US v. Passman
| Decision Date | 28 February 1979 |
| Docket Number | Crim. No. 78-30013-01. |
| Parties | UNITED STATES of America v. Otto E. PASSMAN. |
| Court | U.S. District Court — Western District of Louisiana |
David R. Scott and Michael Cannon, U. S. Dept. of Justice, Washington, D. C., J. Ransdell Keene, U. S. Atty., William L. Goode, Asst. U. S. Atty., Shreveport, La., for the United States.
Camille F. Gravel, Jr., Gravel, Roy & Burnes, Alexandria, La., for defendant.
This case presents two groups of questions centered on unconstitutional pre-indictment delay and prosecutorial misconduct and overreach. The examination is not one of first instance.
Otto E. Passman, the defendant and former United States Congressman, currently faces two indictments that were filed on March 31, 19781 and on April 28, 1978.2
The defendant filed a two tine motion to dismiss the indictments requesting an evidentiary hearing and production of subpoenaed documents. These causes came on for hearing in Lake Charles on December 19, 1978 and January 5, 1979. The defendant's design for an evidentiary hearing and subpoena was to afford him the opportunity to prove the allegations made in the motion to dismiss. We accept the defendant's allegations as true for the purpose of the motion to dismiss. We deny the request for an evidentiary hearing and grant the government's motion to quash the defendant's subpoena because the motion to dismiss is insufficient as a matter of law.
To preliminarily summarize, Otto Passman avers that the indictments currently pending against him should be dismissed for dual reasons. Firstly, the defendant argues that he has suffered a violation of due process of law guaranteed to him by the fifth amendment of the United States Constitution ensuing from undue pre-indictment delay. This ground for attack must fail because the alleged undue delay was due to the failure of the government to investigate and prosecute a witness, and the defendant has no standing to complain of pre-indictment delay of a witness. The prosecution is not required to bring an indictment until they have probable cause to believe an accused is guilty; and in fact, there is a duty to defer seeking indictments until sufficient admissible evidence of guilt is obtained. Furthermore, there have been no allegations of substantial prejudice during the relevant time period of delay. The defendant concedes that he cannot show that the delay was caused by the government to gain a tactical advantage over the defendant. Finally, the test of weighing the prejudice to the defendant against the government's reasons for delay is not appropriate in this case because there has been no delay or prejudice.
Secondly, the motion to dismiss based on prosecutorial misconduct and overreach must also fail. The defendant has no standing to object to an immunity agreement between the government and Tong Sun Park, a government witness, where the immunity agreement is conditioned on the witness' full and truthful testimony.
The following scenario is a synopsis of the defendant's allegations offered in support of the motion to dismiss.3
As early as 1970 the United States Central Intelligence Agency (CIA) learned of plans being devised at the Blue House, the official home of the President of Korea, to influence American officials. Other agencies of the United States were aware of Tong Sun Park being chosen by President Park to coordinate the Korean lobbying effort to influence the members of Congress.
In 1971 several agencies of the United States ascertained information of a plan to influence improperly members of the United States Congress and were aware of unlawful payments which had been made to some of the Congressmen. This knowledge was due in part to the complaints made by Otto Passman to several high ranking officials of the United States. More specifically, the defendant wrote William Porter, the United States Ambassador to Korea, in March of 1971 to complain of Tong Sun Park's intervention in rice sales between the United States and Korea. Phillip Habib, who later that year replaced William Porter as Ambassador to Korea, was also informed by Mr. Passman of Tong Sun Park's improper activities with members of Congress. In addition, Mr. Passman had informed State Department official Winthrop Brown that Tong Sun Park had made campaign contributions to members of Congress in the amount of $400,000.00 and had offered him valuable jewelry that he had refused to accept. Thereafter, Mr. Brown turned this information over to the FBI.
The Department of Justice ordered the F.B.I. to investigate Tong Sun Park at the urging of the Department of State which had strong suspicions of Park being involved in the impermissible Korean lobbying efforts in the United States.
During the Spring of 1972, one intelligence report depicted Tong Sun Park as President Park's personal representative in arranging rice deals. The report also identified certain officers of the Korean Central Intelligence Agency (KCIA) who were handling rice transactions for the purpose of raising funds to be used in part for unlawfully influencing members of Congress.
In 1972 there were also certain intelligence reports which revealed that the Korean government had contributed funds to the Democratic party in 1968 and also reflected the Korean intention to begin to support the Republican party. Recipients of any campaign contributions by an agent of a foreign principal was prohibited by 18 U.S.C. § 613. United States intelligence was aware of the names of certain Senators and Congressmen that the Korean government believed it could influence. Although Tong Sun Park's name was mentioned in these reports, there are no allegations of any United States agencies having any evidence against the defendant, but it is the defendant's position that he was publicly connected with Tong Sun Park.
On December 8, 1973, Tong Sun Park was detained in a customs check in Anchorage Alaska. Robert Hazelton, an agent present, procured a document from Park which was entitled "Congressional List." This list contained the names of seventy to eighty public officials with corresponding numbers listed under a "Contribution Column." Otto Passman's name was listed on the "Congressional List," which Robert Hazelton turned over to his superior officer.
In the Spring of 1974, John Nidecker, a White House aide, was given an envelope with $10,000.00 in it by Row Chin Hwan, a Korean assemblyman. Row Chin Hwan later asked John Nidecker to serve as a conduit for campaign contributions to candidates for the United States Senate and House. This incident was reported to certain United States officials.
In late 1975 Philip Habib, the United States Ambassador to Korea, transmitted to Henry Kissinger more precise information of extra-legal Korean efforts to influence members of Congress. Dr. Kissinger consulted with President Ford who directed that the information be transmitted to the Attorney General. At the same time the United States Department of Agriculture (USDA) was investigating complaints that Congressman Passman was using his influence to help Tong Sun Park with certain rice transactions.
In June 1976 a grand jury was impaneled to investigate Tong Sun Park.
A sealed indictment was handed down on August 26, 1977, against Tong Sun Park who was out of the country. When Park learned of the indictment he fled to Korea where he could not be extradited. After confecting certain immunity agreements and thereby gaining access to Tong Sun Park's testimony, the grand jury returned two indictments against the defendant on March 31, 1978 and April 28, 1978.
Otto Passman challenges the constitutionality of his prosecution due to the government's failure to investigate and prosecute Tong Sun Park, a witness, as far back as 1971 when the government agencies first began to become aware of Park's illegal activities in the United States.4 The major deficiency with this argument is that it focuses on the wrong person — Tong Sun Park.
The statute of limitations provides the aboriginal armor against criminal charges that have become stale, however, the fifth amendment of the United States Constitution does occupy a limited role in guarding against oppressive delay.5 This pre-indictment delay should be judged against the standards of due process contained in the fifth amendment rather than the sixth amendment right to a speedy trial.6 Some panels in the Fifth Circuit require the defendant to show substantial prejudice stemming from a delay, and that this delay was the result of a deliberate maneuver by the government to gain a tactical advantage over the defendant.7 The defendant candidly concedes that he cannot show that the delay was a result of a tactical maneuver by the government, and therefore, he cannot meet this test. Other panels hold that the prejudice to the defendant is to be weighed against the validity of the government's reason for delay. This balancing is to determine if it would be fundamentally unfair to compel the defendant to stand trial.8
Prosecutors may defer seeking indictments until they have probable cause to believe an accused is guilty. Prosecutors may delay until they are convinced that they will be able to establish the suspect's guilt beyond a reasonable doubt but they are not required to bring charges as soon as probable cause may exist.9 Under this test the defendant has failed to show any delay in the government's indicting him as distinguished from delay in indicting Tong Sun Park. The only relevant time period for Otto Passman's pre-indictment delay claim is that time which occurred before his, Mr. Passman's, indictment and after the government acquired sufficient admissible evidence against him.
It has become abundantly clear that the government did not have a case against the defendant until they were able to acquire the cooperation of Tong Sun Park. The defendant points...
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...order compelling prosecution of a particular individual, a practice shunned by American courts."); and United States v. Passman, 465 F. Supp. 736, 741 & n. 13 (W.D. La. 1979) ("the defendant lacks standing to challenge the failure of the government to instigate criminal proceedings against ......