If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.
*940 the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached. Whenever the prosecutor learns of any perjury committed before the grand jury, he is under a duty to immediately inform the court and opposing counsel—and, if the perjury may be material, also the grand jury—in order that appropriate action may be taken.
[t]he Supreme Court recently concluded that because of the strong public interest in prosecuting serious crimes, prejudice to the defendant must be shown before dismissal of an indictment would be warranted when the government has interfered with a defendant's Sixth Amendment right to counsel. United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). The Tenth Circuit in United States v. Drake, 655 F.2d 1025 (10th Cir.1981), extended the Morrison rationale to require that actual undermining of a fair trial must also be demonstrated when a federal court uses its supervisory powers rather than a constitutional basis to dismiss an indictment for prosecutorial misconduct.
The testimony will also reveal that the Federal Government has spent a good deal of money to relocate, support and protect these three individuals. The evidence will show that the majority of this money was spent for lodging, meals and transportation, and that the Government has not bought their testimony.”
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