeding. Imagine. You consult your lawyer, become a target and then get a call from your counsel: "I've been summoned to a grand jury." Your secrets are then spilled before strangers in a proceeding in which you cannot even be represented.

The attorney-client privilege is an old an ancient devise recognized as a means of "promoting full and frank communication betweeren attorneys and their clients." There is no reason to limit its reach just because the client happens to be a government officer.

Whether the Second Circuit decision amounts to a split in the Circuits remains to be seen. The fact that the former governor has now entered a guilty plea may well render the issue moot.

Even so, the Supreme Court ought to take the opportunity to consider the issue. The privilege is too important to abandon at the grand jury door.  Unelected prosecutors can hide behind closed doors in a grand jury and indict all the ham sandwiches they can find. But they aren't elected officials, and they ought not to be given the power invade the privileged communications of those we actually elect.

Grand Jury Subpoenas and Self-Incrimination

When is the act of producing documents testimonial in nature?

In In re Grand Jury Subpoena (Dated April 18, 2003), 2004 WL 1945329 (9th Cir. 2004)the Ninth Circuit held that the act of producing documents may itself be testimonial in nature when "[b]y producing documents in compliance with a subpoena, the witness admits that the documents exist, are in his possession or control, and are authentic." Id. at *3.

In this case, a corporation was under investigation for violations of various anti-price fixing laws. Pursuant to a subpoena, Corporation identified John Doe as the employee responsible for the allegedly illegal pricing schemes. After someone else corroborated Corporation’s story, federal agents interviewed Doe - who then gave inculpatory statements. When the interview was over, the agents served upon doe a subpoena duces tecum, which required him to produce all items in his possession "relating to the production or sale of Dynamic Random Access Memory ("DRAM") components, including but not limited to, handwritten notes, calendars, diaries, daybooks, appointment calendars, or notepads, or any similar documents." Id. at *1.

Doe conditioned the production of the documents on a grant of immunity. Doe's argued that producing the documents would be testimonial since only he could authenticate and verify the contents of the writings. Moreover, production would itself be testimonial since the government could not actually establish that the documents existed unless Doe produced them.

After being denied his request for immunity, and after the trial court refused to quash the subpoena, Doe refused to produce the documents. The trial judge held him in contempt.

The Ninth Circuit reversed in an opinion authored by Judge Canby. Judge Canby wrote:

A witness' production of documents in response to a subpoena may have incriminating testimonial aspects. By producing documents in compliance with a subpoena, the witness admits that the documents exist, are in his possession or control, and are authentic. These types of admissions implicitly communicate statements of fact that may lead to incriminating evidence. Whether the act of production has a testimonial aspect sufficient to attract Fifth Amendment protection is a fact-intensive inquiry.
When the existence and location of the documents under subpoena are a foregone conclusion and the witness adds little or nothing to the sum total of the Government's information by conceding that he in fact has the [documents], then no Fifth Amendment right is touched because the question is not of testimony but of surrender. The government bears the burdens of production and proof on the questions of . . . possession[ ] and existence of the summoned documents. When deciding whether the government has met its burdens of production and proof, courts should look to the quantum of information possessed by the government before it issued the relevant subpoena. The relevant date on which existence and possession of the documents must be shown is the date on which the [subpoena] is served, for it is at that time that the rights and obligations of the parties become fixed.

Id. at *3.  Thus, although "[t]he goverment was not required to have actual knowledge of the existence and location of each and every responsive document," it still had to show with reasonable particularity that the documents existed. Id at *4. Allowing the government to compel the production of documents about whose existence it is not aware is to turn private citizens into unwilling "informants" against themselves. Id. at *5, fn. 2. In retrospect, the government knew that Doe was involved in some price-fixing schemes. However, the government could not establish that the defendant possessed incriminating documents.

Moreover, the subpoena required Doe to authenticate incriminating documents, thereby establishing the only evidentiary link between himself and the incriminating statements contained on the document. Requiring a defendant to authenticate incriminating documents also violates the Self-Incrimination Clause.  Judge Canby continued:

The authenticity prong of the foregone conclusion doctrine requires the government to establish that it can independently verify that the compelled documents are in fact what they purport to be. Independent verification not only requires the government to show that the documents sought to be compelled would be admissible independent of the witness' production of them, but also inquires into whether the government is compelling the witness to use his discretion in selecting and assembling the responsive documents, and thereby tacitly providing identifying information that is necessary to the government's authentication of the subpoenaed documents. Compliance with this broad language would require the witness to discriminate among documents, thereby providing identifying information that is relevant to the authenticity of the documents.


Although the government could probably authenticate the writing on Doe's handwritten documents through handwriting analysis, it made little effort to demonstrate how anyone beside Doe could sift through his handwritten notes, personal appointment books, and diaries to produce what Doe's attorney estimates may be 4,500 documents related to the production or sale of DRAM. Such a response by Doe would provide the government with the identifying information that it would need to authenticate these documents. Doe's notes to himself would be difficult, if not impossible, to authenticate by anyone besides Doe. The government's promise to authenticate the documents through an independent source, without more, does not adequately protect [the defendant's] constitutional right against selfincrimination.

Id. at *5-6.  Thus, the subpoena should have been quashed because the documents it demanded were not known to exist, and because requiring Doe to produce them would have provided an evidentiary link between Doe and the statements contained in the documents.

Grand Jury Nullification

        SAN FRANCISCO - A federal appeals court will untangle the knotty legal question of whether federal grand jurors have the power of nullification - to refuse to indict simply because they object to a law passed by Congress.       

A majority of the 26 active judges on the 9th U.S. Circuit Court of Appeals voted to reconsider a May ruling in a marijuana smuggling case, according to an order issued late Wednesday.      

In May, a divided three-judge panel refused to invalidate the standard grand jury instruction "you cannot judge the wisdom of the criminal laws enacted by Congress."      

The defense unsuccessfully argued the indictment should have been dismissed because the instruction violates the defendant's Fifth Amendment right to the unfettered judgment of grand jurors.      

At least 14 judges voted to put the question before an en banc, 11-judge panel for reconsideration.      

The original decision rejected the constitutional challenge by Steve Navarro-Vargas, who drove into the United States from Mexico through Tecate in 2002 in a car carrying 65 kilograms of marijuana, U.S. v. Navarro-Vargas, 2004 DJDAR 5337.      

Vargas pleaded guilty in 2002 and was sentenced to 21 months but with the condition he could pursue the challenge to the grand jury instructions.      

Judge Alex Kozinski, who issued a strong objection in the May decision, said, "I can find no source of authority for the district court to impose such a limitation on the grand jury. I believe the instruction constitutes an unauthorized substantive interference by the district court with the grand jury's traditional discretion."      

Kozinski argued that grand jurors act as the community's conscience.  "The grand jurors must decide whether conduct that appears to fall within the prohibitions of a particular statute does indeed merit criminal punishment," Kozinski wrote.