Unpublished Disposition, 865 F.2d 266 (9th Cir. 1988)

MEMORANDUM^* 

Defendants Radin, Haiken, and Webber contend that their indictment for conspiracy to distribute marijuana and possession with intent to distribute marijuana should be dismissed due to prosecutorial misconduct before the grand jury. We review this claim de novo. United States v. De Rosa, 783 F.2d 1401, 1404 (9th Cir. 1986), cert. denied, 477 U.S. 908 (1986).

Although courts have the power to dismiss indictments either on due process grounds, or under their inherent supervisory power over the administration of justice, that power is exercised sparingly. A defendant challenging an indictment has the burden of demonstrating that the prosecutor engaged in flagrant misconduct that deceived the grand jury or significantly impaired its ability to exercise independent judgment.

United States v. Benjamin, 852 F.2d 413, 415-16 (9th Cir. 1988) (citations omitted). In the present case, the challenged testimony concerning defendants' lifestyle, the Hells Angels of Canada, and defendants' attempts to locate the informant, while perhaps irrelevant to the charges against defendants, was not so prejudicial as to require dismissal of the indictment. Even without this allegedly prejudicial testimony, there was more than sufficient untainted evidence presented to the grand jury to support the indictment. See De Rosa, 783 F.2d at 1405.

Defendants contend, in addition, that the indictment must be dismissed due to the prosecutor's failure to notify the grand jury upon learning that certain testimony concerning defendant Arends was based partially upon false information. See United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir. 1974) (when the prosecutor learns of perjury committed before the grand jury which may be material, he is under a duty to inform the grand jury so that appropriate action may be taken). Because Arends has withdrawn his appeal, this issue is now moot as to him. Furthermore, the challenged testimony does not relate to the involvement of anyone other than Arends in the conspiracy, and therefore is immaterial with respect to Radin, Haiken, and Webber. The quantity of evidence against these three defendants remains unchanged; thus they were not prejudiced by the prosecutor's failure to inform the grand jury of the false testimony. See United States v. Claiborne, 765 F.2d 784, 791 (9th Cir. 1985) (" [I]f sufficient non-perjurious testimony exists to support the indictment, the courts will not dismiss the indictment due to the presence of perjured testimony before the grand jury, on the assumption that the grand jury would have returned an indictment without the perjurious evidence.").

Because defendants have not shown that the alleged prosecutorial misconduct before the grand jury so undermined the grand jury's independence that it could not make an informed and unbiased determination of probable cause to indict, the district court's denial of defendants' motions to dismiss their indictment is AFFIRMED.