United States v. Weiner, 74 CR 336.

• Decision Date: 17 March 1975
• Docket Number: No. 74 CR 336.,74 CR 336.
• Citation: 392 F. Supp. 81
• Parties: UNITED STATES of America, Plaintiff, v. Irwin WEINER et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

392 F. Supp. 81

UNITED STATES of America, Plaintiff, v. Irwin WEINER et al., Defendants.

No. 74 CR 336.

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

March 17, 1975.

Thomas P. Sullivan and Robert Graham, Jenner & Block, Julius L. Echeles, Raymond Smith, Chicago, Ill., and Jerris Leonard, Washington, D. C., for defendants.

U. S. Atty. James R. Thompson by Asst. U. S. Attys. Mathias Leyden, Daniel Webb and Sp. U. S. Atty. Gary Shapiro, Chicago, Ill., for United States.

MEMORANDUM OPINION AND ORDER

BAUER, District Judge.

On February 19, 1974 the above named defendants were charged with multiple violations of federal law by participating in a part of a "scheme and artifice to defraud" the Central States, Southeast and Southwest Teamsters Pension Fund.

One of the attorneys presenting evidence to the grand jury during an investigation of the defendants' activities here in the Northern District of Illinois was Gary S. Shapiro, a "special attorney" with the Criminal Division of the United States Department of Justice assigned to the Chicago Area Strike Force. Subsequently the defendants, who were in the sixth week of trial, made a formal motion to dismiss the indictment pursuant to Rule 12(b) (2) of the Federal Rules of Criminal Procedure. They charged that Mr. Shapiro was not authorized to appear before the grand jury in this case and that his appearance "tainted" the grand jury proceedings.

On December 27, 1973 Henry Petersen, then Assistant Attorney General wrote what appears to be a standard form letter¹ to Mr. Shapiro retaining and appointing him as a prosecutor. Shortly thereafter Mr. Shapiro, on January 10, 1974, executed the oath of office.

The statute under which Mr. Shapiro was appointed a "special attorney" is codified at 28 U.S.C. § 515(a), and provides that:

"(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."

Apparently defendants' motion is based upon three very recent decisions which question the authority of a "special attorney" from the Department of Justice to appear before local grand juries. See United States v. Williams, 65 F.R.D. 422 (W.D.Mo., 1974); United States v. Crispino, 392 F.Supp. 764 (S.D.N.Y., 1975); United States v. Wrigley, 392 F.Supp. 9 (W.D.Mo., 1975). In response the government has directed the Court's attention to another set of decisions — just as recent — which uphold the authority of a strike force attorney to appear before the grand jury. See United States v. Brown, 389 F.Supp. 959, S.D.N.Y., 1975); Sandello v. Curran, M 11-188 (S.D.N.Y., 2/27/75); United States v. Brodson, 390 F.Supp. 774 (E.D.Wisc., 1975); In re Grand Jury Subpoena of Alphonse Perisco, 75 C 96 (E.D.N.Y., 1957). In addition motions dealing with this issue were denied by minute order without opinion in United States v. Forno, LU 74-35 (D.Nev., 1/23/75); United States v. Juillard, Inc., 74-554 (N.D.Cal., 1/10/75); United States v. Bert 4-82285 (E.D.Mich., 12/12/74). Currently there is no reported Court of Appeals decision that deals with this exact issue but the advent of such an opinion is quite probable in the near future.

I. A REVIEW OF SECTION 515(a) INDICATES THAT THE PRESENCE OF SPECIAL ATTORNEYS AT GRAND JURY PROCEEDINGS IS NOT IMPROPER.

The legal right of "specially appointed" attorneys to appear before grand juries was not seriously disputed until 1903 in the case of United States v. Rosenthal, 121 F. 862 (2 Cir. 1903)². In Rosenthal the Court found that since the Attorney General himself was not empowered to appear before grand juries, then "special attorneys" designated by the Attorney General were not "endowed with a power denied to the chief officer himself" (121 F. at 869). The Rosenthal decision was emasculated shortly thereafter when Congress passed 34 Stat. 816 on June 30, 1906, which is today known as 28 U.S.C. § 515(a). The act authorized "special attorneys" to engage in legal proceedings on behalf of the United States. It specifically included the right to appear in grand jury proceedings.

The legislative history of § 515(a) clearly indicates that it was intended as enabling legislation to restore the appointment powers of the Attorney General taken away by the Rosenthal decision.

". . . The purpose of this bill is to give to the Attorney General, or to any officer in his Department or to any attorney specially employed by him, the same rights, powers, and authority which district attorneys now have or may hereafter have in presenting and conducting proceedings before a grand jury or committing magistrate.

It has been the practice of the Attorney General for many years to employ special counsel to assist district attorneys in the prosecution of suits pending in their respective districts whenever the public interest demanded it. It has been the practice of such special counsel to appear, with the district attorney, before grand juries and committing magistrates and to assist in the proceeding pending there. This right passed unchallenged for many years, until the Circuit Court for the Southern District of New York, on March 17, 1903, in the case of the United States v. Rosenthal. . . ."

". . . This decision makes the proposed legislation necessary if the Government is to have the benefit of the knowledge and learning of its Attorney General and his assistants, or of such special counsel as the Attorney General may deem necessary to employ to assist in the prosecution of a special case, either civil or criminal. As the law now stands, only the district attorney has any authority to appear before a grand jury, no matter how important the case may be to the interests of the Government to have the assistance of one who is specially or particularly qualified by reasons of his peculiar knowledge and skill to properly present to the grand jury the question being considered by it. . . ."

"It seems eminently proper that such powers and authority be given by law. It has been the practice to do so in the past and it will be necessary that the practice shall continue in the future.

If such a law is necessary to enable the Government to properly prosecute those who are violating its laws, it is no argument against it that some grand jury may be, perhaps, unduly influenced by the demands or importunities that may be made upon it by such special counsel. The same argument can as well be made against permitting a district attorney from attending a sitting of such jury.

There can be no doubt of the advisability of permitting the Attorney General to employ special counsel in special cases, and there can be no question that if he has been employed because of his special fitness for such a special case that the Government should have the full advantage of his learning and skill in every step necessary to be taken before the trial, including that of appearing before grand juries. The law proposed by the bill under consideration seems to be the very necessary, because of the decision in the Rosenthal case, hereinbefore referred to, and the committee recommends its speedy enactment" H.R. Rep. No. 2901, 59th Cong., 1st Sess. (April 4, 1906).

Since 1906 § 515(a) has frequently been the subject of litigation. The key issue, until the recent dilemma regarding the authority of "strike force" attorneys, centered around the question of whether the Attorney General "specifically directed" the appointee; or, whether the appointee was retained because of a special assignment that required a particular useful knowledge or skill.

The "specific direction" by the Attorney General to the specially appointed attorney is customarily by letter, which may be issued to each attorney individually or to an officer in immediate supervision over several other such officers, United States v. Hall, 145 F.2d 781, 785 (9th Cir. 1944). This authorization to conduct legal proceedings is complete when signed and need not be filed with the Court. Belt v. United States, 73 F. 2d 888 (5th Cir. 1934). Some courts have found that the requirement that the attorney be "specially directed to conduct any kind of legal proceeding" is mainly for the protection of the United States. Shushan v. United States, 117 F.2d 110, 114 (5th Cir. 1941), cert. denied 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531, reh. denied 314 U.S. 706, 62 S.Ct. 53, 86 L.Ed. 564; United States v. Powell, 81 F.Supp. 288, 291 (E.D. Mo., 1948). Supposedly the requirement protects the United States against an abuse of discretion by the special attorney and unnecessary expense (see, e. g., Wall v. United States, 384 F.2d 758 (10th Cir. 1967).

The defendants have mounted their challenge on a claim that Mr. Shapiro's authorization is too broad. However most of decided cases under Section 515 (a) were brought because the letter of authorization was too narrow to permit the challenged conduct. In sustaining the broad powers of a specially appointed attorney to appear before grand juries Judge Augustus Hand, in United States v. Morse, 292 F. 273 (2 Cir. 1922) stated that:

"I see no reason for assuming, because on the face of the letter no interrelation is set forth, that it is not sufficiently specific. Indeed, it probably is as specific as was possible, if adequate power to deal with the situation without impairment of usefulness or unnecessary reduplication of labor were to be given. Nor does the fact that proceedings may be taken in more than one district render the authority broader than the act of 1906 justifies, for no such limitation seems necessarily involved in the language of the act, and to impose it would cause unnecessary

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