Delpit v. Beckner
| Decision Date | 30 November 1979 |
| Docket Number | Civ. A. No. 79-534-B. |
| Citation | 481 F. Supp. 42 |
| Parties | Joseph A. DELPIT v. Donald L. BECKNER and a United States Grand Jury. |
| Court | U.S. District Court — Middle District of Louisiana |
Murphy W. Bell, Robert C. Williams, R. Judge Eames, Baton Rouge, La., for plaintiff.
C. Michael Hill, Asst. U. S. Atty., Baton Rouge, La., for defendants.
DECISION AND ORDER
Plaintiff, Joseph A. Delpit, has filed a "PETITION FOR DECLARATORY JUDGMENT INJUNCTIVE RELIEF AND/OR EXTRAORDINARY WRIT OF MANDAMUS" seeking an order from the Court expunging certain references to Delpit from a grand jury indictment which plaintiff claims names him as an unindicted co-conspirator. The indictment in question was returned by a grand jury in this district on October 27, 1978, in Criminal Number 78-35, "United States of America v. Lee T. Wesley and Kent J. Smith, Sr."
Motions for summary judgment have been filed by each side. It is undisputed that plaintiff Delpit is a duly elected member of the Louisiana House of Representatives, that he is a black man,1 that he was not named as a defendant in the Wesley-Smith indictment, that he was not indicted in any other indictment relating to the Wesley-Smith affair, and that Wesley and Smith have been tried and each convicted of five of the six counts in the indictment. Those convictions are on appeal.
Initially, the government asserts that no relief can be granted to plaintiff because the term of the grand jury which returned the indictment has long since expired and it has been discharged. The government also claims that the U. S. Attorney has no authority to alter a grand jury indictment, once returned. Under United States v. Briggs, 514 F.2d 794 (5th Cir. 1975), and the authorities cited and discussed therein, plaintiff has standing to challenge the wording of the indictment, this is an actual case or controversy and, should plaintiff be entitled to relief, this Court has the power to grant it.
The indictment against Wesley and Smith, returned October 27, 1978,2 contains six counts and is twenty-one pages in length. Count I generally charges a conspiracy to violate 42 U.S.C. § 2971f, to willfully misapply funds which were the subject of a federal grant and a conspiracy to defraud the United States by impairing and obstructing governmental functions in violation of 18 U.S.C. §§ 371 and 372. The remaining counts are substantive charges of willful misapplication of funds in violation of 42 U.S.C. § 2971f.
Plaintiff claims that the indictment marks him as an unindicted co-conspirator with Wesley and Smith, while the government denies that he is named as such. Without question in the Fifth Circuit, grand juries may no longer name and identify unindicted co-conspirators in their indictments. U. S. v. Briggs, supra.
The indictment charges that Wesley and Smith were, respectively, the director and the administrative assistant to the director of the East Baton Rouge Parish "Anti-Poverty Agency" known as "CAI." The conspiracy count, the only one in which Delpit is mentioned, alleges a "scheme" at great length and also alleges many overt acts allegedly undertaken in furtherance of the conspiracy. Those portions of the indictment pertinent to this dispute read as follows:
The government, in its motion for summary judgment, insists that the above-quoted allegations were necessary to explain the offenses with which Wesley and Smith were charged and that neither Delpit nor the other unindicted persons named in the indictment were "unindicted co-conspirators." In support of that position, the government attaches a portion of the transcript from Criminal No. 78-35. There, the attorneys for Wesley and Smith made a motion to strike all of the above-quoted language from the indictment on the grounds that it was surplusage. The transcript indicates that the attorneys for Wesley and Smith did not consider that the other people named, including Delpit, were co-conspirators. Judge Hunter, who presided at the trial of Wesley and Smith, declined to grant the motion to strike but noted that it was "without prejudice to the defendants to object to evidence in support of these portions of the indictment when the case goes to trial." (Transcript, p. 26)
There is a growing tendency of the judiciary to exercise more control over pronouncements by grand juries, whether in the form of formal indictments or reports issued by the jury. Expunction of portions of indictments and reports has been justified upon the basis of the inherent unfairness of official accusation of wrongdoing without provision of a forum for vindication of those thus accused. That situation is aptly illustrated by United States v. Briggs, supra. There, federal grand jury indictment named ten individuals as co-conspirators but only indicted seven of them. Upon application of two of the named unindicted co-conspirators, the Court of Appeals ordered their names expunged from the indictment, despite the fact that the named defendants had been tried and acquitted.
The government correctly points out here that this indictment does not use the words "unindicted co-conspirators" in connection with Delpit's name and thus argues that Briggs is distinguishable.
Fair interpretation of the language of the indictment quoted above is that Wesley and Smith conspired with each other "and with other persons known and unknown" to violate the law, that their scheme included securing Delpit's assistance to obtain Wesley's appointment as executive director and that $12,151.70 of the "willfully misapplied"...
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