U.S. v. Fein

• Decision Date: 15 October 1974
• Docket Number: D,No. 1121,1121
• Parties: UNITED STATES of America, Appellant, v. Bernhard FEIN, Appellee. ocket 74-1446.
• Court: U.S. Court of Appeals — Second Circuit

Page 1170

504 F.2d 1170

UNITED STATES of America, Appellant, v. Bernhard FEIN, Appellee.

No. 1121, Docket 74-1446.

United States Court of Appeals, Second Circuit.

Argued July 18, 1974.

Decided Oct. 15, 1974.

Paul B. Bergman, Asst. U.S. Atty. (Edward John Boyd, V, U.S. Atty., for E.D.N.Y., Raymond J. Dearie, Ronald E. DePetris, Asst. U.S. Attys., of counsel), for appellant.

Victor Rabinowitz, New York City (Rabinowitz, Boudin & Standard, New York City, Michael Krinsky, New York City, of counsel), for appellee.

Before MULLIGAN and WINTER, ^* Circuit Judges and NEWMAN, ^*0 District Judge.

MULLIGAN, Circuit Judge:

On March 17, 1971, by order of District Judge George Rosling, a grand jury was convened in the United States District Court for the Eastern District of New York. Judge Rosling's order directed that 'pursuant to Rule 6(a) and (g), Federal Rules of Criminal Procedure, a Special Grand Jury be convened . . . to serve for a period not to exceed eighteen (18) months from the date it is convened . . ..' On or about August 30, 1972, in the 18th month of the grand jury's life, the Assistant United States Attorney for the Eastern District who was supervising the grand jury's investigation orally applied to Chief Judge Jacob Mishler for an extension of the term of the grand jury. On August 30, Judge Mishler signed an order submitted to him by the Assistant extending the term of the grand jury for an additional six months upon the authority of 18 U.S.C. 3331.

On September 26, 1972, nine days after the expiration of the original 18-month life of the grand jury, the jury returned a two-count indictment against the appellee, Bernhard Fein, charging him with the corrupt receipt of a bribe in violation of 18 U.S.C. 201(c)(1), and with making a false declaration before a federal grand jury in violation of 18 U.S.C. 1623. The second count charged that Fein made a false declaration before the grand jury on September 19, two days after the life of the grand jury would have expired pursuant to Judge Rosling's initial order. Other indictments involving other individuals were subsequently returned. Following a second oral application by the Government, Chief Judge Mishler, on February 2, 1973, ordered the term of the March 17, 1971 grand jury extended to September 17, 1973 for the purpose of completing the investigation. This order was also made by authority of 18 U.S.C. 3331. The grand jury was finally dissolved on September 17, 1973.

On December 20, 1973, appellee, Fein moved for an order pursuant to Fed.R.Crim.P. 12 dismissing the indictment on the ground that the indictment had been returned after the lawful life of the grand jury had expired and was therefore invalid. Fein contended that the grand jury was convened pursuant to Rule 6(g), which provides that a 'grand jury shall serve until discharged by the court but no grand jury may serve more than 18 months.' Since the indictment against him had been returned after the 18-month period had expired, Fein argued that the grand jury did not have the authority to indict him. Fein further urged that the extensions made by Chief Judge Mishler under 18 U.S.C. 3331 were ineffective since that section applies only to organized crime grand juries and not grand juries convened pursuant to Rule 6, which does not provide for any extensions. In a memorandum and order dated January 29, 1974, Judge John F. Dooling, Jr., dismissed the indictment upon the grounds urged by Fein. 370 F.Supp. 466 (E.D.N.Y.). A motion for reargument was denied on February 13, 1974. ¹ The Government appealed pursuant to 18 U.S.C. 3731.

We affirm.

I. THE GRAND JURY-- CREATURE OF STATUTE OR OF THE COURT?

Since there is no statutory authority for the extension of a Rule 6 grand jury beyond the 18-month period provided therein, the Government has necessarily taken the position that the grand jury is essentially a 'creature of the court,' that it is, in effect, an arm or adjunct of the district court and that the district court has implied power to extend its term even absent legislative provision. Judge Dooling decided that the grand jury is a 'creature of statute' (370 F.Supp. at 467-469), relying on In re Mills, 135 U.S. 263, 10 S.Ct. 762, 34 L.Ed. 107 (1890). In Mills, Mr. Justice Harlan, writing for an unanimous Court, stated:

A grand jury, by which presentments or indictments may be made for offences against the United States is a creature of statute. It cannot be impanelled by a court of the United States by virtue simply of its organization as a judicial tribunal.

135 U.S. at 267, 10 S.Ct. at 763.

The Government, on the other hand, argues that the powers and provenance of a grand jury were correctly described by Chief Justice Marshall in United States v. Hill, 26 Fed.Cas. p. 315 (No. 15,364) (C.C.Va.1809). Sitting as a Circuit Justice, Chief Justice Marshall stated:

It has been justly observed, that no act of congress directs grand juries, or defines their powers. By what authority, then, are they summoned, and whence do they derive their powers? The answer is, that the laws of the United States have erected courts which are invested with criminal jurisdiction. This jurisdiction they are bound to exercise, and it can only be exercised through the instrumentality of grand juries. They are, therefore, given by a necessary and indispensable implication. But, how far is this implication necessary and indispensable? The answer is obvious. Its necessity is co-extensive with that Jurisdiction to which it is essential. Grand juries are accessaries to the criminal jurisdiction of a court, and they have power to act, and are bound to act, so far as they can aid that jurisdiction. Thus far, the power is implied, and is as legitimate as if expressly given.

26 Fed.Cas. at 317.

The language in Mills is not necessarily inconsistent with the principle espoused by Mr. Justice Marshall in Hill. The Hill opinion was written in 1809, long before Congress had enacted any legislation regulating the powers or the tenure of grand juries. Congress had simply given federal courts jurisdiction over crimes committed against the United States, and the fifth amendment precluded any proceeding against an individual for any capital or infamous crime except upon the presentment or indictment of a grand jury. It was in this context that Mr. Justice Marshall, in the absence of any regulatory statute, found that grand juries were, by implication, necessary auxiliaries and accessories in aid of the jurisdiction of the federal courts. But where Congress has since enacted statutes and courts have adopted rules regulating the power of federal courts over grand juries, the exercise of judicial discretion arising by necessary implication is effectively precluded. Therefore, the question before this court requires, not a consideration of the power of the courts over grand juries in a legislative vacuum, but rather a construction of the relevant rules and statutory enactments governing the creation and the life span of the grand jury, an issue not specifically before either the Mills or Hill courts. ²

II. THE HISTORY AND PURPOSE OF RULE 6(g)

Rule 6(g) provides that no grand jury shall serve more than 18 months. The United States argues that the continuance of the grand jury beyond that period by judicial order, even though not authorized by statute, is a mere technical irregularity which does not prevent the jury from functioning as a de facto grand jury, and does not preclude the return of a true bill. There are a number of cases which hold that technical imperfections or irregularities in grand jury proceedings which are not prejudicial to the defendant do not effect the validity of an indictment. A review of these cases, ³ however, reveals that none involved more than a peripheral departure from statutory procedures. We have found no authority which has upheld the validity of an indictment returned by a grand jury whose life had terminated under the clear language of the governing rule. This defect, it seems to us, goes to the very existence of the grand jury itself and is not one which can be properly characterized as merely formal or accidental. It is therefore fatal to the indictments handed up by the jury. A review of the history of grand jury tenure provisions confirms the position taken below and here affirmed.

Prior to the enactment of a statute by Congress, the life of the grand jury was deemed to end with the term of the court, since all judicial power terminated with the completion of the term. Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797 (1881). It was also understood that a jury not impaneled in the term during which the indictment was returned was null and void, United States v. Gale, 109 U.S. 65, 71, 3 S.Ct. 1, 27 L.Ed. 857 (1883), and presumably the indictments returned by such a panel were without effect.

In United States v. Rockefeller, 221 F. 462 (S.D.N.Y.1914), the defendants argued that the indictments returned against them were invalid because the grand jury, impaneled at the September term, sat until the end of the October term. The district court, which held monthly terms, had signed an order extending the life of the grand jury until the end of the October term. Congress, however, had by that point enacted sections 8 and 284 of the Judicial Code. Section 8 provided:

When the trial or hearing of any cause, civil or criminal, in a district court has been commenced and is in progress before a jury or the court, it shall not be stayed or discontinued by the arrival of the time fixed by law for another session of said court; but the court may proceed therein and bring it to a conclusion in the same manner and with the same effect as if another stated term of the court had not intervened.

Section 284, in pertinent part, provided that the 'court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do...