The opinion of the court was delivered by: Lowe, District Judge.
The defendants, Jose Peralta and Jesus Ramos, were indicted in
Count I for possession of a controlled substance with intent to
distribute under 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(B),
and in Count II for use of a firearm in connection with a drug
trafficking offense under 18 U.S.C. § 924(c) and 2. On the
fifth day of trial, after the jury had been charged but before
it had rendered a verdict, the Court dismissed the indictment on
motion of the defendants. We write now to reiterate the reasons
for our decision.
Trial of this matter began on April 15, 1991. At the close of
the government's case on April 16, defendants made two motions,
one for a judgment of acquittal under Fed.R.Crim.P. 29(a) and
one for dismissal of the indictment on the ground of misuse of
the grand jury process by the government.*fn1 In particular,
the latter motion relied upon several alleged inconsistencies,
revealed for the first time during trial, between the version of
the events surrounding the defendants' arrest given by the
arresting officer at trial and the version related to the grand
jury by an agent of the United States Bureau of Alcohol Tobacco
and Firearms ("ATF"), who, although not involved in the arrest,
was the sole witness presented to the grand jury.
With the consent of the parties, the Court reserved its
decision on defendants' motions until the close of their case,
which occurred on the morning of April 17. At that time, but
before closing arguments, the government produced to the Court
in camera a partial transcript ("Testimony Transcript") of
grand jury proceedings on October 19, 1990, consisting of the
testimony of the ATF officer, Special Agent Robert Cuccinelli.
Special Agent Cuccinelli's testimony was comprised entirely of
hearsay, derived from one brief conversation on the day of the
defendants' arrest with the arresting officer, Detective David
Caggiano of the New York Police Department's Bronx Narcotics
Division, and from the Agent's review of "paperwork" prepared by
Detective Caggiano. Testimony Transcript at 4.*fn2
A hearing was then held on defendants' motions. While
acknowledging the inconsistencies between the testimony of the
two officers, the government argued that the discrepancies did
not warrant dismissal of the indictment. Even if Special Agent
Cuccinelli's grand jury testimony was inaccurate, the government
contended, the inaccuracies were of detail and not of material
fact. Thus, the government argued, the reliance on hearsay
testimony before the grand jury did not result in prejudice to
the defendants.*fn4 Defendants countered that the potential
for prejudice could be inferred from, inter alia, the fact
that the grand jury requested that Special Agent Cuccinelli be
returned to the grand jury room four times for further
questioning. This implied, defendants argued, that the grand
jury was concerned about the quality of the evidence before it —
the very danger inherent in the government's practice of relying
exclusively on hearsay testimony in such circumstances.
The issue to be resolved thus became the degree to which the
grand jury was genuinely troubled by the prospect of returning
an indictment solely on the basis of Special Agent Cuccinelli's
hearsay testimony. Defendants sought an order to have
transcribed the previously absent portions of the grand jury
minutes, those containing the colloquies between the grand jury
and the Assistant United States Attorney in the absence of the
witness. After ordering that the transcripts be produced, the
Court further reserved its decision on defendants' motions, in
the interest of judicial economy and again with the consent of
Closing arguments took place on April 18, and the jury was
charged on the morning of April 19. That same morning, shortly
before charging was to commence, the government produced a
partial transcript that included four colloquies between the
grand jury and the Assistant United States Attorney ("Colloquy
Transcript").*fn5 This transcript did not include a further
colloquy, approximately twenty minutes in length, that occurred
before Special Agent Cuccinelli was called for the first
The Court proceeded to charge the trial jury, which began its
deliberations. Our in camera review of the Colloquy
Transcript, however, revealed a new and unforeseen problem in
the grand jury proceedings. During the first of the four
transcribed colloquies, the following exchange took
place between one or more grand jurors and the government:
A Juror: Was the apartment the legal
residence of either of these defendants? And the
second question was were any fingerprints taken
from the gun that was recovered?
[Assistant]: I will ask that question — on
the fingerprint question, I think it was
constructive possession, okay.
You have heard the testimony at the time
Detective [Caggiano] made his observation, no one
actually possessed the gun. The government is
proceeding on the theory of both individuals being
able to exercise some minimum — in other words,
they exercise[d] control or they had access to the
gun. They would be able — it was readily available
for them to grab it or hold [it]. That is
constructive possession. Their [sic] official words
are "exercising dominion and control".
A Juror: Did anyone have a license for the
gun? Was it licensed?
[Assistant]: Do you want me to go get him or
do you want to go get him?
Colloquy Transcript at 7-8 (emphasis added). Later, during the
fourth colloquy, the following exchange took place:
A Juror: Again, one thing is bothering me. I
know you went through it. Did he use and carry —
[no,] the gun wasn't used or carried, but he had
the opportunity to carry it and fire it?
[Assistant]: It is charged to both
individuals in this case.
A Juror: But this is proper even though the
gun was never carried?
A Juror: Why don't you read the section
A Juror: I understand the concept of
availability, but did he use —
[Assistant]: And Section 924(c), subdivision
(1) — let me say that again. Section 924(c) of
Title 18, subsection (c), ...