Appeal from a judgment of the District Court for the District of Connecticut (Emmet T. Clarie, Judge) convicting appellants Hogan and Patricelli of conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846, and Hogan of telephone facilitation of the conspiracy, in violation of 21 U.S.C. § 843(b). Prosecutorial misconduct before the grand jury mandates dismissal of the indictment on which appellants were tried. Reversed and remanded.
Lumbard and Cardamone, Circuit Judges and Zampano, District Judge.*fn*
CARDAMONE, Circuit Judge:
On this appeal our principal concern is directed not at the jury trial where the accused were found guilty, but at earlier events -- those that transpired before the grand jury which indicted the appellants. More than in other cases, the minutes of the grand jury proceedings in this case reveal what can happen when the prosecutor is too determined to obtain an indictment. The temptations to cut corners, to ignore the rights of an accused, and to toss fair play to the winds gain ascendancy. Prosecutors presenting cases to grand juries are firmly subject to due process limitations and bound by ethical considerations. While we fully recognize that a court's power to dismiss an indictment following a conviction at trial rarely is exercised, the prosecution so violated these limitations and obligations as to mandate this indictment's dismissal. Here prosecutorial zeal only illuminates anew the insight of the old adage that the ends cannot justify the means.
On July 24, 1981 appellants, Lawrence A. Hogan and Leonard J. Patricelli, were indicted by a grand jury sitting in the District of Connecticut for conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846. Hogan was also charged with five counts of using a telephone to facilitate an attempt to possess with intent to distribute heroin, in violation of 21 U.S.C. § 843(b). One of the § 843(b) counts was dismissed prior to trial.
After a nine-day trial held before then Chief Judge T. Emmet Clarie and a jury in the United States District Court for the District of Connecticut, the jury returned guilty verdicts as to both appellants on the conspiracy count and as to Hogan alone on three of the telephone facilitation counts, acquitting him on the remaining one. Although the appellants had moved before trial to dismiss the indictment on the basis of prosecutorial misconduct before the grand jury, that motion was denied. Both appellants were sentenced to five-year terms for the conspiracy conviction. Hogan also received three one-year terms on the telephone facilitation convictions, all of his sentences to run concurrently.
This case arose from a Federal Drug Enforcement Administration (DEA) undercover investigation of Hogan, a retired Stamford Connecticut Police Lieutenant with 22 years service, who had formerly served as head of the Southwestern Connecticut Regional Narcotics Crime Squad, and Patricelli, an associate of Hogan's with alleged ties to organized crime. Playing a central role in this investigation was Martin "Yogi" Ruggieri, a businessman who had allegedly borrowed $20,000 from Hogan. The record discloses that in late January 1981 Yogi persuaded Hogan and Patricelli to travel to the Hilton Hotel in Rye, New York for the purpose of obtaining repayment of the debt. While the government contends that the contemplated medium of repayment was narcotics, appellants assert that it was cash. In any event, upon arriving at the Hilton, Hogan and Patricelli were stopped by Rye Police Detective John Carlucci who was acting upon a request he had received from the DEA. Carlucci told Hogan and Patricelli that DEA agents were investigating a narcotics transaction and requested appellants to accompany him to Rye police headquarters for questioning. When it became clear at police headquarters that there was no basis to hold appellants, they were permitted to leave. We will return to this incident later.
On February 4, 1981 Yogi informed DEA Agent Paul Salute that Patricelli wanted to meet Yogi that evening to discuss the Rye, New York incident and Yogi's loan. Agent Salute, posing as Yogi's cousin from New Jersey, called Patricelli and had that meeting postponed. In the ensuing weeks a series of four meetings were held. At the first meeting, on February 11, Yogi, Hogan and DEA Agent Alleva, posing as a business partner of Yogi's cousin, met to discuss the money Yogi owed Hogan. During this meeting Alleva offered to sell to Hogan heroin at a discount price in exchange for forgiveness of Yogi's debt. The other meetings, between Hogan, Alleva, and on two occasions Patricelli, occurred on February 19, March 2 and March 11 at various area bars and restaurants. A number of telephone calls (perhaps nine or ten) between Hogan and Alleva also were made during February and March. The subject of these meetings and telephone calls concerned the proposed drug deal.
Through February and early March plans to implement the deal were in the discussion stage. No drugs were ever actually obtained or distributed. Then on March 13, when Alleva called him, Hogan terminated his involvement in the scheme, stating that he did not believe in it. In response to this statement by the principal subject of the undercover investigation, Alleva threatened Hogan with bodily harm if he did not change his mind and go through with the deal. DEA agents equipped Yogi with a recording device and sent him to see Hogan on May 12 to find out what had happened. Hogan told Yogi that he could not get involved in distributing heroin because it was against everything he ever believed in and that he wanted nothing to do with Alleva. Shortly thereafter the government sought and obtained the indictments at issue in this case.
Before examining the grand jury proceedings, we review the functions of that body and the rules which govern the conduct of a prosecutor in making a grand jury presentation. The grand jury convenes as a body of lay persons acting in secret, unfettered by technical rules of procedure or evidence. Costello v. United States, 350 U.S. 359, 362, 100 L. Ed. 397, 76 S. Ct. 406 (1956). Charged to indict no one on account of prejudice or to refuse to indict anyone as a special favor, this bulwark against Star Chamber proceedings in England was believed so essential to basic liberties that it was incorporated in the Fifth Amendment to the United States Constitution. See id. That Amendment commands that "no person shall be held to answer a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."
Interposing a grand jury between the individual and the government serves the intended purpose of limiting indictments for higher crimes to those offenses charged by a group of one's fellow citizens acting independently of the prosecution and the court. See Stirone v. United States, 361 U.S. 212, 218, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960). In this independent position, a grand jury performs two distinct roles. It serves as an accuser sworn to investigate and present for trial persons suspected of wrongdoing. At the same time -- and equally important -- it functions as a shield, standing between the accuser and the accused, protecting the individual citizen against oppressive and unfounded government prosecution. See United States v. Calandra, 414 U.S. 338, 342-43, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974); Branzburg v. Hayes, 408 U.S. 665, 686-87, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972).
It is true of course that prosecutors, by virtue of their position, have gained such influence over grand juries that these bodies' historic independence has been eroded. 8 R. Cipes, J. Hall, M. Waxner, Moore's Federal Practice Para. 6.02 at 6-19-6-23 (2d ed. 1982). After all, it is the prosecutor who draws up the indictment, calls and examines the grand jury witnesses, advises the grand jury as to the law, and is in constant attendance during its proceedings. Nonetheless, there remain certain limitations on the presentation that a prosecutor may make to the grand jury. See, e.g., United States v. Ciambrone, 601 F.2d 616, 623 (2d Cir. 1979) (prosecutor may not mislead grand jury or engage in fundamentally unfair tactics before it). In fact the gain in prosecutors' influence over grand juries is all the more reason to insist that these limitations be observed strictly. Due process considerations prohibit the government from obtaining an indictment based on known perjured testimony. See United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974). Courts have also held that a prosecutor may not make statements or argue in a manner calculated to inflame the grand jury unfairly against an accused. See e.g., United States v. Serubo, 604 F.2d 807, 818 (3d Cir. 1979). Under the applicable guidelines prosecutors have an ethical obligation strictly to observe ...