PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4739

UNITED STATES OF AMERICA,

Plaintiff – Appellant,

v.

MARIA ROSALBA ALVARADO MCTAGUE; FELIX ADRIANO CHUJOY, a/k/a 

Felix Chujoy Alvarado; GLADYS GEORGETTE CHUJOY, a/k/a 

Gladys Johnston,

Defendants – Appellees.

Appeal from the United States District Court for the Western 

District of Virginia, at Harrisonburg. Michael F. Urbanski, 

District Judge. (5:14-cr-00055-MFU-1; 5:14-cr-00055-MFU-2;

5:14-cr-00055-MFU-3)

Argued: September 23, 2016 Decided: October 26, 2016 

Before DUNCAN, AGEE, and HARRIS, Circuit Judges.

Vacated and remanded by published opinion. Judge Duncan wrote 

the opinion, in which Judge Agee and Judge Harris joined.

ARGUED: Jean Barrett Hudson, OFFICE OF THE UNITED STATES 

ATTORNEY, Charlottesville, Virginia, for Appellant. Aubrey Gene 

Hart, Jr., A. GENE HART, JR., PC, Harrisonburg, Virginia; Aaron 

Lee Cook, AARON L. COOK, PC, Harrisonburg, Virginia, for 

Appellees. ON BRIEF: John P. Fishwick, Jr., United States 

Attorney, Roanoke, Virginia, Heather Lynn Carlton, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
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Charlottesville, Virginia, for Appellant. W. Andrew Harding, 

CONVY & HARDING, PLC, Harrisonburg, Virginia, for Appellee 

Gladys Georgette Chujoy.
3

DUNCAN, Circuit Judge:

The government brings this interlocutory appeal from an 

order of the district court excluding grand jury testimony from 

use at trial without having found prosecutorial misconduct or 

bad faith in the underlying grand jury proceeding. For the 

reasons that follow, we vacate the order and remand for further 

proceedings not inconsistent with this opinion.

I.

A.

The grand jury investigation at issue here took place in 

October 2015, but relates back to criminal proceedings that 

began in 2014. On December 4, 2014, a federal grand jury 

indicted Maria Rosalba Alvarado McTague (“Alvarado”) and Felix 

Chujoy (“Felix”) on charges of visa fraud and various 

immigration violations stemming from their operation of a 

Peruvian restaurant in Virginia. The indictment alleged that 

Alvarado smuggled immigrants into the United States to work in 

the restaurant. It further alleged that both Alvarado and Felix 

employed these and other undocumented immigrants in horrendous 

and illegal working conditions, either paying them well below 

the minimum wage or requiring them to work as indentured 

servants to repay Alvarado for smuggling them into the United 

States.
4

After their arrest, the district court released Alvarado 

and Felix on bond. As a condition of release, Alvarado and 

Felix could not contact witnesses or alleged victims in the 

case.

During this time, a grand jury continued to investigate 

additional charges and suspects. In expectation of a 

superseding indictment, the parties jointly moved for a 

continuance. The district court granted the motion and 

postponed trial to June 22, 2015.

B.

On March 12, 2015, the grand jury returned a superseding 

indictment. The superseding indictment (1) charged Alvarado and 

Felix with additional labor trafficking counts, (2) added Gladys 

Chujoy--Felix’s sister and Alvarado’s daughter--as a defendant, 

and (3) charged all three Defendants with obstruction of 

justice, witness tampering, and conspiracy to witness tamper. 

The magistrate judge released Gladys Chujoy on bond, but revoked 

bond for Alvarado and Felix after finding probable cause to 

believe that they had violated their conditions of release. 

Evidence suggested that Alvarado and Felix had been contacting 

witnesses using other people’s phones to avoid detection. Over 

the next several months, the government investigated these 

allegations by interviewing individuals whose telephone numbers

appeared in witnesses’ cellphone records.
5

In May 2015, as part of this investigation, the government 

interviewed several friends of Alvarado and the Chujoys, 

including Carolyn Edlind and Sheriff Donald Smith. Based on 

those interviews, the government subpoenaed Edlind and Smith to 

testify at the upcoming trial.

On June 21, 2015, due to a personal emergency, the 

government moved for another continuance. The district court 

granted the motion, finding it to be in the interest of justice. 

So as not to adversely affect Alvarado and Felix, it ordered 

them released from jail on bond. Although Alvarado was obliged 

to obtain new counsel, Defendants did not object to the 

continuance and explicitly waived any potential speedy trial 

objection. The district court scheduled the new trial date for 

October 26, 2015.

In late August 2015, counsel for an inmate at the 

Rockingham County Jail invited the government to interview his 

client about information concerning Felix. Felix had been 

incarcerated at the Rockingham County Jail with this inmate 

following his arrest on the superseding indictment. The inmate 

revealed that he and other inmates had given Felix their PIN 

numbers so that Felix could make calls from jail without 

detection. The government obtained recorded conversations from 

the jail and discovered that Felix had placed at least eleven 

calls from May 2015 to June 2015 using other inmates’ PIN 
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numbers. Felix spoke with Smith on nine of those calls, and the 

conversations provided evidence of a witness-tampering scheme

between Felix, Edlind, and Smith--information that Edlind and 

Smith did not disclose during their May 2015 interviews with 

federal law enforcement.

C.

Because this conduct took place after the superseding 

indictment, the United States began a new investigation of Felix

regarding witness tampering and obstruction of justice. The 

government subpoenaed Edlind and Smith to testify when the next 

grand jury convened on October 6, 2015. Edlind’s and Smith’s 

testimony provided further evidence of the post-superseding 

indictment witness-tampering scheme. The government promptly 

disclosed the grand jury evidence to the district court and 

Defendants.

On October 20, 2015, the government presented the grand 

jury with additional testimony and physical evidence concerning

the potential witness-tampering scheme between Felix, Edlind, 

and Smith. That same day, the grand jury returned a new 

indictment against Felix and Edlind on multiple counts, 

including conspiracy to witness tamper, witness tampering, and 

obstruction of justice. The indictment also charged Edlind with 

perjury and a second count of obstruction of justice for 
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allegedly lying during her grand jury testimony about her 

contact with Felix.

In response to this new information, Alvarado filed a 

motion for a continuance to investigate possible prosecutorial 

misconduct at the October 2015 grand jury proceedings. The 

district court granted the continuance and set a new trial date 

of December 1, 2015. In addition, the district court invited 

Defendants to file motions related to prosecutorial misconduct 

after reviewing the grand jury transcripts disclosed by the 

government.

D.

On November 13, 2015, Defendants filed a joint motion to 

dismiss all indictments, claiming that the government abused the 

October 2015 grand jury process by gathering evidence for the 

superseding indictment. Specifically, Defendants alleged that 

the government called Edlind and Smith before the grand jury for 

the dominant purpose of gathering additional evidence against 

Defendants on the superseding indictment and discovering 

Defendants’ evidence and trial strategy. The district court 

denied Defendants’ motion, finding that no prosecutorial 

misconduct occurred.

The district court nevertheless limited the government’s 

use of October 2015 grand jury evidence at the upcoming trial on 

the superseding indictment. The district court concluded that 
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the government could not (1) call Edlind or Smith to testify in 

its case-in-chief as to any subjects covered in their October 6, 

2015, grand jury testimony, nor could it (2) use their grand 

jury testimony for any purposes at trial--including to impeach

Edlind or Smith, if Defendants called them as witnesses.

The district court based its remedy on a “unique 

combination of circumstances,” which it found to be 

“fundamentally unfair.” J.A. 460. First, the district court 

found that several lines of questioning extended beyond the new 

witness tampering and obstruction charges into allegations 

underlying the original charges. J.A. 458. Second, the 

district court cited “the ongoing delay” occasioned by the 

second continuance, sought by the government, and the third 

continuance, sought by Defendants. J.A. 459. It bears 

repeating that in addition to expressly finding that “the 

government’s examination of Edlind and Smith did not go so far 

as to constitute misconduct,” J.A. 455, the district court also 

did not hold that the government engaged in bad-faith 

questioning or abused the grand jury process.

The government appeals the district court’s order pursuant 

to 18 U.S.C. § 3731 and 28 U.S.C. § 1291.
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II.

On appeal, the government argues that the district court

abused its discretion by sanctioning the government without 

finding prosecutorial misconduct. According to the government, 

in the absence of such a finding, an evidentiary exclusion will 

never lie. Defendants counter that the district court 

justifiably fashioned a limited evidentiary remedy to address 

fundamental unfairness.

This court reviews a district court’s evidentiary rulings

for abuse of discretion. United States v. Hedgepeth, 418 F.3d 

411, 418–19 (4th Cir. 2005). Although this standard accords 

deference to the district courts, it does not insulate them from 

review. A district court abuses its discretion when it (1) acts 

“arbitrarily, as if neither by rule nor discretion,” (2) fails 

to “adequately . . . take into account judicially recognized 

factors constraining its exercise” of discretion, or (3) rests 

its decision on “erroneous factual or legal premises.” James v. 

Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

We find that the district court abused its discretion in 

this case. District courts have the supervisory duty to ensure 

that the grand jury “process is not abused or used for purposes 

of oppression or injustice.” United States v. U.S. Dist. Court

for S. Dist. of W. Va., 238 F.2d 713, 722 (4th Cir. 1956). But 

a district court must provide a sufficient explanation for its 
10

decisions in furtherance of that duty to provide a meaningful 

basis for review. See Jacobson, 6 F.3d at 239–40. That is what 

the district court failed to do here. As we explain below, its 

stated reasons do not comport with our precedent or the facts of 

record, and its conclusion regarding “fundamental fairness” 

provides no legal standard by which to measure the 

appropriateness of the evidentiary exclusion.

We nevertheless reject the government’s argument that the 

district court may never exclude grand jury evidence except as a 

sanction for prosecutorial misconduct. The absence of such a 

finding, however, makes it particularly incumbent upon the 

district court to explain both the reasoning for and the 

parameters of any exclusion of evidence derived from grand jury 

proceedings. 

We begin by considering our precedent on grand jury abuse. 

We then consider the district court’s stated reasons for the 

evidentiary exclusion in light of that precedent. And finally, 

we address the government’s argument for a categorical rule.

A. 

Under our precedent on grand jury abuse, this court adheres 

to “the universal rule” that prosecutors cannot use grand jury 

proceedings for the “sole or dominant purpose” of preparing for 

trial on an already pending indictment. United States v. Moss, 

756 F.2d 329, 332 (4th Cir. 1985). For example, the government 
11

may not use the grand jury to improve its case in an already 

pending trial by preserving witness statements, locking in a 

witness’s testimony, pressuring potential trial witnesses to 

testify favorably, or otherwise employing the grand jury for 

pretrial discovery. See id. at 331–32 (collecting cases). In 

short, “once a criminal defendant has been indicted, the 

Government is barred from employing the grand jury for the ‘sole 

or dominant purpose’ of developing additional evidence against 

the defendant.” United States v. Bros. Constr. Co. of Ohio, 

219 F.3d 300, 314 (4th Cir. 2000)(quoting Moss, 756 F.2d 

at 332). A district court has discretion to take appropriate 

remedial action where it finds grand jury abuse in the form of 

an improper sole or dominant purpose. See United States v. 

Brinkman, 739 F.2d 977, 980 (4th Cir. 1984). Here, the district 

court did not find an improper sole or dominant purpose, but 

nevertheless determined there was a need to fashion an 

evidentiary remedy based on perceived fundamental unfairness.

However, to protect the grand jury’s investigative 

function, this court has repeatedly recognized that district 

courts should refrain from intervening in the grand jury process 

absent compelling evidence of grand jury abuse. See, e.g., 

Moss, 756 F.2d at 331–32. Defendants alleging grand jury abuse

bear the burden of rebutting the “presumption of regularity 

attache[d] to a grand jury’s proceeding.” Bros. Constr., 
12

219 F.3d at 314 (quoting Moss, 756 F.2d at 332). This 

presumption is further strengthened where, as here, a grand jury 

returns new indictments with additional charges or defendants. 

See Moss, 756 F.2d at 332–33. Indeed, some of our sister 

circuits have gone so far as to hold that the government has an 

automatic safe harbor when the superseding indictment adds new 

charges or new defendants. See, e.g., United States v. Flemmi, 

245 F.3d 24, 30 (1st Cir. 2001).

Although our circuit has not applied such a per se rule, 

the fact that new indictments issued is a circumstance a 

district court should factor into its overall analysis as 

militating in favor of the government, not just in determining 

the dominant purpose of the grand jury proceeding, but also in 

crafting an evidentiary remedy. “The function of the grand jury 

is to inquire into all information that might possibly bear on 

its investigation until it has identified an offense or has 

satisfied itself that none has occurred.” United States v. 

R. Enters., Inc., 498 U.S. 292, 297 (1991). Such an 

investigation requires broad and thorough examination of grand 

jury witnesses. United States v. Dionisio, 410 U.S. 1, 12–13

(1973).

When there is a pending indictment, grand jury witnesses

often have information pertinent to both already-indicted 

charges and new charges. The grand jury is not required to 
13

disregard the former when investigating the latter. “Lacking 

clairvoyance, grand juries must be allowed to investigate freely 

individuals suspected of involvement in crimes for which 

indictments have already been issued.” Moss, 756 F.2d at 332. 

An already-indicted defendant is not insulated from a grand jury 

investigation into new offenses committed after the initial 

indictment. Id. at 331–32. A grand jury in such a situation 

must perform the same broad and thorough investigation required 

of all grand juries. See Blair v. United States, 250 U.S. 273, 

282 (1919) (“As has been said before, the identity of the 

offender, and the precise nature of the offense, if there be 

one, normally are developed at the conclusion of the grand 

jury's labors, not at the beginning.”). A district court has 

some supervisory authority over these proceedings, but it should 

not restrict grand jury evidence arising out of “a good-faith 

inquiry into charges that are not covered in the [initial]

indictment.” Bros. Constr., 219 F.3d at 314.

B.

In light of this precedent, we next examine the district 

court’s proffered reasons for its exclusion of evidence remedy:

(1) the scope of questions asked at the October 2015 grand jury 

proceeding and (2) “ongoing delay” occasioned by the second and 

third trial continuances. We are compelled to conclude that

neither reason justifies the district court’s remedy.
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1.

Part of the perceived necessity for a remedy arose from the 

district court’s finding that “a not-insignificant portion of 

the questions asked at the October grand jury session went 

beyond the subject of witness tampering and obstruction, and 

delved into information probative to the underlying charges.” 

J.A. 458. The district court also noted that “questions asked 

about conversations between the witnesses and defense counsel 

[were] of particular concern. Because so many of the 

government’s questions addressed issues closely intertwined with 

the underlying charges, including a potential trial defense,

some evidentiary restriction [was] needed.” J.A. 458.

The reasoning underlying the district court’s observations 

is obscure and does not provide a basis upon which appellate 

review can be conducted. The opinion fails to explain the 

relevance of the fact that the government’s questioning may have 

been “closely intertwined with the underlying charges” to the 

determination of whether the questions arose out of “a goodfaith inquiry into charges that [were] not covered in the 

indictment.” Bros. Constr., 219 F.3d at 314. Uncovering

evidence against an already-indicted person does not provide 

ipso facto evidence that the government failed to conduct its 

questioning in good faith. Moss, 756 F.2d at 332. In this 

regard, the district court’s opinion fails to explain how it 
15

factored the issuance of the new indictments into its analysis 

of any ground for an evidentiary remedy. Again, broader lines 

of questioning help determine what charges are appropriate, and 

which suspects should be tried. R. Enters., 498 U.S. at 297. 

Incidental benefits alone cannot justify exclusion of grand jury 

evidence. See Moss, 756 F.2d at 332; United States v. (Under 

Seal), 714 F.2d 347, 350 (4th Cir. 1983). The district court 

abused its discretion when it based its evidentiary exclusion

partially on the grounds that some questions “seem[ed] to stray 

far afield of the new allegations,” J.A. 455, without providing 

a legal justification for so doing.1

2.

The district court also stated that the delay occasioned by 

two of the trial continuances supported its evidentiary remedy. 

J.A. 459–60. But like the discussion about the scope of the 

 1 Furthermore, the district court’s reliance on Brothers 

Construction as authority to the contrary is misplaced. Like 

the district court in our case, the district court in Brothers 

Construction limited evidentiary use of some testimony without 

finding prosecutorial misconduct. 219 F.3d at 313–14. However, 

in Brothers Construction, these evidentiary rulings were not at 

issue on appeal. Moreover, the district court in Brothers 

Construction did not explain the legal basis for its evidentiary 

rulings, and the only other reference to these rulings occurs in 

a trial transcript. J.A. 458 n.3. Likewise, that transcript 

also fails to offer legal justification for the district court’s 

exclusion, noting only that the district court planned to 

exclude some evidence. One district court’s legally 

unsubstantiated remedy does not justify another district court’s 

legally unsubstantiated remedy.
16

government’s questioning, we cannot discern from the district 

court’s opinion how the government’s conduct in relation to the 

continuances supported the district court’s remedy.

The first cited continuance resulted from the government’s

emergency motion in June 2015. The district court noted that 

this continuance caused the delay that required Alvarado to 

obtain new counsel. However, as we have noted, Defendants were 

released from jail to minimize any adverse effect on them. 

Moreover, while the district court is responsible for balancing 

prejudice to defendants in granting a continuance, United States 

v. LaRouche, 896 F.2d 815, 823–25 (4th Cir. 1990), the district 

court here found that granting the continuance would be in the 

interest of justice. The district court must explain why a 

delay it found fully justified at the time, now supports an

evidentiary remedy.

The district court further stated that “[i]n granting the 

government’s motion for a continuance in June, the court did not 

expect that the government would undertake to develop additional 

evidence for use at trial.” J.A. 460. This statement, too, is 

perplexing; how it relates to Defendants’ claims of grand jury 

abuse is not clear. The district court did not explicitly state

that the government used the October 2015 grand jury hearing to 

develop additional evidence for already-indicted offenses; 

indeed, in finding neither prosecutorial misconduct nor bad 
17

faith the district court suggests to the contrary. We fail to 

see, and the district court fails to explain, how the 

government’s preparation for trial otherwise has any bearing on 

the district court’s conclusion that an evidentiary exclusion 

was required.

The only other motion for a continuance cited by the 

district court as a basis for its evidentiary remedy is

Alvarado’s. J.A. 459–60. To justify reliance on Alvarado’s 

motion for a continuance to impose evidentiary sanctions on the 

government, the district court attributes the impetus for the 

motion to the October 2015 indictment. This rationale fails for 

the same reason that the government’s motion for a continuance

does: the district court does not explain how the government

engaged in anything other than a good-faith inquiry into new 

charges. Citing the indictment alone for evidence of grand jury 

abuse directly contradicts our prior holding that an indictment 

provides strong evidence of a proper purpose. See Moss, 756 

F.2d at 332–33.

In the absence of a tenable explanation we are left to 

infer that the district court perceived a pattern of 

questionable behavior on the part of the government motivating 

the delay. However, the district court did not explicitly 

detail such a finding, or for that matter specify what 

government conduct was impermissible. This court will not read 
18

between the lines to affirm an order that affects the 

independence accorded to the grand jury’s investigative process. 

If new evidence came to the district court’s attention that 

prosecutorial misconduct or bad faith contributed to the 

circumstances causing either continuance, then the district 

court must state so in its opinion. See In re Grand Jury 

Subpoena, 175 F.3d 332, 337–38 (4th Cir. 1999)(finding that 

timing of events could be one factor a district court considers 

in deciding whether sufficient prosecutorial misconduct exists 

to justify quashing a grand jury subpoena). The district court

abused its discretion in citing delay as a justification for its 

remedy without explaining how the delay related to alleged grand 

jury abuse and why a remedy of evidentiary exclusion was 

appropriate.

C.

On appeal the government not only argues that the district 

court lacked a justification for its remedy, but also takes the 

further step of urging us to hold that a district court has no

power to issue a remedy when it finds a proper dominant purpose. 

Although the Fourth Circuit has not squarely confronted the 

issue, at least one other circuit has taken such a stance. See

United States v. US Infrastructure, Inc., 576 F.3d 1195, 1215 

(11th Cir. 2009) (rejecting the defendants’ claims of grand jury 

abuse “[b]ecause the government did not use the grand jury 
19

‘primarily’ to obtain evidence” related to prior indictments 

where most of the questioning related to new charges).

We nevertheless decline to adopt the government’s position. 

Our precedent “forbids” the government from engaging in 

impermissible questioning during a grand jury proceeding. See

In re Grand Jury Proceedings No. 92-4, 42 F.3d 876, 878

(4th Cir. 1994) (“This prohibition bars, inter alia, grand jury 

requests that amount to civil or criminal discovery, as well as 

arbitrary, malicious, or harassing inquiries.” (internal 

citation omitted)). We are not prepared to say that there could 

be no circumstances in which the government has undertaken a 

line of questioning that falls just short of impermissibility 

but nevertheless calls for some remedial action. See id.; see 

also United States v. Doe, 455 F.2d 1270, 1276 (1st Cir. 1972).

District courts must be vested with some discretion to remedy 

conduct they find troubling even if the conduct does not rise to 

the level of misconduct. A defendant claiming grand jury abuse 

faces an uphill climb, but this court will not render the hill 

insurmountable.

It is simply that, on these facts, the district court has 

provided us with no navigational aids. Where the district court 

cannot conclude the government employed the grand jury for an 

improper sole or dominant purpose, it becomes even more 

incumbent upon the district court to state with particularity 
20

what it found troubling, and how it tailored its remedy to 

correct that finding. Otherwise such exclusions risk chilling 

proper uses of the grand jury.

The instant case presents an apt example. The nature of 

questioning for a grand jury investigating obstruction of 

justice or witness tampering will necessarily require some 

inquiry into the facts of the underlying, ongoing case. As the 

district court itself recognized, “questions that touched on 

Edlind’s and Smith’s prior contact with Alvarado, [Felix]

Chujoy, and [Gladys] Chujoy have a credible relationship with 

the new allegations of witness tampering.” J.A. 455. It is for 

this reason that the district court found that Defendants had 

not met their heavy burden of demonstrating “that the government 

questioned Edlind or Smith with the sole or dominant purpose of 

preparing for trial on the superseding indictment.” J.A. 457. 

The record supported this conclusion.

Yet the district court continued, finding it “necessary to 

fashion an appropriate evidentiary remedy.” J.A. 457. But to 

fashion an appropriate remedy the district court must identify

with specificity what troubling circumstances justified its

evidentiary exclusion, and how it narrowly tailored that 

exclusion to prevent sweeping up evidence that arose from goodfaith questioning. Holding otherwise would disregard the 

principle that “the law presumes, absent a strong showing to the 
21

contrary, that a grand jury acts within the legitimate scope of 

its authority.” R. Enters., 498 U.S. at 300.

III.

What undergirds our decision today is the presumption of 

regularity attached to grand jury proceedings. In cases like 

the present one, the fact that a challenged grand jury 

proceeding returns new indictments renders this presumption even 

stronger. This court will not affirm an order overriding that 

presumption on the basis of mere concerns divorced from any 

recognized legal justification.

Therefore, we hold that the district court abused its 

discretion. On remand, the district court should allow the 

government to use Edlind’s and Smith’s grand jury testimony or 

explain with specificity both the legal basis for its exclusion, 

and how its sanction is narrowly tailored to that concern. For 

the reasons stated above, we vacate the order and remand for 

further proceedings not inconsistent with this opinion.

VACATED AND REMANDED