After Getting No-Billed, DOJ Tries Presenting Case To Local Grand Jury. Court Not Amused.

The DOJ got benchslapped again last night by federal Magistrate Judge Zia Faruqui. The beatdown came in the case of Kevontae Stewart, a DC resident who was sitting in his car on September 17, smoking a joint and bothering no one, when ATF agents started hassling him. Prosecutors filed a criminal complaint alleging that Stewart fled and tried to get rid of a gun, which he was not permitted to possess due to a prior criminal conviction. But the grand jury didn’t buy it, and the DOJ got no-billed, as they’ve done repeatedly since Jeanine Pirro got sworn in as US Attorney for the District and started charging every person she could get her hands on with pissant nonsense.

But Pirro was feeling fizzy as a box of Franzia left in the sun, so on September 26, the same day prosecutors got no-billed by the federal grand jury, her office took Stewart’s case to a local grand jury convened by DC Superior Court. That panel was more cooperative, and on September 29, the DOJ tried to present the local indictment to Magistrate Faruqui. And then all hell broke loose.

“This desire to just at all costs get people charged and arrested is losing, every day, credibility before the court,” Judge Faruqui railed, adding, “You can’t even get grand juries returned now, because the public seems to have lost all faith in the process.”

The court refused to accept the indictment and ordered briefing on the legality of using a DC Superior Court grand jury to return an indictment in federal court, a process the court described as potentially unlawful and at a minimum unseemly.

But Pirro’s office did not file a response — or at least not immediately. First it demanded to speak to the manager, docketing an emergency motion to vacate Judge Faruqui’s briefing order. The government insisted that the magistrate’s role is purely ministerial, and thus the court had no discretion to reject the indictment. But they got no joy from Chief Judge James Boasberg, who refused to countermand the briefing order, instructing prosecutors to appeal any final order if they were still mad about it.

The government’s position is that D.C. Code § 11-1916 empowers a local grand jury to “take cognizance of all matters brought before it regardless of whether an indictment is returnable in the Federal or District of Columbia courts.” They point to US v. Seals, a 1997 DC Circuit case in which the court allowed federal prosecution when the grand jury indictment was procured by a jury convened by the DC Superior Court. But, as Stewart pointed out in his own brief, that case preceded the adoption of the Federal Rules of Criminal Procedure by five years. FRCrP 6 empowers “the court” — i.e., a federal judge — to impanel a grand jury. And as Judge Faruqui pointed out in his order dropkicking this indictment, FRCrP 1 specifically states that DC Superior Court judges are not federal judges.

There’s also the minor matter that, unlike at the time of Seals, the procedures for selecting DC and federal grand juries are not the same. And … is the DOJ seriously arguing that a local statute can bind the federal judiciary? WTF?????

“This litigation and the delay caused by it could have been avoided if the government had simply gone to one of the other federal grand juries. That escape hatch remains open today,” Judge Faruqui concluded. “At any time, the government can short circuit this dispute by taking their federal charge before a federal grand jury. The question then is why are they now afraid to do so?”

The government huffily announces that it will appeal again to Chief Judge Boasberg. But if they bet wrong, they’re going to be in a wee spot of bother. They’ve got 30 days from September 18, the date of the original complaint, to indict Stewart, the poor guy smoking a J in his own car who wound up in the middle of this ridiculous pissing match.

Good thing he wasn’t driving 119 mph in a 65, or he might be in real trouble.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.