The opinion of the court was delivered by: WERKER
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:
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.
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).