Persico, In re

Decision Date19 June 1975
Docket NumberNo. 880,D,880
Citation522 F.2d 41
PartiesIn re Grand Jury Subpoena of Alphonse PERSICO, Appellant. ocket 75-2030.
CourtU.S. Court of Appeals — Second Circuit

Nancy Rosner, New York City, for appellant.

David G. Trager, U. S. Atty., E. D. N. Y., by William I. Aronwald and Robert Del Grosso, Special Attys., U. S. Dept. of Justice (Sidney M. Glazer and Victor D. L. Stone, Departmental Attys., U. S. Dept. of Justice, of counsel), for appellee.

SUMMARY

I. Facts

II. Alleged Threat of Organized Crime and response of the Federal Government

III. Organization of Strike Forces

IV. Relationship between locally and centrally controlled prosecutors

A. History

B. Summary of present powers of Attorney General

C. 28 U.S.C. § 543

D. 28 U.S.C. § 515(a)

1. Language of § 515(a)
2. Legislative history of § 515(a)

a. Precursor limitations on outside counsel

b. Rosenthal, Cobbin and Twining cases

c. Act of June 30, 1906

3. Court construction of § 515(a)

V. Inappropriateness of too narrow an interpretation of applicable provisions

VI. Inapplicability of Rules of Criminal Procedure limiting appearance before grand juries

VII. Power of Assistant Attorney General to exercise authority of Attorney General

VIII. Conclusion

Appendix Guidelines establishing relationship between Strike Forces and United States Attorneys

Before SMITH and TIMBERS, Circuit Judges, and WEINSTEIN, District Judge. *

WEINSTEIN, District Judge:

The record of full hearings and arguments and of a series of affidavits and other documents fully supports the trial

judge's determinations that appellant contemptuously refused to answer questions before a grand jury and that no questions to him were based on unlawful electronic surveillance. His claim, though unfounded, that the government attorney who questioned him before the grand jury lacked power to do so, requires more extended treatment. At stake is the power of the Department of Justice's Organized Crime Strike Force to effectively prosecute crime.

I. FACTS

Alphonse Persico was subpoenaed in January of 1974 to appear before a grand jury sitting in the Eastern District of New York, investigating infiltration of racketeers into legitimate businesses. 18 U.S.C. § 1962. He was given testimonial immunity and testified that he had an illegal gambling business involving "horses, sports and numbers," but he refused to identify his employees on the ground that the questions were the result of illegal electronic surveillance. Judge Judd rejected this argument, found Persico in civil contempt, and sentenced him to no more than sixty days in the custody of the United States Marshal. 28 U.S.C. § 1826(a). The order was affirmed. In re Persico, 491 F.2d 1156 (2d Cir.), Cert. denied sub nom. Persico v. United States, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158 (1974).

After the sentence had been served, the government re-subpoenaed Persico to appear before the same grand jury. He moved for an order requiring: (1) a demonstration by the attorneys of the Justice Department's Organized Crime Strike Force of their authority to conduct grand jury proceedings; and (2) filing of affidavits affirming or denying electronic surveillance of Persico's attorney and of several named places in which Persico had a proprietary interest or was known to frequent.

Again Judge Judd ordered Persico to testify. Once more he appeared before the grand jury, was granted testimonial immunity anew, and refused to testify concerning the identity of those involved in his enterprises. Following a hearing and receipt of affidavits and other documents supporting the government's contention that there was no basis for believing that any illegal electronic surveillance had occurred, Judge Judd found Persico in contempt and sentenced him to incarceration for the remainder of the grand jury's term.

Conducting proceedings before the grand jury was Robert Del Grosso, a Special Attorney of the Organized Crime Section of the Justice Department's Criminal Division, assigned to the Strike Force office investigating organized crime in the Eastern District of New York. He operates under the supervision of the Assistant Attorney General in charge of the Criminal Division, the Chief of the Organized Crime Section and the Deputy Section Chief who are in Washington, and the locally based Attorney-in-Charge of the Eastern District Strike Force field office. The latter coordinates his efforts with the United States Attorney for the Eastern District of New York, who signs applications for immunity orders and indictments returned by the grand jury. In briefs and appearances in court, Mr. Del Grosso is listed as appearing on behalf of the United States Attorney.

The government contends that the Strike Force attorney was properly authorized to appear before the grand jury for the reason, among others, that he bore a commission signed by the Assistant Attorney General in charge of the Criminal Division. The commission states the attorney's authority in broad and general terms:

"November 30, 1972

"Dear Mr. Del Grosso:

"The Department is informed that there have occurred and are occurring in the Eastern District of New York and other judicial districts of the United States violations of federal criminal statutes by persons whose identities are unknown to the Department at this time.

"As an attorney at law you are specially retained and appointed as a Special "Your appointment is extended to include, in addition to the aforesaid cases, the prosecution of any other such special cases arising in the aforesaid district and other judicial districts of the United States.

Attorney under the authority of the Department of Justice to assist in the trial of the aforesaid cases in the aforesaid district and other judicial districts of the United States in which the Government is interested. In that connection you are specially authorized and directed to file informations and to conduct in the aforesaid district and other judicial districts of the United States any kind of legal proceedings, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States Attorneys are authorized to conduct.

"You are to serve without compensation other than the compensation you are now receiving under existing appointment.

"Please execute the required oath of office and forward a duplicate thereof to the Criminal Division.

The validity of this commission under the terms of 28 U.S.C. § 515(a) constitutes the primary issue posed by the appellant in this case. That section appears to require a specific direction of the Attorney General (or, as demonstrated below, a properly authorized Assistant Attorney General). It reads:

"The Attorney General or any other officer of the Department of Justice, or Any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, Conduct any kind of legal proceeding, civil or criminal, including Grand jury proceedings and proceedings before committing magistrates, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought." (Emphasis supplied.)

It is the contention of appellant that the commission constitutes a "roving authority" rather than the specific direction required by section 515(a). As demonstrated below, when viewed in context, the government attorney who carries such a letter has little more freedom to rove than a cog in the clock on the courthouse lobby wall. Even if the authority permitting his appearance before a grand jury was limited by the phrase "specifically directed," the statute would be satisfied. To understand why that is so, we turn first to a consideration of some of the problems faced by the Department of Justice, in

their historical setting. II. ALLEGED THREAT OF ORGANIZED

CRIME AND RESPONSE OF THE FEDERAL GOVERNMENT

Since World War II the public has become increasingly aware, largely through a succession of Congressional investigations, of charges respecting the awesome dimensions of organized criminal activity in this country. See, e. g., Hearings Before the Special Senate Comm. to Investigate Organized Crime in Interstate Commerce, 81st Cong., 2d Sess. and 82nd Cong., 1st Sess., pts. 1-15 (1950-51); Senate Select Comm. on Improper Activities in the Labor or Management Field, 1st Interim Rep., Sen.Rep.No. 1417, 85th Cong., 2d Sess. (1958); Id., 2d Interim Rep., Sen.Rep.No. 621, 86th Cong., 1st Sess., pts. 1-2 (1959); Id., Final Rep., Sen.Rep.No. 1139, 86th Cong., 2d Sess., pts. 1-4 (1960); Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Gov't Operations on Gambling and Organized Crime, 87th Cong., 1st Sess., pts. 1-3 (1961); Senate Comm. on Gov't Operations, Organized Crime and Illicit Traffic in Narcotics, Sen.Rep.No. 72, 89th Cong., 1st Sess. (1965); Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Gov't Operations on Labor Racketeering Activities, 89th Cong., 2d Sess. (1966); Hearings Before Organized crime has been defined as an intricate, centralized, nationwide network of persons engaged primarily in "crimes that cannot be perpetrated profitably by small criminal systems." D. Cressey, Organized Crime and Criminal Organizations 10 (1971). A Presidential Commission has characterized organized crime as,

a Subcomm. of the House Comm. on Gov't Operations on the Federal Effort Against Organized Crime, 90th Cong., 1st Sess. (1967); House Comm. on Gov't Operations, Federal Effort Against Organized Crime, H.R.Rep.No. 1574, 90th Cong., 2d Sess. (1968); Hearings Before a Subcomm. of the House Comm. on Gov't Operations on the Federal Effort Against Organized Crime: Role of the Private Sector, 91st Cong., 2d Sess. (1970); Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Gov't Operations on Organized Crime...

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