U.S. v. Computer Sciences Corp.

Decision Date16 June 1982
Docket Number81-5099,Nos. 81-5053,s. 81-5053
Citation68 A.L.R.Fed. 783,689 F.2d 1181
PartiesUNITED STATES of America, Appellant, v. COMPUTER SCIENCES CORPORATION, John W. Luke, Erwin L. Allen, Thomas A. Marti, Norman W. Derrick, Peter C. Loux, Herbert G. Blecker, Appellees. UNITED STATES of America, Appellant, v. COMPUTER SCIENCES CORPORATION, John W. Luke, Erwin L. Allen, Thomas A. Marti, Norman W. Derrick, Peter C. Loux, Herbert G. Blecker, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Frank J. Marine, Dept. of Justice, Washington, D. C. (Justin W. Williams, U. S. Atty., Alexandria, Va., William S. Lynch, David H. Hopkins, Lawrence J. Leiser, Joseph H. Payne, Dept. of Justice, Washington, D. C., on brief), for appellant.

Milton Eisenberg, Washington, D. C. (Fried, Frank, Harris, Shriver & Kampelman, Washington, D. C., on brief), for appellees.

Walter J. Bonner, Washington, D. C. (Thomas A. Guidoboni, Bonner, Thompson, O'Connell, Gaynes & Middlekauff, Washington, D. C., on brief), for Norman W. Derrick.

Nathan Lewin, R. Stan Mortenson, Miller, Cassidy, Larroca & Lewin, Washington, D. C., on brief for John W. Luke.

Barry Wm. Levine, David R. Addis, Dickstein, Shapiro & Morin, Washington, D. C., on brief for Erwin L. Allen.

Thomas L. Patten, Allen B. Green, McKenna, Conner & Cuneo, Washington, D. C., on brief for Thomas A. Marti.

Barnet D. Skolnik, Washington, D. C., on brief for Peter C. Loux.

Daniel J. Hurson, Hurson & Fox, Washington, D. C., on brief for Peter C. Loux.

Jacob A. Stein, Robert F. Muse, Stein, Mitchell & Mezines, Washington, D. C., on brief for Herbert G. Blecker.

Before MURNAGHAN and ERVIN, Circuit Judges, and WILKINS, * District Judge.

MURNAGHAN, Circuit Judge:

Resourceful lawyers representing criminal defendants often desire to be thorough and to overlook nothing in their commendable zeal to afford first-class representation. Consequently in many cases they tend to excess as they inundate us with a plethora of arguments, some good and some not so good. Sometimes one wonders whether such lack of selectivity is not counterproductive, for a party raising a point of little merit exposes himself to the risk of excessive discount for a better point because of the company it keeps.

The present case raises numerous issues, but, in fairness to counsel, it should be said that few, if any, of them are trivial or frivolous.

I. The Procedural Posture of the Case

The case comes before us from a dismissal by the district court 1 of all fifty-seven counts in an indictment charging:

(a) conspiracy to participate in the affairs of an enterprise through a pattern of racketeering activity, 18 U.S.C. § 1962(c) and (d) (Count 1);

(b) the substantive offense of participating in the affairs of the enterprise through a pattern of racketeering activity, 18 U.S.C. § 1962(c) (Count 2);

(c) use and the investment of income received from a pattern of racketeering activity in the operation of an enterprise, 18 U.S.C. § 1962(a) (Count 3);

(d) defrauding the United States by overbilling the General Services Administration through causing checks drawn on the United States Treasury to be mailed, 18 U.S.C. § 1341 (Counts 4 through 27);

(e) defrauding the United States through overbilling of the GSA for computer services employing interstate wire transmissions, 18 U.S.C. § 1343 (Counts 28 through 37);

(f) bringing about the mailing of improperly inflated invoices to GSA, 18 U.S.C. § 1341 (Counts 38 2 through 43); (g) causing the presentation of false claims to the United States Government for computer services, 18 U.S.C. § 287 (Counts 44 through 55);

(h) two additional charges of false claims to the United States Government, 18 U.S.C. § 287 (Counts 56 and 57).

Counts 1 and 2 charged all defendants. Count 3 charged Computer Sciences Corporation (CSC) alone. The defendants in Counts 4 and 5 were John W. Luke, Erwin L. Allen, and Thomas A. Marti. Counts 6 through 37 lay against CSC, Luke, Allen, Marti, and Norman W. Derrick. Counts 38 through 43 named as defendants CSC, Luke, Allen, Peter C. Loux, and Herbert G. Blecker. Counts 44 and 55 charged CSC, Luke, Allen, and Marti. Those charged under Counts 46 through 55 were CSC, Luke, Allen, Marti, and Derrick. Counts 56 and 57 charged CSC, Luke, Allen, Loux, and Blecker.

Dismissal by the district court of the counts proceeded on two different bases. Counts 4 through 43 were dismissed for the reason that the mail fraud and wire fraud offenses charged, involving as they did fraud against the United States government, were precluded by the false claims statute which, upon enactment, had ousted any other statute which by its terms might proscribe the same offenses against the government. Consequently, on the theory on which the district judge was proceeding, the more general mail and wire fraud statutes, which were not yet even in existence, nevertheless anticipatorily were foreclosed and the false claims act became the only vehicle permitting prosecution of mail and wire fraud crimes against the government. The district judge contemplated that, absent a reversal on appeal, his decision would finally dispose of Counts 4 through 43.

The second dismissal theory applied to all fifty-seven counts, resting on the theory that the proceedings of the grand jury 3 had been contaminated through the unauthorized entry into the grand jury room while that body was in session of persons to whom Fed.R.Crim.P. 6(d) did not grant the right to be present. That such an infringement of Rule 6(d) occurred is admitted by the government.

Additionally, insofar as defendant Derrick was concerned, the district judge dismissed Counts 1, 2, 6 through 37 and 46 through 55 against him with prejudice on the grounds of prosecutorial misconduct. Furthermore, the RICO counts (1 through 3) were dismissed for the reasons that (1) Infonet, an unincorporated division of a corporation (CSC), which was the enterprise charged in Counts 1 through 3 could not qualify as an "enterprise," since it lacked sufficient independent existence for that purpose; (2) there was no showing in the indictment of a benefit flowing from the racketeering activity to the Infonet Division; and (3) the dismissal on the substantive grounds of preemption by the false claims statute of the mail fraud and wire fraud charges reduced the predicate acts remaining to one, a bribery alleged but not prosecuted, being more than five years old and the statute of limitations having run. Therefore, ran the reasoning of the district judge, the quantity of predicate acts was insufficient to establish a pattern of racketeering activity.

The counts dismissed solely on grounds of impropriety in the conduct of the grand jury proceedings were not dismissed with prejudice, leaving it open to the government to seek reindictment through a new grand jury proceeding.

II. Disposition of the Several Contentions Raised
A. The improper presence in the grand jury room of unauthorized persons.

A review of the record satisfies us that the invasions of the grand jury proceedings were rare, inadvertent and nonprejudicial to any defendant. 4 We do not mean to be taken as saying that those conclusions necessarily insulate an indictment and validate it in every case. Rather, each situation should be addressed on a sui generis basis. For a prosecution as to which the grand jury required only a day or two or a week or two to complete its investigation and to return an indictment, the posture in terms of frequency, inadvertence, and prejudice might differ, although the acts sullying the purity of grand jury proceedings were substantially like the ones with which we here concern ourselves.

In the course of a grand jury investigation lasting eighteen months, intrusions by unauthorized persons occurred on five occasions. Duration of the entire proceedings is a significant measuring background when it comes to assessing the importance of specific interruptions. Each intrusion was brief, lasting no more than a minute or two. On two occasions, a Deputy U. S. Marshal came in the room, handed a document to the prosecutor leading the grand jury proceeding, leaving promptly after doing so. On a third occasion, the Marshal entered for a purpose not identified in the record and left immediately. An unidentified woman once entered, handed a document to the prosecutor and left. The final occasion occurred in the summer of 1979. Complaints had been made about the heat. Someone charged with the maintenance of the air conditioning equipment entered and interrupted the proceedings. He departed on being instructed by the prosecutor to leave the room inasmuch as the grand jury was in session. Each intrusion brought the proceedings to an abrupt halt, and no testimony was taken in the presence of the unauthorized persons.

On the record we are satisfied that this is a case "absent demonstrable prejudice or substantial threat thereof" so that "dismissal of the indictment is plainly inappropriate." 5 United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981). Cf. United States v. Rath, 406 F.2d 757 (6th Cir. 1969), cert. denied, 394 U.S. 920, 89 S.Ct. 1196, 22 L.Ed.2d 453 (1969) ("A technical violation of Rule 6(d), Federal Rules of Criminal Procedure, occurred when an attorney who was a stranger to this action unintentionally interrupted the grand jury proceedings by entering the courtroom in which they were being conducted. The record establishes that the proceedings were halted at the moment of his entrance, and were not resumed during the fifteen to twenty second period of his presence. We hold that the interruption did not invalidate the proceedings or the indictment."). See United States v. Kazonis, 391 F.Supp. 804, 805 (D.Mass.1975), aff'd without opinion, 530 F.2d 962 (1st Cir. 1976), cert. denied, 429 U.S. 826, 97 S.Ct. 80, 50 L.Ed.2d 88 (1976).

The case before us, in short, is one where there has been no...

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