United States v. Isaacs

• Decision Date: 30 May 1972
• Docket Number: No. 71 CR. 1086.,71 CR. 1086.
• Citation: 347 F. Supp. 743
• Parties: UNITED STATES of America v. Theodore J. ISAACS et al.
• Court: U.S. District Court — Northern District of Illinois

347 F. Supp. 743

UNITED STATES of America v. Theodore J. ISAACS et al.

No. 71 CR. 1086.

United States District Court, N. D. Illinois, E. D.

May 30, 1972.

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James R. Thompson, U. S. Atty., Chicago, Ill., Samuel K. Skinner, First Asst. U. S. Atty., Chicago, Ill., Darrell McGowen, Dept. of Justice, Washington, D. C., Steven Kadison, Gary L. Starkman, Steven H. Mora, Asst. U. S. Attys., Chicago, Ill., for government.

Albert E. Jenner, Jr., Thomas P. Sullivan, Jenner & Block, Chicago, Ill., for defendant Isaacs.

William A. Barnett, Chicago, Ill., for defendant Miller.

Edward Bennett Williams, Williams, Connolly & Califano, Washington, D. C., for defendant Kerner.

George F. Callaghan, Chicago, Ill., for defendant Knight.

F. Lee Bailey, Bailey, Alch & Gillis, Boston, Mass., for defendant McInturf.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

Defendants have filed a combined total of forty-three motions (exclusive of alternative motions and motions filed after the deadline agreed to by counsel in January), supported by the same number of briefs. The Government has responded and defendants have filed rebuttal briefs. The reading of the motions and briefs alone involved considerable time and effort. Some of the motions raise difficult questions about which the courts have expressed divergent views.

Motions of Judge Kerner

Motions filed by Otto Kerner, Jr. will be considered in numerical order first, as they were the first to be filed. There are thirteen in number.

Unauthorized Persons in Grand Jury Room

The first is a motion to dismiss the indictment because of the presence of unauthorized persons in the grand jury room during its sessions. This motion is supported by affidavit and is based on an alleged violation of Rule 6(d), F.R.Cr.P., which provides:

"Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting."

The attached affidavit of Kerner states, in substance, that he testified on August 6, 1971 before the May, 1971 grand jury which returned the indictment; that during his testimony on that day he saw in the grand jury room the grand jurors, the reporter, the Government lawyers and three other men not shown by the transcript to have been present; that he recognized one of the three men as Internal Revenue Agent T. R. Johnson, with whom he had spent several days in June, 1965, in the course of an audit of certain of his income tax returns; and, that he did not know the identity of the other two men.

An old case dealing with the subject is United States v. Edgerton, 80 F. 374 (D.C.Mont., 1897). In that case, an expert witness was not only permitted to remain after he had testified before the grand jury, but was also permitted to propound questions to subsequent witnesses. The Government argued that the defendant was not prejudiced by these actions. The Court rejected this contention and stated that the common law rule excluding all but the witness and the United States Attorney from the grand jury sessions admitted no exceptions.¹ Potentials for prejudice were listed that could occur by the presence of an expert witness. The Court concluded that if the presence of an unauthorized person is excused, it will be impossible to set the bounds to prevent abuse. This statement comes as close as possible to a per se rule requiring dismissal.

Latham v. United States, 226 F. 420 (C.A.5, 1915) is another case often cited in support of a per se rule regarding dismissal because of the presence of an unauthorized person in the grand jury room while the grand jury is deliberating. In that case, a stenographer, who was also a clerk for the United States Attorney's Office, was allowed to be present and to record testimony. The stenographer had taken an oath to keep secret the grand jury proceedings. The Court, nevertheless, dismissed the indictment. Addressing itself to the question of whether the defendant was reqired to show prejudice, the Court stated that the unauthorized presence was a matter of substance² and the presence if unauthorized was illegal.³

The foregoing cases were largely conclusory in their reasoning. United States v. Carper, 116 F.Supp. 817 (D.C. D.C., 1953), is better reasoned and supports a per se rule. There three deputy marshals were permitted to remain in the room while the prisoners they were guarding testified. The Government argued that the deputies' presence was both necessary for protection and in no way prejudiced the defendant. The Court said that at most the defendant need only show "probable prejudice" by the deputies' presence. This prejudice was supplied by a finding that the capacity of the deputies as the witnesses' keepers could well have influenced their testimony. It was pointed out that Rule 6(e) could possibly allow the deputies to divulge what they had heard since that section stated secrecy could not be imposed on anyone other than those listed. Finally, the Court noted the virtual impossibility of an accused ever showing prejudice. This statement severely limited the remarks about showing "probable prejudice." Probable prejudice in this case was supplied and the case was dismissed.

Certain law review articles have suggested that the purpose of the rule is to maintain secrecy.⁴ Wigmore argues that the rule is not for the accused but for society, witnesses and jurors. Wigmore on Evidence, Vol. VIII, §§ 2360-63, pp. 728-41 (1961). Secrecy is undoubtedly a purpose behind the rule but the rule is based on a broader ground and that is the possibility of undue influence. In Latham, supra, the stenographer had taken an oath of secrecy and there was no allegation that it had been broken. Nevertheless, the Court dismissed the indictment. In Carper, supra, the Court pointed out that the prejudice would be the coercive atmosphere generated by the deputies' presence.

Two recent cases reinforce the undue influence factor as the basis for the rule. The first is that of United States v. Borys, 169 F.Supp. 366 (D.C.Alaska, 1959). In that case, the mother was permitted to remain in the grand jury room while her seven-year-old child was testifying. The Court held that this invalidated the indictment. The other case is that of United States v. Bowdach, 324 F.Supp. 123 (S.D.Fla., 1971), in which an FBI agent was in the grand jury room to operate a machine playing tapes for the purpose of refreshing a witness' recollection. In that case, the Court said:

"Rule 6(d) and the cases construing it lay down a hard and fast rule which allows for no exceptions."

p. 124

We conclude that an evidentiary hearing is necessary to determine if unauthorized persons were in the grand jury room during its sessions. United States v. Brumfield, 85 F.Supp. 696, 706 (W. D.La.1949).

Mail Cover

Judge Kerner also moves pursuant to Rule 12(b), F.R.Cr.P., for an order dismissing the indictment upon the ground that the Government unconstitutionally subjected him to a mail cover in violation of Article III of and the First and Fourth Amendments to the United States Constitution, or in the alternative for an order requiring the Government fully to disclose all the facts and circumstances surrounding the aforesaid mail cover and any other mail cover imposed on the defendant and any direct or indirect use made of the fruits thereof, and for an evidentiary hearing thereon for the suppression of all of said fruits. The motion is supported by affidavit of Charles Rhyne, a mail carrier, who stated in substance that sometime about the middle of January, 1971, he received a telephone call from his supervisor, Mr. Erwood, that he would be receiving Form 2007 and that he should list on this form all mail received in Judge Kerner's chambers, including the name, address, city and state of the senders; that sometime previous to January, 1971, the date he did not recall, he was ordered to fill out the same forms on mail received by Judge Kerner's Chambers in the Dirksen Building.

Defendant's alternative motion for an order requiring the Government to disclose all facts surrounding the mail cover and any other mail cover imposed on the defendant, and any direct or indirect use thereof, is sustained.

The Government is directed to state for the use of the defendant the following: (1) the full extent and duration of the mail covers; (2) the circumstances under which it was instituted, including the names and positions of all persons who authorized it; (3) the procedure by which it was instituted, including the names and positions of all persons involved therein; (4) the purported justification for its institution; (5) the information it produced; (6) the names and positions of all persons to whom such information was transmitted and the date of such transmission; (7) the use made of such information.

Many of the courts that have dealt with the mail cover question have held that the Fourth Amendment does not prevent postal inspectors from copying information contained on the outside of sealed envelopes in the mail where no substantial delay in delivery is involved. Lustiger v. United States, 386 F.2d 132, 139 (C.A.9, 1967); United States v. Costello, 255 F.2d 876, 881 (C.A.2, 1958); United States v. Schwartz, 283 F.2d 107 (C.A.3, 1960); Canaday v. United States, 354 F.2d 849 (C.A.8, 1966); Cohen v. United States, 378 F.2d 751, 760 (C.A.9, 1967). We have examined the case of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) relied upon by the defendant and do not find anything in that decision which holds mail cover operations are unconstitutional. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

We are not impressed with the...