United States v. Giacalone, Crim. No. 5-80852.
| Citation | 408 F. Supp. 251 |
| Decision Date | 08 September 1975 |
| Docket Number | Crim. No. 5-80852. |
| Parties | UNITED STATES of America, Plaintiff, v. Anthony Joseph GIACALONE, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Robert C. Ozer, Sp. Atty., Detroit Strike Force, U. S. Dept. of Justice, Detroit, Mich., for government.
S. Allen Early, Jr., Detroit, Mich., for defendant.
This is a motion filed by the defendant, Anthony J. Giacalone, to dismiss a three-count indictment pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure. The defendant is charged in Counts I and II of the indictment with (1) having caused a "certain check" to be placed in the United States mail, and (2) having received the same check from the United States mail for purposes of executing a scheme and artifice to defraud, both in violation of 18 U.S.C. § 1341. Count III alleges a conspiracy to use the United States mail to execute a scheme to defraud in violation of 18 U.S.C. § 371.
By this motion the defendant has challenged the authority of Special United States Attorney Robert C. Ozer, as the Chief of the Detroit Organized Crime Strike Force of the Department of Justice, to conduct the grand jury proceedings from which the indictment against the defendant issued. The defendant asserts that Mr. Ozer was not properly authorized as an "attorney for the government" within the meaning of 28 U.S.C. § 515 and, therefore, he was not entitled to be present while the grand jury was in session or to receive disclosure of matters before the grand jury under Federal Rule of Criminal Procedure 6(d) and (e). An "attorney for the government" is defined as, inter alia, "an authorized assistant of the Attorney General." F.R. Cr.P. 54(c).
On February 20, 1975, John C. Keeney, Acting Assistant Attorney General, appointed Mr. Ozer as Special United States Attorney by what appears to be a standard form letter. The letter of appointment specifically directed Mr. Ozer to file informations and to conduct in the Eastern District of Michigan and other judicial districts of the United States "any kind of legal proceedings, civil or criminal, including grand jury proceedings . . . which United States Attorneys are authorized to conduct."
Authority for the appointment and the direction it established is found in title 28 U.S.C. § 515. The statute provides:
(a) 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. (b) Each attorney specifically retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General, and shall take the oath required by law. . . .
The defendant initially contended that Mr. Ozer's appointment failed to comply with the statute on the sole ground that he had not taken the Oath of office as required by Section 515(b). To substantiate this allegation, the defendant presented a certification by the clerk of the court dated May 28, 1975 which stated that the court records of this district failed to disclose that an Oath of Office was filed or recorded by a Robert C. Ozer.
In reply, the government presented a photocopy of a certified copy of the original Oath of Office which was apparently subscribed and sworn to by Mr. Ozer on February 27, 1975. The government also presented a certification from the clerk of the court dated August 4, 1975, acknowledging that the original Oath of Office for Mr. Ozer had been misplaced in the court files and that the certified copy of the Oath has now been furnished to the Clerk's office.
At the hearing on this motion, defendant's counsel stated that he was unaware of the existence of the certified copy of Mr. Ozer's original Oath of Office or that the original Oath had been misplaced in the court files. Without pressing this matter further, defendant's counsel sought to raise additional grounds for challenging the authority of Mr. Ozer's appointment as Special United States Attorney. Since these new grounds for dismissal all relate to the initial issue raised by the defendant's motion, this Court took the matter under advisement thereby permitting the defendant to assert the additional grounds raised at the hearing.
In addition to the original ground asserted in support of this motion, the defendant now claims that Mr. Ozer's letter of appointment fails to comply with the statute in two basic respects. First, it is contended that the letter of appointment is too broad because it fails to give specific direction in the grant of authority as required by Title 28, Section 515(a). Second, it is further alleged that the Acting Assistant Attorney General lacks the authority under Title 28, Section 515(a) to appoint a Special United States Attorney.
The defendant's original ground in support of his motion must be decided adversely to him in light of the government's certified document establishing that Mr. Ozer took the Oath of Office on February 27, 1975, a time prior to his involvement with the grand jury in this case. The defendant has neither contradicted nor challenged the authenticity of this document and this Court may, therefore, accept it as secondary evidence that Mr. Ozer has complied with the Oath requirement of 28 U.S.C. § 515(b), Belt v. United States, 73 F.2d 888 (5th Cir., 1934).
Moreover, the mere failure of a Special United States Attorney to file or record an otherwise valid appointment with the district court does not invalidate the appointment nor vitiate the privilege of the Special United States Attorney to be present before the grand jury under Rule 6 of the Federal Rules of Criminal Procedure. It is the authorization and not the filing which authorizes the government attorney to act. May v. United States, 236 F. 495, (8th Cir., 1916); United States v. Morton Salt Company, 216 F.Supp. 250, 256 (Minn.D. C.1962).
The defendant's additional grounds in support of his motion have been decided adversely against him by two appellate circuits in In Re Persico, 522 F.2d 41 (2nd Cir., 1975) and United States v. Wrigley, 520 F.2d 362 (8th Cir., 1975); DiGirlomo v. United States, 520 F.2d 372 (8th Cir., 1975); United States v. Agrusa, 520 F.2d 370 (8th Cir., 1975). All of these cases involved standard form letters of appointment identical in terms to the letter of appointment in this case. The courts in both circuits rejected the same legal and factual contentions raised by the defendant in this case in upholding the validity of the appointments under 28 U.S.C. § 515(a).
In Wrigley the Eighth Circuit held that letters of appointment which stated that Special Attorneys were "specifically authorized and directed . . to conduct any kind of legal proceedings . . . which United States Attorneys are authorized to conduct" substantially complied with 28 U.S.C. § 515(a). This holding was based upon a careful reading of the statutory language and a review of the legislative history of the statute. The court concluded that the statute, 28 U.S.C. § 515(a), was not a limitation but was rather a grant of authority that makes the powers of the Attorney General coextensive with his duties. The court further concluded that:
the decision as to when special attorneys were to be employed, however, was left solely to the discretion of the Attorney General. Nothing in the legislative history, and certainly nothing in the statute, evidences a congressional intent to subject the Attorney General's decisions to review. His is the duty to conduct the criminal litigation of the United States. 28 U.S.C. § 516.
In Persico the Second Circuit upheld an identical letter of appointment by relying upon administrative guidelines that establish limitations on the special attorney's authority. The court concluded that the letter...
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United States v. Finazzo
...will follow the well reasoned opinion of Judge Ralph Freeman, who was confronted with a very similar challenge in United States v. Giacalone, 408 F.Supp. 251 (E.D.Mich.1975). This Court finds itself in accord with the conclusion that the decision as to when special attorneys are to be emplo......