The U.S. attorney clearly expressed his intent and motivation at the Magistrate hearing on May 19, 1978 when the nolo plea was accepted.
Thus, in addition to mere appearances, this proceeding involves an explicit threat, the gravamen of which is an intent to retaliate for the exercise of a right. That threat was carried out in the felony indictment presently before the Court. The limits of acceptable exercise of prosecutorial discretion in charging decisions are exceeded when, as in this case, the prosecutor threatens defendant with increased charges and then "ups-the-ante" without adequate justification. As the district court in United States v. DeMarco so aptly stated, "(t)he day our Constitution permits prosecutors to deter defendants from exercising any and all of their guaranteed rights by threatening them with new charges fortunately has not yet arrived." 401 F. Supp. 505, 510 (C.D.Cal.1975), aff'd 550 F.2d 1224 (9th Cir.), cert. denied, 434 U.S. 827, 98 S. Ct. 105, 54 L. Ed. 2d 85 (1977). The prosecutorial vindictiveness motion warrants a dismissal of the present indictment against Velsicol and the individual defendants.
Other Defense Motions
In light of the dismissal of this proceeding on grounds of prosecutorial vindictiveness it is not necessary to consider the remaining motions, although each presents, more or less, similar issues. One motion, however, the motion to dismiss because of grand jury abuse, warrants discussion and comment.
This indictment was returned in the Eastern District. The indictment reflected, in large measure, the combined efforts of the United States Attorneys' Office of both the Eastern and Western Districts of Michigan. The grand jury had been in session for over six months when the United States Attorney called an emergency session for presentation of the indictment. Dennis Degan of the FDA testified and was a principal grand jury witness. Government counsel attempted to defend the hastily called session by raising problems with the statute of limitations. However, the Court does not find the dicta cited by the prosecutors as compelling as they apparently did, when they urged immediate rejection of waivers filed with the court the previous month. See Benes v. United States, 276 F.2d 99, 108-09 (6th Cir. 1960). More important than the applicability of the case law, however, is the sudden discovery of the 1960 decision almost one month after execution of the waivers. Such laxity would not be tolerated in the conduct of a trial and should not be condoned here.
"Historically, (the grand jury) has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused ...." Wood v. Georgia, 370 U.S. 375, 390, 82 S. Ct. 1364, 1373, 8 L. Ed. 2d 569 (1962). When, as in this case, the prosecutor calls the grand jury into session hastily and presents an indictment with the sword of the statute of limitations hanging overhead, the prosecutor should be able to offer some justification. While the Court offers no ruling upon this and the other motions, this pall over the conduct of the prosecuting attorneys lends further support to defendants' contention of vindictiveness.
Another aspect of the grand jury proceedings warrants comment. From the record and the testimony it is difficult, if not impossible, to assess the effect of the prosecutors' actions on the independence of the grand jurors' deliberations. The Court had the opportunity to review in camera the grand jury testimony. Only the testimony of the witnesses who appeared was transcribed. Comments and statements of the government attorneys before the grand jurors were not reported. This practice is suspect and susceptible of serious abuse. The ABA Standards Relating to the Prosecution Function suggest that the "prosecutor's communications and presentations to the grand jury should be on the record." Standard 3-3.5(c). While these standards are not mandatory, the proposed practice would serve to alleviate some concern over the power of a prosecutor to undermine the function of this historic institution.
Similarly, while the Court does not find that this indictment is barred as a multiple prosecution, the motivation of the prosecutor merits scrutiny. "The question is whether this case involved an attempt "to wear the accused out by a multitude of cases with accumulated trials.' " Hoag v. New Jersey, 356 U.S. 464, 467, 78 S. Ct. 829, 832, 2 L. Ed. 2d 913 (1958) (quoting Palko v. Connecticut, 302 U.S. 319, 329, 58 S. Ct. 149, 153, 82 L. Ed. 288 (1937)). Brady was aware defendants would not plead guilty to the misdemeanor charges. When, through court acceptance of its nolo plea, defendant Velsicol avoided a trial, Brady decided to subject the corporation and individuals to new charges and more litigation. Such conduct does not give rise to the bar of double jeopardy on these facts but lends further support to defendants' claim of prosecutorial vindictiveness. The present indictment charges a cover-up of the incident originally contained in the misdemeanor information. Thus, subsequent prosecution may be justified. However, as noted above, the timing and conduct of the instant prosecution is the determining factor in its dismissal.
Defendants' motion to dismiss because of pre-indictment delay rests upon a view of the facts which is inconsistent with the Court's findings on the vindictiveness motion. Defendants claim that the government delayed the prosecution of this indictment to gain tactical advantage. Defendants' Memorandum in Support of Motion to Dismiss Indictment for Pre-Indictment Delay at 6. To the contrary the Court finds that the present indictment was hastily formulated and brought in retaliation for Velsicol's offer of a nolo plea. Accordingly, if at all prejudicial to defendants, it was because the delay afforded the prosecutor a lever against Velsicol's desire to plead nolo. Defendants have not shown that the "pre-indictment delay in this case caused substantial prejudice to (defendants') rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." United States v. Marion, 404 U.S. 307, 324, 92 S. Ct. 455, 465, 30 L. Ed. 2d 468 (1971).