Judge Richard Arcara
A superseding indictment charged Lighten and codefendant Gross with cocaine-trafficking. The case was before district court for de novo review of a magistrate judge’s report recommending denial of defendants’ joint motion to dismiss the initial indictment on the ground that a federal agent gave false testimony to the grand jury. Denying defendants’ objections, and adopting the magistrate judge’s report, the court denied dismissal. Discussing the U.S. Supreme Court’s 1992 ruling in United States v. Williams, it concluded that although the agent and the prosecutor who presented defendants’ case to the grand jury may have behaved ineptly in handling an apparently simple narcotics presentation, there was no showing of intentional conduct by them violating a Federal Rule of Criminal Procedure, a statute, or a constitutional guarantees during the grand jury presentation. Defendants alleged no errors in the grand jury proceedings leading to the superseding indictment’s return, nor did they allege the grand jury was tainted by the earlier false testimony. Thus, under FRCP 52, the court found that “defects in instituting the prosecution” rendered harmless, for Rule 12(b)(3)(A) analysis purposes, by the superseding indictment’s return.
