United States v. Mechanik

K.K. HALL, Circuit Judge,

concurring in part and dissenting in part:

I concur in all aspects of the majority’s opinion except for its holding that the violation of Federal Rule of Criminal Procedure 6(d) was of such magnitude as to compel the dismissal of appellants’ convictions for conspiracy. In my view, the majority has misconstrued the applicable law in evaluating this issue. Thus, because I would affirm the conspiracy convictions, I must dissent in part.

In United States v. Computer Sciences Corp., 689 F.2d 1181 (4th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983), this Court held that five brief intrusions by unauthorized persons during a grand jury investigation did not require dismissal of the indictment stemming from those proceedings. In reaching this conclusion, we emphasized that when evaluating alleged violations of Rule 6(d) “each situation should be addressed on a sui generis basis.” Id. at 1185. Applying this rule to the facts of that case, we found that Computer Sciences was “a case ‘absent demonstrable prejudice or substantial threat thereof’ so that ‘dismissal of the indictment [was] inappropriate.’ ” Ibid. (quoting United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981)) (emphasis added).1

In a carefully reasoned opinion, the district judge in the instant case followed the guidelines enunciated in Computer Sciences. Judging the case on its own peculiar facts and merits, he found that although a violation of Rule 6(d) had occurred when the government agents testified jointly before the grand jury, it had not been of such magnitude as to require dismissal of the indictments for conspiracy. Following this Court’s lead in Computer Sciences, the district judge placed considerable emphasis on the question of whether *142appellants suffered demonstrable prejudice.2

Judge Copenhaver made a detailed analysis of the possible prejudicial impact of the Rule 6(d) violation on appellants' conspiracy indictments. It is true that appellants were tried on the superseding indictment and that several alterations and additions had been made in that indictment with respect to the conspiracy count. After carefully evaluating these changes, Judge Co-penhaver found that each such alteration or addition was “either supported by testimony apart from the [agents’] joint testimony or became moot by virtue of the acquittal of [codefendants] Kook and James Chadwick.” 3 Pursuant to this analysis, he concluded that the possibility of prejudice existed only “in the sense that all things are possible,” and that “the existence of actual prejudice is so utterly remote [as to] appropriately be disregarded.” 4 Indeed, even on appeal appellants have been unable to advance any basis for a claim of prejudice.

The majority, citing case law from other circuits for the proposition that no showing of prejudice is required to quash an indictment in violation of Rule 6(d),5 reverses the district judge’s decision on the conspiracy count without considering any of the aforementioned factual findings. In so doing, it has, in effect, tried to establish the very per se rule which this Court rejected in Computer Sciences. The majority has ignored the guidelines enunciated in Computer Sciences requiring the district judge to evaluate such cases “on a sui generis basis.” In my view, the majority is bound by Computer Sciences and may not rely on the case law of other circuits to reverse appellants’ convictions. Such a decision is particularly undesirable here, where the part of the superseding indictment found to be bad closely tracked the charging portion of the original indictment and in no way surprised or prejudiced the defendants.

For the foregoing reasons, I would affirm appellants’ conspiracy convictions as well as their convictions on the substantive counts.

. The Court later reiterated this point by stating that "The case before us, in short, is one where there has been no ... prejudice to the defendant.” 689 F.2d at 1185.

. The district judge also considered relevant case law, legislative history, and policy considerations in making his decision.

. United States v. Lill, 511 F.Supp. 50, 59 (S.D.W.Va.1980).

. Id. at 61.

. See United States v. Echols, 542 F.2d 948 (5th Cir.1976); United States v. Phillips Petroleum Co., 435 F.Supp. 610 (N.D.Okl.1977); United States v. Borys, 169 F.Supp. 366 (D. Alaska 1959).