No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; .... 

(a) Summoning a Grand Jury.

(1) In General. When the public interest so requires, the court must order that one or more grand juries be summoned. A grand jury must have 16 to 23 members, and the court must order that enough legally qualified persons be summoned to meet this requirement.  …

(d) Who May Be Present.

(1) While the Grand Jury Is in Session. The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.

(2) During Deliberations and Voting. No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting.

(e) Recording and Disclosing the Proceedings.

(1) Recording the Proceedings. Except while the grand jury is deliberating or voting, all proceedings must be recorded by a court reporter or by a suitable recording device. But the validity of a prosecution is not affected by the unintentional failure to make a recording. Unless the court orders otherwise, an attorney for the government will retain control of the recording, the reporter's notes, and any transcript prepared from those notes.

(2) Secrecy.

(A) No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).

(B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury:

(i) a grand juror;

(ii) an interpreter;

(iii) a court reporter;

(iv) an operator of a recording device;

(v) a person who transcribes recorded testimony;

(vi) an attorney for the government; or

(vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).

(3) Exceptions.

(A) Disclosure of a grand-jury matter—other than the grand jury's deliberations or any grand juror's vote—may be made to:

(i) an attorney for the government for use in performing that attorney's duty;

(ii) any government personnel—including those of a state, state subdivision, Indian tribe, or foreign government—that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law; or

(iii) a person authorized by 18 U.S.C. §3322.

(B) A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that information only to assist an attorney for the government in performing that attorney's duty to enforce federal criminal law. An attorney for the government must promptly provide the court that impaneled the grand jury with the names of all persons to whom a disclosure has been made, and must certify that the attorney has advised those persons of their obligation of secrecy under this rule.

(C) An attorney for the government may disclose any grand-jury matter to another federal grand jury.

(D) An attorney for the government may disclose any grand-jury matter involving foreign intelligence, counterintelligence (as defined in 50 U.S.C. 3003), or foreign intelligence information (as defined in Rule 6(e)(3)(D)(iii)) to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official's duties. An attorney for the government may also disclose any grand-jury matter involving, within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent, to any appropriate federal, state, state subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities.

(i) Any official who receives information under Rule 6(e)(3)(D) may use the information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information. Any state, state subdivision, Indian tribal, or foreign government official who receives information under Rule 6(e)(3)(D) may use the information only in a manner consistent with any guidelines issued by the Attorney General and the Director of National Intelligence.

(ii) Within a reasonable time after disclosure is made underRule 6(e)(3)(D), an attorney for the government must file, under seal, a notice with the court in the district where the grand jury convened stating that such information was disclosed and the departments, agencies, or entities to which the disclosure was made.

(iii) As used in Rule 6(e)(3)(D), the term “foreign intelligence information” means:

(a) information, whether or not it concerns a United States person, that relates to the ability of the United States to protect against—

• actual or potential attack or other grave hostile acts of a foreign power or its agent;
• sabotage or international terrorism by a foreign power or its agent; or
• clandestine intelligence activities by an intelligence service or network of a foreign power or by its agent; or

(b) information, whether or not it concerns a United States person, with respect to a foreign power or foreign territory that relates to—

• the national defense or the security of the United States; or
• the conduct of the foreign affairs of the United States.

(E) The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter:

(i) preliminarily to or in connection with a judicial proceeding;

(ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury;

(iii) at the request of the government, when sought by a foreign court or prosecutor for use in an official criminal investigation;

(iv) at the request of the government if it shows that the matter may disclose a violation of State, Indian tribal, or foreign criminal law, as long as the disclosure is to an appropriate state, state-subdivision, Indian tribal, or foreign government official for the purpose of enforcing that law; or

(v) at the request of the government if it shows that the matter may disclose a violation of military criminal law under the Uniform Code of Military Justice, as long as the disclosure is to an appropriate military official for the purpose of enforcing that law.

(F) A petition to disclose a grand-jury matter under Rule 6(e)(3)(E)(i) must be filed in the district where the grand jury convened. Unless the hearing is ex parte—as it may be when the government is the petitioner—the petitioner must serve the petition on, and the court must afford a reasonable opportunity to appear and be heard to:

(i) an attorney for the government;

(ii) the parties to the judicial proceeding; and

(iii) any other person whom the court may designate.

(G) If the petition to disclose arises out of a judicial proceeding in another district, the petitioned court must transfer the petition to the other court unless the petitioned court can reasonably determine whether disclosure is proper. If the petitioned court decides to transfer, it must send to the transferee court the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand-jury secrecy. The transferee court must afford those persons identified in Rule 6(e)(3)(F) a reasonable opportunity to appear and be heard.

(4) Sealed Indictment. The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment's existence except as necessary to issue or execute a warrant or summons.

(5) Closed Hearing. Subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to the extent necessary to prevent disclosure of a matter occurring before a grand jury.

(6) Sealed Records. Records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.

(7) Contempt. A knowing violation of Rule 6, or of any guidelines jointly issued by the Attorney General and the Director of National Intelligence under Rule 6, may be punished as a contempt of court.

Department of Justice, Justice Manual, Title 9-11.000 (policies for grand juries; full Manual available here).

9-11.010. Introduction

This chapter contains the Department's policy on grand jury practice. For a discussion of the law, and a list of resource materials on grand jury practice, see the Criminal Resource Manual at 154 et seq.

In dealing with the grand jury, the prosecutor must always conduct himself or herself as an officer of the court whose function is to ensure that justice is done and that guilt shall not escape nor innocence suffer. The prosecutor must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges. The prosecutor's responsibility is to advise the grand jury on the law and to present evidence for its consideration. In discharging these responsibilities, the prosecutor must be scrupulously fair to all witnesses and must do nothing to inflame or otherwise improperly influence the grand jurors.

9-11.101. Powers and Limitations of Grand Juries—The Functions of a Grand Jury

While grand juries are sometimes described as performing accusatory and investigatory functions, the grand jury's principal function is to determine whether or not there is probable cause to believe that one or more persons committed a certain Federal offense within the venue of the district court. Thus, it has been said that a grand jury has but two functions—to indict or, in the alternative, to return a "no-bill." See Wright, Federal Practice and Procedure, Criminal Section 110.

At common law, a grand jury enjoyed a certain power to issue reports alleging non-criminal misconduct. A special grand jury impaneled under Title 18 U.S.C. § 3331 is authorized, on the basis of a criminal investigation (but not otherwise), to fashion a report, potentially for public release, concerning either organized crime conditions in the district or the non-criminal misconduct in office of appointed public officers or employees. This is discussed at USAM 9-11.300and USAM 9-11.330, and the Criminal Resource Manual at 158–59. See Jenkins v. McKeithen, 395 U.S. 411, 430 (1969); Hannah v. Larche, 363 U.S. 420 (1960). Whether a regular grand jury enjoys a comparable authority to issue a report is a difficult and complex question. Cf. United States v. Briggs, 514 F.2d 794 (5th Cir. 1975). The Criminal Division of the Department of Justice should be consulted before any grand jury report is initiated, whether by a regular or special grand jury. See also USAM 9-11.330.

9-11.120. Power of a Grand Jury Limited by Its Function

The grand jury's power, although expansive, is limited by its function toward possible return of an indictment. Costello v. United States, 350 U.S. 359, 362 (1956). Accordingly, the grand jury cannot be used solely to obtain additional evidence against a defendant who has already been indicted. United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert. denied sub nom., Hurt v. United States, 429 U.S. 1062 (1977). Nor can the grand jury be used solely for pre-trial discovery or trial preparation. United States v. Star, 470 F.2d 1214 (9th Cir. 1972). After indictment, the grand jury may be used if its investigation is related to a superseding indictment of additional defendants or additional crimes by an indicted defendant. In re Grand Jury Subpoena Duces Tecum, Dated January 2, 1985, 767 F.2d 26, 29-30 (2d Cir. 1985); In re Grand Jury Proceedings, 586 F.2d 724 (9th Cir. 1978)….

9-11.150. Subpoenaing Targets of the Investigation

A grand jury may properly subpoena a subject or a target of the investigation and question the target about his or her involvement in the crime under investigation. See United States v. Wong, 431 U.S. 174, 179 n.8 (1977); United States v. Washington, 431 U.S. 181, 190 n.6 (1977); United States v. Mandujano, 425 U.S. 564, 573–75 and 584 n.9 (1976); United States v. Dionisio, 410 U.S. 1, 10 n.8 (1973). However, in the context of particular cases such a subpoena may carry the appearance of unfairness. Because the potential for misunderstanding is great, before a known "target" (as defined in USAM 9-11.151) is subpoenaed to testify before the grand jury about his or her involvement in the crime under investigation, an effort should be made to secure the target's voluntary appearance. If a voluntary appearance cannot be obtained, the target should be subpoenaed only after the grand jury and the United States Attorney or the responsible Assistant Attorney General have approved the subpoena. In determining whether to approve a subpoena for a "target," careful attention will be paid to the following considerations:

• The importance to the successful conduct of the grand jury's investigation of the testimony or other information sought;
• Whether the substance of the testimony or other information sought could be provided by other witnesses; and
• Whether the questions the prosecutor and the grand jurors intend to ask or the other information sought would be protected by a valid claim of privilege.

9-11.151. Advice of "Rights" of Grand Jury Witnesses

It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a "target" or "subject" of a grand jury investigation. See the Criminal Resource Manual at 160 for a sample target letter.

A "target" is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. An officer or employee of an organization which is a target is not automatically considered a target even if such officer's or employee's conduct contributed to the commission of the crime by the target organization. The same lack of automatic target status holds true for organizations which employ, or employed, an officer or employee who is a target.

A "subject" of an investigation is a person whose conduct is within the scope of the grand jury's investigation.

The Supreme Court declined to decide whether a grand jury witness must be warned of his or her Fifth Amendment privilege against compulsory self-incrimination before the witness's grand jury testimony can be used against the witness. See United States v. Washington, 431 U.S. 181, 186 and 190–91 (1977); United States v. Wong, 431 U.S. 174 (1977); United States v. Mandujano, 425 U.S. 564, 582 n.7. (1976). In Mandujano the Court took cognizance of the fact that Federal prosecutors customarily warn "targets" of their Fifth Amendment rights before grand jury questioning begins. Similarly, in Washington, the Court pointed to the fact that Fifth Amendment warnings were administered as negating "any possible compulsion to selfincrimination which might otherwise exist" in the grand jury setting. See Washington, at 188.

Notwithstanding the lack of a clear constitutional imperative, it is the policy of the Department that an "Advice of Rights" form be appended to all grand jury subpoenas to be served on any "target" or "subject" of an investigation. See advice of rights below.

In addition, these "warnings" should be given by the prosecutor on the record before the grand jury and the witness should be asked to affirm that the witness understands them. Although the Court in Washington, supra, held that "targets" of the grand jury's investigation are entitled to no special warnings relative to their status as "potential defendant(s)," the Department of Justice continues its longstanding policy to advise witnesses who are known "targets" of the investigation that their conduct is being investigated for possible violation of Federal criminal law. This supplemental advice of status of the witness as a target should be repeated on the record when the target witness is advised of the matters discussed in the preceding paragraphs.

When a district court insists that the notice of rights not be appended to a grand jury subpoena, the advice of rights may be set forth in a separate letter and mailed to or handed to the witness when the subpoena is served.

Advice of Rights

• The grand jury is conducting an investigation of possible violations of Federal criminal laws involving: (State here the general subject matter of inquiry, e.g., conducting an illegal gambling business in violation of 18 U.S.C. § 1955).
• You may refuse to answer any question if a truthful answer to the question would tend to incriminate you.
• Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding.
• If you have retained counsel, the grand jury will permit you a reasonable opportunity to step outside the grand jury room to consult with counsel if you so desire.

Additional Advice to be Given to Targets:

If the witness is a target, the above advice should also contain a supplemental warning that the witness's conduct is being investigated for possible violation of federal criminal law.

9-11.152. Requests by Subjects and Targets to Testify Before the Grand Jury

It is not altogether uncommon for subjects or targets of the grand jury's investigation, particularly in white-collar cases, to request or demand the opportunity to tell the grand jury their side of the story. While the prosecutor has no legal obligation to permit such witnesses to testify, United States v. Leverage Funding System, Inc., 637 F.2d 645 (9th Cir. 1980), cert. denied, 452 U.S. 961 (1981); United States v. Gardner, 516 F.2d 334 (7th Cir. 1975), cert. denied, 423 U.S. 861 (1976)), a refusal to do so can create the appearance of unfairness. Accordingly, under normal circumstances, where no burden upon the grand jury or delay of its proceedings is involved, reasonable requests by a "subject" or "target" of an investigation, as defined above, to testify personally before the grand jury ordinarily should be given favorable consideration, provided that such witness explicitly waives his or her privilege against self-incrimination, on the record before the grand jury, and is represented by counsel or voluntarily and knowingly appears without counsel and consents to full examination under oath.

Such witnesses may wish to supplement their testimony with the testimony of others. The decision whether to accommodate such requests or to reject them after listening to the testimony of the target or the subject, or to seek statements from the suggested witnesses, is a matter left to the sound discretion of the grand jury. When passing on such requests, it must be kept in mind that the grand jury was never intended to be and is not properly either an adversary proceeding or the arbiter of guilt or innocence. See, e.g., United States v. Calandra, 414 U.S. 338, 343 (1974).

9-11.153. Notification of Targets

When a target is not called to testify pursuant to USAM 9-11.150, and does not request to testify on his or her own motion (see USAM 9-11.152), the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury, subject to the conditions set forth in USAM 9-11.152. Notification would not be appropriate in routine clear cases or when such action might jeopardize the investigation or prosecution because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends of justice.

9-11.154. Advance Assertions of an Intention to Claim the Fifth Amendment Privilege Against Compulsory Self-Incrimination

A question frequently faced by Federal prosecutors is how to respond to an assertion by a prospective grand jury witness that if called to testify the witness will refuse to testify on Fifth Amendment grounds. If a "target" of the investigation and his or her attorney state in writing, signed by both, that the "target" will refuse to testify on Fifth Amendment grounds, the witness ordinarily should be excused from testifying unless the grand jury and the United States Attorney agree to insist on the appearance. In determining the desirability of insisting on the appearance of such a person, consideration should be given to the factors which justified the subpoena in the first place, i.e., the importance of the testimony or other information sought, its unavailability from other sources, and the applicability of the Fifth Amendment privilege to the likely areas of inquiry.

Some argue that unless the prosecutor is prepared to seek an order pursuant to 18 U.S.C. § 6003, the witness should be excused from testifying. However, such a broad rule would be improper and make it too convenient for witnesses to avoid testifying truthfully to their knowledge of relevant facts. Moreover, once compelled to appear, the witness may be willing and able to answer some or all of the grand jury's questions without incriminating himself or herself.

9-11.155. Notification to Targets when Target Status Ends

The United States Attorney has the discretion to notify an individual, who has been the target of a grand jury investigation, that the individual is no longer considered to be a target by the United States Attorney's Office. Such a notification should be provided only by the United States Attorney having cognizance over the grand jury investigation.

Discontinuation of target status may be appropriate when:

• The target previously has been notified by the government that he or she was a target of the investigation; and,
• The criminal investigation involving the target has been discontinued without an indictment being returned charging the target, or the government receives evidence in a continuing investigation that conclusively establishes that target status has ended as to this individual.

There may be other circumstances in which the United States Attorney may exercise discretion to provide such notification such as when government action has resulted in public knowledge of the investigation.

The United States Attorney may decline to issue such notification if the notification would adversely affect the integrity of the investigation or the grand jury process, or for other appropriate reasons. No explanation need be provided for declining such a request.

If the United States Attorney concludes that the notification is appropriate, the language of the notification may be tailored to the particular case. In a particular case, for example, the language of the notification may be drafted to preclude the target from using the notification as a "clean bill of health" or testimonial. The delivering of such a notification to a target or the attorney for the target shall not preclude the United States Attorney's Office or the grand jury having cognizance over the investigation (or any other grand jury) from reinstituting such an investigation without notification to the target, or the attorney for the target, if, in the opinion of that or any other grand jury, or any United States Attorney's Office, circumstances warrant such a reinstitution….

9-11.233. Presentation of Exculpatory Evidence

In United States v. Williams, 112 S. Ct. 1735 (1992), the Supreme Court held that the Federal courts' supervisory powers over the grand jury did not include the power to make a rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury. It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department's policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review.

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

JUSTICE KENNEDY delivered the opinion of the Court.

The issue presented is whether a district court may invoke its supervisory power to dismiss an indictment for prosecutorial misconduct in a grand jury investigation, where the misconduct does not prejudice the defendants.

In 1982, after a 20-month investigation conducted before two successive grand juries, eight defendants, including petitioners William A. Kilpatrick, Declan J. O'Donnell, Sheila C. Lerner, and The Bank of Nova Scotia, were indicted on 27 counts. The first 26 counts charged all defendants with conspiracy and some of them with mail and tax fraud. Count 27 charged Kilpatrick with obstruction of justice….

We hold that, as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.

In the exercise of its supervisory authority, a federal court "may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress." United States v. Hasting, 461 U.S. 499, 505 (1983). Nevertheless, it is well established that "[e]ven a sensible and efficient use of the supervisory power . . . is invalid if it conflicts with constitutional or statutory provisions." Thomas v. Arn, 474 U.S. 140, 148 (1985). To allow otherwise "would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing." United States v. Payner, 447 U.S. 727, 737 (1980).Our previous cases have not addressed explicitly whether this rationale bars exercise of a supervisory authority where, as here, dismissal of the indictment would conflict with the harmless-error inquiry mandated by the Federal Rules of Criminal Procedure.

We now hold that a federal court may not invoke supervisory power to circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure 52(a). Rule 52(a) provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." The Rule was promulgated pursuant to 18 U. S. C. § 687 (1946 ed.) (currently codified, as amended, at 18 U. S. C. § 3771), which invested us with authority "to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings prior to and including verdict . . . ." Like its present-day successor, § 687 provided that after a Rule became effective "all laws in conflict therewith shall be of no further force and effect." It follows that Rule 52 is, in every pertinent respect, as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rule's mandate than they do to disregard constitutional or statutory provisions. The balance struck by the Rule between societal costs and the rights of the accused may not casually be overlooked "because a court has elected to analyze the question under the supervisory power." United States v. Payner, supra, at 736.

Our conclusion that a district court exceeds its powers in dismissing an indictment for prosecutorial misconduct not prejudicial to the defendant is supported by other decisions of this Court. In United States v. Mechanik, 475 U.S. 66 (1986), we held that there is "no reason not to apply [Rule 52(a)] to 'errors, defects, irregularities, or variances' occurring before a grand jury just as we have applied it to such error occurring in the criminal trial itself." Id., at 71-72. In United States v. Hasting, 461 U.S., at 506, we held that "[s]upervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error." We stated that deterrence is an inappropriate basis for reversal where "means more narrowly tailored to deter objectionable prosecutorial conduct are available." Ibid. We also recognized that where the error is harmless, concerns about the "integrity of the [judicial] process" will carry less weight, ibid., and that a court may not disregard the doctrine of harmless error simply "in order to chastise what the court view[s] as prosecutorial overreaching." Id., at 507. Unlike the present cases, see infra, at 258-259, Hasting involved constitutional error. It would be inappropriate to devise a rule permitting federal courts to deal more sternly with nonconstitutional harmless errors than with constitutional errors that are likewise harmless.

Having concluded that our customary harmless-error inquiry is applicable where, as in the cases before us, a court is asked to dismiss an indictment prior to the conclusion of the trial, we turn to the standard of prejudice that courts should apply in assessing such claims. We adopt for this purpose, at least where dismissal is sought for nonconstitutional error, the standard articulated by JUSTICE O'CONNOR in her concurring opinion in United States v. Mechanik, supra. Under this standard, dismissal of the indictment is appropriate only "if it is established that the violation 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 violations. United States v. Mechanik, supra, at 78. This standard is based on our decision in Kotteakos v. United States, 328 U.S. 750, 758-759 (1946), where, in construing a statute later incorporated into Rule 52(a), see United States v. Lane, 474 U.S. 438, 454-455 (1986) (BRENNAN, J., concurring and dissenting), we held that a conviction should not be overturned unless, after examining the record as a whole, a court concludes that an error may have had "substantial influence" on the outcome of the proceeding. 328 U.S., at 765.

To be distinguished from the cases before us are a class of cases in which indictments are dismissed, without a particular assessment of the prejudicial impact of the errors in each case, because the errors are deemed fundamental. These cases may be explained as isolated exceptions to the harmless-error rule. We think, however, that an alternative and more clear explanation is that these cases are ones in which the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice. See Rose v. Clark, 478 U.S. 570, 577-578 (1986). These cases are exemplified by Vasquez v. Hillery, 474 U.S. 254, 260-264 (1986), where we held that racial discrimination in selection of grand jurors compelled dismissal of the indictment. In addition to involving an error of constitutional magnitude, other remedies were impractical and it could be presumed that a discriminatorily selected grand jury would treat defendants unfairly. See United States v. Mechanik, supra, at 70-71, n. 1. We reached a like conclusion in Ballard v. United States, 329 U.S. 187 (1946), where women had been excluded from the grand jury. The nature of the violation allowed a presumption that the defendant was prejudiced, and any inquiry into harmless error would have required unguided speculation. Such considerations are not presented here, and we review the alleged errors to assess their influence, if any, on the grand jury's decision to indict in the factual context of the cases before us.

Though the standard we have articulated differs from that used by the Court of Appeals, we reach the same conclusion and affirm its decision reversing the order of dismissal. We review the record to set forth the basis of our agreement with the Court of Appeals that prejudice has not been established.

The District Court found that the Government had violated Federal Rule of Criminal Procedure 6(e) by: (1) disclosing grand jury materials to Internal Revenue Service employees having civil tax enforcement responsibilities; (2) failing to give the court prompt notice of such disclosures; (3) disclosing to potential witnesses the names of targets of the investigation; and (4) instructing two grand jury witnesses, who had represented some of the defendants in a separate investigation of the same tax shelters, that they were not to reveal the substance of their testimony or that they had testified before the grand jury. The court also found that the Government had violated Federal Rule of Criminal Procedure 6(d) in allowing joint appearances by IRS agents before the grand jury for the purpose of reading transcripts to the jurors.

The District Court further concluded that one of the prosecutors improperly argued with an expert witness during a recess of the grand jury after the witness gave testimony adverse to the Government. It also held that the Government had violated the witness immunity statute, 18 U. S. C. §§ 6002, 6003, by the use of "pocket immunity" (immunity granted on representation of the prosecutor rather than by order of a judge), and that the Government caused IRS agents to mischaracterize testimony given in prior proceedings. Furthermore, the District Court found that the Government violated the Fifth Amendment by calling a number of witnesses for the sole purpose of having them assert their privilege against self-incrimination and that it had violated the Sixth Amendment by conducting postindictment interviews of several high-level employees of The Bank of Nova Scotia. Finally, the court concluded that the Government had caused IRS agents to be sworn as agents of the grand jury, thereby elevating their credibility.

As we have noted, no constitutional error occurred during the grand jury proceedings. The Court of Appeals concluded that the District Court's findings of Sixth Amendment postindictment violations were unrelated to the grand jury's independence and decisionmaking process because the alleged violations occurred after the indictment. We agree that it was improper for the District Court to cite such matters in dismissing the indictment. The Court of Appeals also found that no Fifth Amendment violation occurred as a result of the Government's calling seven witnesses to testify despite an avowed intention to invoke their Fifth Amendment privilege. We agree that, in the circumstances of these cases, calling the witnesses was not error. The Government was not required to take at face value the unsworn assertions made by these witnesses outside the grand jury room. Once a witness invoked the privilege on the record, the prosecutors immediately ceased all questioning. Throughout the proceedings, moreover, the prosecution repeated the caution to the grand jury that it was not to draw any adverse inference from a witness' invocation of the Fifth Amendment.

In the cases before us we do not inquire whether the grand jury's independence was infringed. Such an infringement may result in grave doubt as to a violation's effect on the grand jury's decision to indict, but we did not grant certiorari to review this conclusion. We note that the Court of Appeals found that the prosecution's conduct was not "a significant infringement on the grand jury's ability to exercise independent judgment," 821 F. 2d, at 1475, and we accept that conclusion here. Finally, we note that we are not faced with a history of prosecutorial misconduct, spanning several cases, that is so systematic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process which resulted in the indictment.

We must address, however, whether, despite the grand jury's independence, there was any misconduct by the prosecution that otherwise may have influenced substantially the grand jury's decision to indict, or whether there is grave doubt as to whether the decision to indict was so influenced. Several instances of misconduct found by the District Court—that the prosecutors manipulated the grand jury investigation to gather evidence for use in civil audits; violated the secrecy provisions of Rule 6(e) by publicly identifying the targets and the subject matter of the grand jury investigation; and imposed secrecy obligations in violation of Rule 6(e) upon grand jury witnesses—might be relevant to an allegation of a purpose or intent to abuse the grand jury process. Here, however, it is plain that these alleged breaches could not have affected the charging decision. We have no occasion to consider them further.

We are left to consider only the District Court's findings that the prosecutors: (1) fashioned and administered unauthorized "oaths" to IRS agents in violation of Rule 6(c); (2) caused the same IRS agents to "summarize" evidence falsely and to assert incorrectly that all the evidence summarized by them had been presented previously to the grand jury; (3) deliberately berated and mistreated an expert witness for the defense in the presence of some grand jurors; (4) abused its authority by providing "pocket immunity" to 23 grand jury witnesses; and (5) permitted IRS agents to appear in tandem to present evidence to the grand jury in violation of Rule 6(d). We consider each in turn.

The Government administered oaths to IRS agents, swearing them in as "agents" of the grand jury. Although the administration of such oaths to IRS agents by the Government was unauthorized, there is ample evidence that the jurors understood that the agents were aligned with the prosecutors. At various times a prosecutor referred to the agents as "my agent(s)," and, in discussions with the prosecutors, grand jurors referred to the agents as "your guys" or "your agents." There is nothing in the record to indicate that the oaths administered to the IRS agents caused their reliability or credibility to be elevated, and the effect, if any, on the grand jury's decision to indict was negligible.

The District Court found that, to the prejudice of petitioners, IRS agents gave misleading and inaccurate summaries to the grand jury just prior to the indictment. Because the record does not reveal any prosecutorial misconduct with respect to these summaries, they provide no ground 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 subject to such a challenge. United States v. Calandra, 414 U.S. 338, 344-345 (1974). To the extent that a challenge is made to the accuracy of the summaries, the mere fact that evidence itself is unreliable is not sufficient to require a dismissal of the indictment. See Costello v. United States, 350 U.S. 359, 363 (1956) (holding that a court may not look behind the indictment to determine if the evidence upon which it was based is sufficient). In light of the record, the finding that the prosecutors knew the evidence to be false or misleading, or that the Government caused the agents to testify falsely, is clearly erroneous. Although the Government may have had doubts about the accuracy of certain aspects of the summaries, this is quite different from having knowledge of falsity.

The District Court found that a prosecutor was abusive to an expert defense witness during a recess and in the hearing of some grand jurors. Although the Government concedes that the treatment of the expert tax witness was improper, the witness himself testified that his testimony was unaffected by this misconduct. The prosecutors instructed the grand jury to disregard anything they may have heard in conversations between a prosecutor and a witness, and explained to the grand jury that such conversations should have no influence on its deliberations. App. 191. In light of these ameliorative measures, there is nothing to indicate that the prosecutor's conduct toward this witness substantially affected the grand jury's evaluation of the testimony or its decision to indict.

The District Court found that the Government granted "pocket immunity" to 23 witnesses during the course of the grand jury proceedings. Without deciding the propriety of granting such immunity to grand jury witnesses, we conclude the conduct did not have a substantial effect on the grand jury's decision to indict, and it does not create grave doubt as to whether it affected the grand jury's decision. Some prosecutors told the grand jury that immunized witnesses retained their Fifth Amendment privilege and could refuse to testify, while other prosecutors stated that the witnesses had no Fifth Amendment privilege, but we fail to see how this could have had a substantial effect on the jury's assessment of the testimony or its decision to indict. The significant point is that the jurors were made aware that these witnesses had made a deal with the Government.

Assuming the Government had threatened to withdraw immunity from a witness in order to manipulate that witness' testimony, this might have given rise to a finding of prejudice. There is no evidence in the record, however, that would support such a finding. The Government told a witness' attorney that if the witness "testified for Mr. Kilpatrick, all bets were off." The attorney, however, ultimately concluded that the prosecution did not mean to imply that immunity would be withdrawn if his client testified for Kilpatrick, but rather that his client would be validly subject to prosecution for perjury. 594 F. Supp., at 1338. Although the District Court found that the Government's statement was interpreted by the witness to mean that if he testified favorably for Kilpatrick his immunity would be withdrawn, ibid., neither Judge Winner nor Judge Kane made a definitive finding that the Government improperly threatened the witness. The witness may have felt threatened by the prosecutor's statement, but his subjective fear cannot be ascribed to governmental misconduct and was, at most, a consideration bearing on the reliability of his testimony.

Finally, the Government permitted two IRS agents to appear before the grand jury at the same time for the purpose of reading transcripts. Although allowing the agents to read to the grand jury in tandem was a violation of Rule 6(d), it was not prejudicial. The agents gave no testimony of their own during the reading of the transcripts. The grand jury was instructed not to ask any questions and the agents were instructed not to answer any questions during the readings. There is no evidence that the agents' reading in tandem enhanced the credibility of the testimony or otherwise allowed the agents to exercise undue influence.

In considering the prejudicial effect of the foregoing instances of alleged misconduct, we note that these incidents occurred as isolated episodes in the course of a 20-month investigation, an investigation involving dozens of witnesses and thousands of documents. In view of this context, those violations that did occur do not, even when considered cumulatively, raise a substantial question, much less a grave doubt, as to whether they had a substantial effect on the grand jury's decision to charge.

Errors of the kind alleged in these cases can be remedied adequately by means other than dismissal. For example, a knowing violation of Rule 6 may be punished as a contempt of court. See Fed. Rule Crim. Proc. 6(e)(2). In addition, the court may direct a prosecutor to show cause why he should not be disciplined and request the bar or the Department of Justice to initiate disciplinary proceedings against him. The court may also chastise the prosecutor in a published opinion. Such remedies allow the court to focus on the culpable individual rather than granting a windfall to the unprejudiced defendant.

We conclude that the District Court had no authority to dismiss the indictment on the basis of prosecutorial misconduct absent a finding that petitioners were prejudiced by such misconduct. The prejudicial inquiry must focus on whether any violations had an effect on the grand jury's decision to indict. If violations did substantially influence this decision, or if there is grave doubt that the decision to indict was free from such substantial influence, the violations cannot be deemed harmless. The record will not support the conclusion that petitioners can meet this standard. The judgment of the Court of Appeals is affirmed.

United States v. Dionisio
410 U.S. 1 (1973)

JUSTICE STEWART delivered the opinion of the Court.

A special grand jury was convened in the Northern District of Illinois in February 1971, to investigate possible violations of federal criminal statutes relating to gambling. In the course of its investigation, the grand jury received in evidence certain voice recordings that had been obtained pursuant to court orders.

The grand jury subpoenaed approximately 20 persons, including the respondent Dionisio, seeking to obtain from them voice exemplars for comparison with the recorded conversations that had been received in evidence. Each witness was advised that he was a potential defendant in a criminal prosecution. Each was asked to examine a transcript of an intercepted conversation, and to go to a nearby office of the United States Attorney to read the transcript into a recording device. The witnesses were advised that they would be allowed to have their attorneys present when they read the transcripts. Dionisio and other witnesses refused to furnish the voice exemplars, asserting that these disclosures would violate their rights under the Fourth and Fifth Amendments….

Following a hearing, the District Judge rejected the witnesses' constitutional arguments and ordered them to comply with the grand jury's request…. When Dionisio persisted in his refusal to respond to the grand jury's directive, the District Court adjudged him in civil contempt and ordered him committed to custody until he obeyed the court order, or until the expiration of 18 months.

The Court of Appeals for the Seventh Circuit reversed … [and] held that the Fourth Amendment required a preliminary showing of reasonableness before a grand jury witness could be compelled to furnish a voice exemplar, and that in this case the proposed "seizures" of the voice exemplars would be unreasonable because of the large number of witnesses summoned by the grand jury and directed to produce such exemplars. We disagree.

… [T]he obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels—the "seizure" of the "person" necessary to bring him into contact with government agents, and the subsequent search for and seizure of the evidence…. The constitutionality of the compulsory production of exemplars from a grand jury witness necessarily turns on the same dual inquiry—whether either the initial compulsion of the person to appear before the grand jury, or the subsequent directive to make a voice recording is an unreasonable "seizure" within the meaning of the Fourth Amendment.

It is clear that a subpoena to appear before a grand jury is not a "seizure" in the Fourth Amendment sense, even though that summons may be inconvenient or burdensome. Last Term we again acknowledged what has long been recognized, that "citizens generally are not constitutionally immune from grand jury subpoenas ...." Branzburg v. Hayes, 408 U.S. 665, 682. We concluded that

"Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that 'the public ... has a right to every man's evidence,' except for those persons protected by a constitutional, common law, or statutory privilege, United States v. Bryan, 339 U.S., at 331; Blackmer v. United States, 284 U.S. 421, 438 (1932); 8 J. Wigmore, Evidence § 2192 (McNaughton rev. 1961), is particularly applicable to grand jury proceedings."

Id., at 688. These are recent reaffirmations of the historically grounded obligation of every person to appear and give his evidence before the grand jury. "The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public." Blair v. United States, 250 U.S. 273, 281. See also Garland v. Torre, 259 F.2d 545, 549. And while the duty may be "onerous" at times, it is "necessary to the administration of justice." Blair v. United States, supra, at 281.

The compulsion exerted by a grand jury subpoena differs from the seizure effected by an arrest or even an investigative "stop" in more than civic obligation. For, as Judge Friendly wrote for the Court of Appeals for the Second Circuit:

"The latter is abrupt, is effected with force or the threat of it and often in demeaning circumstances, and, in the case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court."

United States v. Doe (Schwartz) 457 F.2d, at 898.

Thus, the Court of Appeals for the Seventh Circuit correctly recognized in a case subsequent to the one now before us, that a "grand jury subpoena to testify is not that kind of governmental intrusion on privacy against which the Fourth Amendment affords protection, once the Fifth Amendment is satisfied." Fraser v. United States, 452 F.2d 616, 620 ….

This case is thus quite different from Davis v. Mississippi, supra, on which the Court of Appeals primarily relied. For in Davis it was the initial seizure—the lawless dragnet detention—that violated the Fourth and Fourteenth Amendments, not the taking of the fingerprints. We noted that "investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention," 394 U.S., at 726, and we left open the question whether, consistently with the Fourth and Fourteenth Amendments, narrowly circumscribed procedures might be developed for obtaining fingerprints from people when there was no probable cause to arrest them. Davis is plainly inapposite to a case where the initial restraint does not itself infringe the Fourth Amendment.

This is not to say that a grand jury subpoena is some talisman that dissolves all constitutional protections. The grand jury cannot require a witness to testify against himself. It cannot require the production by a person of private books and records that would incriminate him. See Boyd v. United States, 116 U.S. 616, 633-635. The Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms "to be regarded as reasonable." Hale v. Henkel, 201 U.S. 43, 76 ….

But we are here faced with no such constitutional infirmities in the subpoena to appear before the grand jury or in the order to make the voice recordings….

The Court of Appeals found critical significance in the fact that the grand jury had summoned approximately 20 witnesses to furnish voice exemplars. We think that fact is basically irrelevant to the constitutional issues here. The grand jury may have been attempting to identify a number of voices on the tapes in evidence, or it might have summoned the 20 witnesses in an effort to identify one voice. But whatever the case, "[a] grand jury's 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 ...." United States v. Stone, 429 F.2d 138, 140.… The grand jury may well find it desirable to call numerous witnesses in the course of an investigation. It does not follow that each witness may resist a subpoena on the ground that too many witnesses have been called. Neither the order to Dionisio to appear nor the order to make a voice recording was rendered unreasonable by the fact that many others were subjected to the same compulsion.

But the conclusion that Dionisio's compulsory appearance before the grand jury was not an unreasonable "seizure" is the answer to only the first part of the Fourth Amendment inquiry here. Dionisio argues that the grand jury's subsequent directive to make the voice recording was itself an infringement of his rights under the Fourth Amendment. We cannot accept that argument.

In Katz v. United States, we said that the Fourth Amendment provides no protection for what "a person knowingly exposes to the public, even in his own home or office ...." 389 U.S., at 351. The physical characteristics of a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world….

Since neither the summons to appear before the grand jury nor its directive to make a voice recording infringed upon any interest protected by the Fourth Amendment, there was no justification for requiring the grand jury to satisfy even the minimal requirement of "reasonableness" imposed by the Court of Appeals. A grand jury has broad investigative powers to determine whether a crime has been committed and who has committed it. The jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge. No grand jury witness is "entitled to set limits to the investigation that the grand jury may conduct." Blair v. United States, 250 U.S., at 282….

Since Dionisio raised no valid Fourth Amendment claim, there is no more reason to require a preliminary showing of reasonableness here than there would be in the case of any witness who, despite the lack of any constitutional or statutory privilege, declined to answer a question or comply with a grand jury request. Neither the Constitution nor our prior cases justify any such interference with grand jury proceedings.

The Fifth Amendment guarantees that no civilian may be brought to trial for an infamous crime "unless on a presentment or indictment of a Grand Jury." This constitutional guarantee presupposes an investigative body "acting independently of either prosecuting attorney or judge," Stirone v. United States, 361 U.S. 212, 218, whose mission is to clear the innocent, no less than to bring to trial those who may be guilty. Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws. The grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor, but if it is even to approach the proper performance of its constitutional mission, it must be free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it.

Since the Court of Appeals found an unreasonable search and seizure where none existed, and imposed a preliminary showing of reasonableness where none was required, its judgment is reversed and this case is remanded to that court for further proceedings consistent with this opinion.

JUSTICE MARSHALL, dissenting.

…  [T]he present case[] involve[s] official investigatory seizures that interfere with personal liberty. The Court considers dispositive, however, the fact that the seizures were effected by the grand jury, rather than the police. I cannot agree.

First, in Hale v. Henkel, 201 U.S. 43, 76 (1906), the Court held that a subpoena duces tecum ordering “the production of books and papers [before a grand jury] may constitute an unreasonable search and seizure within the Fourth Amendment,” and on the particular facts of the case, it concluded that the subpoena was “far too sweeping in its terms to be regarded as reasonable.” Considered alone, Hale would certainly seem to carry a strong implication that a subpoena compelling an individual’s personal appearance before a grand jury, like a subpoena ordering the production of private papers, is subject to the Fourth Amendment standard of reasonableness. The protection of the Fourth Amendment is not, after all, limited to personal “papers,” but extends also to “persons,” “houses,” and “effects.” It would seem a strange hierarchy of constitutional values that would afford papers more protection from arbitrary governmental interference than people.

The Court, however, offers two interrelated justifications for excepting grand jury subpoenas directed at “persons,” rather than “papers,” from the constraints of the Fourth Amendment. These are a “historically grounded obligation of every person to appear and give his evidence before the grand jury,” and the relative unintrusiveness of the grand jury subpoena on an individual’s liberty.

In my view, the Court makes more of history than is justified. The Court treats the “historically grounded obligation” which it now discerns as extending to all “evidence,” whatever its character. Yet, so far as I am aware, the obligation “to appear and give evidence” has heretofore been applied by this Court only in the context of testimonial evidence, either oral or documentary….

The Court seems to reason that the exception to the Fourth Amendment for grand jury subpoenas directed at persons is justified by the relative unintrusiveness of the grand jury process on an individual’s liberty….

It may be that service of a grand jury subpoena does not involve the same potential for momentary embarrassment as does an arrest or investigatory “stop.” But this difference seems inconsequential in comparison to the substantial stigma that—contrary to the Court’s assertion—may result from a grand jury appearance as well as from an arrest or investigatory seizure. Public knowledge that a man has been summoned by a federal grand jury investigating, for instance, organized criminal activity can mean loss of friends, irreparable injury to business, and tremendous pressures on one’s family life. Whatever nice legal distinctions may be drawn between police and prosecutor, on the one hand, and the grand jury, on the other, the public often treats an appearance before a grand jury as tantamount to a visit to the station house. Indeed, the former is frequently more damaging than the p. 1070latter, for a grand jury appearance has an air of far greater gravity than a brief visit “downtown” for a “talk.” The Fourth Amendment was placed in our Bill of Rights to protect the individual citizen from such potentially disruptive governmental intrusion into his private life….

Nor do I believe that the constitutional problems inherent in such governmental interference with an individual’s person are substantially alleviated because one may seek to appear at a “convenient time.”  . . .  No matter how considerate a grand jury may be in arranging for an individual’s appearance, the basic fact remains that his liberty has been officially restrained for some period of time….

Of course, the Fourth Amendment does not bar all official seizures of the person, but only those that are unreasonable and are without sufficient cause. With this in mind, it is possible, at least, to explain, if not justify, the failure to apply the protection of the Fourth Amendment to grand jury subpoenas requiring individuals to appear and testify ….

Certainly the most celebrated function of the grand jury is to stand between the Government and the citizen and thus to protect the latter from harassment and unfounded prosecution. The grand jury does not shed those characteristics that give it insulating qualities when it acts in its investigative capacity. Properly functioning, the grand jury is to be the servant of neither the Government nor the courts, but of the people. As such, we assume that it comes to its task without bias or self-interest. Unlike the prosecutor or policeman, it has no election to win or executive appointment to keep. The anticipated neutrality of the grand jury, even when acting in its investigative capacity, may perhaps be relied upon to prevent unwarranted interference with the lives of private citizens and to ensure that the grand jury’s subpoena powers over the person are exercised in only a reasonable fashion. Under such circumstances, it may be justifiable to give the grand jury broad personal subpoena powers that are outside the purview of the Fourth Amendment for—in contrast to the police—it is not likely that it will abuse those powers.

Whatever the present day validity of the historical assumption of neutrality which underlies the grand jury process, it must at least be recognized that if a grand jury is deprived of the independence essential to the assumption of neutrality—if it effectively surrenders that independence to a prosecutor—the dangers of excessive and unreasonable official interference with personal liberty are exactly those which the Fourth Amendment was intended to prevent. So long as the grand jury carries on its investigatory activities only through the mechanism of testimonial inquiries, the danger of such official usurpation of the grand jury process may not be unreasonably great. Individuals called to testify before the grand jury will have available their Fifth Amendment privilege against self-incrimination ….

But when we move beyond the realm of grand jury investigations limited to testimonial inquiries, as the Court does today, the danger increases that law enforcement officials may seek to usurp the grand jury process for the purpose of securing incriminating evidence from a particular suspect through the simple expedient of a subpoena…. Thus, if the grand jury may summon criminal suspects [to obtain voice exemplars] without complying with the Fourth Amendment, it will obviously present an attractive investigative tool to prosecutor and police ….

… [B]y holding that the grand jury’s power to subpoena these respondents for the purpose of obtaining exemplars is completely outside the purview of the Fourth Amendment, the Court fails to appreciate the essential difference between real and testimonial evidence in the context of these cases, and thereby hastens the p. 1071reduction of the grand jury into simply another investigative device of law enforcement officials. By contrast, the Court of Appeals, in proper recognition of these dangers, imposed narrow limitations on the subpoena power of the grand jury that are necessary to guard against unreasonable official interference with individual liberty but that would not impair significantly the traditional investigatory powers of that body ….

United States v. R. Enterprises, Inc.

498 U.S. 292 (1991)

JUSTICE O'CONNOR delivered the opinion of the Court.

This case requires the Court to decide what standards apply when a party seeks to avoid compliance with a subpoena duces tecum issued in connection with a grand jury investigation.

Since 1986, a federal grand jury sitting in the Eastern District of Virginia has been investigating allegations of interstate transportation of obscene materials. In early 1988, the grand jury issued a series of subpoenas to three companies—Model Magazine Distributors, Inc. (Model), R. Enterprises, Inc., and MFR Court Street Books, Inc. (MFR). Model is a New York distributor of sexually oriented paperback books, magazines, and videotapes. R. Enterprises, which distributes adult materials, and MFR, which sells books, magazines, and videotapes, are also based in New York. All three companies are wholly owned by Martin Rothstein. The grand jury subpoenas sought a variety of corporate books and records and, in Model's case, copies of 193 videotapes that Model had shipped to retailers in the Eastern District of Virginia. All three companies moved to quash the subpoenas, arguing that the subpoenas called for production of materials irrelevant to the grand jury's investigation and that the enforcement of the subpoenas would likely infringe their First Amendment rights.

The District Court, after extensive hearings, denied the motions to quash. As to Model, the court found that the subpoenas for business records were sufficiently specific and that production of the videotapes would not constitute a prior restraint…. Notwithstanding [the district court’s] findings, the companies refused to comply with the subpoenas. The District Court found each in contempt and fined them $ 500 per day, but stayed imposition of the fine pending appeal.

The Court of Appeals … quashed the business records subpoenas issued to R. Enterprises and MFR. In doing so, it applied the standards set out by this Court in United States v. Nixon, 418 U.S. 683, 699-700 (1974). The court recognized that Nixon dealt with a trial subpoena, not a grand jury subpoena, but determined that the rule was "equally applicable" in the grand jury context. Accordingly, it required the Government to clear the three hurdles that Nixon established in the trial context—relevancy, admissibility, and specificity—in order to enforce the grand jury subpoenas. The court concluded that the challenged subpoenas did not satisfy the Nixon standards, finding [inter alia] … that the subpoenas therefore failed "to meet the requirements [sic] that any documents subpoenaed under [Federal] Rule [of Criminal Procedure] 17(c) must be admissible as evidence at trial." The Court of Appeals did not consider whether enforcement of the subpoenas duces tecum issued to respondents implicated the First Amendment….

The grand jury occupies a unique role in our criminal justice system. It is an investigatory body charged with the responsibility of determining whether or not a crime has been committed. Unlike this Court, whose jurisdiction is predicated on a specific case or controversy, the grand jury "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950). 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. As a necessary consequence of its investigatory function, the grand jury paints with a broad brush. "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.'" Branzburg v. Hayes, 408 U.S. 665, 701 (1972).

A grand jury subpoena is thus much different from a subpoena issued in the context of a prospective criminal trial, where a specific offense has been identified and a particular defendant charged. "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." Blair v. United States, 250 U.S. 273, 282 (1919). In short, the Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists. See Hale v. Henkel, 201 U.S. 43, 65 (1906).

This Court has emphasized on numerous occasions that many of the rules and restrictions that apply at a trial do not apply in grand jury proceedings. This is especially true of evidentiary restrictions. The same rules that, in an adversary hearing on the merits, may increase the likelihood of accurate determinations of guilt or innocence do not necessarily advance the mission of a grand jury, whose task is to conduct an ex parte investigation to determine whether or not there is probable cause to prosecute a particular defendant. In Costello v. United States, 350 U.S. 359 (1956), this Court declined to apply the rule against hearsay to grand jury proceedings. Strict observance of trial rules in the context of a grand jury's preliminary investigation "would result in interminable delay but add nothing to the assurance of a fair trial." Id., at 364. In United States v. Calandra, 414 U.S. 338 (1974), we held that the Fourth Amendment exclusionary rule does not apply to grand jury proceedings. Permitting witnesses to invoke the exclusionary rule would "delay and disrupt grand jury proceedings" by requiring adversary hearings on peripheral matters, id., at 349, and would effectively transform such proceedings into preliminary trials on the merits, 414 U.S. at 349-350. The teaching of the Court's decisions is clear: A grand jury "may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials," id., at 343.

This guiding principle renders suspect the Court of Appeals' holding that the standards announced in Nixon as to subpoenas issued in anticipation of trial apply equally in the grand jury context. The multifactor test announced in Nixon would invite procedural delays and detours while courts evaluate the relevancy and admissibility of documents sought by a particular subpoena. We have expressly stated that grand jury proceedings should be free of such delays. "Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws." United States v. Dionisio, 410 U.S. 1, 17 (1973). Accord, Calandra, supra, at 350. Additionally, application of the Nixon test in this context ignores that grand jury proceedings are subject to strict secrecy requirements. See Fed. Rule Crim. Proc. 6(e). Requiring the Government to explain in too much detail the particular reasons underlying a subpoena threatens to compromise "the indispensable secrecy of grand jury proceedings." United States v. Johnson, 319 U.S. 503, 513 (1943). Broad disclosure also affords the targets of investigation far more information about the grand jury's internal workings than the Federal Rules of Criminal Procedure appear to contemplate.

The investigatory powers of the grand jury are nevertheless not unlimited. See Branzburg, supra, at 688; Calandra, supra, at 346, and n.4. Grand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or an intent to harass. In this case, the focus of our inquiry is the limit imposed on a grand jury by Federal Rule of Criminal Procedure 17(c), which governs the issuance of subpoenas duces tecum in federal criminal proceedings. The Rule provides that "the court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive."

This standard is not self-explanatory. As we have observed, "what is reasonable depends on the context." New Jersey v. T. L. O., 469 U.S. 325, 337 (1985). In Nixon, this Court defined what is reasonable in the context of a jury trial. We determined that, in order to require production of information prior to trial, a party must make a reasonably specific request for information that would be both relevant and admissible at trial. 418 U.S. at 700. But, for the reasons we have explained above, the Nixon standard does not apply in the context of grand jury proceedings. In the grand jury context, the decision as to what offense will be charged is routinely not made until after the grand jury has concluded its investigation. One simply cannot know in advance whether information sought during the investigation will be relevant and admissible in a prosecution for a particular offense.

To the extent that Rule 17(c) imposes some reasonableness limitation on grand jury subpoenas, however, our task is to define it. In doing so, we recognize that a party to whom a grand jury subpoena is issued faces a difficult situation. As a rule, grand juries do not announce publicly the subjects of their investigations. See supra, at 299. A party who desires to challenge a grand jury subpoena thus may have no conception of the Government's purpose in seeking production of the requested information. Indeed, the party will often not know whether he or she is a primary target of the investigation or merely a peripheral witness. Absent even minimal information, the subpoena recipient is likely to find it exceedingly difficult to persuade a court that "compliance would be unreasonable." As one pair of commentators has summarized it, the challenging party's "unenviable task is to seek to persuade the court that the subpoena that has been served on [him or her] could not possibly serve any investigative purpose that the grand jury could legitimately be pursuing." 1 S. Beale & W. Bryson, Grand Jury Law and Practice § 6:28 (1986).

Our task is to fashion an appropriate standard of reasonableness, one that gives due weight to the difficult position of subpoena recipients but does not impair the strong governmental interests in affording grand juries wide latitude, avoiding minitrials on peripheral matters, and preserving a necessary level of secrecy. We begin by reiterating that the law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority. See United States v. Mechanik, 475 U.S. 66, 75 (1986) (O'Connor, J., concurring in judgment) ("The grand jury proceeding is accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process"). Consequently, a grand jury subpoena issued through normal channels is presumed to be reasonable, and the burden of showing unreasonableness must be on the recipient who seeks to avoid compliance. Indeed, this result is indicated by the language of Rule 17(c), which permits a subpoena to be quashed only "on motion" and "if compliance would be unreasonable" (emphasis added). To the extent that the Court of Appeals placed an initial burden on the Government, it committed error. Drawing on the principles articulated above, we conclude that where, as here, a subpoena is challenged on relevancy grounds, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation. Respondents did not challenge the subpoenas as being too indefinite nor did they claim that compliance would be overly burdensome. The Court of Appeals accordingly did not consider these aspects of the subpoenas, nor do we.

It seems unlikely, of course, that a challenging party who does not know the general subject matter of the grand jury's investigation, no matter how valid that party's claim, will be able to make the necessary showing that compliance would be unreasonable. After all, a subpoena recipient "cannot put his whole life before the court in order to show that there is no crime to be investigated," Marston's, Inc. v. Strand, 114 Ariz. 260, 270, 560 P.2d 778, 788 (1977) (Gordon, J., specially concurring in part and dissenting in part). Consequently, a court may be justified in a case where unreasonableness is alleged in requiring the Government to reveal the general subject of the grand jury's investigation before requiring the challenging party to carry its burden of persuasion. We need not resolve this question in the present case, however, as there is no doubt that respondents knew the subject of the grand jury investigation pursuant to which the business records subpoenas were issued. In cases where the recipient of the subpoena does not know the nature of the investigation, we are confident that district courts will be able to craft appropriate procedures that balance the interests of the subpoena recipient against the strong governmental interests in maintaining secrecy, preserving investigatory flexibility, and avoiding procedural delays. For example, to ensure that subpoenas are not routinely challenged as a form of discovery, a district court may require that the Government reveal the subject of the investigation to the trial court in camera, so that the court may determine whether the motion to quash has a reasonable prospect for success before it discloses the subject matter to the challenging party.

Applying these principles in this case demonstrates that the District Court correctly denied respondents' motions to quash. It is undisputed that all three companies—Model, R. Enterprises, and MFR—are owned by the same person, that all do business in the same area, and that one of the three, Model, has shipped sexually explicit materials into the Eastern District of Virginia. The District Court could have concluded from these facts that there was a reasonable possibility that the business records of R. Enterprises and MFR would produce information relevant to the grand jury's investigation into the interstate transportation of obscene materials. Respondents' blanket denial of any connection to Virginia did not suffice to render the District Court's conclusion invalid. A grand jury need not accept on faith the self-serving assertions of those who may have committed criminal acts. Rather, it is entitled to determine for itself whether a crime has been committed.

Both in the District Court and in the Court of Appeals, respondents contended that these subpoenas sought records relating to First Amendment activities, and that this required the Government to demonstrate that the records were particularly relevant to its investigation. The Court of Appeals determined that the subpoenas did not satisfy Rule 17(c) and thus did not pass on the First Amendment issue. We express no view on this issue and leave it to be resolved by the Court of Appeals.

JUSTICE STEVENS, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, concurring in part and concurring in the judgment.

Federal Rule of Criminal Procedure 17(c) authorizes a federal district court to quash or modify a grand jury subpoena duces tecum "if compliance would be unreasonable or oppressive." See United States v. Calandra, 414 U.S. 338, 346 (1974). This Rule requires the district court to balance the burden of compliance, on the one hand, against the governmental interest in obtaining the documents on the other. A more burdensome subpoena should be justified by a somewhat higher degree of probable relevance than a subpoena that imposes a minimal or nonexistent burden. Against the procedural history of this case, the Court has attempted to define the term "reasonable" in the abstract, looking only at the relevance side of the balance. See ante, at 300, 301. Because I believe that this truncated approach to the Rule will neither provide adequate guidance to the district court nor place any meaningful constraint on the overzealous prosecutor, I add these comments….

The moving party has the initial task of demonstrating to the Court that he has some valid objection to compliance. This showing might be made in various ways. Depending on the volume and location of the requested materials, the mere cost in terms of time, money, and effort of responding to a dragnet subpoena could satisfy the initial hurdle. Similarly, if a witness showed that compliance with the subpoena would intrude significantly on his privacy interests, or call for the disclosure of trade secrets or other confidential information, further inquiry would be required. Or, as in this case, the movant might demonstrate that compliance would have First Amendment implications.

… For the reasons stated by the Court, in the grand jury context the law enforcement interest will almost always prevail, and the documents must be produced. I stress, however, that the Court's opinion should not be read to suggest that the deferential relevance standard the Court has formulated will govern decision in every case, no matter how intrusive or burdensome the request….

I agree with the Court that what is "unreasonable or oppressive" in the context of a trial subpoena is not necessarily unreasonable or oppressive in the grand jury context. Although the same language of Rule 17(c) governs both situations, the teaching of United States v. Nixon, 418 U.S. 683 (1974), is not directly applicable to the very different grand jury context. Thus, I join in Parts I and II of the Court's opinion, and I am in accord with its decision to send the case back to the Court of Appeals.

United States v. Williams

504 U.S. 36 (1992)

JUSTICE SCALIA delivered the opinion of the Court.

The question presented in this case is whether a district court may dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury "substantial exculpatory evidence" in its possession.

On May 4, 1988, respondent John H. Williams, Jr., a Tulsa, Oklahoma, investor, was indicted by a federal grand jury on seven counts of "knowingly making [a] false statement or report ... for the purpose of influencing ... the action [of a federally insured financial institution]," in violation of 18 U.S.C. § 1014 (1988). According to the indictment, between September 1984 and November 1985 Williams supplied four Oklahoma banks with "materially false" statements that variously overstated the value of his current assets and interest income in order to influence the banks' actions on his loan requests.

Williams' misrepresentation was allegedly effected through two financial statements provided to the banks, a "Market Value Balance Sheet" and a "Statement of Projected Income and Expense." The former included as "current assets" approximately $6 million in notes receivable from three venture capital companies. Though it contained a disclaimer that these assets were carried at cost rather than at market value, the Government asserted that listing them as "current assets"—i.e., assets quickly reducible to cash—was misleading, since Williams knew that none of the venture capital companies could afford to satisfy the notes in the short term. The second document—the Statement of Projected Income and Expense—allegedly misrepresented Williams' interest income, since it failed to reflect that the interest payments received on the notes of the venture capital companies were funded entirely by Williams' own loans to those companies. The Statement thus falsely implied, according to the Government, that Williams was deriving interest income from "an independent outside source."

Shortly after arraignment, the District Court granted Williams' motion for disclosure of all exculpatory portions of the grand jury transcripts. See Brady v. Maryland, 373 U.S. 83 (1963). Upon reviewing this material, Williams demanded that the District Court dismiss the indictment, alleging that the Government had failed to fulfill its obligation under the Tenth Circuit's prior decision in United States v. Page, 808 F.2d 723, 728 (1987), to present "substantial exculpatory evidence" to the grand jury (emphasis omitted). His contention was that evidence which the Government had chosen not to present to the grand jury—in particular, Williams' general ledgers and tax returns, and Williams' testimony in his contemporaneous Chapter 11 bankruptcy proceeding—disclosed that, for tax purposes and otherwise, he had regularly accounted for the "notes receivable" (and the interest on them) in a manner consistent with the Balance Sheet and the Income Statement. This, he contended, belied an intent to mislead the banks, and thus directly negated an essential element of the charged offense.

The District Court … ordered the indictment dismissed without prejudice. It found, after a hearing, that the withheld evidence was "relevant to an essential element of the crime charged," created "'a reasonable doubt about [respondent's] guilt,'" and thus "rendered the grand jury's decision to indict gravely suspect." Upon the Government's appeal, the Court of Appeals affirmed the District Court's order ….

Respondent does not contend that the Fifth Amendment itself obliges the prosecutor to disclose substantial exculpatory evidence in his possession to the grand jury. Instead, building on our statement that the federal courts "may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress," United States v. Hasting, 461 U.S. 499, 505 (1983), he argues that imposition of the Tenth Circuit's disclosure rule is supported by the courts' "supervisory power." We think not. Hasting, and the cases that rely upon the principle it expresses, deal strictly with the courts' power to control their own procedures. That power has been applied not only to improve the truth-finding process of the trial, but also to prevent parties from reaping benefit or incurring harm from violations of substantive or procedural rules (imposed by the Constitution or laws) governing matters apart from the trial itself. Thus, Bank of Nova Scotia v. United States, 487 U.S. 250 (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 and by Congress to ensure the integrity of the grand jury's functions," United States v. Mechanik, 475 U.S. 66, 74 (1986) (O'CONNOR, J., concurring in judgment).

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 establishing standards of prosecutorial conduct before the courts themselves. It is this latter exercise that respondent demands. Because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such "supervisory" judicial authority exists, and that the disclosure rule applied here exceeded the Tenth Circuit's authority.

"Rooted in long centuries of Anglo-American history," Hannah v. Larche, 363 U.S. 420, 490 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It "'is a constitutional fixture in its own right.'" United States v. Chanen, 549 F.2d 1306, 1312 (CA9 1977) (quoting Nixon v. Sirica, 487 F.2d 700, 712, n. 54 (1973)). In fact the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people. See Stirone v. United States, 361 U.S. 212, 218 (1960). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm's length. Judges' direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See United States v. Calandra, 414 U.S. 338, 343 (1974); Fed. Rule Crim. Proc. 6(a).

The grand jury's functional independence from the Judicial Branch is evident both in the scope of its power to investigate criminal wrongdoing and in the manner in which that power is exercised. "Unlike [a] court, whose jurisdiction is predicated upon a specific case or controversy, the grand jury 'can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.'" United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991). It need not identify the offender it suspects, or even "the precise nature of the offense" it is investigating. Blair v. United States, 250 U.S. 273, 282 (1919). The grand jury requires no authorization from its constituting court to initiate an investigation, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. It swears in its own witnesses, Fed. Rule Crim. Proc. 6(c), and deliberates in total secrecy.

True, the grand jury cannot compel the appearance of witnesses and the production of evidence, and must appeal to the court when such compulsion is required. And the court will refuse to lend its assistance when the compulsion the grand jury seeks would override rights accorded by the Constitution, see, e.g., Gravel v. United States, 408 U.S. 606 (1972) (grand jury subpoena effectively qualified by order limiting questioning so as to preserve Speech or Debate Clause immunity), or even testimonial privileges recognized by the common law, see In re Grand Jury Investigation of Hugle, 754 F.2d 863 (CA9 1985) (opinion of Kennedy, J.) (same with respect to privilege for confidential marital communications). Even in this setting, however, we have insisted that the grand jury remain "free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it." United States v. Dionisio, 410 U.S. 1, 17-18 (1973). Recognizing this tradition of independence, we have said that the Fifth Amendment's "constitutional guarantee presupposes an investigative body 'acting independently of either prosecuting attorney or judge'...." Id., at 16.

No doubt in view of the grand jury proceeding's status as other than a constituent element of a "criminal prosecution," U.S. Const., Amdt. 6, we have said that certain constitutional protections afforded defendants in criminal proceedings have no application before that body. The Double Jeopardy Clause of the Fifth Amendment does not bar a grand jury from returning an indictment when a prior grand jury has refused to do so. See Ex parte United States, 287 U.S. 241, 250-251 (1932); United States v. Thompson, 251 U.S. 407, 413-415 (1920). We have twice suggested, though not held, that the Sixth Amendment right to counsel does not attach when an individual is summoned to appear before a grand jury, even if he is the subject of the investigation. And although "the grand jury may not force a witness to answer questions in violation of [the Fifth Amendment's] constitutional guarantee" against self-incrimination, Calandra, supra, at 346 (citing Kastigar v. United States, 406 U.S. 441 (1972)), our cases suggest that an indictment obtained through the use of evidence previously obtained in violation of the privilege against self-incrimination "is nevertheless valid." Calandra, supra, at 346.

Given the grand jury's operational separateness from its constituting court, it should come as no surprise that we have been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure. Over the years, we have received many requests to exercise supervision over the grand jury's evidence-taking process, but we have refused them all, including some more appealing than the one presented today. In United States v. Calandra, supra, a grand jury witness faced questions that were allegedly based upon physical evidence the Government had obtained through a violation of the Fourth Amendment; we rejected the proposal that the exclusionary rule be extended to grand jury proceedings, because of "the potential injury to the historic role and functions of the grand jury." 414 U.S. at 349. In Costello v. United States, 350 U.S. 359 (1956), we declined to enforce the hearsay rule in grand jury proceedings, since that "would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules." Id., at 364.

These authorities suggest that any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is a very limited one, not remotely comparable to the power they maintain over their own proceedings. See United States v. Chanen, 549 F.2d at 1313. It certainly would not permit judicial reshaping of the grand jury institution, substantially altering the traditional relationships between the prosecutor, the constituting court, and the grand jury itself. As we proceed to discuss, that would be the consequence of the proposed rule here.

Respondent argues that the Court of Appeals' rule can be justified as a sort of Fifth Amendment "common law," a necessary means of assuring the constitutional right to the judgment "of an independent and informed grand jury," Wood v. Georgia, 370 U.S. 375, 390, (1962). Respondent makes a generalized appeal to functional notions: Judicial supervision of the quantity and quality of the evidence relied upon by the grand jury plainly facilitates, he says, the grand jury's performance of its twin historical responsibilities, i.e., bringing to trial those who may be justly accused and shielding the innocent from unfounded accusation and prosecution. We do not agree. The rule would neither preserve nor enhance the traditional functioning of the institution that the Fifth Amendment demands. To the contrary, requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury's historical role, transforming it from an accusatory to an adjudicatory body.

It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. See United States v. Calandra, 414 U.S. at 343. That has always been so; and to make the assessment it has always been thought sufficient to hear only the prosecutor's side. As Blackstone described the prevailing practice in 18th-century England, the grand jury was "only to hear evidence on behalf of the prosecution[,] for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined." 4 W. Blackstone, Commentaries 300 (1769). So also in the United States. According to the description of an early American court, three years before the Fifth Amendment was ratified, it is the grand jury's function not "to enquire ... upon what foundation [the charge may be] denied," or otherwise to try the suspect's defenses, but only to examine "upon what foundation [the charge] is made" by the prosecutor. Respublica v. Shaffer, 1 U.S. 236, 1 Dall. 236 (O. T. Phila. 1788). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

Imposing upon the prosecutor a legal obligation to present exculpatory evidence in his possession would be incompatible with this system. If a "balanced" assessment of the entire matter is the objective, surely the first thing to be done—rather than requiring the prosecutor to say what he knows in defense of the target of the investigation—is to entitle the target to tender his own defense. To require the former while denying (as we do) the latter would be quite absurd. It would also be quite pointless, since it would merely invite the target to circumnavigate the system by delivering his exculpatory evidence to the prosecutor, whereupon it would have to be passed on to the grand jury—unless the prosecutor is willing to take the chance that a court will not deem the evidence important enough to qualify for mandatory disclosure. See, e.g., United States v. Law Firm of Zimmerman & Schwartz, P. C., 738 F. Supp. 407, 411 (Colo. 1990) (duty to disclose exculpatory evidence held satisfied when prosecution tendered to the grand jury defense-provided exhibits, testimony, and explanations of the governing law).

Respondent acknowledges (as he must) that the "common law" of the grand jury is not violated if the grand jury itself chooses to hear no more evidence than that which suffices to convince it an indictment is proper. Thus, had the Government offered to familiarize the grand jury in this case with the five boxes of financial statements and deposition testimony alleged to contain exculpatory information, and had the grand jury rejected the offer as pointless, respondent would presumably agree that the resulting indictment would have been valid. Respondent insists, however, that courts must require the modern prosecutor to alert the grand jury to the nature and extent of the available exculpatory evidence, because otherwise the grand jury "merely functions as an arm of the prosecution." We reject the attempt to convert a non-existent duty of the grand jury itself into an obligation of the prosecutor. The authority of the prosecutor to seek an indictment has long been understood to be "coterminous with the authority of the grand jury to entertain [the prosecutor's] charges." United States v. Thompson, 251 U.S. at 414. If the grand jury has no obligation to consider all "substantial exculpatory" evidence, we do not understand how the prosecutor can be said to have a binding obligation to present it.

There is yet another respect in which respondent's proposal not only fails to comport with, but positively contradicts, the "common law" of the Fifth Amendment grand jury. Motions to quash indictments based upon the sufficiency of the evidence relied upon by the grand jury were unheard of at common law in England. And the traditional American practice was described by Justice Nelson, riding circuit in 1852, as follows:

"No case has been cited, nor have we been able to find any, furnishing an authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof, or whether there was a deficiency in respect to any part of the complaint ...."

United States v. Reed, 2 Blatchf. 435, 27 F. Cas. 727, 738 (No. 16,134) (CC NDNY 1852).

We accepted Justice Nelson's description in Costello v. United States, where we held that "it would run counter to the whole history of the grand jury institution" to permit an indictment to be challenged "on the ground that there was inadequate or incompetent evidence before the grand jury." 350 U.S. at 363-364. And we reaffirmed this principle recently in Bank of Nova Scotia, where we held that "the mere fact that evidence itself is unreliable is not sufficient to require a dismissal of the indictment," and that "a challenge to the reliability or competence of the evidence presented to the grand jury" will not be heard. 487 U.S. at 261. It would make little sense, we think, to abstain from reviewing the evidentiary support for the grand jury's judgment while scrutinizing the sufficiency of the prosecutor's presentation. A complaint about the quality or adequacy of the evidence can always be recast as a complaint that the prosecutor's presentation was "incomplete" or "misleading." Our words in Costello bear repeating: Review of facially valid indictments on such grounds "would run counter to the whole history of the grand jury institution[,] [and] neither justice nor the concept of a fair trial requires [it]." 350 U.S. at 364.

Echoing the reasoning of the Tenth Circuit in United States v. Page, 808 F.2d at 728, respondent argues that a rule requiring the prosecutor to disclose exculpatory evidence to the grand jury would, by removing from the docket unjustified prosecutions, save valuable judicial time. That depends, we suppose, upon what the ratio would turn out to be between unjustified prosecutions eliminated and grand jury indictments challenged—for the latter as well as the former consume "valuable judicial time." We need not pursue the matter; if there is an advantage to the proposal, Congress is free to prescribe it. For the reasons set forth above, however, we conclude that courts have no authority to prescribe such a duty pursuant to their inherent supervisory authority over their own proceedings. The judgment of the Court of Appeals is accordingly reversed, and the cause is remanded for further proceedings consistent with this opinion.

JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR join, and with whom JUSTICE THOMAS joins as to Parts II and III, dissenting.

Like the Hydra slain by Hercules, prosecutorial misconduct has many heads. Some are cataloged in Justice Sutherland's classic opinion for the Court in Berger v. United States, 295 U.S. 78 (1935):

"That the United States prosecuting attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner ....

"The prosecuting attorney's argument to the jury was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury."

Id., at 84-85. … Nor has prosecutorial misconduct been limited to judicial proceedings: The reported cases indicate that it has sometimes infected grand jury proceedings as well. The cases contain examples of prosecutors presenting perjured testimony, United States v. Basurto, 497 F.2d 781, 786 (CA9 1974), questioning a witness outside the presence of the grand jury and then failing to inform the grand jury that the testimony was exculpatory, United States v. Phillips Petroleum, Inc., 435 F. Supp. 610, 615-617 (ND Okla. 1977), failing to inform the grand jury of its authority to subpoena witnesses, United States v. Samango, 607 F.2d 877, 884 (CA9 1979), operating under a conflict of interest, United States v. Gold, 470 F. Supp. 1336, 1346-1351 (ND Ill. 1979), misstating the law, United States v. Roberts, 481 F. Supp. 1385, 1389, and n. 10 (CD Cal. 1980), and misstating the facts on cross-examination of a witness, United States v. Lawson, 502 F. Supp. 158, 162, and nn. 6-7 (Md. 1980).

Justice Sutherland's identification of the basic reason why that sort of misconduct is intolerable merits repetition:

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

Berger v. United States, 295 U.S. at 88. It is equally clear that the prosecutor has the same duty to refrain from improper methods calculated to produce a wrongful indictment. Indeed, the prosecutor's duty to protect the fundamental fairness of judicial proceedings assumes special importance when he is presenting evidence to a grand jury. As the Court of Appeals for the Third Circuit recognized, "the costs of continued unchecked prosecutorial misconduct" before the grand jury are particularly substantial because there

"the prosecutor operates without the check of a judge or a trained legal adversary, and virtually immune from public scrutiny. The prosecutor's abuse of his special relationship to the grand jury poses an enormous risk to defendants as well. For while in theory a trial provides the defendant with a full opportunity to contest and disprove the charges against him, in practice, the handing up of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo. Where the potential for abuse is so great, and the consequences of a mistaken indictment so serious, the ethical responsibilities of the prosecutor, and the obligation of the judiciary to protect against even the appearance of unfairness, are correspondingly heightened."

United States v. Serubo, 604 F.2d 807, 817 (1979)….

In an opinion that I find difficult to comprehend, the Court today … seems to suggest that the court has no authority to supervise the conduct of the prosecutor in grand jury proceedings so long as he follows the dictates of the Constitution, applicable statutes, and Rule 6 of the Federal Rules of Criminal Procedure. The Court purports to support this conclusion by invoking the doctrine of separation of powers and citing a string of cases in which we have declined to impose categorical restraints on the grand jury. Needless to say, the Court's reasoning is unpersuasive.

Although the grand jury has not been "textually assigned" to "any of the branches described in the first three Articles" of the Constitution, ante, at 47, it is not an autonomous body completely beyond the reach of the other branches. Throughout its life, from the moment it is convened until it is discharged, the grand jury is subject to the control of the court. As Judge Learned Hand recognized over 60 years ago, "a grand jury is neither an officer nor an agent of the United States, but a part of the court." Falter v. United States, 23 F.2d 420, 425 (CA2 1928) ….

This Court has, of course, long recognized that the grand jury has wide latitude to investigate violations of federal law as it deems appropriate and need not obtain permission from either the court or the prosecutor. Correspondingly, we have acknowledged that "its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials." Calandra, 414 U.S. at 343. But this is because Congress and the Court have generally thought it best not to impose procedural restraints on the grand jury; it is not because they lack all power to do so.

To the contrary, the Court has recognized that it has the authority to create and enforce limited rules applicable in grand jury proceedings. Thus, for example, the Court has said that the grand jury "may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law." Id., at 346. And the Court may prevent a grand jury from violating such a privilege by quashing or modifying a subpoena, id., at 346, n. 4, or issuing a protective order forbidding questions in violation of the privilege, Gravel v. United States, 408 U.S. 606, 628-629 (1972). Moreover, there are, as the Court notes, ante, at 49, a series of cases in which we declined to impose categorical restraints on the grand jury. In none of those cases, however, did we question our power to reach a contrary result.

We do not protect the integrity and independence of the grand jury by closing our eyes to the countless forms of prosecutorial misconduct that may occur inside the secrecy of the grand jury room. After all, the grand jury is not merely an investigatory body; it also serves as a "protector of citizens against arbitrary and oppressive governmental action." United States v. Calandra, 414 U.S. at 343. Explaining why the grand jury must be both "independent" and "informed," the Court wrote in Wood v. Georgia, 370 U.S. 375 (1962):

"Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will." Id., at 390.

It blinks reality to say that the grand jury can adequately perform this important historic role if it is intentionally misled by the prosecutor—on whose knowledge of the law and facts of the underlying criminal investigation the jurors will, of necessity, rely.

What, then, is the proper disposition of this case? I agree with the Government that the prosecutor is not required to place all exculpatory evidence before the grand jury. A grand jury proceeding is an ex parte investigatory proceeding to determine whether there is probable cause to believe a violation of the criminal laws has occurred, not a trial. Requiring the prosecutor to ferret out and present all evidence that could be used at trial to create a reasonable doubt as to the defendant's guilt would be inconsistent with the purpose of the grand jury proceeding and would place significant burdens on the investigation. But that does not mean that the prosecutor may mislead the grand jury into believing that there is probable cause to indict by withholding clear evidence to the contrary. I thus agree with the Department of Justice that "when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence which directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person." U.S. Dept. of Justice, United States Attorneys' Manual 9-11.233, p. 88 (1988).

Although I question whether the evidence withheld in this case directly negates respondent's guilt, I need not resolve my doubts because the Solicitor General did not ask the Court to review the nature of the evidence withheld. Instead, he asked us to decide the legal question whether an indictment may be dismissed because the prosecutor failed to present exculpatory evidence. Unlike the Court and the Solicitor General, I believe the answer to that question is yes, if the withheld evidence would plainly preclude a finding of probable cause. I therefore cannot endorse the Court's opinion.

While grand jury information is presumptively secret, note that Fed. R. Crim. P. 6(e)(3) permits disclosure in various specified circumstances. In United States v. Sells Engineering, 463 U.S. 418, 427 (1983), the Supreme Court concluded that the exception in 6(e)(3)(1)(A) authorizing disclosures to "an attorney for the government for use in performing that attorney's duty" is "limited to use by those attorneys who conduct the criminal matters to which the materials pertain" and thus does not authorize disclosure to DOJ attorneys working on civil enforcement matters.

The 2002 Advisory Committee Note for Rule 6 summarized new grounds for disclosure added in a revision of the Rule that year:

Rule 6(e)(3)(A)(iii) is a new provision that recognizes that disclosure may be made to a person under 18 U.S.C. §3322 (authorizing disclosures to an attorney for the government and banking regulators for enforcing civil forfeiture and civil banking laws)….

Rule 6(e)(3)(D) is new and reflects changes made to Rule 6 in ... USA PATRIOT Act of 2001. The new provision permits an attorney for the government to disclose grand-jury matters involving foreign intelligence or counterintelligence to other Federal officials, in order to assist those officials in performing their duties. Under Rule 6(e)(3)(D)(i), the federal official receiving the information may only use the information as necessary and may be otherwise limited in making further disclosures. Any disclosures made under this provision must be reported under seal, within a reasonable time, to the court. The term “foreign intelligence information” is defined in Rule 6(e)(3)(D)(iii).

Rule 6(e)(3)(E)(iv) … addresses disclosure of grand-jury information to armed forces personnel where the disclosure is for the purpose of enforcing military criminal law under the Uniform Code of Military Justice ….

Rule 41: Search and Seizure

(a) Scope and Definitions.

(1) Scope. This rule does not modify any statute regulating search or seizure, or the issuance and execution of a search warrant in special circumstances.

(2) Definitions. The following definitions apply under this rule: ...

(D) “Domestic terrorism” and “international terrorism” have the meanings set out in 18 U.S.C. §2331....

(b) Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government:

(1) a magistrate judge with authority in the district—or if none is reasonably available, a judge of a state court of record in the district—has authority to issue a warrant to search for and seize a person or property located within the district;

(2) a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed;

(3) a magistrate judge—in an investigation of domestic terrorism or international terrorism—with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district; ...

(5) a magistrate judge having authority in any district where activities related to the crime may have occurred, or in the District of Columbia, may issue a warrant for property that is located outside the jurisdiction of any state or district, but within any of the following:

(A) a United States territory, possession, or commonwealth;

(B) the premises—no matter who owns them—of a United States diplomatic or consular mission in a foreign state, including any appurtenant building, part of a building, or land used for the mission's purposes; or

(C) a residence and any appurtenant land owned or leased by the United States and used by United States personnel assigned to a United States diplomatic or consular mission in a foreign state.

(6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:

(A) the district where the media or information is located has been concealed through technological means; or

(B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.

Excerpt from: Extraterritorial Ambit through Offence Definitions, Technology and Economic Power, in Micheál Ó Floinn & Lindsay Famer eds., Criminal Jurisdiction (Oxford: Hart Pub. 2022 forthcoming)

Darryl K. Brown

3 Extraterritorial Information Gathering

International law restricts enforcement jurisdiction much more than prescriptive jurisdiction. Where the law clearly bars extraterritorial actions such as police searches, states rely on multinational cooperation to facilitate information sharing, evidence gathering, and arrests through cooperative institutions and formal agreements. But international law in this domain is also permissive in a critical respect, because it is unclear how territorial limits on enforcement apply to remotely conducted digital searches. Remote searches challenge jurisdictional limits for the same reason that transnational crimes do: officials’ conduct in one state has effects in another. Without an international law of ‘investigative jurisdiction’, extraterritorial digital searches by various means are regulated largely by domestic law and ad hoc state interactions. And states have good reasons for seeking extraterritorial data. It is often stored in territory unrelated to data owners’ locations or the crimes to which it relates, in states with perhaps little reason, or jurisdiction, to prosecute.

Unsurprisingly, the same factors that permit domestic offences with extraterritorial reach are at play in state strategies to gather evidence beyond their national boundaries. For the United States (and the European Union), that includes the advantages which come with a large domestic economy and geopolitical leverage.^[1] The United States claims personal (or adjudicative) jurisdiction over most major internet service and data hosting providers, international banks, and large transnational firms, because all have some presence in US territory. Those firms are subject to US warrants, subpoenas, production orders, and reporting requirements, which provide access to the globally distributed information assets that those firms own, manage or control. Other advantages flow from geopolitical influence and capacity to fund extraterritorial enforcement operations, not unlike what we see in the Maritime Drug Law Enforcement Act’s infrastructure. US law enforcement agencies (LEAs) station hundreds of agents in dozens of countries pursuant to various agreements.^[2] Intelligence surveillance by US security agencies – which sometimes supplements traditional law enforcement investigations – has distinct (sometimes notorious)^[3] extraterritorial capacity that builds on digital technologies and information sharing with other states.

The most hotly debated practices involve digital searches and data retrieval, for much-noted reasons: countries regulate data within their territories, but data is often distributed in locations that bear little relation to its owners or the crimes to which it is linked. A pair of distinctions are useful to understand US policy in this domain. The first is between direct versus indirect government access to extraterritorial digital data – that is, whether LEAs access data themselves or compel a private third party to disclose the data. The second is whether investigators know the location where data is stored; when the location is unknown, officials obviously cannot seek permission or help from the hosting state. US law is more permissive for indirect than direct searches, and for direct searches of data when its location is unknown to LEAs.

3.1 Indirect Access to Extraterritorial Information

Two important devices – national security letters and database search warrants – authorise US investigators to compel private firms to search and retrieve information stored in other states. Both rely on US personal jurisdiction over transnational firms,^[4] which in practical effect operates as investigative jurisdiction over firms’ extraterritorial conduct and information. Such orders can conflict with laws in other states. Arguably, they violate no clearly established international law,^[5] although that view is sharply disputed by some commentators and states, which view the practice as an impermissible exercise of indirect enforcement jurisdiction.^[6]

Warrants are authorised by the Stored Communications Act (SCA), as amended by the 2018 US CLOUD Act, which has drawn much commentary. The latter Act [in provisions codified at 18 U.S.C. §§ 2510, 2703, 2711, 2713] clarified that SCA warrants require firms providing remote data storage and communication services to preserve and disclose data stored outside as well as within the United States.^[7] The much-noted problem is that compliance with SCA warrants might conflict with firms’ obligations under other states’ regulation of data stored in their territory. The CLOUD Act provides two ways to avoid those conflicts. First, [in 18 U.S.C. § 2523] it encourages bilateral agreements between the US and other states to resolve such conflicts, set common standards for privacy and human rights, and create a speedy alternative to MLAT requests for other states seeking data controlled by US firms. Second, [in 18 U.S.C. § 2703(h)(2)(B)] it empowers US courts to employ comity analysis to deny warrants if ‘the required disclosure would cause the provider to violate the laws of a qualifying foreign government’ – that is, a government that entered a bilateral agreement with the US. Hörnle correctly describes the coercive nature of this scheme. She suggests that, in negotiating compacts, the US likely will be able to ‘achieve concessions from other States’ given its greater ‘data power’ from the large share of the world’s data that is stored in the US or controlled by US ISPs.^[8]

National Security Letters (NSLs) provide an alternate means to compel data disclosures from communication service providers, credit reporting agencies, and banks. Several statutes [such as 18 U.S.C. §§ 2709(d) and 3511] authorise the FBI to issue NSLs, which are effectively subpoenas issued directly by investigators rather than courts, although recipients can seek judicial review of certain requests. The most frequently used type of NSL is also part of the SCA and is directed at metadata on specific individuals’ phone and email accounts.^[9] Other NSL statutes address financial data.^[10]

To enforcement agencies, NSLs offer the advantage of not requiring a court preapproval. But they are limited in two important respects. They can be used to obtain only communications metadata (not email contents), and they can be issued only as part of an ‘investigation to protect against international terrorism or clandestine intelligence activities’.^[11] Information obtained through NSLs is often shared with criminal prosecutors, mostly for terrorism-related cases. How often is unknown. The FBI claims that NSL responses have played a critical role in specific counterterrorism convictions, and an independent review found that the FBI ‘routinely shared’ information from NSLs with prosecutors, who also sometimes ask the FBI to issue NSLs. But no records exist of which or how many criminal cases benefited from NSL-obtained evidence, although the number is likely substantial. In the years 2003–05 [according to an Inspector General report], the FBI issued at least 143,074 NSL requests, almost three-quarters of which were for counter-terrorism (rather than counter-intelligence) investigations. Nor is there data on how often NSL requests require disclosure of extraterritorial data; few if any court decisions resolving NSL challenges address data stored abroad. But here too the number is likely substantial given that requests must focus on international terrorism and counter-intelligence.

3.2 Direct Access of Extraterritorial Information

Not all remotely stored information can be obtained by compelling private entities to disclose it. The US Justice Department uses the term ‘network investigative techniques’ to describe ways that LEAs directly access websites and stored data, especially when the server location or user identities of those targets are concealed through ‘dark web’ technologies such as Tor networks. For example, to identify the location of a server hosting child pornography, officials may surreptitiously deploy computer code designed to identify users and administrators by causing computers to send the IP and MAC addresses and other information to a government computer – techniques fairly characterised as government hacking. Like the digital data and networks they target, these techniques can disregard territorial boundaries; the location of data, and of administrators or users, can be widespread. The FBI’s investigation of the ‘Playpen’ child porn and exploitation site identified 8,000 IP addresses that visited the site, many outside the United States.

As a matter of federal law, search warrants may be issued for electronic or digital searches only for devices located within the United States – or at least not known to be outside the United States, if the search is otherwise lawful. [Federal Rule of Criminal Procedure 41(a)–(b).] The distinction between these direct searches and the indirect searches via SCA warrants is subtle but important. No statute authorises law enforcement officials to knowingly and directly search a server in another state’s territory. Justice Department policy reinforces that constraint by directing prosecutors to limit warrants to searches within the United States unless conducted in cooperation with foreign counterparts. [See DOJ Justice Manual § 9-13.525.] These limits implicitly recognise direct searches by officials as extraterritorial exercises of enforcement jurisdiction even though conducted remotely. But because SCA warrants are understood as exercises of adjudicative jurisdiction over domestic firms, and the duty to preserve and disclose applies regardless of the location of data, US law makes extraterritorial reach explicit.

The line grows greyer when the location of servers is unknown. A partial answer is provided in Federal Rule of Criminal Procedure 41(b)(6). As amended in 2016, that rule authorises a judge:

[I]n any district where activities related to a crime may have occurred … to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if … the district where the media or information is located has been concealed through technological means’ (emphasis added).

Thus, the rule permits direct, NIT searches of extraterritorial data, but only when (a) the data or server location is unknown, and (b) it is unknown because it was deliberately concealed. In these circumstances, seeking assistance from states in which the data resides is not possible. And ordinary warrant requirements are unchanged by the amendment. Warrants must identity the person or property to be searched with ‘reasonable particularity’.^[12] US courts give those requirements some teeth; a few have rejected NIT warrant requests that did not sufficiently specify the target computer, and when the prospect of searching innocent users was too great.^[13]

In sum, US law and Justice Department policy disapprove of officials knowingly and directly searching devices outside US territory. However, [pursuant to 50 USC § 1881a(h)(2)(A)(v)] when a ‘significant purpose’ of the search – but not the sole or even primary one – is ‘to obtain foreign intelligence information’ rather than to investigate crime, section 702 of the Foreign Intelligence Surveillance Act Amendments Act of 2008 (FISA) provides greater authority to monitor and gather electronic communications data of noncitizens outside the United States^[14] – via US infrastructure – than is permissible when noncitizens are within US territory. Instead of a search warrant, officials can get preapproval from the Foreign Intelligence Surveillance Court (FISC) of their surveillance tactics and plans for analysing data.^[15] The FISC ensures that surveillance targets are people outside the United States, and that techniques minimise data collection from (and analysis of) people within US borders.^[16]

Section 702 searches have gathered massive amounts of data, particularly during the PRISM program, through which the National Security Agency accessed vast amounts of users’ data – more than 250 million internet communications annually. And despite its constraints, section 702 collections can include data of US persons if gathered ‘incidentally’ whilst targeting noncitizens outside US territory.^[17] Such data have proven useful in several criminal prosecutions (usually for terrorism-related offences) to justify domestic intelligence surveillance under FISA, to obtain domestic search warrants, or as trial evidence.

The focus of section 702 operations is explicitly on extraterritorial actors and data (when accessible via US-based communications service providers). Its justification rests in part on a distinction between foreign intelligence and law enforcement activities. Espionage – especially by remote surveillance – is often said not to violate international law (although it usually violates domestic law). Section 702 surveillance is designed to serve national security interests, but is not classic espionage; it targets not state secrets but non-state actors – the kind of intelligence that states often share. But international law ambiguity, and the fact that all states seek foreign intelligence by various means, helps to explain section 702’s comparatively expansive surveillance authority. When surveillance is primarily for law enforcement purposes, US law is more restrictive of extraterritorial searches, whether conducted both directly via ordinary warrants or indirectly via CLOUD Act warrants. An additional political explanation would point in part to the US global footprint – notably but not solely via its military – as creating more targets for (and animosity from) international bad actors. And here as in other contexts, US financial resources provide the capacity for expansive infrastructure and operations.

Footnotes:

[1] See, eg: Andreas and Nadelmann, Policing (n 6) 220–21: ‘US strategy to secure greater law enforcement cooperation … could best be described as coercive co-optation involving a mix of sticks and carrots’; id. at 196-97, 241-43; Sinnar, ‘Separate and Unequal’ (n 50) 1372, describing US pressure on other states to adopt anti-terrorism policies.

[2] The US Drug Enforcement Agency has 90 offices abroad in 60 countries. See: US DEA, ‘Foreign Offices’ (DEA) www.dea.gov/foreign-office-locations. The Federal Bureau of Investigation (FBI) has international operations in 93 offices abroad. See: FBI, ‘International Operations’ (FBI) www.fbi.gov/about/leadership-and-structure/international-operations. More than 70 federal prosecutors are stationed outside the US, often under the Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT). See: OPDAT, ‘Office of Overseas Prosecutorial Development, Assistance and Training’ (Justice) www.justice.gov/criminal-opdat.

[3] See, eg: TB Lee, ‘Here’s Everything We Know About PRISM to Date’ (Washington Post, 12 June 2013) www.washingtonpost.com/news/wonk/wp/2013/06/12/heres-everything-we-know-about-prism-to-date/.

[4] Other states do much the same. See, eg: Public Prosecutor v Yahoo!, Inc, Hof van Cassatie [Cass] [Court of Cassation] [Supreme Court of Belgium] [1 December 2015], No P.13.2082.N, translated in: J Vandendreissche, ‘Case Translation: Belgium’ (2016) 13 Digital Evidence and Electronic Signature Law Review 156, paras 8–9. See also: Hörnle, Internet Jurisdiction (n 69) 199–200, criticizing this basis for jurisdiction alone as inadequate.

[5] eg: Daskal, ‘Transnational’ (n 69) 697: ‘cross-border accessing and copying of data for law enforcement purposes, without more, does not violate clearly established international law’.

[6] Ryngeart, Jurisdiction (n 4) 89–93.

[7] 18 USC § 2713 (duty to preserve data applies ‘regardless of whether such communication, record, or other information is located within or outside of the United States’); 18 USC § 2703 (warrants can require disclosure of contents of communications); 18 USC § 2711 (defining ‘remote computing service’); 18 USC § 2510 (defining ‘electronic communication service’ as one ‘which provides to users … the ability to send or receive wire or electronic communications’). Warrants must be time-limited relatively specific as to the targeted person, suspected crime, and the data sought. Federal Rule of Criminal Procedure 41(c)–(e).

[8] Hörnle, Internet Jurisdiction (n 69) 201, 214–15, 224–29.

[9] See: 18 USC § 2709 (requests limited to ‘subscriber information and toll billing records information, or electronic communication transactional records’ and similar metadata).

[10] Fair Credit Reporting Act, 15 USC § 1681u (authorising limited data disclosures from credit reporting agencies); Patriot Act § 358(g) (authorising greater data disclosure from credit agencies); Right to Financial Privacy Act, 12 USC § 3414 (financial data).

[11] ECPA, 18 USC § 2709(b)(2); 15 USC § 1681u(a)–(b); 12 USC § 3414(a)(5)(A).

[12] United States v Karo 468 US 705, 713–14 (1984); Maryland v Garrison 480 US 79, 84 (1987); Federal Rules of Criminal Procedure, r 41(e)(2)(A). Warrants for NITs can describe the thing to be searched without knowing its location.

[13] In re Warrant to Search a Target Computer at Premises Unknown 958 F Supp 2d 753, 756–759 (SD Tex 2013).

[14] See: 50 USC §§ 1881a(a) and (b)(1)–(3) (surveillance ‘may not intentionally target any person known … to be located in the United States’ nor ‘a United States person reasonably believed to be located outside the United States’); 50 USC § 1801(i) (‘United States persons’ includes citizens and lawful noncitizen residents).

[15] 50 USC § 1881a(d)(2), (e)(2), (f)(1)(C) and (j).

[16] 50 USC § 1881a(a), (d)–(f) and (j). See also: In re DNI/AG 702(h) Certifications 2018, 941 F3d 547, 552 (FISA Ct Rev 2019) (per curiam): ‘the Attorney General and the Director of National Intelligence can execute a Section 702 authorisation only after the FISC enters an order approving the proposed acquisition’.

[17] 50 USC § 1881a(a) and (b)(2); United States v Muhtorov 20 F4th 558, 604–05 (10th Cir 2021); United States v Hasbajrami 945 F3d 641, 654 (2d Cir 2019). It appears that the government maximises this domestic surveillance by asserting that minimal acts by domestic actors, such as posting YouTube videos, satisfy the international-nexus requirement. See: Sinnar, ‘Separate and Unequal’ (n 50) 1347. The constitutional warrant requirement does not apply to extraterritorial searches: United States v Verdugo-Urquidez 494 US 259 (1990). Federal courts have extended that holding to domestic communications obtained incidentally to extraterritorial surveillance, although such searches still must be ‘reasonable’.

McLAUGHLIN, Circuit Judge:

Both defendants were convicted on charges arising out of a sting operation. The jury found that they conspired to conceal the source of what a cooperator represented to be proceeds from the sale of a surface-to-air missile. According to the cooperator, the missile was to be used by terrorists against a target in New York City. Before trial, the Government sought, pursuant to the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3, two protective orders restricting discovery of certain classified information that, arguably, would have been otherwise discoverable. The district court granted the motions in part and denied the rest.

Based on an article in The New York Times (suggesting the defendants might have been subject to warrantless surveillance), Aref also moved to discover evidence resulting from any warrantless surveillance and to suppress any illegally obtained evidence or to dismiss the indictment. Both the Government's responses to the motion and the district court's order denying the motion were sealed because they contained classified information. The district court also denied motions by the New York Civil Liberties Union (the "NYCLU") to intervene and to get public access to those sealed documents.

The defendants appeal their convictions. … Because most of the appellants' challenges are governed by settled law, we address them in an accompanying summary order. We now resolve … the standard for determining what relevant classified information a criminal defendant is entitled to receive during discovery …. We also hold that the district court did not err in sealing certain documents containing classified information, but we urge district courts to avoid sealing documents in their entirety unless necessary to serve a compelling governmental interest such as national security.

BACKGROUND

In a thirty-count indictment, both defendants were charged with conspiracy and attempt to commit money laundering and to provide material support to a designated terrorist organization. Aref was also charged with making false statements to federal officers.

The Government alleged that the defendants agreed to work with a cooperator in a scheme to conceal the source of $ 50,000. The cooperator told the defendants that the money came from the sale of a surface-to-air missile to a designated terrorist group called Jaish-e-Mohammed. The missile was to be fired at a target in New York City. A jury found Hossain guilty on all twenty-seven counts against him. Aref was convicted on ten counts and acquitted on the others. We address the defendants' challenges to the evidence against them in the accompanying summary order, and we recount only those facts relevant to the district court's handling of classified information.

During pretrial discovery, the Government sought protective orders pursuant to CIPA section 4, 18 U.S.C. app. 3 § 4, and Federal Rule of Criminal Procedure 16(d)(1). The orders would permit it to withhold classified information that might otherwise have been discoverable. The district court held a series of ex parte, in camera conferences with the Government relating to the classified information. The court also held an ex parte, in camera conference with defense counsel to assist the court in deciding what information would be helpful to the defense.

On January 20, 2006, Aref moved to: (1) suppress all evidence against him as the fruit of illegal electronic surveillance, (2) dismiss the indictment, and (3) direct the Government to admit or deny illegal electronic surveillance against him and to provide all documentation of intercepted communications. Aref based this motion on an article in The New York Times, stating that "different officials agree that the [National Security Agency's] domestic operations played a role in the arrest" of Aref and Hossain.

On March 10, 2006, the Government filed an ex parte Opposition to Aref's motion (the "March 10, 2006 Opposition"), which the Court reviewed in camera. That same day, the district court denied the motion in an order sealed from the public and the defendants (the "March 10, 2006 Order"), in which it made certain findings under seal. It also issued a brief public order stating that it had denied the motion.

A week later, the district court issued two sealed orders granting in part and denying in part the Government's motions for protective orders. Later that month, the defendants asked for the district court's three sealed orders-the March 10, 2006 Order and the two orders resolving the Government's motions for protective orders. The district court denied that request, and Aref sought a writ of mandamus from this Court ordering: (1) the district court to vacate the sealed orders and to provide Aref with unredacted versions of the Government's filings, (2) the Government to disclose any warrantless surveillance of Aref's communications, and (3) the district court to suppress all evidence against him as derived from illegal warrantless surveillance and to dismiss the indictment. See Aref v. United States, 452 F.3d 202, 205 (2d Cir. 2006) (per curiam). … We dismissed in part and denied in part Aref's petition ….

Despite its earlier sealing decision, the district court … instructed the Government to file publicly as much of its March 10, 2006 Opposition as it could without jeopardizing national security. The Government publicly filed a redacted version of that document disclosing only a few unclassified paragraphs describing Aref's motion; and it provided the name and position of the official whose declaration was submitted to support the March 10, 2006 Opposition.… The defendants … now appeal.

DISCUSSION

The defendants argue that the district court improperly denied them access to classified information during discovery. …We reject these arguments....

CIPA establishes procedures for handling classified information in criminal cases. [CIPA defines "classified information" as "information or material that has been determined by the U.S. Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security." 18 U.S.C. app. 3 § 1(a).] The statute was meant to "protect[] and restrict[] the discovery of classified information in a way that does not impair the defendant's right to a fair trial." United States v. O'Hara, 301 F.3d 563, 568 (7th Cir. 2002).

CIPA section 4 sets out procedures for "[d]iscovery of classified information by defendants":

The [district] court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone.

18 U.S.C. app. 3 § 4.

This provision clarifies district courts' power under Federal Rule of Criminal Procedure 16(d)(1) to issue protective orders denying or restricting discovery for good cause. … The Advisory Committee notes to Rule 16 make clear that "good cause" includes "the protection of information vital to the national security." Fed. R. Crim. P. 16 advisory committee's note to 1966 amendment.

It is important to understand that CIPA section 4 presupposes a governmental privilege against disclosing classified information. It does not itself create a privilege. United States v. Mejia, 448 F.3d 436, 455 & n.15 (D.C. Cir. 2006); see also H.R. Rep. No. 96-831, pt. 1, at 27 (1980) (noting that CIPA "is not intended to affect the discovery rights of a defendant"). Although Rule 16(d)(1) authorizes district courts to restrict discovery of evidence in the interest of national security, it leaves the relevant privilege undefined.

The most likely source for the protection of classified information lies in the common-law privilege against disclosure of state secrets. See Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 546 (2d Cir. 1991). That venerable evidentiary privilege "allows the government to withhold information from discovery when disclosure would be inimical to national security." Id. It would appear that classified information at issue in CIPA cases fits comfortably within the state-secrets privilege. Compare id. with Classified National Security Information, Exec. Order No. 13,292, § 1.2, 68 Fed. Reg. 15315, 15315-16 (Mar. 25, 2003) (recognizing three levels of classified national security information, all of which require the classifying officer to determine that disclosure reasonably could be expected to damage national security).

We are not unaware that the House of Representatives Select Committee on Intelligence stated categorically in its report on CIPA that "the common law state secrets privilege is not applicable in the criminal arena." H.R. Rep. 96-831, pt. 1, at 15 n.12. That statement simply sweeps too broadly.

The Committee relied on three cases for this remarkable proposition: Reynolds v. United States, 345 U.S. 1 (1953), United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), and United States v. Andolschek, 142 F.2d 503 (2d Cir. 1944). See H.R. Rep. 96-831, pt.1, at 15 n.12. A close reading of these cases does not support the Committee's conclusion.

In Reynolds, the Supreme Court held that a court in a civil case may deny evidence to plaintiffs if "there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged." 345 U.S. at 10. In contrast, the Court explained that in criminal cases such as Andolschek, the Government was not permitted to "undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense." Id. at 12 & n.27. Similarly, we acknowledged in Coplon that the Government possesses a privilege against disclosing "state secrets," but held that the privilege could not prevent the defendant from receiving evidence to which he has a constitutional right. See 185 F.2d at 638. These cases, therefore, do not hold that the Government cannot claim the state-secrets privilege in criminal cases. Instead, they recognize the privilege, but conclude that it must give way under some circumstances to a criminal defendant's right to present a meaningful defense.

Accordingly, we hold that the applicable privilege here is the state-secrets privilege. See United States v. Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (holding that state-secrets privilege applies in CIPA cases). That said, Reynolds, Andolschek, and Coplon make clear that the privilege can be overcome when the evidence at issue is material to the defense. See Reynolds, 345 U.S. at 12 & n.27. This standard is consistent with Roviaro v. United States, 353 U.S. 53 (1957), where the Supreme Court held in a criminal case that the Government's privilege to withhold the identity of a confidential informant "must give way" when the information "is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Id. at 60-61. Indeed, we have interpreted "relevant and helpful" under Roviaro to mean "material to the defense." United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988). We have also noted that the government-informant privilege at issue in Roviaro and the state-secrets privilege are part of "the same doctrine." Coplon, 185 F.2d at 638.

We therefore adopt the Roviaro standard for determining when the Government's privilege must give way in a CIPA case. Other circuits agree. See Klimavicius-Viloria, 144 F.3d at 1261; United States v. Varca, 896 F.2d 900, 905 (5th Cir. 1990); United States v. Yunis, 276 U.S. App. D.C. 1, 867 F.2d 617, 623 (D.C. Cir. 1989); United States v. Smith, 780 F.2d 1102, 1107-10 (4th Cir. 1985) (en banc); United States v. Pringle, 751 F.2d 419, 427-28 (1st Cir. 1984).

Applying this standard, the district court must first decide whether the classified information the Government possesses is discoverable. If it is, the district court must then determine whether the state-secrets privilege applies because: (1) there is "a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged," and (2) the privilege is "lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." Reynolds, 345 U.S. at 8, 10 (footnote omitted).

If the evidence is discoverable but the information is privileged, the court must next decide whether the information is helpful or material to the defense, i.e., useful "to counter the government's case or to bolster a defense." United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993) (interpreting materiality standard under Federal Rule of Criminal Procedure 16(a)(1)). To be helpful or material to the defense, evidence need not rise to the level that would trigger the Government's obligation under Brady v. Maryland, 373 U.S. 83 (1963), to disclose exculpatory information. See id. at 87. "[I]nformation can be helpful without being 'favorable' in the Brady sense." Mejia, 448 F.3d at 457.

The district court's decision to issue a protective order under CIPA section 4 and Federal Rule of Criminal Procedure 16(d)(1) is reviewed for abuse of discretion. See United States v. Delia, 944 F.2d 1010, 1018 (2d Cir. 1991). Whether evidence is "helpful" or "material to the defense" is also within the district court's discretion. See DiBlasio v. Keane, 932 F.2d 1038, 1042 (2d Cir. 1991).

We find no abuse of discretion here. For purposes of this opinion, we assume without deciding that the classified information the Government presented to the district court was discoverable. We have carefully reviewed the classified information and the Government's sealed submissions and agree with the district court that the Government has established a reasonable danger that disclosure would jeopardize national security. See Reynolds, 345 U.S. at 10.

The Government failed, however, to invoke the privilege through the "head of the department which has control over the matter, after actual personal consideration by that officer." Id. at 8. This is not necessarily fatal. We have previously excused the Government's failure to comply with this formality where involvement of the department head would have been "of little or no benefit" because disclosure of classified information was prohibited by law. See Clift v. United States, 597 F.2d 826, 828-29 (2d Cir. 1979) (Friendly, J.) (internal quotation marks omitted). We similarly excuse the failure to involve the department head here. It would "be of little or no benefit" for us to remand for the purpose of having the department head agree that disclosure of the classified information would pose a risk to national security here. Based on our holding today, however, we trust that this issue will not arise in future CIPA cases.

Finally, we agree that the district court did not deny the defendants any helpful evidence. Indeed, we commend the district court for its thorough scrutiny of the classified information.

We also reject Aref's contention that the district court improperly held ex parte hearings with the Government when evaluating the classified material. Both CIPA section 4 and Rule 16(d)(1) authorize ex parte submissions. See 18 U.S.C. app. 3 § 4; Fed. R. Crim. P. 16(d)(1). "In a case involving classified documents, . . . ex parte, in camera hearings in which government counsel participates to the exclusion of defense counsel are part of the process that the district court may use in order to decide the relevancy of the information." Klimavicius-Viloria, 144 F.3d at 1261. When the "government is seeking to withhold classified information from the defendant, an adversary hearing with defense knowledge would defeat the very purpose of the discovery rules." H.R. Rep. 96-831, pt. 1, at 27 n.22.

… For the foregoing reasons, and for those stated in the accompanying summary order, we affirm Aref's and Hossain's convictions ….

 MATHESON, Circuit Judge.

After a sting operation involving two confidential informants and substantial audio and video surveillance, federal law enforcement officers caught Jesus Cabral-Ramirez ("Mr. Cabral") and Defendant-Appellant Maria Gutierrez de Lopez ("Ms. Gutierrez") attempting to transport an undocumented alien from El Paso, Texas to Denver, Colorado. A federal grand jury indicted Ms. Gutierrez on one count of conspiring to transport undocumented aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I)….

The confidential government informants—who testified anonymously [meaning their true names were not revealed to the jury or the defense] without  to protect their safety—testified about several conversations they had with Ms. Gutierrez tending to support the charges against her. Although the Government provided the defense with the informants' general criminal backgrounds, compensation records from federal agencies, and immigration status, it did not disclose their actual identities. Defense counsel cross-examined both witnesses in light of the disclosures provided by the Government, but was unable to conduct adequate independent pre-trial investigation.

The jury convicted Ms. Gutierrez as charged, and the district court sentenced her to three years of probation. She now appeals, arguing [inter alia] … the Government's use of anonymous testimony violated the Confrontation Clause of the Sixth Amendment. …[W]e affirm.

In 2010, agents from the Federal Bureau of Investigation and United States Border Patrol initiated "Operation Desert Tolls," a joint investigation into alien-smuggling organizations operating in New Mexico, western Texas, and Colorado. According to the Government, the operation received its "break" in June 2011 when agents apprehended "John Smith" [an alias] while he was attempting to transport an undocumented alien. Mr. Smith, who was well-connected with the network of smugglers in the region, began working with the FBI as a confidential informant.

In November 2011, Mr. Smith received a call from Mr. Cabral, Ms. Gutierrez's co-defendant at trial. Mr. Cabral told Mr. Smith he would put him in touch with Ms. Gutierrez to "arrange for work" transporting undocumented aliens in exchange for payment. When Ms. Gutierrez called Mr. Smith, she informed him that she had found a person (later identified as Eneldo Valenzuela-Carrillo) seeking transport from El Paso, Texas to Denver, Colorado. The Government recorded various phone conversations between Ms. Gutierrez and Mr. Smith, as well as between Mr. Cabral and Mr. Smith, about the logistics for Mr. Valenzuela-Carrillo's paid transportation to Colorado. Ms. Gutierrez told Mr. Smith that Mr. Valenzuela-Carrillo's family would send part of the money after he made it past the U.S. Border Patrol interior checkpoint (located just north of Las Cruces) and that they would pay the rest when he arrived in Denver.

On November 21, 2011, Mr. Smith picked up Mr. Valenzuela-Carrillo in El Paso and drove him to a motel in Las Cruces, New Mexico. The following day, another confidential informant, "James Jones" [an alias], picked up Mr. Valenzuela-Carrillo in an 18-wheel tractor-trailer and drove him to Albuquerque, New Mexico. [According to the Government, "[t]he FBI had arranged for [Mr.] Jones to drive [Mr. Valenzuela-]Carrillo to Albuquerque to make the operation appear legitimate to [Ms.] Gutierrez and [Mr.] Cabral, as undocumented aliens are commonly transported in tractor-trailers.] They successfully passed through the interior checkpoint just north of Las Cruces and met Mr. Smith, who had driven his own truck to an Albuquerque rest stop. From there, Mr. Valenzuela-Carrillo again switched vehicles and left with Mr. Smith to meet Ms. Gutierrez and Mr. Cabral.

Meanwhile, Ms. Gutierrez picked up $1,500 (sent by Mr. Valenzuela-Carrillo's family) from a "MoneyCenter" at an Albuquerque Walmart. Ms. Gutierrez then met with Mr. Smith, Mr. Cabral, and Mr. Valenzuela-Carrillo in the parking lot of Little Anita's, an Albuquerque restaurant, to exchange the money and transfer Mr. Valenzuela-Carrillo to Mr. Cabral to transport him to Colorado. She gave $1,200 to Mr. Smith and said that Mr. Cabral would take Mr. Valenzuela-Carrillo to Denver. Mr. Smith gave $100 to Mr. Cabral for gas.

Mr. Valenzuela-Carrillo then got into Mr. Cabral's pickup truck, and they drove to a private residence in the area. Once there, Mr. Cabral picked up some other individuals before heading north on Interstate 25. At the FBI's request, New Mexico state police stopped the vehicle south of Santa Fe. They took Mr. Valenzuela-Carrillo and another suspected alien into custody. The officers did not arrest Ms. Gutierrez on that date.

On May 8, 2012, a federal grand jury indicted Ms. Gutierrez on one count of conspiracy to transport an undocumented alien in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). On June 7, 2012, FBI agents arrested Ms. Gutierrez. She pled not guilty.

 At trial, … the Government offered testimony from the two confidential informants who had played a role in the sting operation. Because of a Mexican drug cartel's connection to the case, however, the Government asked the district court to allow them to testify anonymously to protect their personal safety. Over Ms. Gutierrez's Confrontation Clause objection, the district court agreed. The Government provided Ms. Gutierrez with background information on the confidential informants, including criminal history, compensation figures for cooperating with the FBI, and immigration status, but it refused to disclose their true identities. The two witnesses testified in open court under the aliases "John Smith" and "James Jones." They testified about their role in the transportation and their conversations with Ms. Gutierrez and Mr. Cabral, as well as Ms. Gutierrez's role in both obtaining the money and paying Mr. Smith for his efforts. On cross-examination, defense counsel elicited testimony on their criminal history, incentive to cooperate with the Government, and ties to Mexico.

The jury convicted Ms. Gutierrez as charged. The district court sentenced her to three years of probation, including eight months of required radio frequency monitoring.…

Anonymous Testimony

District court proceedings

Before trial, the Government gave notice that it would refer to its two confidential informants by pseudonym because these "alias[es] are necessary to protect the witnesses from potential retaliation." Although Ms. Gutierrez did not respond, she objected "to the whole notion of having anonymous witnesses" during the pre-trial conference. The district court overruled her objection.

The Government provided the defense with each witness's criminal history, compensation records reflecting how much money each had received working for the FBI, and immigration status. The Government did not, however, inform defense counsel of the informants' true identities.

At trial, Ms. Gutierrez objected before John Smith's direct examination (outside the presence of the jury), arguing the anonymous testimony would violate the Confrontation Clause. She asserted the Government's failure to use a curtain or voice-disguising technology in the courtroom with the witnesses "belie[d] the seriousness of the risk that [the Government] propound[s]." … When the court asked the Government to state the basis for not providing the actual identities of its witnesses, the Government responded:

These two defendants I don't—I don't think either of these two defendants are killers. Unfortunately, this is an ongoing investigation that—that's—that—that reaches some dangerous elements down in Mexico. There are cartel connections to this case, and so while these defendants, these particular defendants are not killers, if the identity of these witnesses is disclosed in open court or where there's a record of it, I'm concerned that that may ultimately make it back to the cartel.

Id. at 128. After hearing this justification, the court allowed the Government to present anonymous testimony from its two confidential informants.

After the Government completed its direct examination of John Smith, defense counsel renewed his Confrontation Clause objection. When the court asked the Government whether "[t]he basis for the confidential identity was security concerns," the Government responded:

Yes, Your Honor. Again, we had a similar trial, I guess it was, maybe a month and a half ago …. We proceeded in this identical fashion. Again, these witnesses are still operating on behalf of the United States. Well, at least—at least one of them is actively, and the other is—is potentially going to be still operating on behalf of the United States. Again, there are broader organizations that they are—if these identities become known at large through, you know, a transcript or through just open court testimony, that could damage the operation. That could damage investigations that may be underway in the future. It could also potentially damage or endanger the safety of the witnesses. Again, I'm not suggesting that Ms. Gutierrez de Lopez or Mr. Cabral are themselves threats to these witnesses. I'm not suggesting that.

Id. at 147.

After recounting a different case involving cross-border cocaine and money laundering that resulted in the cooperating witness's decapitation, the district court overruled Ms. Gutierrez's objection. The court concluded that nothing required the Government "in this context" to "disclose the [witnesses'] true names" because the Government "identified security concerns. I don't think that—I think they're valid concerns for that [sic] these confidential informants because they've been cooperating with the government." Id. at 159.

During direct examination, the witnesses testified about their involvement in the sting operation and Ms. Gutierrez's role in facilitating Mr. Valenzuela-Carrillo's transportation away from the border. They further testified about the recorded conversations between themselves and Ms. Gutierrez, their unrecorded discussions with the defendant, and the exchange of money at the Albuquerque restaurant.

Ms. Gutierrez's counsel cross-examined each witness about his criminal history, compensation for cooperating with the FBI, immigration status, and ties to Mexico. Mr. Cabral's counsel elicited testimony from John Smith regarding another alien smuggling arrest that the Government failed to disclose. Defense counsel's cross-examination of these two witnesses largely tracked the disclosures provided by the Government.

Legal background

a. Legal standard

The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The Supreme Court has identified "two broad categories" of Confrontation Clause cases. See Delaware v. Fensterer, 474 U.S. 15, 18 (1985) (per curiam).

"The first category reflects the [Supreme] Court's longstanding recognition that the literal right to 'confront' the witness at the time of trial forms the core of the values furthered by the Confrontation Clause." Id. (quotations omitted). Because Ms. Gutierrez was able to physically confront the Government's confidential informants, we focus on the "second category."

The "second category" arises when, "although some cross-examination of a prosecution witness was allowed, the trial court did not permit defense counsel to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Id. at 19 (quotations omitted). Put another way, confrontation problems arise in the second category of cases when cross-examination restrictions "effectively emasculate the right of cross-examination itself." Id. (quoting Smith v. Illinois, 390 U.S. 129, 131 (1968)).

In Smith v. Illinois, 390 U.S. 129 (1968), the Supreme Court held that the right of confrontation necessarily includes the right to "ask the witness who he is and where he lives" because this is "the very starting point in exposing falsehood and bringing out the truth through cross-examination" when "the credibility of a witness is in issue." Id. at 131 (footnotes and quotations omitted). At the same time, the Court reiterated lower courts' "duty to protect [witnesses] from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate [them]." Id. at 133 (quotations omitted). Justice White (joined by Justice Marshall) concurred, observing he "would place in the same category" as questions tending to harass, annoy, or humiliate "those inquiries which tend to endanger the personal safety of the witness." Id. at 133-34 (White, J., concurring).

Following Justice White's lead, federal courts, including this circuit, "have interpreted the Supreme Court's language concerning harassment, annoyance or humiliation to include exposure of the witness to danger." United States v. Smaldone, 484 F.2d 311, 318 (10th Cir. 1973) …. In Smaldone, for example, we affirmed the district court's refusal to allow cross-examination about a government informant's "present address" because "there existed at least some problem of protection." Id. at 318. Since Smaldone, neither the Supreme Court nor the Tenth Circuit has squarely addressed the question presented here—whether or under what circumstances government witnesses may testify anonymously without violating the defendant's right of confrontation.

Although we have not articulated a precise standard for evaluating anonymous testimony, several other circuits have. These courts evaluate Confrontation Clause claims based on anonymous testimony by asking (i) whether the government has demonstrated a threat and if so, (ii) whether anonymous testimony deprived the defendant of an opportunity for effective cross-examination. We briefly summarize these factors before applying them to Ms. Gutierrez's case.

1. Demonstrating a threat

First, the government must demonstrate a threat to the witness's personal safety. See, e.g., United States v. Ramos-Cruz, 667 F.3d 487, 500 (4th Cir. 2012) ("When the government seeks to withhold a witness's true name, address, or place of employment, it bears the burden of demonstrating that 'the threat to the witness is actual and not a result of conjecture.'") ….

This threat need not come from the defendants themselves. See United States v. Celis, 608 F.3d 818, 832 (D.C. Cir. 2010) ("The appropriateness of using pseudonyms to protect witnesses does not depend on whether the threat to the witness comes directly from a defendant or from another source.") …. But "a generalized statement" about danger—such as "anyone who testifies against one of [a gang's] members faces danger from [that gang]"—"would be insufficient to show that a threat against a witness was 'actual and not a result of conjecture.'" Ramos-Cruz, 667 F.3d at 501 (quoting Palermo, 410 F.2d at 472) ….

In Smaldone, we accepted the government's justification for preventing defense counsel from eliciting the present address of the government's witness. Before trial, the government informed the trial court "that the witness had been relocated because there existed 'an apparent danger to [his] physical health and well-being.'" 484 F.2d at 319. It also "notified counsel for the defendant by letter that 'substantial reason to fear for his safety has been shown and he ([the witness]) has requested that his present whereabouts not be divulged.'" Id. Moreover, we observed "[t]he defendant admittedly had involvement in gambling and at the very least the court could have believed that revealing the address of the witness would stir apprehension in the mind of the witness and thereby affect his testimony." Id.

ii. Providing an opportunity for effective cross-examination

Second, if the government demonstrates a threat, courts then consider whether the lack of the witness's identifying information deprived the defendant of an opportunity for effective cross-examination. See Ramos-Cruz, 667 F.3d at 500 ("If the government makes a showing of an actual threat, the district court still has discretion to review relevant information and determine whether disclosure of the witness's identifying information is necessary to allow effective cross-examination." …); United States v. El-Mezain, 664 F.3d 467, 492-93 (5th Cir. 2011) (allowing anonymous testimony because it did not deprive defendant of an opportunity for effective cross-examination) ….

"Effective cross-examination only requires that the trial judge not limit the scope of cross-examination so that it prevents the jury from having sufficient information to make a 'discriminating appraisal' of the relevant issue." Miranda v. Cooper, 967 F.2d 392, 402 (10th Cir. 1992) …). In Smaldone, we affirmed the district court's cross-examination limitation restricting defense counsel from eliciting testimony about the witness's present address in part because there "was no lack of knowledge on the part of the defendant as to the background of the witness" and "[c]ounsel was allowed to cross-examine him in minute detail." 484 F.2d at 318.

"Other circuits consider various factors when determining whether a witness's use of a pseudonym denied a defendant the opportunity to effectively cross-examine the witness." Mohamed, 727 F.3d at 838. "These factors include whether the defendant was informed of the witness's real name before the witness testified … and whether the defendant was able to cross-examine the witness on his or her background and/or credentials ….

The Government may provide an opportunity for effective cross-examination by disclosing a witness's real name to defense counsel while the court still allows the witness to testify under an alias, but this is not the only means to do so. Rather, courts consider disclosure of a witness's real name as part of a balancing inquiry when applying Smith's exhortation to provide defense counsel with "the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test." Smith, 390 U.S. at 132 (quotations omitted); see Mohamed, 727 F.3d at 838 ("Smith does not per se require a new trial merely because the district court sustained an objection to a question seeking to elicit [the witness's] address." (quotations omitted)); … United States v. Rangel, 534 F.2d 147, 148 (9th Cir. 1976) (observing that Smith "does not establish a rigid rule of disclosure, but rather discusses disclosure against a background of factors weighing conversely, such as personal safety of the witness" (quotations omitted)) ….

Even when the government has not disclosed witnesses' true identities to defense counsel, several circuits have concluded defendants were not deprived of an opportunity for effective cross-examination. In Ramos-Cruz, for example, the Fourth Circuit approved of anonymous testimony in part because the government "disclosed the substance of the testimony the two witnesses would provide at trial." 667 F.3d at 501 [emphasizing that "the anonymous testimony "provided generalized information about the operation of MS-13" rather than an eyewitness account of "Ramos-Cruz or his activities."]. Similarly, in El-Mezain, the Fifth Circuit held that the defendants had an opportunity for effective cross-examination because, "although the defense could not verify the witnesses' credentials, the district court correctly observed that the defendants had access to significant information regarding the witnesses' employment, nationalities, and backgrounds in order to conduct meaningful cross-examination." 664 F.3d at 493 ….

Accordingly, if the government provides defense counsel with sufficient background information on the anonymous witness (e.g., criminal history, nationality, etc.), then withholding the witness's name or address does not necessarily deprive the defendant of an opportunity for effective cross-examination, which is the touchstone of a Confrontation Clause inquiry. See … also … Lisa I. Karsai, You Can't Give My Name: Rethinking Witness Anonymity in Light of the United States and British Experience, 79 Tenn. L. Rev. 29, 91 (2011) ("When a witness's identity is not likely to lead to impeachment material beyond that which has already been disclosed to the defendant, the ability to effectively cross-examine the witness is unlikely to be impaired by an anonymity order.")….

Analysis

Ms. Gutierrez argues the district court violated the Confrontation Clause in permitting the anonymous testimony because (a) the Government failed to justify secrecy and (b) the witnesses' anonymity deprived her of an effective opportunity to cross-examine them. The Government disputes these assertions and also argues (c) any error is harmless beyond a reasonable doubt.

a. Adequacy of justification for anonymous testimony

First, we agree the Government failed to make an adequate showing to justify secrecy. The district court abused its discretion in concluding otherwise. As discussed above, circuits affirming the use of anonymous testimony have done so in part because the Government produced specific evidence of a threat. In Celis, for example, the D.C. Circuit approved a protective order preventing disclosure of the witnesses' identities in part because "the government presented evidence that in Colombia the FARC had killed people suspected of helping to arrest [the defendant] and had threatened to kill cooperating witnesses." 608 F.3d at 833.

Similarly, in Ramos-Cruz, the witnesses "specifically explained" to the district court in sealed ex parte proceedings "the heightened level of danger to which El Salvadorians who testify against MS-13 in U.S. courts are subject. They then connected that threat to the specific investigative work they perform in El Salvador." 667 F.3d at 501. On appeal, after "review[ing] [] the sealed affidavits and the sealed transcript of the ex parte hearing," the Fourth Circuit concluded "the information provided to the district court indicated that the threat to these witnesses and their families, should their true identities be provided, was actual and not a result of conjecture." Id….

Here, in contrast, the Government's justification for secrecy relied on cursory "generalized statement[s]" that anyone who cooperates in a case with cartel connections faces danger. Ramos-Cruz, 667 F.3d at 501. In its pre-trial notice, the Government asserted, without more, that "alias[es] are necessary to protect the witnesses from potential retaliation." ROA, Vol. I at 79. At trial, the Government added briefly (and belatedly) to its justification, observing that its witnesses were involved in "an ongoing investigation that . . . reaches some dangerous elements down in Mexico," and expressed concern that "if the identity of these witnesses is disclosed in open court or where there's a record of it . . . that may ultimately make it back to the cartel." ROA, Vol. IV at 128 (mentioning "cartel connections"). The Government failed to support these generalized assertions with sealed affidavits or any other specific evidence of a threat. This fails to pass muster under the Confrontation Clause.

Although the Government may well have been able to present at least some evidence establishing a threat to these witnesses, its efforts were minimal. It failed on the record before us to demonstrate one. See Palermo, 410 F.2d at 473 (reversing because "[w]hile there was an adequate showing of a threat to the life of [one witness], there was no showing as to [the other witness]" and "[i]n neither case was the relevant information disclosed to the trial judge in order that he could make an informed decision")….

We therefore conclude the district court abused its discretion in determining the Government adequately justified secrecy.…

b. Opportunity for effective cross-examination

Second, despite the Government's inadequate justification for secrecy, Ms. Gutierrez was not deprived of an opportunity for effective cross-examination of the Government's confidential informants.

Although the Government withheld these witnesses' true identities from the defense, Ms. Gutierrez was still able to face them before the jury. Moreover, the Government provided defense counsel with significant impeachment material on each witness, including their prior arrests, compensation schedule for cooperating with the DEA, and immigration status. Armed with this material, defense counsel questioned John Smith about: his prior charge for transporting aliens, which the Government dismissed in exchange for his cooperation; his compensation for assisting the Government, which amounted to roughly $8,000; his family ties to Chihuahua, Mexico; and his retaining his green card in exchange for cooperating…. Defense counsel also questioned James Jones regarding: his being paroled into the United States while assisting the government; his compensation for cooperating with the Government, which amounted to roughly $2,000; and his family ties to Chihuahua, Mexico.

Although Mr. Cabral's counsel elicited testimony from John Smith about an undisclosed arrest, the Government's inadvertent failure to disclose this fact did not deprive Ms. Gutierrez of an opportunity for effective cross-examination. The Government's other disclosures provided defense counsel "the opportunity to place the witness[es] in [their] proper setting and put the weight of [their] testimony and [their] credibility to a test." Smith, 390 U.S. at 132. Defense counsel's cross-examination regarding the other disclosures provided by the Government gave the jury "sufficient information to make a 'discriminating appraisal' of the relevant issue," Cooper, 967 F.2d at 402 (quotations omitted)—here, the witnesses' credibility. See United States v. Alaniz, 726 F.3d 586, 611 (5th Cir. 2013) (affirming restrictions on anonymous testimony because "cross-examination provided the jury with ample insight into CS1 and CS2's respective associations and criminal pasts, and possibly self-interested motivations for cooperating with the government.") ….

In light of the foregoing, the Government's refusal to disclose the witnesses' true identities did not deprive Ms. Gutierrez of an opportunity for effective cross-examination. See Van Arsdall, 475 U.S. at 679 ("[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.") [In a footnote, the court noted: "in the appropriate case, disclosing a witness's true identity to defense counsel through a protective order that still allows the witness to testify under an alias may help ensure an adequate opportunity for effective cross-examination without jeopardizing witness safety.]

c. Harmless error

Despite the Government's failure to demonstrate a threat to its witnesses' safety, we conclude this error was harmless. The Government's disclosures provided an opportunity for effective cross-examination, and the remaining evidence against Ms. Gutierrez established substantial corroboration….

"Violations of the Confrontation Clause are subject to harmless error analysis, under which the beneficiary of a constitutional error must prove beyond a reasonable doubt that the error complained of did not contribute to the guilty verdict." United States v. Chavez, 481 F.3d 1274, 1277 (10th Cir. 2007) ….

In conducting this inquiry, we "consider various factors, including 'the importance of the witness's testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.'" United States v. Woodard, 699 F.3d 1188, 1198 (10th Cir. 2012) ….

Here, after carefully reviewing the record, we conclude these factors demonstrate the error in failing to require a greater showing of threat was harmless beyond a reasonable doubt. First, although Mr. Smith and Mr. Jones provided a fact-based narrative of their conversations with the defendants and their trip from El Paso to Albuquerque, their testimony ultimately was not essential to the Government's case. The other evidence presented by the Government—which included video and audio surveillance as well as agent testimony—was enough to secure a conviction beyond a reasonable doubt. See United States v. Brown, 482 F.2d 1226, 1229 (8th Cir. 1973) (affirming cross-examination limitations in part because "even if the credibility of the witness was [further] impugned, the Government's case in chief did not rest upon the credibility of this witness alone"); cf. Olden v. Kentucky, 488 U.S. 227, 233 (1988) (per curiam) (holding that confrontation clause violation was not harmless beyond a reasonable doubt in part because it concerned the limitation of cross-examination of the prosecution's key witness).

Second, much of Mr. Smith and Mr. Jones's testimony was cumulative of the Government's own surveillance observations….

Third, on every material point of Mr. Smith and Mr. Jones's testimony, the Government presented considerable corroborating evidence. Agent John Wardle testified about the FBI and Border Patrol's round-the-clock surveillance of Mr. Smith and Mr. Jones during their transfer of Mr. Valenzuela-Carrillo from El Paso to Albuquerque by way of Las Cruces…. The Government introduced recorded telephone conversations between Ms. Gutierrez and Mr. Smith and between Mr. Cabral and Mr. Smith in which they discussed logistics and the terms of the deal…. The Government introduced a receipt for $1,500 from the Walmart MoneyCenter bearing Ms. Gutierrez's name and played video showing Ms. Gutierrez at the Walmart MoneyCenter shortly before she joined the rest of the group outside Little Anita's, the Albuquerque restaurant where Mr. Smith handed off Mr. Valenzuela-Carrillo to Mr. Cabral in exchange for $1,100 from Ms. Gutierrez…. The Government played a video recording of the Little Anita's meeting between Ms. Gutierrez, Mr. Smith, and Mr. Cabral, and Agent Brian Regan testified that he received $1,100 cash from Mr. Smith after this transaction…. Moreover, nothing in the record contradicts the material testimony of Mr. Smith and Mr. Jones.

Fourth, as discussed above, the district court permitted substantial cross-examination of Mr. Smith and Mr. Jones based on the Government's disclosures, including their criminal history, compensation, and incentive to cooperate with the Government. This questioning allowed Ms. Gutierrez an opportunity to undermine their credibility despite her inability to ask about their true identities. See Mullins, 613 F.3d at 1283 (affirming cross-examination limitation in part because the defendant "was allowed extensive cross-examination into [the witness's] cooperation agreement with the government") ….

Fifth, and most important, the overall strength of the Government's case rendered any error harmless…. In addition to the substantial surveillance evidence discussed above, the Government introduced Ms. Gutierrez's post-arrest confession. When Agent Wardle asked Ms. Gutierrez "about the events that gave rise to the charge in the Indictment," she "admitted that she had arranged for the alien that day at the Little Anita's to be transported to Denver." …

In light of the corroborating evidence provided by the Government, the extent of cross-examination permitted, and the overall strength of the Government's case, which included Ms. Gutierrez's admission of guilt, we conclude the Government met its burden to prove the error harmless beyond a reasonable doubt…. [A]lthough the Government's showing of threat was inadequate, the Government's disclosures gave Ms. Gutierrez an opportunity for effective cross-examination, and any error was harmless beyond a reasonable doubt.…

United States v. Luisi

482 F.3d 43 (1st Cir. 2007) 

LYNCH, Circuit Judge.

Defendant Robert C. Luisi, Jr., an admitted member of the "La Cosa Nostra" (LCN) crime family, appeals his convictions on three cocaine-related charges. These convictions stemmed from an FBI investigation that employed a paid cooperating witness and LCN member, Ronald Previte.

At trial, Luisi testified and admitted his involvement in the cocaine transactions. His defense was entrapment, on intertwined theories. He claimed that Previte, acting for the government along with undercover FBI agent Michael McGowan, had improperly tried to induce him to commit drug crimes. He further claimed that when he resisted, Previte persuaded Philadelphia LCN boss Joseph Merlino to order Luisi to engage in the charged drug transactions. Merlino was Luisi's superior in the LCN, and the government was aware of the serious consequences Luisi would face if he refused to follow Merlino's order.

The district court instructed the jury on the entrapment defense. However, the court's supplemental instructions—given in response to a jury question—foreclosed the jury from considering Merlino's role in the asserted government entrapment of Luisi. We conclude that those instructions were erroneous, and we vacate the convictions and remand the case.

I.

In July 1999, a grand jury in the District of Massachusetts indicted Luisi and three co-defendants on three charges: one count of conspiracy to possess cocaine with intent to distribute, see 21 U.S.C. §§ 841(a)(1), 846, and two counts of possession of cocaine with intent to distribute, see id. § 841(a). The conspiracy was alleged to have run from February 1999 through June 28, 1999. The two possession counts stemmed from transactions on April 30, 1999, and June 3, 1999. Pursuant to plea agreements with the government, two of Luisi's co-defendants pled guilty to the possession counts.…

In the late 1990s, the FBI conducted a major investigation into the operations of the Philadelphia LCN. Previte, a captain or "capo regime" in the LCN, assisted the FBI investigation by working as a cooperating witness under a personal services contract with the FBI. He was paid a substantial sum of money in return.

The FBI came to learn that Luisi was working for the Philadelphia LCN as a captain, and that he was supervising the criminal activity that the organization undertook in Boston. Eager to get evidence against Luisi, the FBI had Previte introduce Luisi to McGowan, who posed as a source of illegal money-making opportunities.

The introduction took place over January 11th and 12th, 1999. McGowan operated under the pseudonym "Michael O'Sullivan" and purported to be in the import/export business. He told Luisi he had previously worked with Capo Previte in Philadelphia, and said he had now relocated to Boston. McGowan explained to Luisi that as part of his business he was sometimes presented with "opportunities" and that sometimes he needed help taking advantage of these "deals." Luisi agreed that he would look at future deals with McGowan. Unbeknownst to Luisi, this conversation was being recorded by the FBI—as were the vast majority of the future conversations Luisi would have with McGowan.

The first "opportunity" occurred on February 10, 1999, when McGowan presented Luisi with several "stolen" furs. Luisi was not sure if he would be able to sell them, but he stated he would look into it. He also inquired whether McGowan had other items; when McGowan mentioned the possibility of obtaining jewelry, Luisi expressed more interest in that, and particularly in diamonds. There was no mention of any drugs at this point.

Several days later, Luisi and Previte spoke to each other at a party in Philadelphia. Merlino was also present at the party. Luisi testified that Previte proposed a "swap" of cocaine for diamonds, and that Luisi's response was that he would "try" to get the deal done. He testified that he gave this response because "at the party [Merlino] ... made it very clear to me that he wanted these drugs," although Luisi later clarified that he did not at that time understand Merlino to be giving an "order" to do the deal, but merely "permission." That would change. In any event, Luisi testified that at or shortly after the party he chose not to do the deal.

On March 8, 1999, McGowan again met with Luisi, along with two of Luisi's associates. McGowan referred to Previte's proposed swap and stated that he (McGowan) knew a guy with diamonds, and that the guy was looking to exchange them for "three bricks." Luisi's immediate response was: "I want to get them, I want to bring them to [a jeweler friend of mine], if he likes it, boom. We'll do the deal and I'll do it that way, whatever [Previte] wants." McGowan interpreted this to mean that Luisi wanted to see the diamonds, and that he would be willing to exchange cocaine for them.

Several minutes later, however, Luisi took McGowan aside privately. This part of the conversation was not recorded. According to McGowan, Luisi told him that because Previte had referred McGowan to him, Luisi would make "every effort" to get the cocaine, but it would be difficult and it would take time. Luisi testified that he did not actually agree to do a drugs-for-diamonds swap.

Also during the March 8th conversation, McGowan asked Luisi what items, other than the diamonds, he would be interested in. Luisi responded that he would be interested in jewelry, watches, and cigarettes, and some of his associates mentioned film and razor blades.

McGowan's next meeting with Luisi and his associates came on March 11, 1999. McGowan had some "stolen" Polaroid film, and the participants discussed how it was to be sold. Luisi reported on his only partially successful attempts to sell fur coats, and the participants also discussed diamonds and jewelry. Later during the meeting, McGowan mentioned that Previte was coming up to Boston in a few days, and Luisi agreed to meet with both Previte and McGowan then. Luisi and his associates left with the film.

Previte came to Boston, and on March 16, 1999, he met with McGowan, Luisi, and some of Luisi's associates. The participants had a cryptic conversation during which, according to McGowan, Luisi confirmed that he would get the cocaine-for-diamonds deal done. The following day, McGowan talked to Luisi over the phone, and again inquired into the status of the cocaine deal with Previte. Luisi replied that he would work on it, but indicated that the deal would not happen immediately.

During this time, Luisi had also been trying to sell the film that McGowan had given him on March 11th. He was unable to do so at a price that McGowan was willing to accept, and so on March 19th Luisi returned the film. After Luisi again expressed his preference for jewelry, and after McGowan again reaffirmed his ability to get jewelry, the conversation turned back to the proposed diamonds-for-cocaine deal. Luisi made comments that, if taken at face value, expressed a reluctance to go ahead with the deal and indicated that Luisi had "nothing to do with" the cocaine business. Luisi also explained to McGowan that "in the last ... three years I lost over a dozen and a half guys to that... . And I have to make a stern, a firm stand here.... I don't wanna have nothing to do with it." …

Luisi and McGowan had no contact with each other for the next three weeks. On April 19, 1999, McGowan initiated a phone conversation with Luisi. McGowan turned the discussion to dealings with Previte, and Luisi responded that "[e]verything's gonna be okay soon." McGowan understood this to be a reference to the cocaine transaction.

McGowan initiated another phone conversation with Luisi on April 23, 1999. McGowan told him that Previte would be coming to Boston on April 28th, and he asked Luisi to be available then.… On April 27, 1999, one day before Previte's planned trip to Boston, Previte had a conversation with Merlino, his superior in the LCN. Previte was wearing a wire, and the conversation was recorded. As revealed by the tape, Previte complained to Merlino that Luisi had not yet done the cocaine transaction, despite Luisi's representations. Previte explained to Merlino that he had "big money sittin[g] on the line," and that Merlino would also make money from the transaction. He directly asked Merlino if there was "any way you could just tell [Luisi] to do what he gotta do." Merlino agreed to do so. Previte and Merlino then agreed that when Previte went to Boston the next day, Previte would put Luisi on the phone with Merlino, at which point Merlino would tell Luisi to do the cocaine deal. As Merlino put it on the tape: "I'll say [to Luisi:] whatever [Previte] says to do[,] just do it."

Previte was still cooperating with the FBI at the time he had the conversation with Merlino, and a jury could conclude that the FBI had in fact directed Previte's request of Merlino. Previte did not testify, nor did any of the Philadelphia FBI agents who had worked with him. But McGowan was asked if the FBI had arranged the meeting between Previte and Merlino, and his response was that while he did not know, he "assume[d] so because Previte was cooperating."

Previte flew to Boston on the morning of April 28th, the day after his conversation with Merlino. He went to McGowan's office, and McGowan arranged for Previte to make a three-way call with LCN boss Merlino and Capo Luisi, Merlino's underling. The call was recorded in its entirety. It began with Previte calling Luisi. Once Luisi was on the line, Previte brought Merlino into the conversation. After an exchange of preliminaries, Merlino (somewhat cryptically) got down to business. Luisi testified that he understood Merlino to be ordering him to get the cocaine deal done, and that he agreed to do the deal as a result of this.

 McGowan, who had been listening in to the conversation, testified to having a similar understanding. As he put it, "[a]fter this phone conversation, I expected to receive cocaine." His hopes were soon realized.

Within an hour after Merlino spoke to Luisi, Luisi met with Previte and McGowan to confirm details of the drug transaction. Initially, Previte and Luisi had a private conversation to work out certain points, and Previte explained that McGowan wanted to do multiple cocaine deals. Luisi agreed, and the private conversation ended shortly thereafter. With Luisi looking on, Previte then informed McGowan that the mysterious Danny White would not be playing a role in the deal, and that his place would be taken by Shawn Vetere, one of Luisi's associates. Vetere promptly put McGowan in touch with Bobby Carrozza. McGowan worked out more details with Carrozza. On April 30, 1999—two days after the call with Merlino—Carrozza sold two kilograms of cocaine to McGowan. Carrozza told McGowan that the cocaine came "right from [Luisi and Vetere]. I wouldn't be able to do it any other way."

Two weeks later, McGowan gave Luisi a $ 1,000 "tribute" payment for arranging the transaction. McGowan and Luisi also engaged in preliminary discussions about a future cocaine deal, and Luisi told McGowan to work the rest out with Carrozza. McGowan did so.

The next cocaine delivery was not immediately forthcoming, however. On May 24, 1999, McGowan complained to Luisi, who told him to be patient. On June 1, 1999, Luisi proposed certain changes to the impending cocaine transaction; McGowan agreed to the revised cocaine deal the next day, and he paid Luisi the $ 24,000 cash price. On June 3, 1999, Carrozza and Tommy Wilson (another of Luisi's associates) came to McGowan's office to deliver one kilogram of cocaine. McGowan later gave Luisi a $ 500 "tribute" payment for arranging the deal.

Luisi was the sole witness to testify for the defense. He testified to several additional pertinent points. He admitted that he had been a captain in the LCN since the fall of 1998, and he agreed that the LCN was properly described as "the Mafia" and as "the mob." As a captain, one of his jobs had been to make "tribute" payments to Merlino, and these payments had come out of Luisi's earnings from the criminal enterprises conducted by his "crew" in Boston. Luisi explained that the LCN was extremely hierarchical, and he stated that when the head of the LCN ordered him to do the cocaine transaction, he felt that he had no alternative other than to fulfill the order. He was also asked why he had engaged in the second cocaine transaction; while he did not specifically reference Merlino's order, he responded that he had not wanted to do the drug deal, and he did so because he "had to bring money to Philadelphia" and so he "was desperate."…

Luisi also offered an explanation for why he had seemed receptive to the cocaine deal, even before receiving the order from Merlino on April 28th. He claimed he had been trying to "pal off" McGowan and Previte; that is, he politely pretended to be cooperating with them on the drug deal, while in fact he had no intention of ever delivering drugs to them.

Before the jury was instructed, Luisi's attorney asked the district court to dismiss the case on the ground that the government had engaged in allegedly outrageous conduct, thereby violating Luisi's due process rights. The court never ruled on that motion; such a motion is an issue for the judge and not the jury. See United States v. Bradley, 820 F.2d 3, 7 n.5 (1st Cir. 1987). However, over the government's objection, the district court did agree that Luisi was entitled to an entrapment instruction.

The district court's entrapment instructions correctly informed the jury that the government had the burden to prove, beyond a reasonable doubt, that Luisi had not been entrapped. See United States v. Walter, 434 F.3d 30, 37 (1st Cir. 2006). The district court further explained that the government had to prove, beyond a reasonable doubt, that at least one of two things was true: either (1) "no government agent or person acting on behalf [of] or ... under [the] auspices of the government persuaded or induced the defendant to commit" the charged crimes; or (2) "the defendant was ready and willing to commit the [charged] crime[s] without persuasion from the government." This was also a correct statement of the law. See United States v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998) (explaining that the two prongs of an entrapment defense are improper government inducement and lack of predisposition).

Luisi specifically asked for an instruction indicating that if the jury found that Previte had induced Merlino, that meant that Merlino's order could be considered government action. The district court refused, stating that the instruction was improper because there was a factual dispute over whether the government's responsibility ended due to the presence of an intermediary.

Shortly after commencing deliberations, the jury sent the court a question that revealed it was considering Merlino's role and how it related to the entrapment defense. The jury asked: "Is Merlino's request of Luisi, if determined to be excessive pressure, considered to be government persuasion or inducement because the contact between Merlino and Luisi resulted from the government agent Previte and Merlino?"

The court and the parties researched the issue overnight, and returned in the morning to discuss the proper response. Luisi contended that because Previte had spoken to Merlino about the cocaine transaction, and because Merlino's order had been facilitated by Previte and McGowan (the latter of whom had actually placed the three-way call to Merlino), the actions of Merlino, Previte, and McGowan together could be attributed to the government…. The government described Luisi's asserted defense as "derivative entrapment," and it claimed that [United States v. Washington, 106 F.3d 983 (D.C. Cir. 1997)] was the only case it could find recognizing the defense. As the government read Washington, Luisi's claim was foreclosed on the facts presented.

The court took a different route, and it ultimately concluded that a case from this circuit, United States v. Bradley, was controlling. In Bradley a prison inmate named Constanza, who could have been deemed to have been acting as a government agent, directly threatened an intermediary named Brenner to do a drug deal on pain of physical harm. 820 F.2d at 5-6. The intermediary was unable to do the deal on his own, and he in turn pressured his friend—the defendant Bradley—to assist him. See id. at 7-8. We found the evidence sufficient to support an entrapment instruction for the intermediary Brenner, as the government agent had directly threatened him. Id. But we held that Brenner's friend, defendant Bradley, was not entitled to an entrapment instruction: while Brenner could claim duress, Bradley had "only an appeal to sympathy, which he was free to reject." Id. at 7. We stated that we "would not extend the [entrapment] defense to a remote defendant without, at least, a showing that pressure had been put upon him by the intermediary at the instruction of the government agent." Id. at 8.

Thus in Bradley this court rejected defendant Bradley's argument that the government's improper inducement of Brenner could be an indirect entrapment of Bradley, as the agent (Constanza) had neither ordered nor expected Brenner to entrap other persons. See id. at 7. We said that a "quite different case would be presented if Constanza had targeted a putative seller and had instructed Brenner to put the arm on him." Id. We then added a footnote to "suggest that such a case, though argued to be a third-party case, is not really a third-party case at all. The intermediary in such instance is really acting under instructions, as a government subagent—a quite different situation." Id. at 7 n.6.

The district court focused upon Bradley's use of the word "instructions," and it read that case as concerned with whether the government agent (Previte) had "instructed" the intermediary (Merlino) to pressure Luisi. The court concluded that because Previte ranked below Merlino in the LCN hierarchy, Previte was in no position to "instruct" Merlino to do anything.

Although Luisi argued for a broader reading of the word "instruct," the district court rejected such a reading of Bradley. In the alternative, Luisi asked that the jury be allowed to determine whether Merlino had been "instructed," but the court rejected that option as well.

The district court then called the jury back into the courtroom and answered the jury's question as follows:

[I]n your consideration of the entrapment question, you should focus your attention on the relationship—the direct relationship between Mr. Previte ... and Mr. McGowan on the one hand, and Mr. Luisi on the other hand. You should consider evidence as [it] relates to the direct contact between and among those people.

Because the district court omitted Merlino from this statement, while simultaneously mentioning other individuals, the jury likely concluded that it could not consider Merlino's role in any inducement of Luisi. This was particularly so since the jury's question specifically asked about Merlino, and the court told the jury to focus on individuals other than Merlino. As a result, and as the government has not disputed, the jury was precluded from finding that Merlino's order to Luisi could be deemed improper governmental inducement.

Later that day, the jury convicted Luisi on all three counts of the indictment.

II.

Luisi's primary contention on appeal is that the district court's jury instructions, as supplemented by its answer to the jury's question, were incorrect as a matter of law. We review that issue de novo here…. We agree with Luisi that the district court's instructions were erroneous.…

In federal criminal cases, the entrapment defense is neither a doctrine of constitutional dimension, nor a defense specifically granted by statute. See United States v. Russell, 411 U.S. 423 (1973). Rather, the defense has its origins in an inference about congressional intent. Sherman v. United States, 356 U.S. 369, 372 (1958) …. The Supreme Court has explained that the "function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime... . Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations." Sherman, 356 U.S. at 372. A successful entrapment defense requires that there be a reasonable doubt on both prongs of a two-pronged test.

The first prong necessitates a showing of improper government inducement. See Gamache, 156 F.3d at 9. This aspect of the defense plainly seeks to deter improper government conduct. United States v. Gendron, 18 F.3d 955 961 (1^st Cir. 1994). Indeed, a defendant cannot claim entrapment when government conduct played no causal role in the defendant's inducement. See Sherman, 356 U.S. at 372. Nevertheless, the entrapment defense only deters government misbehavior in cases where the defendant would otherwise be law-abiding. Gendron, 18 F.3d at 962. That is because the second prong requires that the defendant have a lack of predisposition to commit the charged offense. See id.; see also Sorrells v. United States, 287 U.S. 435, 448 (1932).

These two prongs, and the policy concerns behind them, play important roles in delimiting the scope of the entrapment defense. But they are not the only considerations that matter. This court and the Supreme Court have taken account of the practical problems facing law enforcement, particularly in the prosecution of "victimless" crimes where "significant governmental involvement in illegal activities" is often required. Bradley, 820 F.2d at 6-8. We must be mindful that "the defense of entrapment ... [does] not ... give the federal judiciary a 'chancellor's foot' veto over law enforcement practices of which it [does] not approve." Russell, 411 U.S. at 435.

… It is beyond dispute that an individual like Previte, hired by the government as an informant, is a "government agent" for entrapment purposes. See Sherman, 356 U.S. at 373-75. Nor can there be any dispute that Merlino's order to Luisi, with its implied threat of physical harm or other serious retribution, could be found by a jury to be improper inducement if attributed to the government. See Gendron, 18 F.3d at 961; Bradley, 820 F.2d at 7.

It is also clear that Luisi's case does not fit the pattern of what has come to be known as "vicarious entrapment." In "vicarious entrapment" an unknowing middleman merely tells the defendant about an inducement that the government had used to target the middleman. See United States v. Valencia, 645 F.2d 1158, 1168-69 (2d Cir. 1980) (recognizing the vicarious entrapment defense). Here, the target was not the middleman Merlino, but the defendant Luisi. Further, a jury could find that Merlino had himself threatened Luisi. This was not a case where Merlino repeated to Luisi a threat that Previte had made against Merlino. Indeed, Previte did not threaten Merlino at all.

Instead, this case is much closer to what has been called "derivative entrapment," a situation in which a government agent "uses the unsuspecting middleman as a means of passing on an inducement" to the defendant. 2 W. LaFave, Substantive Criminal Law, § 9.8(a), at 93 (2d ed. 2003). Yet even within this category, further refinement is required.

We have before us a situation in which a jury could find that Previte specifically targeted Luisi, and then "induced" Merlino to give an order to Luisi when Merlino might not have otherwise done so. But Previte's inducement of Merlino does not appear to have itself been improper. Previte simply helped set up a drug transaction, explained to Merlino that Merlino would profit from the transaction's execution, and then encouraged Merlino to order Luisi's assistance. Cf. Gendron, 18 F.3d at 961-62 (explaining that improper inducement "goes beyond providing an ordinary 'opportunity to commit a crime,'" and providing examples (quoting Jacobson v. United States, 503 U.S. 540, 550 (1992))). A jury would presumably find that Previte merely provided an "ordinary" inducement to Merlino; it was Merlino's inducement of Luisi that a jury could find improper.

This is an unusual entrapment situation. Under the original, correct instructions given, it is evident that the jury was considering the possibility that Merlino had put excessive pressure on Luisi, and that the jurors were unsure whether Merlino's order could be considered "government persuasion or inducement because the contact between Merlino and Luisi resulted from the government agent Previte." The effect of the court's response was the same as if it had instructed the jury, as a matter of law, that Merlino's order could not be considered government inducement or persuasion. We must decide whether the issue was correctly removed from the jury's consideration….

The Bradley court ultimately held that it "would not extend the [entrapment] defense to a remote defendant without, at least, a showing that pressure had been put upon him by the intermediary at the instruction of the government agent." Id. at 8. The government reads "instruct" to mean "command," such that Previte is not responsible for Merlino's threats against Luisi unless Previte had commanded Merlino to order Luisi into the cocaine deal. Luisi reads "instruct" to mean "convince" or "inform." But the dispute about the use of particular language in Bradley is largely beside the point. Bradley was a case in which the government agent neither "commanded," "convinced," nor "informed" the middleman (Brenner) to target Bradley. Indeed, it was the lack of any government targeting of Bradley whatsoever on which Bradley relied. Here, unlike in Bradley, the government's actions were specifically designed to pressure Luisi, and the government in fact expected that Luisi would be pressured….

… [T]he law in this circuit permits an entrapment instruction involving a middleman when there is evidence that (1) a government agent specifically targeted the defendant in order to induce him to commit illegal conduct; (2) the agent acted through the middleman after other government attempts at inducing the defendant had failed; (3) the government agent requested, encouraged, or instructed the middleman to employ a specified inducement, which could be found improper, against the targeted defendant; (4) the agent's actions led the middleman to do what the government sought, even if the government did not use improper means to influence the middleman; and (5) as a result of the middleman's inducement, the targeted defendant in fact engaged in the illegal conduct. [In a footnote, the court observed that Third, Ninth, and Tenth Circuits “categorically deny the entrapment defense in all third-party situations where the middleman is unaware that he is helping the government.”]

… In light of our understanding of the law, we think a properly instructed jury could conclude that the government was responsible for Merlino's order to Luisi. Indeed, such a jury could decide that: (1) Previte specifically requested that Merlino order Luisi to engage in the cocaine deal; (2) Previte's request came after earlier government efforts to ensnare Luisi, without a middleman, had not been fruitful; (3) Previte, as an LCN captain, understood that the order he requested from Merlino would contain an implied threat of death, physical harm, or serious retribution if Luisi failed to comply; (4) Merlino's order to Luisi was exactly what Previte had requested; and (5) Merlino would not have given the order if Previte had not encouraged him to do so. [Indeed, the jury's question was premised on the idea that the government had caused Merlino to give the order. While the government observes that there was no evidence introduced at trial as to Merlino's lack of predisposition, none was needed. The premise of the jury's question was perfectly consistent with a finding that Merlino was predisposed to be involved in a cocaine transaction.] As a result, we think that the district court incorrectly answered the jury's question.

 … We do not suggest that a jury would necessarily have concluded that Luisi was entrapped through Merlino. We hold only that the defendant was entitled to have a properly instructed jury consider the issue.

C. Predisposition

As a fallback argument, the government contends that Luisi failed to present sufficient evidence of his lack of predisposition, and thus was not entitled to any entrapment instruction at all. We readily dispose of this argument.

A judge may only instruct the jury on entrapment if the defendant meets his entry-level burden of production. United States v. Gifford, 17 F.3d 462, 467 (1st Cir. 1994). That is, a defendant is entitled to an entrapment instruction only if there is "some evidence," on both elements of the entrapment defense, sufficient to raise a reasonable doubt that the defendant was merely an unwary innocent. See United States v. Joost, 92 F.3d 7, 12 (1st Cir. 1996). The defendant must show "more than a scintilla of evidence, more than mere creation of an opportunity for criminal activity." Id. Nonetheless, even a defendant's self-serving testimony can suffice, especially when it has some circumstantial corroboration.

Luisi made the requisite entry-level showing. We have already explained why a jury could find improper governmental inducement. Additionally, Luisi introduced "some evidence" of his lack of predisposition.… Luisi had deliberately stalled the drug transaction for several months to "pal off" McGowan, thereby indefinitely delaying a drug deal to which Luisi was opposed. Indeed, a jury could find that this two-month delay stood in stark contrast to the two-day lag between when Merlino gave Luisi the order, and when McGowan received drugs from Luisi's colleagues…. Accordingly, we find that Luisi introduced sufficient evidence of his lack of predisposition to entitle him to an entrapment instruction.

A related doctrine on "outrageous government conduct" as it relates to sting operations that increase the number or severity of defendant's offenses, which in turn increase defendant's punishment. See, e.g., United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007):

While our Circuit does not recognize sentencing entrapment as a viable defense, we do recognize the outrageous government conduct defense, and we have considered sentencing manipulation as a viable defense. United States v. Sanchez, 138 F.3d 1410, 1413-14 (11th Cir. 1998). When a defendant makes a sentencing entrapment claim, he argues that, although predisposed to commit a minor or lesser offense, he has been entrapped into committing a greater offense subject to greater punishment. Id. at 1414. Sentencing entrapment focuses on the defendant's conduct; in contrast, the defenses of outrageous government conduct and sentencing factor manipulation focus on the government's behavior. Id. at 1413-14. Outrageous government conduct occurs when law enforcement obtains a conviction for conduct beyond the defendant's predisposition by employing methods that fail to comport with due process guarantees. Id. at 1413. Under this standard, the conduct must be so outrageous that it is fundamentally unfair. United States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir. 1987). Similarly, sentencing factor manipulation occurs when the government's manipulation of a sting operation, even if insufficient to support a due process claim, requires that the manipulation be filtered out of the sentencing calculus. Sanchez, 138 F.3d at 1414. Outrageous government conduct would necessitate the reversal of a defendant's conviction, while sentencing factor manipulation would simply reduce the sentence applied to his conduct. Ciszkowski's argument is best characterized as a sentencing factor manipulation claim.

See also Marc  D. Esterow, Note, Lead Us Not into Temptation: Stash House Stings and the Outrageous Government Conduct Defense, 8 Drexel L. Rev. Online 1, 28-33 (2016) (describing "outrageous government conduct" defense in the context of "reverse-sting" operations particularly by the Bureau of Alcohol, Tobacco, Firearms, and Explosives).

United States v. Sellers

906 F.3d 848 (9th Cir. 2018)

NGUYEN, Circuit Judge:

Daryle Lamont Sellers was convicted of conspiracy to distribute cocaine and conspiracy to interfere with commerce by robbery after he was caught in a law enforcement reverse sting operation to rob a fictitious stash house. Sellers argues that he was targeted based on his race and presents evidence that an overwhelming majority of the defendants targeted by law enforcement in similar investigations are African-Americans or Hispanics. To succeed on his selective enforcement claim, Sellers must show that the enforcement  had a discriminatory effect and was motivated by a discriminatory purpose. He is unlikely to meet this demanding standard without information that only the government has. Sellers can obtain this information through discovery if he makes a threshold showing. We must decide what that showing is. We hold that in these stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under United States v. Armstrong, 517 U.S. 456 (1996).

In 2012, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and Agent John Carr set up what is known as a stash house reverse-sting operation near downtown Los Angeles. These operations tend to follow a common format: An undercover agent poses as a disgruntled drug courier who is looking for help robbing the house where his employer is stashing (and guarding) a large quantity of drugs. The agent describes the stash house to individuals who have been targeted for the operation. Usually, the targets of stash house reverse-sting operations are identified using confidential informants. Informants are supposed to identify targets that have committed stash house robberies before or are capable  of doing so.

The agent conducts a series of meetings with the targets and presents them with the opportunity to rob the stash house, and they devise a plan to do so. There is no stash house to rob, and there are no drugs—this is a 'reverse sting,' after all. But at the last meet-up, just before they are set to leave and carry out the plan, the targets are arrested for conspiracy to commit the robbery and associated crimes.

The details of the specific stash house reverse-sting operation here, for the most part, are irrelevant to Sellers's selective enforcement claim, and so we state them only in brief. In March 2012, a confidential informant staying at a hotel in a predominantly black and Hispanic area of Los Angeles targeted one of Sellers's co-defendants for a stash house reverse-sting operation, ostensibly because the informant believed that the co-defendant was involved in selling drugs. The co-defendant, who is black, was put in touch with Agent Carr, and the stash house reverse-sting was underway. On July 9, 2012, Sellers attended a planning meeting for the robbery with the co-defendant, Agent Carr, and others. Eventually, the stash house robbery was set for July 16, and, after one  final meeting confirming the plan, the robbery crew (all of whom are black) was arrested.

Sellers and his co-defendants were indicted for conspiracy to possess and distribute cocaine, conspiracy to commit robbery, and possession of a firearm in furtherance of these crimes. Sellers moved to dismiss the indictment for outrageous government misconduct [addressed in a separate memorandum decision] and sought discovery on a claim of selective enforcement. Sellers presented data collected by an attorney in the Central District of California showing that of 51 defendants indicted in stash house reverse-sting operations between 2007 and 2013, at least 39 were black or Hispanic. [No white defendants were identified; the race of 12 was unknown.] Similarly, Agent Carr testified that more than 55 of the approximately 60 individuals who have been indicted in his stash house reverse-sting operations are people of color. Relying on the standard set forth in Armstrong for obtaining discovery on selective prosecution claims, the district court denied the motion.

Sellers was convicted by a jury and sentenced to 96 months' imprisonment. He timely appeals….

We are not working from an entirely blank slate. Selective prosecution and selective enforcement claims are undoubtedly related, and the Supreme Court addressed the threshold discovery showing required for selective prosecution claims over two decades ago in Armstrong. 517 U.S. at 458. The question we face is whether Armstrong's standard is equally applicable to claims for selective enforcement, particularly in the stash house reverse-sting context. We first address Armstrong's discovery standard for selective prosecution cases and then explain why we join the Third and Seventh Circuits in declining to adopt it wholesale here.

A. Armstrong

To establish a claim of selective prosecution, a defendant must show both discriminatory effect and discriminatory purpose. Armstrong, 517 U.S. at 465. In Armstrong, the Supreme Court "consider[ed] the showing necessary for a defendant to be entitled to discovery on a claim" of selective prosecution. Id. at 458. The Court adopted a  "rigorous standard," id. at 468, whereby a defendant must show that "the Government has failed to prosecute others who are similarly situated to the defendant" as evidence of discriminatory effect. Id. at 469.

The Court explained its rationale for such a high standard. Id. at 464-68. It observed that "[i]n order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present clear evidence to the contrary." Id. at 465 (internal quotation marks omitted). The Court instructed us to be "hesitant" and not "unnecessarily impair" the prosecutor's "constitutional function." Id. (internal quotation marks omitted). And it was this "justification[] for a rigorous standard for the elements of a selective-prosecution claim" that "require[d] a correspondingly rigorous standard for discovery in aid of such a claim." Id. at 468.

Armstrong was thus premised on the notion that the standard for discovery for a selective prosecution claim should be nearly as rigorous as that for proving the claim itself. In other words, the standard was intentionally hewn closely to the claim's merits requirements. See id.; see also United States v. Hare, 820 F.3d 93, 99 (4th Cir. 2016) ("The standard for obtaining discovery in support of a selective prosecution claim is only  slightly lower than for proving the claim itself.").

B. Material Differences Between Selective Prosecution and Selective Enforcement

Selective prosecution is not selective enforcement—especially not in the stash house reverse-sting context. There are two main differences that warrant departure from the Armstrong standard: First, law enforcement officers do not enjoy the same strong presumption that they are constitutionally enforcing the laws that prosecutors do. Second, the nature of reverse-sting operations means that no evidence of similarly situated individuals who were not targeted exists.

1. Presumption of Regularity

"[T]he presumption of regularity supports ... prosecutorial decisions ... ." Armstrong, 517 U.S. at 464. This presumption gives "a measure of protection (and confidentiality)" to prosecutors' "deliberative processes, which are covered by strong privileges." United States v. Davis, 793 F.3d 712, 720 (7th Cir. 2015) (en banc). Prosecutors occupy a "special province" of the executive branch and have "broad discretion" to enforce our nation's laws, Armstrong, 517 U.S. at 464.

On the other hand, "[a]gents of the ATF and FBI are not protected by a powerful privilege or covered  by a presumption of constitutional behavior." Davis, 793 F.3d at 720. Criminal defendants are allowed discovery for various aspects of law enforcement operations, including statements made and actions taken by investigating agents. Agents' investigatory decisions are regularly questioned at trial, and their credibility is put before courts and juries. Thus, agents occupy a different space and role in our system than prosecutors; they are not charged with the same constitutional functions, and their decisions are more often scrutinized by—and in—courts.

Because the same presumption of regularity and deference to prosecutorial decision-making policy concerns do not apply in the selective enforcement context, we need not apply as rigorous a standard here.

2. Nonexistent Evidence

In the selective prosecution context, statistical evidence of differential treatment is ostensibly available. See Armstrong, 517 U.S. at 466-67, 470. For instance, comparing who was arrested with who was prosecuted, or the demographics of those prosecuted in state and federal courts for the same crime, may evince differential treatment of similarly situated individuals. See id. That is not the case in the context of selective enforcement. Asking a defendant claiming selective  enforcement to prove who could have been targeted by an informant, but was not, or who the ATF could have investigated, but did not, is asking him to prove a negative; there is simply no statistical record for a defendant to point to. Cf. Chavez v. Ill. State Police, 251 F.3d 612, 640 (7th Cir. 2001) ("In a meritorious selective prosecution claim, a criminal defendant would be able to name others arrested for the same offense who were not prosecuted by the arresting law enforcement agency; conversely, plaintiffs who allege that they were stopped due to racial profiling would not, barring some type of test operation, be able to provide the names of other similarly situated motorists who were not stopped.").

This is especially true for stash house reverse-sting operations, where no independent crime is committed; the existence of the 'crime' is entirely dependent on law enforcement approaching potential targets, and any comparative statistics can only be derived by the government and its informants choosing to approach and investigate white individuals. See Hare, 820 F.3d at 101 ("In the stash house sting context, a defendant would face considerable difficulty obtaining credible evidence of similarly situated individuals who were not investigated by ATF.").

In Armstrong, the Supreme Court concluded that requiring evidence about similarly situated defendants would not "make a selective-prosecution claim impossible to prove." That is not the case here; comparative statistics do not exist. As did the Court in Armstrong, we set the discovery standard accordingly and find that a lower standard is warranted under these circumstances.

C. Davis and Washington

The Third and Seventh Circuits have already come to the conclusion that Armstrong's rigorous discovery standard does not apply in the context of selective enforcement claims involving stash house reverse-sting operations. See United States v. Washington, 869 F.3d 193, 219-21 (3d Cir. 2017); Davis, 793 F.3d at 719-21. The Fourth Circuit has described the arguments for doing so as "well taken." Hare, 820 F.3d at 101 (citing Davis [and concluding that, based on their showing that all 32 of the defendants prosecuted in stash house reverse sting cases in the district were black, defendants had received all discovery to which they were entitled.]). We are now the fourth circuit to address this question in the stash house reverse-sting context.

In United States v. Davis, the Seventh Circuit, sitting en banc, emphasized that "Armstrong was about prosecutorial discretion" and how "federal prosecutors deserve a strong presumption of honest and constitutional behavior, which cannot be overcome simply by a racial disproportion in the outcome" because "disparate impact differs from discriminatory intent." 793 F.3d at 720. The court  found that "the sort of considerations that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting targets for sting operations, or when deciding which suspects to refer for prosecution." Id. at 721. Thus, based on the Davis defendant's showing that 88 of the 94 defendants prosecuted after stash house reverse-sting operations in the district were black or Hispanic, the court held that "information from supervisors or case agents of the FBI and ATF" would be "outside the scope of Armstrong" and discoverable. Id. at 715, 721-22; see also id. at 722 ("The racial disproportion in stash-house prosecutions remains troubling ... and it is a legitimate reason for discovery.").

In Washington, the Third Circuit discussed Davis at length and ultimately "agree[d] with the Davis court that district judges have more flexibility, outside of the Armstrong[] framework, to permit and manage discovery on claims" for selective enforcement related to stash house reverse-sting operations. 869 F.3d at 213. The court found that Armstrong was "grounded in part on the special solicitude courts have shown to prosecutors' discretion" that "does not inevitably flow to the actions  of law enforcement." Id. at 216, 219. The court also took note of the defendant's argument that the fact that "there are likely to be no records of similarly situated individuals who were not arrested or investigated ... would transform the functional impossibility of Armstrong[] into a complete impossibility." Id. at 216. The court held that so long as the defendant's proffer contains "reliable statistical evidence, or its equivalent, ... a defendant need not, at the initial stage, provide 'some evidence' of discriminatory intent, or show that ... similarly situated persons of a different race or equal protection classification were not arrested or investigated by law enforcement." Id. at 221. The court remanded for the district court to determine in the first instance whether the defendant, who had shown that all of the defendants prosecuted in connection with stash house reverse-sting operations in the district were black, was entitled to any additional discovery. Id. at 200, 222.

D. The Resulting Standard

Today we join the Third and Seventh Circuits and hold that Armstrong's rigorous discovery standard for selective prosecution cases does not apply strictly to discovery requests in selective enforcement claims like Sellers's.  Contrary to Armstrong's requirements for selective prosecution claims, a defendant need not proffer evidence that similarly-situated individuals of a different race were not investigated or arrested to receive discovery on his selective enforcement claim in a stash house reverse-sting operation case. While a defendant must have something more than mere speculation to be entitled to discovery, what that something looks like will vary from case to case. The district court should use its discretion—as it does for all discovery matters—to allow limited or broad discovery based on the reliability and strength of the defendant's showing.

Having set forth the applicable standard, we turn to Sellers's threshold showing in this case. Sellers argues that the evidence he presented regarding the demographics of those indicted based on stash house reverse-sting operations entitles him to discovery on his selective enforcement claim. Because the district court applied an incorrect legal standard, we follow our normal practice of remanding to the district court to determine in the first instance whether Sellers has met the standard we outline today. See Kirkpatrick v. Chappell, 872 F.3d 1047, 1058 (9th Cir. 2017) ("When a district court applies the wrong  legal standard ..., we ordinarily remand the case so that it may apply the correct one in the first instance."). It may be that Sellers does not meet even a lower standard. Or it may be that he meets the standard but is entitled to no more discovery than he already received in connection with his entrapment defense. Or Sellers may be entitled to ask the government to be more forthcoming about its practices with regard to stash house reverse-sting operations. We leave that to the district court to decide.

The order denying  discovery is VACATED and the case is REMANDED for limited post-judgment proceedings consistent with this opinion.

Note:

For an excellent account of this developing area of law, see Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987 (2021) (link).