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Criminal Practice – Sanction of Excluded Grand Jury Testimony Was Error

Deborah Elkins//November 2, 2016

Criminal Practice – Sanction of Excluded Grand Jury Testimony Was Error

Deborah Elkins//November 2, 2016

U.S. v. McTague (Lawyers Weekly No. 001-151-16, 21 pp.) (Duncan, J.) No. 15-4739, Oct. 26, 2016; USDC at Harrisonburg, Va. (Urbanski, J.) 4th Cir.

Holding: The 4th Circuit says a trial judge abused his discretion in excluding at defendants’ trial immigration violations in the operation of their Peruvian restaurant in Virginia, testimony from a friend and a sheriff, who appeared before the grand jury after defendants’ indictments; the trial judge’s references to the scope of questions posed by prosecutors to the witnesses, and “ongoing delay,” without any finding of prosecutorial misconduct or bad faith in the grand jury proceeding, did not support the sanction imposed by the judge.

Court’s Sanction

On appeal, the government argues that the district court abused its discretion by sanctioning the government without finding prosecutorial misconduct. It contends that, in the absence of such a finding, an evidentiary exclusion will never lie.

We find the district court abused its discretion in this case. A district court must provide a sufficient explanation for its decisions in furtherance of that duty to provide a meaningful basis for review. That is what the district court failed to do here. Its stated reasons do not comport with our precedent or the facts of record, and its conclusion regarding “fundamental fairness” provides no legal standard by which to measure the appropriateness of the evidentiary exclusion.

We nevertheless reject the government’s argument that the district court may never exclude grand jury evidence except as a sanction for prosecutorial misconduct.

Under our precedent on grand jury abuse, this court adheres to the “universal rule” that prosecutors cannot use grand jury proceedings for the “sole or dominant purpose” of preparing for trial on an already pending indictment. Here, the district court did not find an improper sole or dominant purpose, but nevertheless determined there was a need to fashion an evidentiary remedy based on perceived fundamental unfairness.

Some of our sister circuits have held that the government has an automatic safe harbor when the superseding indictment adds new charges or new defendants. Although our circuit has not applied such a per se rule, the fact that new indictments issued is a circumstance a district court should factor into its overall analysis as militating in favor of the government. When there is a pending indictment, grand jury witnesses often have information pertinent to both already-indicted charges and new charges. The grand jury is not required to disregard the former when investigating the latter.

District Court View

The district court proffered these reasons for its exclusion-of-evidence remedy: 1) the scope of questions asked at the October 2015 grand jury proceeding and 2) the “ongoing delay” occasioned by the second and third trial continuances. Neither reason justifies the district court’s remedy.

Uncovering evidence against an already-indicted person does not provide ipso facto evidence that the government failed to conduct its questioning in good faith. The district court’s opinion fails to explain how it factored the issuance of the new indictments into its analysis of any ground for an evidentiary hearing. The court abused its discretion when it based its evidentiary exclusion partially on the ground that some questions seemed “to stray far afield of the new allegations,” without providing a legal justification for so doing.

Like the discussion about the scope of the government’s questioning, we cannot discern from the district court’s opinion how the government’s conduct in relation to the continuances supported the district court’s remedy. We are left to infer that the district court perceived a pattern of questionable behavior on the part of the government motivating the delay. However, the district court did not explicitly detail such a finding, or for that matter specify what government conduct was impermissible. The court abused its discretion in citing delay as a justification for its remedy without explaining how the delay related to alleged grand jury abuse and why a remedy of evidentiary exclusion was appropriate.

On remand, the district court should allow the government to use the grand jury testimony of defendant’s friends, Carolyn Edlind and Sheriff Donald Smith, or explain with specificity both the legal basis for its exclusion and how its sanction is narrowly tailored to that concern.

Vacated and remanded.

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