United States v. Agrusa, 74 CR 269-W-1.

• Decision Date: 25 February 1975
• Docket Number: No. 74 CR 269-W-1.,74 CR 269-W-1.
• Citation: 392 F. Supp. 3
• Court: U.S. District Court — Western District of Missouri
• Parties: UNITED STATES of America, Plaintiff, v. Salvatore Ross AGRUSA, Defendant.

392 F. Supp. 3

UNITED STATES of America, Plaintiff, v. Salvatore Ross AGRUSA, Defendant.

No. 74 CR 269-W-1.

United States District Court, W. D. Missouri, W. D.

February 6, 1975.

Supplemental Opinion February 25, 1975.

Bert C. Hurn, U. S. Atty., Philip J. Adams, Jr., Sp. Atty., Dept. of Justice, Kansas City, Mo., for plaintiff.

Sloan R. Wilson, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

This case pends on defendant's first amended motion to dismiss. The government's suggestions in opposition to that motion were filed January 13, 1975. Although numerous other motions pend in the case, it is appropriate that further proceedings be directed in connection with defendant's first amended motion to dismiss. The defendant's first amended motion to dismiss is based primarily upon principles stated by this Court in United States v. Williams, D.C., 65 F.R.D. 422. The questions presented by the defendant are summarized on page 3 of his motion and suggestions which state the following:

The defendant, therefore, bases this portion of his motion to dismiss on the following grounds: (1) That the Attorney General of the United States did not appoint the said attorneys to their present position, as required by law; (2) That the Attorney General could not lawfully delegate the power conferred upon him by 28 U.S. C. § 515(a); (3) That the Attorney General of the United States has not in fact lawfully made the delegation for the appointment of the said attorneys to their present positions; (4) That the attorneys in question have never been "specially appointed" within the meaning of the statute; and (5) That the attorneys in question have not in fact been "specially directed" to conduct proceedings in the Western District of Missouri against this defendant within the intended scope and authority of the statute.

The government's suggestions in response, except for the participation of William E. Zleit as a Special Attorney in addition to Mr. Adams and Mr. Cornwell, are for all practical purposes a copy of the lengthy suggestions recently filed in United States v. Wrigley, D.C., 392 F.Supp. 9. Mr. Zleit's form letter of appointment is attached as Exhibit C to the government's suggestions. That letter dated January 2, 1973, was signed by Assistant Attorney General Henry E. Petersen. It used exactly the same form and contained exactly the same language as the letter addressed to Mr. Adams, which we quoted in our memorandum and opinion handed down today in United States v. Wrigley, supra.

It should be parenthetically stated that there is a slight, but irrelevant, variance in the first sentence of Mr. Cornwell's most recent letter of appointment he has been given a new letter since questions concerning letters of appointment were first raised in United States v. Williams, supra. The first sentence of the letters written both for Mr. Adams and Mr. Zleit in the year 1973 stated that the Department was informed of federal violations that have occurred and are occurring in the Western District of Missouri "by persons whose identities are unknown to the Department at this time." Mr. Cornwell's most recent letter, dated August 2, 1974, and signed by Acting Assistant Attorney General John C. Keeney, changed the 1973 language to read that the violations were "by persons both known and unknown to the Department at this time." The additional group of "known" persons, of course, were not named in Mr. Cornwell's letter, nor, so far as the record now stands, has the Department's information concerning "known" persons as of August 7, 1974 ever been stated.

Although the defendant in this case presents more factual and legal questions than those presented in United States v. Wrigley, particular questions presented in this case are essentially the same as those presented in Wrigley's case. It is therefore appropriate to enter the same orders in this case as we entered in that case. We are hopeful that somehow or other we will be able to get the questions presented concerning the authority of Special Attorneys in appropriate posture for proper appellate review.

Accordingly, and for the reasons stated, it is

Ordered (1) that within ten (10) days the government shall prepare, serve, and file an appropriate statement in which it shall state in separately numbered paragraphs the following:

(a) Whether Mr. Adams, Mr. Cornwell and Mr. Zleit did in fact appear and take part in presenting the above entitled case to the grand jury;

(b) Whether the government wishes to have defendant's amended motion to dismiss ruled on the factual basis that the form letters of appointment attached to their suggestions in opposition accurately reflect the full and complete factual circumstances under which Mr. Adams, Mr. Cornwell and Mr. Zleit were "specially appointed" and "specifically directed" by the Attorney General to conduct proceedings in connection with the above entitled cause in the Western District of Missouri;

(c) Whether the government is of the view that additional factual data should be before the Court before it rules the issues presented by defendant's pending motion; and

(d) In the event the government believes additional factual data should be before the Court, the government shall (i) state with particularity the factual data which it believes should be considered by this Court; and (ii) whether it will produce such factual data in order that the Court may consider the same under the circumstances.

SUPPLEMENTAL MEMORANDUM AND ORDERS DISMISSING INDICTMENTS

I.

The above case pends on defendant's first amended motion to dismiss the indictment. That motion presents the ultimate question of whether the Special Attorneys who appeared before the grand jury which returned the indictment were properly authorized to so appear, as required by Rule 6(d) of the Rules of Criminal Procedure. The determination of that question turns on whether the letters of appointment signed by Assistant Attorney General Petersen comply with the express requirements of Section 515(a), Title 28, United States Code. The letters of appointment for both Special Attorneys who appeared before the grand jury are identical, and they state:

Mr. Philip J. Adams, Jr Criminal Division June 25, 1973 Department of Justice Washington, D. C.

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 unkown 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.

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 /S/ Henry E. Petersen HENRY E. PETERSEN¹ Assistant Attorney General

For reasons to be stated, we find and conclude that the defendant's first amended motion to dismiss must be granted.

II.

Unlike United States v. Williams (W.D.Mo.1974), 65 F.R.D. 422 (appeal dismissed on February 10, 1975 on government's motion based on refusal of Solicitor General to authorize appeal by the government in Court of Appeals No. 75-1034), the relevant factual circumstances in this case have been firmly established. In Williams, efforts to ascertain whether the Special Attorneys there involved had in fact and within the meaning of Section 515(a) been "specifically directed by the Attorney General" by something in addition to the receipt of a form letter of appointment were aborted when the government elected to "suffer dismissal" rather than comply with discovery orders entered by this Court.

In the pending case the relevant factual circumstances were established as a result of an order entered February 5, 1975 which:

Ordered (1) that within ten (10) days the government shall prepare, serve, and file an appropriate statement in which it shall state in separately numbered paragraphs the following:

(a) Whether Mr. Adams, Mr. Cornwell and Mr. Zleit did in fact appear and take part in presenting the above entitled case to the grand jury;

(b) Whether the government wishes to have defendant's amended motion to dismiss ruled on the factual basis that the form letters of appointment attached to their suggestions in opposition accurately reflect the full and complete factual circumstances under which Mr. Adams, Mr. Cornwell and Mr. Zleit were "specially appointed" and "specifically directed" by the Attorney General to conduct proceedings in connection with the above entitled cause in the Western District of Missouri;

(c) Whether the government is of the view that additional factual data should be before the Court before it rules the issues presented by defendant's pending motion; and

(d) In the event the government believes additional factual data should be before the Court, the government shall (i) state with particularity the factual data which it believes should be considered by this Court; and (ii) whether it will produce such factual data in order that the Court may

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