United States v. Badalamenti

• Decision Date: 15 April 1975
• Docket Number: 74-222.,74-506,Crim. No. 627-73
• Citation: 394 F. Supp. 807
• Parties: UNITED STATES of America v. Salvatore BADALAMENTI et al., Defendants. UNITED STATES of America v. Austin CASTIGLIONE et al., Defendants. UNITED STATES of America v. Michael SCIARRA et al., Defendants.
• Court: U.S. District Court — District of New Jersey

394 F. Supp. 807

UNITED STATES of America v. Salvatore BADALAMENTI et al., Defendants.

UNITED STATES of America v. Austin CASTIGLIONE et al., Defendants.

UNITED STATES of America v. Michael SCIARRA et al., Defendants.

Crim. Nos. 627-73, 74-506, 74-222.

United States District Court, D. New Jersey.

April 15, 1975.

Jonathan L. Goldstein, U. S. Atty. by Joseph L. Cranwell, Richard D. Gregorie, Daniel A. Williamson, and Robert G. Clark, Special Attys., Dept. of Justice, Strike Force, Newark, N. J., for the United States.

Richard Newman, Newark, N. J., for defendant Badalamenti.

Seymour Pollack, pro se and Lawrence A. Whipple Jr., Newark, N. J., for defendant Pollack.

Ralph Fucetola, III, North Arlington, N. J., for defendant Pedley.

Maurice M. Krivit, Jersey City, N. J., for defendant Musto.

Daniel E. Isles by Harvey Weissbard, Montclair, N. J., for defendant, Maugere.

OPINION

LACEY, District Judge:

This matter is before the court in United States v. Badalamenti, Crim. No. 627-73, on motions of the defendants Badalamenti, Pollack and Pedley for dismissal of the indictment returned against them on October 25, 1973. The defendants urge that the Special Attorneys who presented the matters to a Federal Grand Jury were acting without statutory authority, and as such were unauthorized persons appearing before a Grand Jury within the meaning of Fed. R.Crim.P. 6(d). Additionally, the defendants, in support of their motions, seek particulars and other discovery similar to that ordered by United States District Judge Oliver in United States v. Williams, 65 F.R.D. 422 (W.D.Mo., 1974), the case which sparked a plethora of motions challenging the authority of Strike Force attorneys both in this District and throughout the country.¹

Also before the court are motions filed by defendant Maugere in United States v. Castiglione, Crim. No. 74-506, and defendant Musto in United States v. Sciarra, Crim. No. 74-222, for dismissal of the indictments returned against them on grounds identical to those raised in United States v. Badalamenti.

In Badalamenti, the movants, along with others, are charged in Count One with conspiring to commit certain offenses involving the fraudulent sale of securities and in subsequent separate counts with certain income tax violations.

These matters were presented to the Grand Jury by Messrs. Robert G. Clark, Liam S. Coonan and Daniel A. Williamson, all Special Attorneys with the United States Department of Justice. Messrs. Coonan and Williamson were assigned to the Organized Crime and Racketeering Section of the Criminal Division (hereinafter sometimes referred to as the Strike Force). Mr. Clark was assigned to the Criminal Fraud Section.

The letters of appointment of the three are identical in content. They read as follows:

The Department is informed that there have occurred and are occurring in the District of New Jersey 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.

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.

The letters of Messrs. Coonan and Williamson are signed by Henry E. Petersen, then Assistant Attorney General. The letter of Mr. Clark is signed by Joseph T. Sneed, then Deputy Attorney General.

In United States v. Castiglione, the indictment, returned on December 2, 1974, alleges violation by the five named defendants of the conspiracy statute, 18 U.S.C. § 371, and, as to certain of the defendants, violations of the counterfeiting and forgery statutes, 18 U.S.C. §§ 471, 472. That matter was presented to the Grand Jury by Mr. William M. Arnold, a Special Attorney with the Organized Crime and Racketeering Section of the Criminal Division, United States Department of Justice (the Strike Force). Mr. Arnold's letter of appointment is identical to Mr. Williamson's.

In United States v. Sciarra, defendant Musto was convicted of violations of 18 U.S.C. §§ 371, 892 and 2. Immediately prior to trial, an oral motion was made, unsupported by briefs or affidavits, urging that the appearance of Mr. Gregorie, the Special Attorney assigned to the Newark Strike Force, in presenting that matter to a Grand Jury, was unauthorized under Fed.R.Crim.P. 6(d).

Mr. Gregorie's appointment letter reads as follows:

Mr. Richard D. Gregorie Criminal Division Department of Justice Washington, D. C.

Dear Mr. Gregorie:

As an attorney and counselor at law you are hereby specially retained and appointed as a Special Attorney under the authority of the Department of Justice to assist in the trial of the case or cases growing out of the transactions hereinafter mentioned in which the Government is interested. In that connection you are specifically directed to file informations and to conduct in the District of New Jersey and in any other judicial district where the jurisdiction thereof lies 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.

The Department is informed that various persons, companies, corporations, firms, associations, and organizations to the Department unknown have violated in the above-named district and in other judicial districts the laws relating to extortion in aid of racketeering (18 U.S.C. § 1951), embezzlement of union funds (29 U.S.C. § 501(c) and the funds of welfare and pension plans (18 U.S.C. § 664), payments by employers to their employees and to officials of labor organizations (29 U.S.C. § 186), the filing of reports and the maintenance of records by unions and union officials (29 U.S.C. § 439), deprivation of the rights of a union member by force (29 U.S.C. § 530), obstruction of justice (18 U.S.C. § 1503), obstruction of criminal investigations (18 U.S.C. § 1510), obstruction of state or local law enforcement (18 U.S.C. § 1511), travel and transportation in aid of racketeering (18 U.S.C. § 1952), transmission of bets, wagers, and related information by wire communications (18 U.S.C. § 1084), interstate transportation of wagering paraphernalia (18 U.S.C. § 1953), prohibition of illegal gambling businesses (18 U.S.C. § 1955), racketeer influenced and corrupt organizations (18 U.S.C. § 1962), perjury (18 U.S.C. § 1621), false declarations (18 U.S.C. § 1623), mail fraud (18 U.S.C. § 1341), fraud by wire (18 U.S.C. § 1343), interstate transportation of stolen property (18 U.S.C. § 2314), wire and radio communication (47 U.S.C. § 203 and 501), internal revenue (26 U.S.C. § 7201-7206), and other criminal laws of the United States and have conspired to commit all such offfenses in violation of Section 371 of Title 18 of the United States Code.

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, Department of Justice.

Sincerely (Signed) HENRY E. PETERSEN HENRY E. PETERSEN Assistant Attorney General

Defense counsel, in their joint presentation to the court, raise the following issues for determination: (1) whether the Attorney General has the power under 28 U.S.C. § 515(a) to authorize the presentation of matters to a Grand Jury (and to represent the United States in subsequent criminal proceedings) through the assignment of Special Attorneys (Strike Force Attorneys) on a continuing and established basis; (2) assuming that such power exists, whether that power is delegable; (3) if delegable, whether that power was properly delegated to Department of Justice officials; (4) if properly delegated, whether that delegated power was properly exercised by a Department of Justice official.

28 U.S.C. § 515(a) reads as follows:

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.

The defendants allege that under § 515(a) the Attorney General may not commission a Special Attorney to appear before a Grand Jury on a routine and continuous basis. From that premise, defendants would then have this Court conclude that the Attorney General is not authorized under 28 U.S.C. § 515 to initiate and maintain a Strike Force Field Office either in this District or elsewhere. Alleging that a Strike Force Field Office is in effect a competing United States Attorney's office, and thus violative of Congressional intent as expressed in 28 U.S.C. §§ 541 et seq., defendants would have this Court declare as illegal the entire "Strike Force" concept.

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