United States v. Feeney

• Decision Date: 20 October 1980
• Docket Number: Crim. A. No. 80-CR-54.
• Parties: UNITED STATES of America, Plaintiff, v. James FEENEY, Defendant, v. John C. WHITE, Intervenor.
• Court: U.S. District Court — District of Colorado

501 F. Supp. 1337

UNITED STATES of America, Plaintiff, v. James FEENEY, Defendant, v. John C. WHITE, Intervenor.

Crim. A. No. 80-CR-54.

United States District Court, D. Colorado.

October 20, 1980.

COPYRIGHT MATERIAL OMITTED

Joseph F. Dolan, U.S. Atty., Susan R. Roberts, First Asst. U.S. Atty., Denver, Colo., for plaintiff.

Daniel J. Sears, Denver, Colo., for defendant.

Verner, Liipfert, Bernhard & McPherson by Stuart F. Pierson, Washington, D.C., for intervenor.

MEMORANDUM OPINION

WINNER, Chief Judge.

Under the principles of Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, defendant Feeney seeks to present evidence said to be material to sentencing and important to his motion for judgment of acquittal or a new trial. He has subpoenaed government officials who, Feeney says, can testify to facts which will demonstrate that he was at all times cooperating with the United States Attorney's Office for the Southern District of New York; that he was acting with what he thought was official approval of his conduct and that he had no criminal intent. Feeney says additionally that even if a jury were to find the requisite intent, the testimony is relevant to sentencing, and Brady v. Maryland requires that testimony be received which may bear on the sentence to be imposed.

In response to his subpoena, Philip B. Heymann, an Assistant Attorney General of the United States, filed a motion to quash based on the somewhat technical ground that defendant failed to file an affidavit explaining the purpose of the subpoena. That affidavit has now been filed. Raymond A. Levites, Assistant United States Attorney, Southern District of New York, and Thomas P. Doonan, Investigator, United States Attorney's Office, Southern District of New York, responded to their subpoenas, and, when they thought the questioning was becoming sticky, fell back on a letter written to each of them by the Deputy Attorney General. Those separate letters, each dated September 30, 1980, read:

"In connection with your appearance as a witness in the post conviction proceedings involving James Feeney in the District of Colorado you are authorized to answer questions concerning Mr. Feeney's cooperation with the government, the completeness of the Feeney tapes previously furnished to the court, the Department's awareness of his other activities, and directly related matters. In the event the questioning goes beyond these areas and you are asked about ongoing investigations you should respectfully decline to answer and advise the court you must seek further instructions from the Department of Justice pursuant to 28 C.F.R. 16.21, et seq. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 71 S.Ct. 416, 95 L.Ed. 417."

With inconsistent exercise of individual decision by each witness as to what was a "directly related matter" he could refuse to disclose, I was faced with a decision I have never before been required to make in a criminal case. Certainly, I have been down the road of claimed bureaucratic privilege many times before in civil cases, and in past civil cases, I have been sympathetic with the witness who is doing no more than obeying the orders of his superior. I asked for briefs, and I now must decide what should be done with the directive of the Deputy Attorney General, an office and a person for which and for whom I have the greatest respect.

I have read as much law as I have been able to locate discussing the problem, and I find that my thinking expressed in a paper presented to the Tenth Circuit Judicial Conference in 1960, concerning claims of governmental privilege made in civil cases is applicable to similar 1980 claims in criminal cases. See 28 F.R.D. 97. With equal conviction, in this criminal case, I stand by my 1974 thinking in a civil case, Equal Employment Opportunity Commission v. Los Alamos Constructors (1974) D.C.N.M., 382 F.Supp. 1373.

The letter written by the Deputy Attorney General is based on federal regulations in Title 28. They read:

"§ 16.22 Production or disclosure prohibited unless approved by appropriate Department official.

"No employee or former employee of the Department of Justice shall, in response to a demand of a court or other authority, produce any material contained in the files of the Department or disclose any information relating to material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of his official duties or because of his official status without prior approval of the appropriate Department official or the Attorney General in accordance with § 16.24."

§ 16.23 describes the procedure to be followed by government employees who receive a subpoena, and it says:

"(c) If oral testimony is sought by the demand, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or his attorney, setting forth a summary of the testimony desired, must be furnished for submission by the U.S. attorney to the appropriate Department official."

It was the omission of this documentation on which Mr. Heymann grounded his motion to quash, but the documentation is now on file.

The regulations then make provision for referring the decision as to whether a subpoena should or should not be honored up the chain of command, and this subpart of Title 28 of the Code of Federal Regulations winds up:

"§ 16.25 Procedure where a Department decision concerning a demand is not made prior to the time a response to the demand is required.

"If response to the demand is required before the instructions from the appropriate Department official or the Attorney General are received, the U.S. attorney or other Department attorney designated for the purpose shall appear with the employee or former employee of the Department upon whom the demand has been made, and shall furnish the court or other authority with a copy of the regulations contained in this subpart and inform the court or other authority that the demand has been, or is being, as the case may be, referred for the prompt consideration of the appropriate Department official and shall respectfully request the court or authority to stay the demand pending receipt of the requested instructions.

"§ 16.26 Procedure in the event of an adverse ruling.

"If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 16.25 pending receipt of instructions, or if the court or other authority rules that the demand must be complied with irrespective of instructions not to produce the material or disclose the information sought, in accordance with § 16.24, the employee or former employee upon whom the demand has been made shall respectfully decline to comply with the demand. `United States ex rel. Touhy v. Ragen,' 340 U.S. 462 71 S.Ct. 416, 95 L.Ed. 417."

Thus, the United States Department of Justice has adopted a regulation which commands that its employees "respectfully decline to comply with" a court order, and the government's brief ignores the problem of what happens at this point, except that the government does say that I can listen to the testimony in camera. No mention is made of what the witness will do if I say at that point that I think the testimony should be repeated in public in line with my thinking that except in extremely unusual circumstances trials must be open to the public. As I have said before, I think that the public should be able to hear testimony on which a sentencing decision is based, just as a jury should be permitted to hear testimony bearing on a defendant's criminal intent or lack thereof.

I repeat that I have written twice on this question in civil cases, and now I write again in a criminal case, because I think that the rights of a defendant in a criminal case to full public presentation of the facts are even greater than are the rights of a party in a civil suit. As I shall mention presently, the Supreme Court seems to share this view.

The statutory underpinning claimed for the regulation was for many years 5 U.S.C. § 22, but it is now 5 U.S.C. § 301. The statute formerly read:

"The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it."

In 1958, Congress expressed dismay at the burgeoning claims of executive privilege to govern in secret, and it added to 5 U.S.C. § 22, the sentence, "This section does not authorize withholding of information from the public or limiting the availability of records to the public." The optimism I expressed in my 1960 paper as to the benefits which would result from this amendment didn't prove out, and, as all know, after many years of jousting, Congress became convinced that teeth had to be added to the law. The Freedom of Information Act was passed as the answer to most governmental secrecy claims, but it doesn't help here.

Today's statute, 5 U.S.C. § 301 continues the 1958 amendment, and it changes the language of the law to read:

"The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers and property. This section does not authorize withholding information from the public or limiting the availability of records to the public."

With this brief statutory history, I come to a review of important Supreme Court decisions looking to the problem. It all started with John Marshall and Aaron Burr, and by remarkable historical coincidence, it started with an effort to keep secret information supplied by an informer. General Wilkinson wrote Thomas Jefferson confidential letters...