PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4739
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
MARIA ROSALBA ALVARADO MCTAGUE; FELIX ADRIANO CHUJOY, a/k/a
Felix Chujoy Alvarado; GLADYS GEORGETTE CHUJOY, a/k/a
Gladys Johnston,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Michael F. Urbanski,
District Judge. (5:14-cr-00055-MFU-1; 5:14-cr-00055-MFU-2;
5:14-cr-00055-MFU-3)
Argued: September 23, 2016 Decided: October 26, 2016
Before DUNCAN, AGEE, and HARRIS, Circuit Judges.
Vacated and remanded by published opinion. Judge Duncan wrote
the opinion, in which Judge Agee and Judge Harris joined.
ARGUED: Jean Barrett Hudson, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellant. Aubrey Gene
Hart, Jr., A. GENE HART, JR., PC, Harrisonburg, Virginia; Aaron
Lee Cook, AARON L. COOK, PC, Harrisonburg, Virginia, for
Appellees. ON BRIEF: John P. Fishwick, Jr., United States
Attorney, Roanoke, Virginia, Heather Lynn Carlton, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellant. W. Andrew Harding,
CONVY & HARDING, PLC, Harrisonburg, Virginia, for Appellee
Gladys Georgette Chujoy.
2
DUNCAN, Circuit Judge:
The government brings this interlocutory appeal from an
order of the district court excluding grand jury testimony from
use at trial without having found prosecutorial misconduct or
bad faith in the underlying grand jury proceeding. For the
reasons that follow, we vacate the order and remand for further
proceedings not inconsistent with this opinion.
I.
A.
The grand jury investigation at issue here took place in
October 2015, but relates back to criminal proceedings that
began in 2014. On December 4, 2014, a federal grand jury
indicted Maria Rosalba Alvarado McTague (“Alvarado”) and Felix
Chujoy (“Felix”) on charges of visa fraud and various
immigration violations stemming from their operation of a
Peruvian restaurant in Virginia. The indictment alleged that
Alvarado smuggled immigrants into the United States to work in
the restaurant. It further alleged that both Alvarado and Felix
employed these and other undocumented immigrants in horrendous
and illegal working conditions, either paying them well below
the minimum wage or requiring them to work as indentured
servants to repay Alvarado for smuggling them into the United
States.
3
After their arrest, the district court released Alvarado
and Felix on bond. As a condition of release, Alvarado and
Felix could not contact witnesses or alleged victims in the
case.
During this time, a grand jury continued to investigate
additional charges and suspects. In expectation of a
superseding indictment, the parties jointly moved for a
continuance. The district court granted the motion and
postponed trial to June 22, 2015.
B.
On March 12, 2015, the grand jury returned a superseding
indictment. The superseding indictment (1) charged Alvarado and
Felix with additional labor trafficking counts, (2) added Gladys
Chujoy--Felix’s sister and Alvarado’s daughter--as a defendant,
and (3) charged all three Defendants with obstruction of
justice, witness tampering, and conspiracy to witness tamper.
The magistrate judge released Gladys Chujoy on bond, but revoked
bond for Alvarado and Felix after finding probable cause to
believe that they had violated their conditions of release.
Evidence suggested that Alvarado and Felix had been contacting
witnesses using other people’s phones to avoid detection. Over
the next several months, the government investigated these
allegations by interviewing individuals whose telephone numbers
appeared in witnesses’ cellphone records.
4
In May 2015, as part of this investigation, the government
interviewed several friends of Alvarado and the Chujoys,
including Carolyn Edlind and Sheriff Donald Smith. Based on
those interviews, the government subpoenaed Edlind and Smith to
testify at the upcoming trial.
On June 21, 2015, due to a personal emergency, the
government moved for another continuance. The district court
granted the motion, finding it to be in the interest of justice.
So as not to adversely affect Alvarado and Felix, it ordered
them released from jail on bond. Although Alvarado was obliged
to obtain new counsel, Defendants did not object to the
continuance and explicitly waived any potential speedy trial
objection. The district court scheduled the new trial date for
October 26, 2015.
In late August 2015, counsel for an inmate at the
Rockingham County Jail invited the government to interview his
client about information concerning Felix. Felix had been
incarcerated at the Rockingham County Jail with this inmate
following his arrest on the superseding indictment. The inmate
revealed that he and other inmates had given Felix their PIN
numbers so that Felix could make calls from jail without
detection. The government obtained recorded conversations from
the jail and discovered that Felix had placed at least eleven
calls from May 2015 to June 2015 using other inmates’ PIN
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numbers. Felix spoke with Smith on nine of those calls, and the
conversations provided evidence of a witness-tampering scheme
between Felix, Edlind, and Smith--information that Edlind and
Smith did not disclose during their May 2015 interviews with
federal law enforcement.
C.
Because this conduct took place after the superseding
indictment, the United States began a new investigation of Felix
regarding witness tampering and obstruction of justice. The
government subpoenaed Edlind and Smith to testify when the next
grand jury convened on October 6, 2015. Edlind’s and Smith’s
testimony provided further evidence of the post-superseding
indictment witness-tampering scheme. The government promptly
disclosed the grand jury evidence to the district court and
Defendants.
On October 20, 2015, the government presented the grand
jury with additional testimony and physical evidence concerning
the potential witness-tampering scheme between Felix, Edlind,
and Smith. That same day, the grand jury returned a new
indictment against Felix and Edlind on multiple counts,
including conspiracy to witness tamper, witness tampering, and
obstruction of justice. The indictment also charged Edlind with
perjury and a second count of obstruction of justice for
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allegedly lying during her grand jury testimony about her
contact with Felix.
In response to this new information, Alvarado filed a
motion for a continuance to investigate possible prosecutorial
misconduct at the October 2015 grand jury proceedings. The
district court granted the continuance and set a new trial date
of December 1, 2015. In addition, the district court invited
Defendants to file motions related to prosecutorial misconduct
after reviewing the grand jury transcripts disclosed by the
government.
D.
On November 13, 2015, Defendants filed a joint motion to
dismiss all indictments, claiming that the government abused the
October 2015 grand jury process by gathering evidence for the
superseding indictment. Specifically, Defendants alleged that
the government called Edlind and Smith before the grand jury for
the dominant purpose of gathering additional evidence against
Defendants on the superseding indictment and discovering
Defendants’ evidence and trial strategy. The district court
denied Defendants’ motion, finding that no prosecutorial
misconduct occurred.
The district court nevertheless limited the government’s
use of October 2015 grand jury evidence at the upcoming trial on
the superseding indictment. The district court concluded that
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the government could not (1) call Edlind or Smith to testify in
its case-in-chief as to any subjects covered in their October 6,
2015, grand jury testimony, nor could it (2) use their grand
jury testimony for any purposes at trial--including to impeach
Edlind or Smith, if Defendants called them as witnesses.
The district court based its remedy on a “unique
combination of circumstances,” which it found to be
“fundamentally unfair.” J.A. 460. First, the district court
found that several lines of questioning extended beyond the new
witness tampering and obstruction charges into allegations
underlying the original charges. J.A. 458. Second, the
district court cited “the ongoing delay” occasioned by the
second continuance, sought by the government, and the third
continuance, sought by Defendants. J.A. 459. It bears
repeating that in addition to expressly finding that “the
government’s examination of Edlind and Smith did not go so far
as to constitute misconduct,” J.A. 455, the district court also
did not hold that the government engaged in bad-faith
questioning or abused the grand jury process.
The government appeals the district court’s order pursuant
to 18 U.S.C. § 3731 and 28 U.S.C. § 1291.
8
II.
On appeal, the government argues that the district court
abused its discretion by sanctioning the government without
finding prosecutorial misconduct. According to the government,
in the absence of such a finding, an evidentiary exclusion will
never lie. Defendants counter that the district court
justifiably fashioned a limited evidentiary remedy to address
fundamental unfairness.
This court reviews a district court’s evidentiary rulings
for abuse of discretion. United States v. Hedgepeth, 418 F.3d
411, 418–19 (4th Cir. 2005). Although this standard accords
deference to the district courts, it does not insulate them from
review. A district court abuses its discretion when it (1) acts
“arbitrarily, as if neither by rule nor discretion,” (2) fails
to “adequately . . . take into account judicially recognized
factors constraining its exercise” of discretion, or (3) rests
its decision on “erroneous factual or legal premises.” James v.
Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).
We find that the district court abused its discretion in
this case. District courts have the supervisory duty to ensure
that the grand jury “process is not abused or used for purposes
of oppression or injustice.” United States v. U.S. Dist. Court
for S. Dist. of W. Va., 238 F.2d 713, 722 (4th Cir. 1956). But
a district court must provide a sufficient explanation for its
9
decisions in furtherance of that duty to provide a meaningful
basis for review. See Jacobson, 6 F.3d at 239–40. That is what
the district court failed to do here. As we explain below, its
stated reasons do not comport with our precedent or the facts of
record, and its conclusion regarding “fundamental fairness”
provides no legal standard by which to measure the
appropriateness of the evidentiary exclusion.
We nevertheless reject the government’s argument that the
district court may never exclude grand jury evidence except as a
sanction for prosecutorial misconduct. The absence of such a
finding, however, makes it particularly incumbent upon the
district court to explain both the reasoning for and the
parameters of any exclusion of evidence derived from grand jury
proceedings.
We begin by considering our precedent on grand jury abuse.
We then consider the district court’s stated reasons for the
evidentiary exclusion in light of that precedent. And finally,
we address the government’s argument for a categorical rule.
A.
Under our precedent on grand jury abuse, this court adheres
to “the universal rule” that prosecutors cannot use grand jury
proceedings for the “sole or dominant purpose” of preparing for
trial on an already pending indictment. United States v. Moss,
756 F.2d 329, 332 (4th Cir. 1985). For example, the government
10
may not use the grand jury to improve its case in an already
pending trial by preserving witness statements, locking in a
witness’s testimony, pressuring potential trial witnesses to
testify favorably, or otherwise employing the grand jury for
pretrial discovery. See id. at 331–32 (collecting cases). In
short, “once a criminal defendant has been indicted, the
Government is barred from employing the grand jury for the ‘sole
or dominant purpose’ of developing additional evidence against
the defendant.” United States v. Bros. Constr. Co. of Ohio,
219 F.3d 300, 314 (4th Cir. 2000)(quoting Moss, 756 F.2d
at 332). A district court has discretion to take appropriate
remedial action where it finds grand jury abuse in the form of
an improper sole or dominant purpose. See United States v.
Brinkman, 739 F.2d 977, 980 (4th Cir. 1984). Here, the district
court did not find an improper sole or dominant purpose, but
nevertheless determined there was a need to fashion an
evidentiary remedy based on perceived fundamental unfairness.
However, to protect the grand jury’s investigative
function, this court has repeatedly recognized that district
courts should refrain from intervening in the grand jury process
absent compelling evidence of grand jury abuse. See, e.g.,
Moss, 756 F.2d at 331–32. Defendants alleging grand jury abuse
bear the burden of rebutting the “presumption of regularity
attache[d] to a grand jury’s proceeding.” Bros. Constr.,
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219 F.3d at 314 (quoting Moss, 756 F.2d at 332). This
presumption is further strengthened where, as here, a grand jury
returns new indictments with additional charges or defendants.
See Moss, 756 F.2d at 332–33. Indeed, some of our sister
circuits have gone so far as to hold that the government has an
automatic safe harbor when the superseding indictment adds new
charges or new defendants. See, e.g., United States v. Flemmi,
245 F.3d 24, 30 (1st Cir. 2001).
Although our circuit has not applied such a per se rule,
the fact that new indictments issued is a circumstance a
district court should factor into its overall analysis as
militating in favor of the government, not just in determining
the dominant purpose of the grand jury proceeding, but also in
crafting an evidentiary remedy. “The function of the grand jury
is to inquire into all information that might possibly bear on
its investigation until it has identified an offense or has
satisfied itself that none has occurred.” United States v.
R. Enters., Inc., 498 U.S. 292, 297 (1991). Such an
investigation requires broad and thorough examination of grand
jury witnesses. United States v. Dionisio, 410 U.S. 1, 12–13
(1973).
When there is a pending indictment, grand jury witnesses
often have information pertinent to both already-indicted
charges and new charges. The grand jury is not required to
12
disregard the former when investigating the latter. “Lacking
clairvoyance, grand juries must be allowed to investigate freely
individuals suspected of involvement in crimes for which
indictments have already been issued.” Moss, 756 F.2d at 332.
An already-indicted defendant is not insulated from a grand jury
investigation into new offenses committed after the initial
indictment. Id. at 331–32. A grand jury in such a situation
must perform the same broad and thorough investigation required
of all grand juries. See Blair v. United States, 250 U.S. 273,
282 (1919) (“As has been said before, the identity of the
offender, and the precise nature of the offense, if there be
one, normally are developed at the conclusion of the grand
jury's labors, not at the beginning.”). A district court has
some supervisory authority over these proceedings, but it should
not restrict grand jury evidence arising out of “a good-faith
inquiry into charges that are not covered in the [initial]
indictment.” Bros. Constr., 219 F.3d at 314.
B.
In light of this precedent, we next examine the district
court’s proffered reasons for its exclusion of evidence remedy:
(1) the scope of questions asked at the October 2015 grand jury
proceeding and (2) “ongoing delay” occasioned by the second and
third trial continuances. We are compelled to conclude that
neither reason justifies the district court’s remedy.
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1.
Part of the perceived necessity for a remedy arose from the
district court’s finding that “a not-insignificant portion of
the questions asked at the October grand jury session went
beyond the subject of witness tampering and obstruction, and
delved into information probative to the underlying charges.”
J.A. 458. The district court also noted that “questions asked
about conversations between the witnesses and defense counsel
[were] of particular concern. Because so many of the
government’s questions addressed issues closely intertwined with
the underlying charges, including a potential trial defense,
some evidentiary restriction [was] needed.” J.A. 458.
The reasoning underlying the district court’s observations
is obscure and does not provide a basis upon which appellate
review can be conducted. The opinion fails to explain the
relevance of the fact that the government’s questioning may have
been “closely intertwined with the underlying charges” to the
determination of whether the questions arose out of “a good-
faith inquiry into charges that [were] not covered in the
indictment.” Bros. Constr., 219 F.3d at 314. Uncovering
evidence against an already-indicted person does not provide
ipso facto evidence that the government failed to conduct its
questioning in good faith. Moss, 756 F.2d at 332. In this
regard, the district court’s opinion fails to explain how it
14
factored the issuance of the new indictments into its analysis
of any ground for an evidentiary remedy. Again, broader lines
of questioning help determine what charges are appropriate, and
which suspects should be tried. R. Enters., 498 U.S. at 297.
Incidental benefits alone cannot justify exclusion of grand jury
evidence. See Moss, 756 F.2d at 332; United States v. (Under
Seal), 714 F.2d 347, 350 (4th Cir. 1983). The district court
abused its discretion when it based its evidentiary exclusion
partially on the grounds that some questions “seem[ed] to stray
far afield of the new allegations,” J.A. 455, without providing
a legal justification for so doing. 1
2.
The district court also stated that the delay occasioned by
two of the trial continuances supported its evidentiary remedy.
J.A. 459–60. But like the discussion about the scope of the
1 Furthermore, the district court’s reliance on Brothers
Construction as authority to the contrary is misplaced. Like
the district court in our case, the district court in Brothers
Construction limited evidentiary use of some testimony without
finding prosecutorial misconduct. 219 F.3d at 313–14. However,
in Brothers Construction, these evidentiary rulings were not at
issue on appeal. Moreover, the district court in Brothers
Construction did not explain the legal basis for its evidentiary
rulings, and the only other reference to these rulings occurs in
a trial transcript. J.A. 458 n.3. Likewise, that transcript
also fails to offer legal justification for the district court’s
exclusion, noting only that the district court planned to
exclude some evidence. One district court’s legally
unsubstantiated remedy does not justify another district court’s
legally unsubstantiated remedy.
15
government’s questioning, we cannot discern from the district
court’s opinion how the government’s conduct in relation to the
continuances supported the district court’s remedy.
The first cited continuance resulted from the government’s
emergency motion in June 2015. The district court noted that
this continuance caused the delay that required Alvarado to
obtain new counsel. However, as we have noted, Defendants were
released from jail to minimize any adverse effect on them.
Moreover, while the district court is responsible for balancing
prejudice to defendants in granting a continuance, United States
v. LaRouche, 896 F.2d 815, 823–25 (4th Cir. 1990), the district
court here found that granting the continuance would be in the
interest of justice. The district court must explain why a
delay it found fully justified at the time, now supports an
evidentiary remedy.
The district court further stated that “[i]n granting the
government’s motion for a continuance in June, the court did not
expect that the government would undertake to develop additional
evidence for use at trial.” J.A. 460. This statement, too, is
perplexing; how it relates to Defendants’ claims of grand jury
abuse is not clear. The district court did not explicitly state
that the government used the October 2015 grand jury hearing to
develop additional evidence for already-indicted offenses;
indeed, in finding neither prosecutorial misconduct nor bad
16
faith the district court suggests to the contrary. We fail to
see, and the district court fails to explain, how the
government’s preparation for trial otherwise has any bearing on
the district court’s conclusion that an evidentiary exclusion
was required.
The only other motion for a continuance cited by the
district court as a basis for its evidentiary remedy is
Alvarado’s. J.A. 459–60. To justify reliance on Alvarado’s
motion for a continuance to impose evidentiary sanctions on the
government, the district court attributes the impetus for the
motion to the October 2015 indictment. This rationale fails for
the same reason that the government’s motion for a continuance
does: the district court does not explain how the government
engaged in anything other than a good-faith inquiry into new
charges. Citing the indictment alone for evidence of grand jury
abuse directly contradicts our prior holding that an indictment
provides strong evidence of a proper purpose. See Moss, 756
F.2d at 332–33.
In the absence of a tenable explanation we are left to
infer that the district court perceived a pattern of
questionable behavior on the part of the government motivating
the delay. However, the district court did not explicitly
detail such a finding, or for that matter specify what
government conduct was impermissible. This court will not read
17
between the lines to affirm an order that affects the
independence accorded to the grand jury’s investigative process.
If new evidence came to the district court’s attention that
prosecutorial misconduct or bad faith contributed to the
circumstances causing either continuance, then the district
court must state so in its opinion. See In re Grand Jury
Subpoena, 175 F.3d 332, 337–38 (4th Cir. 1999)(finding that
timing of events could be one factor a district court considers
in deciding whether sufficient prosecutorial misconduct exists
to justify quashing a grand jury subpoena). The district court
abused its discretion in citing delay as a justification for its
remedy without explaining how the delay related to alleged grand
jury abuse and why a remedy of evidentiary exclusion was
appropriate.
C.
On appeal the government not only argues that the district
court lacked a justification for its remedy, but also takes the
further step of urging us to hold that a district court has no
power to issue a remedy when it finds a proper dominant purpose.
Although the Fourth Circuit has not squarely confronted the
issue, at least one other circuit has taken such a stance. See
United States v. US Infrastructure, Inc., 576 F.3d 1195, 1215
(11th Cir. 2009) (rejecting the defendants’ claims of grand jury
abuse “[b]ecause the government did not use the grand jury
18
‘primarily’ to obtain evidence” related to prior indictments
where most of the questioning related to new charges).
We nevertheless decline to adopt the government’s position.
Our precedent “forbids” the government from engaging in
impermissible questioning during a grand jury proceeding. See
In re Grand Jury Proceedings No. 92-4, 42 F.3d 876, 878
(4th Cir. 1994) (“This prohibition bars, inter alia, grand jury
requests that amount to civil or criminal discovery, as well as
arbitrary, malicious, or harassing inquiries.” (internal
citation omitted)). We are not prepared to say that there could
be no circumstances in which the government has undertaken a
line of questioning that falls just short of impermissibility
but nevertheless calls for some remedial action. See id.; see
also United States v. Doe, 455 F.2d 1270, 1276 (1st Cir. 1972).
District courts must be vested with some discretion to remedy
conduct they find troubling even if the conduct does not rise to
the level of misconduct. A defendant claiming grand jury abuse
faces an uphill climb, but this court will not render the hill
insurmountable.
It is simply that, on these facts, the district court has
provided us with no navigational aids. Where the district court
cannot conclude the government employed the grand jury for an
improper sole or dominant purpose, it becomes even more
incumbent upon the district court to state with particularity
19
what it found troubling, and how it tailored its remedy to
correct that finding. Otherwise such exclusions risk chilling
proper uses of the grand jury.
The instant case presents an apt example. The nature of
questioning for a grand jury investigating obstruction of
justice or witness tampering will necessarily require some
inquiry into the facts of the underlying, ongoing case. As the
district court itself recognized, “questions that touched on
Edlind’s and Smith’s prior contact with Alvarado, [Felix]
Chujoy, and [Gladys] Chujoy have a credible relationship with
the new allegations of witness tampering.” J.A. 455. It is for
this reason that the district court found that Defendants had
not met their heavy burden of demonstrating “that the government
questioned Edlind or Smith with the sole or dominant purpose of
preparing for trial on the superseding indictment.” J.A. 457.
The record supported this conclusion.
Yet the district court continued, finding it “necessary to
fashion an appropriate evidentiary remedy.” J.A. 457. But to
fashion an appropriate remedy the district court must identify
with specificity what troubling circumstances justified its
evidentiary exclusion, and how it narrowly tailored that
exclusion to prevent sweeping up evidence that arose from good-
faith questioning. Holding otherwise would disregard the
principle that “the law presumes, absent a strong showing to the
20
contrary, that a grand jury acts within the legitimate scope of
its authority.” R. Enters., 498 U.S. at 300.
III.
What undergirds our decision today is the presumption of
regularity attached to grand jury proceedings. In cases like
the present one, the fact that a challenged grand jury
proceeding returns new indictments renders this presumption even
stronger. This court will not affirm an order overriding that
presumption on the basis of mere concerns divorced from any
recognized legal justification.
Therefore, we hold that the district court abused its
discretion. On remand, the district court should allow the
government to use Edlind’s and Smith’s grand jury testimony or
explain with specificity both the legal basis for its exclusion,
and how its sanction is narrowly tailored to that concern. For
the reasons stated above, we vacate the order and remand for
further proceedings not inconsistent with this opinion.
VACATED AND REMANDED
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