U.S. v. Wrigley
| Citation | 520 F.2d 362 |
| Decision Date | 18 July 1975 |
| Docket Number | No. 75-1235,75-1235 |
| Parties | UNITED STATES of America, Appellant, v. William Robert WRIGLEY, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Philip J. Adams, Jr., Sp. Atty., Dept. of Justice, Kansas City, Mo., for the United States.
David R. Freeman, Federal Public Defender, Kansas City, Mo., for appellee, William Robert Wrigley.
Before LAY, HEANEY and STEPHENSON, Circuit Judges.
William Robert Wrigley was charged by indictment with knowingly making false material declarations before a grand jury in violation of 18 U.S.C. § 1623. He pleaded not guilty. By motion, pursuant to Federal Rule of Criminal Procedure 12(b), he challenged the authority of Special Attorneys Philip J. Adams, Jr. and Gary T. Cornwell, both full-time government attorneys of the Department of Justice, to conduct the grand jury proceedings from which the indictment issued. The defendant asserted, and the District Court held, that the special attorneys were not "attorneys for the government" entitled to be present before the grand jury under Federal Rule of Criminal Procedure 6(d). An "attorney for the government" is defined as, inter alia, "an authorized assistant of the Attorney General." F.R.Crim.P. 54(c). The District Court reasoned that the special attorneys were not "authorized" assistants of the Attorney General empowered to conduct grand jury proceedings within the meaning of 28 U.S.C. § 515(a) and dismissed the indictment. 1 The government appeals. We reverse.
Section 515(a) of Title 28, United States Code, provides:
* * * 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.
Special Attorney Adams was appointed by letter of authorization which reads:
Dear Mr. Adams:
The Department is informed that there have occurred and are occurring in the Western District of Missouri and other judicial districts of the United States violations of federal criminal statutes by persons whose identities are unknown to the Department at this time.
As an attorney at law you are specially retained and appointed as a Special 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.
Your appointment is extended to include, in addition to the aforesaid cases, the prosecution of any other such special cases arising in the aforesaid district and other judicial districts of the United States. 2
You are to serve without compensation other than the compensation you are now receiving under existing appointment.
Please execute the required oath of office and forward a duplicate thereof to the Criminal Division.
Sincerely,
HENRY E. PETERSEN
Cornwell was appointed in a substantially identical letter signed by John C. Keeney, Acting Assistant Attorney General. Each attorney executed the oath of office before entering upon his duties in the Western District of Missouri. The government asserts that the letters of appointment and oath of office satisfy 28 U.S.C. § 515(a).
The defendant's argument focuses upon the statutory language "when specifically directed by the Attorney General." He asserts that the letters of appointment are too broad and fail to give specific direction in the grant of authority. 4 He argues that the statute limits the employment of special attorneys to particular types of cases identified by the Attorney General as unusually important or as requiring particular expertise not possessed by the local United States Attorney. To read the statute otherwise, he reasons, would allow the Attorney General to usurp, through the appointment of special attorneys, the function of the United States Attorneys. 5 Accordingly, he contends that the appointments here, being without limitation as to the type of case to be prosecuted, are invalid. 6 He principally relies, as did the District Court, on United States of America v. Philip Crispino, 392 F.Supp. 764 (S.D.N.Y.1975) and United States of America v. Raymond J. Dulski, et al., 395 F.Supp. 1259 (E.D.Wis.1975).
The defendant's argument is statutory. He does not contend that the Attorney General is without power to employ special attorneys under more restrictive letters of appointment. Neither does he contend that the actions of the special attorneys caused him demonstrated prejudice nor deprivation of a constitutional right. He argues simply that the Attorney General is without power under the statute to employ special attorneys with the broad grant of authority "to conduct * * * any kind of legal proceeding * * * which United States Attorneys are authorized to conduct."
The statute, originally codified as 5 U.S.C. § 310, was enacted in response to United States v. Rosenthal, 121 F. 862 (S.D.N.Y.1903). There the Merchants' Association of the City of New York, concerned with possible fraudulent importations of Japanese silks, prevailed upon the Attorney General to appoint Mr. W. Wickham Smith, a private attorney, to investigate the matter. The appointee's investigation was conducted independently of the Merchants' Association, although that group agreed to compensate him should the Attorney General be unable to pay for his services. Armed with this commission, grand jury proceedings were initiated that resulted in indictments.
Faced with this factual situation, the court posed the legal issue presented: " * * * what authority did the appointment vest in (the appointee)?" (Emphasis added.) Id. at 865. A survey of the statutes found the Attorney General without power to appoint special attorneys authorized to appear before grand juries and the indictments were quashed. The court's holding required a technical and narrow construction of the prevailing law which empowered the Attorney General and his officers to " 'conduct and argue any case in any court'." Id. at 866. It was held that a grand jury proceeding was not a "criminal case," distinguishing Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). The holding was premised upon the court's view of the congressional intent that "indicate(d) attentive and jealous regard for the primary policy of limiting the conduct of matters before grand juries to the local officers (United States Attorneys)." Id. 121 F. at 867. 7 We note that the decision was rendered at a time when
* * * the rule (was) well settled that where there is an office to be filled, and one, acting under color of authority, fills the office and discharges its duties, his actions are those of an officer de facto, and binding upon the public.
McDowell v. United States, 159 U.S. 596, 601-602, 16 S.Ct. 111, 113, 40 L.Ed. 271 (1895). 8 It is against this backdrop that we examine the legislative history.
Section 515(a), originally enacted in 1906, overturned the Rosenthal decision. Both Houses of Congress introduced bills designed to empower the Attorney General to appoint special attorneys authorized to conduct grand jury proceedings. The Senate bill provided:
* * * (T)hat all such proceedings shall be begun and conducted by such officials, attorneys, and counsel only under the direction, supervision, and control of the Attorney General.
S. 2969, 59th Cong., 1st Sess. (1906).
The House bill which employed the slightly different limiting language found in the statute was finally accepted by both Houses.
The House Report which accompanied the enacted bill stated:
The Committee on the Judiciary, having had under consideration the bill (H.R. 17714) to authorize the commencement and conduct of legal proceedings under the direction of the Attorney-General, respectfully report the same back with the recommendation that the same do pass.
The purpose of this bill is to give to the Attorney-General, or to any officer in his Department or to any attorney specially employed by him, the same rights, powers, and authority which district attorneys now have or may hereafter have in presenting and conducting proceedings before a grand jury or committing magistrate.
It has been the practice of the Attorney-General for many years to employ special counsel to assist district attorneys in the prosecution of suits pending in their respective districts whenever the public interest demanded it. It has been the practice of such special counsel to appear, with the district attorney, before grand judges and committing magistrates and to assist in the proceedings pending there. This right passed unchallenged for many years, until the circuit court for the southern district of New York, on March 17, 1903, in the case of the United States v. Rosenthal, decided that
The Attorney-General, the Solicitor-General, nor any officer of the Department of Justice is authorized by sections 359, 367, or any other provision of the Revised Statutes of the United States (U.S.Comp.Stats., 1901, pp. 207, 209), to conduct or to aid in the conduct of, proceedings before a grand jury, nor has a special assistant to the Attorney-General such power.
This decision makes the proposed legislation necessary if the Government is to have the benefit...
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