U.S. v. Cowan

• Decision Date: 08 December 1975
• Docket Number: 74-3941,Nos. 74-3738,s. 74-3738
• Citation: 524 F.2d 504
• Parties: In re United States of America, Petitioner. UNITED STATES of America, Plaintiff-Appellant, v. Ray COWAN and Jack Jacobsen, Defendants, Wayne O. Woodruff et al., Special Prosecutors, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 504

524 F.2d 504

In re United States of America, Petitioner.

UNITED STATES of America, Plaintiff-Appellant, v. Ray COWAN and Jack Jacobsen, Defendants, Wayne O. Woodruff et al., Special Prosecutors, Appellees.

Nos. 74-3738, 74-3941.

United States Court of Appeals,

Fifth Circuit.

Dec. 8, 1975.

Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Henry S. Ruth, Jr., Deputy Sp. Prosecutor, Frank M. Tuerkheimer, Peter N. Kreindler, Counsel to the Sp. Prosecutor, Watergate Sp. Prosecution Force, Dept. of Justice, Washington, D. C., Sidney M. Glazer, Judith A. Metzner, Henry E. Peterson, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for the United States.

Robert M. Hill, U. S. Dist. Judge, Wayne O. Woodruff, Andrew Barr, Patrick E. Higginbotham, Dallas, Tex., Arthur Mitchell, John L. Hill, Atty. Gen., Thomas M. Pollen, Asst. Atty. Gen., Austin, Tex., Charles A. McNelis, Washington, D. C., for Jacobsen.

Bob Gibbins, Austin, Tex., for Cowan.

On Petition for Writ of Mandamus to the United States District Court for the Northern District of Texas.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, Chief Judge, MURRAH ^* and WISDOM, Circuit Judges.

MURRAH, Circuit Judge:

The first sentence of Rule 48(a) Fed.R.Crim.P. provides that "The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate." In our case the trial judge, the Honorable Robert M. Hill, denied the United States Attorney's motion under Rule 48(a) to dismiss pending criminal proceedings in the Northern District of Texas, and upon formal declination of the government to proceed, appointed private, special prosecutors to continue the prosecution of the case. The government took a timely appeal from the order appointing the special prosecutors under 28 U.S.C. § 1291 and, in the alternative, sought a writ of mandamus to require dismissal. It is conceded that the order appointing special prosecutors is final and appealable under § 1291. Inasmuch as the order appointing the special prosecutors is necessarily based upon the power of the court under Rule 48(a) to deny the motion to dismiss, the meaning and scope of that Rule are at issue, and we need not, therefore, consider the propriety of an extraordinary writ of mandamus.

Traditionally and at common law, public prosecutions were within the exclusive control of the district attorney with the absolute power to enter a nolle prosequi at any time before the jury is impanelled "except in cases where otherwise provided in some act of Congress." Confiscation Cases, 74 U.S. 457, 20 Wall. 92, 22 L.Ed. 320. See also United States v. Brokaw, 60 F.Supp. 100 (S.D.Ill.1945). "The Federal Rules of Criminal Procedure have the force and effect of law. Just as a statute . . . " Dupoint v. United States, 388 F.2d 39, 44 (5th Cir. 1967). ¹ The precise question is the extent to which the phrase "by leave of court" in Rule 48(a) limits or conditions the common law power of the Attorney General acting through his subordinates to dismiss an indictment without leave of court. The question is presented on these pertinent facts.

In February of 1974, a federal grand jury in the Northern District of Texas returned a seven-count indictment against Jake Jacobsen. Six of the counts charged Jacobsen and Roy Cowan with the fraudulent misapplication of funds of a federally insured savings and loan association in San Angelo, Texas. A seventh count charged Jacobsen alone with knowingly making a false statement under oath to the grand jury. The indictment was signed by the United States Attorney for the district. After rather extensive motion practice resulting in a pretrial order in April, the case was set for trial in July. On joint motion of the parties the case was continued until a day in September due to the unavailability of a government witness.

Meanwhile and in May of the same year, the Watergate Special Prosecution Force (see 28 C.F.R. 0.37 and 0.38) and Jacobsen's Washington counsel negotiated an agreement whereunder Jacobsen agreed to plead guilty to a one-count charge to be filed in the District of Columbia alleging violation of 18 U.S.C. § 201(f) (bribing a public official) and make a full and truthful disclosure of all relevant information and documents within Jacobsen's knowledge and possession concerning matters then under investigation by the Watergate Special Prosecution Force, and if required, be a witness on any charges arising out of any such investigation. The Special Prosecution Force agreed not to press any potential charges against Jacobsen in the District of Columbia arising out of the relevant investigation. It was also a part of the plea agreement that the government would dismiss the Texas indictment.

Apparently Jacobsen appeared before a grand jury in the District of Columbia in May giving testimony incriminating himself and others. In any event, in July the grand jury returned an indictment in the District of Columbia charging Jacobsen in one count with violation of 18 U.S.C. § 201(f) and as an unindicted co-conspirator in a conspiracy count against former Secretary of the Treasury John Connally. In August Jacobsen entered a guilty plea to the bribery count (18 U.S.C. § 201(f)). The plea was accepted and the sentence postponed. At the same time the plea agreement was filed with the clerk of the court.

In accordance with the plea agreement, the United States Attorney for the Northern District of Texas moved under Rule 48(a) to dismiss the indictment set for trial in September. A copy of the plea agreement was attached to the motion. The motion to dismiss recited that the Office of the Special Prosecutor and the Attorney General believed that Jacobsen's testimony was necessary to the investigation and prosecution of the indictment in the District of Columbia; that if it did not enter into the plea agreement, the testimony of Jacobsen in that case, or any other case in which his testimony is relevant, would be lost; that the motion to dismiss the Texas charges was made in good faith, in accordance with the plea agreement and not for purposes of harassment; and that the interest of justice will be best served by disposing of the charges against Jacobsen in this manner. A memorandum of law supporting the Attorney General's absolute discretion to dismiss the indictment even without leave of court was filed with the motion. Jacobsen's Texas counsel joined in the United States Attorney's motion to dismiss. The motion was submitted in open court without further argument or testimony. On the same day and pursuant to another plea agreement, Judge Hill accepted a guilty plea by co-defendant Cowan to two counts of the Texas indictment and the United States Attorney agreed to move to dismiss the remaining counts after sentencing. Thus, all charges against Jacobsen and Cowan not disposed of by guilty pleas were made the subject of motions to dismiss by the government with consent of the defendants in accordance with the two plea agreements.

In an exhaustive opinion, the trial court asserted its discretionary power under Rule 48(a) to grant or deny the motion for leave to dismiss the Texas indictment against Jacobsen. Upon denial of the motion to dismiss, the United States Attorney filed its notice of intention not to prosecute. Whereupon, the court, asserting its inherent power to protect the public interest in these extraordinary circumstances, appointed private special prosecutors "with full authority to control the course of investigation and litigation related to the offenses charged in the indictment and to handle all aspects of the case to the same extent as the United States Attorney in any criminal prosecution."

The Attorney General stakes his claim to absolute power to dismiss the proceedings even without "leave of court" squarely upon the Doctrine of Separation of Powers as derived from the provisions of the Constitution establishing three separate, but co-equal branches of government, each supreme in its own sphere; and more particularly upon Article II, Section 3 which provides in material part that the President "shall take Care that the Laws be faithfully executed" and upon 28 U.S.C. §§ 516, 519, empowering the Attorney General as surrogate of the President to conduct or supervise all litigation in which the government is a party. The court-appointed prosecutors counter that the Doctrine of Separation of Powers implied in the Constitution does not cast the three branches of our government into water-tight compartments; that room is left for some commingling of responsibilities in the orderly administration of governmental affairs; that by the promulgation of Rule 48(a) as part of the Rules of Criminal Procedure, Congress intended to vest in the courts a shared responsibility for the dismissal of prosecutions once lodged in the court; and that the power to grant leave to dismiss a criminal prosecution carries with it the correlative power to exercise a discretion to deny leave to dismiss and, if necessary, to effectuate such denial by the appointment of private prosecutors.

To sustain the asserted absolute power to dismiss the proceedings without "leave of court," the Attorney General relies heavily on United States v. Cox, 342 F.2d 167 (5th Cir. 1965) and its progeny. That case involved the power of the district court to require the United States Attorney, under penalty of contempt, to sign an indictment or true bill as presented by the grand jury in accordance with Rule 7(c) Fed.R.Crim.P., which provides that an indictment "shall be signed by the attorney for the government." A majority of the en banc court sustained the government's petition to prohibit the trial judge from enforcing its contempt order and from asserting jurisdiction to require the Attorney General of the United States or the United States Attorney "to...