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U.S. v. PEREZ-BERMUNEN

United States District Court, S.D. California


September 9, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS MANUEL PEREZ-BERMUNEN, Defendant.

The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS
I.
STATEMENT OF FACTS*fn1
The government asserts that Mr. Perez-Bermunen was contacted and arrested by Agent Kevin Wies near San Ysidro, California on or about July 21, 2005 due to a seismic sensor activation. Agent Wies stopped him and interrogated Mr. Perez-Bermunen as to his immigration status and his country of citizenship. Mr. Perez-Bermunen was never advised of his Miranda rights prior to this interrogation. Mr. Perez-Bermunen was then transported to the at the Imperial Beach, California, Border Patrol Station for further processing. There, Agent Hernandez confirmed Mr. Perez-Bermunen's identity and questioned his again. Prior to this interrogation, Agent Hernandez allegedly advised Mr. Perez of his Miranda rights. Mr. Perez-Bermunen then made statements regarding his citizenship and his immigration status.

  After further record checks were performed, Mr. Perez-Bermunen was processed for prosecution under 8 U.S.C. 1326. An Indictment was filed August 5, 2005 charging Mr. Perez-Bermunen with Deported Alien Found In the United States. These motions follow.

  II.

 

MOTION TO DISMISS THE INDICTMENT DUE TO MISINSTRUCTION OF THE GRAND JURY
  Mr. Perez-Bermunen recognizes that his argument below has been rejected by an en banc court of the Ninth Circuit. See United States v. Navarro-Vargas, No. 02-50663, ___ F.3d ___ (9th Cir. May 23, 2005) (en banc). He nonetheless raises it to preserve the issue.

  Mr. Perez-Bermunen moves to dismiss the Indictment due to misinstruction of the Grand Jury. While Mr. Perez-Bermunen was indicted by the June 2005 Grand Jury, counsel has no reason to believe the instructions to the Grand Jury have changed.*fn2 Mr. Perez-Bermunen's arguments are essentially those set out in Judge Hawkins' dissent in United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002), cert. denied, 1538 U.S. 934 (2003), Judge Kozinski's dissent in United States v. Navarro-Vargas, 367 F.3d 896 (9th Cir. 2004), opinion vacated by United States v. Navarro-Vargas, 367 F.3d 920 (9th Cir. 2004), and Judge Hawkins' dissent in United States v. Navarro-Vargas, ___ F.3d ___ (9th Cir. May 23, 2005) (en banc). Mr. Perez-Bermunen incorporates those arguments by reference. However, if the Court would like further briefing on this issue, Mr. Perez-Bermunen is happy to provide it. III.

 

THIS COURT SHOULD SUPPRESS ANY STATEMENTS MADE BY MR. PEREZ-BERMUNEN
  A. The Government Must Demonstrate Compliance With Miranda.

  1. Miranda Warnings Must Precede Custodial Interrogation.

  The prosecution may not use statements, whether exculpatory or inculpatory, stemming from a custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966).*fn3 Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. See Orozco v. Texas, 394 U.S. 324, 327 (1969).

  Once a person is in custody, Miranda warnings must be given prior to any interrogation. See United States v. Estrada-Lucas, 651 F.2d 1261, 1265 (9th Cir. 1980). Those warnings must advise the defendant of each of his or her "critical" rights. United States v. Bland, 908 F.2d 471, 474 (9th Cir. 1990). If a defendant indicates that he wishes to remain silent or requests counsel, the interrogation must cease. Miranda, 384 U.S. at 474. See also Edwards v. Arizona, 451 U.S. 484 (1981).

  Here, Mr. Perez-Bermunen was in custody at the time he was interrogation by Agent Wies. Mr. Perez-Bermunen was not fee to leave when contacted by Agent Wies. The agent identified himself as a Border Patrol Agent. Mr. Perez-Bermunen was not free to leave and was in custody for the purposes of Miranda. Similarly, when he was subsequently interrogated at the checkpoint, Mr. Perez-Bermunen was not free to leave. The Government cannot show that Mr. Perez-Bermunen had received valid Miranda warnings from Agent Hernandez. Thus, all statements made by Mr. Perez-Bermunen should be suppressed at trial. 2. The Government Must Demonstrate That Any Alleged Waiver of Mr. Perez-Bermunen's Rights Was Voluntary, Knowing, and Intelligent.

  When interrogation occurs without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant intelligently and voluntarily waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda, 384 U.S. at 475. It is undisputed that, to be effective, a waiver of the right to remain silent and the right to counsel must be made knowingly, intelligently, and voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The standard of proof for a waiver of these constitutional rights is high. Miranda, 384 U.S. at 475. See United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984) (the burden on the government is great, the court must indulge every reasonable presumption against waiver of fundamental constitutional rights).

  The validity of the waiver depends upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. 477, 472 (1981); Johnson v. Zerbst, 304 U.S. 458, 464 (1983). See also United States v. Heldt, 745 F.2d at 1277; United States v. McCrary, 643 F.2d 323, 328-29 (9th Cir. 1981).

  In Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990), the Ninth Circuit confirmed that the issue of the validity of a Miranda waiver requires a two prong analysis: the waiver must be both (1) voluntary, and (2) knowing and intelligent. Id. at 820. The voluntariness prong of this analysis "is equivalent to the voluntariness inquiry under the [Fifth] Amendment. . . ." Id. See infra pages 10-11.

  The second prong, however, requiring that the waiver be "knowing and intelligent," mandates an inquiry into whether "the waiver [was] made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." Id. at 820-21 (quoting Colorado v. Spring, 479 U.S. 564, 573 (1987)). This inquiry requires that the court determine whether "the requisite level of comprehension" existed before the purported waiver may be upheld. Id. Thus, "[o]nly if the `totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Id. (quoting Colorado v. Spring, 479 U.S. at 573) (emphasis in original) (citations omitted)).

  Under prevailing Ninth Circuit law, the Government bears the burden of demonstrating a Miranda waiver by clear and convincing evidence. See Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc) (constitutional rights may ordinarily be waived only if it can be established by clear and convincing evidence that the waiver is voluntary, knowing, and intelligent) (citations omitted). Moreover, this Court must "indulge every reasonable presumption against waiver of fundamental constitutional rights." Id. (citations omitted). Unless and until the prosecution meets its burden of demonstrating through evidence that adequate Miranda warnings were given and that the defendant knowingly and intelligently waived his rights, no evidence obtained as result of the interrogation can be used against the defendant. Miranda, 384 U.S. at 479.

  Until the government meets its evidentiary burden of showing that the Miranda warnings were sufficient or that the Miranda rights were knowingly or intelligently waived, the statements must be suppressed.

  3. Local Rule Requiring Declaration Is Unconstitutional.

  "Congress may not legislatively supercede [the Supreme Court's] decisions interpreting and applying the Constitution." Dickerson v. United States, 530 U.S. 428, 437 (2000). Since Miranda rests on a constitutional foundation, id. at 438, no law or local court rule can constitutionally relieve the government of its burden to prove Mr. Perez-Bermunen voluntarily waived the Miranda protections. See id. In light of the Supreme Court's decision in Dickerson, this Court's burden-shifting Criminal Local Rule 47.1.g. — which requires that a defendant submit a declaration in support of his or her motion — is unconstitutional and therefore unenforceable.

  B. Any Statements by Mr. Perez-Bermunen Were Involuntary.

  Even when the procedural safeguards of Miranda have been satisfied, a defendant in a criminal case is deprived of due process of law if the conviction is founded upon an involuntary confession. Arizona v. Fulminante, 499 U.S. 279 (1991); Jackson v. Denno, 378 U.S. 368, 387 (1964). The government bears the burden of proving by a preponderance of the evidence that a confession is voluntary. Lego v. Twomey, 404 U.S. 477, 483 (1972).

  In order to be voluntary, a statement must be the product of a rational intellect and free will. Blackburn v. Alabama, 361 U.S. 199, 208 (1960). In determining whether a defendant's will was overborne in a particular case, the totality of the circumstances must be considered. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Some factors taken into account have included the youth of the accused, his lack of education, his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of the detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep. Id.

  A confession is deemed involuntary whether coerced by physical intimidation or psychological pressure. Townsend v. Sain, 372 U.S. 293, 307 (1962). "The test is whether the confession was `extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.'" Hutto v. Ross, 429 U.S. 28, 30 (1976) (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). Accord, United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981).

  Until the government meets its burden of showing all statements of the defendant that it intends to use at trial were voluntary, all statements — even those taken before he was in "custody" — must be suppressed as involuntary.

  C. Mr. Perez-Bermunen Requests That This Court Conduct An Evidentiary Hearing.

  This Court must make a factual determination as to whether a statement was voluntarily given prior to its admission into evidence. 18 U.S.C. § 3501(a). Where a factual determination is required, courts are obligated by Fed.R.Crim.P. 12 to make factual findings. See United States v. Prieto-Villa, 910 F.2d 601, 606-10 (9th Cir. 1990). Because "`suppression hearings are often as important as the trial itself,'" id. at 609-10 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these findings should be supported by evidence, not merely an unsubstantiated recitation of purported evidence in a prosecutor's responsive pleading.

  Under section 3501(b), this Court must consider various enumerated factors in making the voluntariness determination, including whether the defendant understood the nature of the charges against his and whether she understood his rights. Without the presentation of evidence, this Court cannot adequately consider these statutorily mandated factors. Mr. Perez-Bermunen accordingly requests that this Court conduct an evidentiary hearing pursuant to 18 U.S.C. § 3501(a), to determine, outside the presence of the jury, whether any and all statements made by him were voluntary.

  IV.

  MOTION TO COMPEL DISCOVERY

  This request for discovery is not limited to those items that the prosecutor knows of, but rather includes all discovery listed below that is in the custody, control, care, or knowledge of any "closely related investigative [or other] agencies" under United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989): (1) Mr. Perez-Bermunen's Statements. The government must disclose: (1) copies of any written or recorded statements made by Mr. Perez-Bermunen; (2) copies of any written record containing the substance of any statements made by Mr. Perez-Bermunen; and (3) the substance of any statements made by Mr. Perez-Bermunen that the government intends to use, for any purpose, at trial. See Fed.R.Crim.P. 16(a)(1)(A). This request specifically includes a copy of any video or audio taped statement of Mr. Perez-Bermunen and any rough notes inspectors took of his statements.

  (2) Mr. Perez-Bermunen's Prior Record. Mr. Perez-Bermunen requests disclosure of his prior record, if any exists. This includes Mr. Perez-Bermunen's record of contacts with the United States Border Patrol and/or the Immigration and Naturalization Service, even if those contacts did not result in prosecution. See Fed.R.Crim.P. 16(a)(1)(B).

  (3) Arrest Reports, Notes and Dispatch Tapes. Mr. Perez-Bermunen also specifically requests the government to turn over all arrest reports, notes, dispatch or any other tapes that relate to the circumstances surrounding his arrest or any questioning. This request includes, but it is not limited to, any rough notes, photographs, records, reports, transcripts or other discoverable material. Fed.R.Crim.P. 16(a)(1)(A); Brady v. Maryland, 373 U.S. 83 (1983). The government must produce arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining to the defendant. Fed.R.Crim.P. 16(a)(1)(B) and (c); Fed.R.Crim.P. 26.2 and 12(i).

  (4) Documents and Tangible Objects. Mr. Perez-Bermunen requests the opportunity to inspect, copy, and photograph all documents and tangible objects which are material to the defense or intended for use in the government's case-in-chief or were obtained from or belong to him. See Fed.R.Crim.P. 16(a)(1)(c). This request specifically includes Mr. Perez-Bermunen's A-file and any existing deportation tapes.

  (5) Reports of Scientific Tests or Examinations. Mr. Perez-Bermunen requests the reports of all tests and examinations which are material to the preparation of the defense or are intended for use by the government at trial. See Fed.R.Crim.P. 16(a)(1)(D).

  (6) Expert Witnesses. Mr. Perez-Bermunen requests the name and qualifications of any person that the government intends to call as an expert witness. See Fed.R.Crim.P. 16(a)(1)(E). In addition, Mr. Perez-Bermunen requests written summaries describing the bases and reasons for the expert's opinions. See id. Mr. Perez-Bermunen requests that the Court order the government to notify the defense as such in a timely manner, so that a proper 104 (Kumho-Daubert) admissibility hearing can be conducted without unduly delaying the trial.

  (7) Brady Material. Mr. Perez-Bermunen requests all documents, statements, agents' reports, and tangible evidence favorable to the defendant on the issue of guilt or punishment. See Brady v. Maryland, 373 U.S. 83 (1963). In addition, impeachment evidence falls within the definition of evidence favorable to the accused, and therefore Mr. Perez-Bermunen requests disclosure of any impeachment evidence concerning any of the government's potential witnesses, including prior convictions and other evidence of criminal conduct. See United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). In addition, Mr. Perez-Bermunen requests any evidence tending to show that a prospective government witness: (i) is biased or prejudiced against the defendant; (ii) has a motive to falsify or distort his or her testimony; (iii) is unable to perceive, remember, communicate, or tell the truth; or (iv) has used narcotics or other controlled substances, or has been an alcoholic.

  (8) Request for Preservation of Evidence. Mr. Perez-Bermunen specifically requests the preservation of all physical or documentary evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of the government and that relate to the arrest or the events leading to the arrest in this case. Specifically all information regarding both the intrusion alarm and intrusion device including but not limited to the workings of the device, any calibration procedures, location of device and footprints found on the device.

  (9) Any Proposed 404(b) Evidence. "[U]pon request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature" of any evidence the government proposes to introduce under Rule 404(b). Fed.R.Evid. 404(b). Mr. Perez-Bermunen requests such notice three weeks before trial in order to allow for adequate trial preparation.

  (10) Witness Addresses. Mr. Perez-Bermunen's counsel requests access to the government's witnesses. Thus, counsel requests a witness list and contact phone numbers for each prospective government witness. Counsel also requests the names and contact numbers for witnesses to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will not be called as government witnesses.

  (11) Jencks Act Material. Mr. Perez-Bermunen requests production in advance of trial of all material discoverable pursuant to the Jencks Act, 18 U.S.C. § 3500. Advance production will avoid needless delays at pretrial hearings and at trial. This request includes any "rough" notes taken by the agents in this case; these notes must be produced pursuant to 18 U.S.C. § 3500(e)(1). This request also includes production of transcripts of the testimony of any witness before the grand jury. See 18 U.S.C. § 3500(e)(3).

  (11a) Original I-213s, G-166s, and 1215Bs. Mr. Perez-Bermunen requests that these reports be produced.

  (12) Informants and Cooperating Witnesses. Mr. Perez-Bermunen requests disclosure of the name(s), address(es), and location(s) of all informants or cooperating witnesses used or to be used in this case, and in particular, disclosure of any informant who was a percipient witness in this case or otherwise participated in the crime charged against Mr. Perez-Bermunen. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). The government must disclose any information derived from informants which exculpates or tends to exculpate Mr. Perez-Bermunen. Brady v. Maryland, 373 U.S. 83 (1963). The government must disclose any information indicating bias on the part of any informant or cooperating witness. Id.

  (13) Residual Request. Mr. Perez-Bermunen intends by this discovery motion to invoke his rights to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution and laws of the United States.

  V.

  THIS COURT SHOULD ORDER PRESERVATION OF EVIDENCE.

  Defendant requests the preservation of all physical evidence in this case. This includes any evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of the government (or its private contractors) in this case. United States v. Riley, 189 F.3d 802, 806-808 (9th Cir. 1999). This request includes, but is not limited to: (1) the results of any fingerprint analysis; (2) the defendant's personal effects; (3) the agents' rough notes; (4) any radio broadcast, if it is recorded; and (5) any evidence seized from the defendant or any third party (i.e., material witnesses, co-defendants). This request also includes any material or percipient witnesses who might be deported or otherwise likely to become unavailable (e.g. undocumented aliens and transients). Defendant requests that government counsel be ordered to notify the agencies and private contractors with custody of such evidence be informed of the Court's preservation order. VI.

  MOTION FOR LEAVE TO FILE ADDITIONAL MOTIONS

  Defense counsel has received 47 pages of discovery in this case, but has not been allowed to examine the A-file, nor has defense counsel been provided a copy of any deportation tapes. As information comes to light, due to the government providing additional discovery in response to these motions or an order of this Court, the defense may find it necessary to file further motions. It is, therefore, requested that defense counsel be allowed the opportunity to file further motions based upon information gained through the discovery process.

  VII.

  CONCLUSION

  For the foregoing reasons, Mr. Perez-Bermunen respectfully requests that this Court grant these motions.

  EXHIBIT A

  UNITED STATES DISTRICT COURT

  SOUTHERN DISTRICT OF CALIFORNIA

 IN RE: THE IMPANELMENT ) ) OF GRAND JURY PANELS 04-1 AND ) ) 04-2 ) )

  BEFORE THE HONORABLE LARRY ALAN BURNS

  UNITED STATES DISTRICT JUDGE

  REPORTER'S PARTIAL TRANSCRIPT OF PROCEEDINGS

  THURSDAY, JULY 8, 2004

 

OFFICIAL COURT REPORTER: EVA OEMICK UNITED STATES COURTHOUSE 940 FRONT STREET, STE. 2190 TEL: (619) 615-3103
RECORD PRODUCED BY STENOGRAPHIC REPORTER
SAN DIEGO, CALIFORNIA — THURSDAY, JULY 8, 2004
(FOLLOWING IS A PARTIAL TRANSCRIPT OF THE PROCEEDINGS.)
  THE COURT: LADIES AND GENTLEMEN, IF YOU'LL STAND ONE MORE TIME AND RAISE YOUR RIGHT HAND, PLEASE.

  MR. HAMRICK: DO YOU, AND EACH OF YOU, SOLEMNLY SWEAR OR AFFIRM THAT YOU SHALL DILIGENTLY INQUIRE INTO AND MAKE TRUE PRESENTMENT OR INDICTMENT OF ALL MATTERS AND THINGS AS SHALL BE GIVEN TO YOU IN CHARGE OR OTHERWISE COME TO YOUR KNOWLEDGE, TOUCHING YOUR GRAND JURY SERVICE; TO KEEP SECRET THE COUNSEL OF THE UNITED STATES, YOUR FELLOWS AND YOURSELVES; NOT TO PRESENT OR INDICT ANY PERSON THROUGH HATRED, MALICE OR ILL WILL; NOR LEAVE ANY PERSON UNPRESENTED OR UNINDICTED THROUGH FEAR, FAVOR, OR AFFECTION, NOR FOR ANY REWARD, OR HOPE OR PROMISE THEREOF; BUT IN ALL YOUR PRESENTMENTS AND INDICTMENTS TO PRESENT THE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH, TO THE BEST OF YOUR SKILL AND UNDERSTANDING?

  IF SO, ANSWER, "I DO".

  THE COURT: EVERYONE INDICATES IN THE AFFIRMATIVE. HAVE A SEAT, PLEASE.

  AT THIS POINT I AM GOING TO GIVE YOU FURTHER INSTRUCTION ON THE RESPONSIBILITY THAT YOU'LL HAVE AS GRAND JURORS AND THE FUNCTION OF THE GRAND JURY.

  NOW THAT YOU HAVE BEEN EMPANELED AND SWORN AS GRAND JURY, IT IS THE COURT'S RESPONSIBILITY TO INSTRUCT YOU ON THE LAW WHICH WILL GOVERN YOUR ACTIONS AND YOUR DELIBERATIONS AS GRAND JURORS.

  THE FRAMERS OF OUR FEDERAL CONSTITUTION DEEMED THE GRAND JURY IS SO IMPORTANT FOR THE ADMINISTRATION OF JUSTICE THAT THEY INCLUDED IT IN THE BILL OF RIGHTS. AS I SAID BEFORE, THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION PROVIDES, IN PART, THAT NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL OR OTHERWISE INFAMOUS CRIME WITHOUT ACTION BY A GRAND JURY.

  THIS IS, IN FACT, A RESTATEMENT OF WHAT I TOLD YOU THAT FOR SERIOUS OFFENSES BEFORE THOSE CAN COME BEFORE A JURY, A TRIAL JURY, A GRAND JURY IN FEDERAL COURT, CONSISTING OF CITIZENS DRAWN AT RANDOM FROM THE COMMUNITY, MUST PASS ON THE ACCUSATION ITSELF AND FORWARD IT TO TRIAL.

  AN INFAMOUS CRIME IS A SERIOUS CRIME WHICH MAY BE PUNISHED BY IMPRISONMENT BY MORE THAN ONE YEAR. NOW, YOU MIGHT SAY, WHAT ABOUT THOSE CRIMES THAT AREN'T PUNISHABLE BY A YEAR. IN FEDERAL COURT THOSE CRIMES THAT ARE NOT PUNISHABLE BY MORE THAN A YEAR IN JAIL, THE LAW LEAVES IT TO THE DISCRETION OF THE U.S. ATTORNEY TO CHARGE THOSE. IT IS LIKE THE DISTINCTION IN STATE COURT BETWEEN MISDEMEANOR AND FELONIES, WHERE MISDEMEANORS DO NOT REQUIRE A PRELIMINARY HEARING BUT FELONIES DO.

  THE PURPOSE OF THE GRAND JURY IS TO DETERMINE WHETHER THERE IS SUFFICIENT EVIDENCE TO JUSTIFY A FORMAL ACCUSATION AGAINST A PERSON.

  IF LAW ENFORCEMENT OFFICIALS WERE NOT REQUIRED TO SUBMIT TO AN IMPARTIAL GRAND JURY PROOF OF GUILT AS TO THE PROPOSED CHARGE AGAINST A PERSON SUSPECTED OF HAVING COMMITTED A CRIME, THEN THEY WOULD BE FREE TO ARREST AND BRING TO TRIAL A SUSPECT NO MATTER HOW LITTLE EVIDENCE EXISTED TO SUPPORT THE CHARGE.

  AS MEMBERS OF THE GRAND JURY, YOU, IN A VERY REAL SENSE, STAND BETWEEN THE GOVERNMENT AND THE ACCUSED. IT IS YOUR DUTY TO SEE THAT INDICTMENTS ARE RETURNED ONLY AGAINST THOSE WHOM YOU FIND PROBABLE CAUSE TO BELIEVE ARE GUILTY AND TO SEE TO IT THAT THE INNOCENT ARE NOT COMPELLED TO GO TO TRIAL.

  IF A MEMBER OF THE GRAND JURY IS RELATED BY BLOOD OR MARRIAGE OR KNOWS OR SOCIALIZES TO SUCH AN EXTENT AS TO FIND HIMSELF OR HERSELF IN A BIASED STATE OF MIND AS TO THE PERSON UNDER INVESTIGATION, OR ALTERNATIVELY, YOU FIND YOURSELF BIASED FOR ANY REASON, THEN THAT MEMBER SHOULD NOT PARTICIPATE IN THAT INVESTIGATION OR IN THE RETURN OF THE INDICTMENT.

  YOU SHOULD INDICATE TO THE FOREPERSON OF THE GRAND JURY FOR WHATEVER REASON YOU WANT TO BE EXCUSED FROM GRAND JURY DELIBERATIONS OR CONSIDERATION OF THAT PARTICULAR MATTER ON WHICH YOU FEEL YOU FIND YOU ARE BIASED.

  THIS DOES NOT MEAN THAT IF YOU HAVE AN OPPORTUNITY YOU SHOULD NOT PARTICIPATE IN THE INVESTIGATION. HOWEVER, IT DOES MEAN THAT IF YOU HAVE A FIXED STATE OF MIND BEFORE YOU HEAR ANY EVIDENCE, EITHER ON A BASIS OF A FRIENDSHIP OR BECAUSE YOU HATE SOMEBODY OR SOME SIMILAR MOTIVATION, THEN YOU SHOULD NOT PARTICIPATE IN THAT INVESTIGATION AND IN VOTING ON THE INDICTMENT.

  THIS IS WHAT I MEANT WHEN I TALKED TO YOU ABOUT BEING FAIR-MINDED. ALTHOUGH AS GRAND JURY YOU HAVE EXTENSIVE POWERS, THEY ARE LIMITED IN SEVERAL IMPORTANT RESPECTS.

  FIRST, YOU CAN ONLY INVESTIGATE CONDUCT THAT VIOLATES THE FEDERAL CRIMINAL LAWS. YOU ARE A FEDERAL GRAND JURY. CRIMINAL ACTIVITY WHICH VIOLATES STATE LAW IS OUTSIDE OF YOUR INQUIRY. SOMETIMES, THE SAME CONDUCT THAT IS UNDER INVESTIGATION MAY VIOLATE BOTH FEDERAL AND STATE LAW, AND THIS YOU MAY PROPERLY CONSIDER.

  THERE IS ALSO A GEOGRAPHIC LIMITATION ON THE SCOPE OF YOUR INQUIRIES IN THE EXERCISE OF YOUR POWER. YOU MAY INQUIRE ONLY AS TO FEDERAL OFFENSES COMMITTED IN THIS DISTRICT; THAT IS, THE SOUTHERN DISTRICT OF CALIFORNIA. OUR DISTRICT INCLUDES THE COUNTY OF SAN DIEGO AND IMPERIAL.

  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 IS NOT UP TO YOU. THAT'S A JUDGMENT MADE BY CONGRESS.

  IF YOU DISAGREE WITH THAT JUDGMENT, THEN THE WAY TO CHANGE THAT IS TO CONTACT YOUR CONGRESSMAN OR ADVOCATE FOR A CHANGE IN THE LAWS, BUT NOT TO BRING YOUR PERSONAL DEFINITION AND TRY TO IMPOSE THAT CHANGE THROUGH APPLYING THE LAWS THAT THE GRAND JURY IS PRESENTED WITH.

  FURTHERMORE, WHEN DECIDING WHETHER OR NOT TO INDICT, YOU SHOULD NOT BE CONCERNED ABOUT THE PUNISHMENT THAT ATTACHES TO THE CHARGE IN THE EVENT OF CONVICTION. JUDGES ALONE DETERMINE PUNISHMENT.

  THE CASES WHICH YOU WILL HEAR WILL COME BEFORE YOU IN VARIOUS WAYS. FREQUENTLY, SUSPECTS ARE ARRESTED DURING OR SHORTLY AFTER THE COMMISSION OF AN ALLEGED CRIME, AND THEY ARE TAKEN BEFORE A MAGISTRATE JUDGE, WHO THEN HOLDS A PRELIMINARY HEARING TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE THE PERSON HAS COMMITTED A CRIME.

  ONCE THE MAGISTRATE JUDGE FINDS PROBABLE CAUSE, HE OR SHE WILL DIRECT THAT THE ACCUSED BE HELD FOR ACTION BY THE GRAND JURY. REMEMBER, UNDER OUR SYSTEM HERE IN FEDERAL COURT AND THE FIFTH AMENDMENT, TRIALS ON SERIOUS OR INFAMOUS CRIMES CAN ONLY PROCEED WITH GRAND JURY ACTION. IT IS AT THAT POINT THAT YOU'LL CONSIDER WHETHER THERE SHOULD BE AN INDICTMENT.

  OTHER CASES MAY BE BROUGHT TO YOU BY THE UNITED STATES ATTORNEY OR ASSISTANT UNITED STATES ATTORNEY BEFORE AN ARREST BUT AFTER AN INVESTIGATION HAS BEEN CONDUCTED BY A GOVERNMENTAL AGENCY SUCH AS THE F.B.I., THE TREASURY DEPARTMENT OR DRUG ENFORCEMENT ADMINISTRATION. SOMETIMES IT'S THE POSTAL INSPECTORS OR COULD BE ANY OTHER FEDERAL LAW ENFORCEMENT OFFICIALS.

  THOSE ARE THE TWO PRINCIPAL MANNERS IN WHICH MATTERS WILL BE PRESENTED TO YOU FIRST FOR INVESTIGATION. HOWEVER, IF DURING THE COURSE OF YOUR HEARINGS, A DIFFERENT CRIME OTHER THAN THE ONE YOU ARE INVESTIGATING SURFACES, YOU AS GRAND JURORS HAVE THE RIGHT TO PURSUE THIS NEW CRIME THAT YOU INVESTIGATED. ALTHOUGH NEW WITNESSES AND DOCUMENTS MAY BE SUBPOENAED, YOU HAVE NO POWER TO EMPLOY INVESTIGATORS OR TO EXPEND FEDERAL FUNDS FOR INVESTIGATIVE PURPOSES.

  IF THE UNITED STATES ATTORNEY REFUSES TO ASSIST YOU OR IF YOU BELIEVE THAT THE ATTORNEY IS NOT ACTING IMPARTIALLY, YOU MAY TAKE IT UP WITH ME OR WITH ANY JUDGE OF THE COURT. YOU MAY USE THIS POWER EVEN OVER THE ACTIVE OPPOSITION OF THE GOVERNMENT'S ATTORNEYS, IF YOU BELIEVE IT IS NECESSARY TO DO SO IN THE INTEREST OF JUSTICE.

  SO THIS IS YOUR INVESTIGATORY FUNCTION. IF YOU BELIEVE THE INVESTIGATION OUGHT TO GO INTO OTHER AREAS THAT ARE AUTHORIZED, BOTH IN TERMS OF THE SUBJECT MATTER BEING A FEDERAL CRIME AND GEOGRAPHICALLY, THEN YOU AS A GROUP CAN MAKE THAT DETERMINATION AND DIRECT THE INVESTIGATION IN THAT WAY.

  SINCE THE UNITED STATES ATTORNEY HAS THE DUTY OF PROSECUTING PERSONS CHARGED WITH THE COMMISSION OF FEDERAL CRIMES, SHE OR ONE OF HER ASSISTANTS — AND BY THE WAY, THE UNITED STATES ATTORNEY IN THIS DISTRICT IS CAROL LAM — SHE OR ONE OF HER ASSISTANTS WILL PRESENT THE MATTERS WHICH THE GOVERNMENT DESIRES TO HAVE YOU CONSIDER.

  THE ATTORNEY WILL POINT OUT TO YOU THE LAWS WHICH THE GOVERNMENT BELIEVES HAVE BEEN VIOLATED. THE ATTORNEY WILL SUBPOENA FOR TESTIMONY BEFORE YOU SUCH WITNESSES AS THE ATTORNEY MAY CONSIDER IMPORTANT AND NECESSARY AND ALSO ANY OTHER WITNESSES THAT YOU MAY REQUEST THE ATTORNEY TO CALL BEFORE YOU.

  NOW, REMEMBER, THE DIFFERENCE IS THAT THIS IS NOT A FULL-BLOWN TRIAL. SO IN MOST CASES THE LAWYER FOR THE GOVERNMENT IS NOT GOING TO BE BRINGING EVERYBODY IN THAT MIGHT BE BROUGHT IN AT THE TIME OF TRIAL. NOT EVERYONE CONCEIVABLY COULD SAY SOMETHING RELEVANT. THEY ARE PROBABLY GOING TO BRING IN A LIMITED NUMBER OF WITNESSES JUST TO ESTABLISH WHAT THEY BELIEVE IS NECESSARY TO MAKE OUT PROBABLE CAUSE.

   SIXTEEN OF THE TWENTY-THREE MEMBERS OF THE GRAND JURY CONSTITUTE A QUORUM AND MUST BE PRESENT FOR THE TRANSACTION OF ANY BUSINESS. IF FEWER THAN THIS NUMBER ARE PRESENT, EVEN FOR A MOMENT, THE PROCEEDINGS OF THE GRAND JURY MUST STOP.

   IN OTHER WORDS, WHENEVER YOU ARE IN ACTIVE SESSION, YOU MUST HAVE AT LEAST SIXTEEN MEMBERS PRESENT LISTENING AND CONSIDERING THE EVIDENCE.

   THE EVIDENCE THAT YOU WILL CONSIDER WILL NORMALLY CONSIST OF TESTIMONY OF WITNESSES AND WRITTEN DOCUMENTS. EACH WITNESS WILL APPEAR BEFORE YOU SEPARATELY. WHEN THE WITNESS FIRST APPEARS BEFORE YOU, THE GRAND JURY FOREPERSON WILL ADMINISTER THE WITNESS AN OATH, OR, WHEN NECESSARY, AN AFFIRMATION, TO TESTIFY TRUTHFULLY. AFTER THIS HAS BEEN ACCOMPLISHED, THE WITNESS MAY BE QUESTIONED.

   ORDINARILY, THE U.S. ATTORNEY OR HER ASSISTANT WILL QUESTION THE WITNESS FIRST. NEXT, THE FOREPERSON MAY QUESTION THE WITNESS, AND THEN OTHER MEMBERS OF THE GRAND JURY MAY ALSO ASK QUESTIONS.

   IN THE EVENT A WITNESS DOES NOT SPEAK OR UNDERSTAND ENGLISH, THEN AN INTERPRETER WILL BE BROUGHT INTO THE GRAND JURY ROOM TO ASSIST WITH THE QUESTIONING. WHEN WITNESSES DO APPEAR BEFORE THE GRAND JURY, THEY SHOULD BE TREATED COURTEOUSLY, AND QUESTIONS SHOULD BE PUT TO THEM IN AN ORDERLY FASHION. IF YOU HAVE ANY DOUBT WHETHER IT IS PROPER TO ASK A PARTICULAR QUESTION, YOU CAN ASK THE ASSISTANT UNITED STATES ATTORNEY WHO IS ASSISTING WITH THE INVESTIGATION FOR ADVICE ON THIS MATTER.

   YOU ALONE AS GRAND JURORS DECIDE HOW MANY WITNESSES YOU WANT TO HEAR. WITNESSES MAY BE SUBPOENAED FROM ANYWHERE IN THE COUNTRY. THERE IS NATIONWIDE JURISDICTION THAT THE GRAND JURY HAS. HOWEVER, PERSONS SHOULD NOT ORDINARILY BE SUBJECTED TO DISRUPTION OF THEIR DAILY LIVES. THEY SHOULDN'T BE HARASSED, ANNOYED, OR INCONVENIENCED, NOR SHOULD PUBLIC FUNDS BE EXPENDED TO BRING WITNESSES IN UNLESS YOU BELIEVE THAT THE WITNESSES CAN PROVIDE MEANINGFUL EVIDENCE WHICH WILL ASSIST YOU IN YOUR INVESTIGATION.

   ALL WITNESSES WHO ARE CALLED BEFORE THE GRAND JURY HAVE CERTAIN RIGHTS. THESE INCLUDE THE RIGHT TO REFUSE TO ANSWER QUESTIONS IF THE ANSWER TO THE QUESTIONS WOULD TEND TO INCRIMINATE THEM, AND THE RIGHT TO KNOW THAT ANYTHING THEY SAY MAY BE USED AGAINST THEM.

   IF A WITNESS EXERCISES THE RIGHT AGAINST COMPULSORY SELF-INCRIMINATION, THEN THE GRAND JURY SHOULD HOLD NO PREJUDICE AGAINST THAT WITNESS. AND THIS CAN PLAY NO PART IN THE RETURN OF ANY INDICTMENT AGAINST THE WITNESS.

   IT IS AN UNCOMMON SITUATION, I THINK, THAT YOU'LL FACE WHEN SOMEBODY DOES CLAIM THE PRIVILEGE AGAINST SELF-INCRIMINATION. USUALLY, WHEN THAT HAPPENS, THE U.S. ATTORNEY IS PUT ON NOTICE OF THAT BEFOREHAND, EITHER BY THE PERSON OR PERHAPS A LAWYER FOR THE PERSON, AND IN MY EXPERIENCE, MOST OF THE TIME THE U.S. ATTORNEY WILL NOT THEN CALL THE PERSON IN FRONT OF IT, BECAUSE IT IS TO NO EFFECT. YOU CAN'T CONSIDER IT AT ALL IN YOUR DELIBERATIONS.

   ALTHOUGH WITNESSES ARE NOT PERMITTED TO HAVE A LAWYER PRESENT WITH THEM IN THE GRAND JURY ROOM, THE LAW DOES PERMIT A WITNESS SUMMONED BEFORE THE GRAND JURY TO CONFER WITH HIS OR HER LAWYER OUTSIDE THE GRAND JURY ROOM. SINCE AN APPEARANCE BEFORE THE GRAND JURY MAY PRESENT COMPLEX LEGAL PROBLEMS REQUIRING THE ASSISTANCE OF A LAWYER, YOU ARE ALSO NOT TO DRAW ANY ADVERSE INFERENCE IF A WITNESS ASKS TO SPEAK TO HIS LAWYER OR HER LAWYER AND LEAVES THE GRAND JURY ROOM FOR THAT PURPOSE TO CONFER WITH THE LAWYER.

   ORDINARILY, NEITHER THE ACCUSED NOR ANY WITNESS IN THE ACCUSED'S BEHALF WILL TESTIFY IN FRONT OF THE GRAND JURY. BUT UPON AN ACCUSED'S REQUEST, PREFERABLY IN WRITING, YOU MAY AFFORD THE ACCUSED AN OPPORTUNITY TO APPEAR IN FRONT OF YOU. BECAUSE THE APPEARANCE OF AN ACCUSED BEFORE YOU MAY RAISE COMPLICATED LEGAL PROBLEMS, YOU SHOULD SEEK THE UNITED STATES ATTORNEY'S ADVICE AND, IF NECESSARY, THE COURT'S RULING BEFORE SUCH AN EXPERIENCE IS PERMITTED. BEFORE ANY ACCUSED PERSONS TESTIFY, THEY MUST BE ADVISED OF THEIR RIGHTS. YOU SHOULD BE COMPLETELY SATISFIED THAT THEY UNDERSTAND WHAT THEY ARE DOING. YOU ARE NOT REQUIRED TO SUMMON WITNESSES WHICH AN ACCUSED PERSON MAY WISH TO HAVE EXAMINED UNLESS PROBABLE CAUSE FOR AN INDICTMENT MAY BE EXPLAINED AWAY BY THE TESTIMONY OF OTHER WITNESSES.

   THE DETERMINATION OF WHETHER A WITNESS IS TELLING THE TRUTH IS SOMETHING FOR YOU TO DECIDE. NEITHER THE COURT NOR THE PROSECUTORS NOR ANY OFFICERS OF THE COURT MAY MAKE THAT DETERMINATION FOR YOU. THIS IS THE EXCLUSIVE PROVINCE OF YOU AS GRAND JURORS.

   FINALLY, LET ME TELL YOU THIS. THERE IS ANOTHER DIFFERENCE BETWEEN TRIAL COURT PROCEDURE AND GRAND JURY PROCEDURE.

   HEARSAY TESTIMONY, THAT IS, TESTIMONY AS TO FACTS NOT PERSONALLY KNOWN BY THE WITNESS AND WHICH HAS BEEN TOLD OR RELATED TO THE WITNESS BY PERSONS OTHER THAN THE ACCUSED, MAY BY ITSELF BE DEEMED PERSUASIVE AND PROVIDE A BASIS FOR RETURNING AN INDICTMENT AGAINST AN ACCUSED.

   WHAT THAT MEANS IS THAT THE RULES THAT APPLY THAT THE CASES THAT GO TO TRIAL, ALL OF US HAVE HEARD ABOUT THE HEARSAY RULE. GENERALLY, IT'S RELATING SOMETHING THAT THEY WERE TOLD OUTSIDE OF COURT. THAT WOULD BE A RULE THAT DOES APPLY IN TRIAL PROCEEDINGS, BUT IT DOES NOT APPLY DURING GRAND JURY PROCEEDINGS.

   GRAND JURIES ARE SPECIFICALLY AUTHORIZED TO HEAR AND CONSIDER AND TO RELY ON HEARSAY EVIDENCE. AND, IN FACT, IN MANY OF THE CASES THAT YOU'LL HEAR, IN MY EXPERIENCE, THAT THE GOVERNMENT WILL CALL A SUMMARY WITNESS. THEY'LL CALL SOMEBODY THAT HAS READ REPORTS OR HAS TALKED TO THE PEOPLE THAT WERE HISTORICALLY INVOLVED IN THE INVESTIGATION, AND THEY WILL TELL YOU WHAT THOSE OTHER PEOPLE HAVE SAID AND WHAT THE RESULT OF THEIR INVESTIGATION HAS BEEN.

   YOU MAY, IF YOU CHOOSE, RELY ON THAT EVIDENCE. IT IS A FORBIDDEN PROCEDURE IN THE GRAND JURY.

   AFTER YOU HAVE HEARD ALL THE EVIDENCE YOU WANT TO HEAR IN A PARTICULAR MATTER, YOU WILL THEN PROCEED TO DELIBERATE AS TO WHETHER THE ACCUSED SHOULD BE INDICTED.

   NO ONE OTHER THAN YOUR OWN MEMBERS IS TO BE PRESENT IN THE GRAND JURY CHAMBER WHILE YOU ARE DELIBERATING OR VOTING. YOU HEARD ME EXPLAIN EARLIER THAT AT VARIOUS TIMES DURING THE PRESENTATION OF MATTERS BEFORE YOU, THERE MAY BE OTHER PEOPLE THERE: THE ASSISTANT UNITED STATES ATTORNEY, CERTAINLY THE WITNESS THAT'S CALLED. THE COURT REPORTER WILL BE THERE. BUT WHEN IT COMES TIME TO DELIBERATE AND VOTE, THOSE PEOPLE WILL LEAVE THE ROOM AND ONLY THOSE OF YOU WHO ARE SWORN MEMBERS OF THE GRAND JURY MAY BE PRESENT FOR THE DELIBERATION AND DECISION.

   TO RETURN AN INDICTMENT CHARGING AN INDIVIDUAL WITH AN OFFENSE, IT IS NOT NECESSARY THAT YOU FIND THE ACCUSED IS GUILTY BEYOND A REASONABLE DOUBT. THAT'S A TRIAL STANDARD, NOT A GRAND JURY STANDARD. YOU ARE NOT A TRIAL JURY, AND YOUR TASK IS NOT TO DECIDE THE GUILT OR THE INNOCENCE OF THE PERSON ACCUSED. YOUR TASK INSTEAD IS TO DETERMINE WHETHER THE GOVERNMENT'S EVIDENCE AS PRESENTED TO YOU IS SUFFICIENT TO CONCLUDE THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT THE ACCUSED IS GUILTY OF THE OFFENSE CHARGED.

   NOW, I EXPLAINED TO YOU WHAT THAT STANDARD MEANS, PROBABLE CAUSE. IT MEANS THAT YOU HAVE A REASONABLE BELIEF THAT A FEDERAL CRIME WAS COMMITTED AND A REASONABLE BELIEF THAT THE PERSON TO BE CHARGED WAS SOMEHOW ASSOCIATED WITH THE COMMISSION OF THAT CRIME. EITHER HE COMMITTED IT HIMSELF OR HERSELF OR WAS SOMEHOW AIDING AND ABETTING IN THE COMMISSION OF THAT CRIME.

   TO PUT IT ANOTHER WAY, YOU SHOULD VOTE TO INDICT WHERE THE EVIDENCE PRESENTED TO YOU IS SUFFICIENTLY STRONG TO WARRANT A REASONABLE PERSON'S BELIEVING THAT THE ACCUSED IS PROBABLY GUILTY OF THE OFFENSE WITH WHICH THE ACCUSED IS CHARGED.

   EACH GRAND JUROR HAS THE RIGHT TO EXPRESS VIEWS ON THE MATTER UNDER CONSIDERATION. ONLY AFTER ALL OF THE GRAND JURORS HAVE BEEN GIVEN A FULL OPPORTUNITY TO BE HEARD SHOULD YOU VOTE ON THE MATTER BEFORE YOU. YOU MAY DECIDE AFTER DELIBERATION AMONG YOURSELVES THAT FURTHER EVIDENCE SHOULD BE CONSIDERED BEFORE A VOTE IS TAKEN. IN SUCH CASE, THE UNITED STATES ATTORNEY OR ASSISTANT WILL SUBPOENA ADDITIONAL DOCUMENTS OR WITNESSES FOR YOU TO CONSIDER.

   WHEN YOU HAVE DECIDED TO VOTE, THE FOREPERSON SHALL KEEP A RECORD OF THE VOTE, WHICH SHALL BE FILED WITH THE CLERK OF COURT. THE RECORD DOES NOT INCLUDE THE NAMES OF THE JURORS OR HOW THEY VOTED BUT ONLY THE NUMBER OF THOSE VOTING FOR INDICTMENT.

   IF TWELVE OR MORE MEMBERS OF THE GRAND JURY AFTER DELIBERATION BELIEVE THAT AN INDICTMENT IS WARRANTED, THEN YOU WILL REQUEST THE UNITED STATES ATTORNEY TO PREPARE A FORMAL WRITTEN INDICTMENT IF ONE HAS NOT BEEN ALREADY PREPARED AND PRESENTED TO YOU.

   THE INDICTMENT WILL SET FORTH THE DATE AND THE PLACE OF THE ALLEGED OFFENSE AND WILL ASSERT THE CIRCUMSTANCES MAKING THE CONDUCT CRIMINAL, AND IT WILL IDENTIFY THE CRIMINAL STATUTE HAS BEEN ALLEGEDLY VIOLATED. THE FOREPERSON WILL ENDORSE OR SIGN THE INDICTMENT AS WHAT'S CALLED A TRUE BILL IN THE SPACE PROVIDED FOLLOWED BY THE WORD "FOREPERSON."

   A TRUE BILL SIGNIFIES THAT TWELVE OR MORE GRAND JURORS HAVE AGREED THAT THE CASE OUGHT TO GO FORWARD WITH PROBABLE CAUSE TO BELIEVE THAT THE PERSON PROPOSED FOR THE CHARGE IS GUILTY OF THAT CRIME.

   IT IS THE DUTY OF THE FOREPERSON TO ENDORSE OR SIGN EVERY INDICTMENT VOTED ON BY AT LEAST 12 MEMBERS, WHETHER OR NOT THE FOREPERSON VOTED FOR OR AGAINST IT. SO IF YOU HAVE BEEN DESIGNATED FOREPERSON OR ASSISTANT FOREPERSON, EVEN IF YOU VOTED THE OTHER WAY AND YOU ARE OUTVOTED AND THERE IS AT LEAST TWELVE WHO VOTED FOR THE INDICTMENT, YOU MUST SIGN THE INDICTMENT.

   IF FEWER THAN TWELVE MEMBERS OF THE GRAND JURY VOTED IN FAVOR OF THE INDICTMENT WHICH HAS BEEN SUBMITTED TO YOU FOR CONSIDERATION, THEN THE FOREPERSON WILL ENDORSE THE INDICTMENT "NOT A TRUE BILL" AND RETURN IT TO THE COURT, AND THE COURT WILL IMPOUND IT.

   INDICTMENTS WHICH HAVE BEEN ENDORSED AS TRUE BILL WILL BE PRESENTED THEN TO A MAGISTRATE OR DISTRICT JUDGE IN OPEN COURT BY YOUR FOREPERSON AT THE CONCLUSION OF EACH SESSION OF THE GRAND JURY. IN THE ABSENCE OF THE FOREPERSON, THE DEPUTY FOREPERSON SHALL PERFORM ALL THE FUNCTIONS AND DUTIES OF THE FOREPERSON.

   THIS IS THE PROCEDURE I EXPLAINED TO YOU ABOUT HOW THE FOREPERSON ALONE COMES BACK, USUALLY WITH THE ASSISTANT U.S. ATTORNEY, AND PRESENTS THOSE MATTERS THAT HAVE BEEN VOTED UPON IN THAT SESSION BY THE GRAND JURY.

   IT IS EXTREMELY IMPORTANT FOR THOSE OF YOU WHO ARE GRAND JURORS TO REALIZE THAT UNDER THE U.S. CONSTITUTION, THE GRAND JURY IS AN INDEPENDENT BODY, IS INDEPENDENT OF THE UNITED STATES ATTORNEY, IS NOT AN ARM OR AN AGENT OF THE FEDERAL BUREAU OF INVESTIGATION, THE DRUG ENFORCEMENT ADMINISTRATION, THE INTERNAL REVENUE SERVICE, OR ANY OTHER GOVERNMENTAL LAW ENFORCEMENT AGENCY CHARGED WITH PROSECUTING A CRIME.

   REMEMBER, I USED THE CHARACTERIZATION EARLY ON THAT YOU ARE A BUFFER BETWEEN OUR GOVERNMENT'S ABILITY TO ACCUSE SOMEONE OF A CRIME AND PUTTING THAT PERSON THROUGH THE BURDEN OF STANDING TRIAL. YOU ARE AN INDEPENDENT BODY OF CITIZENS.

   THERE HAS BEEN SOME CRITICISM OF THE INSTITUTION OF THE GRAND JURY SUPPOSEDLY ACTING AS A RUBBER STAMP APPROVING PROSECUTIONS THAT ARE BROUGHT BEFORE IT BY GOVERNMENT REPRESENTATIVES. HOWEVER, AS A PRACTICAL MATTER, YOU MUST CLOSELY WORK WITH GOVERNMENT LAWYERS. THE U.S. ATTORNEY AND HER ASSISTANT U.S. ATTORNEYS WILL PROVIDE YOU WITH IMPORTANT SERVICE IN HELPING YOU TO FIND YOUR WAY WHEN CONFRONTED WITH COMPLEX LEGAL MATTERS. IT IS ENTIRELY PROPER THAT YOU SHOULD RECEIVE THIS ASSISTANCE FROM THESE GOVERNMENT LAWYERS.

   IF PAST EXPERIENCE IS ANY INDICATION OF WHAT TO EXPECT IN THE FUTURE, THEN YOU CAN EXPECT THE ASSISTANT U.S. ATTORNEY TO APPEAR IN FRONT OF THE GRAND JURY TO PRESENT CASES TO YOU, TO BE CANDID, TO BE HONEST, TO ACT IN GOOD FAITH IN MATTERS PRESENTED TO YOU.

   HOWEVER, ULTIMATELY, YOU MUST DEPEND ON YOUR OWN INDEPENDENT JUDGMENT IN MAKING DECISIONS THAT ARE PUT TO YOU AS GRAND JURORS. YOU ARE NOT AN ARM OF THE UNITED STATES ATTORNEY'S OFFICE NOR ARE YOU AN ARM OF ANY GOVERNMENT AGENCY. THE GOVERNMENT'S LAWYERS ARE PROSECUTORS. YOU ARE NOT. IF THE FACTS SUGGEST TO YOU THAT YOU SHOULD NOT INDICT, THEN YOU SHOULD NOT DO SO, EVEN IN THE FACE OF OPPOSITION OR STATEMENTS FROM THE ASSISTANT UNITED STATES ATTORNEY WHO IS PRESENTING THE MATTER.

   JUST AS YOU MUST MAINTAIN YOUR INDEPENDENCE IN YOUR DEALINGS WITH GOVERNMENT LAWYERS, SO SHOULD YOUR DEALINGS WITH THE COURT BE ON A FORMAL BASIS. IF YOU HAVE A QUESTION FOR THE COURT OR DESIRE TO MAKE A PRESENTMENT OR RETURN AN INDICTMENT TO THE COURT, YOU WILL ASSEMBLE IN THE COURTROOM FOR THESE PURPOSES.

   MOREOVER, EACH GRAND JUROR IS DIRECTED TO REPORT IMMEDIATELY TO THE COURT ANY ATTEMPT BY ANY PERSON WHO, UNDER ANY PRETENSE WHATSOEVER, ADDRESSES OR CONTACTS YOU FOR THE PURPOSE OF OR WITH THE INTENT TO GAIN ANY INFORMATION OF ANY KIND CONCERNING THE PROCEEDINGS IN FRONT OF THE GRAND JURY, OR ANY PERSON THAT CONTACTS YOU AND ATTEMPTS TO INFLUENCE YOU IN ANY MANNER OR FOR ANY PURPOSE IN A MATTER OF GRAND JURY PROCEEDINGS.

   I HAVE BEEN DESIGNATED AS THE JURY JUDGE AMONG THE DISTRICT COURT JUDGES HERE. THERE ARE THIRTEEN OF US WHO ARE ACTIVE, AND THEN WE HAVE FOUR SENIOR JUDGES. I AM SO NEW, MY PICTURE IS NOT ON THE WALL. I AM THE ELDEST OF THE FIVE NEW GUYS. I WILL BE RIGHT NEXT TO JUDGE LORENZ HERE.

   THOSE MATTERS ARE DIRECTED TO ME. IF A MATTER LIKE THE ONES THAT I HAVE TALKED ABOUT COME UP, THEN YOU ARE TO DIRECT THAT TO ME. YOU CAN GO THROUGH THE JURY COMMISSIONER IF YOU HAVE A MATTER THAT NEEDS TO BE PRESENTED TO THE COURT DIRECTLY. I'LL SEE YOU AND BE AMENABLE TO TALKING TO YOU ABOUT IT.

   LET ME TALK A LITTLE BIT ABOUT YOUR OBLIGATION OF SECRECY. AS I MENTIONED TO YOU, THE HALLMARK OF THE GRAND JURY, PARTICULARLY THE FEDERAL GRAND JURY, IS THAT IT OPERATES SECRETLY. IT OPERATES IN SECRECY AND ITS PROCEEDINGS ARE SECRET. YOUR PROCEEDINGS AS GRAND JURORS ARE ALWAYS SECRET, AND THEY MUST REMAIN SECRET PERMANENTLY UNLESS AND UNTIL THE COURT DECREES OTHERWISE. YOU CANNOT RELATE TO YOUR FAMILY, TO THE NEWS MEDIA, TO TELEVISION REPORTERS, OR TO ANYONE WHAT TRANSPIRED IN THE GRAND JURY ROOM. THERE ARE SEVERAL IMPORTANT REASONS WHY WE DEMAND SECRECY FROM THE GRAND JURORS.

   FIRST, THIS IS OBVIOUS. THE PREMATURE DISCLOSURE OF THE GRAND JURY ACTING MAY FRUSTRATE THE ENDS OF JUSTICE BY GIVING AN OPPORTUNITY FOR SOMEONE WHO IS ACCUSED OF A CRIME TO ESCAPE AND BECOME A FUGITIVE OR TO DESTROY EVIDENCE. YOU DO NOT WANT TO DO THAT. IN THE COURSE OF AN INVESTIGATION IT IS ABSOLUTELY IMPERATIVE THAT THAT INVESTIGATION AND THE FACTS OF THE INVESTIGATION REMAIN SECRET, AND YOU SHOULD ALWAYS KEEP THAT FOREMOST IN MIND.

   ALSO, IF THE TESTIMONY OF A WITNESS IS DISCLOSED, THE WITNESS MAY BE SUBJECT TO INTIMIDATION, SOMETIMES RETALIATION OR BODILY INJURY OR OTHER TAMPERING BEFORE THE WITNESS TESTIFIES AT TRIAL. IT IS SOMETIMES THE CASE THAT LAW ENFORCEMENT WILL TELL A WITNESS WHO IS COOPERATING WITH AN INVESTIGATION THAT THEIR SECRECY IS GUARANTEED; THAT THE GRAND JURY IS FORBIDDEN BY LAW FROM DISCLOSING ANY INFORMATION. IT'S ON THE BASIS SOMETIMES OF REPRESENTATIONS LIKE THAT THAT RELUCTANT WITNESSES ARE WILLING TO COME FORWARD AND TESTIFY AND GIVE INFORMATION IN FRONT OF THE GRAND JURY. SO THIS AGAIN UNDERSCORES THE IMPORTANCE OF SECRECY.

   THIRDLY, THE REQUIREMENT OF SECRECY PROTECTS AN INNOCENT PERSON WHO MAY HAVE COME UNDER INVESTIGATION BUT HAS BEEN CLEARED BY THE ACTIONS OF THE GRAND JURY. YOU KNOW, IT IS A TERRIBLE THING TO BE IMPROPERLY ACCUSED OF A CRIME, AND IT'S WORSE IF THAT CRIME OR ACCUSATION OF A CRIME NEVER BECOME FORMAL. JUST THE IDEA THAT SOMEONE IS UNDER INVESTIGATION CAN HAVE DISASTEROUS CONSEQUENCES FOR THAT PERSON OR HIS OR HER BUSINESS OR HIS OR HER FAMILY.

   SO THIS IS ANOTHER IMPORTANT FUNCTION OF THE GRAND JURY AND ANOTHER REASON WHY SECRECY IS SO IMPORTANT. IN THE EYES OF SOME PEOPLE, INVESTIGATION BY THE GRAND JURY ALONE CARRIES WITH IT THE SUGGESTION OR THE STIGMA OF GUILT. THUS, GREAT INJURY CAN BE DONE TO A PERSON'S GOOD NAME EVEN THOUGH ULTIMATELY THAT PERSON IS NOT INDICTED.

   TO INSURE THE SECRECY OF THE GRAND JURY PROCEEDINGS, THE LAW PROVIDES THAT ONLY AUTHORIZED PERSONS MAY BE IN THE GRAND JURY ROOM WHILE EVIDENCE IS BEING PRESENTED. AS I HAVE MENTIONED TO YOU NOW SEVERAL TIMES, THE ONLY PEOPLE WHO MAY BE PRESENT ARE MEMBERS OF THE GRAND JURY, THE UNITED STATES ATTORNEY, OR AN ASSISTANT UNITED STATES ATTORNEY WHO IS PRESENTING THE CASE, THE WITNESS WHO IS THEN UNDER EXAMINATION, THE COURT REPORTER, AND AN INTERPRETER.

   IF AN INDICTMENT SHOULD ULTIMATELY BE VOTED ON, THE PRESENCE OF UNAUTHORIZED PEOPLE IN THE GRAND JURY ROOM WILL INVALIDATE IT. PARTICULARLY, REMEMBER THAT NO PERSON OTHER THAN THE GRAND JURY MEMBERS THEMSELVES MAY BE PRESENT WHILE YOU ARE DELIBERATING. SO THE ASSISTANT — AND THEY KNOW. THEY DO THIS ROUTINELY. SO THE ASSISTANT, THE COURT REPORTER AND ANYONE ELSE MUST GO OUT WHILE YOU ARE DELIBERATING.

   ALTHOUGH YOU MAY DISCLOSE MATTERS WHICH OCCUR BEFORE THE GRAND JURY TO ATTORNEYS FOR THE GOVERNMENT FOR USE BY THEM IN THE PERFORMANCE OF THEIR DUTIES, YOU MAY NOT DISCLOSE THE CONTEST OF YOUR DELIBERATIONS OR THE VOTE OF ANY PARTICULAR JUROR, EVEN TO GOVERNMENT LAWYERS.

   YOU ARE NOT TO INFORM THE GOVERNMENT LAWYER WHO VOTED ONE WAY ON AN INDICTMENT AND WHO VOTED THE OTHER WAY.

   LET ME CONCLUDE BY SAYING THAT THE IMPORTANCE OF THE SERVICE THAT YOU PERFORM IS DEMONSTRATED BY THE VERY COMPREHENSIVE AND IMPORTANT OATH WHICH YOU TOOK FROM MR. HAMRICK A SHORT WHILE AGO. IT IS AN OATH THAT IS ROOTED IN HISTORY AND THOUSANDS OF YOUR FOREBEARS HAVE TAKEN SIMILAR OATHS. AS GOOD CITIZENS, YOU SHOULD BE PROUD TO HAVE BEEN SELECTED TO ASSIST IN THE ADMINISTRATION OF THE AMERICAN SYSTEM OF JUSTICE.

   THE UNITED STATES ATTORNEY OR THE ASSISTANT, MR. FORGE, WILL NOW ACCOMPANY YOU AND WILL ASSIST YOU IN GETTING ORGANIZED. SO THIS IS A PART OF THE ADMINISTRATION OF THE GRAND JURY AND WHAT THEY EXPECT ON A WEEKLY BASIS, AFTER WHICH YOU MAY PROCEED WITH THE BUSINESS THAT COMES BEFORE YOU.

   NICE MEETING ALL OF YOU. I APPRECIATE YOUR ATTENTION AND YOUR COOPERATION.

   THIS CONCLUDES MY PORTION OF THE PROCEEDINGS TODAY.

   (THE CHARGE TO THE GRAND JURY WAS CONCLUDED.)

   I HEREBY CERTIFY THAT THE TESTIMONY ADDUCED IN THE FOREGOING MATTER IS A PARTIAL TRUE RECORD OF SAID PROCEEDINGS.

20050909

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