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UNITED STATES v. MESSITTE

March 9, 1971

UNITED STATES of America
v.
Simon J. MESSITTE, Bert E. Stanger and Herbert Werman, Defendants


Frederick Van Pelt Bryan, District Judge.


The opinion of the court was delivered by: BRYAN

FREDERICK VAN PELT BRYAN, District Judge:

This is a motion by defendant, Messitte, to dismiss, as to him, an indictment charging him, in 18 counts, with violating 15 U.S.C. ยงยง 77q(a), 77x, 78i (a) (2), 78ff(a) in connection with the sale of stock of Alloys Unlimited, Inc., and in one count with conspiracy to violate these sections. Defendants Werman and Stanger are named only in the conspiracy count.

 Messitte's motion is based on the following grounds: (1) that remarks made by the prosecutor before the grand jury were not recorded and (2) that Messitte was required to appear before the grand jury and there to invoke his Fifth Amendment privilege when he was a target of investigation and the prosecutor was informed that he would claim his privilege and refuse to answer questions before that body. In the alternative, Messitte seeks an evidentiary hearing.

 I

 The prosecution concedes that the Assistant United States Attorney conducting the grand jury proceedings in this case made some statements or remarks concerning the case when no witnesses were present in the grand jury room, which were not recorded. Messitte contends that this in itself requires dismissal of the indictment.

 The prosecution takes the position that this was a usual practice in grand jury proceedings in this district and is not a ground for dismissal. The prosecution advised the Court by letter as follows:

 
I have been informed that in the last 30 years the practice of our office has been to have grand jury stenographers record every word spoken in the grand jury room while a witness is present in the grand jury room. Nothing else is recorded unless specifically requested by the Assistant United States Attorney conducting the proceeding, but this occurs infrequently.
 
It has never been the practice to regularly record instructions to the grand jury made when no witness is in the room. There has been no change in this practice during the last 30 years.

 These statements have not been questioned by Messitte and it will be assumed for purposes of this motion that the statements are accurate.

 It is well settled that failure to record proceedings before a grand jury is not a ground for voiding an indictment. E.g., United States v. Caruso, 358 F.2d 184 (2d Cir. 1966), cert. denied, 385 U.S. 862, 87 S. Ct. 116, 17 L. Ed. 2d 88; United States v. Cianchetti, 315 F.2d 584 (2d Cir. 1963); see also, United States v. Westmoreland, 41 F.R.D. 419, 422, n.2 (S.D. Ind. 1967); United States v. Martel, 17 F.R.D. 326, 328-329 (N.D.N.Y. 1954), appeal dismissed, United States v. Caiola, 222 F.2d 369 (2d Cir. 1955).

 It was not until 1933, 48 Stat. 58, that an amendment to Section 1025 of the Revised Statutes, 18 U.S.C., former Section 556, provided that the attendance of a stenographer during the grand jury proceedings should not invalidate an indictment. The purpose of the amendment, proposed by the Justice Department, was to eliminate a conflict in prior decisions as to whether the mere presence of a stenographer in the grand jury room invalidated the indictment. Compare United States v. Goldman, 28 F.2d 424 (D. Conn. 1928) with United States v. Morse, 292 F. 273 (S.D.N.Y. 1922) and United States v. Amazon Industrial Chemical Corp., 55 F.2d 254 (D. Md. 1931). In view of this conflict it had been the practice for the United States Attorney to apply for permission to appoint special counsel who was able to make a stenographic report of the proceedings where such a report was deemed indispensable. See United States v. Weathers, 21 F. Supp. 763, 766 (N.D. Ga. 1937).

 The 1933 amendment to 18 U.S.C., former Section 556, has since been embodied in substance in Rule 6(d) Fed. R. Cr. P., which provides that " for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session." (emphasis supplied)

 Against the history and background of this permissive language, defendant Messitte seeks a holding that it is mandatory to record everything said before the grand jury with respect to a case (except, presumably, the actual deliberations of the grand jury in camera) and that an indictment is invalid unless this has been done.

 I find no support for this contention in the language of Rule 6(d) or Rule 16 and, as has been indicated, the well settled case law is to the contrary. Defendant's reliance on such recent cases as Gaither v. United States, 134 U.S. App. D.C. 154, 413 F.2d 1061 (1969); United States v. Arcuri, 282 F. Supp. 347 (E.D.N.Y.), aff'd, 405 F.2d 691 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S. Ct. 1760, 23 L. Ed. 2d 227 (1969) is misplaced. These cases deal with ...


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