Bank of Nova Scotia v. United States, 487 U.S. 250 (1988)

Bank of Nova Scotia v. United States

No. 87-578

Argued April 27, 1988
Decided June 22, 1988 *
487 U.S. 250

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

Syllabus

The District Court dismissed an indictment against petitioners and others on the basis of prosecutorial misconduct and irregularities in the grand jury proceedings, finding that dismissal was proper due to violations of Federal Rule of Criminal Procedure 6 and under the "totality of the circumstances," including "numerous" violations of Rules 6(d) and (e); violations of 18 U.S.C. §§ 6002 and 6003 and of the Fifth and Sixth Amendments to the Federal Constitution; and the prosecution’s knowing presentation of misinformation to the grand jury and mistreatment of witnesses. In an apparent alternative holding, the District Court also ruled that dismissal, pursuant to its supervisory authority, was necessary in order to deter future conduct of this sort. The Court of Appeals reversed, ruling that petitioners were not prejudiced by the Government’s conduct, and that, absent prejudice, the District Court lacked the authority to invoke its supervisory power to dismiss the indictment.

Held:

1. As a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants. Pp. 254-257.

(a) A federal court may not invoke its supervisory power to circumvent the harmless error inquiry prescribed by Federal Rule of Criminal Procedure 52(a). Since Rule 52 was promulgated pursuant to a statute which invested the Court with authority to prescribe rules of pleading, practice, and procedure, and because that statute provided that "all laws in conflict [with such a rule] shall be of no further force and effect," 18 U.S.C. § 687 (1946 ed.), Rule 52 is, in every pertinent respect, as binding as any federal statute. Courts have no more discretion to disregard the Rule’s mandate through the exercise of supervisory power than they do to disregard constitutional or statutory provisions through the exercise of such power. The conclusion that a showing of prejudice is required is supported by United States v. Mechanik, 475 U.S. 66, which also involved prosecutorial misconduct before a grand jury, and by United States v. Hasting, 461 U.S. 499, which, unlike the present cases, involved constitutional error. A rule permitting federal courts to deal more sternly with nonconstitutional harmless errors than with constitutional errors that are likewise harmless would be inappropriate. Pp. 254-256.

(b) At least in cases involving nonconstitutional error, the standard of prejudice that courts should apply in assessing whether to dismiss an indictment prior to the trial’s conclusion is that articulated in United States v. Mechanik, supra, at 78 (O’CONNOR, J., concurring in judgment), whereby dismissal is appropriate only "if it is established that the violations substantially influenced the grand jury’s decision to indict," or if there is "grave doubt" that that decision was free from such substantial influence. The present cases must be distinguished from that class of cases in which indictments are dismissed because the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice without any particular assessment of prejudicial impact. See, e.g., Vasquez v. Hillery, 474 U.S. 254 (racial discrimination in selection of grand jury), and Ballard v. United States, 329 U.S. 187 (exclusion of women from grand jury). Pp. 256-257.

2. The record does not support the conclusion that petitioners were prejudiced by prosecutorial misconduct before the grand jury. No constitutional error occurred during the grand jury proceedings, and the instances of alleged nonconstitutional prosecutorial misconduct were insufficient to raise a substantial question, much less a grave doubt, as to whether they had a substantial effect on the jury’s decision to indict. Pp. 257-263.

821 F.2d 1456, affirmed.

KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, BLACKMUN, STEVENS, O’CONNOR, and SCALIA, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 264. MARSHALL, J., filed a dissenting opinion, post, p. 264.