Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 85 CR 232 -- James F. Holderman, Judge. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division, Nos. 86 CR 528 and 86 CR 499 -- Prentice H. Marshall, Judge. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division, Nos. 86 CR 727, 86 CR 828 and 86 CR 339 -- William T. Hart, Judge.
Posner, Flaum, and Kanne, Circuit Judges.
This consolidated appeal, involving six separate criminal cases, requires us to resolve what has become known in the Northern District of Illinois as the "grand jury issue." In February of 1987, the office of the United States Attorney discovered that the records of the clerk's office did not contain a written order extending the Special December 1983 Grand Jury beyond its initial 18 month term. Subsequent investigations discovered similar omissions in the records of the Special October 1984 and Special January 1985 Grand Juries.
Several defendants indicted by these bodies contend that their indictments are nullities because the putative special grand juries were not properly constituted when they returned these indictments. The government argues that the omission of a written extension order is not error under 18 U.S.C. § 3331,*fn1 the statute regulating the summoning and term of special grand juries. We hold that the § 3331 extension provision requires only a judicial determination that a special grand jury has not finished its business. The record indicates that this determination was made prior to all but one period of extension of the affected special grand juries; we cannot ascertain on this record whether the Special October 1984 Grand Jury was properly extended for a second time in October of 1986. Accordingly, we hold that the failure to enter formal written orders of extension was not error, and that the indictments against all of the defendants except Clemenic are therefore valid.
The six cases before us involve the Special December 1983 Grand Jury (the "1983 Grand Jury") and the Special October 1984 Grand Jury (the "1984 Grand Jury").*fn2 Chief Judge McGarr ordered the 1983 Grand Jury convened on December 2, 1983. On May 25, 1985, before its original 18 month term expired,*fn3 the Chief Judge extended the Grand Jury's term pursuant to 18 U.S.C. § 3331. This constituted the first of three such six month extensions authorized by the statute. On November 25, 1985, Chief Judge McGarr again extended the 1983 Grand Jury, this time until June 2, 1986.*fn4 Prior to the termination of this second extension, the U.S. Attorney never presented, and the Chief Judge never signed, a third formal written order of extension. However, the 1983 Grand Jury continued to meet and return indictments, and was instructed on several occasions by Chief Judge McGarr to "resume deliberations."*fn5
Defendants Wilson, Rosenstein and Sanders were each convicted on the basis of indictments returned after the expiration of the 1983 Grand Jury's second six month extension.*fn6 These defendants contend that the 1983 Grand Jury was not properly extended for the third of its three statutorily authorized extensions. Thus, they allege that its power to return indictments lapsed in June of 1986, thirty months after its impanelment, rather than in December of 1986, a full three years after it was convened.
Defendants Taylor, Nigo-Martinez, Jaraba, and Clemenic were indicted by the 1984 Grand Jury. They contend that this Grand Jury was never validly extended beyond its original 18 month term, and that its power to indict therefore lapsed in April of 1986. The October 1984 Grand Jury was convened pursuant to an order of Acting Chief Judge Marshall.*fn7 During its first 18 months, the Grand Jury returned indictments against many defendants, including original and superseding indictments against Taylor charging various narcotics-related offenses. In March of 1986, before the expiration of its initial 18 month term, the Grand Jury voted unanimously to continue its work;*fn8 however, no formal order of extension was ever entered. The 1984 Grand Jury continued to appear weekly before Judge McGarr (and later Judge Grady) until February of 1987, ten months after the end of its initial 18 month term.*fn9
After discovering the lack of written orders extending the 1983 and 1984 Grand Juries, the United States Attorney's office prepared corrective orders which Judge McGarr signed. In the case of the Special December 1983 Grand Jury, Judge McGarr issued an order on February 21, 1987 finding that in May of 1986 he had determined that the 1983 Grand Jury had not completed its work.*fn10 In the case of the Special October 1984 Grand Jury, Judge McGarr issued an order on March 3, 1987 finding that in March of 1986 he had determined that the 1984 Grand Jury had not completed its work.*fn11 In addition to setting forth Judge McGarr's factual findings, both of these orders purported to amend the records of the respective Grand Juries nunc pro tunc to reflect the entry of the extension orders on the proper dates.
In this appeal, the government first argues that the absence of a formal order extending the Grand Juries was not a defect, because the applicable statute requires only a judicial finding that a special grand jury has not completed its work. Since there is evidence that such a judicial determination was made with respect to both Grand Juries at issue, the government asserts, the indictments and subsequent convictions are valid. Second, even if the absence of a written order is a defect, the government contends that it is a defect in the institution of the proceedings or in the indictment, and any objection was therefore waived under Federal Rule of Criminal Procedure 12(b) because defendants failed to raise this issue before trial. The government asserts that Federal Rule of Criminal Procedure 12(b) creates a distinction between waivable defects in personal jurisdiction, which protects individuals, and non-waivable defects in subject matter jurisdiction, which restricts the types of cases a court is empowered to hear. The government urges that as long as the indictment charges a federal crime -- thereby showing subject matter jurisdiction in the court under Federal Rule of Criminal Procedure 12(b)(2) -- it is valid unless the defendant objects to it before trial.*fn12 Finally, the government asserts that even if defendants could show cause as to why they failed to object prior to trial, any error was harmless in light of defendants' subsequent convictions.
The defendants, some of whom are appellants and some of whom are appellees, contend that no special grand jury is properly extended without entry of an order; that even if a judicial determination is sufficient under the statute, none was made here; that the courts below therefore lacked jurisdiction; that any objections therefore could not have been waived; and that harmless error analysis is inapplicable where jurisdiction is lacking.
Because we conclude that 18 U.S.C. § 3331 does not require a written entry to effect the extension of a special grand jury's term, we hold that as to all but one defendant no error has occurred. We ...