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UNITED STATES v. DOWNEY

April 14, 1961

UNITED STATES OF AMERICA, PLAINTIFF,
v.
WILLIAM W. DOWNEY, DEFENDANT, AND WILLIAM L. GUILD, AS ATTORNEY GENERAL OF ILLINOIS, AND J. WALDO ACKERMAN, AS STATE'S ATTORNEY OF SANGAMON COUNTY, ILLINOIS, INTERVENING PETITIONERS.



The opinion of the court was delivered by: Poos, District Judge.

William L. Guild, as Attorney General of Illinois, and J. Waldo Ackerman as State's Attorney of Sangamon County, Illinois, intervened here and filed a motion for disclosure of Grand Jury proceedings, and in the motion asked for a disclosure pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and in support of the motion, alleged:

(1) That the disclosure is requested for the use in the performance of their duties by the Attorney General of Illinois and the State's Attorney of Sangamon County, Illinois.

(2) That the ends of justice require disclosure.

This motion was filed on September 7, 1960. On November 28, 1960, a supporting affidavit was filed. The affidavit states that J. Waldo Ackerman is the duly elected State's Attorney for Sangamon County, Illinois, and sets out his statutory duties which provide that he is required to commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in any court of record in Sangamon County, Illinois; and that he attend all sessions of the Sangamon County Grand Jury, and present to it evidence of all criminal violations that occur in Sangamon County, Illinois. The affidavit further sets out that it is the duty of the Attorney General under Paragraph 4, Chapter 14, Illinois Revised Statutes:

and that the purpose of the motion is to review the Grand Jury proceedings and to present any and all such matters revealed to a duly constituted Grand Jury of Sangamon County if it appears from such disclosures that a crime against the people of the State of Illinois has been perpetrated.

William W. Downey, on the hearing of this motion, was represented by counsel, and both the Attorney General and the State's Attorney appeared by their assistants.

Federal Rule of Criminal Procedure 6(e) on which the motion is based, is as follows:

    "Disclosure of matters occurring before the Grand
  Jury other than its deliberations, and the vote of
  any juror may be made to the attorneys for the
  government for use in the performance of their
  duties. Otherwise a juror, attorney, interpreter or
  stenographer may disclose matters occurring before
  the Grand Jury only when so directed by the Court
  preliminarily to, or in connection with a judicial
  proceeding, or when permitted by the Court at the
  request of the defendant upon a showing that grounds
  may exist for a motion to dismiss the indictment
  because of matters occurring before the Grand Jury.
  No obligation of secrecy may be imposed upon any
  person except in accordance with this rule.* * *"

The defendant was indicted in this proceeding for evasion of income taxes for the years 1953, 1954, 1955 and 1956, by an indictment returned March 11, 1960. Later, on September 1, 1960, the defendant pleaded guilty and was sentenced.

Factually it appears from the record that William W. Downey, defendant, was, during the taxable years in question, an employee of the State of Illinois as a Secretary in the Governor's Office. The Attorney General and the State's Attorney concede that he had nothing to do with Illinois State moneys or funds. On the argument of the motion, no facts were stated by these officers that would even tend to show the violation by defendant of any criminal statute or law of Illinois.

It does not appear from the affidavit of J. Waldo Ackerman that he has knowledge of any facts that would warrant him as State's Attorney to make a presentment to a State Grand Jury of violation of any criminal law of Illinois; nor does the court know, or is the court advised of any facts by hearsay or otherwise that would disclose the violation of any criminal statute of Illinois.

The movants take the position that they, since the adoption of Rule 6(e), and as provided under the first sentence of the Rule, are such "attorneys for the government" as entitles them to have the stenographic grand jury transcribed evidence for use in the performance of their duties. They say that since the adoption of the Rule 6(e), with the approval of Congress, there is no longer secrecy of matters occurring before federal grand juries, and that previous rules no longer prevail.

An investigation of this question discloses that the grand jury is provided for under the Fifth Amendment to the Constitution, which provides:

    "No person shall be held to answer for a capital,
  or otherwise infamous crime, unless on a presentment
  or indictment of a Grand Jury * * *."

The grand jury thus referred to in this amendment has to do with indictments for violation of criminal laws of the United States, and not with criminal offenses against the laws of a State. Section 6(e) is a part of the Federal Rules of Criminal Procedure. These rules were provided for by the Act of February 24, 1933, c. 119, 47 Stat. 904, as amended by the Act of June 29, 1940, c. 445, 54 Stat. 688. The amended Act is as follows:

    "The Supreme Court of the United States shall have
  the power to prescribe, from time to time, rules of
  pleading, practice, and procedure with respect to any
  or all proceedings prior to and including verdict, or
  finding of guilty or not guilty by the court if a
  jury has been waived, or plea ...

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