United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
the court is a motion by Defendant Harry Michael White
(“Defendant”) to dismiss the original indictment
returned against him (ECF No. 132) pursuant to Fed. R. Crim.
P. 12(b)(3)(A)(v), which, for the reasons that follow, the
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
19, 2016, the Government filed a 20-count indictment
(“original indictment”) against Defendant and
eight co-defendants arising from allegations of fraud in
applying for and receiving benefits from federal programs
established by the U.S. Department of Veterans Affairs and
the Small Business Administration designed to assist
qualifying small businesses. (See ECF No. 2.) The
original indictment charges Defendant with conspiracy to
defraud an agency of the United States, in violation of 18
U.S.C. § 371 (Count 1), and wire fraud, in violation of
18 U.S.C. § 1343 (Count 2). (Id.)
October 18, 2016, Defendant filed the instant motion to
dismiss the original indictment pursuant to Rule
12(b)(3)(A)(v). (ECF No. 132.) The motion raises two grounds
for dismissal, both of which are based on the alleged
violations of Defendant's rights under the Grand Jury
Clause of the Fifth Amendment.
Defendant argues that his rights were violated when the
federal prosecutor in this matter answered a question posed
by a juror at the grand jury hearing. (See ECF No.
132-1 at 2-5.) During the testimony of a federal law
enforcement agent, the juror asked whether the federal
government has a system in place to prevent fraudulent
conduct like that alleged in the original indictment from
occurring. (See Id. at 2.) When the agent did not
respond, the federal prosecutor stated, “I think-I
think the answer is that this is it. This is the
system.” (Id. at 3.) Upon a follow-up question
from the jury, the agent testified that “usually stuff
like this-is so close knit within the company that
essentially the only deterrence is-is right here.”
argues that the prosecutor's statement was impermissible
during the grand jury hearing because he “assume[d] the
role of both advocate and witness.” (Id. at 5;
see Id. at 3 (noting that the prosecutor was
“not a sworn witness”).) In Defendant's view,
the prosecutor should not have answered the juror's
question, and doing so amounted to a violation of his ethical
responsibilities. (See Id. at 5 (citing
Washington v. Hofbauer, 228 F.3d 689, 709 (6th Cir.
2000); U.S. Dep't of Justice, U.S. Attorneys' Manual
§ 9-11.010 (1997); Model Code of Prof'l
Responsibility EC 5-9 (Am. Bar Ass'n 1980)).) Strangely,
Defendant also argues that the prosecutor had an obligation
to answer the juror's question and to do so accurately.
(See id.) In Defendant's view, however, the
prosecutor misled the grand jury by offering an inaccurate or
incomplete answer to the question. (See id.) The
prosecutor, Defendant contends, should have informed the jury
that the federal government has means other than criminal
prosecution-such as administrative proceedings, suspension,
debarment, and civil claims brought in a suit by the
government or in a qui tam action-to address alleged
fraud in the administration of the programs at issue.
(See Id. at 3-4 (citing the False Claims Act, 31
U.S.C. §§ 3729-3733; the Program Fraud
Civil Remedies Act, 31 U.S.C. §§
3801-3812; 15 U.S.C. § 645; 13 C.F.R.
§§ 124.1015, 125.32, 127.700).) Defendant asserts that
“[h]ad the grand jury been accurately and fully
informed about the range of options available, [it] may well
have concluded, as was [its] prerogative, that criminal
prosecution was not necessary in this case.”
(Id. at 5; see also Id. at 4 (explaining
that, if it had been informed of other enforcement
mechanisms, the grand jury “could have decided not to
return a true bill because the case could proceed as a civil
suit, ” but, because it was “given a false and
misleading answer, ” it was “left to believe the
only option to address the problems was criminal
Defendant argues that his rights were violated when the
prosecutor interrupted a juror's comment. (See
Id. at 3, 5-6.) The juror, apparently in an effort to
explain her perception that alternative enforcement
mechanisms might exist, began to relate that her relative had
filed paperwork in connection with one of the programs at
issue or a similar federal small-business assistance program.
(See Id. at 3.) Before her explanation proceeded any
further, the prosecutor interrupted, stating “I'm
going to stop you right there . . . . [U]nfortunately, we
can't get into personal facts about . . . other
[circumstances].” (Id.) Defendant asserts that
the prosecutor's interruption was “improper and
unfair, ” as the juror was “entitled to share her
knowledge and experience with the grand jury” and was
“free to bring with [her] [her] own life experiences
and [her] common sense.” (Id. at 3, 6.)
Defendant explains that the prosecutor improperly influenced
the jury, which amounts to an ethical violation (see
Id. at 6 (citing U.S. Dep't of Justice, U.S.
Attorneys' Manual § 9-11.010)), and that he abused
his special relationship to the grand jury, which amounts to
a violation of Defendant's constitutional rights (see
Id. (citing United States v. Serubo, 604 F.2d
807, 817 (3d Cir. 1979))).
response, the Government argues that Defendant's
assertions are not enough to overcome the presumption of
regularity that cloaks grand jury proceedings. (See
ECF No. 137 at 1-3 (citing United States v. R. Enters.,
Inc., 498 U.S. 292, 301 (1991); United States v. Loc
Tien Nguyen, 314 F.Supp.2d 612 (E.D. Va. 2004)).) In the
Government's view, allegations of misconduct at a grand
jury hearing should not result in dismissal of the indictment
unless the misconduct is alleged to undermine the grand
jury's determination that there is probable cause to
believe that the accused committed the offense asserted.
(See Id. at 4 (citing United States v.
Calandra, 414 U.S. 338 (1974)).) Absent this sort of
prejudice from the alleged misconduct, the Government
explains, dismissal is inappropriate. (See Id. at
3-4 (citing Bank of N.S. v. United States, 487 U.S.
250, 251 (1988); United States v. Chapman, 209 F.
App'x 253, 274 (4th Cir. 2006) (argued but unpublished);
In re United States, 441 F.3d 44 (1st Cir. 2006)).)
February 24, 2017, the court held a hearing on the motion to
dismiss and decided to take the matter under advisement.
(See ECF No. 185.) Thereafter, on March 22, 2017,
the Government filed a 21-count superseding indictment
(“superseding indictment”) against Defendant and
his co-defendants. (ECF No. 204.) Count 1 in the superseding
indictment charges Defendant with substantially the same
offense-conspiracy to defraud an agency of the United States,
in violation of § 371-as charged in Count 1 in the
original indictment. (Compare ECF No. 2 at 1-15,
with ECF No. 204 at 1-14.) The superseding indictment
omits the § 1343 wire fraud charge against Defendant
found in Count 2 of the original indictment, but it includes,
in Count 11, a charge against Defendant for major fraud, in
violation of 18 U.S.C. § 1031, that had been charged
only against several co-defendants in Count 11 of the
original indictment. (Compare ECF No. 2 at 24-25,
with ECF No. 204 at 22-23.) Counts 21 and 22 of the
superseding indictment, which are not found in the original
indictment, assert against Defendant two counts of making
materially false statements in a matter within the
jurisdiction of a federal agency, in violation of 18 U.S.C.
§ 1001. (See ECF No. 204 at 27-28.)
12(b)(3)(A)(v) allows a defendant to move to dismiss an
indictment based on an “error in the grand-jury
proceeding or preliminary hearing.” Fed.R.Civ.P.
12(b)(3)(A)(v). Dismissal of an indictment because of
misconduct before the grand jury is appropriate only if the
misconduct has constitutional dimensions or “amounts to
a violation of one of those few, clear rules which were
carefully drafted and approved by [the Supreme Court] and by
Congress to ensure the integrity of the grand jury's
functions.” United States v. Williams, 504
U.S. 36, 46 (1992) (internal quotation marks and citation
omitted). Defendants alleging such misconduct “bear the
burden of rebutting the ‘presumption of regularity
attached to a grand jury's proceeding.'”
United States v. Alvarado, 840 F.3d 184, 189 (4th
Cir. 2016) (brackets omitted) (quoting United States v.
Bros. Constr. Co. of Ohio, 219 F.3d 300, 314 (4th Cir.
2000)). However, even if a defendant meets his burden of
establishing misconduct during the grand jury proceedings, at
least where the misconduct does not amount to a
constitutional violation, “dismissal of the indictment
is appropriate only ‘if it is established that the
[misconduct] substantially influenced the grand jury's
decision to indict, ' or if there is ‘grave
doubt' that the decision to indict was free from the
substantial influence of such [misconduct].” Bank
of N.S., 487 U.S. at 256 (quoting United States v.
Mechanik, 475 U.S. 66, 78 (1986)). Because the
court's authority to dismiss an otherwise facially valid
indictment on the ground of misconduct during the grand jury
proceedings “directly encroaches upon the fundamental
role of the grand jury, ” the exercise of that
authority “is appropriately reserved . . . for
extremely limited circumstances.” Whitehouse v.
U.S. Dist. Ct., 53 F.3d 1349, 1360 (1st Cir. 1995)
(citing Bank of N.S., 487 U.S. at 263).
grand jury's return of the superseding indictment raises
the issue of whether Defendant's motion to dismiss the
original indictment is now moot, an issue the court briefly
addresses first. Concluding that the motion is ...