In re Patriarca

• Decision Date: 22 April 1975
• Docket Number: 75-83 to 75-86.,Misc. No. 75-57 to 75-64,75-69,75-70
• Citation: 396 F. Supp. 859
• Parties: In re Grand Jury Subpoenas Addressed to Raymond L. S. PATRIARCA et al.
• Court: U.S. District Court — District of Rhode Island

396 F. Supp. 859

In re Grand Jury Subpoenas Addressed to Raymond L. S. PATRIARCA et al.^*

Misc. Nos. 75-57 to 75-64, 75-69, 75-70, 75-83 to 75-86.

United States District Court, D. Rhode Island.

April 22, 1975.

S. Michael Levin, Sp. Atty., U. S. Dept. of Justice, Lincoln C. Almond, U. S. Atty., Providence, R. I., for plaintiff.

Harvey Brower, Boston, Mass., Harris L. Berson, Providence, R. I., for Raymond L. S. Patriarca.

John F. Cicilline, Providence, R. I., for Frank Marrapese, Albert Parente, Elaine Shean, Thomas Iafrate, Angelo Pizzo, Angelo Fideas, Stephen Broccoli, Frank Caldarone, Ronald Caldarone, Mario Rossi.

John R. Cosentino, Providence, R. I., for William Scungio.

Ronald A. Tutalo, Providence, R. I., for Carmelo Calabro.

John Tramonti, Jr., Providence, R. I., for Anthony Aucone, John C. Davis, Almerico John De Palma, Joseph Pandozzi, Jr., Vincent Policelli.

OPINION

DAY, District Judge.

This matter is presently before the Court on motions to quash eighteen grand jury subpoenas¹ which were issued by the Clerk of this Court pursuant to applications filed on behalf of the United States of America by S. Michael Levin, a "special attorney", so-called, appointed and employed under the auspices of the United States Department of Justice.² The instant motions to quash essentially constitute a challenge to Mr. Levin's legal authority to apply for the issuance of the grand jury subpoenas in question.³ Specifically, each of the eighteen movants has posited the following allegations in support of his respective motion to quash:

(1) Mr. Levin's commission as a special attorney should be considered null and void ab initio insofar as it was not executed by an appropriate government official authorized to make such an appointment.

(2) The procedures employed by the Department of Justice which culminated in Mr. Levin's appointment as a special attorney did not conform to the statutory requirements set forth in section 515(a) of Title 28 of the United States Code.⁴

(3) The purview of Mr. Levin's scope of authority, as it is designated in his letter of appointment, is such as to preclude and prohibit his participation, in any manner whatsoever, in grand jury investigations such as the one in the case at bar.

In addition to the aforementioned allegations directed at Mr. Levin's scope of authority, or lack thereof, the movants, with the sole exception of the movant Patriarca, have proffered the following somewhat less than substantive arguments in support of their instant motions to quash. Specifically, said movants contend that the subpoenas in question should be quashed insofar as—

1. Said subpoenas do not "entitle the proceeding".

2. Said subpoenas are addressed to potential target defendants.

The Government has, on behalf of Mr. Levin, denied the validity of each of the aforementiond claims and has, in addition, submitted the further argument that the movants have no standing to prosecute the instant motions.

Consideration of the merits of these arguments follows immediately below.

I. STANDING OF THE MOVANTS

As previously mentioned, the Government contends that the movants lack the requisite standing to successfully maintain the instant motions. The Government has cited the Supreme Court's decision in the United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)⁵ and the First Circuit Court of Appeals' decision in In re Mintzer, 511 F.2d 471 (1st Cir. decided December 26, 1974), as case law supportive of the contention that the movants lack the standing to seek an order quashing the grand jury subpoenas in question.

It is this Court's considered opinion that the Government's contention that the movants lack the requisite standing to prosecute the instant motions to quash is without merit. This is not a case where a suppression of allegedly illegally obtained evidence is sought.⁶

Most certainly, this Court recognizes that—

"`citizens generally are not constitutionally immune from grand jury subpoenas . . .' and that `the longstanding principle that "the public . . . has a right to every man's evidence" . . . is particularly applicable to grand jury proceedings.'" United States v. Calandra, supra, 414 U.S. at p. 345, 94 S.Ct. at p. 618.

Additionally, this Court acknowledges the need to avoid undue interference with, and delay of, grand jury deliberations. Accordingly, this Court adopts the conclusion set forth in the Calandra decision that a prospective witness is generally not—

"entitled `to challenge the authority of the court or of the grand jury' or `to set limits to the investigation that the grand jury may conduct.'" supra, at p. 345, 94 S.Ct. at p. 619.

It must be noted, however, that unauthorized parties cannot, and should not, be permitted to compel the attendance of prospective witnesses before a federal grand jury. Motions to quash grand jury subpoenas which have been issued pursuant to applications filed by an allegedly unauthorized Government official cannot, therefore, be considered premature. Parties who seek a court order quashing federal grand jury subpoenas which have allegedly been issued on the application of an unauthorized government official clearly have the requisite standing to file, argue and maintain their respective motions to quash.

II. MR. LEVIN'S AUTHORITY TO APPLY FOR THE ISSUANCE OF THE GRAND JURY SUBPOENAS IN QUESTION

Resolution of the inquiry as to whether or not Mr. Levin has lawfully been empowered with the authority to apply for the issuance of the grand jury subpoenas in question, of necessity, involves an analysis of the following three relevant questions:

1. Was Richard G. Kleindienst properly authorized to appoint Mr. Levin as a special attorney?

2. Does Mr. Levin's letter of appointment of May 20, 1971, satisfy the "specificity" requirements set forth in section 515(a) of Title 28 of the United States Code?

3. Does the alleged violation of federal law currently under investigation by the grand jury, and concerning which the movants were subpoenaed to testify, fall within the purview of Mr. Levin's scope of authority as it is designated in his May 20, 1971 letter of appointment?

A. Mr. Kleindienst's Appointment Powers

As previously mentioned, the movants contend that Deputy Attorney General Kleindienst was not, on May 20, 1971, authorized to appoint Mr. Levin as a special attorney. Specifically, the movants contend that the Attorney General of the United States had, on May 20, 1971, the exclusive and sole authority to appoint Mr. Levin as a special attorney. See section 515(a); Cf. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); United States v. Robinson, 359 F.Supp. 52 (S.D.Fla. 1973); United States v. Baldassari, 338 F.Supp. 904 (M.D.Pa.1972). Alternatively, the movants further argue that even if the Attorney General was authorized to delegate his section 515(a) appointment powers to his Deputy Attorney General, no such delegation of authority was made and/or in full force and effect on May 20, 1971.

The Government has argued, in response to the movants' aforementioned allegations, that the Attorney General of the United States was, on May 20, 1971, authorized to delegate his power to appoint Section 515(a) special attorneys. Moreover, the government contends that such a delegation to Deputy Attorney General Kleindienst had, in fact, been made prior to May 20, 1971, and that this delegation was in full force and effect on said date.

When combined with the factual circumstances herein involved, the pertinent case law clearly compels the conclusion that the Attorney General of the United States has now, and had on May 20, 1971, authority to delegate his Section 515(a) power to appoint special attorneys.⁷ The Attorney General's authority to delegate his section 515(a) appointive powers derives from the provisions of section 510 of Title 28 of the United States Code.⁸

The movants' contention that the circumstances existing in the case presently before this Court are analogous to those set forth in the Giordano⁹ case is, as the Government has aptly argued, "totally inappropriate". In the Giordano decision the Supreme Court affirmed a trial court order suppressing certain evidence obtained from unlawful and constitutionally impermissible wiretap interceptions.

The Supreme Court, in Giordano, premised its affirmance of said suppression order on the ground that 18 U.S.C. § 2516(1)¹⁰ specifically prescribes that applications for wiretap orders which are submitted to federal judges must be endorsed exclusively by either the Attorney General of the United States or by an Assistant Attorney General specially designated by the Attorney General. The court order authorizing the wiretaps in the Giordano case was issued pursuant to an application signed by an Executive Assistant to the Attorney General. The Supreme Court held that said application was insufficient to support a court order authorizing a wiretap because—

"Despite § 510, Congress does not always contemplate that the duties assigned to the Attorney General may be freely delegated. Under the Civil Rights Act of 1968, for instance, certain prosecutions are authorized only on the certification of the Attorney General or the Deputy Attorney General, `which functions of certification may not be delegated,' 18 U.S.C. § 245(a)(1). Equally precise language forbidding delegation was not employed in the legislation before us; but we think § 2516(1), fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate. This interpretation of the statute is also strongly supported by its purpose and legislative history . . ." 416 U.S. at p. 514, 94 S.Ct. at p. 1826.

As previously mentioned, the Giordano decision is inapplicable to the circumstances found in the case at bar. Section 515(a) does not, as does section 2516(1), contain any express or implied...