United States v. Di Girlomo

• Decision Date: 01 April 1975
• Docket Number: No. 74 CV-456-W-4.,74 CV-456-W-4.
• Parties: In re Grand Jury Proceedings, UNITED STATES of America, Movant, v. Dominick DI GIRLOMO, Respondent.
• Court: U.S. District Court — Western District of Missouri

393 F. Supp. 997

In re Grand Jury Proceedings, UNITED STATES of America, Movant, v. Dominick DI GIRLOMO, Respondent.

No. 74 CV-456-W-4.

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

March 26, 1975.

As Amended April 1, 1975.

Michael DeFeo, Sp. Atty., Dept. of Justice, Bert C. Hurn, U. S. Dist. Atty., Kansas City, Mo., for movant.

Lawrence H. Pelofsky, Kansas City, Mo., for respondent.

MEMORANDUM AND ORDER SUSTAINING MOTION FOR CONFINEMENT PURSUANT TO 28 U.S.C. SECTION 1826(a)

ELMO B. HUNTER, District Judge.

This is an action for civil contempt brought pursuant to Section 1826(a) of Title 28, United States Code, wherein the United States has moved that Dominick Di Girlomo be confined for his refusal without just cause to comply with an order of court to testify before a federal grand jury for this district. Respondent has asserted as a defense to movant's motion that he has "just cause" for his refusal to testify. As his defense of "just cause," respondent asserts that persons other than persons authorized by Rule 6(d) of the Federal Rules of Criminal Procedure were present in the grand jury room during the session of the grand jury wherein he was ordered to testify.¹

The sole question presented for the Court's determination in this cause is whether Special Attorneys William E. Zleit, Gary Cornwell, William Tetrick, and Philip Adams, who are assigned to and members of the Kansas City Field Office of the Organized Crime and Racketeering Section, Criminal Division, Department of Justice, are authorized "attorneys for the government," within the meaning of Rule 6(d) of the Federal Rules of Criminal Procedure, entitled to be present while the grand jury is in session.

The facts in this cause have been fully stipulated by the parties. The Court adopts the stipulation of the parties, attached hereto as Appendix A, as its findings of fact.

The question of the authority of attorneys who are members of various Field Offices of the Organized Crime and Racketeering Section, Criminal Division, Department of Justice as it relates to the propriety of their presence while a federal grand jury is in session has recently been raised in a large number of criminal cases in this district and in other districts. See, e. g., United States v. Williams, 65 F.R.D. 422 (W.D. Mo.); United States v. Wrigley, No. 74 CR-448-W-1, 392 F.Supp. 14 (W.D. Mo.); United States v. Agrusa, 392 F. Supp. 3 (W.D.Mo.); Sandello v. Curran, M 11-188 (S.D.N.Y. Feb. 27, 1975); United States v. Brown, No. 74 CR-867, 389 F.Supp. 959 (S.D.N.Y.1975); United States v. Crispino, No. 74 CR-932, 392 F.Supp. 764 (S.D.N.Y.1975); In re Persico, 75 CV-96 (E.D.N.Y. Feb. 5, 1975); United States v. Jacobson, No. 74 CR-936 (S.D.N.Y. March 3, 1975); United States v. Ferri, No. 74-277-Criminal (W.D.Pa. Feb. 18, 1975).

Because of the seriousness of the question, and the consequences of a determination adverse to the United States, its presence, unresolved, has caused a substantial impairment to the disposition of a large number of criminal matters wherein attorneys from the Organized Crime and Racketeering Section purport to represent the United States in this Division of the Western District of Missouri, and it is the understanding of the undersigned judge that similar impairments have arisen in a large number of criminal matters in the other divisions of the Court. It is highly in the public interest and necessary to the proper administration of justice that the issue presented herein be resolved at the appropriate appellate level to give direction to the district courts in cases presently pending and in future proceedings. For this reason, a speedy resolution of the question at the appellate level is imperative. It is to this end that the parties to this action and the undersigned judge have attempted to expedite this matter to a final determination in the district court.

The principle which underlies the limitation of Rule 6(d) on persons who may be present while the grand jury is in session is the same as that which underlies the limitation of disclosure of matters occurring before the grand jury provided in Rule 6(e); that is the long established policy to maintain the secrecy of the grand jury proceedings in the federal courts. The reasons for the policy of secrecy first set out in United States v. Amazon Industrial Chemical Corp., 55 F.2d 254, 261 (D.C.Md.1931), have been quoted by the Supreme Court with approval in United States v. Proctor & Gamble Co., 356 U.S. 677, 681 n. 6, 78 S.Ct. 983, 986 n. 6, 2 L.Ed.2d 1077 (1958), as follows:

"In United States v. Rose (CA3 Pa.) 215 F.2d 617, 628-629, those reasons were summarized as follows: `(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subordination of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrampled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.'"

The Supreme Court specifically stated in United States v. Proctor & Gamble Co., supra, 356 U.S. 681-682, 78 S.Ct. 986 that one reason for the long established policy that maintains the secrecy of the grand jury proceedings in the federal courts "is to encourage all witnesses to step forward and testify freely without fear of retaliation." See In re William H. Pflaumer & Sons, Inc., 53 F.R.D. 464 (D.C.Pa.1971); Posey v. United States, 416 F.2d 545 (5th Cir. 1969).

Because one of the reasons which underlie the policy of secrecy is to encourage free and untrampled disclosures by witnesses without fear of retaliation, it follows that a witness may object to the presence of unauthorized persons during his testimony before the grand jury. The Court therefore is of the opinion that the presence of unauthorized persons during the session in which a witness is called to testify would, if established, constitute "just cause" for a refusal to testify and a defense to this civil contempt action brought pursuant to Section 1826(a) of Title 28, United States Code.

Rule 6(d) of the Federal Rules of Criminal Procedure provides as follows:

"Who May Be Present. Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting."

Those persons encompassed by the term "attorneys for the government" within the context of Rule 6 of the Federal Rules of Criminal Procedure are set forth in Rule 54(c) of those Rules as follows:

"`Attorney for the government' means the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, an authorized assistant of a United States Attorney and when applicable to cases arising under the laws of Guam means the Attorney General of Guam or such other person or persons as may be authorized by the laws of Guam to act therein."

Although the provisions of Rule 54(c), F.R.Crim.P. appear at first glance to specifically define and limit those persons authorized to be present while the grand jury is in session as "attorney for the government", the Rule must be read in connection with the various statutes pertaining to the Department of Justice, the Solicitor General, Assistants to the Attorney General, Assistant Attorneys General, Conduct of Legal Proceedings on behalf of the United States, Counsel to aid United States Attorneys, United States Attorneys, Assistant United States Attorneys, and the duties of the officers of the Department of Justice. See Original Advisory Committee Notes to Rule 54(c), F.R.Crim.P., 8A Moore, Federal Practice, ¶ 54.01(2), 54-13 to 54-14 (1974 ed.).²

Movant asserts as authority for the presence during the grand jury session of the attorneys for the Kansas City Field Office of the Organized Crime and Racketeering Section, Section 515(a) of Title 28, United States Code. That statute formerly codified in substantially the same form as 5 U.S.C. § 310, provides as follows:

"The Attorney General or any other officer of the Department of Justice, or any attorney specifically 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."

If attorneys William E. Zleit, Gary Cornwell, William Tetrick, and Philip Adams have been specifically appointed in accordance with the provisions of Section 515(a) they are authorized under Rules 6(d) and 54(c) to be present while the grand jury is in session. It is the validity of their appointments which constitutes the key issue in this case.

The authorization of attorneys of the Kansas City Field Office pertinent herein is in the form of a letter to each of the attorneys whose authorization has been challenged.

The authorizations of Messrs. Zleit, Cornwell, Tetrick, and Adams, are contained in identically worded letters of appointment under date of January 2, 1973; August 2, 1974; August 9, 1974; and June 25, 1973 respectively. Those letters provide in pertinent part as follows:

"The Department is informed that there have occurred and are occurring in the Western District of Missouri and other judicial districts of the

...