Application of President's Com'n on Organized Crime, 85-5232

• Citation: 763 F.2d 1191
• Decision Date: 29 May 1985
• Docket Number: No. 85-5232,85-5232
• Parties: In re Application of the PRESIDENT'S COMMISSION ON ORGANIZED CRIME. Subpoena of Lorenzo SCADUTO, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1191

763 F.2d 1191

54 USLW 2056

In re Application of the PRESIDENT'S COMMISSION ON ORGANIZED CRIME Subpoena of Lorenzo SCADUTO, Appellant.

No. 85-5232.

United States Court of Appeals Eleventh Circuit.

May 29, 1985.

Benedict P. Kuehne, Jon A. Sale, Bierman, Sonnett, Shohat & Sale, P.A., Miami, Fla., Ronald P. Fischetti, Fischetti, Feigus & Pomerantz, Warren L. Feldman, Anne C. Feigus, New York City, for appellant.

Jonathan J. Rusch, Counsel, President's Com'n on Organized Crime, Washington, D.C., Stanley Marcus, U.S. Atty., Linda Collins-Hertz, Asst. U.S. Atty., Miami, Fla., for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, FAY and JOHNSON, Circuit Judges.

FAY and JOHNSON, Circuit Judges:

This appeal raises a number of important questions regarding the composition and powers of the President's Commission on Organized Crime (the "Commission"). It arises from an order of the United States District Court for the Southern District of Florida, holding appellant Scaduto in contempt for his failure to testify before the Commission. On appeal, Scaduto raises the following issues: 1) whether the appointment of two Article III judges and two members of Congress to the Commission violated the separation of powers doctrine; 2) whether appellant validly invoked his Fifth Amendment privilege against self-incrimination as a consequence of a reasonable fear of foreign prosecution; 3) whether the immunity conferred upon appellant was invalid because of its approval by an Acting Assistant Attorney General in place of the Attorney General; 4) whether the application for a writ of habeas corpus ad testificandum by an Assistant United States Attorney instead of the Attorney General violated P.L. 98-368, Section 3; 5) whether the district court erred in holding the civil contempt statute, 28 U.S.C.A. Sec. 1826, applicable to the instant proceeding.

I. BACKGROUND

On July 28, 1983, President Reagan issued Executive Order 12435, which established the Commission, in accordance with the provisions of the Federal Advisory Committee Act ("FACA"), as amended, 5 U.S.C.A. app. 2, Sections 1-15. Section 2(a) of Executive Order 12435 directed the Commission to:

make a full and complete national and region-by-region analysis of organized crime; define the nature of traditional organized crime as well as emerging organized crime groups, the sources and amounts of organized crime's income, and the uses to which organized crime puts its income; develop indepth information on the participants in organized crime networks; ... evaluate Federal laws pertinent to the effort to combat organized crime[;] ... advise the President and the Attorney General with respect to findings and actions which can be undertaken to improve law enforcement efforts directed against organized crime[;] and make recommendations concerning appropriate administrative and legislative improvements and improvements in the administration of justice.

Exec. Order 12435, Section 2(a), 48 Fed.Reg. 34,723 (1983).

The Commission is composed of nineteen members, including the Honorable Irving R. Kaufman, a Judge of the United States Court of Appeals for the Second Circuit; the Honorable Potter Stewart, a retired Associate Justice of the United States Supreme Court; the Honorable Strom Thurmond, a member of the United States Senate; the Honorable Peter Rodino, Jr., a member of the United States House of Representatives; and other persons with broad experience in law enforcement and criminal justice. Pursuant to section 1(b) of Executive Order 12435, which directs that "[t]he President shall designate a Chairman from among the members of the Commission," President Reagan designated Judge Kaufman as Chairman.

To enable the Commission to fulfill its responsibilities under Executive Order 12435, Congress passed Pub.Law No. 98-368, 98 Stat. 490 (1984), which conferred a variety of powers in aid of the Commission's mandate to investigate and report on organized crime. Under Public Law 98-368, the Commission may hold public hearings; issue subpoenas requiring attendance and testimony of witnesses and the production of information; seek writs of habeas corpus ad testificandum and enforcement of its subpoenas, "upon application by the Attorney General," in federal courts; issue orders compelling testimony under the federal immunity statute, 18 U.S.C.A. Sections 6001-05; obtain access to and use information obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), as amended, 18 U.S.C.A. Sections 2510-20; and obtain other types of information through measures consistent with the terms of Executive Order 12435. P.L. 98-368, Sections 1-4, 6(b), 98 Stat. 490, 490-93 (1984).

On February 5, 1985, the Commission issued a subpoena for appellant Scaduto, a federal prisoner confined at the United States Penitentiary at Terre Haute, Indiana. Scaduto is currently serving a sixty-four year term of imprisonment imposed on November 21, 1984, in the United States District Court for the Eastern District of New York, following his conviction for various violations of the Drug Act. The appeal of his conviction is now pending in the United States Court of Appeals for the Second Circuit; oral argument of Scaduto's appeal was heard on March 25, 1985. Judge Kaufman did not serve on the panel which heard Scaduto's appeal. However, the appeal is presently under submission to the court upon which Judge Kaufman serves as an active circuit judge.

In response to a petition by the Commission through the United States Attorney for the Southern District of Florida, to secure Scaduto's presence at public hearings before the Commission on February 20-21, 1985, in Miami, United States District Judge Joe Eaton issued a writ of habeas corpus ad testificandum.

On February 19, 1985, appellant filed a motion to quash the subpoena and writ of habeas corpus ad testificandum, and a complaint for declaratory and injunctive relief, in the Southern District of Florida. The complaint challenged, inter alia, the constitutionality of the Commission under the separation of powers doctrine, and the authority of the Commission to compel appellant's testimony in light of his alleged fear of foreign prosecution in Italy.

On February 20, 1985, United States District Judge William M. Hoeveler denied Scaduto's motions and ordered him to testify before the Commission in camera or at a private deposition. Judge Hoeveler further ordered that the transcript of appellant's testimony be sealed, and that no one other than the parties have access to it. The court's order specifically prohibited disclosure, either direct or indirect, to any foreign sovereign, including the Italian government. In conformity with that order, counsel for the Commission conducted a deposition, at which appellant was served with an authorized compulsion order, issued pursuant to P.L. 98-368 and 18 U.S.C.A. Sections 6001-05. Scaduto nonetheless continued, through his counsel, to assert a Fifth Amendment privilege.

On the evening of February 20, 1985, the Commission moved to compel appellant's testimony. Early on the morning of February 21, 1985, a hearing was held on that motion before Judge Hoeveler. At that hearing, Judge Hoeveler signed an order compelling Scaduto to testify, under the same conditions earlier specified. At Judge Hoeveler's direction, counsel for the Commission immediately conducted a second deposition of Scaduto in conformity with the court's order. In that deposition, appellant persisted in refusing to answer the Commission's questions, again asserting a privilege against self-incrimination, notwithstanding the judicial and Commission orders issued in connection with the deposition.

After his refusal to testify, appellant was again brought before Judge Hoeveler. Upon review of the record and upon the Commission's motion, Judge Hoeveler orally held Scaduto in contempt, pursuant to 28 U.S.C.A. Sec. 1826. On February 22, 1985, Judge Hoeveler issued a written order of commitment under 28 U.S.C.A. Sec. 1826.

II. ISSUES AND DISCUSSION

A. Separation of Powers

Appellant argues first that the composition of the Commission, which includes two United States Congressmen and two Article III Federal Judges, violates the constitutionally required separation of powers, and renders all action by the Commission void. He contends that the performance by members of the legislature and the judiciary of those executive "law enforcement" activities authorized by P.L. 98-368, which include subpoenaing witnesses and reviewing information intercepted by electronic surveillance, violates the separation of powers. ¹ The tripartite structure established by the Constitution reflects the conferral of separate and distinct powers on the President, the Congress and the Judiciary. The framers of our Constitution embraced "Montesquieu's view that the maintenance of independence as between the legislative, the executive and the judicial branches," was essential to the preservation of liberty. Myers v. United States, 272 U.S. 52, 116, 47 S.Ct. 21, 25, 71 L.Ed. 160 (1926). Thus the departments of government were organized on the principle that "[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 960, 103 S.Ct. 2764, 2789, 77 L.Ed.2d 317 (1983) (Powell, J., concurring in judgment) (quoting The Federalist No. 47, at 324 (J. Madison) (J. Cook ed. 1961)).

This understanding of the separation of powers doctrine has not, however, required that the three departments of government remain absolutely independent or "hermetically sealed" from one another. Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53...