Persico, In re
Decision Date | 19 June 1975 |
Docket Number | No. 880,D,880 |
Citation | 522 F.2d 41 |
Parties | In re Grand Jury Subpoena of Alphonse PERSICO, Appellant. ocket 75-2030. |
Court | U.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)
a. Precursor limitations on outside counsel
b. Rosenthal, Cobbin and Twining cases
c. Act of June 30, 1906
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. *
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:
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.
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.)
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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