UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
February 13, 1975
UNITED STATES of America
Philip CRISPINO, Defendant
Werker, District Judge.
The opinion of the court was delivered by: WERKER
WERKER, District Judge.
On October 2, 1974 Philip Crispino was charged by the grand jury with one count of collection of extensions of credit by extortionate means, 18 U.S.C.A. § 894, and one count of interference with commerce by threats or violence, 18 U.S.C.A. § 1951. The attorney who presented the case to the grand jury was Charles E. Padgett, a special attorney with the Organized Crime and Racketeering Section of the Criminal Division, United States Department of Justice. Crispino has now moved pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure to dismiss the indictment on the ground that Mr. Padgett was not authorized to appear before the grand jury in this case. After a careful review of the statutory framework under which Mr. Padgett was appointed and the cases which have interpreted those statutes, the court has reached the conclusion that Mr. Padgett was not properly authorized to appear before the grand jury and, as a consequence, the indictment must be dismissed.
The statute under which Mr. Padgett was appointed a Special Attorney is codified at 28 U.S.C.A. § 515
(a) The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.
(b) Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney at not more than $12,000.
On June 1, 1973 Henry Petersen, then Assistant Attorney General in charge of the Criminal Division, wrote the following letter to Mr. Padgett:
Department of Justice
June 1, 1973
Mr. Charles E. Padgett
Department of Justice
Dear Mr. Padgett:
The Department is informed that there have occurred and are occurring in the Southern District of New York and other judicial districts of the United States violations of federal criminal statutes by persons whose identities are unknown to the Department at this time.
As an attorney at law you are specially retained and appointed as a Special Attorney under the authority of the Department of Justice to assist in the trial of the aforesaid cases in the aforesaid district and other judicial districts of the United States in which the Government is interested. In that connection you are specially authorized and directed to file informations and to conduct in the aforesaid district and other judicial districts of the United States any kind of legal proceedings, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States Attorneys are authorized to conduct.
Your appointment is extended to include, in addition to the aforesaid cases, the prosecution of any other such special cases arising in the aforesaid district and other judicial districts of the United States.
You are to serve without compensation other than the compensation you are now receiving under existing appointment.
Please execute the required oath of office and forward a duplicate thereof to the Criminal Division.
/S/ HENRY E. PETERSEN
Assistant Attorney General
Since section 515(a) provides that the Attorney General is the official who is to appoint special attorneys, a question arises as to whether Mr. Petersen was authorized to make the appointment. Section 510 of Title 28, United States Code
permits the Attorney General to delegate any of his functions to "any other officer" of the Department of Justice. By regulation, the Attorney General delegated certain of his powers, including the coordination of enforcement activities directed against organized crime and racketeering and the designation of attorneys to present evidence to grand juries, to the Assistant Attorney General in charge of the Criminal Division.
It thus appears that the power to appoint Special Attorneys was properly delegated to Mr. Petersen.
This is not a case of improper delegation as was found in United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974). That case involved a question of delegation of power to authorize wiretaps under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. Section 2516(1) of that act allows the Attorney General or any Assistant Attorney General specially designated by the Attorney General to authorize the application. The official who authorized the wiretap in Giordano was in fact the Executive Assistant to the Attorney General. The Court concluded that despite the broad delegation provision in 28 U.S.C. § 510, Congress in enacting § 2516(1) "intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate." 416 U.S. at 514, 94 S. Ct. at 1826. In enacting section 515(a) Congress intended to limit the Attorney General's power of appointment to those attorneys with special skills and to special cases or cases of unusual importance to the government but there was no limitation imposed on the Attorney General's ability to delegate his power of appointment of Special Attorneys to other officers of the Department of Justice such as Mr. Petersen.
The more serious and complex question presented in this motion is whether Special Attorney Padgett within the meaning of section 515(a) was "specifically directed by the Attorney General" (or as in this case by a subordinate of the Attorney General to whom the Attorney General had properly delegated the function to appoint Special Attorneys) to present the Crispino case to the grand jury. To resolve this question it is necessary to examine the legislative background of the original act which is now codified as 28 U.S.C. § 515(a) and the cases which have construed that act.
By the Judiciary Act of 1789, 1 Stat. 73, Congress provided for the appointment of attorneys for each district whose duty was to prosecute "crimes and offenses, cognizable under the authority of the United States . . . ." 1 Stat. at 92. These attorneys were eventually called District Attorneys and are now known as United States Attorneys.
The same act also created the office of the Attorney General who in 1861 was charged with the general superintendence and direction of the District Attorneys.
Despite the Attorney General's power of supervision, it was still the function of the District Attorneys to represent the United States in criminal and civil actions. See The Confiscation Cases, 74 U.S. (7 Wall) 454, 457-58, 19 L. Ed. 196 (1868).
In 1861 Congress also provided that the Attorney General could appoint special assistants to the District Attorneys to aid them in the discharge of their duties.
When the Department of Justice was created in 1870
the Attorney General was authorized to appoint "special [assistants] to the Attorney General" to assist in the "trial of any case."
As a check on his power to employ special counsel when needed, Congress required the Attorney General to certify that the services of special counsel were actually rendered and that the same services could not have been performed by the Attorney General or some other officer of the Department of Justice.
See United States v. Crosthwaite, 168 U.S. 375, 18 S. Ct. 107, 42 L. Ed. 507 (1897). From 1861 to 1903 the Attorney General often employed such special counsel either as assistants to the various district attorneys or as special assistants to the Attorney General. Such counsel not only assisted in the trial of cases, but also participated in grand jury proceedings.
The right of the special attorneys to appear before grand juries was not questioned until 1903 when in the case of United States v. Rosenthal, 121 F. 862 (C.C.S.D.N.Y.1903), the Court held that the power of the Attorney General to conduct and argue any "case" in any court did not authorize him to make appearances before grand juries.
In Rosenthal, Mr. W. Wickham Smith was commissioned a Special Assistant to the Attorney General "to investigate and report concerning alleged fraudulent importations of Japanese silks at the port of New York." Rosenthal, supra 121 F. at 863. Since the Court had concluded that the Attorney General himself was not authorized to appear before grand juries, then special assistants to the Attorney General were not "endowed with a power denied to the chief officer himself?" Id., 121 F. at 869.
The powers of the special assistants were limited to participation in trials and litigation already pending. As a direct consequence of the Rosenthal decision, Congress passed the Act of June 30, 1906, 34 Stat. 816, which with a few minor changes is currently codified at 28 U.S.C.A. § 515(a).
This act enabled special attorneys to conduct legal proceedings, including grand jury proceedings, "when specifically directed by the Attorney General."
The legislative history of the Act of June 30, 1906 provides an important source for understanding the purposes of the statute as envisioned by Congress. Cf. United States v. Wise, 370 U.S. 405, 414, 82 S. Ct. 1354, 8 L. Ed. 2d 590 (1962); Flora v. United States, 362 U.S. 145, 151, 80 S. Ct. 630, 634, 4 L. Ed. 2d 623 (1960) ("frequently the legislative history of a statute is the most fruitful source of instruction as to its proper interpretation"). See also N.L.R.B. v. Bell Aerospace Co., 416 U.S. 267, 274, 94 S. Ct. 1757, 40 L. Ed. 2d 134 (1974). The Act of 1906, was introduced in both Houses of Congress, and it was the House version of the bill that passed.
The House Report which accompanied the bill provided as follows:
Mr. Gillett of California from the Committee on the Judiciary submitted the following:
The Committee on the Judiciary, having had under consideration the bill (H.R. 17714) to authorize the commencement and conduct of legal proceedings under the direction of the Attorney-General, respectfully report the same back with the recommendation that the same do pass.
The purpose of this bill is to give to the Attorney-General, or to any officer in his Department or to any attorney specially employed by him, the same rights, powers, and authority which district attorneys now have or may hereafter have in presenting and conducting proceedings before a grand jury or committing magistrate.
It has been the practice of the Attorney-General for many years to employ special counsel to assist district attorneys in the prosecution of suits pending in their respective districts whenever the public interest demanded it. It has been the practice of such special counsel to appear, with the district attorney, before grand judges and committing magistrates and to assist in the proceeding pending there. This right passed unchallenged for many years, until the Circuit Court for the Southern District of New York, on March 17, 1903, in the case of the United States v. Rosenthal, decided that --
The Attorney General, the Solicitor General, nor any officer of the Department of Justice, is authorized by sections 359, 367, or any other provision of the Revised Statutes of the United States [U.S.Comp.St.1901 pp. 207, 209], to conduct, or to aid in the conduct of, proceedings before a grand jury, nor has a special assistant to the Attorney General such power.
And the court further held that --
A special assistant to the Attorney General, appointed to investigate and report concerning alleged fraudulent importations of Japanese silks at the port of New York, and to prepare and conduct such civil and criminal proceedings as may result therefrom, is not authorized by law to conduct, or to aid the conduct of, proceedings before a federal grand jury, and indictments based upon such proceedings so conducted should be quashed upon motion.
This decision makes the proposed legislation necessary if the Government is to have the benefit of the knowledge and learning of its Attorney-General and his assistants, or of such special counsel as the Attorney-General may deem necessary to employ to assist in the prosecution of a special case, either civil or criminal. As the law now stands, only the district attorney has any authority to appear before a grand jury, no matter how important the case may be to the interests of the Government to have the assistance of one who is specially or particularly qualified by reasons of his peculiar knowledge and skill to properly present to the grand jury the question being considered by it.
The Attorney-General states that it is necessary, in the due and proper administration of the law, that he shall be permitted to employ special counsel to assist the district attorney in cases which district attorneys or lawyers do not generally possess, and in cases of such usual [sic]
importance to the Government, and that such counsel be permitted to possess all of the power and authority, in that particular case, granted to the district attorney, which, of course, includes his right to appear before a grand jury either with the district attorney or alone.
It seems eminently proper that such powers and authority be given by law. It has been the practice to do so in the past and it will be necessary that the practice shall continue in the future.
If such a law is necessary to enable the Government to properly prosecute those who are violating its laws, it is no argument against it that some grand jury may be, perhaps, unduly influenced by the demands or importunities that may be made upon it by such special counsel. The same argument can as well be made against permitting a district attorney from attending a sitting of such jury.
There can be no doubt of the advisability of permitting the Attorney-General to employ special counsel in special cases, and there can be no question that if he has been employed because of his special fitness for such a special case that the Government should have the full advantage of his learning and skill in every step necessary to be taken before the trial, including that of appearing before grand juries.
The law proposed by the bill under consideration seems to be very necessary, because of the decision in the Rosenthal case, hereinbefore referred to, and the committee recommend its speedy enactment.
H.R.Rep.No.2901, 59th Cong., 1st Sess. (1906).
The House Report leaves no room for doubt that Congress intended the Attorney General to have the power to appoint special attorneys to prosecute a particularly important case or a special case or cases. This power was seen as a necessary aid to effective law enforcement. Rather than restricting the appearances of these attorneys to the trial of cases, it was deemed appropriate that they appear in every step of the litigation including grand jury proceedings. However, since the district attorneys and their regular assistants had the responsibility for prosecuting all crimes in their districts, the appearance of special attorneys before grand juries was limited to special cases where the Attorney General concluded that the particular knowledge and skill of these special attorneys would be useful.
Subsequent to the enactment of what is now section 515(a), challenges to the authority of special attorneys to appear before grand juries presented a number of courts with the problem of interpretation of the statute. Specific issues raised included whether the commission of the special attorney had to specify (1) the case(s) to be investigated; (2) the district(s) in which the investigation was to take place; and (3) the statute(s) which was to be the basis for the indictment against the defendant. The commission letter of the special attorney was in fact the "specific direction" of the Attorney General, United States v. Huston, 28 F.2d 451, 454 (N.D.Ohio 1928), and it is the language of that letter which formed the basis for motions to dismiss indictments brought by special attorneys.
A rule of strict interpretation was formulated in United States v. Goldman, 28 F.2d 424 (D.Conn.1928) where an attorney, who was commissioned as a Special Assistant to the United States Attorney for the district of Connecticut, appeared before a grand jury not to assist the district attorney, but to act as a stenographer. In construing the commission of the special attorney, the Court concluded that:
As we understand it, the commission which may be issued under that act must designate the specific case or cases to which the employment relates and the district or districts to which it extends. If this is not so, it would follow that the Attorney General of the United States could, under the act now under discussion, issue a roving commission without any limitations, extending to every district in the United States and embrace all criminal investigations.
Goldman, supra at 430. No other court has adopted such a strict interpretation of the statute. Indeed, other cases not discussed by the court in Goldman, had established that the commission need not name every case to be investigated and every district in which the investigation was to take place. Such was the holding in United States v. Morse, 292 F. 273 (S.D.N.Y.1922). In that case, one Fletcher Dobyns was appointed a special attorney by the Attorney General to investigate persons engaged in the sale of stock of certain named corporations. The appointment letter specifically referred to the Southern District of New York and to the particular criminal statutes that were being violated. Mr. Dobyns did not limit his investigation to the companies and persons named but extended it to interrelated companies and persons having to do directly or indirectly with the sale of their stock. In upholding the right of Mr. Dobyns to appear before the grand jury in those cases, then district judge Augustus N. Hand concluded that:
The letter of appointment would naturally relate to causes of action, criminal or civil, in which the United States was interested growing out of the relation. I see no reason for assuming, because on the face of the letter no interrelation is set forth, that it is not sufficiently specific. Indeed, it probably is as specific as was possible, if adequate power to deal with the situation without impairment of usefulness or unnecessary reduplication of labor were to be given. Nor does the fact that proceedings may be taken in more than one district render the authority broader than the act of 1906 justifies, for no such limitation seems necessarily involved in the language of the act, and to impose it would cause unnecessary inconvenience in enforcing the law.
Morse, supra at 276. The test relied upon by Judge Hand was "whether the designation as counsel which he received from the Attorney General was sufficiently specific." Id. at 275.
United States v. Huston, 28 F.2d 451 (N.D.Ohio 1928) is in accord with Morse.22 In that case, the special assistant to the Attorney General received two commissions each of which specified several defendants "and others associated with them" to be investigated and which named the statutes violated. The first commission named the Western District of Missouri and the second the district of Minnesota as the places where the cases were pending. The special attorney was authorized to conduct legal proceedings in those two districts "or in any judicial district where the jurisdiction thereof lies." This last phrase became important since the indictment was returned in the Northern District of Ohio. The court, faced with the problem of interpreting what it called "this enigmatical phrase," concluded that the special attorney was not authorized to appear before the grand jury in Ohio for
No charge brought against the defendants here [Ohio] by the bill under consideration has any dependent or ancillary connection with the alleged crimes in either Minnesota or Missouri. Here he [the Special Attorney] began de novo to assist in the development of a possible but independent offense, whose existence depended upon facts peculiarly and particularly within the jurisdiction of this district alone, with which neither the Missouri nor Minnesota district had any concern whatever.
Huston, supra, 28 F.2d at 456. Thus, the fatal element in the Huston case was not that the commission failed to specify the Northern District of Ohio, but that the Ohio investigation was not "ancillary" to the properly authorized investigations in Missouri and Minnesota.
Two cases hold that it is not necessary that the commission letter name the particular statutes on which the indictments were based. The Special Assistant to the Attorney General in United States v. Amazon Industrial Chemical Corporation, 55 F.2d 254 (D.Maryland 1931) received a commission which specified the particular case and several named defendants to be investigated. The commission did not refer to the particular federal statutes which were allegedly violated. The court considered this a "mere matter of form and not of substance," and cited the principle that "even if the wrong statute is named in an indictment, the indictment may be good, provided the facts alleged therein constitute a crime." Amazon, supra at 256-57. United States v. Powell, 81 F. Supp. 288 (E.D.Mo.1948) is to the same effect and is also consistent with Morse, supra. In Powell the Special Attorney was commissioned to investigate irregularities in a certain general election in the Eastern District of Missouri. The indictment returned against the defendants involved the primary election and not the general election. Recognizing that the statute [then 5 U.S.C.A. § 310] was mainly for "the protection of the United States"
and should be given the meaning which is more helpful and practical in the dispatch of the government's business,
the Court concluded
that fraud in a Primary to select candidates for such General Election is not so far removed as to be an abuse of authority or complete deviation from authority, nor is the fact the indictment was returned under a statute other than the statute named in the commission grounds for dismissing the indictment.
Powell, supra, 81 F. Supp. at 291.
Perhaps the case which gives the broadest response to the question "was the special attorneys commission sufficiently specific," see Morse, supra, is United States v. Hall, 145 F.2d 781 (9th Cir. 1944), cert. denied, 324 U.S. 871, 65 S. Ct. 1016, 89 L. Ed. 1425 (1945). After a lengthy and thorough discussion of the power of the Attorney General to appoint special attorneys, District Judge Hall, in United States v. 1,960 Acres of Land, 54 F. Supp. 867 (S.D.Cal.1944) had concluded that the local district attorney must initiate and prosecute condemnation proceedings on behalf of the Government in order to give the court jurisdiction. The Ninth Circuit in Hall disagreed and issued a writ of mandamus directing Judge Hall to assume jurisdiction. The issue involved the setting up of a "lands division" office in the Southern District of California by the Department of Justice. Special Attorneys were assigned to the office and specifically directed to conduct certain "Lands Division" cases as may be assigned to them.
In holding that the special attorneys were authorized to conduct the proceedings, the court concluded
that such authorization need not be directed to specifically designated cases but may be designated and limited descriptively as was done in the instant case by the Attorney General when he authorized Mr. Brett and the attorneys under his immediate direction to act in the kind of cases, to wit, such land cases as from time to time shall be assigned to the Los Angeles Lands Division office.
Hall, supra, 145 F.2d at 785. It should be noted that in Hall the local district attorney had agreed that the specialized work of the Lands Division could best be handled without his assistance. The result was consistent with the legislative history of now section 515(a) where Congress recognized the need for the appointment of special attorneys with "peculiar knowledge and skill."
For almost twenty-six years after the decision in Powell, supra, there were few significant cases in which the power of special attorneys to appear before grand juries was in issue.
This dormant period ended two months ago when in United States v. Williams, 65 F.R.D. 422, (W.D.Mo. 1974) the court dismissed an indictment because of the failure of the Government to sufficiently respond to discovery orders entered by the court which related inter alia to the authority of certain "strike force" attorneys to present the Williams case to the grand jury.
After the Williams case was unofficially reported a number of defendants in this district and others, including Crispino, made motions similar to those in Williams.29
Williams was charged in a one count indictment with making a false entry in a record required to be kept by the labor union of which he was president, a violation of 29 U.S.C. § 439(c). The alleged violation took place in 1969, and since the indictment was not returned until 1974, an issue of pre-indictment delay was raised by the defendant.
At an evidentiary hearing held in July, 1974 in connection with several pending motions, the court, apparently sua sponte, questioned the authority of the strike force attorneys to appear before the grand jury in the Western District of Missouri. Subsequent to that hearing the defendant made motions for dismissal based on the appearance of an unauthorized attorney before the grand jury.
Motions were also made pursuant to Rules 7 and 16 of the Federal Rules of Criminal Procedure for a bill of particulars and discovery relating to internal guidelines, agreements and memoranda of the Department of Justice as to the authority of the strike force attorneys to appear before the grand jury and the efforts made to secure approval from the Justice Department for the prosecution of Williams. On October 21, the court granted the motion for discovery and directed the material to be produced for its in camera inspection.
In response to the court's order, the government took the position that the special attorney was properly authorized under section 515(a) and that any requests for purely internal documents of the Justice Department would violate the interests of confidentiality in law enforcement and the exercise of prosecutive discretion. The government also asked the court to reconsider its initial order, and stated that it might "suffer dismissal" of the case if the order was not modified. The court refused to modify its original order and on November 15, 1974 issued a lengthy opinion and order which gave the government ten additional days to comply with the order. When the government did not make an adequate response, the court issued an order on December 3, 1974 dismissing the indictment with prejudice.
The case at bar differs from Williams in several respects: (1) there are no issues involving pre-indictment delay; (2) questions concerning who actually signed the commission letter and whether internal Justice Department documents should be produced are not seriously pressed;
and (3) most important of all, the commission letters of the special attorneys in Williams differ markedly from the commission letter of Mr. Padgett. The commission letter set out in full in the Williams case authorized the special attorney [Mr. DeFeo] to assist in the trial of cases growing out of certain transactions named in the letter. The letter then specified over twenty different statutes which may have been violated. Included among the list was 29 U.S.C. § 439, the statute under which Williams was indicted. This court must respectfully disagree with any intimation made by the court in Williams in its analysis of section 515(a) and the cases construing that section (see the November 15, 1974 opinion in Williams at pp. 24-36), that the special attorneys in that case were not properly authorized to appear before the grand jury. Those commissions are consistent with the analysis of the commissions in the cases discussed supra, and were clearly "sufficiently specific" as called for by Judge Hand in Morse, supra.34
But what of the commission of Mr. Padgett in this case? Is it consistent with the intent of Congress in passing the act of 1906, with the cases construing that act, and with the practice of other Attorney Generals who have issued commissions to special attorneys? Is it "sufficiently specific"? This court concludes that it is not.
The first paragraph of Mr. Padgett's commission states:
The Department is informed that there have occurred and are occurring in the Southern District of New York and other judicial districts of the United States violations of federal criminal statutes by persons whose identities are unknown to the Department at this time.
The second paragraph appoints Mr. Padgett a special attorney to assist in the trial of and conduct proceedings in connection with the "aforesaid cases." But what are these "aforesaid cases"? The first paragraph says they are cases involving the violation of "federal criminal statutes." Can this be considered a "specific direction from the Attorney General as required by the statute"? Is this commission "sufficiently specific"? Clearly not. It is precisely the opposite. It is as broad and as vague as possible. Nowhere in the commission is there any attempt to give a description of the type of cases -- such as "organized crime cases," or "Lands Division cases," or "tax fraud cases," etc. -- which Mr. Padgett may be commissioned to investigate and present to grand juries.
The legislative history of section 515(a) and the cases analyzed in this opinion show that it is not necessary to specify in the commission letter all the defendants who may be indicted, or all the cases which are pending, or all the statutes which may be violated for the statute should be given an interpretation that is helpful to the prosecution of cases by the government. But the one element that is common to every case which has either upheld or dismissed challenges to the authority of special attorneys to appear before grand juries is that the commission letter at least described particularly the type of cases (e.g., "Lands Division" cases in United States v. Hall, supra) that the special attorneys were to present to grand juries.
That element is conspicuously missing in this case. Nowhere is there an attempt to conform to the intent of Congress in limiting the appearance of special attorneys before grand juries to "cases of particular importance" where those "specially or particularly qualified" by reason of "peculiar knowledge and skill" would be helpful to the prosecution of important cases by the government. Surely it is no argument to say that any violation of a "federal criminal statute" involves a case of particular importance where those with peculiar knowledge and skill not possessed by the local United States Attorney and his assistants are needed to prosecute the case.
The commission letter issued to Mr. Padgett is a bold assertion of authority by the Attorney General to appoint special attorneys in any case regardless of its importance and regardless of whether any particular skill or knowledge is required. If upheld it would allow these special attorneys to supersede the local United States Attorneys and their regular assistants, whose statutory duty for the last 186 years has been to prosecute all offenses against the United States in their districts, in any cases involving a violation of a "federal criminal statute." Congress never intended to give such a broad authority when it passed the Act of 1906 even if the statute be for the "protection of the United States," and no case construing that statute supports such a proposition.
Moreover, the practice of a number of Attorney Generals for at least 50 years had been to make the commission letter as specific as possible so as to comply with the intent of Congress. Such a longstanding policy of construction by a number of Attorney Generals cannot be overlooked. In response to inquiries made by this court, the attorney in charge of the "strike force" for this district furnished the court for its in camera inspection an internal Department of Justice memorandum of May 18, 1972, from Mr. Joseph Cella of the Criminal Division to Mr. Harold Koffsky, Chief of the Legislation and Special Projects Section of the Criminal Division. It was shortly after this memorandum was submitted that the Department changed the form of the commission letter from that such as given to Mr. DeFeo in Williams, to the type issued to Mr. Padgett.
Undoubtedly, the Attorney General of the United States has a serious and difficult responsibility in combating "organized crime."
If he feels that the local United States Attorneys and their regular assistants cannot be as effective in the prosecution of "organized crime" cases as special attorneys, then he should be able to appoint special attorneys with particular knowledge and skill to prosecute those cases and present them to the grand jury.
That is precisely why Congress passed what is now section 515(a). But that power is limited to such specialized areas as cases against "organized crime" and was never meant to extend to the prosecution of any case which involved a violation of "a federal criminal statute." If the Attorney General felt that the commissions to his special attorneys would be unduly restrictive if they were limited to "organized crime cases" or "Lands Division cases," etc., then he should have asked Congress to amend section 515(a). He had no authority to issue a broad roving commission such as the one given to Mr. Padgett with its complete lack of any specific direction.
It is of little consequence that the indictment presented by Mr. Padgett to the grand jury concerned an "organized crime" case, for no mention of "organized crime" cases was made in his commission. It is the assertion of authority by the Attorney General in issuing the broad and sweeping commission that cannot stand.
This court is aware of the impact this decision may have upon the special attorneys already designated by the "blanket commissions," and the cases already presented to grand juries by those attorneys. However, Congress has placed certain limitations and requirements on the appointment of special attorneys, and these conditions have not changed in almost seventy years despite an attempt at amendment of the Act.
The intent of Congress cannot be changed by the unilateral act of the Attorney General. The importance of requiring a department to adhere to the letter of the enabling legislation is basic to the preservation of the balance between the branches of our government. Recent events have shown that abuse results when that rule is not observed.
One final question must still be answered -- does the unauthorized appearance of Mr. Padgett before the grand jury require the dismissal of the indictment? A long line of cases supports the policy as expressed in United States v. Edgerton, 80 F. 374 (D.Montana 1897):
There must not only be no improper influence or suggestion in the grand jury room, but, as suggested in Lewis v. Commissioners, 74 N.C. 194, there must be no opportunity therefor. If the presence of an unauthorized person in the grand jury room may be excused, who will set bounds to the abuse to follow such a breach of the safeguards which surround the grand jury?
See United States v. Carper, 116 F. Supp. 817 (D.D.C.1953); United States v. Bowdach, 324 F. Supp. 123 (S.D.Fla.1971); United States v. Isaacs, 347 F. Supp. 743 (N.D.Ill.1972). See also United States v. Daneals, 370 F. Supp. 1289 (W.D.N.Y.1974). Compare United States v. Rath, 406 F.2d 757 (6th Cir.), cert. denied, 394 U.S. 920, 89 S. Ct. 1196, 22 L. Ed. 2d 453 (1969). Clearly, the list of persons permitted to appear before grand juries by Rule 6(d) of the Federal Rules of Criminal Procedure does not include unauthorized government attorneys.
The indictment must be dismissed. So ordered.
ON MOTION FOR RECONSIDERATION (March 24, 1975)
The indictment in this case was dismissed in an opinion and order dated February 13, 1975. The government now asks for reconsideration (reargument) of that decision and reinstatement of the indictment in the light of several recent decisions in this Circuit. See United States v. Albanese, 74 Cr. 814 (E.D.N.Y. February 19, 1975); United States v. Brown, 389 F. Supp. 959 (S.D.N.Y., 1975); Sandello v. Curran, M-11-18 (S.D.N.Y. February 27, 1975); In re Langello, 74 Cr. 638 (E.D.N.Y. February 27, 1975); United States v. Jacobson, 74 Cr. 936 (S.D.N.Y. March 3, 1975). See also In re Persico, 75 Civ. 96 (E.D.N.Y. February 7, 1975).
The defendant has opposed the motion as untimely under local rule 9(m). It would perhaps be the better part of valor to take refuge in that rule and decline to entertain the motion. I have chosen however to reconsider my opinion in the light of my brothers' decisions. I still adhere to the original opinion.
The government for the first time has brought to my attention that there are detailed procedures internal to the Department of Justice which coordinate the work of United States Attorneys and "Strike Force" Attorneys. However neither that disclosure nor a careful consideration of the broad powers vested in the Attorney General pursuant to 28 U.S.C. §§ 509, 510 have persuaded me that the authorization given to Mr. Padgett was proper. These sections were given due consideration at the time of preparation of the earlier decision; no reference to them was made since the specific statute 28 U.S.C.A. § 515(a) controlled and in effect limited or modified the broad powers vested in the Attorney General by §§ 509, 510. Statutory construction would indicate that the specific statute rather than the general statute controls.
Admittedly time and conditions have changed from 1906, especially in the area of organized criminal activity. This gives the Attorney General no excuse for circumventing enabling legislation no matter how sincere his intentions.
Mr. Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 479, 48 S. Ct. 564, 573, 72 L. Ed. 944 (1928) expresses my sentiments with respect to this argument:
"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. * * * The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
Several of my brothers' opinions indicate that the authorization letters such as Mr. Padgett's which are now issued to "Strike Force" Attorneys can be "comfortably" read to include "specific directions" from the Attorney General as required by section 515(a). They are apparently so construed because the authorization letters direct those attorneys to conduct any kind of legal proceedings. No previous court has so construed the letters unless there was a sufficient specific authorization with reference to a definable subject matter. Whether such specific authorization could be found in Mr. Padgett's letter was the very question which had to be answered. My conclusion in this case was that the authorization to conduct any kind of proceeding in any case involving a violation of a federal criminal statute was not sufficiently specific to satisfy the statute.
My brothers have chosen to ignore the fact that the Attorney General in 1945 was "uncomfortable" enough with the "specifically directed" language of section 515(a) to submit legislation to the Congress which had as its sole purpose the elimination of the "when specifically directed" requirement. See Crispino note 40. The legislation died in committee. This plain though tacit disapproval of any dilution of the statutory requirement by the only body that can delineate the powers of the Attorney General was not mentioned in any of their opinions.
I must assume that the internal memorandum of the Justice Department on the question of authorization (See Crispino at 779) was not asked for or read by my brothers. Knowledge of its contents is incompatible with a finding that section 515(a) can be "comfortably read" to encompass the Padgett type authorization.
I must also disagree with the portrayal by my colleagues of the dire consequences that could result if "Strike Force" Attorneys are found to have been operating without proper authorization since 1972. The spectre of convictions being overturned and racketeers let loose is, in my opinion, illusory. A motion to dismiss an indictment based upon the presence of an unauthorized person before the grand jury must be made prior to trial or it is waived. See Advisory Committee Note To Rule 12 of the Federal Rules of Criminal Procedure.1a
Much has been made of the fact that Presidents have sent messages to Congress stressing the need and importance of combatting organized crime and that the strike forces have received much publicity before, and budget approval by, Congress. Yet section 515(a) remains in effect as it was enacted in 1906. Such messages and events do not amend laws. Perhaps I have not breathed enough of the air in the different atmosphere that my brothers assert prevails today. Be that as it may I continue to believe in the principle that Congress is the body that must change section 515(a) if that is what is necessary to give the "Strike Force" Attorneys the unfettered discretion they may justifiably need to combat organized crime.
"In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher for good or ill it teaches the whole people by its example." Brandeis, J., in Olmstead, supra at 485 of 277 U.S., at 575 of 48 S. Ct.
The motion is denied.