however, indicates a number of bag jobs against Weathermen, both before Gray became Acting Director and after he left office. Id. at P (16).
The government virtually concedes the results of Mr. Gray's post-indictment investigation. See Opposition To Gray's Motion To Dismiss The Indictment at 3, 6 ("proof that Gray announced a generic authorization of bag jobs at the SAC conference is now unconvincing"; "wildcat bag jobs" against Weathermen done in FBI field offices prior to September 1972); Stipulation of Counsel (McNeeley, Shanahan, Reed, Basher, and Moreland notes not presented to grand jury). But it does argue that a case against Gray remains,
and that there is no evidence of the serious prosecutorial conduct traditionally associated with the dismissal of an indictment.
Federal courts have recently turned a more discerning eye towards the evidentiary basis of a grand jury's indictment. See Arenella, Reforming The Federal Grand Jury And The State Preliminary Hearing To Prevent Conviction Without Adjudication, 78 Mich.L.Rev. 463 (1980) (hereinafter "Reforming "). Indictments have been dismissed (or remanded for consideration of dismissal), when prosecutors have obtained exculpatory evidence and failed to present it to the grand jury, United States v. Phillips Petroleum Co., 435 F. Supp. 610, 620 (N.D.Okl.1977) (dismissal), or made numerous "graphic and misleading" references calculated to impugn the integrity of defendants, United States v. Serubo, 604 F.2d 807, 814-15, 818 (3rd Cir. 1979) (remand to dismiss indictment if second grand jury tainted in any way by prosecutorial misconduct present in first grand jury.).
This court is willing to assume that the evidence marshalled by defendant Gray is in some way exculpatory. See Reforming, supra at 553, 565 (exculpatory evidence creates a reasonable doubt about the defendant's guilt). The problem is that Mr. Gray has failed to establish an additional prerequisite to dismissing an indictment: awareness by the prosecutors of the exculpatory evidence in question, accompanied by a failure to include such evidence, or at minimum notify the grand jurors of its existence, during the presentation of the case. Compare United States v. Ciambrone, 601 F.2d 616, 624-25 & n.6 (2nd Cir. 1979) (dismissal not warranted absent knowledge by prosecutor of exculpatory evidence) with United States v. Provenzano, 440 F. Supp. 561, 565-66 (S.D.N.Y.1977) (dismissal of indictment appropriate when U.S. Attorney failed to present to grand jury "concerns expressed (to him) by the one eyewitness without whom there could be no indictment"); see Reforming, supra at 565 (burden of disclosure applies only when "prosecutor is aware of exculpatory evidence").
In the present case, much of the material shedding light on Gray's role at the September 1972 conferences, e.g., the Reed, Basher, and Moreland notes, the recantation of Moore and Young, resulted from the defendant's investigation well after the indictment was filed. There also is no indication that the Shanahan and McNeeley notes, turned over to the defendants during discovery, came to the attention of the prosecutors while the grand jury was sitting. Cf. United States v. Olin Corp., 465 F. Supp. 1120, 1128-29 (W.D.N.Y.1979) ("prosecutor is not obligated to sift through all the evidence to find statements or documents that might be exculpatory"). The same holds true for information regarding the suspension of Courtland Jones. Finally, there is no evidence that the prosecutors were aware of the apparently widespread use of bag jobs in Weathermen investigations before, and after, Gray took office. Defendant Gray concedes that the grand jurors were informed briefly of two Weathermen bag jobs performed by the New York office prior to September 1972. The statement that bag jobs against the Weathermen "commenced following the ... (conferences) in September of 1972" most likely reflected one prosecutor's "honest view" of an apparent change in FBI policy in favor of a more concerted use of the technique, see United States v. Ciambrone, 601 F.2d 616, 624 (2nd Cir. 1979), rather than the sort of deliberate misstatement underlying dismissal of an indictment, supra at 152.
There is no doubt that the exhaustive and admirable investigation by counsel for Mr. Gray has revealed certain weaknesses in the case the government presented to the grand jury. This court is convinced, at least in this instance, that the factual lacunae attributed to the prosecutors reflect an honest, albeit imperfect, attempt to recreate past events. Mr. Gray will have an opportunity at trial to set the record straight.
For the reasons discussed above, it is hereby ORDERED that the motion of defendant Gray to dismiss the indictment is denied.