United States v. Dulski

• Decision Date: 23 May 1975
• Docket Number: No. 74-CR-100.,74-CR-100.
• Citation: 395 F. Supp. 1259
• Parties: UNITED STATES of America, Plaintiff, v. Raymond J. DULSKI et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

395 F. Supp. 1259

UNITED STATES of America, Plaintiff, v. Raymond J. DULSKI et al., Defendants.

No. 74-CR-100.

United States District Court, E. D. Wisconsin.

May 23, 1975.

Henry G. Piano and Bruce B. Jacobson, Milwaukee, Wis., for defendants Dulski and Danowski.

Gary A. Glojek, West Allis, Wis., for defendant Kent.

Max E. Goldsmith, Milwaukee, Wis., for defendant Azzolina.

Richard E. Reilly, Milwaukee, Wis., for defendant Kermendy.

William J. Mulligan, U. S. Atty., Leah M. Lampone, Asst. U. S. Atty., Milwaukee, Wis., and Gregory H. Ward, Sp. Atty., U. S. Dept. of Justice, Chicago, Ill., for plaintiff.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This is a criminal case in which the defendants have been charged in an indictment with conducting an illegal gambling business in violation of 18 U.S.C. § 1955. Defendants Raymond J. Dulski, Donald J. Danowski, and George F. Kermendy have filed motions seeking a dismissal of the indictment. The issue that has been tendered is whether the special attorney who appeared before the grand jury was lawfully authorized to do so as required by Rule 6(d) of the Federal Rules of Criminal Procedure. The Court has concluded he was not, and the indictment must therefore be dismissed.

I.

On December 27, 1973, Henry E. Petersen, then Assistant Attorney General in charge of the Criminal Division, signed a letter appointing Gregory H. Ward a special attorney of the Department of Justice. The letter reads as follows:

"December 27, 1973 "Mr. Gregory H. Ward Criminal Division Department of Justice Washington, D. C.

"Dear Mr. Ward:

"The Department is informed that there have occurred and are occurring in the Eastern District of Wisconsin 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.

"Sincerely /s/ Henry E. Petersen HENRY E. PETERSEN Assistant Attorney General"

Mr. Ward took the oath of office referred to in Petersen's appointment letter on March 11, 1974, and subsequently appeared before the grand jury in the Eastern District of Wisconsin, which jury returned the instant indictment.

The statute under which Mr. Ward was appointed a special attorney¹ originated in the Act of June 30, 1906, 34 Stat. 816, and is presently codified at 28 U.S.C. § 515(a):²

"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."

There has been no contention by the defendants that the Attorney General could not lawfully delegate the power to specially appoint attorneys under 28 U. S.C. § 515(a) to then Assistant Attorney General Petersen. See, 28 U.S.C. § 510; May v. United States, 236 F. 495 (8th Cir. 1916); United States v. Brodson and Halmo, 390 F.Supp. 774 (E.D.Wis. 1975). Contrast, United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L. Ed.2d 341 (1974). Further, there has been no opposition voiced to the Government's position that the Attorney General did delegate this power to Petersen under 28 C.F.R. §§ 0.55 and 0.60, and that Petersen did in fact sign the December 27, 1973, letter appointing Mr. Ward a special attorney.³

The serious question that is presented by the motions to dismiss is whether Mr. Ward was "specifically directed" by Petersen, within the meaning of § 515(a), to present this case to the grand jury. The importance of this issue extends beyond the instant case, since nearly identical appointment letters have been used to appoint special attorneys, pursuant to § 515(a), and staff "strike force" field offices throughout the country.

Close inspection of § 515(a) reveals that there are two possible meanings which can be attributed to the requirement that the special attorney be "specifically directed." One is that the language "specifically directed" only requires that the special attorney be directed to participate in a specified kind of proceeding. The other construction is that there must be a direction that the special attorney is to participate in conducting a particular case or type of cases. United States v. Martins, 288 F. 991 (D.Mass.1923). Either construction is equally warranted by the language of the statute. The choice of constructions can be made only after an examination of the relation of § 515(a) to the statutes establishing the network of United States attorneys and a review of the history of § 515(a).

II.

Title 28 U.S.C., Chapter 35, §§ 541-550, establishes a nationwide system of United States attorneys. The United States attorneys are appointed by the President with the advice and consent of the Senate, § 541(a), and can only be removed by the President. § 541(c). They have a four-year term of office. § 541(b). The United States attorneys and the assistant United States attorneys must live in the judicial district to which they are appointed. § 545(a). Section 547 provides for the duties and powers of the United States attorneys and states:

"Except as otherwise provided by law, each United States attorney, within his district, shall —

"(1) prosecute for all offenses against the United States; * * *."

While these statutes provide the United States attorneys with substantial power, independence, and responsibility for the prosecution of cases within their districts, they are not totally independent of the Attorney General. Under 28 U.S.C. § 519, the Attorney General has the power to supervise all litigation to which the United States is a party, and to direct the United States attorneys "in the discharge of their respective duties." The Attorney General also has the statutory power to investigate the official acts of United States attorneys, § 526(a)(1), and can direct them to make reports to him. § 547(5). The Attorney General also has the power of appointing and removing assistant United States attorneys. § 542.

Viewing all these statutory provisions together, it is apparent that the legislative scheme created by Congress is one in which the primary responsibility for the prosecution of offenses against the United States is placed in the hands of the United States attorney who is appointed from his district for a term of years and is only removable by the President. Although the United States attorneys are subject to the Attorney General, they are not his employees, and it is evident that Congress intended that the United States attorneys only be circumvented under special circumstances; it should be for something unusual and not as a standing operating procedure.

This legislative scheme is in the spirit of the federalism which is built into our laws which makes it difficult to concentrate power in the hands of those in Washington. The Attorney General's prosecutory power is limited by the established system of United States attorneys, and the Attorney General's expansion of that power is limited by § 515(a). In oral argument, the special attorney argued that § 515(a) gives him the same power and authority in this district that the United States attorney has. Congress never intended this. The decision to grant the primary power and responsibility for prosecution of all federal crimes to a single United States attorney in each district is one which cannot be viewed to be irrational in light of the constitutional decision to have a federal rather than a national government.

The Government has argued, however, that the Act of 1906, now codified as 28 U.S.C. § 515(a), had the effect of allowing the Attorney General to supersede the local United States attorneys and their assistants by appointing special attorneys and endowing them with roving commissions to take the very actions which are statutorily entrusted to the United States attorneys. Attention must therefore be focused on the legislative history and subsequent judicial interpretations of § 515(a).

III.

The Act of 1906, now codified as 28 U.S.C. § 515(a), was enacted in response to the decision in United States v. Rosenthal, 121 F. 862 (C.C.S.D.N.Y.1903). There, Mr. W. Wickham Smith was commissioned a special assistant to the Attorney General to "`* * * investigate and report concerning alleged fraudulent importations of Japanese silks at the port of New York, and to prepare and conduct such civil and criminal proceedings as may result therefrom.'" 121 F. at 863. Smith pursued the investigation of the alleged offenses and chiefly conducted the grand jury proceedings. The defendants' motions to quash the resulting indictments on the ground that Smith was not legally authorized to...