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UNITED STATES v. KLEEN LAUNDRY & CLEANERS

August 9, 1974

UNITED STATES of America,
v.
KLEEN LAUNDRY & CLEANERS, INC., and Jerry Gross, Defendants



The opinion of the court was delivered by: WEINSTEIN

WEINSTEIN, District Judge.

 Defendants, Kleen Laundry and Cleaners, Inc. and Jerry Gross, charged with both bribery and conspiracy to bribe a public official under 18 U.S.C. ยง 201, move for a dismissal of their indictment under Federal Rules of Criminal Procedure 6(g) and 12 and for suppression of evidence at a forthcoming trial. Their action is based on claimed violations of the Fourth Amendment prohibition of illegal searches and seizures and raises issues of the relationship of grand juries to prosecutors in the modern prosecutorial system. We hold, for the reasons indicated below, that the United States Attorney has not, in the circumstances of this case, violated the defendants' rights.

 I. Facts

 In December, 1971, the United States Attorney's office obtained defendants' books and records through the use of a subpoena issued in the name of a grand jury not in session but expected to be sitting on the return date. The grand jury was neither consulted nor notified. The books and records, instead of being surrendered to a grand jury, were accepted by an Assistant United States Attorney and used by the government in further investigation. Eighteen months later the Assistant finally delivered the documents to one of the grand juries which had been sitting in December of 1971.

 Apparently, the normal practice in this district -- as in others -- is for the United States Attorney to decide when the grand jury will need documents; he issues a subpoena on its behalf with or without prior consultation. The subpoena is returnable before the grand jury and the custodian of the papers will actually deliver them to the foreman of the grand jury while it is in session. The papers, if they require analysis, are then turned over to the Assistant United States Attorney prosecuting the case who will analyze them with the help of various government investigative agencies. Where a complex investigation involving many books of account and files is concerned, there is no point in making the analysis while the grand jury sits idly by watching accountants and others silently at work.

 In this case, the usual practice was not followed. The defendants voluntarily left the material with the Assistant in charge of the case and made no motion to retrieve them. It was only after the indictment was handed down that this motion complaining of abuse was made.

 II. The Role of the Grand Jury and United States Attorney

 Time and precedent have not been kind to the grand jury. The institution once had primary responsibility for the discovery and reporting of crime. As local citizens familiar with local conditions, grand jurors were able to report to the itinerant judges of the King's central court system as they made their rounds. 1 W. Holdsworth, A History of English Law 312-27 (7th ed. 1956); 1 J. Stephen, A History of the Criminal Law of England 184-86, 250-58 (1883); United States v. Huston, 28 F.2d 451, 452-453 (N.D. Ohio, 1928). See generally, Kuh, The Grand Jury "Presentment": Foul Blow or Fair Play? 55 Col. L. Rev. 1103, 1105-1110 (1955). The framers of the Constitution expressed their regard for the grand jury with the Fifth Amendment, which provides:

 
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .."

 Today the grand jury's independence in the criminal justice system has declined with the increasing complexity of crime and the growth of the role of prosecutors, professional police and investigative forces. Cf. Rivera v. Government of the Virgin Islands, 375 F.2d 988, 991 (3d Cir. 1967); National Commission on Law Observance and Enforcement, Report on Prosecution 124 (1931) (Wickersham Report) ("the grand jury usually degenerates into a rubber stamp wielded by the prosecuting officer according to the dictates of his own sense of propriety and justice"); Report of Committees on Civil Rights, Criminal Courts, Law and Procedure, and Federal Courts of the Association of the Bar of the City of New York, Strengthening the Role of the Federal Grand Jury: Analysis and Recommendations, 29 The Record 464 (1974); Note, The Fourth Amendment Exclusionary Rule in the Grand Jury Setting: United States v. Calandra, 9 Harv. Civ. Rights-Civ. Lib. L. Rev. 614-17 (1974).

 It is now the United States Attorney who gathers the evidence for later presentation to the grand jury. He calls and examines witnesses, presents documents, explains the law, sums up the evidence, and requests an indictment. The courts have recognized this leadership role. See, e.g., Bacon v. United States, 449 F.2d 933, 943 (9th Cir. 1971) (United States Attorney's mere representations sufficient to show "materiality" as support for arrest of a witness); Russo v. United States, 448 F.2d 369, 374 (9th Cir. 1971) (United States Attorney's assertions that the investigation involved an applicable statute enough for a grant of immunity to grand jury witnesses); United States v. Gower, 447 F.2d 187, 190 (5th Cir.), cert. denied, 404 U.S. 850, 92 S. Ct. 84, 30 L. Ed. 2d 88 (1971) (United States Attorney may draft the indictment for the grand jury); United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S. Ct. 1767, 14 L. Ed. 2d 700 (1965) (United States Attorney may prevent filing of a duly voted indictment); In Re Dymo Industries, Inc., 300 F. Supp. 532, 533 (N.D. Cal.), aff'd. sub nom. United States v. Dymo Industries, Inc., 418 F.2d 500 (9th Cir. 1969), cert. denied, 397 U.S. 937, 90 S. Ct. 946, 25 L. Ed. 2d 116 (1970) (broad power of grand jury to utilize subpoenas); 8 Moore's Federal Practice para. 6.04 at 6-45 (2d ed. 1973) ("the prosecutor is in control of grand jury proceedings"). So broad is his role in practice that courts are loath to review prosecutorial actions. Beatrice Foods Co. v. United States, 312 F.2d 29, 39 (8th Cir.), cert. denied, 373 U.S. 904, 83 S. Ct. 1289, 10 L. Ed. 2d 199 (1963) ("courts . . . most cautious in invalidating indictments for alleged grand jury misconduct of the prosecutor"). As Professor Moore notes, "the conduct of the prosecutor in obtaining an indictment is virtually unreviewable." 8 Moore's Federal Practice para. 6.04 at 6-47 (2d ed. 1973); cf. Newman v. United States, 127 U.S. App. D.C. 263, 382 F.2d 479 (1967) (discrimination among those equally culpable).

 III. Issuance of Grand Jury Subpoenas

 Here defendants seek to assert not so much their personal rights as the right of the grand jury to control the issuance of its subpoenas. They do not allege prejudice to their position by the actions of the government since it is obvious that had the United States Attorney requested the grand jury's advice on issuance of the subpoena, pro forma consent would have followed. Rather, they argue that the use of the power on behalf of, but without direction from, a grand jury results in an invalid indictment which should be dismissed and in illegally obtained evidence which should be suppressed. They are wrong.

 Though the grand jury may request evidence, the function of issuing process to obtain it belongs to another. It is the prosecutor who has the initiative and power by subpoena to bring proof to the courthouse. United States v. Thompson, 251 U.S. 407, 413, 40 S. Ct. 289, 292, 64 L. Ed. 333, 342 (1920) ("United States district attorney . . . has the power to present . . . information"); Wilson v. United States, 221 U.S. 361, 372, 31 S. Ct. 538, 541, 55 L. Ed. 771, 776 (1910) (production of documents without testimony may be required); United States v. Brozovich, 465 F.2d 372, 373 (9th Cir. 1972) ("A United States Attorney and a federal grand jury have considerable latitude"); In Re Dymo Industries, Inc., 300 F. Supp. 532, 533 (N.D. Cal.), aff'd. sub nom. United States v. Dymo Industries, Inc., 418 F.2d 500 (9th Cir. 1969), cert. denied, 397 U.S. 937, 90 S. Ct. 946, 25 L. Ed. 2d 116 (1970) (normal practice for the United States Attorney to cause subpoenas to be issued); United States v. Culver, 224 F. Supp. 419, 432 (D. Md. 1963); United States v. Morton Salt Co., 216 F. Supp. 250, 256 (D. Minn. 1962) ...


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