245 F.3d 24 (1st Cir. 2001)
UNITED STATES OF AMERICA, Appellant,v.STEPHEN J. FLEMMI, Defendant, Appellee.
No. 00-1968
United States Court of Appeals  For the First Circuit
Heard February 8, 2001Decided March 30, 2001

Elizabeth D. Collery, Attorney, United States Dep't of Justice,  with whom Donald K. Stern, United States Attorney, Fred M. Wyshak, Jr., Brian T. Kelly, and James D. Herbert, Assistant United States  Attorneys, were on brief, for appellant.
Kimberly Homan, with whom Sheketoff & Homan, Kenneth J. Fishman,  and  Fishman, Ankner & Horstmann were on brief, for appellee.
Before  Selya, Lynch and Lipez,  Circuit Judges.
SELYA, Circuit Judge.


1
Stephen J. Flemmi, one of Boston's  most notorious gangsters, served surreptitiously as an informant for  the Federal Bureau of Investigation (FBI).  In the end, however, there  was a falling-out and the government indicted him.  This appeal,  brought pursuant to 18 U.S.C. § 3731 (a statute that allows the United  States, before trial, to appeal orders "suppressing or excluding  evidence"), follows on the heels of a district court order barring the  government from introducing certain evidence at Flemmi's trial.1  The  court based the suppression order on its conclusion that the  government, in obtaining the evidence, had abused the grand jury  process.  United States v. Flemmi, 108 F. Supp. 2d 39, 43 (D. Mass.  2000).  We reverse.

I.  BACKGROUND

2
The district court has done a significant public service by  bringing to light the tangled relationship between Flemmi and the FBI,  and the details of that unholy alliance make for fascinating reading. But those facts are by now old hat, e.g., United States v. Flemmi, 225  F.3d 78, 80-82 (1st Cir. 2000); United States v. Salemme, 91 F. Supp.  2d 141, 148-315 (D. Mass. 1999), and it would serve no useful purpose  to rehearse them today.  This appeal requires only that we limn the  procedural history antecedent to the suppression order.


3
The grand jury originally indicted a single defendant on  October 25, 1994.  It subsequently broadened its horizons, naming  several additional defendants, including Flemmi, in a superseding  indictment returned on January 10, 1995.  In that indictment, the grand  jury charged Flemmi with, among other things, racketeering and  racketeering conspiracy under the Racketeer Influenced and Corrupt  Organizations Act (RICO).  See 18 U.S.C. § 1962(c), (d).  To make these  charges stick, the prosecution had to prove that Flemmi engaged in a  "pattern of racketeering activity," id. § 1962(c), by participating in  the commission of no fewer than two predicate acts within a ten-year  time frame, id. § 1961(5).  Those predicate acts had to constitute  crimes of the type specifically enumerated in the statute.  Id. §  1961(1).


4
To pave the way for this showing vis-a-vis Flemmi, the first  superseding indictment designated fifteen predicate acts:  one that  involved attempted murder, one that involved suborning perjury, and  several others that involved gambling or extortion.  This specification  was augmented when the grand jury returned a second superseding  indictment on August 1, 1995.2  The third superseding indictment,  however, was a horse of a different hue.  Because the grand jury  proceedings leading up to this indictment lie at the heart of the  district court's suppression order, we rehearse the relevant facts.


5
Even before the grand jury handed up the second superseding  indictment, the government had heard whispers that Flemmi, in  conducting his racketeering enterprise, may have participated in four  murders (dating back to 1967).  The government subsequently contacted  Hugh "Sonny" Shields (who had been acquitted, along with Flemmi, in an  earlier state court case involving one of the murders).  Although  Shields persuaded the prosecutors that he possessed salient information  about Flemmi's role in the slayings, he refused to testify unless he  received immunity.


6
The government arranged for a grant of use immunity and  hauled Shields before the grand jury in October of 1995.  His testimony  not only implicated Flemmi in all four homicides but also pointed  prosecutors to another potential witness, referred to as "John Doe No.  2."  The government brought Doe No. 2, duly immunized, before the grand  jury in November of 1995.  His testimony likewise inculpated Flemmi in  respect to the murders.


7
Word of the grand jury's renewed activity apparently leaked,  and Flemmi moved to dismiss the indictment on the ground that the  government was playing fast and loose by employing the grand jury as a  vehicle for trial preparation.  Before this motion could be  adjudicated, the grand jury returned a third superseding indictment. This indictment, handed up on May 21, 1996, added five new predicate  acts to the racketeering charges against Flemmi:  one dealing with the  rigging of horse races (a charge not at issue here) and the other four dealing with the murders.3  Flemmi responded by moving to suppress the  testimony of Shields and Doe No. 2, as well as any evidence derived  therefrom.


8
The district court quite sensibly treated Flemmi's motions  as a unit and heard oral arguments late in 1996.  The court thereupon  took the matter under advisement until July 5, 2000.  At that time, the  court concluded that the only tangible work product of the challenged  grand jury sessions -- the third superseding indictment -- did not alter  the fundamental character of the crimes charged because the added  materials did not accuse Flemmi of having committed any new federal  crime, but merely attributed more predicate acts to him.  Flemmi, 108  F. Supp. 2d at 41-43.  This rendered unavailable a safe harbor that the  government had sought to reach and set the stage for further inquiry. The court conducted that further inquiry and found that the government  had used the grand jury process in the fall of 1995 and thereafter  principally for trial preparation, that is, as a means to "compel and  freeze the otherwise unavailable testimony" of Shields and Doe No. 2. Id. at 42.


9
In reaching the conclusion that the safe harbor for "new  charges" was unavailable, the court relied on a double jeopardy  analysis that indicated, to its satisfaction, that the offenses charged  in the second and third superseding indictments were precisely the  same.  Id. at 57-60.  This meant, the court reasoned, that the  embellishments to the indictment were no more than additional evidence  of the felonies with which Flemmi already had been charged.  Id. at 60. Deploying the grand jury as a mechanism for collecting such  information, the court ruled, constituted trial preparation (and,  accordingly, sufficed to ground a finding of abuse).  Id. at 62  (suggesting that the inclusion of additional predicate acts did no more  than "impermissibly strengthen[] already-existing charges").  Deeming  suppression a condign remedy, the court granted Flemmi's motion to  exclude the evidence gleaned from Shields and Doe No. 2.

II.  STANDARD OF REVIEW

10
Claims of grand jury abuse raise a unique set of concerns. The relevant inquiry, strictly speaking, is neither a pure question of  fact nor a pure question of law.  In re Grand Jury Proceedings  (Fernandez Diamante), 814 F.2d 61, 71 (1st Cir. 1987).  To the  contrary, the inquiry most often comprises a hybrid in that it  typically involves an "application of a legal standard designed to  ensure that the grand jury, a body operating peculiarly under court  supervision, is not misused by the prosecutor . . . ."  Id. (quoting In  re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767  F.2d 26, 29 (2d Cir. 1985)).


11
Given this reality, appellate tribunals have crafted an  intermediate standard of review for evaluating district court orders  accepting or rejecting claims of grand jury abuse.  Under that  standard, we accord respect to the lower court's findings, but  scrutinize them somewhat less deferentially than we would if either the  traditional "abuse of discretion" or "clearly erroneous" rubric  applied.  See United States v. Leung, 40 F.3d 577, 581 (2d Cir. 1994); Fernandez Diamante, 814 F.2d at 71.  This intermediate level of  appellate scrutiny is akin to what we have in other contexts termed  "independent review."  E.g., United States v. Tortora, 922 F.2d 880,  882-83 (1st Cir. 1990) (describing independent review as "an  intermediate level of scrutiny, more rigorous than the abuse-of-discretion or clear-error standards, but stopping short of plenary or de novo review," and deeming such review appropriate for appellate  oversight of pretrial detention orders).

III.  ANALYSIS

12
Although the grand jury operates under judicial supervision,  it is essentially an independent institution.  In recognition of this  status, courts afford grand jury proceedings a presumption of  regularity.  United States v. Johnson, 319 U.S. 503, 513 (1943).  This  presumption attaches even after the grand jury has returned an initial  indictment.  After all, superseding indictments setting forth new  charges or adding new defendants are familiar fare.  E.g., United  States v. Melendez, 228 F.3d 19, 21 (1st Cir. 2000) (superseding  indictment added two new defendants); United States v. Pena-Lora, 225  F.3d 17, 23 (1st Cir. 2000) (superseding indictment set forth new  charges); United States v. Bender, 221 F.3d 265, 267 (1st Cir. 2000)  (superseding indictment added two counts); United States v. Li, 206  F.3d 56, 59 (1st Cir. 2000) (en banc) (superseding indictment added  four new defendants).  It follows logically that, as a general rule,  "evidence obtained pursuant to [an ongoing grand jury] investigation  may be offered at the trial on the initial charges."  Leung, 40 F.3d at  581.


13
Notwithstanding the presumption of regularity, prosecutors  do not have carte blanche in grand jury matters.  However, a party  asserting a claim of grand jury abuse must shoulder a heavy burden. See id.; United States v. Badger, 983 F.2d 1443, 1458 (7th Cir. 1993); United States v. Jenkins, 904 F.2d 549, 559 (10th Cir. 1990).  One way  to carry this burden is to show that the government used the grand jury  principally to prepare pending charges for trial.  See Fernandez  Diamante, 814 F.2d at 70 (explaining "that a grand jury may not conduct  an investigation for the primary purpose of helping the prosecution  prepare indictments for trial").


14
This proposition is more simply stated than applied.  While  it is easy to say that the court's inquiry must focus on the primary  purpose underlying the grand jury's involvement, there is a fine line  between an improper "trial preparation" use of a grand jury and a  proper "continuing investigation" use.  This fine line is difficult to  plot and, in most instances, determining whether a prosecutor has  overstepped it will depend on the facts and circumstances of the  particular case.


15
To assist in the inquiry, courts have devised certain  proxies.  Thus, if a grand jury's continuing indagation results in the  indictment of parties not previously charged, the presumption of  regularity generally persists.  United States v. Gibbons, 607 F.2d  1320, 1328-29 (10th Cir. 1979).  So too when the grand jury's  investigation leads to the filing of additional charges against  previously indicted defendants.  In re Grand Jury Proceedings  (Johanson), 632 F.2d 1033, 1041 (3d Cir. 1980).  These are purposes  befitting the accepted institutional objectives of the grand jury, and  their presence bears convincing witness to the propriety of the  prosecutor's stewardship.  See United States v. Sasso, 59 F.3d 341,  351-52 (2d Cir. 1995); In re Maury Santiago, 533 F.2d 727, 730 (1st  Cir. 1976); United States v. Dardi, 330 F.2d 316, 336 (2d Cir. 1964).


16
Cognizant of this line of cases, the court below concentrated  on whether the third superseding indictment -- which admittedly haled no  new parties into court -- altered the nature of the charges previously  lodged against Flemmi.  The court concluded that the indictment charged  no new crime.  Flemmi, 108 F. Supp. 2d at 42.  Laying that potential  proxy to one side, the court then found that the raison d'etre for the  ongoing grand jury investigation was trial preparation, specifically,  what the court believed was the government's desire to bolster its  existing case by memorializing the testimony of Shields and Doe No. 2. Id.


17
The district court's finding of improper purpose flowed from,  and depended upon, its finding that the third superseding indictment  did not charge a new offense.  See id. at 62.  But the court based the  underlying finding on a double jeopardy analysis.  See id. at 57-60. It asked, in effect, whether Flemmi would be protected from prosecution  under the charges laid in the third superseding indictment had he  previously been tried under the second.  See id. at 61-62.  Answering  that query affirmatively, the court concluded that the two indictments  necessarily charged the same offenses.  See id.


18
This approach is innovative, but unsound.  The Double  Jeopardy Clause "embodies a triumvirate of safeguards:  It protects  against a second prosecution for the same offense after acquittal.  It  protects against a second prosecution for the same offense after  conviction.  And it protects against multiple punishments for the same  offense."  United States v. Ortiz-Alarcon, 917 F.2d 651, 653 (1st Cir.  1990) (citation omitted).  When, as now, the question is whether the  prosecutor's evidence-gathering constituted an abuse of the grand jury,  none of these concerns is implicated.  The jurisprudence of the Double  Jeopardy Clause is therefore inapposite, and we eschew the lower  court's misplaced reliance on it.  The appropriate method of analysis  is more straightforward.


19
This case turns on whether the facts, viewed objectively,  reveal a proper justification for the government's continued resort to  the grand jury.  In the circumstances at hand, that analysis, as the  district court recognized, centers on the grand jury's work product and  requires a frank comparison of the charges contained in the third  superseding indictment and those contained in the immediately preceding  indictment.  At this juncture, however, we part company with the lower  court; that contrast should take place not by means of a mechanical  invocation of double jeopardy principles, but with an eye toward  determining whether the new matter contained in the later indictment,  assayed in a practical, commonsense manner, demonstrates that the  government's ongoing use of the grand jury was primarily for a proper  purpose.


20
Here, the results of the comparison are telling.  As said,  accusations of grand jury abuse can be conclusively rebuffed by a  showing that the challenged proceedings led to the joinder of new  defendants or the inclusion of new charges.  E.g., Johanson, 632 F.2d  at 1041; Gibbons, 607 F.2d at 1328-29.  Here, the resumed grand jury  proceedings led to the inclusion in the indictment of material that  both added new RICO predicate acts and increased the maximum penalty to  which Flemmi was exposed.  This is analogous to a superseding  indictment that adds a new charge -- a permissible use of a grand jury  that yields a sufficiently substantial change to defeat an accusation  of grand jury abuse.  We explain briefly.


21
Adding the four predicate acts of murder to the RICO counts  fundamentally altered the character of the indictment not only because  their inclusion contemplated new proof but also because their inclusion  increased the maximum sentence that could be imposed upon Flemmi in the  event of a guilty verdict.  A person convicted of a RICO violation  ordinarily "shall be . . . imprisoned not more than 20 years."  18  U.S.C. § 1963(a).  If, however, "the violation is based on a  racketeering activity for which the maximum penalty includes life  imprisonment," then the maximum available penalty stretches to life. See id.  The measurement is restricted to those predicate acts charged  in the body of the indictment.  See United States v. Carrozza, 4 F.3d  70, 81 (1st Cir. 1993).4


22
In this case, the previous versions of the indictment  specified no predicate act that carried a potential sentence of life  imprisonment.  A murder committed in Massachusetts at the relevant time  (and today, for that matter) carries such a penalty.  See Mass. Gen.  Laws ch. 265, §§ 1, 2 (1959).  Thus, the insertion of the murders as  predicate acts in the third superseding indictment effectively raised  the stakes by increasing the statutory maximum applicable to the  existing RICO charges against Flemmi from twenty years to life.  To  that extent, the indictment entailed greater jeopardy.  Cf. Apprendi v. New Jersey, 120 S. Ct. 2348, 2365 n.19 (2000) (declaring in a related,  but not identical, context that any fact that increases the defendant's  exposure beyond the prescribed statutory maximum "is the functional  equivalent of an element of a greater offense").


23
This set of circumstances puts to rest any notion that the  government was abusing the grand jury process.  Since the third  superseding indictment contained charges analogous to a new offense,  the investigation leading to it constituted a proper use of the grand  jury.5  Any different result would unfairly hamstring the government in  its pursuit of legitimate law enforcement objectives.


24
Let us be perfectly clear.  We agree with Flemmi that the  appropriate inquiry is a matter of substance, not form.  A prosecutor's  renewed resort to the grand jury for evidence-gathering purposes cannot  be validated simply by having the grand jury return any old superseding  indictment.  If, say, a superseding indictment merely corrects  peripheral details or adds something trivial to the pending charges, an  inquiring court has every right to be skeptical.  But when the new  indictment charges new crimes, adds new defendants, or otherwise works  a major change in the prior indictment that is sufficiently analogous,  for these purposes, to charging new crimes or adding new defendants, it  adequately evinces the propriety of the prosecutor's purpose and thus  becomes a safe harbor for the government.

IV.  CONCLUSION

25
We need go no further.  Because the third superseding  indictment was sufficiently analogous to the lodging of a new criminal  charge, we conclude that no abuse of the grand jury process occurred. Since the district court's decision suppressing the testimony of  Shields and Doe No. 2 (and the fruits thereof) rests on a contrary  premise, it cannot stand.


26
Reversed.



Notes:


1
 This is the second interlocutory appeal in this case.  On an  earlier occasion, we reversed a different suppression order.  SeeUnited States v. Flemmi, 225 F.3d 78 (1st Cir. 2000).


2
 This indictment dropped two defendants, added a new defendant,  left intact the charges previously lodged against Flemmi, and tagged  him with three more predicate acts based on alleged extortions.


3
 The government did not seek to indict Flemmi for the crime of  murder because there is no federal statute that can be applied to the  1967 slayings without violating the Ex Post Facto Clause.  This fact,  however, does not prohibit reference to the slayings as predicate acts  in connection with the RICO counts.  See United States v. Brown, 555  F.2d 407, 416-17 (5th Cir. 1977) (upholding, against constitutional  challenge, government's use of predicate acts occurring prior to RICO's  effective date in conjunction with predicate acts occurring after that  date).


4
 To be sure, a sentencing judge may consider uncharged predicate  acts in a RICO case, e.g., Carrozza, 4 F.3d at 80, but the judge  nonetheless must stay below the maximum penalty allowed under the  charges delineated in the indictment and submitted to the jury.  SeeApprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000); United States v. Robinson, 241 F.3d 115, 120-21 (1st Cir. 2001) see also Carrozza, 4 F.3d at 81 (acknowledging that "the  statutory maximum sentence must be determined by the conduct alleged  within the four corners of the indictment").


5
 Although the district court rejected this line of reasoning, seeFlemmi, 108 F. Supp. 2d at 60-61, it did so without any party having  cited to it the Supreme Court's hot-off-the-presses Apprendi decision  -- and Apprendi undermines the district court's rationale for rejection. See Apprendi, 120 S. Ct. at 2354.


