REVISED APRIL 17, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20558

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

DARRELL H. STROUSE; JAMES R. WILLIS,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

March 20, 2002

Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A federal grand jury indicted Darrell Strouse and James

Willis, b oth formerly of the Houston Police Department, for

conspiring to violate the civil rights of Rogelio Oregon Pineda and1 For brevity, we will refer to the brothers Rogelio Oregon

Pineda and Pedro Oregon Navarro by their mothers’ mai den names.

Thus, Rogelio Oregon Pineda will be referred to as “Pineda” and

Pedro Oregon Navarro as “Navarro.”

2 Pedro Oregon Navarro in violation of 18 U.S.C. § 241. The district

court dismissed the indictment because Pineda’s 1 testimony before

t he grand jury was perjurious, and, according to the distr ict

court, tainted the grand jury’s decision to indict the Defendants.

We hold that perjury before the grand jury that was not knowingly

sponsored by the government may not form the basis for a district

court’s dismissal of an indictment under its limited supervisory

power over the grand jury process. We REVERSE the judgment of the

district court and REMAND for further proceedings.

I

In July of 1998, Strouse and Willis were members of the

Houston Polic e Department’s Divisional Gang Task Force. Strouse

commanded the Task Force for three precincts, and W illis was

assigned to Strouse’s unit.

On the evening of July 11, 1998, Willis and his partner Pete

Herrada arrested Ryan Ba xter and two minors for possessing drug

paraphernalia associated with the use of crack cocaine. During the

course of the arrest, the officers learned that Baxter was on

probation for a prior drug offense. Baxter made the now-familiar

"flip," identifying Pineda as his cocaine supplier and offering to

assist the officers in apprehending Pineda.3

Then back at the precinct headquarters, officers, including

the Defendants, laid plans for Baxter to purchase drugs from Pineda

to confirm Pineda’s status as a dealer. Baxter first arranged a

buy at a Jack in the Box restaurant near Pineda’s apartment, but

Pineda failed to show. When Baxter paged Pineda a second time,

Pineda told Baxter that Navarro would be at Pineda’s apartment and

would be able to sell Baxter the crack cocaine he needed. Per the

officers' instructions, Baxter agreed. As Baxter and a group of

officers approached the apartment, Strouse charted their plan.

Baxter was to knock on the door to initiate the drug sale . When

the door was answered, Baxter was to talk until police officers

could take over. The officers maintain that the plan was to seek

consent to enter the apartment. When Baxter knocked on the door,

however, there was no response, and the group left.

As the officers were driving back to their headquarters with

Baxter early on the morning of July 12, Pineda apparently called

Baxter, telling him that he was now at the apartment and able to

sell Baxt er the cocaine that Baxter had requested. At least six

officers returned to the apartment, including the D efendants and

Herrada. The plan remained unchanged, except Strouse apparently

stressed to Baxter that he was to “get down and ou t of the way”

when the door was answered. Strouse also told Baxter that, to

disguise his role, he would also be arrested.

The precise events that took place at Pineda’s apartment

during the second trip to the apartment are not clear. Most of the2 Officer Herrada had been asked to stand closest to the door

because he spoke both Spanish and English and it was not clear to

the officers whether Pineda spoke English.

4 officers lined up in a stairwell near Pineda’s apartment, out of

the immediate line of sight from the door to Pineda’s apartment.

T wo officers were stationed outside, near the back windows of

Pineda’s apartment. Baxter knocked, and Pineda answered. Baxter

then spoke with Pineda and moved forward inside the apartment.

Once inside, according to Baxter, he heard the rustling of feet

behind him and dropped to the floor. Officers, led by Herrada, who

had his gun drawn, immediately entered the apartment annou ncing

“Houston police” and “HPD.” 2 According to Herrada, he rushed into

the apartment only after Baxter hit the ground; he had not expected

Baxter to fall and entered the apartment because he feared that

Baxter may have been hurt. It is undisputed that the officers had

neither a warrant nor consent to enter the apartment at any time.

O n ce inside, the officers handcuffed Baxter, Pineda, and

Pineda’s girlfriend, Nelly Mejia. Officer Herrada pursued Salvador

Lopez, also an occupant of the apartment. Two other officers,

Tillery and Barrera, proceeded to the back bedroom of the

apartment. In the bedroom, they found Navarro holding a gun. As

the officers approached the back bedroom, a shot--apparently fired

by one of the officers--hit Tillery in the back of his bullet-proof

vest. Various officers opened fire on Navarro, eventually firing

more than thirty rounds of ammunition. Shot twelve times, Navarro5

died at t he scene. Navarro never fired his gun. No drugs were

found in the apartment.

II

The Harris County district at torney convened a state grand

jury to investigate the events of July 11 and 12. Pineda and the

Defendants testified before the state grand jury. The state grand

jury returned only one indictment, against officer Willis for

misdemeanor trespass. On trial, officer Willis was acquitted.

Following the acquittal, the Department of Justice convened a

federal grand jury seeking indictments against officers involved in

the July 12 raid for conspiring to violate and violating the civil

right s of Pineda and Navarro. The government called sixteen

witnesses before the grand jury, including Pineda. The prosecutors

also read Pineda’s state grand jury testimony to the federal grand

jury and furnished them with a transcript of that testimony. The

Defendants did not testify before the federal grand jury.

In September 1999, the grand jury returned the indictment in

this case charging conspiracy to violate the civil rights of Pineda

and Navarro, in violation o f 18 U.S.C. § 241. Specifically, it

charged that the Defendants:

did willfully and knowingly conspire to injure, oppress,

threaten, and intimidate Rogelio Oregon Pineda and Pedro

Oregon Navarro in the free exercise and enjoyment of the

rights secured to them by the Constitution a nd laws of

the United States, th at is, the right to be secure

against unreasonable searches and seizures.3 On April 17, 2000, a Harris County grand jury indicted

Pineda for two counts of aggravated perjury and one count of

perjury. The two counts of aggravated perjury related in part to

statements made under oath during the state grand jury proceedings.

Pineda has since pled guilty to one count of aggravated perjury.

The government maintains that because Pineda’s guilty plea to state

perjury charge is outside the record, this court cannot consider it

on appeal. Because Pineda’s plea of guilt to state perjury charges

was not a basis for the district court’s ruling and is unnecessary

to our resolution of the case, we do not consider this evidence.

6 The grand jury did not indict the Defendants for actually violating

the civil rights of Pineda and Navarro pursuant to 18 U.S.C. § 242,

the object offense of the conspiracy. The Defendants moved to

dismiss the indictment based on the fact that Pineda had offered

material, false testimon y before the state and federal grand

juries.

In a careful exegesis, the district court found that “Pineda’s

entire testimony before the grand jury is severely tainted by his

perjury,” offering several examples of knowingly false statements

by Pineda. They included: (1) he had never sold drugs; (2) he did

not know Baxter; (3) he returned Baxter’s page because he thought

it might be a wrong number; (4) he did not know Baxter was coming

to his apartment on the night of the raid; (5) police officers

entered the ap artment immediately as Pineda opened the door; and

(6) a police officer imme diately hit Pineda on the night of the

raid and he lost consciousness. The district court also noted that

Pineda had admitted in a civil deposition that he lied to the state

and federal grand juries about these events. 34 The district court refused to impose a prejudice

requirement, explaining that no such requirement had been adopted

by this circuit. It nevertheless reviewed the record and concluded

that the untainted testimony was insufficient to support a finding

of probable cause.

7 The district court then de termined that Pineda’s false

statements were material because they related to whether entry by

the officers was supported by exigent circumstances. Finally, the

court rejected the government’s argument that any perjury by Pineda

did not harm the Defendants because there was sufficient truthful

testimony before the grand jury to support the indictment returned

and dismissed the indictment without prejudice on April 19, 2000. 45 See United States v. Cathey , 591 F.2d 268, 272 (5th Cir.

1979).

8 III

The government here makes thre e primary arguments. First,

that Pineda did not perjure himself before the grand jury. Second,

that, even if Pineda lied, a dismissal of an indictment would be

appropriate only if the court found that the government knew of the

perjury and did nothing to rectify or prevent it. Finally, the

government con tends that any perjury by Pineda did not

substantially influence the grand jury’ s decision to indict the

Defendants.

We review the district court’s factual finding of perjury for

clear error and find none here. 5 As the district court noted,

Pineda’s testimony before the federal grand jury, particularly the

portions of his state grand jury testimony read to the federal

grand jury, co ntained numerous statements that Pineda knew to be

false. Specifically, Pineda stated that (1) he had never sold or

used cocaine, (2) he had never met and did not know Baxter prior to

the events of July 12, (3) police officers entered his apartment

instantly when he opened the door on the morning of Ju ly 12, and

(4) he was beaten severely, perhaps even to unconsciousness, after

they entered. Pineda has since acknowledged in a civil deposition

that he knowingly made false statements during his grand jury

testimony, further confirming the propriety of the district court’s

factual find ings. We have no difficulty concluding that the6 U nited States v. Williams , 993 F.2d 451, 455 (5th C i r.

19 93), abrogated on other grounds by Texas v. Cobb

, 532 U.S. 162

(2001).

7 Id

. (quoting United Stat es v. Salinas , 923 F.2d 339, 341

(5th Cir. 1991)) (internal quotation marks omitted; emphasis in

original).

8 Id. (quoting United States v. Damato , 554 F.2d 1371, 1373

(5th Cir. 1977)).

9 district court did not clearly err when it found that Pineda

knowingly provided false information to the grand jury.

The materiality of Pineda's false statements is a legal issue

that we review de novo

. 6 The standard is “whether the false

testimony was capable of influencing the tribunal on the issue

before it.” 7 We are to be mindful that “[f]alse statements 'need

not be m aterial to any particular issue, but may be material to

collateral matters that might influence the court or the jury in

the decision of the question before the tribunal.'” 8

The grand jury was charged to investigate any denial of the

civil rights of Pineda and N avarro. Pineda's lies, particularly

about events inside his apartment, were undoubtedly capable of

influencing the grand jury’s determination of whether to indict the

Defendants for violating Pineda’s civil rights. Precisely how and

when the police entered would bear on whether exigent circumstances

required their warrantless entry into Pineda’s apartment and thus

on whether the Defendants violated Pineda and Navarro’s right to be

free of unreasonable searches. For that reason, we agree with the9 S ee United States v. McKenzie

, 678 F.2d 629, 631 (5th Cir.

1982).

10 See United States v. Williams , 504 U.S. 36, 46 (1992)

( quoting United States v. Mechanik

, 475 U.S. 66, 74 (19 86)

(O'Connor, J., concurring in the judgment)); see also United States

v. Greer , 137 F.3d 247, 251 n.5 (5th Cir. 1998).

10 district court that Pineda’s false statements were material to the

grand jury’s investigation.

IV

After indictment, the judiciary’s role in policing the

credibility of w itnesses before a grand jury is minimal. It is

true that we have authority to enforce the Grand Jury Clause by

ensuring that grand juries act independently from the executive. 9

We may also, and indeed on occasion we must, use our supervisory

power to safeguard the integrity of the gran d jury process. The

Supreme Court has, for example, recognized that a district court

may use its supervisory power “to dismiss an indictment because of

misconduct before the jury, at least where that misconduct amounts

to a violation of one of those ‘few, clear rules which were

carefully drafted and approved by this Court and by Congress to

ensure the integrity of the grand jury’s functions.’” 10 The Supreme

Court has also recognized that the supervisory power of Article III

judges should be used “to implement a remedy for violation of

recognized rights, to preserve judicial integrity by ensuring that11 U nited States v. Hastings

, 461 U.S. 499, 505 (1983)

(citations omitted).

11 a conviction rests on appropriate considerations validly before the

jury, and finally, as a remedy designed to deter illegal conduct.” 11

That said, we are persuaded that perjury before the grand jury

that was not knowingly sponsored by the government may not form the

basis for a district court’s dismissal of an indictment under its

supervisory power. The district court did not under its approach

reach the question of whether the government knew of the perjury at

the time it offered Pineda's testimony before the federal grand

jury. In denying the government's motion to reconsider, the

district court observed:

First, the Court again reminds the parties t hat

Defendants moved to dismiss the indictment because it was

based on false, material testimony. Dismissals on this

basis, if jeopardy has not attached, are without

prejudice. Whether the indictment could be dismissed

with prejudice because of prosecutorial misconduct was

not, and is not now, before the Court. Moreover, the

Government's admission that it presented state grand jury

testimony which it now concedes may have been perjured is

not an admission of prosecutorial misconduct.

The district court explained in dismissing the indictment that "the

Court need not and does not reach the issue of the Government's

knowledge or bad faith" and that "[t]his issue could not be

resolved without a full evidentiary hearing." In the absence of a

finding of government misconduct, we hold that the district court

was without authority to exercise its limited supervisory power to12 The indictment was dismissed without prejudice. C f. United

States v. Welborn

, 849 F.2d 980, 985 (5th Cir. 1988) ("The

supervisory authority of the district court includes the power to

impose the extrem e sanction of dismissal with prejudice only in

extraordinary situations and only where the government's misconduct

has prejudiced the defendant."); cf. also United States v. Fulmer

, 722 F.2d 1192, 1195 (5th Cir. 1983) ("For this reason, we have held

that a district court may dismiss an indictment with prejudice only

w here it has been shown that governmental misconduct or gross

neglige nce in prosecuting the case has actually prejudiced the

defendant.").

13 504 U.S. 36 (1992).

14 Id. at 46.

12 dismiss the indictment on the basis of perjury before the grand

jury. 12

The district court and the Defendants have pointed to language

in several cases as support for the proposition that a district

court in an exercise of its supervisory power may dismiss an

indictment for such material lies to a grand jury. We read these

decisions to support the conclusion we reach today, including, for

example, the following language from United States v. Williams : 13

Thus, Bank of Nova Scotia v. United States

, 487 U.S. 250,

108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988), makes clear

that the supervisory power can be used to dismiss an

indictment because of misconduct before the grand jury,

at least where that misconduct amounts to a violation of

one of those "few, clear rules which were carefully

drafted and approved by this Court an d by Congress to

ensure the integrity o f the grand jury's functions,"

United States v. Mechanik

, 475 U.S. 66, 74, 106 S. Ct.

938, 943, 89 L. Ed. 2d 50 (1986) (O'CON NOR, J.,

concurring in judgment). 14

Footnote 6, accompanying this text, states that "Rule 6 of the

Federal Rules of Criminal Procedure contains a number of such15 Id. at 46 n.6.

16 Id.

17 578 F.2d 121 (5th Cir. 1978).

18 Id. at 124 (emphasis added).

13 rules, pro viding, for example, that 'no person other than the

jurors may be present while the grand jury is deliberating or

voting,' Rule 6(d), and placing strict controls on disclosure of

'matters occurring before the grand jury,' Rule 6(e)." 15 The

footnote then notes that "[a]dditional standards of behavior for

prosecutors (and others) are set forth in the United States Code,"

listing "18 U.S.C. §§ 6002, 6003 (setting forth procedures for

granting a witness immunity from pros ecution); § 1623

(criminalizing false declara tions before grand jury); § 2515

(prohibiting grand jury use of unlawfully intercepted wire or oral

communications); § 1622 (criminalizing subornation of perjury)." 16

The phrase "prosecu tors ( and others) " does not foreclose on

its face a conclusion that a lying witness might support dismissal

under the district court's supervisory power. Similarly, we stated

in United States v. Sullivan 17 that "we refuse t o adopt the

proposition that, absent perj u ry or government misconduct

, an

indictment is flawed simply because it is based on testimony that

later may prove to be questionable." 18

The language from Sullivan

, however, only states in passing a

breed of rule this court refused to endorse, rather than one that19 W illiams

, 504 U.S. at 54 (quoti ng Bank of Nova Scotia v.

United States

, 487 U.S. 250, 261 (1988)); see also id. (noting

that, under long-standing Court precedent, an in dictment may not

"be challenged 'on the ground that there was inadequate or

incompetent evidence before the grand jury.'" (quoting Costello v.

United States , 350 U.S. 359, 363-64 (1956))).

20 Id. (quoting Costello , 350 U.S. at 364).

21 Id. at 49.

22 Id. at 50; see also United States v. Calandra

, 414 U.S.

338, 354 (1974).

23 487 U.S. 250 (1988).

14 it did adopt. In any event, any such reading of S ullivan would be

superseded by Williams : "'the mere fact th at evidence itself is

unreliable is not sufficient to require a dismissal of the

indictment'" and "'a challenge to the reliability or competence of

the evidence presented to the grand jury' will n ot be heard." 1 9

Allowing courts to evaluate the quality of evidence presented to a

grand jury would "'run counter to the whole history of the grand

jury institution.'" 20 This rule is so strongly enforced that

evidence obtained in violation of the Fifth Amendment 2 1 and in

violation of the Fourth Amendment 22 can be used before a grand jury

without giving the district court power to dismiss an indictment.

Dismissing an indictment to pun ish the government for its

misconduct, ho wever, entails no implicit second-guessing of the

grand jury and thus steers clear of the prohibition of Williams

.

Our approach today is supported by B ank of Nova Scotia v. United

States

, 23 in which the Supreme Court upheld a Tenth Circuit decision24 Id. at 260.

25 Id. at 260-61.

26 Id. at 261, 263.

27 S ee 18 U.S.C. § 1623; United States v. Abroms

, 947 F.2d

1241, 1245 (5th Cir. 1991).

15 refusing to uphold a dismissal of an indictment. The district

court had rested its decision in part on its factual finding that

"IRS agents gave misleading and inaccurate summaries to the grand

jury just prior to the indictment." 24 The Supreme Court stated:

Because the record does not reveal any prosecutorial

misconduct with respect to these summaries, they provide

no g round for dismissing the indictment. The District

Court’s finding that the summaries offered by IRS agents

contained evidence that had not been presented to the

grand jury in prior testimony boils down to a challenge

to the reliability or competence of the evidence

presented to the grand jury. We have held that an

indictment valid on its face is not s ubject to such

challenge. 25

The Nova Scotia Court then recited the rule that unreliability of

evidence presented to a grand jury will not support the use of the

supervisory power to dismiss an indictment in holding that a

district court has "no authority to dismiss [an] indictment on the

basis of prosecut orial misconduct absent a finding that [the

defendants] were prejudiced by such misconduct." 26

Congress has proscribed fal se testimony by witnesses before

the grand jury, regardless of the government's involvement or

k nowledge, and has authorized criminal sanctions against those

giving such testimony. 27 However, the fact that 18 U.S.C. § 162328 Williams , 504 U.S. at 46 (quoting Mechanik , 475 U.S. at

74 (O'Connor, J., concurring in the judgment)).

29 Id.

16 can be violated without government knowledge and that criminal

charges can be brought against the offending witness does not, by

itself, suggest a su pervisory reach beyond cases where the

government knew of the violation of section 1623 at the time of the

perjured testimony. The phrase "(and others)" in footnote 6

supports this observation. Most of the statutes listed with this

phrase are primarily violated by persons other than prosecutors.

In footnote 6, the Court is merely describing the general nature of

these sections of the United States Code in service of enumerating

the misconduct that "amounts to a violation of one of those 'few,

clear rules which were carefully drafted and approved by this Court

and by Congress to ensure the integrity of the grand jury’s

functions.'" 28 The import of the statements in footnote 6 must be

read in light of the textual statement that the footnote

accompanies, because footnote 6 by its own terms merely identifies

the rules described generally in the textual statement.

Williams states that the rule limiting t he use of the

supervisory power to instances of violations of these rules arises

from the depiction of the limits on the court's supervisory power

in Nova Scotia

. 29 In other words, the W illiams decision, by its own

terms, ties its statement of the scope of the supervisory power to

the holding in Nova Scotia

. In N ova Scotia

, the Court did not use30 487 U.S. at 260.

31 475 U.S. at 74 (O'Connor, J., concurring in the judgment)

(emphasis added).

17 the language regarding a "few, clear rules" from Justice O'Connor's

concurring opinion in United States v. Mechanik . The Nova Scotia

Court did, however, hold that misleading and inaccurate summaries

provided by IRS agents to a grand jury would not support the use of

the court's supervisory power to dismiss the indictment "[b]ecause

the record does not reveal any prosecutorial misconduct with

respect to these summaries." 30 What the Williams Court's explicit

reliance on Nova Scotia makes clear, then, is that the "misconduct"

that "amounts to a violation of one of those 'few, clear rules'"--

which the Williams Court held included certain provisions o f the

United States Code as well as sections of Federal Rule of Criminal

Procedure 6--must involve government misconduct.

Furthermore, the language from Justice O'Connor's concurring

opinion in Mechanik

, which the Williams C ourt explicitly quotes,

limits the scope of violations of these "few, clear rules" to the

conduct of prosecutors. In her opinion, Justice O'Connor observes:

Prosecutors have been accorded similar leeway in

present ing their cases to the grand jury, see, e.g.

, United States v. Adamo

, 742 F.2d 927, 936-938 (CA6 1984),

cert. denied, 469 U.S. 1193, 105 S. Ct. 971, 83 L. Ed. 2d

975 (1985), but they are bound by a few, clear rules

which were carefully drafted and approved by this Court

and by Congress to ensure the integrity of the grand

jury's functions. 3132 Id. at 74-75.

33 504 U.S. at 46-47 (emphasis added).

34 137 F.3d 247 (5th Cir. 1998).

18 Justice O'Connor then argues that Federa l Rule of Criminal

Procedure 6(d) is such a rule and that dismissal of an indictment

is an appropriate remedy, in some cases, for violations of Rule

6(d). 32 Accordingly, the language in footnote 6 of W illiams and the

accompanying text, when read in the context of the two decisions

from which the stated rule is drawn, supports our conclusion that

an indictment may not be dismissed under a court's supervisory

power for perjury which the government did not sponsor.

The immediate next sentence in Williams further supports this

conclusion. There, the Court implicitly limited the scope of the

supervisory power just discussed by stating:

We did not hold in Bank of Nova Scotia

, however, that the

courts' supervisory power could be used, not merely as a

means of enforcing or vindicating legally compelled

standards of prosecutorial conduct before the grand jury,

but as a means of prescribing those standards of

prosecutorial conduct in the first instance--just as it

may be used as a means of establis hing standards of

prosecutorial conduct before the courts themselves. 33

As such, the Williams Court understood its own discussion to be

limited to prosecutorial misconduct in violation of these "few,

clear rules," notwithstanding the use of the phrase "(and others)."

The district court also relied on United States v. Greer 34 as

support for its conclusion that perjur y which the government did35 Id. at 251 n.5.

36 Id. at 251.

37 See id.

19 not knowingly sponsor is an authorized ground for dismissal under

Williams

. Specifically, that G reer

, after reciting the language we

quoted from Williams

, noted that "[t]he statutor y prohibition

against making a false declaration before a grand jury, set forth

in Title 18 U.S.C. § 1623, was cite d by the W illiams Court as an

example of one such rule." 35 We are not persuaded. Like its source

in footnote 6 of Williams

, this statement in Greer is consonant

with a rule limiting the court's use of it s supervisory power to

violations of section 1623 of which the government h ad prior

knowledge. G reer holds only that, under a plain error analysis,

the defendant had not s hown any perjury was committed. 3 6 G reer 's

further statement that the defendant had not demonstrated that the

challenged testimony violates one of the "few, clear rules" under

Williams may easily be read to be consistent with an insistence

that the government know of the falsity of the testimony it

sponsored. 37 Of course, because the G reer court found that perjury

had not been demonstrated, it had no occasion to discuss the

government's knowledge of the falsity of the testimony.

V

Our limit today of the use of our supervisory power is

consistent with our treatment of the repercussions of perjury38 United States v. Brown

, 634 F.2d 819, 827 (5th Cir. 1981);

see also May v. Collins , 955 F.2d 299, 315 (5th Cir. 1992).

20 before a petit jury. Before a petit jury, the rule in this circuit

is that "due process is not implicated by the prosecution’s

introduction or allowance of false or perjured testimony unless the

prosecution actually knows or believes the testimony to be false or

perjured." 38 We see little sense in a rule which would provide

criminal defendants greater protection before the grand jury than

defendants have at trial, where the use of perjured testimony

arguably poses a g reater threat, despite the defendant's

opportunity at trial to confront the untruths. Finally, as the

government aptly notes, a rule allowing dismissal of an indictment

without a showing of government misconduct would open the door to

attacks on grand jury evidence for which there are large incentives

including discovery by the accused. The result would be the sort

of "interminab le delay" against which the Supreme Court long ago39 S ee Costello

, 350 U.S. at 363-64 ("Petitioner urges that

this Court should exercise its power to supervise the

administration of justice in federal courts and esta blish a rule

permitting defendants to challenge indictments on the ground that

they are not supported by adequate or competent evidence. No

persuasive reasons are advanced for establishing such a rule. It

would run counter to the whole history of the grand jury

institution, in which laymen conduct their inquiries unfettered by

technical rules. Neither justice nor the concept of a fair trial

requires such a change. In a trial on the merits, defendants are

entitled to a strict observance of all the rules designed to bring

about a fair verdict. Defendants are not entitled, however, to a

rule which would result in interminable delay but add nothing to

the assurance of a fair trial."); cf. United States v. Sullivan

, 578 F.2d 121, 124 (5th Cir. 1978) ("The only plausible effect

Housand's recantation could have had on his grand jury testimony

would have been to undermine its credibility, but we decline to

adopt the proposition that grand jury testimony that has merely

been thrown open to suspicion by postindictment events is an

invalid basis for an indictm e nt. Such a rule of law would

necessitate independent judicial review of the credibility of grand

jury witnesses, an exercise that would seriously infringe upon the

traditional independence of the grand jury. We consequently hold

that where subsequent events merely cast doubt on the credibility

of grand jury witnesses, due process does not require the

prosecution to notify the grand jury of those events and seek a new

indictment.").

21 warned in the context of attacks on grand ju ry proceedings. 3 9 A

petit trial before the trial is just too much.

For the foregoing reasons, we conclude that the district court

erred in dismissing the indictment.

REVERSED and REMANDED.

ENDRECORD22

BENAVIDES, Circuit Judge, specially concurring in the

judgment:

I cann ot agree with the majority opinion that prosecutorial

misconduct is always required before the district cou rt may

exercise its supervisory role over g rand jury proceedings. The

majority takes a very narrow view of the circumstances under which

this may be done, relying on Supreme Court opinions that, while

referencing prosecut o rial misconduct in their analysis of the

appropriateness of a district court’s exercise of its supervisory

powers, do not explicitly hold that such misconduct is required for

the exercise of such powers. I am not convinced that the Supreme

Court has cabined in the circumstances under which supervisory

powers may be exercised to the extent suggested by the majority.

In United States v. Williams

, 504 U.S. 36, 112 S.Ct. 1735

( 1992), the Supreme Court explained that district courts may use

t heir supervisory powers to enforce established rules an d

procedures intended to protect the integrity of the grand jury

process. I d. at 46 . The Court drew a distinction between the

permissible use of supervisory powers for the purpose of enforcing

existing rules, and the imper m issible exercise of supervisory

powers for the purpose of creating new rules to govern the grand

jury system. I d. at 46-47. Thus, the Court stated that, as made

clear by its decision in Bank of Nova Scotia v. United States

, 487

U.S. 250, 108 S.Ct. 2369 (1988), “the supervisory power can be used23

to dismiss an indictment because of misconduct before the grand

jury, at least where that misconduct amounts to a violation of one

of those ‘few, clear rules which were carefully drafted and

approved by this Court and by Congress to ensure the integrity of

the grand jury’s functions.’” I d. (citing United States v.

Mechanik

, 475 U.S. 66, 74, 106 S.Ct. 938, 943 (1986)(O’Connor, J.,

concurring in judgment)). In a footnote to this statement the

Court pointed out that, in addition to the standards outlined in

Federal Rule of Criminal Procedure 6, other judicially-enforceable

“standards of behavior for prosecutors (and others) are set forth

in the United States Code.” I d ., n.6. Among the rules that the

Court specifica lly identified in W illiams were 18 U.S.C. § 1623,

which prohibits perjury before a grand jury, and 18 U.S.C. § 1622,

which criminalizes the subornation of perjury. I d

. Thus,

Williams establishes that the prohibition of perjury is among “the

few, clear rules” that a court may enforce using its supervisory

powers. And by listing “standards of behavior for prosecutors ( and

others) ” t he Court intimated that misconduct independent of the

government, if p recluded by an established standard of behavior,

could provide a basis for overturning an indictment. I d .(emphasis

added).

Citing Williams

, this Court has indicated that the “statutory

prohibition against making a false declaration before a grand jury”

exemplifies one of the “few, clear rules” intended to protect the24

integrity of the grand jury’s functions. United States v. Greer

,

137 F.3d 247, 2 51 (5 th Cir. 1998); s ee also United States v.

Sullivan

, 578 F.2d 121, 124 (5th Cir. 1978); United States v.

Cathey

, 591 F.2d 368, 271-72 (1979)(suggesting that witness perjury

could provide a basis for investigating a grand jury indictment).

Other circuits have also suggested that perjury before a grand

jury, even without prosecutorial knowledge, can provide a basis for

dismissing indictments returned by the gra nd jury in reliance on

the perjured testimony. S ee, e.g., United States v. Hyder

, 732

F.2d 841, 845 (11th Cir. 1984) (“[W]e refuse to adopt the

propo s ition that, absent perjury or government misconduct, an

indictment is flawed simply because it is based on testimony that

later may prove to be questionable.”) (emphasis added) (citations

omitted); United State s v. Kennedy , 564 F.2d 1329, 1338 (9 t h Cir.

1977) (“[O]nly in a flagrant case, and perhaps only where knowing

perjury, relating to a material matter, has been presented to the

grand jury should the trial judge dismiss an otherwise valid

indictment returned by an apparently unbiased grand jury.”).

The majority’s opinion disagrees with this reading of

Williams

, arguing that the phrase “prosecutors (and others)” should

be interpreted narrowly, as simply descriptive of the nature of the

sections of the United States Code in relation to which

prosecutorial misconduct would trigger the exercise of supervisory

powers. A nte at 13, 16. In support of this interpretation, the25

majority points to the fact that the Supreme Court has held on

previous occasions that challenges to the reliability or competence

of the evidence before the grand jury will not be heard. Ante at

14-16. Indeed, the majority notes that in B ank of Nova Scotia

, the

Supreme Court held that the fact that IRS agents gave misleading

and inaccurate summaries to the grand jury was insufficient, in the

absence of prosecutorial misconduct, to support a dismissal of the

indictment because the complaint amounted to a chal lenge to the

reliability of the evidence. Ante at 14-17.

But the Supreme Court’s ho lding that challenges to the

reliability of evidence will not be heard, and its application of

that rule in Bank of Nova Scotia , have no bearing on the question

of whether, where there is an actual finding of perjury before the

grand jury, dismissal of the indictment is a ppropriate. The rule

that challenges to the reliability of evidence will not be heard

flows directly from the distinction drawn in Williams between

enforcing ex isting laws governing grand jury procedures, and

creating new rules for the grand jury. Williams , 504 U.S. at 46-

47. Whereas to dismiss the indictment because of unreliability of

the evidence would involve the creation of a new standard for the

grand jury process, to dismiss the indictment because of perjury

before the grand jury simply enforces existing legal standards.

The majority also points out that in M echanik

, which the

Williams Court quoted, Justice O’Conn or discussed the “few clear26

rules which were carefully drafted and appro ved... to ensure the

integrity o f the grand jury’s functions” in relation to

prosecutors’ obligation to follow those rules. A nte at 17.

However, nothing in Justice O’Connor’s statement indicates that

those “few clear rules” apply exclusively to prosecutors; rather,

as noted in Williams

, the rules relating to behavior before the

grand jury, such as the prohibition on perjury, apply to

prosecutors “and others.” Williams , 504 U.S. at 46 n.6.

The majority’s final argument for requiring government

misconduct before allowing dismissal of an indictment is that in

Williams itself, the Court stated that “[w]e did not hold in Bank

of Nova Scotia , however, that the courts’ supervisory power could

be used, not merely as a means of enforcing or vindicating legally

compelled standards of prosecutorial conduct before the grand jury,

but as a means of prescribing those standards of prosecutorial

conduct in the first instance... It is this latter exercise that

respondent demands.” W i lliams , 504 U.S. at 46-47. The majority

latches on to the fact that in t his particular passage the Court

spoke of p rosecutorial misconduct, and argues that this suggests

that the Williams Court understood the exercise of its supervisory

powers to be limited exclusively to instances of misconduct by

prosecutors, not others. A nte at 18. But the W illiams Court’ s

reference to prosecutorial misconduct in that passage is easily

explained by the fact that the primary issue on appeal in that case40 Section 1623(d) supports the conclusion that Congress’ primary aim in

passing the perjury statute was to protect the integrity of the proceeding.

That section provides that a person who has perjured himself before a grand

jury can immunize himself from prosecution by recanting his misstatements and

thus facilitating the restoration of the grand jury’s integrity. 18 U.S.C. §

1623(d).

27 was whether dismissa l of an indictment due to a prosecutor’s

failure to present exculpatory ev idence before a grand jury was

appropriate. Because the central issue in that case was

prosecutorial behavior, it was natural for the Court to speak in

terms of prosecutorial misconduct. To read into this language an

additional, never before discussed, requirement of prosecutorial

misconduct for the exercise of superviso ry powers, is a stretch.

In the absence of a more explicit articulation of such a

requirement by the Supreme Court, I would not limit a district

court’s exercise of its supervisory powers in this manner.

Beyond the fact that Supreme Court pr ecedent does not

sufficiently support the rule upon which the majority relies, it is

important to bear in mind that perjury by an ordinary witness that

is not sponsored by or known to the government can also corrupt the

grand jury process. Indeed, by criminally sanctioning the act of

providing false material testimony to a grand jury, Congress has

indicated that the integrity of grand jury proceedings depends in

large part on grand jury witnesses providing honest te stimony. 4 0

When a grand jury is provided with perjured testimony, the

integrity of its deliberations and decisions are threatened. That

would seem to be precisely the sort of egregious, well-established28

grand jury misconduct that courts may use their supervisory powers

to correct.

I am sympathetic to the majority’s concern that a rule

allowing dismissal of an indictment without a showing of government

misconduct would open the door to attacks on grand jury evidence,

for which there would be great incentives. Ante at 20. However, it

is only when a district court discovers that the grand jury process

has been corrupted by a wi tness that knowingly deceived grand

jurors by providing false testimony that the court may act to

preserve the integrity of the grand jury process. This surely will

be a r are occurrence. In order to invoke a district court’s

supervisory powers over grand jury proceedings, a defendant must

demonstrate that a witness knowingly lied to a grand jury about

matters material to the grand jury’s investigation. In this case,

the district court’s findings were at least partially supported by

such evidence, specifically an admission of perjury by the witness.

Only when faced with an admission of or conviction for perjury, or

other such substantial evidence, should a district court exercise

its supervisory powers to determine the impact of the perjury on

the grand jury process. Certainly, a district court could not

overturn a grand jury’s finding of probable cause based solely upon

inconsistencies between the testimon y of one witness and others.

The majority also argues that it would be senseless to provide

defendants greater protection before the grand jury than at trial,

where due process is only violated if the prosecution knew of29

perjury. A nte at 20. However, at trial defendants have a greater

opportunity to participate and uncover falsehoods thanks to the

adversary pr ocess, whereas at the grand jury stage perjured

testimony is likely to go unchallenged. S ee United States v.

O’Keefe , 128 F.3d 885, 893 (5th Cir. 1997).

I recognize that whether there is a prosecutorial misconduct

requirement for the courts to exercise their supervisory powers is

a difficult issue. However, it was not necessary to address it in

the context of this case, inasmuch as the perjury did not prejudice

the defendant. S ee Bank of Nova Scotia

, 487 U.S. at 255 (“[A]

federal court may not invoke supervisory power to circumvent the

harmless-error inquiry prescribed by Fede r al Rule of Criminal

Procedure 52(a).”). In the present case, the grand jury indicted

the defendants for conspiracy to violate civil rights under 18

U.S.C. § 241, while, as noted by the district court, Pineda’s

perjurious testimony related to the possible existence of exigent

circumstances justifying the Defendants’ warrantless entry into

Pineda’s apart ment. To be convicted of a conspiracy, defendants

“need not... have committed the crime that was its object.” U nited

States v. Manges

, 110 F.3d 1162, 1176 (5th Cir. 1997) (citations

omitted). Thus, even if the Defendant’s entry into Pineda’s

apartment may have been supported by exigent ci rcumstances, the

grand jury could have co ncluded that, prior to entry, the

Defendants conspired to violate Pineda’s and Navarro’s rights to be30

secure from unreasonable searches. Thus, Pineda’s perjury before

the grand jury constituted harmless error, a fact that provides an

alternate basis for vacating the district court’s ruling.

As a final note, while the majority do es limit the

circumstances under which the court may exercise its supervisory

powers to situations where there has been prosecutorial misconduct,

it vacates for further proceedings. I would point out that it has

been the appellees ’ contention all along that the government did

engage in misconduct, and that the district court should conduct an

evidentiary hearing to determine whether the government had

knowingly sponsored Pineda’s perjury before the grand jury. Thus,

the majority’s o wn reasoning would suggest that rather than

rejecting the claim, it should r emand for a determination of

whether there was misconduct that would invoke the district court’s

exercise of its supervisory powers.

For the foregoing reasons, I specially concur in the judgment

only.