United States v. Jacinta Gussie ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-3216
_____________
UNITED STATES OF AMERICA
v.
JACINTA A. GUSSIE,
Appellant
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On Appeal from the
District Court
of the Virgin Islands
(D.C. No. 1:16-cr-00021-005)
District Judge: Honorable Wilma A. Lewis
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Argued
June 3, 2022
Before: JORDAN, MATEY, and ROTH, Circuit Judges.
(Filed: October 18, 2022)
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Renee D. Dowling [ARGUED]
P.O. Box 1047
Christiansted, VI 00821
Counsel for Appellant
Adam Sleeper [ARGUED]
Meredith J. Edwards
Gretchen C.F. Shappert
Office of United States Attorney
5500 Veteran’s Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802
Melissa Ortiz
Office of United States Attorney
1108 King Street
Suite 201
Christiansted, VI 00820
Counsel for Appellee
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OPINION
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MATEY, Circuit Judge.
The United States Attorney for the District of the Virgin Islands
obtained an indictment against Jacinta Gussie for fraud. Then,
prosecutors learned one of the grand jurors might have been a victim
of Gussie’s scheme. So the Government obtained a Superseding
2
Indictment and brought Gussie to trial, where a jury found her guilty.
That chain of events, Gussie argues, renders her conviction unlawful.
But the Superseding Indictment cured any potential defect, making any
error harmless. So we will affirm her conviction.
I.
In 2016, a federal grand jury returned a unanimous indictment
against Gussie and her co-defendants. In early 2017, the United States
Attorney’s Office learned that one of the grand jurors who voted to
indict Gussie was apparently a victim of the scheme charged.1 After
months of internal discussion, and out of an “abundance of caution,”
the Government obtained a Superseding Indictment from a new grand
jury nearly one year later. JA 436.2 A trial under that charging
document followed, and Gussie was convicted and sentenced to forty-
five months’ imprisonment. She now appeals, arguing the
Government’s stumbles make her conviction unlawful. But Gussie
1
How this occurred remains a mystery. The juror’s full name
was listed in the Original Indictment, and one exhibit presented to the
grand jury noted the juror’s name. True, no juror responded when the
Government named the Defendants and asked if any juror had a
connection. But the Government bears the responsibility to manage the
grand jury, one part of their obligation to maintain a “sensitiveness to
fair play.” Robert H. Jackson, The Federal Prosecutor, 31 J. Crim. L.
& Criminology 3, 6 (1940).
2
Unsurprisingly, the Defendants objected to the Government’s
decision. One moved for dismissal, but the District Court denied the
challenge viewing any error as harmless. Another appealed to this
Court, but there was no conviction, and so no final decision. United
States v. Alexander, 985 F.3d 291 (3d Cir. 2021).
3
suffered no prejudice facing charges under the validly returned
Superseding Indictment, and we will affirm.
II.
Gussie presents two points of error.3 First, that allowing an
alleged victim to sit on the grand jury considering an indictment against
her was “so prejudicial” that it caused the grand jury “no longer to be
a grand jury,” requiring dismissal with prejudice. Second, the
Superseding Indictment exceeded the statute of limitations because the
Original Indictment was not validly pending when the Superseding
Indictment returned. We disagree with both conclusions.
A. Any Grand Jury Error Was Not Structural
We begin with remedies, not rights, as that is enough to decide
this case.4 In 1991, the Supreme Court divided constitutional errors
3
The District Court had jurisdiction under 48 U.S.C. § 1612 and
18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291.
The Government argues both issues on appeal are forfeited as Gussie
does not reference the record in her briefs. See Norman v. Elkin, 860
F.3d 111, 129 (3d Cir. 2017). But we have discretion here, see Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993), and because Gussie’s
arguments raise only easily understood legal issues, we will decide
them.
4
The District Court stated that the Fifth Amendment creates a
“right to indictment by an unbiased grand jury.” JA 442 (citing
Costello v. United States, 350 U.S. 359, 363 (1956) and United States
v. Serubo, 604 F.2d 807, 816 (3d Cir. 1979)). But those cases
considered instances of grand jury bias caused by “intentional and
systematic” discrimination, see, e.g., Vasquez v. Hillery, 474 U.S. 254,
4
involving criminal cases into two groups: trial error and structural
error.5 Arizona v. Fulminante, 499 U.S. 279, 306–10 (1991). Structural
error occurs, for example, when the “structural protections of the grand
jury have been so compromised as to render the proceedings
fundamentally unfair, allowing the presumption of prejudice.” Bank of
Nova Scotia v. United States, 487 U.S. 250, 257 (1988). Structural
errors “defy analysis by harmless-error standards” because of the
“difficulty of assessing the effect of the error.” United States v.
Gonzalez-Lopez, 548 U.S. 140, 148 & n.4 (2006) (cleaned up). And
262–64 (1986) (defendant was “indicted by a grand jury from which
members of a racial group purposefully ha[d] been excluded”); Pierre
v. State of Louisiana, 306 U.S. 354, 362 (1939) (prosecution
systematically excluded individuals from grand and petit juries for at
least two decades based solely on their race), and other prosecutorial
misconduct that is “something other than an isolated incident
unmotivated by sinister ends” or “has become entrenched and flagrant
in the circuit.” Serubo, 604 F.2d at 817 (internal quotation marks
omitted) (prosecution’s graphic description of violence and
implication that defendants were linked to organized crime). The
Government’s blunder here lacks the malice that marks the
malfeasance in these cases. So we will merely assume a due process
violation given the lack of prejudice to Gussie under harmless error
review.
5
The structural error doctrine “recognized that some
constitutional errors require reversal without regard to the evidence in
the particular case.” Rose v. Clark, 478 U.S. 570, 577 (1986) (citing
Chapman v. California, 386 U.S. 18, 23 n.8 (1967)). The “defining
feature of a structural error is that it ‘affect[s] the framework within
which the trial proceeds,’ rather than being ‘simply an error in the trial
process itself.’” Weaver v. Massachusetts, 137 S. Ct. 1899, 1907
(2017) (quoting Fulminante, 499 U.S. at 310).
5
mirroring the demands of due process, see supra note 4, the Supreme
Court has only recognized structural error in the intentional and
systematic exclusion of potential grand jurors based on race or sex. See
Vasquez v. Hillery, 474 U.S. 254, 264 (1986); Ballard v. United States,
329 U.S. 187, 195 (1946). Egregious acts well beyond the present facts.
That is why the error here was not structural, a point already
made in our companion opinion, Alexander, when we examined the
same issue arising from Gussie’s co-defendant. We explained that
Alexander’s arguments “do not support the conclusion that the defect
here was ‘so fundamental that it cause[d] the grand jury no longer to
be a grand jury.’” Alexander, 985 F.3d at 297 (alteration in original)
(quoting Midland Asphalt Corp. v. United States, 489 U.S. 794, 802
(1989)). Rather, the error was discrete and definable, and its impact
was not “too subtle and too pervasive to admit of confinement to
particular issues or particular cases.” Peters v. Kiff, 407 U.S. 493, 503
(1972). An alleged victim considering the Original Indictment had
some knowledge about Gussie’s actions—knowledge that helped
produce a True Bill that otherwise might not have been returned. That
problem can be discerned, assessed, and cured.
That means we consider Gussie’s claim for harmless error. See
United States v. Stevenson, 832 F.3d 412, 427 (3d Cir. 2016). Usually,
we assess harmless error by asking whether there is “grave doubt” that
“the violation substantially influenced the grand jury’s decision to
indict.” Bank of Nova Scotia, 487 U.S. at 256 (quoting United States v.
Mechanik, 475 U.S. 66, 78 (1986) (O’Connor, J., concurring)). And
any prejudice must be shown to preclude remedies other than
dismissal. See United States v. Soberson, 929 F.2d 935, 940 (3d Cir.
1991).
Like the District Court, we will assume prejudice in the return
of the Original Indictment and examine cures short of dismissal.
Because if a remedy “neutralize[s] the taint,” United States v.
6
Morrison, 449 U.S. 361, 365 (1981), of the Original Indictment, then
Gussie’s claim cannot prevail.
The District Court correctly concluded that the Superseding
Indictment provides that cure. The taint is identifiable and quantifiable:
a biased grand juror may have influenced the grand jury’s
deliberations. Returned by an unbiased grand jury, the Superseding
Indictment neutralized that threat. By restarting the legal process with
an evidently neutral grand jury, and obtaining a conviction from
Gussie’s peers, the Government “tailor[ed] relief appropriate [to] the
circumstances.” Id. As a result, there is no harmful error, and Gussie’s
challenge to the indictment was properly denied.
B. The Original Indictment Was Validly Pending
Gussie also argues that the Government did not obtain the
Superseding Indictment within the time allowed by Congress. The
statute of limitations here is five years, 18 U.S.C. § 3282, and the latest
charged offense in the Original Indictment occurred in July 2012. The
Original Indictment came in September 2016, within the five-year
deadline. The Superseding Indictment did not come until October
2018, outside the statutory window.
But an indictment stops the statute of limitations clock, so the
Government may bring a superseding indictment at “any time while
the first indictment is still validly pending, if and only if it does not
broaden the charges made in the first indictment[.]” United States v.
Friedman, 649 F.2d 199, 203 (3d Cir. 1981). Gussie does not argue the
Superseding Indictment deviated from the Original, so the Government
acted within bounds if the Original Indictment was validly pending.
Gussie’s argument is straightforward: the original grand jury was
tainted, making any action “invalid,” so the Original Indictment could
not be validly pending. The Government contends that an indictment
is validly pending “even if it is not valid.”
7
The Government has the better case,6 and the facts of Friedman
are illustrative. There, the Government obtained an indictment that
failed to state a federal charge (by omitting, in most of the counts, the
“jurisdictional amount of” the fraud). Friedman, 649 F.3d at 202.
Correcting its error, the Government filed a superseding indictment
after the applicable statute of limitations had expired. Id. at 202–03.
Compounding the confusion, the Government proceeded to trial on the
superseding indictment before the original indictment was dismissed.
Id. Nonetheless, we explained the original indictment was validly
pending, despite failing to state a federal charge, making the
superseding indictment timely. Id. at 203. As a result, where a
superseding indictment is filed, “the day on which the original
indictment was filed controls for statute of limitation purposes,” if “the
superseding indictment does not materially broaden or substantially
amend the charges in the first.” United States v. Oliva, 46 F.3d 320,
324 (3d Cir. 1995).
That is the case here. No matter the possible defect in the
Original Indictment returned against Gussie, it remained validly
pending at the time of the Superseding Indictment. Since the
Superseding Indictment did not make any substantial changes, the
charges were returned within the statute of limitations.
C. Gussie’s Remaining Challenges
Gussie argues that the Government’s mishandling of the grand
jury shows prosecutorial misconduct warranting dismissal of this case.
Particularly the still-unexplained delay before informing Gussie of the
grand jury defect. These are not insubstantial issues. Before and after
the Founding, Americans have enjoyed “the great and inestimable
privilege of being tried by their peers of the vicinage, according to the
6
Which does not suggest satisfaction with the Government’s
management and delay.
8
course of that law.” Declaration and Resolves of the First Continental
Congress Resolution 5 (1774), available at https://avalon.law.yale.edu/
18th_century/resolves.asp; see also Hurtado v. People of State of Cal.,
110 U.S. 516, 539 (1884) (Harlan, J., dissenting) (describing the grand
jury right as one of the institutions that “antedates the establishment of
our institutions” and “which no government could rightfully impair or
destroy”). Here, the Government’s failure to give appropriate attention
to the composition of the grand jury hindered the “course of the law,”
and injured the essential trust necessary between the people and their
government. Hurtado, 110 U.S. at 530 (Harlan, J., dissenting).
But dismissal “is an extreme sanction which should be
infrequently utilized.” United States v. Birdman, 602 F.2d 547, 559 (3d
Cir. 1979). And “absent demonstrable prejudice, or substantial threat
thereof, dismissal of the indictment is plainly inappropriate, even
though the violation may have been deliberate.” Morrison, 449 U.S. at
365. While Gussie claims the Government knew the juror was a
possible victim and permitted the juror’s participation, the District
Court found no supporting facts for that assertion. We see no clear error
in that conclusion, which followed an in camera review of the grand
jury proceedings.7
7
For the same reasons, we also reject Gussie’s contention that
the “egregious” nature of the misconduct warrants dismissal. The
challenged conduct must be shocking and outrageous. See United
States v. Nolan-Cooper, 155 F.3d 221, 230–31 (3d Cir. 1998). The
Government’s conduct was “at worst . . . sloppy or negligent,” JA 460,
but it did not meet the high bar required.
9
Finally, Gussie argues the Government violated “the purpose”
of Federal Rule of Criminal Procedure 6,8 which should prompt a
dismissal. But the Rule’s text does not prohibit a victim from being
part of the grand jury. And even assuming it did, it would be subject to
harmless error review, Bank of Nova Scotia, 487 U.S. at 256, where it
would fail for the reasons already discussed.
III.
For these reasons, we will affirm the District Court’s judgment.
8
Rule 6(d)(2) says, “[n]o person other than the jurors, and any
interpreter needed to assist a hearing-impaired or speech-impaired
juror, may be present while the grand jury is deliberating or voting.”
Fed. R. Crim. P. 6(d)(2).
10