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U.S. v. FELTON

January 17, 1991

UNITED STATES OF AMERICA
v.
AL FELTON, DEFENDANT.



The opinion of the court was delivered by: Edelstein, District Judge:

OPINION & ORDER

The defendant, Al Felton, has moved to dismiss the indictment against him on the grounds that the government's presentation to the grand jury was misleading and that the government's reliance on a single hearsay witness is the product of a history of prosecutorial misconduct that is so systematic and pervasive as to undermine the fundamental fairness of the grand jury process. For the following reasons, the defendant's motion is denied.

I. BACKGROUND

Count one of the initial indictment in this case charged Al Felton and Ramon Campusano with the distribution of, and possession with the intent to distribute, "crack" in violation of 21 U.S.C. § 841 (b)(1)(C). Count two of the indictment charged Campusano with carrying and using a firearm in relation to a drug offense in violation of 18 U.S.C. § 924 (c). In the government's presentation to the grand jury on November 29, 1990, the prosecutor called Special Agent Cucinelli of the Bureau of Alcohol, Tobacco and Firearms, as the sole witness to testify about the events surrounding the arrest of Felton and Campusano. Agent Cucinelli was the case agent assigned to their arrests. Agent Cucinelli's testimony before the grand jury was based on two phone conversations with Detective Fagan, the undercover officer involved in the arrests of Felton and Campusano, and on the written reports of Detective Fagan and other officers involved in the arrest.

On December 26, 1990, the government filed a superseding indictment against Felton and Campusano which charged that the distribution and possession with intent to distribute charged in count one of the first indictment took place within one thousand feet of a school in violation of 21 U.S.C. § 841 (b)(1)(C) and 845a(a). Count two of the superseding indictment again charged Campusano with carrying and using a firearm in relation to a drug offense in violation of 18 U.S.C. § 924 (c).

On January 7, 1991, Campusano pled guilty to the two counts in the superseding indictment. On January 9, 1991, the first morning of defendant Felton's trial, defendant raised the issue of the prosecutor's misconduct in his November 29, 1990 presentation to the grand jury. At that time, the defendant sought discovery of the grand jury minutes. After an in camera review of the grand jury minutes, this Court turned the minutes over to defendant. The next morning, January 10, 1991, as the trial continued, defendant submitted a letter to the Court urging it to dismiss the indictment against the defendant.

  Many recorded conferences about the issue ensued. This motion followed. On January 14, 1991, having heard the government's ease consisting of the testimony of Detective Fagan and two other officers involved in the arrest of defendant and the defendant's case consisting of the testimony of Agent Cucinelli, the petit jury found Felton guilty beyond a reasonable doubt of the count with which he was charged in the superseding indictment.

II. DISCUSSION

In Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S.Ct. 2369, 2374-75, 101 L.Ed.2d 228 (1988), the Supreme Court stated that a court may invoke its supervisory power to dismiss an indictment for a violation by the prosecutor that occurred before the grand jury "if it is established that the violation substantially influenced the grand jury's decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations." Id. at 256, 108 S.Ct. at 2374 (quoting United States v. Mechanik, 475 U.S. 66, 78, 106 S.Ct. 938, 945, 89 L.Ed.2d 50 (1986) (O'Connor, J. concurring)). Alternatively, a court may dismiss an indictment if there is "a history of prosecutorial misconduct, spanning several cases, that is so systematic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process which resulted in the indictment." Id. 487 U.S. at 259, 108 S.Ct. at 2376; see United States v. Brito, 907 F.2d 392, 394 (2d Cir. 1990). The defendant moves to dismiss the indictment under both of these standards. Both the defendant and the government rely on the Second Circuit's recent opinion in United States v. Brito, 907 F.2d 392 (2d Cir. 1990). Familiarity with this decision will be assumed here.

A. Violation Before The Grand Jury

It is well settled that hearsay is admissible before the grand jury. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408-09, 100 L.Ed. 397 (1956). A prosecutor's reliance on hearsay may be grounds for dismissal of an indictment if the grand jury was misled or misinformed. Brito, 907 F.2d at 394. As has been noted several times in this circuit,

    [t]he use of hearsay testimony before the grand jury
  raises questions about the validity of an indictment
  only when the prosecutor misleads the grand jury into
  thinking it is getting first-hand testimony when it is
  really receiving hearsay, . . . or where there is a
  high probability that if eyewitnesses rather than
  hearsay testimony had been used, the defendant would
  not have been indicted.

United States v. Diaz, 922 F.2d 998, 1005-06 (2d Cir. December 27, 1990) (quoting United States v. Dyman, 739 F.2d 762, 767 (2d Cir. 1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 969, 83 L.Ed.2d 973 (1985)).

In this case, the defendant argues that the prosecutor's presentation of a single hearsay witness before the grand jury when first-hand testimony was readily available resulted in the grand jury being misinformed as to the actual evidence in the case. The defendant argues that this excessive reliance on hearsay, especially given the Brito decision, constitutes a violation before the grand jury that "substantially influenced the grand jury's decision to indict," and raised a "grave doubt that the decision to indict was free from the substantial influence" of the violation. Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374-75. To bolster this contention, the defendant points out that there were several inconsistencies between Agent ...


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