United States v. Mechanik, 475 U.S. 66 (1986)

CHIEF JUSTICE BURGER, concurring.

I concur in JUSTICE REHNQUIST’s opinion for the Court. I write separately only to state my view that this case is controlled by Justice Black’s opinion for the Court in Costello v. United States, 350 U.S. 359 (1956).

1. Denial of a Rule 6(d) motion could conceivably be subject to interlocutory appeal under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Such an order may be both collateral to the main action and, as a result of today’s opinion, wholly unreviewable after final judgment. Cf. United States v. Hollywood Motor Car Co., 458 U.S. 263, 267 (1982) (claim that indictment should be dismissed on grounds of prosecutorial vindictiveness not subject to interlocutory appeal because reviewable after conviction); United States v. Garner, 632 F.2d 758 (CA9 1980) (claim that indictment should be dismissed on grounds of grand jury irregularities not subject to interlocutory appeal because reviewable after conviction); United States v. Bird, 709 F.2d 388, 391, and n. 17 (CA5 1983) (collecting cases).

2. Our case law, further, is inconsistent with the majority’s broad holding that any error in the grand jury proceedings, no matter how egregious, is rendered harmless beyond a reasonable doubt by a petit jury’s subsequent guilty verdict. Vasquez v. Hillery, 474 U.S. 254 (1986), involving the "grave constitutional trespass" of racial discrimination, id. at 262, belies that holding. The Court’s assessment of the nature of the grand jury process refutes the rationale articulated by the majority today:

Nor are we persuaded that discrimination in the grand jury has no effect on the fairness of the criminal trials that result from that grand jury’s actions. The grand jury does not determine only that probable cause exists to believe that a defendant committed a crime, or that it does not. In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapital offense -- all on the basis of the same facts. Moreover, "[t]he grand jury is not bound to indict in every case where a conviction can be obtained." United States v. Ciambrone, 601 F.2d 616, 629 (CA2 1979) (Friendly, J., dissenting). Thus, even if a grand jury’s determination of probable cause is confirmed in hindsight by a conviction on the indicted offense, that confirmation in no way suggests that the discrimination did not impermissibly infect the framing of the indictment and, consequently, the nature or very existence of the proceedings to come.

Vasquez v. Hillery, supra, at 263 (emphasis added).

3. See also 2 W. LaFave &; J. Israel, Criminal Procedure §15.6, p. 332 (1984) ("Most federal courts . . . treat unauthorized presence as a per se ground for dismissal, requiring no showing of prejudice"). Cases cited by the Solicitor General as requiring harmless error analysis are distinguishable. Those cases involved only brief, inadvertent interruptions of the grand jury, during which the grand jury proceedings came to an immediate halt, United States v. Computer Sciences Corp., 689 F.2d 1181, 1185-1186 (CA4 1982), cert. denied, 459 U.S. 1105 (1983); United States v. Kahan & Lessin Co., 695 F.2d 1122, 1124 (CA9 1982); United States v. Rath, 406 F.2d 757 (CA6), cert. denied, 394 U.S. 920 (1969), or a "fleeting" appearance in the grand jury room by a person assisting in the movement of bulky documents, United States v. Condo, 741 F.2d 238, 239 (CA9 1984), cert. denied, 469 U.S. 1164 (1985). Indeed, the Fourth Circuit panel, whose reasoning was adopted by the en banc court, saw no inconsistency between Computer Sciences, supra, and the per se rule of the instant case. 735 F.2d 136, 139-140 (1984).

4. JUSTICE O’CONNOR suggests, noting the reference to 18 U.S.C. § 556 (1946 ed.) in the Advisory Committee Notes to Rule 6, that the rulemakers intended violations of Rule 6(d) to be subject to the harmless error rule. Ante at 75-76. The legislative history of former § 556 does not support that view. The section, as first enacted in 1872, provided that

[n]o indictment . . . shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.

Rev.Stat. § 1025 (emphasis added). There is no indication that this law was meant to disturb the settled law regarding unauthorized persons in the grand jury room, see United States v. Edgerton, 80 F. 374 (Mont. 1897); rather, it seems likely that the statute was directed at technical defects in the wording of the indictment, see, e.g., People v. St. Clair, 56 Cal.406 (1880) (reversing conviction because word "larceny" in indictment was misspelled); People v. Vice, 21 Cal.344 (1864) (reversing conviction because indictment, while alleging that defendant took certain property by threats and force, failed to allege that the property did not belong to defendant). See also supra at 82.