United States District Court, S.D. California
September 9, 2005.
UNITED STATES OF AMERICA, Plaintiff,
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
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.
MOTION TO DISMISS THE INDICTMENT DUE TO MISINSTRUCTION OF THE
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
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.
A. The Government Must Demonstrate Compliance With
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
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
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,
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
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.
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
(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
(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
(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.
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.
For the foregoing reasons, Mr. Perez-Bermunen respectfully
requests that this Court grant these motions.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
IN RE: THE IMPANELMENT )
OF GRAND JURY PANELS 04-1 AND )
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
IF SO, ANSWER, "I DO".
THE COURT: EVERYONE INDICATES IN THE AFFIRMATIVE. HAVE A SEAT,
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
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
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
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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
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.
© 1992-2005 VersusLaw Inc.