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November 6, 1984


The opinion of the court was delivered by: GLASSER


GLASSER, United States District Judge:

 An application was submitted to this Court on behalf of Ronald A. Schiavone and the Schiavone Construction Company (the "Applicants"), requesting the Court to appoint one or more members of the Bar of the Court to serve as independent counsel, to investigate whether Mario Montuoro gave false evidence and made false stastements in violation of Federal law and to prosecute for any violation of Federal criminal law warranted by that investigation. During the course of oral argument, the Government moved for leave to intervene, which was granted.

 The application is based upon the following allegations:

 Mario Montuoro has a criminal record that includes four arrests, one in 1969 for possession of heroin, and one in 1974 for possession of a gun;

 Montuoro has an established relationship with the United States Department of Justice as an informer. For example, in an organized crime case in 1981, Montuoro was a witness on behalf of the prosecution, and the defendant was convicted;

 Montuoro's cooperation with the Justice Department might have stemmed from motives of revenge against people about whom he has given information, and, in view of his criminal record, from a desire to ingratiate himself with the prosecutor's office;

 In 1979 and thereafter, Montuoro told Federal agents, including members of the Federal Organized Crime Strike Force in Brooklyn, that Raymond J. Donovan and Ronald A. Schiavone, as officers of Schiavone Construction Company, were guilty of participating in an illegal cash payment to a union officer. The payment was said to have been made at a luncheon at Prudenti's Restaurant in May or June of 1977;

 In 1981, Raymond J. Donovan became Secretary of Labor of the United States. Later the same year, a division of the United States Court of Appeals for the District of Columbia Circuit appointed Leon Silverman Special Prosecutor, expressly to investigate Montuoro's allegation about the luncheon at Prudenti's;

 Under an order of the United States District Court for the Eastern District of New York, issued at the request of the Special Prosecutor, Montuoro testified before a grand jury, and repeated the allegation regarding the luncheon at Prudenti's. The grand jury unanimously returned a no true bill on the allegation;

 After an exhaustive investigation of Montuoro's allegation, the Special Prosecutor found that Montuoro's specifications of dates were "inconsistent," that his attempts to relate the luncheon to other events "proved to be illusory," and that there is "no evidence corroborating Montuoro's assertion that any Prudenti's lunch attended by Messrs. Donovan, DiCarolia, Schiavone, Lugori, Sanzo, and Montuoro himself occurred at or near the time he alleged or, for that matter, at any other time examined in the course of this investigation." In short, the Special Prosecutor concluded that "no credible evidence exists that a luncheon as alleged by Montuoro ever occurred;"

 Montuoro's conduct, as described in the preceding paragraphs, would justify indictments against him for several federal crimes, including Perjury (18 U.S.C. 1621), False Declaration Before a Grand Jury (18 U.S.C. 1623), False Statements (18 U.S.C. 1001), Obstruction of Justice (18 U.S.C. 1505), and/or Contempt (18 U.S.C. 401);

 Although formal requests have been made of the Justice Department by Ronald Schievone that Montuoro be prosecuted, the Department has not sought any indictment of Montuoro. The statute of limitations has now run on Criminal Contempt, but has not yet run on the other crimes.

 Affidavits by six persons characterized as highly qualified experts on the professional responsibilities of prosecutors *fn1" are submitted in support of the application. Those persons are unanimous in their conclusion that members of the Department of Justice have a conflict of interest in violation of applicable standards of professional conduct with regard to investigating and prosecuting Mario Montuoro and that this Court should resolve the conflict of interest by appointing independent counsel to investigate and, if warranted, prosecute Montuoro. Federal authority for such an appointment in a case such as this is not furnished in any of those affidavits.


 A variety of arguments are urged upon the Court to move it to grant the requested relief. Only those deemed relevant to the crucial question of the jurisdiction and authority of the ...

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