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Opinion of the Court

Shortly after arraignment, the District Court granted Williams' motion for disclosure of all exculpatory portions of the grand jury transcripts. See Brady v. Maryland, 373 U. S. 83 (1963). Upon reviewing this material, Williams demanded that the District Court dismiss the indictment, alleging that the Government had failed to fulfill its obligation under the Tenth Circuit's prior decision in United States v. Page, 808 F. 2d 723, 728 (1987), to present “substantial exculpatory evidence” to the grand jury (emphasis omitted). His contention was that evidence which the Government had chosen not to present to the grand jury-in particular, Williams' general ledgers and tax returns, and Williams' testimony in his contemporaneous Chapter 11 bankruptcy proceeding-disclosed that, for tax purposes and otherwise, he had regularly accounted for the “notes receivable” (and the interest on them) in a manner consistent with the Balance Sheet and the Income Statement. This, he contended, belied an intent to mislead the banks, and thus directly negated an essential element of the charged offense.

The District Court initially denied Williams' motion, but upon reconsideration ordered the indictment dismissed without prejudice. It found, after a hearing, that the withheld evidence was "relevant to an essential element of the crime charged,” created "a reasonable doubt about [respondent's] guilt,'” App. to Pet. for Cert. 23a-24a (quoting United States v. Gray, 502 F. Supp. 150, 152 (DC 1980)), and thus “render[ed] the grand jury's decision to indict gravely suspect,' App. to Pet. for Cert. 26a. Upon the Government's appeal, the Court of Appeals affirmed the District Court's order, following its earlier decision in Page, supra. It first sustained as not "clearly erroneous” the District Court's determination that the Government had withheld “substantial exculpatory evidence” from the grand jury. See 899 F. 2d 898, 900–903 (CA10 1990). It then found that the Government's behavior “substantially influence[d]”” the grand jury's decision to indict, or at the very least raised a “grave doubt that the

Opinion of the Court

decision to indict was free from such substantial influence.' Id., at 903 (quoting Bank of Nova Scotia v. United States, 487 U. S. 250, 263 (1988)); see 899 F. 2d, at 903–904. Under these circumstances, the Tenth Circuit concluded, it was not an abuse of discretion for the District Court to require the Government to begin anew before the grand jury. We granted certiorari. 502 U. S. 905 (1991).


Before proceeding to the merits of this matter, it is necessary to discuss the propriety of reaching them. Certiorari was sought and granted in this case on the following question: “Whether an indictment may be dismissed because the government failed to present exculpatory evidence to the grand jury.” The first point discussed in respondent's brief opposing the petition was captioned “The 'Question Presented in the Petition Was Never Raised Below.” Brief in Opposition 3. In granting certiorari, we necessarily considered and rejected that contention as a basis for denying review.

JUSTICE STEVENS' dissent, however, revisits that issue, and proposes that-after briefing, argument, and full consideration of the issue by all the Justices of this Court—we now decline to entertain this petition for the same reason we originally rejected, and that we dismiss it as improvidently granted. That would be improvident indeed. Our grant of certiorari was entirely in accord with our traditional practice, though even if it were not it would be imprudent (since there is no doubt that we have jurisdiction to entertain the case) to reverse course at this late stage. See, e. g., Ferguson v. Moore-McCormack Lines, Inc., 352 U. S. 521, 560 (1957) (Harlan, J., concurring in part and dissenting in part); Donnelly v. DeChristoforo, 416 U. S. 637, 648 (1974) (Stew

1 The Tenth Circuit also rejected Williams' cross-appeal, which contended that the District Court's dismissal should have been with prejudice. See 899 F. 2d, at 904.

Opinion of the Court

art, J., concurring, joined by WHITE, J.). Cf. Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985).

Our traditional rule, as the dissent correctly notes, precludes a grant of certiorari only when “the question presented was not pressed or passed upon below.” Post, at 58 (internal quotation marks omitted). That this rule operates (as it is phrased) in the disjunctive, permitting review of an issue not pressed so long as it has been passed upon, is illustrated by some of our more recent dispositions. As recently as last Term, in fact (in an opinion joined by JUSTICE STEVENS), we entertained review in circumstances far more suggestive of the petitioner's “sleeping on its rights” than those we face today. We responded as follows to the argument of the Solicitor General that tracks today's dissent:

“The Solicitor General ... submits that the petition for certiorari should be dismissed as having been improvidently granted. He rests this submission on the argument that petitioner did not properly present the merits of the timeliness issue to the Court of Appeals, and that this Court should not address that question for the first time. He made the same argument in his opposition to the petition for certiorari. We rejected that argument in granting certiorari and we reject it again now because the Court of Appeals, like the District Court before it, decided the substantive issue presented.” Stevens v. Department of Treasury, 500 U. S.

1, 8 (1991) (BLACKMUN, J.) (citations omitted). And in another case decided last Term, we said the following:

Respondents argue that this issue was not raised below. The appeals court, however, addressed the availability of a right of action to minority shareholders in respondents' circumstances and concluded that respondents were entitled to sue. It suffices for our purposes that the court below passed on the issue presented, particularly where the issue is, we believe, in a

Opinion of the Court

state of evolving definition and uncertainty, and one of importance to the administration of federal law." Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083, 1099, n. 8 (1991) (citations omitted; internal quotation marks

omitted). (JUSTICE STEVENS' separate concurrence and dissent in Virginia Bankshares also reached the merits. Id., at 11101112.) 2 As JUSTICE O'CONNOR has written:

“The standard we previously have employed is that we will not review a question not pressed or passed on by the courts below. Here, the Court of Appeals expressly ruled on the question, in an appropriate exercise of its

2 The dissent purports to distinguish Stevens and Virginia Bankshares on the ground that, “[a]lthough the parties may not have raised the questions presented in the petitions ... before the Courts of Appeals in those cases, the courts treated the questions as open questions that they needed to resolve in order to decide the cases." Post, at 58, n. 4. The significance of this distinction completely eludes us. While there is much to be said for a rule (to which the Court has never adhered) limiting review to questions pressed by the litigants below, the rule implicitly proposed by the dissent—under which issues not pressed, but nevertheless passed upon, may be reviewed only if the court below thought the issue an “open” one-makes no sense except as a device to distinguish Stevens and Virginia Bankshares. It does nothing to further “the adversary process” that is the object of the dissent's concern, post, at 59, n. 5; if a question is not disputed by the parties, “the adversary process” is compromised whether the court thinks the question open or not. Indeed, if anything, it is compromised more when the lower court believes it is confronting a question of first impression, for it is in those circumstances that the need for an adversary presentation is most acute.

The dissent observes that where a court disposes of a case on the basis of a "new rule that had not been debated by the parties, our review may be appropriate to give the losing party an opportunity it would not otherwise have to challenge the rule.” Ibid. That is true enough, but the suggestion that this principle has something to do with Stevens and Virginia Bankshares is wholly unfounded: In neither case could—or did—the losing party claim to have been ambushed by the lower court's summary treatment of the undisputed issues which we later subjected to plenary review.

Opinion of the Court

appellate jurisdiction; it is therefore entirely proper in light of our precedents for the Court to reach the question on which it granted certiorari ...."

." Springfield v. Kibbe, 480 U. S. 257, 266 (1987) (dissenting opinion) (emphasis in original; citations omitted).3

There is no doubt in the present case that the Tenth Circuit decided the crucial issue of the prosecutor's duty to present exculpatory evidence. Moreover, this is not, as the dissent paints it, a case in which, “[a]fter losing in the Court of Appeals, the Government reversed its position,” post, at 57.

8 The Court's per curiam dismissal of the writ in Kibbe was based principally upon two considerations: (1) that the crucial issue was not raised in the District Court because of failure to object to a jury instruction, thus invoking Rule 51 of the Federal Rules of Civil Procedure, which provides that “[n]o party may assign as error the giving . . . [of] an instruction unless he objects thereto before the jury retires to consider its verdict,” and (2) that the crucial issue had in addition not explicitly been raised in the petition for certiorari. 480 U. S., at 259, 260. Of course, neither circumstance exists here.

4 Relying upon, and to some extent repeating, the reasoning of its earlier holding in United States v. Page, 808 F. 2d 723 (1981), the Court of Appeals said the following:

“We have previously held that a prosecutor has the duty to present substantial exculpatory evidence to the grand jury. Although we do not require the prosecutor to 'ferret out and present every bit of potentially exculpatory evidence,' we do require that substantial exculpatory evidence discovered during the course of an investigation be revealed to the grand jury. Other courts have also recognized that such a duty exists. This requirement promotes judicial economy because ‘if a fully informed grand jury cannot find probable cause to indict, there is little chance the prosecution could have proved guilt beyond a reasonable doubt to a fully informed petit jury.'” 899 F. 2d 898, 900 (1990) (citations omitted).

This excerpt from the opinion below should make abundantly clear that, contrary to the dissent's mystifying assertion, see post, at 58, and n. 3, we premise our grant of certiorari not upon the Tenth Circuit's having “passed on” the issue in its prior Page decision, but rather upon its having done so in this case. We discuss Page only to point out that, had the Government not disputed the creation of the binding Tenth Circuit precedent in that case, a different exercise of discretion might be appropriate.

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