United States v. Fein

• Decision Date: 13 February 1974
• Docket Number: No. 72-CR-1115.,72-CR-1115.
• Citation: 370 F. Supp. 466
• Parties: UNITED STATES of America v. Bernhard FEIN, Defendant.
• Court: U.S. District Court — Eastern District of New York

370 F. Supp. 466

UNITED STATES of America v. Bernhard FEIN, Defendant.

No. 72-CR-1115.

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

January 29, 1974.

Reargument Denied February 13, 1974.

Victor Rabinowitz, New York City, (Rabinowitz, Boudin & Standard, New York City, of counsel) Michael Krinsky, New York City, of counsel on the brief, for defendant, for the motion.

Anthony T. Accetta, Brooklyn (Edward J. Boyd, V, U. S. Atty., of counsel), for the Government, opposed.

MEMORANDUM and ORDER

DOOLING, District Judge.

The defendant has moved to dismiss the indictment on the ground that the Grand Jury's term could not legally be extended to the date on which the indictment was found and to the date on which the alleged perjury of Count 2 was allegedly committed before the Grand Jury.

The Special Grand Jury which found the indictment in the present case was convened on March 17th pursuant to an order of the Chief Judge made on March 11, 1971. It was established to consider anti-trust matters. But in early September of 1971, nearly six months after the jury was first convened, it commenced to hear testimony with respect to Federal Housing Administration matters out of which the present indictment grew. The Special Grand Jury provisions of Chapter 216 of Title 18, § 3331 and following, had already been enacted, and a Section 3331 Special Grand Jury had been convened on January 25, 1971 by order of the Chief Judge entered January 22, 1971. It does not appear that any determination was made that the volume of the business of that Grand Jury exceeded its capacity to discharge its obligations, or that the March Grand Jury that found the present indictment was ordered into existence to make up for such a want of capacity. See 18 U.S.C. § 3332(b). Nothing, therefore, indicates that the Special Grand Jury that found the present indictment was any other Special Grand Jury than one created under Rule 6(a) and (g) as the order itself sets forth. In consequence, its term was limited by Rule 6(g) to 18 months.

The provisional decision of Judge Weinstein on Fetell's motion in United States v. McDonnell, 73-CR-562, would unhesitatingly be followed but that the legislative history, elaborately presented by the defendant here, and the special circumstance that the second count in the present indictment charges perjury allegedly committed during the extended life of the Grand Jury, place the present case in a very different perspective from the case before Judge Weinstein. The language of Chapter 216 leaves no doubt that the Special Grand Juries there authorized in some but not all districts are distinctively Special Grand Juries. They have the power to apply for an enlargement of their own term if the Court fails to act (Section 331(b)). They have the power to render reports under Section 3333, and Grand Juries generally are not regarded as having any such power of report. It must, therefore, be concluded that the present Grand Jury cannot be regarded as having been created under Chapter 216 of Title 18, and that its term had expired when the present indictment was found.

The expiration date of the Grand Jury, if its term was not validly extended, was September 17, 1972, the indictment was found on September 26, 1972, some nine days after the expiration date of the Grand Jury. Two days after the expiration of the Grand Jury's term, on September 19, 1972, the defendant was called before the Jury, sworn, and then gave the testimony which Count 2 charges as perjury.

Meanwhile, however, under date of August 30, 1972, the Chief Judge had signed an order reciting Section 3331 of Title 18 and extending the life of the Special Grand Jury convened March 17, 1971 to March 17, 1973, to complete the business before it. While no formal petition for extension was submitted to the Chief Judge, Government counsel explained to the Chief Judge the substantial developments that had occurred in the investigation of F.H.A. matters and the amount of time needed to complete the work before the Grand Jury. The Chief Judge was also advised that the members of the Grand Jury had themselves voted for the extension of the life of the Grand Jury. It might be thought possible to extend the Grand Jury's life by converting the Rule 6 Special Grand Jury into a Section 3331, 3332(b) Grand Jury. However, since a Section 3331(a) Grand Jury was already sitting, conversion of the March 1971 Grand Jury into a Section 3332(b) Special Grand Jury, if possible at all, would have required the special determination of Section 3332(b), and that was not made.

Nevertheless, the Grand Jury was in existence, did interrogate witnesses, and did find indictments. Could it function as a de facto Grand Jury beyond its term where, at least, it had color of right to exist in the order made by the Chief Judge even though that order should not have been made, and, no doubt, would not have been made, had all the data been drawn to the attention of the Chief Judge? It has been said that Grand Juries are a creature of statute, In re Mills, 1890, 135 U.S. 263, 267, 10 S.Ct. 762, 34 L.Ed. 107. The several federal cases that have considered the question have all come up under an earlier form of the provision for Grand Juries, that contained in former 28 U.S.C. § 421, which in substance provided that—

"And the district judge or the senior district judge, as the case may be, may, upon request of the district attorney or of the grand jury or on his own motion, by order authorize any grand jury to continue to sit during the term succeeding the term at which such request is made, solely to finish investigations begun but not finished by such grand jury: Provided, however, That no grand jury shall be permitted to sit in all during more than three terms."

The cases to be discussed all turned on whether or not the investigation of the subject matter of the indictment had been commenced in and continued from the preceding term to the term in which the Grand Jury returned the indictment; in each case there was an order of court continuing the jury for the purpose of finishing investigations commenced at an earlier term. United States v. Johnson, 7th Cir. 1941, 123 F.2d 111, 119-121, reversed a conviction because the count had been found by a continued Grand Jury on subject matter not under investigation at its original term but first introduced at the continuation term. The court observed that, in spite of an earlier holding of its own, ". . . there is no such thing as a de facto Grand Jury in a Federal Court." The case was in its result reversed by the Supreme Court, 1943, 319...