Technical Requirements of Valid Grand Jury Action

• Pages: 269-285

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CHAPTER 13

TECHNICAL REQUIREMENTS OF

VALID GRAND JURY ACTION

Rule 6 of the Federal Rules of Criminal Procedure specifies the

manner in which grand juries are to be empaneled and conducted, and

how they deliberate and reach decisions. Several statutes impose

additional technical requirements. This Chapter describes the

requirements of grand jury action and discusses the consequences of non-

compliance with these technical requirements. Although lawmakers

have couched Rule 6 and much of the statutory language in mandatory

terms, failure to comply with applicable provisions will rarely void an

indictment.1 Even if the matter is dismissed for error concerning the

initial grand jury, the prosecutor may present the matter to another grand

jury.2 Likewise, if a grand jury refuses to indict, the prosecutor may

resubmit evidence to succeeding grand juries.3

Grand jury proceedings enjoy a strong presumption of regularity, and

a defendant seeking to challenge grand jury action faces a heavy burden.4

An indictment will not be quashed or a conviction reversed unless the

1. See, e.g., United States v. Mechanik, 475 U.S. 66, 72-73 (1986)

(unauthorized person in grand jury will not result in automatic reversal of

a conviction absent actual prejudice); United States v. Reichel, 911 F.3d

910, 917 (8th Cir. 2018).

2. 18 U.S.C. §§ 3288-3289 (1999); see, e.g., United States v. Serubo, 502 F.

Supp. 288, 290 (E.D. Pa. 1980) (dismissal of indictment for prosecutorial

misconduct did not bar reindictment before a new grand jury); United

States v. Abu-Shawish, No. 07-CR-289, 2008 WL 2225686, at *1 (E.D.

Wis. May 29, 2008) (18 U.S.C. § 3288 “allows a grace period for the

filing of a new indictment when an indictment is dismissed after the

original statute of limitations has expired.”).

3. See United States v. Williams, 504 U.S. 36, 49 (1992) (citing Ex parte

United States, 287 U.S. 241, 250-51 (1932) and United States v.

Thompson, 251 U.S. 407, 413-14 (1920)). Once a grand jury declines to

return an indictment on the merits, however, an internal Department

policy requires approval of a responsible U.S. Attorney before it is

resubmitted. U.S. DEP’T OF JUSTICE, JUSTICE MANUAL, § 9-11.120.

4. See, e.g., United States v. Wilson, 565 F.3d 1059, 1069-70 (8th Cir.

2009); United States v. Jones, 766 F.2d 994, 1001 (6th Cir. 1985).

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alleged irregularity denied the defendant a constitutional right or the

defendant can show that he was prejudiced by the irregularity.5

A. Selection of Grand Jurors

Rule 6(a) authorizes district courts to empanel grand juries. 6 The

U.S. Department of Justice’s Antitrust Division (Division) sometimes

makes use of this authority to empanel grand juries that investigate only

antitrust matters. The Division also conducts investigations through

grand juries that investigate other matters as well. Under Rule 6(a), the

grand jury must have sixteen to twenty-three members.

The Jury Selection and Service Act of 19687 (JSSA) outlines

procedures for choosing members of a grand jury. The act requires that

both grand and petit jurors be randomly selected from a fair cross-section

of the community.8 Under the JSSA, each judicial district must have a

written plan for random grand juror selection reviewed and approved by

the chief judge and the judicial counsel of the circuit.9 The plan

(1) establishes a jury commission or authorizes the clerk of the court to

manage the jury selection process;10 (2) specifies the source or sources of

the names of prospective jurors; (3) details the method to be followed in

selecting names from the source lists and in randomly selecting jurors

from among the qualified (usually by a “master jury wheel”); and

(4) lists groups of persons or occupational classes who (a) may be

excused by request and (b) are exempt from service.11 The JSSA also

5. See Bank of Nova Scotia v. United States, 487 U.S. 250, 2 56 (1988);

United States v. Walters, 910 F.3d 11, 22-23 (2d Cir. 2018).

6. FED. R. CRIM. P. 6(a)(1) (“When the public interest so requires, the court

must order that one or more grand juries be summoned.”).

7. 28 U.S.C. § 1861.

8. Id. The “fair cross-section of the community” requirement is a

constitutional requirement flowing from the Sixth Amendment. Berghuis

v. Smith, 559 U.S. 314, 319 (2010).

9. 28 U.S.C. § 1863(a).

10. The jury commission consists of the clerk and one citizen (three in the

District of Columbia) residing in the district. 28 U.S.C. § 1863(b)(l).

Information regarding a particular district’s plan for grand jury selection

should be available from the clerk’s office.

11. Id. § 1863(b)(6). Exempt are active members of the armed forces,

members of fire and police departments, and public officials in any

branch of federal, state, or local government actively engaged in the

performance of official duties. Exemption of government employees

does not disqualify all government employees. See Romney v. United