## Facts

- Defendants were charged in a one-count federal indictment with conspiring to import and distribute marijuana during February 1, 1971 to December 4, 1971, including alleged airplane smuggling from Mexico.
- A key witness and named (but unindicted) co-conspirator testified before the grand jury about defendants’ involvement.
- Before trial, the witness admitted to the prosecutor that he had committed perjury in material respects, including that all testimony about defendants’ activities before May 1, 1971 was false.
- May 1, 1971 was significant because a statute carrying a mandatory minimum sentence for certain narcotics offenses was repealed effective that date and replaced with a different statutory regime.
- The prosecutor informed defense counsel of the perjury but did not inform the grand jury or the court and did not seek dismissal or a superseding indictment.
- After one defendant’s arrest, agents entered his home without a warrant and seized a wallet and documents that were introduced at trial; the government claimed exigent circumstances justified the entry.
- Defendants were convicted after a jury trial; pretrial motions to dismiss the indictment and suppress the seized evidence were denied.

## Issues

1. Whether the Fifth Amendment Due Process Clause is violated when the government proceeds to trial on an indictment it knows is based in part on material perjured grand-jury testimony, discovered before jeopardy attaches, without correcting the indictment process.
2. Whether a warrantless entry into a home and seizure of documents after arrest was justified by exigent circumstances under the Fourth Amendment.
3. Whether the errors, if any, were harmless beyond a reasonable doubt.

## Decision

- The Ninth Circuit reversed the convictions and remanded.
- The court held due process was violated because the government allowed defendants to stand trial on an indictment it knew was partially based on material perjured grand-jury testimony, discovered before jeopardy attached.
- The court held the warrantless home entry and seizure were not justified by exigent circumstances and the evidence should have been suppressed.
- The court concluded the errors were not harmless beyond a reasonable doubt.

## Legal Principles

- Due process is violated when the government proceeds to trial on an indictment it knows is based in part on material perjured testimony presented to the grand jury, where the perjury is discovered before jeopardy attaches and the government fails to correct the charging process.
- Notice to defense counsel, standing alone, does not cure a materially perjured grand-jury record because it does not restore the grand jury’s independent screening function.
- Warrantless home entries are presumptively unreasonable; the government bears the burden to show exigent circumstances sufficient to override the warrant requirement.
- Illegally seized evidence must be suppressed absent a valid exception, and admission of such evidence requires reversal unless the government proves harmlessness beyond a reasonable doubt.

## Conclusion

The court required reversal because the prosecution, before jeopardy attached, knowingly proceeded on an indictment materially tainted by perjury and because the government introduced evidence obtained through an unjustified warrantless home entry; neither error was harmless beyond a reasonable doubt.


United States v. Basurto, 497 F.2d 781 (9th Cir. 1974)