The opinion of the court was delivered by: BRYANT
The indictment lists thirty-two overt acts "committed and caused to be committed" by the defendants in furtherances of the conspiracy. The first five are relevant for present purposes. These include: (1) "a conversation" in August 1972 between Miller and Gray; (2) a speech by Gray to a conference of FBI officials on or about September 12, 1972; (3) the approval by Gray of an agenda for a "Weatherman in-service training course to be held at Quantico, Virginia, from October 2, 1972, to October 6, 1972; (4) a speech by Gray to a conference of FBI officials on or about September 26, 1972; and, (5) the presentation of a lecture "on how to conduct surreptitious entries" to agents attending the Weathermen training session identified in (3) above.
Defendant Gray has moved to dismiss the indictment, invocating the supervisory power of this court over grand juries. His motion rests on information unearthed by defense counsel after the indictment: new facts highlight the "incredible shoddiness" and "sheer incompetence" of the government's investigation leading to the indictment of Gray, as well as illuminate serious misrepresentations made by government attorneys presenting the case to the grand jury. Memorandum In Support Of Motion To Dismiss at 12. This new information supposedly undermines the government's only claim against Gray, i. e., that he gave " "generic authorization' " to use surreptitious entries in the pursuit of Weathermen fugitives. Id.
As for overt acts (2) and (4), material turned over by the government during pre-trial discovery included contemporaneous notes prepared by two FBI agents ("McNeeley" and "Shanahan" notes) present at the conferences. Defendant Gray contends that these notes, along with three additional sets of contemporaneous notes of FBI agents ("Reed," "Basher," and "Moreland" notes) discovered independently by defense counsel during post-indictment interviews, establish that he never authorized surreptitious entries against Weathermen relatives or acquaintances at either conference. Two important government witnesses ("Moore" and "Young") have reviewed these contemporaneous notes and revised their earlier testimony. Neither can now recall Gray authorizing surreptitious entries against the Weathermen.
Mr. Gray attacks overt acts (3) and (5) with equal zeal. The agenda mentioned in overt act (3) referred to a lecture on "special investigative techniques" to be given by Agent Courtland Jones. The grand jury was apparently informed that Mr. Jones did deliver the lecture, after Mr. Gray approved the agenda aware that the presentation would include "bag jobs." In fact, Mr. Gray has uncovered records indicating Mr. Jones never gave the lecture.
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 ...