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UNITED STATES v. DALLAGO

April 21, 1970

UNITED STATES of America
v.
Alfred DALLAGO, Defendant


Zavatt, District Judge.


The opinion of the court was delivered by: ZAVATT

ZAVATT, District Judge.

By motion dated December 16, 1969, the defendant moved pursuant to Rules 6(d), (e) and 12(b)(1) of the Federal Rules of Criminal Procedure to dismiss the indictment on the ground that an unauthorized person was present during the taking of testimony before the indicting grand jury. A hearing was held before this court on February 27, 1970 to determine the facts relevant to this motion. Subsequently, by motion dated March 6, 1970, the defendant made a separate motion under Rule 12 of the Federal Rules of Criminal Procedure to dismiss the indictment on the ground that there was insufficient evidence presented to the grand jury to support the indictment. Both motions are denied.

 From the papers submitted to the court and the aforementioned hearing, the court finds the facts to be as follows:

 
(1) On the morning of April 11, 1967, a grand jury was convened to hear evidence concerning the defendant's income tax returns for several years. This grand jury sat in the Eastern District of Pennsylvania and the evidence was presented by Assistant United States Attorney Sidney Salkin.
 
(2) Special agent Howard Schneider was the first witness to testify. After he completed his testimony, he remained in the grand jury room at the request of Salkin.
 
(3) The second witness was one Eugene Kral. Sometime during Kral's testimony, Shane Creamer, the First Assistant United States Attorney for the Eastern District of Pennsylvania, entered the grand jury room and, noticing that agent Schneider was present during Kral's testimony, ordered that the proceeding be terminated.
 
(4) Later that same afternoon, a second and completely new grand jury heard the Government's evidence ab initio. Agent Schneider again testified, but this time he left the room immediately upon the completion of his testimony. Kral did not testify before this second grand jury. The proceedings before this grand jury were regular.
 
(5) The second grand jury returned an indictment against this defendant. The case, based on this indictment, was transferred to this District, where it was docketed as 67-CR-452 on December 1, 1967.
 
(6) The testimony of agent Schneider before the two grand juries in the Eastern District of Pennsylvania was not recorded. It was the policy of the United States Attorney for the Eastern District of Pennsylvania not to record the grand jury testimony of Government agents. (Affidavit of Drew J.T. O'Keefe, the United States Attorney for the Eastern District of Pennsylvania during the period in question, sworn to February 9, 1970).

 Defendant's Contentions

 1. That an indictment by the first grand jury should be dismissed if agent Schneider was present while it received evidence of another witness.

 2. That the indictment by the indicting second grand jury should be dismissed even if Schneider was not present before it illegally, because the evidence that he heard while illegally present at the first grand jury "tainted" his testimony before the second grand jury. In addition, that the Government, due to its policy of not recording the testimony of Government agents before the grand jury, cannot carry its burden of showing that Schneider's evidence was not so tainted.

 3. That there is insufficient evidence to support ...


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