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United States v. Leeper

May 22, 2006


The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court



On February 7, 2006, a grand jury empaneled on May 7, 2004 (the "May 2004 grand jury") returned a one-count indictment against the defendant, Dwight Leeper, charging him with bank robbery in violation of 18 US.C. § 2113(a). The indictment read:

On or about the sixth day of May 2004, in the Western District of New York, the defendant, DWIGHT LEEPER, did knowingly take from the person of another, money in the care, custody, control, management and possession of the Southern Chautauqua Federal Credit Union at 310 Fairmont Avenue, Jamestown, New York, the deposits of which were then insured by the Federal Deposit Insurance Corporation.

Trial was scheduled to commence on May 15, 2006. On May 5, 2006, a superseding indictment ("Superseding Indictment") was returned. The purpose of the Superseding Indictment was to correct a mistake in the original indictment, which charged that the credit union was insured by the Federal Deposit Insurance Corporation, when in fact it was really insured by the National Credit Union Administration.

On May 15, 2006, the parties appeared for trial as scheduled. A jury was selected, but not sworn. After the jury had been empaneled and excused for the day, the Court brought to the parties' attention the case of United States v. Olson, 262 F.3d 795 (8th Cir. 2001), and requested briefing on the issue. In Olson, the Eight Circuit had reversed a bank robbery conviction because the indictment had failed to allege all of the essential elements of the crime. Specifically, the indictment failed to allege that the defendant had used force, intimidation and violence during the robbery. As in Olson, Superseding Indictment against defendant Leeper (and the original indictment) failed to allege that he had used force, violence or intimidation during the course of the alleged bank robbery.

After reading the Olson case and apparently recognizing the defect, the government sought to remedy its error by again superseding the indictment. However, since the May 2004 grand jury had expired,*fn1 the government was unable to have the May 2004 grand jury supersede. Instead, on Tuesday, May 16th, the day after jury selection, the government appeared before a new grand jury that had been empaneled on November 4, 2005 (the "November 2005 grand jury") and asked the November 2005 grand jury to supercede the Superseding Indictment.

On Wednesday, May 17th, the government advised the Court and counsel that a second superseding indictment ("Second Superseding Indictment") containing all of the required elements had been returned. Upon questioning by the Court, it was revealed that the government had presented the matter to a new grand jury. Given the expediency with which a new grand jury had been assembled, presented with evidence and returned the indictment, the Court had reservations as to whether the second grand jury had considered the matter anew, or whether it was just "rubber stamping" a change to an indictment issued by a prior grand jury.

The Court asked to see the transcripts of the May 16th grand jury proceeding, as well as the transcripts of the earlier grand jury proceedings. The transcripts were provided to the Court on Thursday, May 18, 2006. The Court then directed that copies be provided to defense counsel and that the parties provide briefing as to the propriety of the May 16th grand jury proceeding. After reading the transcripts, reviewing the briefs, and hearing argument from counsel, the Court finds that the indictment must be dismissed because it was issued in violation of the defendant's Fifth Amendment right to be indicted by an independent and unbiased grand jury, and because that violation prejudiced the defendant.


A. The Violation

The Fifth Amendment of the United States Constitution provides 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 . . ." U.S. Constit. amend. V. The grand jury has been characterized as "a constitutional fixture in its own right" that operates independently of both the judiciary and the executive branch. See United States v. Williams, 504 U.S. 36, 47 (1992). Accordingly, to be valid, the Fifth Amendment requires that an indictment issue from an independent and unbiased grand jury. This requirement has long been recognized. See Costello v. United States, 350 U.S. 359 (1956); see also Stirone v. United States, 361 U.S. 212, 218-19 ("The right to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment."). If the Grand Jury Clause means anything, it means that a criminal indictment must actually issue from a grand jury, not some other source. The fundamental concept underlying the Fifth Amendment guarantee is that in order for an indictment to be recognized as actually issuing from a grand jury, it must be the product of an investigative deliberation that is independent of both the prosecuting attorney and the court . . . . Without a guarantee of independence, the indictment would not be the genuine issue of a grand jury within the meaning of the Constitution.

See United States v. Sigma Int'l, Inc., 244 F.3d 841, 856 (11th Cir. 2001), rehearing en banc granted and opinion vacated by 287 F.3d 1325 (11th Cir. 2002) (citations omitted)(emphasis in original).*fn2 The Supreme Court reiterated this point in United States v. Williams, when it stated that "the Fifth Amendment's constitutional guarantee presupposes an investigative body acting independently of either prosecuting attorney or judge." Williams, 504 U.S. at 49 (emphasis and quotations omitted).

A review of the May 16th grand jury proceedings reveals that the right to an indictment by an independent and unbiased grand jury was violated in this case. Immediately after the grand jury was assembled on May 16th, the November 2005 grand jury was informed that an earlier grand jury had already indicted this defendant on one count of bank robbery and that their purpose here was to fix "a defect in the charging instrument." The grand jury was also told that the trial had already commenced, that a petit jury had ...

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