                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-4739


UNITED STATES OF AMERICA,

                Plaintiff – Appellant,

           v.

MARIA ROSALBA ALVARADO MCTAGUE; FELIX ADRIANO CHUJOY, a/k/a
Felix Chujoy Alvarado; GLADYS GEORGETTE CHUJOY, a/k/a
Gladys Johnston,

                Defendants – Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.     Michael F. Urbanski,
District   Judge.    (5:14-cr-00055-MFU-1;  5:14-cr-00055-MFU-2;
5:14-cr-00055-MFU-3)


Argued:   September 23, 2016                 Decided:   October 26, 2016


Before DUNCAN, AGEE, and HARRIS, Circuit Judges.


Vacated and remanded by published opinion.    Judge Duncan wrote
the opinion, in which Judge Agee and Judge Harris joined.


ARGUED: Jean Barrett Hudson, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellant. Aubrey Gene
Hart, Jr., A. GENE HART, JR., PC, Harrisonburg, Virginia; Aaron
Lee Cook, AARON L. COOK, PC, Harrisonburg, Virginia, for
Appellees.   ON BRIEF: John P. Fishwick, Jr., United States
Attorney, Roanoke, Virginia, Heather Lynn Carlton, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellant. W. Andrew Harding,
CONVY & HARDING, PLC, Harrisonburg, Virginia, for Appellee
Gladys Georgette Chujoy.




                             2
DUNCAN, Circuit Judge:

      The     government          brings   this     interlocutory            appeal   from      an

order of the district court excluding grand jury testimony from

use at trial without having found prosecutorial misconduct or

bad faith in the underlying grand jury proceeding.                                    For the

reasons that follow, we vacate the order and remand for further

proceedings not inconsistent with this opinion.



                                               I.

                                               A.

      The grand jury investigation at issue here took place in

October       2015,    but    relates      back     to     criminal      proceedings        that

began    in    2014.         On    December    4,        2014,    a   federal      grand    jury

indicted Maria Rosalba Alvarado McTague (“Alvarado”) and Felix

Chujoy      (“Felix”)         on     charges        of     visa       fraud    and    various

immigration       violations         stemming        from        their   operation         of    a

Peruvian restaurant in Virginia.                         The indictment alleged that

Alvarado smuggled immigrants into the United States to work in

the restaurant.          It further alleged that both Alvarado and Felix

employed these and other undocumented immigrants in horrendous

and illegal working conditions, either paying them well below

the     minimum       wage    or    requiring       them     to       work    as   indentured

servants to repay Alvarado for smuggling them into the United

States.

                                               3
       After their arrest, the district court released Alvarado

and Felix on bond.                 As a condition of release, Alvarado and

Felix could          not    contact       witnesses      or   alleged      victims    in     the

case.

       During this time, a grand jury continued to investigate

additional       charges           and     suspects.          In     expectation        of     a

superseding          indictment,          the     parties     jointly       moved      for     a

continuance.               The    district      court      granted        the   motion       and

postponed trial to June 22, 2015.

                                                B.

       On March 12, 2015, the grand jury returned a superseding

indictment.          The superseding indictment (1) charged Alvarado and

Felix with additional labor trafficking counts, (2) added Gladys

Chujoy--Felix’s sister and Alvarado’s daughter--as a defendant,

and     (3)    charged       all       three    Defendants         with    obstruction       of

justice, witness tampering, and conspiracy to witness tamper.

The magistrate judge released Gladys Chujoy on bond, but revoked

bond    for    Alvarado          and   Felix    after     finding    probable        cause    to

believe       that    they       had     violated     their   conditions        of   release.

Evidence suggested that Alvarado and Felix had been contacting

witnesses using other people’s phones to avoid detection.                                  Over

the    next     several          months,    the       government     investigated        these

allegations by interviewing individuals whose telephone numbers

appeared in witnesses’ cellphone records.

                                                  4
        In May 2015, as part of this investigation, the government

interviewed          several       friends      of     Alvarado       and       the     Chujoys,

including Carolyn Edlind and Sheriff Donald Smith.                                     Based on

those interviews, the government subpoenaed Edlind and Smith to

testify at the upcoming trial.

        On    June     21,     2015,     due    to     a    personal        emergency,         the

government moved for another continuance.                             The district court

granted the motion, finding it to be in the interest of justice.

So as not to adversely affect Alvarado and Felix, it ordered

them released from jail on bond.                      Although Alvarado was obliged

to   obtain        new      counsel,     Defendants        did      not     object       to    the

continuance        and      explicitly      waived     any     potential        speedy        trial

objection.         The district court scheduled the new trial date for

October 26, 2015.

        In    late       August     2015,      counsel        for   an      inmate      at     the

Rockingham County Jail invited the government to interview his

client       about    information        concerning        Felix.         Felix        had    been

incarcerated         at     the    Rockingham        County    Jail      with    this     inmate

following his arrest on the superseding indictment.                                   The inmate

revealed that he and other inmates had given Felix their PIN

numbers       so     that    Felix      could    make      calls      from      jail     without

detection.         The government obtained recorded conversations from

the jail and discovered that Felix had placed at least eleven

calls    from      May      2015   to   June    2015       using    other       inmates’       PIN

                                                5
numbers.     Felix spoke with Smith on nine of those calls, and the

conversations      provided       evidence          of   a    witness-tampering         scheme

between Felix, Edlind, and Smith--information that Edlind and

Smith did not disclose during their May 2015 interviews with

federal law enforcement.

                                               C.

      Because      this    conduct       took        place       after     the     superseding

indictment, the United States began a new investigation of Felix

regarding witness tampering and obstruction of justice.                                      The

government subpoenaed Edlind and Smith to testify when the next

grand jury convened on October 6, 2015.                              Edlind’s and Smith’s

testimony      provided        further    evidence            of    the    post-superseding

indictment     witness-tampering              scheme.         The       government    promptly

disclosed    the       grand    jury    evidence         to    the      district     court   and

Defendants.

      On October 20, 2015, the government presented the grand

jury with additional testimony and physical evidence concerning

the   potential        witness-tampering            scheme     between       Felix,    Edlind,

and   Smith.       That    same        day,    the       grand     jury     returned    a    new

indictment       against       Felix      and       Edlind         on     multiple     counts,

including conspiracy to witness tamper, witness tampering, and

obstruction of justice.            The indictment also charged Edlind with

perjury    and     a    second    count        of     obstruction          of    justice     for



                                               6
allegedly      lying     during      her     grand     jury     testimony       about   her

contact with Felix.

        In   response       to   this    new       information,       Alvarado    filed   a

motion for a continuance to investigate possible prosecutorial

misconduct      at    the     October    2015       grand    jury     proceedings.      The

district court granted the continuance and set a new trial date

of December 1, 2015.               In addition, the district court invited

Defendants to file motions related to prosecutorial misconduct

after    reviewing      the      grand     jury     transcripts       disclosed    by   the

government.

                                               D.

     On November 13, 2015, Defendants filed a joint motion to

dismiss all indictments, claiming that the government abused the

October 2015 grand jury process by gathering evidence for the

superseding indictment.              Specifically, Defendants alleged that

the government called Edlind and Smith before the grand jury for

the dominant purpose of gathering additional evidence against

Defendants       on     the      superseding         indictment        and    discovering

Defendants’ evidence and trial strategy.                            The district court

denied       Defendants’         motion,       finding       that     no     prosecutorial

misconduct occurred.

     The      district      court    nevertheless           limited    the    government’s

use of October 2015 grand jury evidence at the upcoming trial on

the superseding indictment.                 The district court concluded that

                                               7
the government could not (1) call Edlind or Smith to testify in

its case-in-chief as to any subjects covered in their October 6,

2015, grand jury testimony, nor could it (2) use their grand

jury testimony for any purposes at trial--including to impeach

Edlind or Smith, if Defendants called them as witnesses.

      The    district      court        based    its   remedy       on    a        “unique

combination      of     circumstances,”            which     it     found          to     be

“fundamentally unfair.”            J.A. 460.        First, the district court

found that several lines of questioning extended beyond the new

witness     tampering      and     obstruction      charges       into    allegations

underlying     the    original      charges.        J.A.     458.        Second,         the

district    court     cited      “the   ongoing     delay”    occasioned           by    the

second    continuance,      sought      by   the   government,      and     the         third

continuance,     sought       by   Defendants.         J.A.       459.        It        bears

repeating     that    in   addition       to     expressly    finding      that         “the

government’s examination of Edlind and Smith did not go so far

as to constitute misconduct,” J.A. 455, the district court also

did   not     hold    that       the     government     engaged      in       bad-faith

questioning or abused the grand jury process.

      The government appeals the district court’s order pursuant

to 18 U.S.C. § 3731 and 28 U.S.C. § 1291.




                                             8
                                      II.

     On appeal, the government argues that the district court

abused    its    discretion   by   sanctioning    the   government     without

finding prosecutorial misconduct.            According to the government,

in the absence of such a finding, an evidentiary exclusion will

never     lie.      Defendants     counter     that   the   district    court

justifiably fashioned a limited evidentiary remedy to address

fundamental unfairness.

     This court reviews a district court’s evidentiary rulings

for abuse of discretion.           United States v. Hedgepeth, 418 F.3d

411, 418–19 (4th Cir. 2005).               Although this standard accords

deference to the district courts, it does not insulate them from

review.    A district court abuses its discretion when it (1) acts

“arbitrarily, as if neither by rule nor discretion,” (2) fails

to “adequately . . . take into account judicially recognized

factors constraining its exercise” of discretion, or (3) rests

its decision on “erroneous factual or legal premises.”               James v.

Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

     We find that the district court abused its discretion in

this case.       District courts have the supervisory duty to ensure

that the grand jury “process is not abused or used for purposes

of oppression or injustice.”          United States v. U.S. Dist. Court

for S. Dist. of W. Va., 238 F.2d 713, 722 (4th Cir. 1956).                 But

a district court must provide a sufficient explanation for its

                                       9
decisions in furtherance of that duty to provide a meaningful

basis for review. See Jacobson, 6 F.3d at 239–40.                     That is what

the district court failed to do here.                  As we explain below, its

stated reasons do not comport with our precedent or the facts of

record,    and   its     conclusion      regarding       “fundamental       fairness”

provides    no      legal      standard         by     which     to   measure      the

appropriateness of the evidentiary exclusion.

     We nevertheless reject the government’s argument that the

district court may never exclude grand jury evidence except as a

sanction for prosecutorial misconduct.                   The absence of such a

finding,    however,        makes   it    particularly         incumbent    upon   the

district    court      to   explain      both    the    reasoning     for    and   the

parameters of any exclusion of evidence derived from grand jury

proceedings.

     We begin by considering our precedent on grand jury abuse.

We then consider the district court’s stated reasons for the

evidentiary exclusion in light of that precedent.                     And finally,

we address the government’s argument for a categorical rule.

                                          A.

     Under our precedent on grand jury abuse, this court adheres

to “the universal rule” that prosecutors cannot use grand jury

proceedings for the “sole or dominant purpose” of preparing for

trial on an already pending indictment.                   United States v. Moss,

756 F.2d 329, 332 (4th Cir. 1985).                   For example, the government

                                          10
may not use the grand jury to improve its case in an already

pending trial by preserving witness statements, locking in a

witness’s    testimony,              pressuring         potential       trial       witnesses      to

testify favorably, or otherwise employing the grand jury for

pretrial discovery. See id. at 331–32 (collecting cases).                                           In

short,     “once     a     criminal          defendant          has     been     indicted,        the

Government is barred from employing the grand jury for the ‘sole

or dominant purpose’ of developing additional evidence against

the defendant.”            United States v. Bros. Constr. Co. of Ohio,

219 F.3d     300,        314        (4th    Cir.        2000)(quoting          Moss,       756   F.2d

at 332).     A district court has discretion to take appropriate

remedial action where it finds grand jury abuse in the form of

an   improper      sole        or    dominant       purpose.          See    United     States      v.

Brinkman, 739 F.2d 977, 980 (4th Cir. 1984).                                Here, the district

court did not find an improper sole or dominant purpose, but

nevertheless         determined            there        was     a     need     to     fashion      an

evidentiary remedy based on perceived fundamental unfairness.

       However,       to        protect       the         grand       jury’s        investigative

function,    this        court       has    repeatedly          recognized          that    district

courts should refrain from intervening in the grand jury process

absent   compelling            evidence      of     grand      jury     abuse.         See,      e.g.,

Moss, 756 F.2d at 331–32.                    Defendants alleging grand jury abuse

bear   the   burden        of       rebutting       the       “presumption       of     regularity

attache[d]      to    a    grand           jury’s       proceeding.”            Bros.       Constr.,

                                                   11
219 F.3d      at   314     (quoting        Moss,     756     F.2d    at    332).           This

presumption is further strengthened where, as here, a grand jury

returns new indictments with additional charges or defendants.

See   Moss,      756   F.2d    at    332–33.        Indeed,     some      of    our   sister

circuits have gone so far as to hold that the government has an

automatic safe harbor when the superseding indictment adds new

charges or new defendants.                 See, e.g., United States v. Flemmi,

245 F.3d 24, 30 (1st Cir. 2001).

      Although our circuit has not applied such a per se rule,

the   fact     that    new     indictments         issued     is     a    circumstance       a

district      court    should        factor      into   its    overall         analysis      as

militating in favor of the government, not just in determining

the dominant purpose of the grand jury proceeding, but also in

crafting an evidentiary remedy.                  “The function of the grand jury

is to inquire into all information that might possibly bear on

its   investigation        until     it    has     identified       an   offense      or   has

satisfied     itself     that       none   has     occurred.”        United      States     v.

R. Enters.,        Inc.,      498     U.S.       292,   297     (1991).           Such       an

investigation requires broad and thorough examination of grand

jury witnesses.          United States v. Dionisio, 410 U.S. 1, 12–13

(1973).

      When there is a pending indictment, grand jury witnesses

often     have     information         pertinent        to    both       already-indicted

charges and new charges.                   The grand jury is not required to

                                              12
disregard the former when investigating the latter.                        “Lacking

clairvoyance, grand juries must be allowed to investigate freely

individuals      suspected     of   involvement      in     crimes       for    which

indictments have already been issued.”               Moss, 756 F.2d at 332.

An already-indicted defendant is not insulated from a grand jury

investigation     into   new    offenses    committed       after    the       initial

indictment.      Id. at 331–32.       A grand jury in such a situation

must perform the same broad and thorough investigation required

of all grand juries.         See Blair v. United States, 250 U.S. 273,

282    (1919)   (“As   has   been   said   before,    the     identity         of   the

offender, and the precise nature of the offense, if there be

one,   normally    are   developed    at    the    conclusion       of   the    grand

jury's labors, not at the beginning.”).                A district court has

some supervisory authority over these proceedings, but it should

not restrict grand jury evidence arising out of “a good-faith

inquiry   into    charges    that   are    not    covered    in   the     [initial]

indictment.”      Bros. Constr., 219 F.3d at 314.

                                      B.

       In light of this precedent, we next examine the district

court’s proffered reasons for its exclusion of evidence remedy:

(1) the scope of questions asked at the October 2015 grand jury

proceeding and (2) “ongoing delay” occasioned by the second and

third trial continuances.           We are compelled to conclude that

neither reason justifies the district court’s remedy.

                                      13
                                           1.

      Part of the perceived necessity for a remedy arose from the

district court’s finding that “a not-insignificant portion of

the   questions      asked   at    the    October        grand     jury      session      went

beyond the subject of witness tampering and obstruction, and

delved into information probative to the underlying charges.”

J.A. 458.       The district court also noted that “questions asked

about conversations between the witnesses and defense counsel

[were]     of   particular        concern.            Because      so     many      of     the

government’s questions addressed issues closely intertwined with

the   underlying     charges,      including         a   potential       trial      defense,

some evidentiary restriction [was] needed.”                      J.A. 458.

      The reasoning underlying the district court’s observations

is obscure and does not provide a basis upon which appellate

review   can    be   conducted.          The    opinion       fails     to    explain      the

relevance of the fact that the government’s questioning may have

been “closely intertwined with the underlying charges” to the

determination of whether the questions arose out of “a good-

faith    inquiry     into    charges      that       [were]    not      covered      in    the

indictment.”         Bros.    Constr.,         219    F.3d    at   314.        Uncovering

evidence    against    an    already-indicted            person      does     not   provide

ipso facto evidence that the government failed to conduct its

questioning in good faith.                Moss, 756 F.2d at 332.                    In this

regard, the district court’s opinion fails to explain how it

                                           14
factored the issuance of the new indictments into its analysis

of any ground for an evidentiary remedy.     Again, broader lines

of questioning help determine what charges are appropriate, and

which suspects should be tried.      R. Enters., 498 U.S. at 297.

Incidental benefits alone cannot justify exclusion of grand jury

evidence.   See Moss, 756 F.2d at 332; United States v. (Under

Seal), 714 F.2d 347, 350 (4th Cir. 1983).      The district court

abused its discretion when it based its evidentiary exclusion

partially on the grounds that some questions “seem[ed] to stray

far afield of the new allegations,” J.A. 455, without providing

a legal justification for so doing. 1

                                2.

     The district court also stated that the delay occasioned by

two of the trial continuances supported its evidentiary remedy.

J.A. 459–60.   But like the discussion about the scope of the


     1  Furthermore, the district court’s reliance on Brothers
Construction as authority to the contrary is misplaced.     Like
the district court in our case, the district court in Brothers
Construction limited evidentiary use of some testimony without
finding prosecutorial misconduct. 219 F.3d at 313–14. However,
in Brothers Construction, these evidentiary rulings were not at
issue on appeal.     Moreover, the district court in Brothers
Construction did not explain the legal basis for its evidentiary
rulings, and the only other reference to these rulings occurs in
a trial transcript.    J.A. 458 n.3.   Likewise, that transcript
also fails to offer legal justification for the district court’s
exclusion, noting only that the district court planned to
exclude    some  evidence.      One  district   court’s  legally
unsubstantiated remedy does not justify another district court’s
legally unsubstantiated remedy.


                                15
government’s questioning, we cannot discern from the district

court’s opinion how the government’s conduct in relation to the

continuances supported the district court’s remedy.

       The first cited continuance resulted from the government’s

emergency motion in June 2015.              The district court noted that

this   continuance   caused     the   delay    that   required   Alvarado    to

obtain new counsel.       However, as we have noted, Defendants were

released   from   jail    to   minimize     any   adverse   effect   on   them.

Moreover, while the district court is responsible for balancing

prejudice to defendants in granting a continuance, United States

v. LaRouche, 896 F.2d 815, 823–25 (4th Cir. 1990), the district

court here found that granting the continuance would be in the

interest of justice.           The district court must explain why a

delay it found fully justified at the time, now supports an

evidentiary remedy.

       The district court further stated that “[i]n granting the

government’s motion for a continuance in June, the court did not

expect that the government would undertake to develop additional

evidence for use at trial.”           J.A. 460.    This statement, too, is

perplexing; how it relates to Defendants’ claims of grand jury

abuse is not clear.       The district court did not explicitly state

that the government used the October 2015 grand jury hearing to

develop    additional     evidence      for    already-indicted      offenses;

indeed,    in   finding   neither     prosecutorial    misconduct     nor   bad

                                       16
faith the district court suggests to the contrary.                                    We fail to

see,     and     the       district          court       fails      to   explain,          how    the

government’s preparation for trial otherwise has any bearing on

the district court’s conclusion that an evidentiary exclusion

was required.

       The     only       other       motion      for    a    continuance          cited    by   the

district       court       as     a    basis       for       its    evidentiary       remedy       is

Alvarado’s.           J.A. 459–60.             To justify reliance on Alvarado’s

motion for a continuance to impose evidentiary sanctions on the

government, the district court attributes the impetus for the

motion to the October 2015 indictment.                             This rationale fails for

the same reason that the government’s motion for a continuance

does: the district court does not explain how the government

engaged in anything other than a good-faith inquiry into new

charges.       Citing the indictment alone for evidence of grand jury

abuse directly contradicts our prior holding that an indictment

provides strong evidence of a proper purpose.                                      See Moss, 756

F.2d at 332–33.

       In the absence of a tenable explanation we are left to

infer     that        the       district          court       perceived        a     pattern      of

questionable behavior on the part of the government motivating

the    delay.         However,         the     district       court      did   not    explicitly

detail       such     a     finding,         or    for       that     matter       specify       what

government conduct was impermissible.                              This court will not read

                                                   17
between      the      lines     to    affirm       an     order       that       affects    the

independence accorded to the grand jury’s investigative process.

If   new    evidence     came    to    the   district       court’s          attention     that

prosecutorial         misconduct       or    bad        faith     contributed         to   the

circumstances         causing     either     continuance,             then    the    district

court    must    state    so    in    its    opinion.           See   In     re   Grand    Jury

Subpoena,       175   F.3d     332,   337–38       (4th    Cir.       1999)(finding        that

timing of events could be one factor a district court considers

in deciding whether sufficient prosecutorial misconduct exists

to justify quashing a grand jury subpoena).                           The district court

abused its discretion in citing delay as a justification for its

remedy without explaining how the delay related to alleged grand

jury    abuse      and   why     a    remedy      of    evidentiary          exclusion     was

appropriate.

                                             C.

        On appeal the government not only argues that the district

court lacked a justification for its remedy, but also takes the

further step of urging us to hold that a district court has no

power to issue a remedy when it finds a proper dominant purpose.

Although     the      Fourth    Circuit      has    not    squarely          confronted     the

issue, at least one other circuit has taken such a stance.                                  See

United States v. US Infrastructure, Inc., 576 F.3d 1195, 1215

(11th Cir. 2009) (rejecting the defendants’ claims of grand jury

abuse      “[b]ecause     the    government        did    not     use      the    grand    jury

                                             18
‘primarily’    to    obtain   evidence”         related     to    prior      indictments

where most of the questioning related to new charges).

      We nevertheless decline to adopt the government’s position.

Our    precedent     “forbids”      the        government        from     engaging    in

impermissible questioning during a grand jury proceeding.                             See

In    re   Grand    Jury   Proceedings         No.   92-4,       42   F.3d    876,    878

(4th Cir. 1994) (“This prohibition bars, inter alia, grand jury

requests that amount to civil or criminal discovery, as well as

arbitrary,     malicious,      or     harassing           inquiries.”         (internal

citation omitted)).        We are not prepared to say that there could

be no circumstances in which the government has undertaken a

line of questioning that falls just short of impermissibility

but nevertheless calls for some remedial action.                          See id.; see

also United States v. Doe, 455 F.2d 1270, 1276 (1st Cir. 1972).

District courts must be vested with some discretion to remedy

conduct they find troubling even if the conduct does not rise to

the level of misconduct.         A defendant claiming grand jury abuse

faces an uphill climb, but this court will not render the hill

insurmountable.

      It is simply that, on these facts, the district court has

provided us with no navigational aids.                Where the district court

cannot conclude the government employed the grand jury for an

improper     sole    or    dominant   purpose,         it    becomes         even    more

incumbent upon the district court to state with particularity

                                          19
what    it   found    troubling,     and    how        it   tailored     its    remedy   to

correct that finding.             Otherwise such exclusions risk chilling

proper uses of the grand jury.

        The instant case presents an apt example.                        The nature of

questioning       for    a   grand       jury    investigating          obstruction       of

justice      or   witness    tampering          will    necessarily       require     some

inquiry into the facts of the underlying, ongoing case.                             As the

district     court      itself   recognized,       “questions          that    touched    on

Edlind’s      and     Smith’s    prior     contact          with   Alvarado,      [Felix]

Chujoy, and [Gladys] Chujoy have a credible relationship with

the new allegations of witness tampering.”                      J.A. 455.       It is for

this reason that the district court found that Defendants had

not met their heavy burden of demonstrating “that the government

questioned Edlind or Smith with the sole or dominant purpose of

preparing for trial on the superseding indictment.”                             J.A. 457.

The record supported this conclusion.

        Yet the district court continued, finding it “necessary to

fashion an appropriate evidentiary remedy.”                        J.A. 457.        But to

fashion an appropriate remedy the district court must identify

with    specificity       what    troubling        circumstances         justified       its

evidentiary         exclusion,     and     how     it       narrowly     tailored     that

exclusion to prevent sweeping up evidence that arose from good-

faith     questioning.           Holding    otherwise          would     disregard       the

principle that “the law presumes, absent a strong showing to the

                                           20
contrary, that a grand jury acts within the legitimate scope of

its authority.”       R. Enters., 498 U.S. at 300.



                                         III.

      What undergirds our decision today is the presumption of

regularity attached to grand jury proceedings.                    In cases like

the   present    one,      the    fact    that    a   challenged       grand     jury

proceeding returns new indictments renders this presumption even

stronger.     This court will not affirm an order overriding that

presumption     on   the   basis    of    mere   concerns     divorced    from   any

recognized legal justification.

      Therefore,      we   hold    that    the   district     court    abused    its

discretion.      On    remand,     the    district    court   should     allow   the

government to use Edlind’s and Smith’s grand jury testimony or

explain with specificity both the legal basis for its exclusion,

and how its sanction is narrowly tailored to that concern.                        For

the reasons stated above, we vacate the order and remand for

further proceedings not inconsistent with this opinion.



                                                            VACATED AND REMANDED




                                          21
