to Reform the Federal Grand Jury
Power to Harm
Representative Henry Hyde (R-Ill.), Chairman of the U.S. House Judiciary Committee, recognized the problem in statements supporting his important legis- lation of 1997, to permit motions for at least some recoupment of cost by individ- ual and small business victims of “bad faith, vexatious or frivolous” federal pros- ecutions: “[Some federal prosecutions are] not just wrong, but willfully wrong, frivolously wrong. They [federal prosecutors] keep information from you that the law says they must disclose. They suborn perjury.” The legislative history accom- panying the statute notes that the current federal grand jury does not protect citi- zens from a wrongful indictment and prosecution by the prosecutor in charge of that body. The Conference Committee specifically notes that a finding of probable cause by a federal grand jury does not insulate the government from a judicial finding of a bad faith, vexatious, or frivolous prosecution. 7 The first successful Hyde Amendment case was United States v. Holland , in the Eastern District of Virginia. 8 The case involved a Virginia state senator (Richard J. Holland) and his small-town bank, in which federal “banking regula- tors . . . took a small-time, technical violation that usually goes unchallenged and grew it into a 31-count indictment against [Senator Holland] and his son.” 9 Presiding Judge Morgan threw out the case at trial — “virtually unheard of in the Eastern District of Virginia.” 10 In explaining to the jury his reasoning for finding the Hollands not guilty, the judge noted how the prosecution had picked and chose “only what it wanted from grand jury testimony” and had “ignor[ed] conflicting testimony and evidence.” 11 Similar is the case of the first Hyde Amendment motion filed, U.S. v. Hogge , in the Southern District of Texas — a case involving a former sales vice president of a now-defunct defense contractor, indicted for conspiring to defraud the U.S. Army. An FBI agent had assured Sharon Hogge that investigators were not focused on her. So, Ms. Hogge spoke freely with federal agents, pointing them to addresses where they found company records. She took notes during her conversations with agents, transcribing the words reflecting the agents’assurances to her like: “no ambush,” and repeatedly scribbling, “I am not a criminal target.” 12 Yet, when federal prosecutors convened a grand jury investigation into the company’s suspected over-billing of the Defense Department, they added Ms. Hogge to the target list and easily obtained an indictment against her — despite the fact that as a sales vice president, she did not bill the Army or even handle an inventory. She learned she had been indicted when her husband woke her one Saturday morning in 1996 and stuck a newspaper in her face. Prosecutors pushed their shoddy case to trial. There, the government’s case fell apart. Federal judge Hoyt criticized the prosecutor for trying to “make a crim- inal case out of a dispute over an accounting principle.” He added: “I don’t see any evidence suggesting . . . that Sharon Hogge should be charged in any of these counts” [against the company’s executives].” 13 Still, during the course of the pros- ecution, Ms. Hogge miscarried twice from the stress of the ordeal, considered sui- cide, and for the first time in her life, had to start seeing a psychologist. 14 Ms. Hogge was unsuccessful in her Hyde Amendment motion for fee and cost reim- bursement for the ordeal, because the final order dismissing the case against her
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