United States v. Wrigley

• Decision Date: 05 February 1975
• Docket Number: No. 74 CR 448-W-1.,74 CR 448-W-1.
• Citation: 392 F. Supp. 9
• Parties: UNITED STATES of America, Plaintiff, v. William Robert WRIGLEY, Defendant.
• Court: U.S. District Court — Western District of Missouri

392 F. Supp. 9

UNITED STATES of America, Plaintiff, v. William Robert WRIGLEY, Defendant.

No. 74 CR 448-W-1.

United States District Court, W. D. Missouri, W. D.

February 5, 1975.

Bert C. Hurn, U. S. Atty., Philip J. Adams, Jr., Sp. Atty., Dept. of Justice, Kansas City, Mo., for plaintiff.

David R. Freeman, Federal Public Defender, Kansas City, Mo., R. Thomas Day, Asst. Federal Public Defender, for defendant.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

Defendant, represented by an Assistant Federal Public Defender, filed a motion for discovery on January 9, 1975 for the purpose of resolving the following issues stated in the suggestions filed in support of that motion:

1. Did Mr. Cornwell or some other special attorney present or take part in presenting the above-styled case to the Grand Jury?

2. If Mr. Cornwell or some other special attorney did present or take part in presenting the above-styled case to the Grand Jury, was a proper appointment pursuant to 28 U.S.C. § 515(a) given to the special attorney(s) involved so as to enable that special attorney(s) to present the above-styled case to the Grand Jury?

The government filed suggestions in opposition to defendant's motion on January 14, 1975, in which it generally reiterated arguments heretofore presented to and considered by this Court in United States v. Williams, No. 74 CR 47-W-1, D.C., 65 F.R.D. 422. The government's suggestions concede that "Special Attorneys Philip J. Adams, Jr. and Gary T. Cornwell . . . were present while the Grand Jury was in session in the above-captioned cases" (P. 6 of government's brief). The government attached to its suggestions in opposition as Exhibit 1 a letter dated August 2, 1974 from Acting Assistant Attorney General John C. Keeney to Mr. Cornwell, and attached as Exhibit 2 a letter dated June 25, 1973 from Assistant Attorney General Henry E. Petersen to Mr. Adams. Both those letters, written in substantially the same form, stated the following: We quote Assistant Attorney General Petersen's letter of June 25, 1973 to Mr. Adams

The Department is informed that there have occurred and are occurring in the Western District of Missouri and other judicial districts of the United States violations of federal criminal statutes by persons whose identities are unknown to the Department at this time.

As an attorney at law you are specially retained and appointed as a Special Attorney under the authority of the Department of Justice to assist in the trial of the aforesaid cases in the aforesaid district and other judicial districts of the United States in which the Government is interested. In that connection you are specially authorized and directed to file informations and to conduct in the aforesaid districts and other judicial districts of the United States any kind of legal proceedings, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States Attorneys are authorized to conduct.

Your appointment is extended to include in addition to the aforesaid cases, the prosecution of any other such special cases arising in the aforesaid district and other judicial districts of the United States.

The government contends that the "resolution of the two issues presented by the defense has been met by the attached copies of letters of appointment and oaths" Ibid, p. 12 to support its argument that "from the exhibits attached hereto it is apparent that the attorneys for the United States were and are duly appointed and qualified to act on behalf of the United States" Ibid, p. 11.

In regard to the first issue presented by defendant's motion, the government apparently concedes that Mr. Adams and Mr. Cornwell did in fact appear before the grand jury which returned the indictment in this case. It is also apparently conceded that neither Mr. Adams nor Mr. Cornwell are regularly appointed Assistant United States Attorneys for the Western District of Missouri and that their sole authority to represent the United States must necessarily be based upon the validity of their appointment as Special Attorneys. Our order directing further proceedings will make certain that the factual circumstances concerning Mr. Adams' and Mr. Cornwell's status are correct.

We believe it obvious that further proceedings must be directed in order to establish a full and accurate factual basis for the determination of the second issue presented by defendant's motion for discovery. For the question presented is whether Mr. Adams and Mr. Cornwell were properly appointed pursuant to and under the authority vested in the Attorney General by § 515(a), Title 28, United States Code, and whether they may properly be considered as authorized "attorneys for the government," within the meaning of Rule 6(d) of the Rules of Criminal Procedure, who are entitled to be present while the grand jury is in session.

The government's contention that Mr. Adams and Mr. Cornwell had "facially valid letters of appointment" government's brief pp. 6-7 must be determined in accordance with the language of § 515(a) and the legislative history of that legislation passed by the Act of June 30, 1906. Section 515(a) authorizes the Attorney General "or any other officer of the Department of Justice specially appointed by the Attorney General under law" to conduct grand jury proceedings "when specifically directed by the Attorney General" to do so.

The Report of the House Judiciary Committee of April 4, 1906 entitled "Commencement and Conduct of Legal Proceedings Under Direction of the Attorney-General," Report No. 2901, 59th Cong., 1st Sess., states that what is now § 515(a) was enacted in light of the Circuit Court decision of United States v. Rosenthal (Cir.Ct.S.D.N.Y.1903), 121 F. 862. After quoting portions of that opinion, the Report stated the following:

This decision referring specifically to United States v. Rosenthal 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 and no matter how necessary it may be to the interests of the Government to have the assistance of one who is specially or particularly qualified by reason of his peculiar knowledge and skill to properly present to the grand jury the questions being considered by it.

The Attorney-General states that it is necessary, in the due and proper administration of the law, that he shall be permitted to employ special counsel to assist the district attorney in cases which district attorneys or lawyers do not generally possess, and in cases of usual importance to the Government, and that such counsel be permitted to possess all of the power and authority, in that particular case, granted to the district attorney, which, of course, includes his right to appear before a grand jury either with the district attorney or alone. . . . 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. Emphasis ours

The form letter of appointment in current use by the Department of Justice must, in our judgment, be read in light of the express language of § 515(a) which requires that persons appointed by the Attorney General must not only be "specially appointed" by him must also be "specifically directed" by him. The purpose of that language is illuminated by the Report of the House Judiciary Committee. That Report emphasized that the Congress intended by its enactment of what is now § 515(a) to vest power in the Attorney General to "specially appoint" counsel "to assist in the prosecution of a special case" so...