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June 3, 1994


The opinion of the court was delivered by: BRIAN BARNETT DUFF

 The issues raised in defendants' Joint Motion to Dismiss the Indictment Based on Grand Jury Impropriety present a question of first impression, to wit, can an indictment stand when a grand juror has been convicted of felonies committed as a member of the indicting grand jury? We find that juror Girardi's illegal actions have nullified the indictment, and therefore grant the defendants' Motion to Dismiss.

 Undisputed Facts.

 On May 18, 1994, Robert M. Girardi was convicted of contempt of court, bribery and obstruction of justice for selling information pertaining to the Special October 1992 - I Grand Jury. Girardi first discussed the grand jury proceedings with his childhood friend Richard Gelsomino, who was under investigation by the grand jury. Gelsomino has stated that, as soon as Girardi learned he was selected to sit on the grand jury, he agreed to provide Gelsomino with details of the proceedings. Girardi also asked Gelsomino to find someone who would be willing to pay for the secret grand jury information.

 Gelsomino passed Girardi's information on to Richard Lantini, who was also under investigation by the grand jury. Apparently believing he was being set up, Lantini told his attorney of Gelsomino's disclosures. Lantini's attorney subsequently informed the FBI.

 After being questioned by the FBI, Gelsomino implicated Girardi as the source for his inside information. Girardi apparently expressed considerable disrespect for the process, calling to the grand jury proceedings a "kangaroo court" where anyone could be indicted. Gelsomino also claimed that Girardi had told him that there were three other jurors who would sell their votes for a trip to Hawaii and $ 10,000 cash.

 As part of its investigation of Girardi, the FBI interviewed the grand jurors with whom Girardi appeared to be most closely associated. Not surprisingly, all 11 jurors interviewed denied any knowledge Girardi's actions. The government also learned that another party investigated by the grand jury is alleged to have informed Gelsomino that he had a female source within the Department of Justice who kept him informed of the grand jury's progress. Finally, Lantini stated that he received a phone call from a woman who told him he would not be indicted if "he came up with the money."

 Girardi admitted telling Gelsomino that three other jurors would sell their votes, but denied actually discussing his activities with any other members of the grand jury. He further denied that there were any other jurors willing not to indict certain defendants in exchange for tickets to Hawaii and cash. Girardi was not charged with attempting to hold up an indictment for money. Gelsomino, Lantini and the defendants herein all were indicted by the Special Grand Jury.

 The Role of the Grand Jury in Federal Prosecutions.

 An indictment by a federal grand jury is neither a mere formality nor an empty exercise to be performed by the government before a person can be held to answer for a criminal offense. The right to an indictment by a legally constituted, impartial grand jury is explicitly guaranteed by the Fifth Amendment to the Constitution. This right must mean more than an indictment by a body consisting of at least one member who viewed the proceedings as a "kangaroo court" and was willing to trade his solemn obligations for cash. We do not share the disrespect some courts and prosecutors have displayed for the grand jury system (observed by the Supreme Court over 20 years ago) *fn1" and refuse to acquiesce in the gradual emasculation of one of our republic's most cherished traditions.

 A legally constituted and unbiased grand jury "is the only accusatorial body of the Federal Government recognized by the Constitution." U.S. v. Mara, 410 U.S. 19, 28, 35 L. Ed. 2d 99, 93 S. Ct. 774 (1973) (Douglas, J., dissenting). Grand juries are "the essence of the rule of the people," U.S. v. Smyth, 104 F. Supp. 283, 286 (N.D. Cal 1952), and serve "the invaluable function in our society of standing between the accuser and the accused . . . to determine whether a charge is founded upon reason or dictated by an intimidating power or by malice and personal ill will." U.S. v. Mechanik, 475 U.S. 66, 74, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986) (O'Connor, J., concurring) (citations omitted). By offering to sell grand jury information and, perhaps, the power to indict, Girardi effectively perverted and actually abnegated the Special October 1992 - I Grand Jury's authority as a legally constituted accusatorial body. As such, its indictment of the defendants is irreparably corrupted, and cannot stand.

 Girardi's Actions Amounted to More than A Secrecy Violation.

 In their briefs, defendants gave a thorough review and analysis of the history of the grand jury and its preeminence as a buffer between the government and the citizenry. In so doing, the defendants addressed some of the due process concerns that this Court initially felt in hearing of Girardi's offensive conduct and that we expressed to the parties in open court. The government elected to down play these due process concerns, and attempted to paint Girardi's actions as a mere breach of his duty to keep the grand jury proceedings confidential. Its argument was belied by the fact that its subsequent indictment of Girardi shows that his actions resulted in violations to the criminal justice system which were much more significant than a breach of the secrecy provisions of Rule 6(e).

 For example, one statute under which the Girardi was convicted required the jury to find that Girardi's actions were "corrupt." 18 U.S.C. § 1503. The jury convicting Girardi was also obligated to find that Girardi "corruptly" demanded "money in return for being induced to do acts in violation of his official duty." 18 U.S.C. § 201(b)(2)(C). It is both reasonable and appropriate for us to conclude that Girardi's "corrupt" actions infected and tainted the grand jury process itself and that the harm resulting from Girardi's actions is both different from and greater than the harm which results from a simple violation of Rule 6(e). Here, the defect is "so fundamental that it causes the grand jury no longer ...

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