US v. Hart

• Decision Date: 21 November 1991
• Docket Number: No. 91-80136.,91-80136.
• Citation: 779 F. Supp. 883
• Parties: UNITED STATES of America, Plaintiff, v. William L. HART, Defendant.
• Court: U.S. District Court — Western District of Michigan

779 F. Supp. 883

UNITED STATES of America, Plaintiff, v. William L. HART, Defendant.

No. 91-80136.

United States District Court, E.D. Michigan, S.D.

November 21, 1991.

Stephen J. Markman, U.S. Atty., by Alan M. Gershel, Asst. U.S. Atty., Detroit, Mich., for plaintiff.

Norman L. Lippitt, Birmingham, Mich., Thomas W. Crammer, Bloomfield Hills, Mich., for defendant.

OPINION AND ORDER RE: DEFENDANT'S MOTION FOR DISMISSAL OF INDICTMENT "BASED ON SPECIAL ASSISTANT UNITED STATES ATTORNEY PATRICK FOLEY'S MANIFEST AND IRRECONCILABLE CONFLICT OF INTEREST IN THE GRAND JURY PROCEEDINGS"

GADOLA, District Judge.

Defendant William L. Hart, who was, on the dates alleged in the indictment herein, Chief of the Police Department of the City of Detroit, is accused, in a seven count indictment, of:

1. conspiracy to embezzle or wrongfully convert public funds (18 U.S.C. § 371);

2. embezzlement/wrongful conversion of public funds (18 U.S.C. § 666);

3. embezzlement/theft of public funds (18 U.S.C. § 666);

4. obstruction of justice by tampering with a witness (18 U.S.C. § 1512(b)(1));

5. making and subscribing a false 1985 income tax return (26 U.S.C. § 7206(1));

6. making and subscribing a false 1986 income tax return (26 U.S.C. § 7206(1));

7. making and subscribing a false 1987 income tax return (26 U.S.C. § 7206(1)).

He has moved for dismissal of the indictment "based on Special Assistant United States Attorney Patrick Foley's manifest and irreconcilable conflict of interest in the grand jury proceedings and in this case...."

This court, at the request and on the motion of the defendant, has conducted extensive evidentiary hearings at which the defense has submitted both testimony from various witnesses and other evidence in support of the aforesaid motion for dismissal of the indictment.

It is the contention of the defendant that since Patrick Foley, an Assistant Prosecuting Attorney for Wayne County, Michigan, who assisted the Detroit Police Department, in his role as Assistant Prosecuting Attorney, in its internal investigation of possible wrongful embezzlements or conversions of funds from the police department's Secret Service Fund, and became contemporaneously involved, as a Special Assistant U.S. Attorney, in the federal grand jury investigation of the same matters, and Chief Hart's possible involvement therein, engaged thereby "in a manifest and irreconcilable conflict of interest." The defense further contends that Foley's "participation in this case creates an overwhelming appearance of impropriety and destroys the mandatory perception of disinterestedness which must surround every prosecutor," and that "this blatant conflict of interest mandates dismissal of the indictment against Chief Hart." Further, defendant urges that "this conflict also renders Foley's appearance before the grand jury unauthorized, tainting the indictment and also mandating its dismissal."

Defendant's position is summarized in his brief submitted in support of his motion as follows:

"Attorney Foley has been employed by the Wayne County Prosecutor's Office ("WCPO") for nearly two decades as a prosecuting attorney and investigative agent. In the various capacities he assumed as an Assistant Wayne County Prosecutor prior to this investigation, Attorney Foley had been intimately involved with Chief Hart, the Detroit Police Department ("DPD"), and the Detroit Police Department Special Imprest Cash Fund ("Fund"). Indeed, Attorney Foley became a trusted partner of Chief Hart and the DPD in the fight against crime. As a consequence, Attorney Foley has been privy to internal DPD confidential and secret information, including that which forms the predicate for, and core of, this prosecution. Attorney Foley's appointment as a Special Assistant U.S. Attorney has allowed the Government to improperly and unlawfully exploit Attorney Foley's confidential and secret information in its investigation of Chief Hart.

Attorney Foley's sudden transformation from a trusted confidant of Chief Hart and the DPD into the aggressive prosecutor of Chief Hart creates a manifest conflict of interest, an overwhelming appearance of impropriety, and destroys the mandatory aura of disinterestedness which must accompany all prosecutions. Moreover, because of this manifest conflict of interest, Attorney Foley's participation in the Grand Jury proceedings were unauthorized under the Federal Rules of Criminal Procedure and applicable case law. Accordingly, Chief Hart respectfully submits that this Court must dismiss the Government's indictment."

Background Facts

In November of 1989 John D. O'Hair, Prosecuting Attorney of Wayne County, was approached by Chief Hart, Executive Deputy Chief James Bannon, and James Ardary, a legal advisor to the police department, and was informed that the Detroit Police Department, at the instance of Chief Hart, had initiated an investigation of possible defalcations from the department's Secret Service Fund by one Kenneth Weiner, a civilian Third Deputy Chief of the Detroit Police Department.

At that meeting Mr. O'Hair inquired as to whether the investigation would be focused on any other persons, alluding to Chief Hart himself, since there had been suggestions in the media that he was involved. O'Hair was told that the focus of the investigation was principally, if not exclusively, on Weiner. Among other media speculation, which led to Prosecutor O'Hair's inquiry and concern, there had, for instance, appeared various articles indicating that Chief Hart might have been involved in improprieties, including reports that rent on Hart's daughter's apartment in California had been paid for a considerable time by Weiner or Weiner's corporations.

At that same meeting Prosecutor O'Hair stated to all present that "any investigation conducted by the Detroit Police Department of its own high-command officers without the assistance of an outside independent investigative agency would have little credibility in the eyes of the public and that the public perception would simply be the one which I shared: you cannot investigate your own; you cannot investigate yourself. Executive Deputy Chief James Bannon was offended by the suggestion — insulted. I think those were his words: `I am offended; I am insulted. The Detroit Police Department can investigate its own,' and that's where pretty much it ended."

Independently, Mr. O'Hair had previously discussed with the Director of the Michigan State Police the possibility of that agency being involved in an investigation of irregularities regarding Detroit Police Department funds, and obtained his consent to having the State Police become involved in such an investigation. O'Hair had made a similar inquiry to Robert Bowman, then State Treasurer, and had obtained a similar response with regard to obtaining the assistance of the State of Michigan in investigating financial aspects of the suspect transactions.

Subsequently, Prosecutor O'Hair designated Assistant Prosecuting Attorney Patrick Foley, Chief of the Organized Crime Section of the Wayne County Prosecutor's Office, as the individual from his office who would assist the Detroit Police Department in its internal investigation and who would specifically review the department's applications and requests for search warrants with regard to such internal investigations. It appears that Mr. Foley also was generally authorized to advise and assist the Detroit Police Department's investigators in the conduct of their internal investigation.

Meanwhile, the U.S. Attorney for the Eastern District of Michigan had initiated a federal investigation of these same alleged misappropriations of Detroit Police Department funds. The federal investigation, however, extended beyond Kenneth Weiner and was exploring the possible involvement of other persons. An agreement was reached between Prosecutor O'Hair and U.S. Attorney Stephen Markman that a member of O'Hair's staff be appointed as a Special Assistant U.S. Attorney in order to coordinate efforts of the Wayne County Prosecutor's Office and the U.S. Attorney's Office in investigations of possible criminal diversion of Detroit Police Department funds. Mr. O'Hair recommended Patrick Foley for this position and he was in due course, after the usual background investigation, appointed on January 10, 1990 to this position by the United States Department of Justice. Thus, an agreement was reached that there be a joint investigation by the U.S. Attorney and the Wayne County Prosecutor. Thereafter, for a period of time Foley both served the federal investigation as a Special Assistant U.S. Attorney and also assisted the Detroit Police Department personnel in their investigation of the funds allegedly converted wrongfully from the police department's secret service fund. As stated, the federal investigation was more wide-ranging than that of the Detroit Police Department, which was focused, so it would appear, entirely on Weiner.

It is apparent from the evidence that the federal investigation and the Detroit Police Department internal investigation were separate, rather than joint investigations. It is also apparent that Mr. Foley's participation in the federal investigation was well known to the Detroit Police Department's investigators.

It is equally clear from the evidence that the Wayne County Prosecutor, as chief law enforcement officer of Wayne County, had an interest in conducting an investigation of possible corruption in the Detroit Police Department and indeed had a legal duty to pursue such an investigation, and therefore did have an interest in coordinating his efforts with those of the U.S. Attorney. He therefore designated Mr. Foley to assist in the federal investigation. In fact, it was Mr. O'Hair who approached the U.S. Attorney and emphasized his position that the prosecutor had to have a role in the matter as the county's chief law enforcement officer, and that it was preferable to unite his efforts with those...