Whether systematic and pervasive government misconduct that violates Federal Rule of Criminal Procedure 6(e) is structural error giving rise to a presumption of prejudice warranting dismissal of an indictment

QUESTIONS PRESENTED In Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988), this Court held that, “as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.” At the same time, the Court recognized an exception to this general rule for “a class of cases in which indictments are dismissed, without a particular assessment of the prejudicial impact of the errors in each case” because the errors are deemed “structural.” Id. at 256-57. But Bank of Nova Scotia did not fit within this exception because it did not present “a history of prosecutorial misconduct, spanning several cases, that is so systematic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process which resulted in the indictment.” Id. at 259. The questions presented are: 1. Whether systematic and pervasive government misconduct that violates Federal Rule of Criminal Procedure 6(e) is structural error giving rise to a presumption of prejudice warranting dismissal of an indictment. 2. Ifthe answer to the first question is no, whether a criminal defendant who makes a prima facie showing that the government has violated Rule 6(e) but necessarily lacks access to the information required to establish prejudice is entitled to discovery or an evidentiary hearing that would assist the district court in assessing prejudice and fashioning a remedy.