The opinion of the court was delivered by: Sweet, District Judge.
Defendant Francis Vetere ("Vetere"), who has been tried and convicted of kidnapping, has moved pursuant to Fed.R.Crim.P. 12 for the dismissal of his indictment on the grounds of prosecutorial misconduct before the grand jury that indicted him. For the reasons set forth below, the motion is granted and the indictment dismissed. Pursuant to Fed.R.Crim.P. 12(h), Vetere's bail conditions shall be continued for 30 days to allow the government to file a new indictment or to appeal.
Vetere was tried and convicted by a jury of a violation of 18 U.S.C. § 1201(a)(1) for kidnapping Mark Bryant ("Bryant"), and taking him from the Bronx to New Jersey at gunpoint. According to the government, Vetere kidnapped Bryant, a so-called "Gypsy cab" driver operating a private vehicle, in order to get home in the middle of the night. Vetere's defense at trial was that Bryant did indeed drive him from the Bronx to New Jersey, but that it was not at gun point, that Vetere had only refused to pay for a cab-ride to New Jersey, and that Bryant had brought these charges to retaliate. After due deliberation, the jury found Vetere guilty as charged.
The morning of the trial, April 13, 1987, pursuant to Fed.R.Crim.P. 16(a)(2) and 18 U.S.C. § 3500, the government turned over to Vetere the grand jury testimony given by an FBI agent because the agent was expected to testify at trial. Vetere had by motion requested that this material be turned over earlier, which had been denied. The testimony turned over to Vetere reflected the Agent's remarks, but not, of course, any colloquy between the Assistant United States Attorney and the grand jurors.
Immediately upon receiving the grand jury minutes, Vetere moved for dismissal of the indictment on the grounds of prosecutorial misconduct in the grand jury, specifically, that the Assistant United States Attorney had unfairly solicited testimony about Vetere's past record in order to get a reluctant grand jury to vote an indictment. The Assistant conceded that he had solicited such information but represented to the court that he had done so at the behest of the grand jurors and sought leave to have his colloquies with the grand jurors transcribed and considered with respect to Vetere's motion to dismiss the indictment. The court indicated that it would await the submission of the missing portions, and for the sake of judicial economy, proceeded with the trial pending receipt of the minutes, because the parties, witnesses, and a jury panel were all present.
As both the trial and grand jury testimony established, on November 29, 1986, at approximately two in the morning, Vetere jumped into Bryant's car in the Bronx and was driving to Cresskill, New Jersey where he lived. After Vetere left the car, Bryant found a Cresskill police officer and drove around the community seeking, finally successfully, to locate the house at which Vetere had left the car, which proved to be around the corner from Vetere's home. No further investigation was conducted that night. Thereafter, the FBI got Vetere's name from the local police as a suspect, and a photo array was shown to Bryant who identified Vetere.
The complete grand jury minutes were received after completion of the government's case, which reserved the defendant's rights relative to its Rule 12 motion to dismiss on the grounds of the grand jury proceedings. A hearing was held on the motion while the jury was deliberating.
When the jury returned with a verdict, the court elected to receive the verdict rather than to hold the jury pending a decision on the motion. See Fed.R.Crim.P. 12(e). As already noted, the jury convicted Vetere, and sentencing was set for May 28, 1987. Parties requested and received leave to submit papers on their position after the trial, and the motion to dismiss the indictment was marked fully submitted on May 12, 1987.
THE GRAND JURY PROCEEDINGS
The Grand Jury testimony that was presented--most of which was hearsay or double hearsay--contained factual errors about the offense and factual errors about the target's background. In addition, the grand jurors received non-relevant, highly prejudicial, and erroneous information about Vetere's criminal record. Finally, instructions on the law were given which could be considered erroneous and misleading.
At the outset of the proceedings before the newly empanelled grand jury, the grand jurors were told with respect to Vetere's motive "We don't know all the answers today. What I can tell you, and instruct you as a matter of law, is, the reasons that--or, the motive for this kidnapping, is irrelevant to the question that is before you today." Trans. at 4. (emphasis added). However, for any crime, motive is relevant*fn1 to establishing whether or not a crime was committed and, if so, who committed it. Indeed one of the elements of the kidnapping offense with which Vetere was charged*fn2 is that the government must prove that the defendant kidnapped the victim in order "to secure some benefit to himself." Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed. 522 (1936).*fn3 Thus, motive was relevant and the Grand Jury may have been misled in this regard.
Despite this advice, relatively late in the grand jury proceedings, a grand juror asked whether there was any information about the motive for the kidnapping and was told: "I instruct you, as a matter of law,--You can certainly ask the question, but the question of motives is not before you." Trans. at 42. The Assistant added: "You can ask Agent Sager, if you would like him to, to speculate. We can ask him that. But I think that's improper. But if you insist, I will ask Agent Sager." Id. Although the record does not reflect any grand juror insisting on the elicitation of this speculation, the Assistant asked the Agent nonetheless:
Q ... I am going to caution you, Agent Sager, for the record, I am going to be indicating this as speculation,--and I hesitate to ask this question--but the Grand Jury expressed an interest to have you speculate--
What is your best understanding of the reason why Mr. Vetere was in the Bronx that evening of the kidnapping, and why he performed the kidnapping?
A It's purely speculation. I am aware of the fact that his wife lives in the Bronx--they're separated. He has a history of using drugs and drug related arrests; and that is a drug-prone area as far as I know.
Trans. at 45-46 (emphasis added).
During the hearing on Vetere's motion to dismiss the indictment, Agent Sager conceded that the only basis for testifying that Vetere was a drug user was a single arrest for the criminal sale of methadone that Sager had incorrectly surmised had resulted in a felony conviction for the same offense. In fact the charge to which Vetere pled had been reduced to a Class B misdemeanor. Even had Sager been correct in assuming there had been a felony conviction, selling drugs does not equate to use, and one arrest is very different from having a "history of ... drug related arrests." Thus with respect to the issue of motive, the grand jury was incorrectly advised about its legal significance, and then presented with "speculation" from an FBI agent which was inadequately supported based on the documents available to the agent.
Although all the evidence to the grand jury was presented on one day, Agent Sager, the FBI case agent was recalled five times. On one such occasion, erroneous testimony was given on the issue of the identification of the defendant. In one of his earlier sessions before the grand jury, Agent Sager testified that the victim had told him that Vetere had kidnapped him by getting into the front seat of his car with a rifle. But, at trial, the victim testified that Vetere had gotten into the back seat of the car, and was carrying a pistol, not a rifle. Agent Sager then took the stand and testified that ...