United States v. Hawthorne, Crim. No. 77-395.

• Decision Date: 18 April 1978
• Docket Number: Crim. No. 77-395.
• Citation: 449 F. Supp. 1048
• Parties: UNITED STATES of America, Plaintiff, v. James Robert HAWTHORNE et al., Defendants.
• Court: U.S. District Court — Southern District of California

449 F. Supp. 1048

UNITED STATES of America, Plaintiff, v. James Robert HAWTHORNE et al., Defendants.

Crim. No. 77-395.

United States District Court, S. D. California, Fourth Division.

April 18, 1978.

Richard D. Huffman, James L. Duchnick, San Diego, Cal., Ronald H. Rose, Los Angeles, Cal., for plaintiff.

Charles B. McKesson, Tom G. Kontos, Arthur J. Lewis, Richard Cabellero, Los Angeles, Cal., Joseph A. Milchen, San Diego, Cal., Irving D. Apple, Los Angeles, Cal., Leslie E. Osborne, Jr., San Diego, Cal., for defendants.

AMENDED OPINION

GORDON THOMPSON, Jr., District Judge.

Defendants moved for dismissal of the indictment against them on the ground that James L. Duchnick and Richard D. Huffman, special assistants to the United States Attorney who appeared before the grand jury, were not properly authorized to do so under 28 U.S.C. § 515. The defendants contended that the letters from the Attorney General, which appointed these attorneys as special assistants to the United States Attorney,¹ did not specifically direct them to conduct grand jury proceedings, as 28 U.S.C. § 515 requires.² The government, in opposing the motion, argued that Duchnick and Huffman were properly authorized to appear before the grand jury pursuant to 28 U.S.C. § 515. Finding that these attorneys had not been specifically directed to conduct grand jury proceedings by the Attorney General, as required by § 515, the court ordered that the indictments be dismissed.

The court subsequently granted a government motion for reconsideration of its ruling, and stayed execution of its order to dismiss pending determination of the motion to reconsider. The government now opposes defendants' motions on the grounds that Duchnick and Huffman were authorized as special assistants to the United States Attorney pursuant to 28 U.S.C. § 543 rather than 28 U.S.C. § 515.³ The appearance of these attorneys before the grand jury was proper, it is asserted, because § 543 does not require that attorneys appointed pursuant to its provisions be specifically directed by the Attorney General to conduct grand jury proceedings.

In response, the defendants argue that § 543 is merely an enabling statute which permits the Attorney General to appoint special assistants to the United States Attorney. Section 543 is not, defendants contend, an independent basis for appointing attorneys to assist the United States Attorney. Rather, § 515 provides the means for the power granted by § 543 to be exercised. Thus, the conduct of specially appointed assistants to a United States Attorney in appearing before a grand jury is not proper unless their authorizations meet the requirements of § 515.

The language of §§ 515 and 543 is ambiguous as to when attorneys, who receive special appointments by the Attorney General, may conduct grand jury proceedings without being specifically directed by him to do so. Section 543 empowers the Attorney General to appoint "attorneys to assist United States attorneys," and does not require that such attorneys receive specific directions from the Attorney General to appear before a grand jury. On the other hand, § 515, which applies, inter alia, to "any attorney specially appointed by the Attorney General under law," permits officers of the Department of Justice, and attorneys specially appointed by the Attorney General, to conduct grand jury proceedings only when the Attorney General specifically directs them to do so.

The question confronted, therefore, is whether the specific direction requirement of § 515 applies to attorneys appointed by the Attorney General to assist the United States Attorney, since such attorneys are, after all, "attorneys specially appointed by the Attorney General under law." The answer to this question may be found by reference to the circumstances which surrounded the enactment of § 543 and § 515, and historical distinctions between the duties and functions of the Attorney General and the United States attorneys.

II

The Judiciary Act of 1789 provided for the appointment of an Attorney General for the United States. The Attorney General was authorized by this statute to give "advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments." Additionally, the Attorney General was given the duty to conduct litigation on behalf of the United States in the Supreme Court. Judiciary Act of 1789, § 35, 1 Stat. 93.

The Act also provided for the appointment of district attorneys for the United States (known today as United States attorneys and hereinafter referred to as such) in each judicial district. The power to conduct all criminal and civil litigation in the district and circuit courts, to which the United States was a party, was given to the United States attorneys. Judiciary Act of 1789, § 35, 1 Stat. 93.

Thus the Judiciary Act of 1789 created a system in which the Attorney General was specifically authorized to represent the United States only in judicial proceedings which took place in the Supreme Court. Power to initiate federal criminal prosecutions, including the right to appear before a grand jury, was given to the local United States attorneys.⁴ Moreover, United States attorneys functioned independently of the Attorney General. The Attorney General had no supervisory control over them, and instructions to United States attorneys could come only from the President. H. Cummings and C. McFarland, Federal Justice, 218 (1937).

However, in 1861 Congress changed this situation when it enacted the legislation which today, as modified, is 28 U.S.C. § 543. In this statute, the Attorney General was given supervisory power over United States attorneys, and authority to appoint attorneys to assist the United States Attorney.⁵ Act of August 2, 1861, 12 Stat. 285, c. 37, Rev.Stat. § 363.

Moreover, in 1870, Congress authorized the Attorney General to "conduct and argue any case in which the government is interested, in any court of the United States." Act of June 22, 1870, 16 Stat. 162, c. 150, § 5, Rev.Stat. § 369. Thus, the Attorney General was no longer restricted to appearing for the United States only in judicial proceedings taking place in the Supreme Court. Additionally, the Attorney General was authorized to require the Solicitor General, or any officer of the Department of Justice, to conduct and argue cases in the federal courts. He was also given power to appoint attorneys to assist the Attorney General in the the trial of any case. Act of June 22, 1870, 16 Stat. 162, c. 150, § 17, Rev.Stat. §§ 364-366.

Thus, after 1870, the Attorney General was authorized to appoint attorneys to assist the United States Attorney, under Rev. Stat. § 363, and attorneys to assist the Attorney General, under Rev.Stat. § 366. These were separate and distinct statutory bases for the Attorney General, as head of the Department of Justice, to appoint attorneys to assist either himself or a United States attorney.

Then, in 1903, the court in United States v. Rosenthal, 121 F. 862 (S.D.N.Y.1903), decided that the Act of June 22, 1870 had not given to the Attorney General, or any officer of the Department of Justice, the power to appear before a grand jury. The basic issue confronted in Rosenthal, as framed by the court, was whether the Act of June 22, 1870, which authorized the Attorney General to "conduct and argue any case" in a federal court, could be construed to empower the Attorney General to conduct proceedings before a grand jury, "in derogation of the exclusive power" of the United States attorneys to conduct such proceedings. 121 F. at 866.

In Rosenthal, a Mr. Smith had been appointed as a special assistant to the Attorney General pursuant to Rev.Stat. § 366. Smith was assigned to investigate alleged fraud in the importation of silk into New York, and to conduct criminal and civil proceedings which might result from his investigations. He obtained indictments against a number of defendants, who moved to quash the indictments on the ground that Smith, as a special assistant to the Attorney General, had had no authority to appear before a grand jury.⁶

The court examined the traditional powers and duties of both the Attorney General and the United States attorneys. It determined that, until Congress passed the Act of June 22, 1870, the Attorney General had had no power to represent the United States in judicial proceedings other than those taking place in the Supreme Court. 121 F. at 866. Moreover, the court found that Congress, by the Act of June 22, 1870, did not intend to empower the Attorney General, or any officer of the Department of Justice, to conduct grand jury proceedings. The court stated:

It is with difficulty believed that it was the intention of Congress to endow the highest law officer of the United States and the Solicitor General and the officers of the Department of Justice with power to "conduct and argue" a case before a grand jury. It is probable that the intention was to settle the right of these officers to "conduct and argue" cases "in any court," as they had been permitted to do in the Supreme Court and the Court of Claims, and to leave "public prosecutions, until they come before the court to which they are returnable, * * * within the exclusive direction of the District Attorney," as theretofore declared.

121 F. at 866.

Rosenthal thus read the 1870 statute to indicate an "attentive and jealous regard for the primary policy of limiting the conduct of matters before grand juries to the local officers." 121 F. at 867.

The court ruled that, since the Attorney General did not have the right to appear before a grand jury, then Smith, a specially appointed assistant to the Attorney General, did not have such power. The Attorney General could not delegate to his specially appointed assistant a power which he himself did not have. 121 F. at 869. Thus, Ros...