U.S. v. Jacobs

• Decision Date: 30 December 1976
• Docket Number: D,No. 581,581
• Citation: 547 F.2d 772
• Parties: UNITED STATES of America, Appellant, v. Estelle JACOBS a/k/a 'Mrs. Kramer,' Defendant-Appellee. ocket 75-1319.
• Court: U.S. Court of Appeals — Second Circuit

Page 772

547 F.2d 772

UNITED STATES of America, Appellant, v. Estelle JACOBS a/k/a 'Mrs. Kramer,' Defendant-Appellee.

No. 581, Docket 75-1319.

United States Court of Appeals, Second Circuit.

Argued Nov. 22, 1976.

Decided Dec. 30, 1976.

Edward R. Korman, Chief Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (David G. Trager, U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for appellant U. S. A.

Irving P. Seidman, New York City (Rubin, Seidman & Dochter, New York City, of counsel), for defendant-appellee.

Before FEINBERG, GURFEIN and VAN GRAAFEILAND, Circuit Judges.

GURFEIN, Circuit Judge:

This appeal is before us again on a remand, at the suggestion of the Solicitor General, 'for further consideration in light of United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976).' ---- U.S. ----, ----, 97 S.Ct. 299, 299, 50 L.Ed.2d 277. ¹ This affords us an opportunity to explicate our previous opinion, United States v. Jacobs, 531 F.2d 87 (2d Cir. 1976). ² In that opinion we affirmed the dismissal of a perjury count against defendant Jacobs, the necessary predicate of which was her testimony before the grand jury, which we held had been properly suppressed in the circumstances.

I

When we filed our decision, the Supreme Court had not yet reversed the Fifth Circuit in Mandujano, 496 F.2d 1050 (5th Cir. 1974), the authority relied upon by the District Court in our case. But the Supreme Court had already granted certiorari.

Although perhaps it could have been made clearer in our previous opinion, the justices who dissented on the remand were correct in surmising that we intended to make explicit in our opinion that we were familiar with the Fifth Circuit opinion in Mandujano, and that we were unwilling to acquiesce in it on constitutional grounds. We did not purport to establish a continuing requirement, but to impose a one-time sanction to encourage uniformity of practice (whatever the practice might be) between the Strike Force and the United States Attorney in the same district. We refused to affirm the District Court on the basis of the constitutional doctrine of Mandujano which it had accepted as correct. In that sense we may be said to have anticipated the decision of the Supreme Court, now called to our attention on remand.

In this circuit the thrust of the case law, from a constitutional point of view, has been more akin to the Supreme Court's subsequent decision in Mandujano than to the decision of the Fifth Circuit. E. g., United States v. Del Toro, 513 F.2d 656, 664 (2d Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975). In Jacobs, we noted, however, that in Del Toro and in a series of similar cases, the defendant had, in practice, always been warned that he was a target of the investigation. ³ That this has been the uniform practice of prosecutors in our circuit, for much longer than twenty years, was perceptively observed by Judge Medina in United States v. Scully, 225 F.2d 113, 116 (2d Cir. 1955). Since the Strike Force prosecutor failed to give such warning, we were unable on this appeal to distinguish the Fifth Circuit opinion in Mandujano, as we were able to do in United States v. Bonacorsa, 528 F.2d 1218, 1223 (2d Cir. 1976), a decision in which two members of the Jacobs panel, Judges Feinberg and Van Graafeiland, concurred.

While we did not think the warning to be necessary on Miranda grounds, we also did not believe that because an omission by a prosecutor is within constitutional limits, the must necessarily omit that which he is constitutionally permitted to omit. What the Constitution does not require it does not necessarily forbid.

Surprised, as we were, to find that what we had thought to be a common practice of prosecutors in the circuit for more than twenty years was not followed, we canvassed each of the United States Attorneys in the circuit for their practice in this regard. We were informed that every United States Attorney, in practice, warns the potential defendant that he is a target of the investigation. The appeal before us involved a prosecution by the Strike Force in the Eastern District of New York as authorized by 28 U.S.C. Sec. 515.

The Strike Force, consisting of special attorneys appointed by the Attorney General, operates theoretically under the supervision of the United States Attorney. 28 U.S.C. Sec. 543. ⁴ See In re Subpoena of Persico, 522 F.2d 41, 56 (2d Cir. 1975). (For instance, in this appeal the Strike Force filed papers under the name of the United States Attorney for the Eastern District of New York.) The Attorney General has promulgated guidelines 'governing interrelationships between Strike Forces and United States Attorneys' Offices.' ⁵ The Guidelines provide that '[w]hen a specific investigation has progressed to the point where there is to be a presentation for an indictment, the Chief of the Strike Force shall then for this purpose operate under the direction of the United States Attorney who shall oversee the judicial phase of the development of the case.'

Though we did not think it necessary to spell it out in our earlier opinion, we think that this prescribed direction by the United States Attorney applies to this case. As we noted, '[operation] under the direction of the United States Attorney . . . should have been assumed by the Strike Force.' 531 F.2d at 90, n.6.

We did not specifically refer to the analogy of an agency being required to adhere to its own regulations, Service v. Dulles, 354 U.S. 363, 732, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), because we recognized that the Attorney General in his prosecutorial function may be, strictly speaking, less restricted than the Secretary of State. However, the analogy is persuasive when the Attorney General actually promulgates Guidelines for supervision by the United States Attorney in specific circumstances, see United States v. Leahey, 434 F.2d 7 (1st Cir. 1970); United States v. Heffner, 420 F.2d 809 (4th Cir. 1969) (non-constitutional ground), and inconsistent treatment results therefrom.

We exercised supervisory power in the limited area of the relationship between the Strike Force attorney and the United States Attorney under a fair inference from the Guidelines, though not as a generally applicable exclusionary rule. Although we have confirmed the right of Strike Force attorneys to appear before the grand jury, see Persico, supra, we are not committed by statute to allowing them to come into the circuit and to evade the rules and supervision of the United States Attorneys. We think it our duty to avoid uneven justice in the circuit, resulting from mere negligence or inattention to established practice and guidelines. There is, of course, nothing to prevent the Department of Justice from formulating a national policy to prohibit all prosecutors from following the ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function (Approved Draft 1971) Section 3.6(d) which provides:

'If the prosecutor believes that a witness is a potential defendant he should not seek to compel his testimony before the grand jury without informing him that he may be charged and that he should seek independent legal advice concerning his rights.'

It is an important function of the administration of criminal justice to let our citizens know that equal justice is available to all, as the Chief Justice has so eloquently said on more than one occasion. Having determined that the policy of the various prosecutors should be uniform--constitutional limitations quite aside--we were confronted with the proper remedy to apply. Normally, any appellate court finds itself in a veritable dilemma when its choice is between vindicating a rule by sanction and allowing a possibly guilty person to escape. In this case, fortunately, we faced no such dilemma. For the appellant remains indicted for the substantive crime, and, if certiorari had not been applied for, would already have been tried by a jury. See United States v. Mandujano, supra, 425 U.S. at 569, 96 S.Ct. at 1773 n.2, 48 L.Ed.2d 212, where the prosecutor obtained a conviction on the substantive count before the Supreme Court heard the appeal on the perjury count.

We abhor perjury, but the limited question is whether, in these particular circumstances, the prosecution was entitled to the luxury of a perjury count, which in this case was essentially a strategic ploy which would make conviction on the substantive count easier if the counts were to be joined in a single trial. ⁶ In this case, the Government claims to have a recorded transcript which purportedly establishes guilt on the substantive count. To quote Judge Stevens (now Mr. Justice Stevens) in a similar connection:

'Accepting the prosecutors' evidence as true, defendant's participation in the crime had already been established and, therefore, no further investigation was necessary. . . . If the evidence of guilt is as strong as the prosecutor contends, such direct communication [with the defendant in the absence of counsel] is all the more offensive because it was unnecessary. If there is doubt about defendant's guilt, it should not be overcome by a procedure such as this.' United States v. Springer, 460 F.2d 1344, 1354 (7th Cir. 1972) (dissenting opinion).

Finally, we should state in response to the request for clarification in Mr. Justice Stevens' concurring opinion that we did not assume that an error of the prosecutor in failing to give warning in the grand jury would lead inexorably to the conclusion that the witness cannot be prosecuted for perjury. On the contrary, we had assumed the opposite,--that she could be so prosecuted ⁷ as the Supreme Court later held in Mandujano.

For the reasons previously stated, our opinion was based only on our supervisory power, exercised in a circumscribed manner involving the Strike Force, and in circumstances where under the sanction imposed, a guilty...