## Facts

- A federal grand jury in the Southern District of New York indicted Vincente Carhuapoma and German Salcedo for participation in a narcotics-trafficking scheme.
- In presenting the case to the grand jury, prosecutors used a single law-enforcement witness to summarize the government’s evidence, consistent with an admitted practice in narcotics cases involving prior investigations.
- As to Carhuapoma, the grand jury presentation consisted only of hearsay; no percipient witness testified about key events.
- Defendants claimed this approach—using a summary witness, leading questions, and hearsay—impaired the grand jury’s ability to assess credibility and evidentiary strength.
- The case proceeded to a full jury trial, and both defendants were convicted on the narcotics counts.
- On appeal, defendants sought dismissal of the indictment and reversal of their convictions based on alleged abuse of the grand jury process.

## Issues

1. Whether the government’s use of a single summary law-enforcement witness and hearsay testimony before the grand jury constituted misconduct requiring dismissal of the indictment.
2. Whether alleged defects in the grand jury proceeding can warrant dismissal of an indictment after defendants have been convicted following a full and fair trial, absent a showing of prejudice.

## Decision

- The Second Circuit affirmed the convictions.
- The court declined to dismiss the indictment under its supervisory authority.
- The court held that presenting hearsay and summary testimony to the grand jury, without more, did not require dismissal.
- The court concluded that any asserted grand jury irregularities were rendered harmless by the defendants’ convictions after a full and fair trial and the absence of surviving prejudice.

## Legal Principles

- An indictment returned by a legally constituted and unbiased grand jury is not subject to dismissal merely because it rests on hearsay or otherwise incompetent evidence.
- Appellate courts will rarely set aside an indictment after conviction based on claimed grand jury irregularities; post-verdict relief generally requires a showing of actual prejudice that was not cured by trial.
- Supervisory power to dismiss an indictment is an exceptional remedy and is disfavored where a petit jury has found guilt beyond a reasonable doubt after adversarial testing of the evidence.
- Even if a grand jury presentation method is disapproved as a practice choice, it does not justify dismissal unless it amounts to an abuse that compromises fundamental fairness.

## Conclusion

The court held that the government’s hearsay-based, single-witness grand jury presentation did not warrant dismissal of the indictment after defendants were convicted at a full and fair trial, because the verdict cured any nonprejudicial grand jury defects and supervisory dismissal was not justified absent surviving prejudice.


United States v. Brito, 907 F.2d 392 (2d Cir. 1990)