United States v. Clifton Gene Gibbons (1979)

Second, he contends that the affidavit contains factual inaccuracies thereby rendering it insufficient. 1. 14 In the Fourth Amendment context, "the factor of a nighttime search is sensitively related to the reasonableness issue." United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir.1979).

E.g., United States v. Long, 176 F.3d 1304, 1307 (10th Cir.1999). 2 It is true that “[a]t common law, prior to the adoption of the Bill of Rights there was a strong aversion to nighttime searches.” United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir.1979).

See Gibbons, 607 F.2d at 1331 (“[W]e note that the jury’s ability to render a fan-verdict is indicated by its acquittal of the appellant on the conspiracy count.”).

It is well-settled that it is improper to summon a witness before the grand jury “for the sole or dominant purpose of preparing a pending indictment for trial.” Puckett, 147 F.3d at 770 (quoting United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979)).

United States v. Gibbons, 607 F.2d 1320, 1330 (10th Cir.1979). 25 As set forth, supra, at the close of the first day of trial, one of the jurors related for the first time that "I know this lady.

Carroll v. United States, 267 U.S. 132, 149 , 45 S.Ct. 280, 283-84 , 69 L.Ed. 543 (1925); Boyd v. United States, 116 U.S. 616, 622-23 , 6 S.Ct. 524, 527-28 , 29 L.Ed. 746 (1886); United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir.1979); United States ex rel.

Carroll v. United States, 267 U.S. 132, 149 , 45 S.Ct. 280, 283-84 , 69 L.Ed. 543 (1925); Boyd v. United States, 116 U.S. 616, 622-23 , 6 S.Ct. 524, 527-28 , 29 L.Ed. 746 (1886); United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir.1979); United States ex rel.

In sum, defendants effectively argue that the second superseding indictment should have been dismissed as a result of grand jury abuse on the part of the government. “[T]he grand jury process is abused when the prosecutor uses it ‘for the primary purpose of strengthening the Government’s case on a pending indictment or as a substitute for discovery, although this may be an incidental benefit.’ ” United States v. Jenkins, 904 F.2d 549, 559 (10th Cir.1990) (quoting United Stat…

The court noted for the venire that "[t]he reason there are more U.S. marshals present than most trials is that we have seven defendants on trial," and admonished that "the existence of the U.S. marshals should not be construed, interpreted by any of you as any indication that there's violence about to occur in the courtroom, or that there's anything inherently violent about these defendants or that there's anything improper about it." Appellants argue that the district cour…

The district court “has broad discretion in conducting the voir dire examination” because it “is in the best position to judge the effect which improper statements might have upon a jury.” United States v. Gibbons, 607 F.2d 1320, 1330 (1979).

United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir.1979).

United States v. Gibbons, 607 F.2d 1320, 1325 (10th Cir.1979).

United States v. Gibbons, 607 F.2d 1320, 1328-29 (10th Cir.1979).

It is well-settled that it is improper to summon a witness before the grand jury “for the sole or dominant purpose of preparing a pending indictment for trial.” Puckett, 147 F.3d at 770 (quoting United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir. 1979)).

In order to obtain reversal on this ground Gadison must establish that Mitchell was summoned before the grand jury "for the sole or dominant purpose of preparing a pending indictment for trial." United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979); see United States v. Breitkreutz, 977 F.2d 214, 217 (6th Cir.1992).

In order to obtain reversal on this ground Gadison must establish that Mitchell was summoned before the grand jury “for the sole or dominant purpose of preparing a pending indictment for trial.” United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979); see United States v. Breitkreutz, 977 F.2d 214, 217 (6th Cir.1992).

“Because the district court is in the best position to judge the effect of improper statements on a jury and the sincerity of the jurors’ pledge to abide by the court’s instructions, its assessment is entitled to great weight.” Wacker, 72 F.3d at 1467 -68 (citing United States v. Gibbons, 607 F.2d 1320, 1330-31 (10th Cir.1979); United States v. Tegzes, 715 F.2d 505, 508-09 (11th Cir.1983)).

United States v. Gibbons, 607 F.2d 1320, 1330-31 (10th Cir.1979); United States v. Tegzes, 715 F.2d 505, 508-09 (11th Cir.1983).

United States v. Gibbons, 607 F.2d 1320, 1330-31 (10th Cir.1979); United States v. Tegzes, 715 F.2d 505, 508-09 (11th Cir.1983).

Because “[w]hen a search is state in character, 'the warrant and affidavits need only conform to federal constitutional requirements in order for the resulting evidence to be admissible in a federal prosecution,' ” United States v. Morehead, 959 F.2d 1489, 1497 (10th Cir.1992) (quoting United States v. Gibbons, 607 F.2d 1320, 1325 (10th Cir. 1979) (citations omitted)), we find no such error from any state statutory violation here. 2 .

See United States v. Moland, 996 F.2d 259, 260-61 (10th Cir.1993), cert. denied, 114 S.Ct. 722 (1994); United States v. Morehead, 959 F.2d 1489, 1497-98 (10th Cir.), on reh'g on other grounds, 971 F.2d 1461 (10th Cir.1992); United States v. Mitchell, 783 F.2d 971, 977 (10th Cir.), cert. denied, 479 U.S. 860 (1986); United States v. Gibbons, 607 F.2d 1320, 1325-28 (10th Cir.1979).

In particular, "it is improper to use the grand jury for the primary purpose of strengthening the Government's case or a pending indictment or as a substitute for discovery, although this may be an incidental benefit." United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979).

United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979) (citing Woods, 544 F.2d at 250 ).

United States v. Gibbons, 607 F.2d 1320, 1330 (10th Cir.1979).

Crim.P. 41, which provides for state court issuance of a *1147 federal search warrant “upon request of a federal law enforcement officer or an attorney for the government.” Because the quoted condition in Rule 41 was not satisfied and the search was not otherwise “federal in character,” see generally United States v. Bookout, 810 F.2d 965, 967 (10th Cir.1987); United States v. Gibbons, 607 F.2d 1320, 1325 (10th Cir.1979), the rule cannot serve to transform the illegal state …

See In re Grand Jury Proceedings; Diamante, 814 F.2d 61, 70 (1st Cir.1987) (“Diamante”); In re Maury Santiago, 533 F.2d 727, 730 (1st Cir.1976); United States v. Doe, 455 F.2d 1270, 1273 (1st Cir.1972) (“Doe”); In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simeis), 767 F.2d 26, 29 (2d Cir.1985) (“Siméis”); United States v. Sasso, 59 F.3d 341, 351 (2d Cir.1995); United States v. Beasley, 550 F.2d 261, 266 (5th Cir.1977); United States v. Thompson, 944 F.2d 1331, 1…

A defendant can meet this burden by showing that the government engaged in misconduct, such as by using the grand jury for “the primary purpose of strengthening the Government’s case on a pending indictment or as a substitute for discovery.” United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979).

United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir.1979).

The United States may not use the grand jury solely to bolster its case, “although this may be an incidental benefit.” United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979)(“[I]t is improper to use the grand jury for the primary purpose of strengthening the Government’s case on a pending indictment or as a substitute for discovery.”).

More than 30 years later in State v. Hoffman, 106 Wis. 2d 185, 205 , 316 N.W.2d 143 (Ct. App. 1982), Judge Dykman observed that: "Federal courts have held that a grand jury may inquire into matters which are the subject of a pending prosecution so long as that is not the dominant or primary purpose of the inquiry." He cited United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir. 1979).

Cf. Gibbons, 607 F.2d at 1326 (recognizing that federal rule of criminal procedure governing nighttime search warrants implements the essential requirements of Fourth Amendment). {16} Having concluded that a showing of reasonable cause is constitutionally necessary, the question nonetheless remains: What constitutes reasonable cause?

Cf. United States v. Gibbons, 607 F.2d 1320, 1327 (10th Cir.1979) (justifying nighttime search of trunk to be delivered by airline in part because search was “not one which intrudes into a home or is carried out by physically disturbing the owner or the person who has an interest in the personal property involved”); Grimshaw , 413 Mass, at 79-80, 595 N.E.2d at 306 (holding that suppression of evidence obtained during nighttime search not required where the persons whose home…

The witness'/Defendant's reliance on United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979) to assert prosecutorial misuse of the grand jury is misplaced because that case merely holds that the Government may not use the grand jury to discover additional evidence or to prevent a defendant's access to evidence after the defendant has been indicted.

United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979).

E.g., United States v. Flemmi, 245 F.3d 24, 28 (1st Cir. 2001); United States v. Calk, 9 87 F.4th 164 , 186 (2d Cir. 2023); In re Grand Jury Procs., 507 F.2d 963, 964 (3d Cir. 1975); United States v. Alvarado, 840 F.3d 184, 189 (4th Cir. 2016); In re Grand Jury Procs. of Beverly, 468 F.2d 732, 743 (5th Cir. 1972); United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976); United States v. Wadlington, 233 F.3d 1067, 1074 (8th Cir. 2000); United States v. Star, 470 F.2d 1214, …

Conn. 1972)); United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979) (“At common law, prior to the adoption of the Bill of Rights there was a strong aversion to nighttime searches. . . .

See United States v. Gibbons, 607 F.2d 1320, 1330 (10th Cir. 1979)(“The trial court has broad discretion in conducting the voir dire examination.”). “[District courts have broad discretion in fashioning the method of exercising peremptory challenges, and the jury selection procedure in general” United States v. Morris, 623 F.2d 145, 151 (10th Cir. 1980).

See Sasso, 59 F.3d at 351-52 (“Where there was some proper dominant purpose for the postindictment subpoena, ... the government is not barred from introducing evidence obtained thereby.”); United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979) (“[W]here there is another legitimate purpose behind the grand jury investigation, the proceeding would not be improper merely because the Government may derive an incidental benefit.”); Beale § 9:16, at 9-74 (“[I]t is settled t…

Co., 219 F.3d 300, 314 (4th Cir.), cert. denied, 531 U.S. 1037 , 121 S.Ct. 628 , 148 L.Ed.2d 537 (2000); United States v. Salameh, 152 F.3d 88, 109 (2d Cir.1998), cert. denied, 526 U.S. 1028 , 119 S.Ct. 1273 , 143 L.Ed.2d 368 (1999); United States v. Alred, 144 F.3d 1405, 1413 (11th Cir.1998); United States v. Leung, 40 F.3d 577, 581 (2d Cir.1994); United States v. Rugiera, 20 F.3d 1387, 1395 (6th Cir.), cert. denied, 513 U.S. 878 , 115 S.Ct. 208 , 130 L.Ed.2d 137 (1994); Un…

Co., 219 F. 3d 300, 314 (4th Cir.), cert. denied, 531 U.S. 1037 , 121 S.Ct. 628 , 148 L.Ed. 2d 537 (2000); United States v. Salameh, 152 F. 3d 88, 109 (2d Cir.), cert. denied, 526 U.S. 1028 , 119 S.Ct. 1273 , 143 L.Ed. 2d 368 (1999); United States v. Alred, 144 F. 3d 1405, 1413 (11th Cir.1998); United States v. Leung, 40 F. 3d 577, 581 (2d Cir.1994); United States v. Rugiero, 20 F. 3d 1387, 1395 (6th Cir.), cert. denied, 513 U.S. 878 , 115 S.Ct. 208 , 130 L.Ed. 2d 137 (1994)…

See also, Jones v. United States, 357 U.S. 493, 498 , 78 S.Ct. 1253 , 2 L.Ed.2d 1514 (1958) ("[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home”); Coolidge v. New Hampshire, 403 U.S. 443, 477 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971) (midnight entry into a home was an "extremely serious intrusion”); United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir.1979) (recognizing the common law’s “strong aversion” to night…

“When a search is state in character, ‘the warrant and affidavits need only conform to federal constitutional requirements in order for the resulting evidence to be admissible in a federal prosecution.’ ” United States v. Morehead, 959 F.2d 1489, 1497 (10th Cir.) (quoting United States v. Gibbons, 607 F.2d 1320, 1325 (10th Cir.1979) (citations omitted), aff'd on other grounds, 971 F.2d 1461 (10th Cir.1992) (en banc)).

See, e.g., United States v. Beasley, 550 F.2d 261, 266 (5th Cir.1977); United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979); In re Santiago, 533 F.2d 727, 730 (1st Cir.1976). 29 .

"When a search is state in character, 'the warrant and affidavits need only conform to federal constitutional requirements in order for the resulting evidence to be admissible in a federal prosecution.' " United States v. Morehead, 959 F.2d 1489, 1497 (10th Cir.1992) (quoting United States v. Gibbons, 607 F.2d 1320, 1325 (10th Cir.1979) (citations omitted)). 4 .

United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir.1979).

United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir.1979).

Boyance v. Myers, 398 F.2d 896, 897-98 (3d Cir. 1968); United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979).

However, “a good faith inquiry into other charges within the scope of the grand *1060 jury’s lawful authority is not prohibited even if it uncovers further evidence against an indicted person.” (emphasis ours) In Re Grand Jury Proceedings (Johanson), 632 F.2d at 1041 ; see, United States v. (Under Seal), 714 F.2d 347, 350 (4th Cir. 1983); United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979); United States v. Beasley, 550 F.2d 261 (5th Cir.1977); United States v. Sel…

United States v. Gibbons, [ 607 F.2d 1320, 1327 (10th Cir. 1979)].

Thus, this is not a situation in which the government is using grand jury process for the purpose of harassment, In re Grand Jury Matters, 751 F.2d 13, 19 (1st Cir.1984); nor is the government attempting to freeze Siméis’ testimony for trial, see, e.g., United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979); United States v. Fisher, 455 F.2d 1101, 1104-05 (2d Cir.1972). “[W]here there is another legitimate purpose behind the grand jury investigation, the proceeding wo…