The opinion of the court was delivered by: TAMM
The defendants Hialmar H. Carper and William L. Taylor have been charged in a multiple count indictment with conspiring to violate the Federal narcotic laws and with accepting bribes while being members of the Metropolitan Police Department of the District of Columbia. The case is presently before the Court upon the defendants' motion to dismiss the indictment. This motion is predicated upon the charges that unauthorized persons were present in the grand jury room while the grand jury was in session, while the grand jury was deliberating, and while the grand jury was voting.
The Government in its pleading opposing the Pending motion admits that three United States deputy marshals were in the grand jury room while that body was hearing testimony against the defendants. The Government states that these deputy marshals were present while prisoners in their custody were testifying before the grand jury. In justification of the marshals' presence, the Government argues the necessity of deputy marshals' being present to guard the prisoner-witnesses and the failure of the defendants to show they were prejudiced by such presence. The opposition denies that anyone other than members of the grand jury was present when the grand jury was deliberating or voting. Included in the Government's pleadings are the sworn affidavits of three deputy marshals who admit their presence in the grand jury room while prisoners in their custody were testifying, but deny being present while the grand jury was deliberating or voting.
The Court has held a hearing on the motion to dismiss which included both testimony and argument. It is established that the United States deputy marshals were in the grand jury room on a substantial number of occasions while witnesses who were prisoners in their custody were testifying before the grand jury hearing evidence against these defendants. There is no evidence that these marshals or anyone else was present when the grand jury was deliberating or voting.
Challenges to the validity of indictments upon the ground that unauthorized persons were in the grand jury room are not new.
The long line of recorded cases upon this subject reaches back through the centuries to the beginnings of the grand jury system. A large number of cases within the United States disclose a varity of judicial interpretations and rulings, and widespread differences of opinion upon substantially the same factual situations.
Two considerations have occupied the attention of most courts: (1) was the presence authorized, and (2) was the defendant prejudiced by such presence. Upon the first point there is strong conflict, many of the cases turning on a statute, with some decisions resting upon a strict reading of the statute, and others holding the presence authorized on the grounds of necessary implication. Upon the second point, was the defendant prejudiced, there is also a split of authority.
The parent Federal statute relating to the validity of a Federal indictment was R.S. § 1025 (1872):
'No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.'
No material change was made in this statute until May 18, 1933
when it was amended as follows:
'No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant, or by reason of the attendance before the grand jury during the taking of testimony of one or more clerks or stenographers employed in a clerical capacity to assist the district attorney or other counsel for the Government who shall, in that connection, be deemed to be persons acting for and on behalf of the United States in an official capacity and function.'
The 1933 amendment was in force when the Federal Rules of Criminal Procedure, 18 U.S.C.A., became effective on March 21, 1946. It is these Rules which must control in the present case.
Rule 6 of these Criminal Rules governs the conduct of grand jury proceedings. Rule 6, Subdivision (d) provides:
'Who May be Present. Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.'
It will be readily noted that no provision is made for the presence of a deputy marshal in the ground jury room at any time. Was this an oversight on the part of the drafters of the ...