United States v. Brown, 74 Cr. 867 (MP).

• Decision Date: 24 February 1975
• Docket Number: No. 74 Cr. 867 (MP).,74 Cr. 867 (MP).
• Parties: UNITED STATES of America v. James BROWN, a/k/a James Federico and James J. Philips, Defendants.
• Court: U.S. District Court — Southern District of New York

389 F. Supp. 959

UNITED STATES of America v. James BROWN, a/k/a James Federico and James J. Philips, Defendants.

No. 74 Cr. 867 (MP).

United States District Court, S. D. New York.

February 24, 1975.

Paul J. Curran, U.S. Atty., S.D. New York by Edward J. Levitt, Asst. U.S. Atty., for plaintiff.

James F. McArdle, Jamaica, for defendant Brown.

Neal Hurwitz, Francis J. Purcell, New York City, for defendant Philips.

OPINION

POLLACK, District Judge.

This prosecution charges defendants with crimes under the counterfeiting statutes and conspiracy to violate the same. 18 U.S.C. §§ 472, 473, 474, and 371. The attorney who presented the case to the Grand Jury was Edward J. Levitt, a special attorney with the Organized Crime and Racketeering Section of the Criminal Division, United States Department of Justice (the "Strike Force").

Defendants James Philips and James Brown joined in a motion pursuant to Fed.R.Crim.P. 12(b)(2) prior to trial to dismiss the indictment against them on the basis of the decision of Judge Werker in United States v. Crispino, 392 F. Supp. 764 (S.D.N.Y.1975). It was there held that the Special Strike Force created with the advent of the Justice Department's assault on organized crime was not authorized to appear before the Grand Jury in that case because the appointed assistant prosecutor was not in terms told that he could appear before the Grand Jury which functioned on the indictment therein.

In this case Mr. Levitt stated for the record that the commission authorizing him to prosecute crime in this District was identical to that considered by Judge Werker in Crispino. After denial of his motion to dismiss the indictment, the defendant Philips pleaded guilty reserving his rights to raise on appeal the question raised in Crispino.

The relevant statute in question here is 28 U.S.C. § 515(a), which 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, . . .

It is conceded herein as Judge Werker also found in Crispino that the Attorney General was empowered to designate an assistant to extend the authorization to the Strike Force attorney and that Mr. Petersen, Assistant Attorney General, was so designated and in turn commissioned the prosecutor, a member of the Strike Force staff, to undertake any kind of grand jury proceedings in any kind of legal proceedings which United States Attorneys are authorized to conduct.

Here, Prosecutor Levitt was, by his commission letter

authorized and directed to file informations and to conduct in the Southern District of New York and any 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.

Clearly, therefore, in express terms Mr. Levitt was specifically authorized and directed to conduct the kind of grand jury proceedings that led to the indictment here. He was authorized for "any kind" of prosecution which a regular United States Attorney could conduct before any Grand Jury. This is not a case where the prosecutor has been authorized and directed to prosecute only one type of case or to proceed only against a particular defendant or to perform only one particular function and where nonetheless he has overstepped such limited and special authority. Compare, United States v. Hall, 145 F.2d 781 (9th Cir. 1944), cert. denied, 324 U. S. 871, 65 S.Ct. 1016, 89 L.Ed. 1425 (1945).

As the legislative history indicates, the Congress in enacting the statute which has now become § 515(a) was attempting to expand the authority of the Attorney General to comprehensively and effectively combat crime. The background for the enactment was that in 1903, the Circuit Court for the Southern District of New York had held that neither the Attorney General nor his assistants were authorized by law to appear before grand juries as prosecutors. United States v. Rosenthal, 121 F. 862 (C.C.S.D.N.Y.1903). In direct response to this decision, Congress passed the statute here in question, making it clear that the Attorney General and those under his direction were empowered to conduct any criminal or civil proceedings which United States Attorneys were authorized to conduct. H.R.Rep. No. 2901, 59th Cong., 1st Sess. (1906).

While much has been made of the congressional intent said to be illustrated by the inclusion of the phrase that the Attorney General's deputy be "specifically directed" to conduct legal proceedings, it is clear that in the upper house at least the requirement was not given much consideration. The Senate version of the bill, S. 2969, did not contain the word "specifically" at all. 40 Cong.Record 7013-14 (1906). This version was withdrawn by the Senate when the House passed its version and H.R. 17714 was passed by the Senate. 40 Cong.Record 9662 (1906). The fact that the statement of H.R. 17714 in the Congressional Record description of the Senate proceedings omits the word "specifically" also seems to indicate its relative unimportance in the legislation, at least from the Senate's viewpoint. 40 Cong. Record 9662 (1906).

At the time the statute was passed, special prosecutors apparently were appointed from time to time to prosecute specific crimes concerning which they had particular knowledge or competence. Questions inevitably arose as to whether these specially appointed prosecutors had, in bringing particular cases, overstepped the bounds of their limited commissions. See, e. g., United States v. Powell, 81 F.Supp. 288 (E.D.Mo.1948); United States v. Amazon Industrial Chemical Corp., 55 F.2d 254 (D.Md. 1931); United States v. Huston, 28 F.2d 451 (N.D.Ohio 1928); United States v. Morse, 292 F. 273 (S.D.N.Y.1922). There is no question here, however, that the prosecutor was authorized to conduct the instant proceedings, as the Attorney General, through his deputy Mr. Petersen, legally conferred upon Mr. Levitt the broad power to conduct "any kind of proceeding" before any grand jury that the United States Attorney can conduct.

An examination of the history and purposes of the strike forces reveals the reason why this broad grant of power and direction was considered necessary by the Department of Justice and why it is proper.

While the appointment of single special prosecutors, each commissioned ad hoc to focus on specific instances of crime, and each having a particular legal competence, may have been appropriate in the early years of this century, by the latter part of the 1960's, conditions had clearly changed. As the President said in a 1968 message to Congress, "It is clear that sporadic, isolated, uncoordinated attacks on the disciplined army of the underworld cannot obtain lasting results." "To Insure the Public Safety — Message from the President of the United States", (H.Doc. 250), 114 Cong.Record 2412 (Feb. 7, 1968).

The concept of "strike forces" of federal officers to deal with organized crime was first developed by Attorney General Ramsey Clark during the presidency of Lyndon Johnson, in response to a general feeling on the part of the Administration and the Congress that the federal government had been ineffective in fighting crime. See, e. g., "Federal Effort Against Organized Crime: Report of Agency Operations", by the Legal and Monetary Affairs Subcommittee of the House Committee of Government Operations (House Rep. No. 1574, 90th Congress, 2d Session), reported in 114 Cong.Record 21014 (July 12, 1968) at 21015: "The Federal Government has not borne its obligation with the constancy and force that its role in the overall battle against organized crime demands."

In a message to Congress not long after taking office, President Nixon informed the Congress that the strike forces already set up would be continued and new units would be initiated. In his speech of April 23, 1969, the President said that the strike forces were necessary

to combine in one cohesive unit a cadre of experienced Federal investigators and prosecutors, to

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