The opinion of the court was delivered by: MISHLER
Memorandum of Decision and Order
Defendants in the above-captioned matters move to dismiss the indictments on the ground of prejudicial preindictment publicity generated by the government. For the reasons which follow, the motions are in all respects denied.
The Fifth Amendment provides, in pertinent part, that "(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...." Although the importance of this guarantee as it applies to federal criminal proceedings cannot be questioned, cf. Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232 (1884), our courts have consistently limited the scope of challenges available to defendants who have claimed that their rights under this provision have been violated. Indeed, the Supreme Court has unequivocally stated on more than one occasion that
an indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.
Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 409, 100 L. Ed. 397 (1956), quoted in Lawn v. United States, 355 U.S. 339, 349-50, 78 S. Ct. 311, 318, 2 L. Ed. 2d 321 (1957). See also Coppedge v. United States, 114 U.S. App. D.C. 79, 311 F.2d 128, 132 (D.C.Cir.1962) (Burger, J.), cert. denied, 373 U.S. 946, 83 S. Ct. 1541, 10 L. Ed. 2d 701 (1963).
As the quoted rule and the cited cases make clear, however, the Fifth Amendment's requirement has not been met unless the grand jury which handed down an indictment was free from bias and prejudice. Defendants here contend that the massive amount of pre-indictment publicity attendant to these cases irreparably prejudiced the grand jury and thus rendered the indictments fatally defective. Relatedly, they argue that Justice Department officials, in contravention of numerous statutes, internal regulations and ethical norms, caused the publicity by disclosing information regarding the investigation to the media, and that the court should invoke its supervisory powers and dismiss the indictments as a sanction for the prosecutorial misconduct.
We cannot agree with either of these contentions.
Before turning to the applicable law, we think it best to note that we accept the defendants' version of certain relevant facts. First, the voluminous appendices to the parties' papers, containing thousands of pages of reprinted newspaper and magazine articles as well as transcripts of radio and television broadcasts, attest to the fact that beginning on February 2, 1980 and continuing to the date of these indictments and beyond, the public was deluged with media reports of the ABSCAM investigation into these defendants' activities. Moreover, many of these reports were replete with what may charitably be characterized as hostile statements and innuendo, treating the defendants' guilt as a foregone conclusion, itemizing the "evidence" against them, and reporting that "indictments were forthcoming." Finally, we must, in the light of the government's admission of the fact, accept the contention that many of these reports contained information supplied by one or more Justice Department officials although we hasten to point out that no evidence has even been alluded to which would support defendants' claim that the disclosures were made by high level officials who instituted a "policy" of disclosure for the nefarious purpose of "pushing through" the indictments.
Accepting these facts, we hold that the defendants are nonetheless not entitled to the relief they seek. In our view, while the conduct of the government officers who disclosed information of the investigation was grossly improper and possibly illegal, neither application of the Fifth Amendment nor any requirement that we oversee the proper administration of criminal justice in our court through invocation of our "supervisory powers" mandates dismissal of the indictments.
Turning first to the Fifth Amendment claim, we think it important to note that while the issue has been raised innumerable times, the defendants have been unable to point to a final decision in a single case where an indictment has been dismissed upon the ground that the grand jury was prejudiced by pre-trial publicity. See, e.g., Beck v. Washington, 369 U.S. 541, 82 S. Ct. 955, 8 L. Ed. 2d 98 (1962); United States v. Brien, 617 F.2d 299, 313 (1st Cir. 1980); Silverthorne v. United States, 400 F.2d 627, 632-34 (9th Cir. 1968), cert. denied, 400 U.S. 1022, 91 S. Ct. 585, 27 L. Ed. 2d 633 (1971); United States v. Osborn, 350 F.2d 497, 506-07 (6th Cir. 1965), aff'd, 385 U.S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394 (1966); Gorin v. United States, 313 F.2d 641, 645 (1st Cir. 1963), cert. denied, 379 U.S. 971, 85 S. Ct. 669, 13 L. Ed. 2d 563 (1965); United States v. Nunan, 236 F.2d 576, 593 (2d Cir. 1956), cert. denied, 353 U.S. 912, 77 S. Ct. 661, 1 L. Ed. 2d 665 (1957); United States v. Mandel, 415 F. Supp. 1033, 1061-65 (D.Md.1976), aff'd, 602 F.2d 653 (4th Cir. 1979) (en banc); United States v. Archer, 355 F. Supp. 981, 987-89 (S.D.N.Y.1972), rev'd on other grounds, 486 F.2d 670 (2d Cir. 1973); United States v. Sweig, 316 F. Supp. 1148, 1153-55 (S.D.N.Y.1970), aff'd, 441 F.2d 114 (2d Cir.), cert. denied, 403 U.S. 932, 91 S. Ct. 2256, 29 L. Ed. 2d 711 (1971); United States v. Addonizio, 313 F. Supp. 486, 495 (D.N.J.1970), aff'd, 451 F.2d 49 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S. Ct. 949, 30 L. Ed. 2d 812 (1972); United States v. Dioguardi, 20 F.R.D. 33 (S.D.N.Y.1956). While these cases have frequently adopted somewhat divergent analyses, some common controlling principles can be synthesized. First, it has been recognized that a grand jury need not deliberate in a sterile chamber, completely immunized from reports of those events transpiring about it. As Judge Medina stated in United States v. Nunan, supra:
(A) Grand Jury is not confined to a passive role, but may and often should proceed on its own initiative ... That it is induced to such action by newspaper reports forms a continuum with its historic function of ferreting out crime and corruption, and is in no way inconsistent with its duty to decide on and in accordance with the evidence adduced before it.
236 F.2d at 593 (emphasis added). Cf. Costello v. United States, supra, 350 U.S. at 362, 76 S. Ct. at 408 ("(G)rand jurors (in England) could act on their own knowledge....").
The second applicable principle gleaned from the cases is a requirement that the moving defendant bear the heavy burden of demonstrating that he has suffered actual prejudice as a result of the publicity. After a thorough analysis of the pertinent case law, the rationale behind this requirement was restated by the court in United States v. Mandel, supra:
First, there is a presumption of regularity surrounding grand jury proceedings, as well as a practice of maintaining the secrecy of grand jury deliberations. Second, if preindictment publicity could cause the dismissal of an indictment, many persons, either prominent or notorious, could readily avoid indictment, a result detrimental to the system of justice. Third, the role of the grand jury ...