                        REVISED APRIL 17, 2002

                 IN THE UNITED STATES COURT OF APPEALS



                         FOR THE FIFTH CIRCUIT




                                 No. 00-20558




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellant,

                                    versus

DARRELL H. STROUSE; JAMES R. WILLIS,

                                                  Defendants-Appellees.




           Appeal from the United States District Court

                  For the Southern District of Texas



                             March 20, 2002

Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     A federal grand jury indicted Darrell Strouse and James

Willis,   both   formerly   of    the   Houston    Police   Department,   for

conspiring to violate the civil rights of Rogelio Oregon Pineda and
Pedro Oregon Navarro in violation of 18 U.S.C. § 241.   The district

court dismissed the indictment because Pineda’s1 testimony before

the grand jury was perjurious, and, according to the district

court, tainted the grand jury’s decision to indict the Defendants.

We hold that perjury before the grand jury that was not knowingly

sponsored by the government may not form the basis for a district

court’s dismissal of an indictment under its limited supervisory

power over the grand jury process.    We REVERSE the judgment of the

district court and REMAND for further proceedings.

                                I

     In July of 1998, Strouse and Willis were members of the

Houston Police Department’s Divisional Gang Task Force.     Strouse

commanded the Task Force for three precincts, and Willis was

assigned to Strouse’s unit.

     On the evening of July 11, 1998, Willis and his partner Pete

Herrada arrested Ryan Baxter and two minors for possessing drug

paraphernalia associated with the use of crack cocaine. During the

course of the arrest, the officers learned that Baxter was on

probation for a prior drug offense.    Baxter made the now-familiar

"flip," identifying Pineda as his cocaine supplier and offering to

assist the officers in apprehending Pineda.



     1
        For brevity, we will refer to the brothers Rogelio Oregon
Pineda and Pedro Oregon Navarro by their mothers’ maiden names.
Thus, Rogelio Oregon Pineda will be referred to as “Pineda” and
Pedro Oregon Navarro as “Navarro.”

                                2
     Then back at the precinct headquarters, officers, including

the Defendants, laid plans for Baxter to purchase drugs from Pineda

to confirm Pineda’s status as a dealer.    Baxter first arranged a

buy at a Jack in the Box restaurant near Pineda’s apartment, but

Pineda failed to show.   When Baxter paged Pineda a second time,

Pineda told Baxter that Navarro would be at Pineda’s apartment and

would be able to sell Baxter the crack cocaine he needed.     Per the

officers' instructions, Baxter agreed.    As Baxter and a group of

officers approached the apartment, Strouse charted their plan.

Baxter was to knock on the door to initiate the drug sale.       When

the door was answered, Baxter was to talk until police officers

could take over.   The officers maintain that the plan was to seek

consent to enter the apartment.   When Baxter knocked on the door,

however, there was no response, and the group left.

     As the officers were driving back to their headquarters with

Baxter early on the morning of July 12, Pineda apparently called

Baxter, telling him that he was now at the apartment and able to

sell Baxter the cocaine that Baxter had requested.       At least six

officers returned to the apartment, including the Defendants and

Herrada.   The plan remained unchanged, except Strouse apparently

stressed to Baxter that he was to “get down and out of the way”

when the door was answered.    Strouse also told Baxter that, to

disguise his role, he would also be arrested.

     The precise events that took place at Pineda’s apartment

during the second trip to the apartment are not clear.    Most of the

                                  3
officers lined up in a stairwell near Pineda’s apartment, out of

the immediate line of sight from the door to Pineda’s apartment.

Two officers were stationed outside, near the back windows of

Pineda’s apartment.      Baxter knocked, and Pineda answered.        Baxter

then spoke with Pineda and moved forward inside the apartment.

Once inside, according to Baxter, he heard the rustling of feet

behind him and dropped to the floor.         Officers, led by Herrada, who

had his gun drawn, immediately entered the apartment announcing

“Houston police” and “HPD.”2     According to Herrada, he rushed into

the apartment only after Baxter hit the ground; he had not expected

Baxter to fall and entered the apartment because he feared that

Baxter may have been hurt.     It is undisputed that the officers had

neither a warrant nor consent to enter the apartment at any time.

     Once inside, the officers handcuffed Baxter, Pineda, and

Pineda’s girlfriend, Nelly Mejia. Officer Herrada pursued Salvador

Lopez, also an occupant of the apartment.             Two other officers,

Tillery   and    Barrera,   proceeded   to    the   back   bedroom   of   the

apartment.      In the bedroom, they found Navarro holding a gun.          As

the officers approached the back bedroom, a shot--apparently fired

by one of the officers--hit Tillery in the back of his bullet-proof

vest.    Various officers opened fire on Navarro, eventually firing

more than thirty rounds of ammunition.         Shot twelve times, Navarro


     2
       Officer Herrada had been asked to stand closest to the door
because he spoke both Spanish and English and it was not clear to
the officers whether Pineda spoke English.

                                    4
died at the scene.   Navarro never fired his gun.     No drugs were

found in the apartment.

                                II

     The Harris County district attorney convened a state grand

jury to investigate the events of July 11 and 12.     Pineda and the

Defendants testified before the state grand jury.    The state grand

jury returned only one indictment, against officer Willis for

misdemeanor trespass.   On trial, officer Willis was acquitted.

     Following the acquittal, the Department of Justice convened a

federal grand jury seeking indictments against officers involved in

the July 12 raid for conspiring to violate and violating the civil

rights of Pineda and Navarro.        The government called sixteen

witnesses before the grand jury, including Pineda. The prosecutors

also read Pineda’s state grand jury testimony to the federal grand

jury and furnished them with a transcript of that testimony.     The

Defendants did not testify before the federal grand jury.

     In September 1999, the grand jury returned the indictment in

this case charging conspiracy to violate the civil rights of Pineda

and Navarro, in violation of 18 U.S.C. § 241.       Specifically, it

charged that the Defendants:

     did willfully and knowingly conspire to injure, oppress,
     threaten, and intimidate Rogelio Oregon Pineda and Pedro
     Oregon Navarro in the free exercise and enjoyment of the
     rights secured to them by the Constitution and laws of
     the United States, that is, the right to be secure
     against unreasonable searches and seizures.




                                 5
The grand jury did not indict the Defendants for actually violating

the civil rights of Pineda and Navarro pursuant to 18 U.S.C. § 242,

the object offense of the conspiracy.     The Defendants moved to

dismiss the indictment based on the fact that Pineda had offered

material, false testimony before the state and federal grand

juries.

     In a careful exegesis, the district court found that “Pineda’s

entire testimony before the grand jury is severely tainted by his

perjury,” offering several examples of knowingly false statements

by Pineda.   They included: (1) he had never sold drugs; (2) he did

not know Baxter; (3) he returned Baxter’s page because he thought

it might be a wrong number; (4) he did not know Baxter was coming

to his apartment on the night of the raid; (5) police officers

entered the apartment immediately as Pineda opened the door; and

(6) a police officer immediately hit Pineda on the night of the

raid and he lost consciousness. The district court also noted that

Pineda had admitted in a civil deposition that he lied to the state

and federal grand juries about these events.3




     3
        On April 17, 2000, a Harris County grand jury indicted
Pineda for two counts of aggravated perjury and one count of
perjury. The two counts of aggravated perjury related in part to
statements made under oath during the state grand jury proceedings.
Pineda has since pled guilty to one count of aggravated perjury.
The government maintains that because Pineda’s guilty plea to state
perjury charge is outside the record, this court cannot consider it
on appeal. Because Pineda’s plea of guilt to state perjury charges
was not a basis for the district court’s ruling and is unnecessary
to our resolution of the case, we do not consider this evidence.

                                 6
     The   district   court   then   determined   that   Pineda’s   false

statements were material because they related to whether entry by

the officers was supported by exigent circumstances.        Finally, the

court rejected the government’s argument that any perjury by Pineda

did not harm the Defendants because there was sufficient truthful

testimony before the grand jury to support the indictment returned

and dismissed the indictment without prejudice on April 19, 2000.4




     4
          The district court refused to impose a prejudice
requirement, explaining that no such requirement had been adopted
by this circuit. It nevertheless reviewed the record and concluded
that the untainted testimony was insufficient to support a finding
of probable cause.

                                     7
                                  III

     The government here makes three primary arguments.           First,

that Pineda did not perjure himself before the grand jury. Second,

that, even if Pineda lied, a dismissal of an indictment would be

appropriate only if the court found that the government knew of the

perjury and did nothing to rectify or prevent it.          Finally, the

government    contends    that   any    perjury   by   Pineda   did   not

substantially influence the grand jury’s decision to indict the

Defendants.

     We review the district court’s factual finding of perjury for

clear error and find none here.5         As the district court noted,

Pineda’s testimony before the federal grand jury, particularly the

portions of his state grand jury testimony read to the federal

grand jury, contained numerous statements that Pineda knew to be

false.    Specifically, Pineda stated that (1) he had never sold or

used cocaine, (2) he had never met and did not know Baxter prior to

the events of July 12, (3) police officers entered his apartment

instantly when he opened the door on the morning of July 12, and

(4) he was beaten severely, perhaps even to unconsciousness, after

they entered.   Pineda has since acknowledged in a civil deposition

that he knowingly made false statements during his grand jury

testimony, further confirming the propriety of the district court’s

factual findings.        We have no difficulty concluding that the


     5
         See United States v. Cathey, 591 F.2d 268, 272 (5th Cir.
1979).

                                   8
district court did not clearly err when it found that Pineda

knowingly provided false information to the grand jury.

     The materiality of Pineda's false statements is a legal issue

that we review de novo.6     The standard is “whether the false

testimony was capable of influencing the tribunal on the issue

before it.”7   We are to be mindful that “[f]alse statements 'need

not be material to any particular issue, but may be material to

collateral matters that might influence the court or the jury in

the decision of the question before the tribunal.'”8

     The grand jury was charged to investigate any denial of the

civil rights of Pineda and Navarro.    Pineda's lies, particularly

about events inside his apartment, were undoubtedly capable of

influencing the grand jury’s determination of whether to indict the

Defendants for violating Pineda’s civil rights.   Precisely how and

when the police entered would bear on whether exigent circumstances

required their warrantless entry into Pineda’s apartment and thus

on whether the Defendants violated Pineda and Navarro’s right to be

free of unreasonable searches.   For that reason, we agree with the



     6
        United States v. Williams, 993 F.2d 451, 455 (5th Cir.
1993), abrogated on other grounds by Texas v. Cobb, 532 U.S. 162
(2001).
     7
       Id. (quoting United States v. Salinas, 923 F.2d 339, 341
(5th Cir. 1991)) (internal quotation marks omitted; emphasis in
original).
     8
       Id. (quoting United States v. Damato, 554 F.2d 1371, 1373
(5th Cir. 1977)).

                                 9
district court that Pineda’s false statements were material to the

grand jury’s investigation.



                                   IV

     After    indictment,   the   judiciary’s   role   in   policing   the

credibility of witnesses before a grand jury is minimal.           It is

true that we have authority to enforce the Grand Jury Clause by

ensuring that grand juries act independently from the executive.9

We may also, and indeed on occasion we must, use our supervisory

power to safeguard the integrity of the grand jury process.            The

Supreme Court has, for example, recognized that a district court

may use its supervisory power “to dismiss an indictment because of

misconduct before the jury, at least where that misconduct amounts

to a violation of one of those ‘few, clear rules which were

carefully drafted and approved by this Court and by Congress to

ensure the integrity of the grand jury’s functions.’”10 The Supreme

Court has also recognized that the supervisory power of Article III

judges should be used “to implement a remedy for violation of

recognized rights, to preserve judicial integrity by ensuring that




     9
          See United States v. McKenzie, 678 F.2d 629, 631 (5th Cir.
1982).
     10
         See United States v. Williams, 504 U.S. 36, 46 (1992)
(quoting United States v. Mechanik, 475 U.S. 66, 74 (1986)
(O'Connor, J., concurring in the judgment)); see also United States
v. Greer, 137 F.3d 247, 251 n.5 (5th Cir. 1998).

                                   10
a conviction rests on appropriate considerations validly before the

jury, and finally, as a remedy designed to deter illegal conduct.”11

     That said, we are persuaded that perjury before the grand jury

that was not knowingly sponsored by the government may not form the

basis for a district court’s dismissal of an indictment under its

supervisory power.   The district court did not under its approach

reach the question of whether the government knew of the perjury at

the time it offered Pineda's testimony before the federal grand

jury.     In denying the government's motion to reconsider, the

district court observed:

     First, the Court again reminds the parties that
     Defendants moved to dismiss the indictment because it was
     based on false, material testimony. Dismissals on this
     basis, if jeopardy has not attached, are without
     prejudice.   Whether the indictment could be dismissed
     with prejudice because of prosecutorial misconduct was
     not, and is not now, before the Court. Moreover, the
     Government's admission that it presented state grand jury
     testimony which it now concedes may have been perjured is
     not an admission of prosecutorial misconduct.

The district court explained in dismissing the indictment that "the

Court need not and does not reach the issue of the Government's

knowledge or bad faith" and that "[t]his issue could not be

resolved without a full evidentiary hearing."   In the absence of a

finding of government misconduct, we hold that the district court

was without authority to exercise its limited supervisory power to




     11
         United States v. Hastings, 461 U.S. 499, 505 (1983)
(citations omitted).

                                11
dismiss the indictment on the basis of perjury before the grand

jury.12

     The district court and the Defendants have pointed to language

in several cases as support for the proposition that a district

court in an exercise of its supervisory power may dismiss an

indictment for such material lies to a grand jury.   We read these

decisions to support the conclusion we reach today, including, for

example, the following language from United States v. Williams:13

     Thus, Bank of Nova Scotia v. United States, 487 U.S. 250,
     108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988), makes clear
     that the supervisory power can be used to dismiss an
     indictment because of misconduct before the grand jury,
     at least where that misconduct amounts to a violation of
     one of those "few, clear rules which were carefully
     drafted and approved by this Court and by Congress to
     ensure the integrity of the grand jury's functions,"
     United States v. Mechanik, 475 U.S. 66, 74, 106 S. Ct.
     938, 943, 89 L. Ed. 2d 50 (1986) (O'CONNOR, J.,
     concurring in judgment).14

Footnote 6, accompanying this text, states that "Rule 6 of the

Federal Rules of Criminal Procedure contains a number of such


     12
        The indictment was dismissed without prejudice. Cf. United
States v. Welborn, 849 F.2d 980, 985 (5th Cir. 1988) ("The
supervisory authority of the district court includes the power to
impose the extreme sanction of dismissal with prejudice only in
extraordinary situations and only where the government's misconduct
has prejudiced the defendant."); cf. also United States v. Fulmer,
722 F.2d 1192, 1195 (5th Cir. 1983) ("For this reason, we have held
that a district court may dismiss an indictment with prejudice only
where it has been shown that governmental misconduct or gross
negligence in prosecuting the case has actually prejudiced the
defendant.").
     13
          504 U.S. 36 (1992).
     14
          Id. at 46.

                                12
rules, providing, for example, that 'no person other than the

jurors may be present while the grand jury is deliberating or

voting,' Rule 6(d), and placing strict controls on disclosure of

'matters occurring before the grand jury,' Rule 6(e)."15                              The

footnote then notes that "[a]dditional standards of behavior for

prosecutors (and others) are set forth in the United States Code,"

listing "18 U.S.C. §§ 6002, 6003 (setting forth procedures for

granting      a     witness     immunity      from     prosecution);         §       1623

(criminalizing       false     declarations    before      grand    jury);       §   2515

(prohibiting grand jury use of unlawfully intercepted wire or oral

communications); § 1622 (criminalizing subornation of perjury)."16

      The phrase "prosecutors (and others)" does not foreclose on

its face a conclusion that a lying witness might support dismissal

under the district court's supervisory power. Similarly, we stated

in   United      States   v.   Sullivan17    that    "we   refuse   to   adopt       the

proposition that, absent perjury or government misconduct, an

indictment is flawed simply because it is based on testimony that

later may prove to be questionable."18

      The language from Sullivan, however, only states in passing a

breed of rule this court refused to endorse, rather than one that


      15
           Id. at 46 n.6.
      16
           Id.
      17
           578 F.2d 121 (5th Cir. 1978).
      18
           Id. at 124 (emphasis added).

                                        13
it did adopt.     In any event, any such reading of Sullivan would be

superseded by Williams: "'the mere fact that evidence itself is

unreliable   is   not   sufficient   to   require   a   dismissal   of   the

indictment'" and "'a challenge to the reliability or competence of

the evidence presented to the grand jury' will not be heard."19

Allowing courts to evaluate the quality of evidence presented to a

grand jury would "'run counter to the whole history of the grand

jury institution.'"20      This rule is so strongly enforced that

evidence obtained in violation of the Fifth Amendment21 and in

violation of the Fourth Amendment22 can be used before a grand jury

without giving the district court power to dismiss an indictment.

     Dismissing an indictment to punish the government for its

misconduct, however, entails no implicit second-guessing of the

grand jury and thus steers clear of the prohibition of Williams.

Our approach today is supported by Bank of Nova Scotia v. United

States,23 in which the Supreme Court upheld a Tenth Circuit decision


     19
        Williams, 504 U.S. at 54 (quoting Bank of Nova Scotia v.
United States, 487 U.S. 250, 261 (1988)); see also id. (noting
that, under long-standing Court precedent, an indictment may not
"be challenged 'on the ground that there was inadequate or
incompetent evidence before the grand jury.'" (quoting Costello v.
United States, 350 U.S. 359, 363-64 (1956))).
     20
          Id. (quoting Costello, 350 U.S. at 364).
     21
          Id. at 49.
     22
        Id. at 50; see also United States v. Calandra, 414 U.S.
338, 354 (1974).
     23
          487 U.S. 250 (1988).

                                     14
refusing to uphold a dismissal of an indictment.       The district

court had rested its decision in part on its factual finding that

"IRS agents gave misleading and inaccurate summaries to the grand

jury just prior to the indictment."24    The Supreme Court stated:

     Because the record does not reveal any prosecutorial
     misconduct with respect to these summaries, they provide
     no ground for dismissing the indictment. The District
     Court’s finding that the summaries offered by IRS agents
     contained evidence that had not been presented to the
     grand jury in prior testimony boils down to a challenge
     to the reliability or competence of the evidence
     presented to the grand jury.      We have held that an
     indictment valid on its face is not subject to such
     challenge.25

The Nova Scotia Court then recited the rule that unreliability of

evidence presented to a grand jury will not support the use of the

supervisory power to dismiss an indictment in holding that a

district court has "no authority to dismiss [an] indictment on the

basis of prosecutorial misconduct absent a finding that [the

defendants] were prejudiced by such misconduct."26

     Congress has proscribed false testimony by witnesses before

the grand jury, regardless of the government's involvement or

knowledge, and has authorized criminal sanctions against those

giving such testimony.27     However, the fact that 18 U.S.C. § 1623



     24
          Id. at 260.
     25
          Id. at 260-61.
     26
          Id. at 261, 263.
     27
        See 18 U.S.C. § 1623; United States v. Abroms, 947 F.2d
1241, 1245 (5th Cir. 1991).

                                  15
can be violated without government knowledge and that criminal

charges can be brought against the offending witness does not, by

itself,          suggest    a   supervisory     reach    beyond    cases       where   the

government knew of the violation of section 1623 at the time of the

perjured testimony.               The phrase "(and others)" in footnote 6

supports this observation.              Most of the statutes listed with this

phrase are primarily violated by persons other than prosecutors.

In footnote 6, the Court is merely describing the general nature of

these sections of the United States Code in service of enumerating

the misconduct that "amounts to a violation of one of those 'few,

clear rules which were carefully drafted and approved by this Court

and by Congress to ensure the integrity of the grand jury’s

functions.'"28            The import of the statements in footnote 6 must be

read        in    light    of   the   textual      statement   that      the     footnote

accompanies, because footnote 6 by its own terms merely identifies

the rules described generally in the textual statement.

       Williams       states     that   the     rule    limiting   the     use    of   the

supervisory power to instances of violations of these rules arises

from the depiction of the limits on the court's supervisory power

in Nova Scotia.29 In other words, the Williams decision, by its own

terms, ties its statement of the scope of the supervisory power to

the holding in Nova Scotia.             In Nova Scotia, the Court did not use

       28
        Williams, 504 U.S. at 46 (quoting Mechanik, 475 U.S. at
74 (O'Connor, J., concurring in the judgment)).
       29
              Id.

                                              16
the language regarding a "few, clear rules" from Justice O'Connor's

concurring opinion in United States v. Mechanik.   The Nova Scotia

Court did, however, hold that misleading and inaccurate summaries

provided by IRS agents to a grand jury would not support the use of

the court's supervisory power to dismiss the indictment "[b]ecause

the record does not reveal any prosecutorial misconduct with

respect to these summaries."30   What the Williams Court's explicit

reliance on Nova Scotia makes clear, then, is that the "misconduct"

that "amounts to a violation of one of those 'few, clear rules'"--

which the Williams Court held included certain provisions of the

United States Code as well as sections of Federal Rule of Criminal

Procedure 6--must involve government misconduct.

     Furthermore, the language from Justice O'Connor's concurring

opinion in Mechanik, which the Williams Court explicitly quotes,

limits the scope of violations of these "few, clear rules" to the

conduct of prosecutors. In her opinion, Justice O'Connor observes:

     Prosecutors have been accorded similar leeway in
     presenting their cases to the grand jury, see, e.g.,
     United States v. Adamo, 742 F.2d 927, 936-938 (CA6 1984),
     cert. denied, 469 U.S. 1193, 105 S. Ct. 971, 83 L. Ed. 2d
     975 (1985), but they are bound by a few, clear rules
     which were carefully drafted and approved by this Court
     and by Congress to ensure the integrity of the grand
     jury's functions.31




     30
          487 U.S. at 260.
     31
        475 U.S. at 74 (O'Connor, J., concurring in the judgment)
(emphasis added).

                                 17
Justice   O'Connor   then   argues   that   Federal   Rule   of   Criminal

Procedure 6(d) is such a rule and that dismissal of an indictment

is an appropriate remedy, in some cases, for violations of Rule

6(d).32 Accordingly, the language in footnote 6 of Williams and the

accompanying text, when read in the context of the two decisions

from which the stated rule is drawn, supports our conclusion that

an indictment may not be dismissed under a court's supervisory

power for perjury which the government did not sponsor.

     The immediate next sentence in Williams further supports this

conclusion.    There, the Court implicitly limited the scope of the

supervisory power just discussed by stating:

     We did not hold in Bank of Nova Scotia, however, that the
     courts' supervisory power could be used, not merely as a
     means of enforcing or vindicating legally compelled
     standards of prosecutorial conduct before the grand jury,
     but as a means of prescribing those standards of
     prosecutorial conduct in the first instance--just as it
     may be used as a means of establishing standards of
     prosecutorial conduct before the courts themselves.33

As such, the Williams Court understood its own discussion to be

limited to prosecutorial misconduct in violation of these "few,

clear rules," notwithstanding the use of the phrase "(and others)."

     The district court also relied on United States v. Greer34 as

support for its conclusion that perjury which the government did



     32
          Id. at 74-75.
     33
          504 U.S. at 46-47 (emphasis added).
     34
          137 F.3d 247 (5th Cir. 1998).

                                     18
not knowingly sponsor is an authorized ground for dismissal under

Williams. Specifically, that Greer, after reciting the language we

quoted from Williams, noted that "[t]he statutory prohibition

against making a false declaration before a grand jury, set forth

in Title 18 U.S.C. § 1623, was cited by the Williams Court as an

example of one such rule."35 We are not persuaded. Like its source

in footnote 6 of Williams, this statement in Greer is consonant

with a rule limiting the court's use of its supervisory power to

violations of section 1623 of which the government had prior

knowledge.     Greer holds only that, under a plain error analysis,

the defendant had not shown any perjury was committed.36    Greer's

further statement that the defendant had not demonstrated that the

challenged testimony violates one of the "few, clear rules" under

Williams may easily be read to be consistent with an insistence

that the government know of the falsity of the testimony it

sponsored.37   Of course, because the Greer court found that perjury

had not been demonstrated, it had no occasion to discuss the

government's knowledge of the falsity of the testimony.

                                  V

     Our limit today of the use of our supervisory power is

consistent with our treatment of the repercussions of perjury


     35
          Id. at 251 n.5.
     36
          Id. at 251.
     37
          See id.

                                  19
before a petit jury.    Before a petit jury, the rule in this circuit

is   that "due    process   is   not   implicated   by   the    prosecution’s

introduction or allowance of false or perjured testimony unless the

prosecution actually knows or believes the testimony to be false or

perjured."38     We see little sense in a rule which would provide

criminal defendants greater protection before the grand jury than

defendants have at trial, where the use of perjured testimony

arguably   poses    a   greater    threat,    despite     the    defendant's

opportunity at trial to confront the untruths.             Finally, as the

government aptly notes, a rule allowing dismissal of an indictment

without a showing of government misconduct would open the door to

attacks on grand jury evidence for which there are large incentives

including discovery by the accused.         The result would be the sort

of "interminable delay" against which the Supreme Court long ago




      38
        United States v. Brown, 634 F.2d 819, 827 (5th Cir. 1981);
see also May v. Collins, 955 F.2d 299, 315 (5th Cir. 1992).

                                       20
warned in the context of attacks on grand jury proceedings.39    A

petit trial before the trial is just too much.

     For the foregoing reasons, we conclude that the district court

erred in dismissing the indictment.

     REVERSED and REMANDED.



ENDRECORD




     39
        See Costello, 350 U.S. at 363-64 ("Petitioner urges that
this Court     should  exercise   its   power   to  supervise   the
administration of justice in federal courts and establish a rule
permitting defendants to challenge indictments on the ground that
they are not supported by adequate or competent evidence.        No
persuasive reasons are advanced for establishing such a rule. It
would run counter to the whole history of the grand jury
institution, in which laymen conduct their inquiries unfettered by
technical rules. Neither justice nor the concept of a fair trial
requires such a change. In a trial on the merits, defendants are
entitled to a strict observance of all the rules designed to bring
about a fair verdict. Defendants are not entitled, however, to a
rule which would result in interminable delay but add nothing to
the assurance of a fair trial."); cf. United States v. Sullivan,
578 F.2d 121, 124 (5th Cir. 1978) ("The only plausible effect
Housand's recantation could have had on his grand jury testimony
would have been to undermine its credibility, but we decline to
adopt the proposition that grand jury testimony that has merely
been thrown open to suspicion by postindictment events is an
invalid basis for an indictment.       Such a rule of law would
necessitate independent judicial review of the credibility of grand
jury witnesses, an exercise that would seriously infringe upon the
traditional independence of the grand jury. We consequently hold
that where subsequent events merely cast doubt on the credibility
of grand jury witnesses, due process does not require the
prosecution to notify the grand jury of those events and seek a new
indictment.").

                                21
     BENAVIDES,     Circuit     Judge,      specially    concurring    in   the

judgment:

     I cannot agree with the majority opinion that prosecutorial

misconduct    is   always   required     before    the   district   court   may

exercise its supervisory role over grand jury proceedings.                  The

majority takes a very narrow view of the circumstances under which

this may be done, relying on Supreme Court opinions that, while

referencing prosecutorial misconduct in their analysis of the

appropriateness of a district court’s exercise of its supervisory

powers, do not explicitly hold that such misconduct is required for

the exercise of such powers.       I am not convinced that the Supreme

Court has cabined in the circumstances under which supervisory

powers may be exercised to the extent suggested by the majority.

     In United States v. Williams, 504 U.S. 36, 112 S.Ct. 1735

(1992), the Supreme Court explained that district courts may use

their   supervisory    powers     to     enforce    established     rules   and

procedures intended to protect the integrity of the grand jury

process.     Id. at 46.     The Court drew a distinction between the

permissible use of supervisory powers for the purpose of enforcing

existing rules, and the impermissible exercise of supervisory

powers for the purpose of creating new rules to govern the grand

jury system.   Id. at 46-47.       Thus, the Court stated that, as made

clear by its decision in Bank of Nova Scotia v. United States, 487

U.S. 250, 108 S.Ct. 2369 (1988), “the supervisory power can be used



                                       22
to dismiss an indictment because of misconduct before the grand

jury, at least where that misconduct amounts to a violation of one

of   those   ‘few,   clear   rules   which    were   carefully    drafted       and

approved by this Court and by Congress to ensure the integrity of

the grand     jury’s   functions.’”         Id.   (citing   United     States    v.

Mechanik, 475 U.S. 66, 74, 106 S.Ct. 938, 943 (1986)(O’Connor, J.,

concurring in judgment)).        In a footnote to this statement the

Court pointed out that, in addition to the standards outlined in

Federal Rule of Criminal Procedure 6, other judicially-enforceable

“standards of behavior for prosecutors (and others) are set forth

in the United States Code.”          Id., n.6.     Among the rules that the

Court specifically identified in Williams were 18 U.S.C. § 1623,

which prohibits perjury before a grand jury, and 18 U.S.C. § 1622,

which criminalizes the subornation of perjury.                   Id.       Thus,

Williams establishes that the prohibition of perjury is among “the

few, clear rules” that a court may enforce using its supervisory

powers. And by listing “standards of behavior for prosecutors (and

others)” the Court intimated that misconduct independent of the

government, if precluded by an established standard of behavior,

could provide a basis for overturning an indictment.             Id.(emphasis

added).

      Citing Williams, this Court has indicated that the “statutory

prohibition against making a false declaration before a grand jury”

exemplifies one of the “few, clear rules” intended to protect the


                                       23
integrity of the grand jury’s functions.                United States v. Greer,

137 F.3d 247, 251 (5th Cir. 1998); see also United States v.

Sullivan, 578 F.2d 121, 124 (5th Cir. 1978); United States v.

Cathey, 591 F.2d 368, 271-72 (1979)(suggesting that witness perjury

could provide a basis for investigating a grand jury indictment).

Other circuits have also suggested that perjury before a grand

jury, even without prosecutorial knowledge, can provide a basis for

dismissing indictments returned by the grand jury in reliance on

the perjured testimony.           See, e.g., United States v. Hyder, 732

F.2d   841,    845   (11th    Cir.     1984)   (“[W]e    refuse   to    adopt    the

proposition that, absent perjury or government misconduct, an

indictment is flawed simply because it is based on testimony that

later may prove to be questionable.”) (emphasis added) (citations

omitted); United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir.

1977) (“[O]nly in a flagrant case, and perhaps only where knowing

perjury, relating to a material matter, has been presented to the

grand jury should the trial judge dismiss an otherwise valid

indictment returned by an apparently unbiased grand jury.”).

       The    majority’s     opinion     disagrees      with   this    reading    of

Williams, arguing that the phrase “prosecutors (and others)” should

be interpreted narrowly, as simply descriptive of the nature of the

sections      of   the   United      States    Code   in   relation     to   which

prosecutorial misconduct would trigger the exercise of supervisory

powers.      Ante at 13, 16.      In support of this interpretation, the


                                         24
majority points to the fact that the Supreme Court has held on

previous occasions that challenges to the reliability or competence

of the evidence before the grand jury will not be heard.            Ante at

14-16. Indeed, the majority notes that in Bank of Nova Scotia, the

Supreme Court held that the fact that IRS agents gave misleading

and inaccurate summaries to the grand jury was insufficient, in the

absence of prosecutorial misconduct, to support a dismissal of the

indictment because the complaint amounted to a challenge to the

reliability of the evidence. Ante at 14-17.

      But   the   Supreme   Court’s   holding   that   challenges   to   the

reliability of evidence will not be heard, and its application of

that rule in Bank of Nova Scotia, have no bearing on the question

of whether, where there is an actual finding of perjury before the

grand jury, dismissal of the indictment is appropriate. The rule

that challenges to the reliability of evidence will not be heard

flows directly from the distinction drawn in Williams between

enforcing   existing   laws   governing    grand   jury   procedures,    and

creating new rules for the grand jury.          Williams, 504 U.S. at 46-

47.   Whereas to dismiss the indictment because of unreliability of

the evidence would involve the creation of a new standard for the

grand jury process, to dismiss the indictment because of perjury

before the grand jury simply enforces existing legal standards.

      The majority also points out that in Mechanik, which the

Williams Court quoted, Justice O’Connor discussed the “few clear


                                      25
rules which were carefully drafted and approved... to ensure the

integrity    of    the   grand        jury’s    functions”       in   relation    to

prosecutors’      obligation     to    follow   those    rules.       Ante   at   17.

However, nothing in Justice O’Connor’s statement indicates that

those “few clear rules” apply exclusively to prosecutors; rather,

as noted in Williams, the rules relating to behavior before the

grand   jury,     such   as     the    prohibition      on     perjury,   apply    to

prosecutors “and others.”          Williams, 504 U.S. at 46 n.6.

     The    majority’s        final    argument   for        requiring    government

misconduct before allowing dismissal of an indictment is that in

Williams itself, the Court stated that “[w]e did not hold in Bank

of Nova Scotia, however, that the courts’ supervisory power could

be used, not merely as a means of enforcing or vindicating legally

compelled standards of prosecutorial conduct before the grand jury,

but as a means of prescribing those standards of prosecutorial

conduct in the first instance... It is this latter exercise that

respondent demands.”          Williams, 504 U.S. at 46-47. The majority

latches on to the fact that in this particular passage the Court

spoke of prosecutorial misconduct, and argues that this suggests

that the Williams Court understood the exercise of its supervisory

powers to be limited exclusively to instances of misconduct by

prosecutors, not others.          Ante at 18.        But the Williams Court’s

reference to prosecutorial misconduct in that passage is easily

explained by the fact that the primary issue on appeal in that case


                                         26
was whether dismissal of an indictment due to a prosecutor’s

failure to present exculpatory evidence before a grand jury was

appropriate.          Because     the   central       issue   in   that    case   was

prosecutorial behavior, it was natural for the Court to speak in

terms of prosecutorial misconduct.              To read into this language an

additional, never before discussed, requirement of prosecutorial

misconduct for the exercise of supervisory powers, is a stretch.

In   the    absence    of   a    more   explicit       articulation       of   such   a

requirement by the Supreme Court, I would not limit a district

court’s exercise of its supervisory powers in this manner.

       Beyond   the    fact      that   Supreme   Court       precedent    does   not

sufficiently support the rule upon which the majority relies, it is

important to bear in mind that perjury by an ordinary witness that

is not sponsored by or known to the government can also corrupt the

grand jury process.         Indeed, by criminally sanctioning the act of

providing false material testimony to a grand jury, Congress has

indicated that the integrity of grand jury proceedings depends in

large part on grand jury witnesses providing honest testimony.40

When    a   grand   jury    is    provided     with    perjured    testimony,     the

integrity of its deliberations and decisions are threatened.                      That

would seem to be precisely the sort of egregious, well-established


       40
         Section 1623(d) supports the conclusion that Congress’ primary aim in
passing the perjury statute was to protect the integrity of the proceeding.
That section provides that a person who has perjured himself before a grand
jury can immunize himself from prosecution by recanting his misstatements and
thus facilitating the restoration of the grand jury’s integrity. 18 U.S.C. §
1623(d).

                                          27
grand jury misconduct that courts may use their supervisory powers

to correct.

     I   am   sympathetic   to    the   majority’s   concern   that   a   rule

allowing dismissal of an indictment without a showing of government

misconduct would open the door to attacks on grand jury evidence,

for which there would be great incentives. Ante at 20. However, it

is only when a district court discovers that the grand jury process

has been corrupted by a witness that knowingly deceived grand

jurors by providing false testimony that the court may act to

preserve the integrity of the grand jury process. This surely will

be a rare occurrence.        In order to invoke a district court’s

supervisory powers over grand jury proceedings, a defendant must

demonstrate that a witness knowingly lied to a grand jury about

matters material to the grand jury’s investigation.            In this case,

the district court’s findings were at least partially supported by

such evidence, specifically an admission of perjury by the witness.

Only when faced with an admission of or conviction for perjury, or

other such substantial evidence, should a district court exercise

its supervisory powers to determine the impact of the perjury on

the grand jury process.          Certainly, a district court could not

overturn a grand jury’s finding of probable cause based solely upon

inconsistencies between the testimony of one witness and others.

The majority also argues that it would be senseless to provide

defendants greater protection before the grand jury than at trial,

where due process is only violated if the prosecution knew of

                                        28
perjury.    Ante at 20.    However, at trial defendants have a greater

opportunity to participate and uncover falsehoods thanks to the

adversary   process,   whereas    at    the    grand    jury   stage   perjured

testimony is likely to go unchallenged.                See United States v.

O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997).

     I recognize that whether there is a prosecutorial misconduct

requirement for the courts to exercise their supervisory powers is

a difficult issue.     However, it was not necessary to address it in

the context of this case, inasmuch as the perjury did not prejudice

the defendant.     See Bank of Nova Scotia, 487 U.S. at 255 (“[A]

federal court may not invoke supervisory power to circumvent the

harmless-error inquiry prescribed by Federal Rule of Criminal

Procedure 52(a).”).       In the present case, the grand jury indicted

the defendants for conspiracy to violate civil rights under 18

U.S.C. § 241, while, as noted by the district court, Pineda’s

perjurious testimony related to the possible existence of exigent

circumstances justifying the Defendants’ warrantless entry into

Pineda’s apartment.       To be convicted of a conspiracy, defendants

“need not... have committed the crime that was its object.”              United

States v. Manges, 110 F.3d 1162, 1176 (5th Cir. 1997) (citations

omitted).      Thus, even if the Defendant’s entry into Pineda’s

apartment may have been supported by exigent circumstances, the

grand   jury   could   have   concluded       that,    prior   to   entry,   the

Defendants conspired to violate Pineda’s and Navarro’s rights to be


                                       29
secure from unreasonable searches.            Thus, Pineda’s perjury before

the grand jury constituted harmless error, a fact that provides an

alternate basis for vacating the district court’s ruling.

      As   a   final   note,   while        the   majority    does    limit    the

circumstances under which the court may exercise its supervisory

powers to situations where there has been prosecutorial misconduct,

it vacates for further proceedings.           I would point out that it has

been the appellees’ contention all along that the government did

engage in misconduct, and that the district court should conduct an

evidentiary    hearing   to    determine      whether   the    government      had

knowingly sponsored Pineda’s perjury before the grand jury.                   Thus,

the   majority’s   own   reasoning     would      suggest    that    rather   than

rejecting the claim, it should remand for a determination of

whether there was misconduct that would invoke the district court’s

exercise of its supervisory powers.

      For the foregoing reasons, I specially concur in the judgment

only.




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