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UNITED STATES v. MAHONEY

October 5, 1988

UNITED STATES OF AMERICA
v.
PHILIP T. MAHONEY



The opinion of the court was delivered by: GASCH

 OLIVER GASCH, SENIOR UNITED STATES DISTRICT JUDGE

 These matters come before the Court pursuant to the defendant's pretrial motion to dismiss for lack of jurisdiction, the defendant's pretrial motion to dismiss for preindictment delay, defendant's motion to compel discovery and the United States' motion for reciprocal discovery.

 I. DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

 The defendant argues in his motion to dismiss for lack of jurisdiction that the District of Columbia grand jury, in investigating the events that form the basis of the indictment in this case, exceeded the scope of its lawful authority. Defendant, accordingly, moves this Court to hold that the allegedly false statements for which defendant has been indicted could not, as a matter of law, be "material" to a proper inquiry of the grand jury. The Court cannot so hold.

 The broad scope of a grand jury's investigatory power is well established. As the United States Supreme Court noted in Branzburg v. Hayes, 408 U.S. 665, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972), " a grand jury investigation 'is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.'" Id. at 701 (quoting United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970)). In United States v. Neff, 212 F.2d 297 (3d Cir. 1954), the Court of Appeals for the Third Circuit noted that:

 
The scope of a Grand Jury investigation is not limited by the probable result of its inquiry or by doubts whether any particular individual will be found properly subject to an accusation for crime. . . . At least, the court and grand jury have authority and jurisdiction to investigate the facts in order to determine the question whether the facts show a case within their jurisdiction.

 Id. at 301-02 (footnotes omitted).

 The defendant relies on Brown v. United States, 245 F.2d 549 (8th Cir. 1957). In that case, the Court of Appeals reversed an appellant's perjury conviction where it found the evidence showed that

 
the Nebraska grand jury . . . caused the defendant to be brought before it . . . with a view to prosecuting him for perjury and without any purpose of obtaining from him any evidence upon which, in whole or in part, it could find a true bill against anyone for any offense committed in whole or in part in Nebraska, and that such a purpose does not come within the competency of the grand jury. . . .

 Id. at 554. Brown is readily distinguishable from the present case where the District of Columbia grand jury was investigating alleged bid rigging among at least two companies incorporated in the District of Columbia with offices in the District of Columbia, and where overt acts in furtherance of alleged conspiracies committed elsewhere may have occurred in the District of Columbia. The Brown court, in fact, expressly limited its holding not to include situations such as those presented in the present case. "If a conspiracy is what the inquiry is directed at, the acts and conduct of the alleged conspirators that may have occurred in a district other than that where the grand jury is sitting may be gone into." Id.1

 This Court cannot now hold, as a matter of law, that the District of Columbia grand jury in this case exceeded the scope of its lawful authority and that the testimony of defendant Mahoney that forms the basis of the indictment was not, therefore, material to a proper inquiry of that grand jury. The government, however, will be required to prove materiality at trial because " a conviction under 18 U.S.C. ยง 1623 must be based upon grand jury testimony which is material to a proper inquiry of the grand jury." United States v. Beitling, 545 F.2d 1106, 1109 (8th Cir. 1976), cert. denied, 430 U.S. 918, 51 L. Ed. 2d 597, 97 S. Ct. 1334 (1977). *fn2" The defendant's pretrial motion to dismiss for lack of jurisdiction must be denied.

 II. DEFENDANT'S MOTION TO DISMISS FOR PREINDICTMENT DELAY

 The defendant also moves the Court to dismiss the indictment in this case for preindictment delay. Defendant argues that he testified to the grand jury on September 26 and 27, 1984 and the United States suspected at that time that defendant's testimony was ...


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