United States v. Treadway

• Decision Date: 21 February 1978
• Docket Number: Crim. No. 3-77-305.
• Parties: UNITED STATES of America v. Dean Charles TREADWAY.
• Court: U.S. District Court — Northern District of Texas

445 F. Supp. 959

UNITED STATES of America v. Dean Charles TREADWAY.

Crim. No. 3-77-305.

United States District Court, N. D. Texas, Dallas Division.

February 21, 1978.

Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Laurence K. Gustafson, Mary Coleen T. Sewell, and Kevin B. Pratt, U. S. Dept. of Justice, Anti-Trust Div., Dallas, Tex., for plaintiff.

Emmett Colvin, Jr., of Colvin & Jackson, Dallas, Tex., William B. West, III and William F. Carroll, of Clark, West, Keller, Sanders & Butler, Dallas, Tex., for defendant.

MEMORANDUM OPINION AND ORDER

PATRICK E. HIGGINBOTHAM, District Judge.

Introduction

Dean Charles Treadway is charged with obstruction of justice. He has moved to dismiss the indictment because an attorney with the Antitrust Division of the Department of Justice appeared before the indicting grand jury as both a prosecutor and a witness. Because this duality violates both the Code of Professional Responsibility and Rule 6(d), Fed.R.Crim.P. and otherwise presents intolerable potential for abuse of the grand jury, the indictment must be quashed.

The facts are uncontested. The Antitrust Division of the Department of Justice through a grand jury convened in the Southern District of Texas was conducting a major grand jury investigation of alleged price-fixing in the cardboard container industry. The government became suspicious that officers of Boise-Cascade (Treadway was one) obstructed justice by withholding or destroying subpoenaed documents. During April, 1977, a grand jury convened in the Northern District of Texas investigated this potential obstruction of justice. J. Albert Kroemer was the Antitrust Division attorney in charge of the price-fixing investigation. He drafted the subpoena calling for the documents now claimed to be missing. Kroemer also assisted in presenting the obstruction of justice claims to the grand jury. On April 14, 1977, Kroemer was sworn as a witness and testified before the grand jury investigating the obstruction of justice charges. Although most of his "testimony" was in fact background information, his testimony also communicated to the grand jury the materiality to the price-fixing investigation of documents of the type said to be missing. This message was important because it simultaneously swept both ends of any defensive lineup. First, the greater the materiality of the missing documents, the more compelling the inference of specific intent to obstruct justice that flowed from any intentional withholding or destruction. Second, the greater their materiality, the less the plausibility of a hypothesis of inadvertent nonproduction. DR 5 forbade Kroemer from giving this testimony on substantial, contested matters and also participating as an advocate. Rule 6(d) authorized his presence in the grand jury room as a witness, but only while he was testifying. After testifying, Kroemer remained in the grand jury room as a prosecutor, violating both DR 5 and Rule 6(d).

The Ethical Regiment

The American Bar Association Code of Responsibility (1975) provides in Ethical Considerations EC 5-9:

The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.

This ethical consideration must be read in conjunction with DR 9, which entreats lawyers to avoid even the appearance of impropriety. The ethical discipline of the American lawyer, simply put, has concluded that an attorney who testifies to material, contested facts ought not act as an advocate in that same matter.¹ The Second Circuit explained in United States v. Alu, 246 F.2d 29, 33-34 (2nd Cir. 1957):

It has been widely recognized that lawyers representing litigants should not be called as witnesses in trials involving those litigants if such testimony can be avoided consonant with the end of obtaining justice. We believe that this prohibition is applicable to the United States Government and its attorneys as well as to private litigants and their attorneys. It is obvious that the opportunity for tailoring a witness's testimony to the needs of the Government's case is maximized if recourse is permitted to the testimony of an experienced trial attorney who is interested in the successful presentation of that case. Especially in criminal litigation, where so much is at stake for the defendant, must the Bench and Bar demand adherence to a principal that is designed to ensure objectivity in the presentation of evidence.

The Alu case and most other pertinent reported decisions decided conflicts presented by attorneys who testified at trial. Here a prosecuting attorney testified before the grand jury, where the one-sided nature of the proceedings increased the potential for abuse. The problem is not that a government attorney testified for the prosecution before the grand jury; the problem is a conflict in roles because the government attorney acted as both a prosecutor and a witness. The government argues that the Code of Professional Responsibility allows an attorney to be both attorney and witness when: 1) the testimony will relate solely to an uncontested matter; or 2) if the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. (DR 5-101B, DR 5-102A). Kroemer's testimony does not fall under either exception to the general prohibition; furthermore, the act of testifying invited inquiry not only into Kroemer's but all grand jury testimony necessary to lend it context. Because this type of inquiry inevitably frustrates the secrecy sought by Rule 6, Fed.R.Crim.P., it follows inescapably that the prohibitions of the canons ought to be scrupulously followed in a grand jury investigation.²

It does not follow that the sanction for violating the Disciplinary Rules necessarily ought to be a quashing of an indictment. The code is the bar's discipline; the bar ought to be its primary enforcers, at least where the questioned conduct is extraneous to judicial proceedings. More to the point, frustrating a criminal prosecution to enforce a rule regulating intra-professional relations could pervert the public interest. The primary focus here is not with any role defendant urges the court has in the enforcement of the Code of Professional Responsibility; instead, the focus is upon the court's supervisory role over the administration of justice. Conformity to ethical standards is but one pertinent inquiry in this superintendence. That is, whether Kroemer's dual role violated a Disciplinary Rule does not mechanically determine whether this indictment is to be quashed. A disciplinary rule is pertinent only if its objective is to guard against conduct inconsistent with a fairly administered judicial system. Our inquiry then is first into the role of the court and second into the purpose of the Disciplinary Rule. These inquiries demonstrate a coincidence in purpose of Disciplinary Rules 5 and 9 and Rule 6(d) Fed.R. Crim.P.

First, the courts' supervisory role over the administration of justice cannot be gainsaid. The courts have recognized their responsibility in the administration of criminal law, cognizant that unlike most private litigation, there is a public interest as well as a private interest to be served. See, The Supervisory Power of the Federal Courts, 76 Harv.L.Rev. 1658 (1963). The doctrine of entrapment itself finds its nourishment in this doctrine. Congress did not condition its statutory offenses upon the techniques of law enforcement methods, nor is the executive's duty to see that penal statutes are faithfully executed so qualified. Yet, the courts, because of the manner of executive enforcement, have refused to sustain otherwise valid convictions. See, e. g., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). The exclusionary rules of evidence are themselves bottomed on this judicial duty with its twin, judicial power. No claim of absolute executive discretion to prosecute overrides these decisions. As stated by Justice Roberts in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (dissenting also on behalf of Justices Stone and Brandeis):

The protection of its own function and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and the court alone to protect itself and the government from such prostitution of the criminal law . . . Id., 457, 53 S.Ct. at 218.

Second, the purpose of the canon is to maintain at least the appearance of a nonpartisan advocate. As one commentator has put it:

Almost inevitably, the two roles will become mixed; the partisanship of the advocate will be decreased, and the testimony of the witness will become less detached. Ultimately, the testifying advocate occupies the dubious and embarrassing position of one trying to argue convincingly to the jury the strength and impartiality of his own testimony. The dual role is too difficult . . . Sutton, The Testifying Advocate, 41 Tex.L. Rev. 477, 481 (1963).

Here Kroemer in seeking an indictment perforce asked the jurors to accept his testimony. As a representative of the United States government, a prosecutor possesses potent credibility. That power is recognized in judicial decisions blocking efforts of prosecutors to personally vouch for the credibility of a witness or the justness of a conviction. When Kroemer as "lead counsel" over the investigation and a presenting attorney seeking an indictment took the oath of a witness in the grand jury room, he placed himself in the position of vouching for the justness of an indictment. Without the presence of a judge, opposing counsel, or the press, the potential for abuse is patent.

Rule 6(d) and the Dual Role

Once Kroemer testified before the grand jury, he could not remain as a prosecuting attorney. Rule 6(d) of the Fed.R. Crim.P. lists persons who may be present...