Wax v. Motley, 732
| Decision Date | 21 January 1975 |
| Docket Number | No. 732,D,732 |
| Citation | 510 F.2d 318 |
| Parties | Walter WAX and Lawrence Levine, Petitioners, v. Honorable Constance Baker MOTLEY, United States District Judge, Respondent. UNITED STATES of America, v. Norman RUBINSON et al., Defendants. ocket 75--3003. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas A. Andrews, New York City (Shea, Gould, Climenko, Kramer & Casey and John J. Grimes, New York City, of counsel), for petitioners Wax and Levine.
Frank Wohl, Asst. U.S. Atty., Southern District of New York, New York City (Paul J. Curran, U.S. Atty., for the Southern District of New York, Jo Ann Harris, and John D. Gordan, III, Asst. U.S. Attys., of counsel), for respondent.
Before WATERMAN, FRIENDLY and GURFEIN, Circuit Judges.
This is a petition for a writ of prohibition and mandamus directed against Honorable Constance Baker Motley, United States District Judge for the Southern District of New York, to dismiss an indictment against certain defendants upon the ground that the indictment is void because the term of the grand jury had allegedly expired prior to the return of the indictment, and seeking a stay of the trial thereon which had been scheduled for January 20, 1975. Upon hearing the oral argument, we granted a stay until January 22nd. We now decide the petition for mandamus on the merits, and we deny it for the reasons set forth.
In United States v. Fein, 504 F.2d 1170 (1974), this court upheld the dismissal of an indictment on the ground that it was invalid because returned by the grand jury after the expiration of an 18 month term although a court order had provided for a six months' extension of the grand jury before the termination of the 18 month term. As a result of the decision in Fein, petitioners here seek to void their indictment. We find that the circumstances involved in Fein were significantly different from the circumstances here involved.
In Fein the order empanelling the grand jury, while referring to it as a 'special grand jury' provided that it was being empanelled 'pursuant to Rule 6(a) and (g), Federal Rules of Criminal Procedure' and that it was 'to serve for a period not to exceed eighteen (18) months from the date it is convened.' 504 F.2d at 1171. In Fein, in the eighteenth month of the grand jury's life, an Assistant United States Attorney for the Eastern District of New York who was supervising the grand jury's investigation orally applied to Chief Judge Mishler for an extension of the term of the grand jury. On August 30, 1972, in the eighteenth month of the grand jury, Judge Mishler signed an order extending its term for an additional six months 'upon the authority of 18 U.S.C. § 331' (Ibid.). To understand the ruling in Fein, it is necessary to review its rationale of decision. A regular grand jury is empanelled pursuant to Rule 6(a), 'at such times as the public interest requires.' Under Rule 6(g) '(N)o grand jury may serve more than 18 months.'
In 1970 Congress enacted the Organized Crime Control Act of 1970, part of which became Section 3331(a) of Title 18. Section 3331(a) provided that in addition to such other grand juries as shall be called from time to time, each district court which is located in a judicial district containing more than four million inhabitants, may order a special grand jury to be summoned at least once in each period of 18 months unless another special grand jury is then serving. The section provides that the grand jury shall serve for a term of 18 months, but that if at the end of such term or any extension thereof the district court determines that the business of the grand jury has not been completed, the court may enter an order extending such term for an additional period of six months. But no special grand jury term so extended shall exceed 36 months except under circumstances not involved in Fein. We held in Fein that since the grand jury is a creature of statute the original order stating that the grand jury in the Eastern District had been empanelled pursuant to Rule 6(a) and (g) specifically to serve for a period not to exceed 18 months made this a regular grand jury, which could not be converted into a special grand jury under § 3331 with its provisions for extension. We held that in these circumstances the grand jury simply became functus officio.
It was natural enough that defendants in criminal cases involving other extended grand juries would seek to find grounds for dismissal of their indictments under our decision in Fein. We think in the case at bar that the attempt should be held unsuccessful. In the case at bar the original order did not refer to § 3331 nor, on the other hand, did it refer, as in Fein, to Rule 6(a) and (g). The order in this case did not specify that the jury was to sit 18 months, as did the order in Fein. As a result, we have an order which literally sheds no light on what sort of grand jury actually had been empanelled.
The original order of Honorable David N. Edelstein, Chief District Judge for the Southern District of New York, dated March 17, 1972, recited that the United States Attorney for the Southern District of New York, having duly verified in writing on the 17th day of March, 1972 that the exigencies of public service required the empanelling of an additional grand jury for the disposal of Government business of the said Southern District of New York, ordered that there shall be empanelled an additional grand jury to serve from April 18, 1972. There was no termination date given. In its eighteenth month of service, Honorable Dudley B. Bonsal, United States District Judge, on October 5, 1973 extended the term of the grand jury specifically pursuant to 18 U.S.C. § 3331(a). A similar order was filed by Chief Judge Edelstein on April 15, 1974 and by Honorable Lloyd F. MacMahon, United States District Judge, on October 11, 1974. Each of the extension orders, as noted, extended the term pursuant to 18 U.S.C. § 3331(a). Thus, it would appear that the extension order in the Eastern District, which purported to extend the life of the grand jury involved in Fein, dealt with a regular Rule 6 grand jury. The orders in the Southern District in this case, on the other hand, purporting to extend the term of the grand jury, did not extend a grand jury that was empanelled specifically under Rule 6(a) and (g) or which had, by order, been limited to an 18 months term. In these respects, this case differs from Fein. The indictment herein was...
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