United States v. Gurney

• Decision Date: 31 December 1974
• Docket Number: No. 74-122 Cr. J-K.,74-122 Cr. J-K.
• Citation: 393 F. Supp. 688
• Parties: UNITED STATES of America, Plaintiff, v. Edward J. GURNEY et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

393 F. Supp. 688

UNITED STATES of America, Plaintiff, v. Edward J. GURNEY et al., Defendants.

No. 74-122 Cr. J-K.

United States District Court, M. D. Florida, Jacksonville Division.

November 26 and December 31, 1974.

COPYRIGHT MATERIAL OMITTED

Harvey E. Schlesinger, Asst. U. S. Atty., Jacksonville, Fla., for the United States.

C. Harris Dittmar, Jacksonville, Fla., for Edward J. Gurney.

James D. Little and Robert L. Floyd, Miami, Fla., for James L. Groot.

James M. Russ, Orlando, Fla., for Earl M. Crittenden.

Egerton van den Berg, Orlando, Fla., for George Anderson.

Alan C. Todd, Winter Park, Fla., for Joseph Bastien.

Raymond E. LaPorte, Tampa, Fla., for Wayne Swiger.

Carlton P. Maddox, Jacksonville, Fla., for Ralph M. Koontz.

MEMORANDUM AND ORDER

KRENTZMAN, District Judge.

The Court has received evidence and heard the several defense motions in this case. By order entered October 25, 1974, it ruled on certain of them. At hearing on November 12, 1974, the Court ruled as to certain of defendants' contentions in support of their motions to dismiss the indictment. This memorandum and order is in support thereof. Decision on defendants' remaining contentions in support of their motions to dismiss and remaining motions is under advisement.

(A) "Special" Grand Jury, vel non?

On August 21, 1973, a United States District Judge resident in the Jacksonville Division of this District, entered Jury Order No. 10 directing that a venire of grand jurors be drawn and summonsed to report on September 5, 1973. The order makes no mention of the word "special." Excerpts of the transcript of the impanelling procedure are as follows:

"THE COURT:

All right, we're going to impanel two Grand Juries this morning, if we have enough jurors. We're going to impanel a Special Grand Jury; that's for sure. If we have enough jurors left, we're going to impanel a Regular Grand Jury." Page 3 TR

* * * * * *

"This Special Grand Jury will require more service by Jurors than the Regular Grand Jury. The Regular Grand Jury that we have now has averaged two days a month meeting for the last eleven or twelve months. It is contemplated that the Special Grand Jury will serve for approximately a year and will meet more frequently than the Regular Grand Jury." TR 4

Thereupon the judge impanelled two grand juries designating one as "Regular" and the other as "Special", jointly instructing them as to their duties and responsibilities. For ease in reference the grand jury designated by the judge as "Special" will be called Grand Jury "A" herein.

The evidence indicates that in his record keeping activities for the two grand juries the Clerk designated Grand Jury "A" as "Special", and further indicates that in addition to this case Grand Jury "A" returned approximately twenty other indictments concerning other defendants and other alleged crimes.

Procedure by and before a federal grand jury is contained in Rules 6 and 7, Federal Rules of Criminal Procedure, which have been substantially in their present form since 1946.

In 1970, Chapter 216 §§ 3331-34 inclusive, Title 18, United States Code, was enacted. It authorizes the summons of Special Grand Juries, provides for their powers and duties, and authorizes them to submit reports. Section 3331 supra in pertinent part is as follows:

§ 3331 Summoning and term

"(a) In addition to such other grand juries as shall be called from time to time, each district court which is located in a judicial district containing more than four million inhabitants or in which the Attorney General, the Deputy Attorney General, or any designated, Assistant Attorney General, certifies in writing to the chief judge of the district that in his judgment a special grand jury is necessary because of criminal activity in the district shall order a special grand jury to be summoned at least once in each period of eighteen months unless another special grand jury is then serving. . . ."

The evidence in this case establishes, and the Court finds, that there was no request or certification from the Attorney General or person in his office with regard to Grand Jury "A", it was not called by the Chief Judge of this District and at that time there was a Chapter 216 grand jury at Tampa in the Middle District of Florida. There is nothing in the record to indicate that any attempt was ever made to comply with the requirements of Chapter 216 in the calling of Grand Jury "A" and none was required. Upon such findings any issue as to the number of inhabitants of the district as of the pertinent date is irrelevant.

Defendants urge these facts as grounds for their motion to dismiss. The government urges them as evidence that Grand Jury "A", despite the nomenclature used, was not a Chapter 216 grand jury.

Grand Jury "A" had both the authority and the viability to return the indictment in this case under the provisions of Rule 6. None of its acts or attempted acts was similar to those solely authorized under Chapter 216.

There are many cases which use the word "special" to classify Rule 6 Grand Juries used for different purposes. United States v. Brown, 36 F.R.D. 205 (D.C.D.C.1964); Petition of A & H Transportation, Inc., 319 F.2d 69 (4th Cir. 1963) to investigate possible antitrust violations; and United States v. Fein, 370 F.Supp. 466 (E.D.N.Y.1974) to consider antitrust and FHA matters.

In United States v. Fein, supra, a "special" Grand Jury was impaneled under Rule 6, Federal Rules of Criminal Procedure, first for antitrust matters, and subsequently for FHA matters. This Special Grand Jury returned an indictment 9 days after its 18 month term expired. Several weeks before under provisions of Title 18, United States Code, Section 3331, the court extended the term of the Grand Jury for six months. The trial court found that the extension was invalid since the Special Grand Jury was originally impaneled under Rule 6 and not Section 3331, even though it was called a Special Grand Jury. The court stated at page 467:

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.

Denying motions to dismiss in recent cases, United States v. King, 28,264, and United States v. Duthie, 28,265, F.Supp. (D.C.W.D.Ky.1974) the district court there held:

"While Judge Gordon, in his orders empanelling the two antitrust grand juries may have referred to them as "special" grand juries, and while the Clerk and this Court may also have followed that nomenclature, this Court is of the opinion that this was done so as to distinguish between the first grand jury which had been empanelled in 1971 in Louisville and the antitrust grand jury. This opinion is buttressed by the fact that the United States, acting through Will Wilson, Assistant Attorney General, on March 13, 1971, requested Judge Gordon, in writing, and pursuant to the Organized Crime Control Act of 1970, for the empanelling of a special grand jury because of criminal activity in the district. This letter is evidence of the fact that the Government knew how to properly request the Chief Judge for the empanelling of an organized crime special grand jury when this was appropriate."

Grand Jury "A" was not a Special Grand Jury as defined and authorized under Chapter 216, Sections 3331-34, inclusive, Title 18, United States Code. Defendants' motions to dismiss on this ground should be and they are, respectively, Denied.

(B) ALLEGED APPEARANCE BEFORE THE GRAND JURY OF UNAUTHORIZED PERSONS

Defendants Crittenden and Gurney contend that one or more of the persons representing the government appearing before the grand jury was unauthorized so to do and urge dismissal of the indictment. Each of the other defendants adopt this contention.

In addition to the foreman the indictment was signed by persons designating themselves as follows: Harvey E. Schlesinger, Assistant United States Attorney; Bruce E. Wagner, Special Assistant United States Attorney; George A. Kokus, Special Assistant United States Attorney; Ralph J. Heikkinen, Special Assistant to the United States Attorney; and William O. Hoar, Special Assistant to the United States Attorney. The evidence indicates that each of them at one time or another appeared before the grand jury.

The parties make different contentions as to the status of those who appeared on behalf of the government. Neither contests the authority of Mr. Schlesinger who was and is an Assistant District Attorney for the Middle District of Florida. As to the others, defendant Crittenden contends that each was a "special attorney" under the provisions of Section 543(a) (post) who were not legally appointed and if they were, there was no documentation in the files of the district court to that effect. After the receipt of evidence defendant Gurney urges additionally that the appointment of Mr. Kokus expired December 31, 1973, and that between then and a second appointment on June 14, 1974, his appearance before the grand jury was illegal.

The government contends Messrs. Wagner, Kokus, Heikkinen and Hoar were each officers of the Department of Justice specifically directed by an authorized delegate of the Attorney General to conduct grand jury proceedings and that each possesses the authority to appear before the indicting grand jury.

Among those allowed to be present before a federal grand jury by Rule 6, Federal Rules of Criminal Procedure, are "attorneys for the government." Rule 7 thereof provides that an indictment shall be signed by "the attorney for the government." There is no restriction in the local rules of this district upon the right of a duly appointed and qualified government attorney to appear before a grand jury of this district and there should be none. Careful procedure would suggest that persons so appearing should be properly identified and that internal...