In Defense of the Grand Jury (Part 2): Grand Jury Secrecy

Update: On January 10, 2017, a California Appeals Court struck down the legislation discussed in this post, holding that prohibiting the use of grand juries in police deadly force investigations violated the California constitution. You can read my update about that case here.

Imagine you are a criminal defense attorney whose client has received a subpoena to testify before a federal grand jury. You investigate the case, talk with the prosecutor, and gather as much information as you can. You spend hours with your client preparing him for his testimony. You drive to the federal courthouse together and proceed to the grand jury room. The door opens, the foreperson steps out and calls your client, he steps in, and the door closes behind him.

grand jury door

And you remain outside, sitting in an uncomfortable government chair and wondering what’s happening behind those closed doors.

I’ve never practiced criminal defense, but I’ve always imagined this must be one of the strangest parts of the job: staying outside the grand jury room while your client is led into the proverbial lion’s den. It seems contrary to everything in an advocate’s DNA. While your client is in there you can’t object, you can’t cross-examine, and you can’t protect him. Sure, he has a right to come out and talk to you, but he may be reluctant to do that if he thinks it makes him look bad, or he may forget.

And while waiting to see whether he will come out and talk to you there’s not much you can do — except maybe work on today’s Sudoku puzzle for hundreds of dollars an hour.

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One for my defense attorney friends

One of the most distinctive features of the grand jury is secrecy. Grand jury proceedings take place out of public view and generally remain sealed even after an investigation is concluded. When a witness is testifying no one is present in the grand jury room except the prosecutor, the grand jurors, and the court reporter. When the grand jurors are deliberating over whether to return an indictment there is no one else in the room at all, and the deliberations are not even transcribed. Everyone involved in the process (other than the witness) is sworn to secrecy and prohibited from discussing what goes on in the grand jury room.

This secrecy can lead to mistrust of grand jury proceedings. After all, bad things happen in secret, and much of our government is rightly premised on the belief that sunlight and disclosure are good things. Some argue that this secrecy contributes to the ability of prosecutors to manipulate the grand jurors and convince them to do whatever the prosecutor desires, even if that means indicting a ham sandwich.

These concerns have been amplified in recent state grand jury cases involving investigations of police officers for use of deadly force. When grand juries in Ferguson MO and Staten Island NY failed to indict police officers in the deaths of Michael Brown and Eric Garner, there was widespread criticism and suspicion. Critics claimed that the prosecutors were hiding behind the secret grand jury process and manipulating it in order to avoid indicting police officers with whom they worked closely.

Reacting to such concerns, the state of California last year banned the use of grand juries to investigate cases involving police use of deadly force. California prosecutors in such cases must now decide on their own whether to bring charges.

There’s no doubt that grand jury secrecy contributes to suspicion of the grand jury and to a lack of information and understanding about the grand jury process. But grand jury secrecy is a valuable part of the criminal justice system and serves a number of important goals. Chipping away at that secrecy or prohibiting use of the grand jury in certain types of cases is a bad idea.

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The Rules Governing Grand Jury Secrecy

In the federal system, grand jury secrecy is spelled out in Federal Rule of Criminal Procedure 6(e). Rule 6(e) provides that, with some limited exceptions, no one involved in the grand jury proceeding (other than a witness) may disclose any “matter occurring before the grand jury.” A knowing violation of Rule 6(e) is punishable as contempt of court, the possible sanctions for which include prison.

Grand jury secrecy is not just some aspirational guideline; federal judges take it extremely seriously. Good prosecutors take it seriously as well, not only because it’s their duty to protect 6(e) material but also because of the potential consequences if they don’t. If newspaper articles about a grand jury investigation attribute leaked information to “government sources,” the prosecutor is likely to receive an order from a judge demanding she appear in court to show cause why she and her colleagues should not be held in contempt – never a fun career prospect.

There has been a lot of litigation over what actually constitutes “matters occurring before the grand jury.” At the core of Rule 6(e)’s protection is information about what actually took place inside the grand jury room itself, including the transcripts of testimony, information about exhibits introduced in the grand jury, and the names of witnesses who appeared. Information that would tend to reveal such matters, such as names of witnesses who are slated to testify or the substance of their expected testimony, may also be covered.

On the other hand, it is clear that Rule 6(e) does not shield all aspects of a criminal investigation. Agents may interview ten or a hundred witnesses for each one who actually testifies in the grand jury, and thousands of documents may be reviewed that never end up as grand jury exhibits. Information that exists as part of the broader investigation is not automatically covered by 6(e). Typically the actual grand jury material will be only a small subset of all information gathered during the overall investigation.

But for everything that is covered by Rule 6(e), it is part of the prosecutor’s job to protect the secrecy of that material. She must ensure that confidentiality is maintained, that grand jury materials are appropriately secure, and that access to those materials is controlled. This obligation does not end once an investigation is over; absent a court order, grand jury materials continue to be protected by Rule 6(e) indefinitely.

This secrecy is one thing that makes the grand jury proceeding fundamentally different from a trial, which usually takes place in public view and with the participation of a judge and defense counsel. And it necessarily means that when the grand jury indicts – or particularly when it fails to indict – the public typically has very little information about the basis for that action.

The Benefits of Grand Jury Secrecy

Grand jury secrecy has a number of important benefits. First, it protects the privacy and reputations of those who may be investigated but ultimately not charged. Many grand jury investigations, particularly in the area of white collar crime, end with no charges being filed. The grand jury is an investigative body, and part of its role is to determine whether probable cause exists to justify criminal charges. Sometimes the answer to that question is no, and the investigation is closed down.

Absent grand jury secrecy, those under investigation in such cases could be subject to months of media reports and speculation about their criminal culpability. Grand jury secrecy prevents their names from being unfairly dragged through the mud concerning a matter where ultimately no criminal charges might be filed. Of course, in some high profile cases such as those involving politicians or celebrities – or police shootings — the investigation is known about and widely reported. But grand jury secrecy prevents public disclosure of grand jury investigations from being the norm.

Grand jury secrecy may also protect the integrity of the investigation itself. In some cases there may be concerns that the targets of the investigation will respond to any inquiry by destroying evidence, tampering with witnesses, fleeing the jurisdiction, or otherwise obstructing justice. If the targets of the investigation are not aware it is going on, such dangers are minimized.

Similarly, there may be concerns that potential defendants will collude to “get their story straight” and present a consistent false version of events to the grand jury. If proceedings were public and witness transcripts were readily available, such efforts would be much easier.

Secrecy also protects the privacy and safety of grand jury witnesses. Absent the guarantee of secrecy, some witnesses would be reluctant to come forward or to be fully forthcoming. Witnesses may fear personal or professional retaliation or even violence based on their testimony. A corporate employee may be extremely reluctant to testify against the company if he knows his boss can review the transcript. Officers in a police corruption investigation may be far less likely to provide information against their fellow officers if they know those officers have access to the testimony.

Even when it is known that a certain witness has testified, grand jury secrecy helps to protect that witness. I recall many occasions, dealing with reluctant or frightened witnesses, when I was able to tell them: “Look, I know you don’t want to be here and are nervous/afraid about testifying. But all you need to do is tell the truth. Your boss/fellow officers/ colleagues will not know what you said. In fact, you can walk out of here and tell them whatever you want – tell them you didn’t say anything, or that you told some completely different story. They won’t know the difference.”

The comfort and insulation that grand jury secrecy provides to frightened or reluctant witnesses is probably the greatest benefit of grand jury secrecy. If witnesses routinely had to testify instead at a public preliminary hearing after a prosecutor filed charges, getting information from reluctant or frightened witnesses would be much more difficult.

Grand Jury Secrecy and the California Legislation

All federal felonies will continue to require a grand jury indictment, but the states are free to experiment with their own systems, consistent with their own laws and constitutions. Apparently California prosecutors already had the option of bypassing the grand jury and filing charges on their own in cases involving a police officer. The new law simply means that now using the grand jury in such a case is not even an option. Once the prosecutor files charges, a preliminary hearing before a judge is held to determine whether the case can go forward.

The law was opposed by California prosecutors and law enforcement officials, and with good reason. In general, grand jury secrecy should make investigations of police officers more effective, not less. Witnesses required to testify in a public preliminary hearing are going to face tremendous public pressure. In the grand jury, witnesses can testify as to what they actually observed without worrying about becoming the subject of a vitriolic social media campaign or having protestors picketing outside their home.

The benefits of secrecy in such cases cut both ways. A civilian witness who would testify in favor of the officer need not fear the reaction and outcry from a public outraged about the case. Similarly, a police officer who would testify against his colleague can do so without fearing the reaction from fellow officers. Particularly in cases where the public passions are running high, grand jury secrecy plays a crucial role in allowing witnesses to resist any perceived public pressures and simply testify as to what happened.

The grand jury also serves as the voice and conscience of the community in such high profile, emotional cases. It’s appropriate to have the facts of such cases presented to representatives of the community as embodied in the grand jury, rather than simply have the charging decision made by a prosecutor. Unless one believes (which I don’t) that grand jurors are all just mindless sheep, the members of the community that make up the grand jury are in the best position to bring the perspective and experiences of that community to bear when evaluating a case.

There was a great deal of criticism of the decision of the Ferguson grand jury not to indict officer Darren Wilson in the shooting of Michael Brown. The sponsor of the California legislation said that the failure to indict in that and other cases had fostered an “atmosphere of suspicion” about grand juries. But the grand jurors were members of the same communities that were so outraged by the shootings. And although the grand jury investigation in Ferguson does appear to have been unorthodox in some ways, an independent investigation by the U.S. Department of Justice also concluded that criminal charges against Wilson were not appropriate. There is no evidence that the grand jury process somehow led to an unjust result.

Charging decisions can’t be made in the heat of the moment, or be based on the outrage of persons who were not on the scene and who form their views of the case largely from media reports. The grand jury process and grand jury secrecy help to ensure that decisions are made with time, care and deliberation, largely free from public pressure and media scrutiny, and based on sworn testimony of those actually involved.

It’s hard to see the rationale for singling out a particular category of crimes or potential defendants and denying them the protections afforded by the grand jury process. Police officers under investigation are entitled to the same procedural rights – including, of course, the presumption of innocence – as other suspects. The grand jury process can play an important role in preserving those rights.

The irony of the California law is that, in the name of increasing transparency, it likely will make it more difficult to gather accurate information in police cases and increase the likelihood of bad charging decisions. There is understandable public concern about cases involving police use of deadly force, and broader concerns about law enforcement in general in a number of communities, including Ferguson. But the response to those concerns should not be to prohibit the use of an institution that has been a valuable component of our criminal justice system for centuries.

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Click here to read part one of this post, “The Guilty Ham Sandwich.”

Click here to read part three of this post, “Disclosure of Exculpatory Information”

Extortion Distortion: Ocasio v. United States

Note: this post is adapted from an article I published in the George Washington Law Review’s On the Docket.  You can find that article here.

In criminal law, we ordinarily think of perpetrator and victim as two distinct entities. It would be nonsensical, for example, to talk about me robbing myself or defrauding myself. But last week in Ocasio v. United States the Supreme Court ruled 5-3 that a defendant may be charged with conspiring to extort money from himself.

So what makes such a contortionist extortionist possible? Although it sounds a bit bizarre, this result doesn’t represent some new watershed in white collar crime or dramatic expansion of federal criminal jurisdiction. It’s simply the logical, albeit unfortunate, outgrowth of a questionable Supreme Court decision more than two decades old.

Samuel Ocasio was one of dozens of Baltimore police officers involved in a widespread corruption scheme with the owners of a garage called Majestic Auto Repair. Police officers would refer drivers involved in car accidents to Majestic for necessary repairs, and in return the garage owners would pay the officers $150 to $300 per car. When the scheme came to light Ocasio, a number of other officers, and the owners of Majestic were charged with conspiracy to commit extortion under the Hobbs Act.

Extortion usually connotes payments made under some kind of duress; think burly guy smacking his palm with a baseball bat while he recommends that you buy the “health insurance” he is selling. But the Hobbs Act also prohibits extortion “under color of official right,” which essentially operates as bribery by another name. And because the federal bribery statute generally applies only to federal officials, prosecutors frequently turn to Hobbs Act extortion to prosecute state and local bribery schemes such as that in Ocasio.

Evans and Extortion Under Color of Official Right

The use of Hobbs Act extortion to prosecute bribery has its roots in a 1992 Supreme Court Case, Evans v. United States. Evans, a county commissioner in Georgia, was convicted of extortion under color of official right for accepting money in exchange for a favorable zoning decision. The Court rejected Evans’ claim that he had to actually induce the payment or “shake down” the payer to be guilty of extortion. It held that at common law extortion under color of official right was the “rough equivalent of what we would now describe as ‘taking a bribe.’” It was enough that a public official accepted a payment knowing that it was given in exchange for some exercise of official power.

Justice Thomas wrote a vigorous dissent in Evans, joined by Justice Scalia and Chief Justice Rehnquist. He argued that bribery and extortion had always been distinct crimes and that the majority’s decision obliterated that distinction. In particular, in a bribery case both sides – the bribe payer and the bribe recipient – are guilty parties to a corrupt deal, and both may be prosecuted. But in extortion, the person who pays the official is considered a victim, not a willing and culpable participant.

Because the payer of extortion is generally considered a victim, extortion under color of official right applies only to public officials. On its face, the Hobbs Act does not punish the payment of the extortion. What Evans resulted in, therefore, was an oddity probably unique in criminal law: a statute that prohibits bribery but only punishes the public official side of the bribe transaction. More than twenty years later, the implications of that decision led to the dispute that landed before the Supreme Court in Ocasio.

Once Evans declared extortion under color of official right to be equivalent to bribery, it was predictable that prosecutors in appropriate cases would seek a way to charge the payer’s side of those bribery transactions. Some cases have charged bribe payers with aiding and abetting their own extortion by the officials they were paying. An equally inelegant theory is that used in Ocasio: prosecutors indicted the garage owners and Officer Ocasio for conspiracy to violate the Hobbs Act, charging that the owners conspired with Ocasio to extort money from the owners themselves.

Baltimore_Police_Department_Chevy_Caprice_PPV_New_Paint_Scheme

Ocasio and the Court’s Opinions

Ocasio’s case before the Court challenged this conspiracy theory and hinged on the language of the Hobbs Act. The statute’s definition of extortion requires that the public official obtain property from “another.” In the context of a conspiracy, Ocasio claimed, this must mean the conspirators agree to obtain property from someone outside of that conspiracy. If the co-conspirators simply agree to exchange property among themselves, he argued, they do not obtain property of “another” within the meaning of the statute.

The majority, through Justice Alito, rejected this argument. Ocasio’s conviction, the Court said, was simply a straightforward application of textbook conspiracy law: someone can be guilty of conspiracy to commit a crime even if they didn’t — or couldn’t — commit all elements of the underlying crime themselves.

For example, if I act as an agent for a Congressman to solicit bribes from defense contractors, I can be found guilty of conspiracy to accept bribes even though, as someone who is not a public official, I could not be charged with accepting bribes myself. If I participate in a bank robbery by providing the robbers with inside information about the bank vault and security, I’ve conspired to commit bank robbery even if I never take part in the actual robbery itself.

In Ocasio’s case, the Court held, it’s true the garage owners, as private citizens, could not commit the crime of extortion under color of official right, and if they obtained their own money it would not be property from “another.”  But although the owners could not commit the crime themselves, they could conspire to help officer Ocasio commit it. Ocasio violated the statute by obtaining property from another — which simply means someone other than Ocasio, in this case, the owners — and the owners agreed to help him do it. Accordingly, the conspiracy charge was not inconsistent with the language of the Hobbs Act, even though the “victims” whose property was obtained were also part of the conspiracy itself.

The Court rejected concerns that this holding might make even innocent extortion victims liable for conspiring with public officials who were shaking them down. There is a distinction, the Court noted, between grudging consent given by a payer who feels he has no alternative and the proof of intent required to establish that the payer knowingly and voluntarily joined a conspiracy. Only the latter is the equivalent of bribery that would render the payer equally as culpable as the public official.

Justice Breyer wrote a brief concurrence, saying that the convoluted result made him tend to agree with Justice Thomas that Evans was probably wrongly decided. Nevertheless, he concluded, Ocasio had not asked the Court to overrule Evans, and given that case’s holding the majority opinion was correct as a matter of conspiracy law.

Justice Thomas, not surprisingly, dissented and reiterated his view that Evans was a mistake. He argued the Court should not compound the error by extending the reasoning of Evans to encompass Hobbs Act conspiracy. Justice Sotomayor, joined by Chief Justice Roberts, wrote a separate dissent agreeing with Officer Ocasio that the most natural reading of the statutory language required the members of the conspiracy to obtain the property of someone outside the conspiracy.

The Impact of Ocasio: Not Much

I think Justice Breyer has it right; if we start with the Evans holding as a given, then Ocasio seems correct. The linguistic gymnastics required to frame a charge against the bribe payers in what is really a bribery case do highlight the shaky foundation of the Evans holding equating extortion with bribery. But as the majority noted, if you accept Evans, then basic conspiracy law dictates the result in Ocasio.

The dissenters expressed concerns about the breadth of federal criminal statutes and the scope of conspiracy law. Justice Sotomayor said she feared the Court’s ruling would invite prosecutors to round up all parties in an extortion scheme, charge everyone with conspiracy, and see “what sticks and who flips.” They also raised federalism concerns, questioning whether it was appropriate for the federal government to pursue local corruption cases that could be left to the states.

Debates about sweeping federal criminal statutes and the dangers of prosecutorial power are common these days. The pending case involving the corruption convictions of former Virginia Governor Bob McDonnell (also a Hobbs Act case) contains many of the same themes. But in Ocasio, concerns about inappropriate charges have little force. No one suggests the owners of Majestic were not blameworthy or did not deserve to be prosecuted.

As for federalism concerns, there are already many ways for federal prosecutors to charge state and local bribery. Even before the Court’s decision in Skilling v. United States, for example, it’s been clear that honest services mail and wire fraud applies to bribery and kickback schemes like that in Ocasio. Under certain conditions the Travel Act (18 U.S.C. § 1952) and the Federal Program Bribery statute (18 U.S.C. § 666) also apply to state and local corruption. It’s even likely that prosecutors could have named Majestic as a RICO enterprise and indicted everyone involved for violating RICO (18 U.S.C. § 1962) based on a pattern of state-law bribery.

In short, there are plenty of ways for federal prosecutors to pursue state and local corruption. The Hobbs Act is just one potential arrow in the prosecutor’s quiver. If Ocasio had gone the other way, I doubt there’s a single future case that would have gone unprosecuted as a result. If some members of the Court really have issues with federal prosecutors having the power to charge state and local bribery, they are several decades late to that party.

The concern about prosecutors having the power to pick and choose whom to charge with conspiracy is similarly misplaced. Prosecutors do this all the time when deciding whether a particular scheme is a true extortion scheme, where the payers are the victims, or is more like a traditional bribery scheme where the payers should be charged. That’s the essence of prosecutorial discretion and making sound charging decisions.

It’s a little disheartening to hear Justice Sotomayor, herself a former prosecutor, suggest that prosecutors might just round up everyone they see and charge them with conspiracy with no regard for their actual culpability. If that were to actually happen it would be a much bigger problem than simply the breadth of the Hobbs Act – but the presence or absence of one legal theory would not make any practical difference to such “rogue prosecutors.”

In the end, therefore, Ocasio leaves the white collar crime landscape largely unchanged. Future defendants, seeing a potential invitation in Ocasio, will likely file petitions asking the Court to overturn Evans, but it’s tough to see a current majority willing to do that. Congress, of course, could step in and clear everything up by amending the Hobbs Act, but that seems even less likely given the current gridlock on Capitol Hill.

And so the Hobbs Act remains as one of many powerful tools for federal prosecutors — and a quirky one, given the untidy legacy of Evans and its peculiar version of extortion distortion.

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