Is the Use of a Federal Grand Jury to Pursue a Fugitive Available to the U. S. Attorney?

Joseph L. Duffy

Is the use of a federal grand jury to pursue a fugitive available to the U. S. Attorney?

In the course of fugitive investigation, law enforcement agencies frequently obtain information linking fugitives with associates, who provide a known source of information leading to apprehension and custody of the fugitive. If the associate will not cooperate with law enforcement, what alternatives are available? One method recently attempted by the U. S. Attorney has been to formalize the investigation through indictments and thus require the now subpoenaed associate to testify before a federal grand jury, leading to the whereabouts of the indicted. However, some federal courts regard this effort as an abuse and manipulation of the grand jury, and a merely a method to produce additional charges against the indicted fugitive. “It is a firmly entrenched rule that once a defendant has been indicted, a prosecutor may not use a grand jury’s investigative powers for the purpose of securing additional evidence against the defendant for use in the upcoming trial.” In re Grand Jury Proceedings, 632 F.2d 1033, 1041 (3rd Cir. 1980). Nor can a grand jury be used “solely to obtain additional evidence against a defendant who has already been indicted”. United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976). However this holding is partially contradicted in Fed. R. Crim. P. 111.1, Challenge to abuse of Grand Jury Process, where: “it would be an abuse of grand-jury process if the grand jury is used for the purpose of merely discovering or preserving testimony for use against a person who is already under indictment. But if the grand jury is making a bona fide investigation of a possible crime, the fact that the testimony thus obtained might be useful in a pending criminal action does not show an abuse of the jury process.”

According to, In re Wood, supra at 48, citing Hoffman v. United States, 341 U.S. 479, 488 (1951). “The grand jury may subpoena witnesses and records in order to locate the fugitive when a legitimate interest is involved.” What constitutes a legitimate interest? In this instance the immediate answer is harboring a fugitive. Specific guidance is found in the United States Attorneys’ Manual [“USAO Manual”], Title 9 - Criminal Division Chapter 9-11.120 B, where it is stated, “Generally, grand jury subpoenas should not be used to locate fugitives in investigation of unlawful flight to avoid prosecution.” 18 U.S.C. § 1073. However, the USAO Manual also states “If the present whereabouts of a fugitive is related to a legitimate grand jury investigation of offenses such as harboring, 18 U.S.C. § 1071-1072, 1381, ...the grand jury properly may inquire as to the fugitive’s whereabouts.” Although this guidance discourages the practice, it arguably does not prohibit the use of a grand jury to pursue fugitives by investigating the crime of harboring a fugitive. If a “legitimate” grand jury investigation of harboring a fugitive also reveals the whereabouts or information leading to the whereabouts of that fugitive, use of that information to pursue a fugitive is within the parameters of present Department of Justice policy. Further guidance is found in Susan W. Brenner & Gregory G. Lockhart, Federal Grand Jury: A Guide to Law and Practice, § 11.3.3 Apprehending fugitives:

Prosecutors cannot use the grand jury subpoena power merely to locate and arrest a fugitive. This prohibition is incorporated into an internal policy adopted by the Department of Justice. Prosecutors can use the grand jury and its subpoena power to investigate criminal charges that can be brought against a fugitive as long as they do not use the grand jury in an effort to apprehend her. They can also use grand jury subpoenas to locate a witness who has become a fugitive, or a fugitive whose testimony is pertinent to an ongoing investigation of crimes other than his/her flight from justice.

Persons harboring a fugitive are generally charged under 18 U.S.C. §1071, Concealing Person from Arrest: “Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provision of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person...” Thus the elements are:

1. A federal warrant is issued for the fugitive arrest. 2. The harborer has notice or knowledge that a warrant had been issued. 3. The harborer intends to prevent a fugitive’s discovery or arrest.

2 The elements of harboring were modified in United States v. Silva, 745 F.2d 840, 848 (4th Cir. 1984) where the court added a fourth element that the defendant actually harbored or concealed the fugitive.

Case law defining harboring remains muddled. Silva, holds that providing general financial assistance will not satisfy actual harboring or concealment. Id. at 849. In United States v. Hill, 279 F.3d 731 (9th Cir. 2002), the court held that “supplying money for the fugitive’s basic needs of food and shelter, rather than to avoid detection and apprehension, was not harboring.” Id. at 738. . United States v. Foy, 416 F.2d 940, 941 (7th Cir. 1969) stated: “Harboring is not a failure to disclose the location of a fugitive.” And according to United States v. Mitchell, 177 F.3d 236, 238 (4th Cir. 1999), harboring is not “merely lying to the police about the whereabouts of a fugitive.” Mitchell further defined “harboring a fugitive as an affirmative act” toward harboring and concealing a fugitive. Id. at 239 (emphasis added). Where “defendant attempted to close front door of his residence in which a fugitive was present as police officers tried to enter.” Id. at 239. This court viewed the conduct of closing the door on the police officer (who sustained a minor injury) as an affirmative act impeding the apprehension of the fugitive.” However contrary to earlier decisions it accepted the “physical act of providing assistance, including food, shelter, and other assistance to aid the prisoner in avoiding detection and apprehension as harboring.” Id. at 239. Mitchell “evidence that a defendant arranged for hotels and vehicles, see Stamps v. United States, 387 F.2d 993 (8th Cir. 1967), rented apartments and shopped for fugitive, see United States v. Giampa, 290 F.2d 83 (2d Cir. 1961), or provided a fugitive with false identification, see United States v. Gros, 824 F.2d 1487 (6th Cir. 1987), has been held sufficient to support a conviction under the statute.” Id. at 239.

The First Circuit court has held that a warrantless entry of defendant’s apartment and the seizure of an escaped convict hiding in a closet could not be used as evidence against the defendant in a criminal action for harboring a fugitive. United States v. Adams, 621 F.2d 41 (1st Cir. 1980). The court found that the authority to arrest the escaped convict without a warrant and without the defendant’s consent did not give officers the right to enter the defendant’s home, using the escapee’s seizure as evidence against the defendant for harboring.

3 Treatises are noted by Wayne R. LaFave et al., Criminal Procedure, § 8.8 “When a person refuses to give the police information that may assist in locating a fugitive, the prosecutor may not then seek to compel that testimony through a grand jury subpoena, absent a situation in which the grand jury has a legitimate interest in obtaining the testimony of the fugitive or in determining whether the witness has been assisted in his flight.” A case on point is In re Grusse, 402 F.Supp. 1232 (D.Conn. 1975) where the court addressed the defendants’ contention that the government was abusing the powers of the grand jury in attempting to apprehend two fugitives, whereby: [T]he claim is made that the compulsion of answers from these witnesses constitutes an abuse of the grand jury function. The witnesses allege that the Government is interested only in finding the present whereabouts of the two fugitives from the Massachusetts robbery and otherwise building its case against those fugitives. The government informed the witnesses, with the concurrence of the grand jury foreman, that the grand jury was investigating possible violations in the District of Connecticut of statutes punishing accessories after the fact, 18 U.S.C. § 3 and those who harbor fugitives, 18 U.S.C. § 1071, in connection with the Massachusetts bank robbery. The questions put to the witnesses demonstrate on their face that they properly relate to the possible violations in this District that the government represented was being pursued. That the answers might also lead to the identification of the whereabouts of two fugitives does not bar the grand jury from hearing them. Id. at 1238.

The prospective solution to using a federal grand jury to snare a fugitive, under Grusse, is to include a charge under 18 U.S.C. § 3, Accessory After the Fact, in addition to the harboring charge. That section reads, “Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” The elements under § 3 are:

1. Knowing an offense against the United States has been committed.

4 2. Assisting the offender by receiving, comforting, or relieving the offender, with the intent to hinder/prevent her apprehension/trial, or punishment.

Although Grusse has a positive cite history, it is cited in relation to government wiretaps and testimony before a grand jury and not pursuance of fugitives. Further refinement of this issue under 18 U.S.C. § 3 does not presently exist.

However, where the court stated; “[T]he government may inquire of witnesses before the grand jury as to the whereabouts of unlocated witnesses.” In re Wood, supra at 48. The court elucidated; “when a grand jury seeks the names of members of an organization who are suspected of committing crimes, the government has thereby demonstrated a compelling interest sufficient to outweigh the possibility of infringement of associational rights.” Id. at 45. Wood concluded that the government placed no burden upon the respondent’s First Amendment rights, where the government “proceeded with care, (remained) sharply focused, and that specific crimes and specific persons are under investigation.” Id. at 47.

Although case law does not show directly on point, if the U. S. Attorney convening a grand jury for the purpose of investigating a person indicted for harboring, the fugitive could be subpoenaed as a witness. Therefore if the present whereabouts of a fugitive is related to a legitimate grand jury investigation of offenses such as harboring, 18 U.S.C. § 1071-1072, the grand jury properly may inquire into the fugitive’s whereabouts.

In August of 2001, the Fugitive Apprehension Act of 2001 (S.2516) was introduced to the floor of the United States Senate. The bill would have provided the Attorney General with direct authority to subpoena witnesses for the purpose of discovering the whereabouts of a fugitive. S.2516 was referred to the Senate Judiciary Committee where no further action was noted.