In re Grand Jury Application, 85 Civ. 2235 (VLB).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation617 F. Supp. 199
Docket NumberNo. 85 Civ. 2235 (VLB).,85 Civ. 2235 (VLB).
PartiesIn the Matter of In re GRAND JURY APPLICATION.
Decision Date25 April 1985

Neal Schwarzfeld, Schwarzfeld, Ganfer & Shore, New York City, for Bandler & Kass, Robert Sylvor and William J. Werner.

Russell, Piccoli, Phoenix, Ariz., Herbert C. Ross, Jr., Rogers Hoge & Hills, New York City, for plaintiffs.

Susan Harkins, Asst. U.S. Atty., New York City, for U.S. Atty.

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

Plaintiffs, in their complaint and now by motion, seek either a writ of mandamus to compel the United States Attorney to present the "facts" concerning alleged criminal wrongdoing of certain named defendants to the grand jury or for me to request the grand jury to hear testimony by plaintiff's attorney, Mr. Piccoli, concerning that wrongdoing.1 They base their complaint and motion on 18 U.S.C. § 3332(a), which states:

It shall be the duty of each such grand jury impaneled within any judicial district special grand juries impanelled pursuant to 18 U.S.C. § 3331 to inquire into offenses against the criminal laws of the United States alleged to have been committed within that district. Such alleged offenses may be brought to the attention of the grand jury by the court or by any attorney appearing on behalf of the United States for the presentation of evidence. Any such attorney receiving information concerning such an alleged offense from any other person shall, if requested by such other person, inform the grand jury of such alleged offense, the identity of such other person, and such attorney's action or recommendation.

At the outset, I would point out that plaintiffs do not seek to compel the U.S. Attorney to prosecute the named defendants. Rather, they seek to have either the court or the United States Attorney present certain information to the grand jury. This distinction is critical because almost the entirety of the opposition to plaintiffs' motion is based on the mischaracterization by the U.S. Attorney and the other defendants of plaintiffs' motion as one seeking to compel the U.S. Attorney to initiate proceedings against the other defendants.

Thus the U.S. Attorney argues that plaintiffs lack standing to bring this suit because "a private litigant lacks a sufficiently distinct interest in a criminal prosecution to compel its initiation." Govt. Memo at 7, citing Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973); see Leeke v. Timmerman, 454 U.S. 83, 86-87, 102 S.Ct. 69, 70-71, 70 L.Ed.2d 65 (1981); Heckler v. Chaney, ___ U.S. ___, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) and other cases. He argues that because presenting the information to the grand jury might not lead to an indictment, or conviction, or ultimately to an award in the plaintiffs' pending civil action, plaintiffs' interest is too attenuated from the relief sought to justify allowing them to bring the instant action.

"Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute." Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3, 93 S.Ct. 1146, 1148 n. 3, 35 L.Ed.2d 536 (1973). See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212, 93 S.Ct. 364, 368, 34 L.Ed.2d 415 (1972) (White, J., concurring); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6, 88 S.Ct. 651, 654, 19 L.Ed.2d 787 (1968). When determining whether a plaintiff has standing, I need only examine the complaint to see if the plaintiff has alleged that he has suffered a cognizable injury. Nash v. Califano, 613 F.2d 10, 14 (2d Cir.1980). 18 U.S.C. § 3332(a) creates a duty on the part of the United States Attorney that runs to the plaintiffs, and the breach of that duty gives the plaintiffs standing to seek its enforcement.2

The defendants contend that "the decision to prosecute is the exclusive prerogative of the Executive Branch." Govt.Memo at 10, citing United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Nathan v. Smith, 737 F.2d 1069 (D.C.Cir.1984); Inmates of Attica Correction Facility v. Rockefeller, 477 F.2d 375 (2d Cir.1973); Powell v. Katzenbach, 359 F.2d 234 (D.C.Cir.1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966), and other cases. They characterize plaintiffs' complaint and motion as attempts to compel the U.S. Attorney to prosecute the other named defendants, and, relying on the above cited cases, argue that courts have uniformly denied such relief. But no case cited has considered the requirements imposed by 18 U.S.C. § 3332(a). The only opinion I have found that even indirectly deals with the issue presented in this case is Judge Bork's concurring opinion in Nathan v. Smith, 737 F.2d 1069 (D.C.Cir.1984).

In Nathan, the issue was prosecutorial discretion under the Ethics in Government Act, 28 U.S.C. §§ 591 et seq. Section 591(a) provided3 in relevant part:

The Attorney General shall conduct an investigation pursuant to the provisions of this chapter whenever the Attorney General receives specific information that any of the persons described in subsection (b) of this section has committed a violation of any Federal criminal law other than a violation constituting a petty offense.
Judge Bork stated:
It may be thought that neither the relief granted by the district court nor that sought by the plaintiffs falls within the principle of Executive control of decisions to prosecute. The district court ordered the Attorney General to initiate a preliminary investigation; the plaintiffs seek to compel an application for the appointment of an independent counsel. The distinction between these remedies and the prosecutorial discretion principle discussed above has no significance, however. The only purpose of the preliminary investigation under the Ethics Act is to enable a report to the special division of this court about the need or the lack of a need for the appointment of independent counsel. The preliminary investigation is thus the first stage of the prosecutorial process and the district court has undertaken to control that stage.
Plaintiffs would have the district court control the next stage as well ordering the Attorney General to apply to the special division of this court for the appointment of an independent counsel. It is no answer to say that the courts, under either form of relief, would not control the final prosecutorial decision since that would be made by the independent counsel. There are at least two flaws in that reasoning. The first is that the principle of Executive control extends to all phases of the prosecutorial process. Thus, were this a case about an ordinary prosecution under a federal criminal statute, a plaintiff could not escape the principle discussed by demanding only an order that the Attorney General present facts to a grand jury but leaving the decision whether to sign any indictment to him. Second, if private plaintiffs have the legal ability to require an investigation of criminal charges, it is difficult to understand by what principle they could be denied a cause of action to compel the independent counsel to prosecute if that counsel had sufficient evidence to do so under the policies of the Department of Justice, which the Act requires him to follow. 28 U.S.C. § 594(f) (1982). If the execution of the laws is lodged by the Constitution in the President, that execution may not be divided up into segments, some of which courts may control and some of which the President's delegate may control.
It is all the law enforcement power and it all belongs to the Executive. It may be that answers can be given that avoid or modify these traditional views. No such answers have been offered in this case, however.

737 F.2d at 1079 (emphasis added).

Contrary to what Judge Bork stated, Congress has divided the execution of the law into segments, with the presentation of information to the grand jury concerning racketeering violations being an area where the prosecutor's discretion was explicitly removed. Judge Bork himself recognized that judicial opinion was not unanimous on this question. The portion of his concurrence emphasized above is a criticism of the decision of the Fifth Circuit Court of Appeals in United States v. Cox, 342 F.2d 167 (5th Cir.1965). In Cox a 4-3 majority held that a United States Attorney could not be compelled to sign an indictment returned by the grand jury, and that without his signature the indictment would have no legal effect. 342 F.2d at 172. A different 4-3 majority held, however, that the United States Attorney could be required to assist the grand jury by drafting an indictment in accordance with their wishes, even if he had no intention of signing it if it were voted a true bill. 342 F.2d at 181. Accord, Report and Recommendation of June 5, 1972 Grand Jury, 370 F.Supp. 1219 (D.D.C.1974).

In other contexts, courts have acknowledged that prosecutorial discretion is not absolute. In Powell v. Katzenbach, 359 F.2d 234, 235 (D.C.Cir.1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966), the court stated: "we will assume, without deciding, that where Congress has withdrawn all discretion from the prosecutor by special legislation, a court might be empowered to force prosecutions in some circumstances." This term in Wayte v. United States, ___ U.S. ___, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), the Supreme Court stated that prosecutorial discretion is not "`unfettered.' Selectivity in the enforcement of criminal laws is ... subject to constitutional constraints." ___ U.S. at ___, 105 S.Ct. at 1531 (quoting United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979)).

Also this term, in Heckler v. Chaney, ___ U.S. ___, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Supreme Court equated an agency's refusal to take requested...

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