Midland Asphalt Corporation v. United States

PETITIONER: Midland Asphalt Corporation
RESPONDENT: United States
LOCATION: Wards Cove Packing Co.

DOCKET NO.: 87-1905
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 489 US 794 (1989)
ARGUED: Jan 17, 1989
DECIDED: Mar 28, 1989

Lawrence S. Robbins - on behalf of the Respondent
Richard James Braun - on behalf of the Petitioners

Facts of the case


Media for Midland Asphalt Corporation v. United States

Audio Transcription for Oral Argument - January 17, 1989 in Midland Asphalt Corporation v. United States

William H. Rehnquist:

We'll hear argument next in No. 87-1905, Midland Asphalt Corporation v. The United States.

Mr. Braun, you may proceed whenever you're ready.

Richard James Braun:

Thank you, Mr. Chief Justice, and may it please the Court:

This case involves the pretrial appealability of decisions by district courts with respect to indictments in which a 6(e) error is involved.

We agree with the government that this case is governed by an application of Cohen.

The government has agreed with us that at least the first of the three Cohen prongs has been satisfied in that the district court decision conclusively determines the question.

The second prong of Cohen... the government disagrees that that prong is met as to whether or not the case involves an important issue separate from the merits.

The government says it does not because a 6(e) violation will, under this Court's decision in Mechanik, be merged into the merits and become harmless.

However, the government's argument assumes that the 6(e) violation did not undermine grand jury independence and therefore affect the grand jury's charging decision so as to deprive a defendant of his requirement of indictment by an independent grand jury.

That right is supported by two of this... at least two of this Court's previous cases: Stirone, which said that the purpose of the Fifth Amendment requirement of indictment by grand jury is to limit a citizen's jeopardy to offenses charged by fellow citizens acting independently, judge or prosecutor.

This case's... and this Court's subsequent decision in Dionisio that the Fifth Amendment guarantee presupposes an investigative body acting independently of prosecutor and judge and added that the Constitution cannot tolerate the transformation of the grand jury into an instrument of oppression.

That right is further supported by this Court's recent holding in Nova Scotia that if there is grave doubt that the decision to indict was free from the substantial influences of prosecutorial misconduct, the error cannot be deemed harmless and that the inquiry is into the impact of the violation on the grand jury's decision to indict.

The constitutional right to an indictment by an independent grand jury is also supported by the Second Circuit's 1983 decision in Hogan, the Ninth Circuit's 1983 decision in Sears.

6(e) violations, unlike many other procedural errors, can impact adversely on a grand jury's independence.

This Court has recognized that fact in again at least two of its previous opinions.

In the Pittsburg Plate Glass case, this Court says that... said that without secrecy, the grand jury would not be able to act with the independence required of an inquisitorial and accusatory body.

In Douglas Oll, this Court again emphasized that the proper functioning of the grand jury depends on secrecy.

The government attempts to talk about Rule 6(e) and the rule of secrecy being merely a procedural rule.

Historically, that rule going back to the Middle Ages and the English institution which our Constitution Incorporated demonstrates that the purpose of the Incorporation of... of the requirement that a citizen, person, not be required to stand trial, not be required to be held to answer except upon indictment by a grand jury was to protect persons against abuses of in England the Crown, here the government.

That's supported by Edwards, the Grand Jury written in 1906, note 4 at page 27, a Michigan Law Review article by Richard Caukins, Grand Jury Secrecy, 63 Michigan Law Review 455, 457 (1965).

William H. Rehnquist:

What sort of abuses, to be more particular, do those authorities suggest it was designed to protect the potential defendant?

From bringing him to trial without any probable cause?

Richard James Braun:


As this Court recognized in Nova Scotia where the violation has an impact on the grand jury's charging decision and therefore by implication and impact on the grand jury's independence, then the government has no right to hall a man into court.

William H. Rehnquist:

Well, when you... but you are appealing to these great historical truths about the grand jury in the time of the Stuarts and the Tudors.

And there wasn't any Rule 6(e) then.

I mean, the general idea of overreaching and so forth suggests a real breach of some sort of very fundamental idea.

Rule 6(e) and some of the other rules are very kind of detailed prescriptions as to conduct in the... in the grand jury room.

For instance, to have two witnesses in the room at the same time or to have one witness read and then another witness read without excusing one is scarcely the sort of historical overreaching that you... that those authorities are talking about, I dare say.

Richard James Braun:

Rule 6(d), the two witness in the grand jury rule... its purpose was to preserve grand jury secrecy, as Rule 6(e) more directly is.