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United States District Court, Northern District of Illinois, E.D

March 17, 1975


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


On February 19, 1974 the above named defendants were charged with multiple violations of federal law by participating in a part of a "scheme and artifice to defraud" the Central States, Southeast and Southwest Teamsters Pension Fund.

One of the attorneys presenting evidence to the grand jury during an investigation of the defendants' activities here in the Northern District of Illinois was Gary S. Shapiro, a "special attorney" with the Criminal Division of the United States Department of Justice assigned to the Chicago Area Strike Force. Subsequently the defendants, who were in the sixth week of trial, made a formal motion to dismiss the indictment pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure. They charged that Mr. Shapiro was not authorized to appear before the grand jury in this case and that his appearance "tainted" the grand jury proceedings.

On December 27, 1973 Henry Petersen, then Assistant Attorney General wrote what appears to be a standard form letter*fn1 to Mr. Shapiro retaining and appointing him as a prosecutor. Shortly thereafter Mr. Shapiro, on January 10, 1974, executed the oath of office.

The statute under which Mr. Shapiro was appointed a "special attorney" is codified at 28 U.S.C. § 515(a), and provides that:

    "(a) The Attorney General or any other officer of
  the Department of Justice, or any attorney specially
  appointed by the Attorney General under law, may,
  when specifically directed by the Attorney General,
  conduct any kind of legal proceeding, civil or
  criminal, including grand jury proceedings and
  proceedings before committing magistrates, which
  United States attorneys are authorized by law to
  conduct, whether or not he is a resident of the
  district in which the proceeding is brought."

Apparently defendants' motion is based upon three very recent decisions which question the authority of a "special attorney" from the Department of Justice to appear before local grand juries. See United States v. Williams, 65 F.R.D. 422 (W.D.Mo., 1974); United States v. Crispino, 392 F. Supp. 764 (S.D.N.Y., 1975); United States v. Wrigley, 392 F. Supp. 9 (W.D.Mo., 1975). In response the government has directed the Court's attention to another set of decisions — just as recent — which uphold the authority of a strike force attorney to appear before the grand jury. See United States v. Brown, 389 F. Supp. 959, S.D.N.Y., 1975); Sandello v. Curran, M 11-188 (S.D.N.Y., 2/27/75); United States v. Brodson, 390 F. Supp. 774 (E.D.Wisc., 1975); In re Grand Jury Subpoena of Alphonse Perisco, 75 C 96 (E.D.N.Y., 1957). In addition motions dealing with this issue were denied by minute order without opinion in United States v. Forno, LU 74-35 (D.Nev., 1/23/75); United States v. Juillard, Inc., 74-554 (N.D.Cal., 1/10/75); United States v. Bert 4-82285 (E.D.Mich., 12/12/74). Currently there is no reported Court of Appeals decision that deals with this exact issue but the advent of such an opinion is quite probable in the near future.


The legal right of "specially appointed" attorneys to appear before grand juries was not seriously disputed until 1903 in the case of United States v. Rosenthal, 121 F. 862 (2 Cir. 1903)*fn2. In Rosenthal the Court found that since the Attorney General himself was not empowered to appear before grand juries, then "special attorneys" designated by the Attorney General were not "endowed with a power denied to the chief officer himself" (121 F. at 869). The Rosenthal decision was emasculated shortly thereafter when Congress passed 34 Stat. 816 on June 30, 1906, which is today known as 28 U.S.C. § 515(a). The act authorized "special attorneys" to engage in legal proceedings on behalf of the United States. It specifically included the right to appear in grand jury proceedings.

The legislative history of § 515(a) clearly indicates that it was intended as enabling legislation to restore the appointment powers of the Attorney General taken away by the Rosenthal decision.

  ". . . The purpose of this bill is to give to the
  Attorney General, or to any officer in his Department
  or to any attorney specially employed by him, the
  same rights, powers, and authority which district
  attorneys now have or may hereafter have in
  presenting and conducting proceedings before a grand
  jury or committing magistrate.

    It has been the practice of the Attorney General
  for many years to employ special counsel to assist
  district attorneys in the prosecution of suits
  pending in their respective districts whenever the
  public interest demanded it. It has been the practice
  of such special counsel to appear, with the district
  attorney, before grand juries and committing
  magistrates and to assist in the proceeding pending
  there. This right passed unchallenged for many years,
  until the Circuit Court for the Southern District of
  New York, on March 17, 1903, in the case of the
  United States v. Rosenthal. . . ."

  ". . . This decision 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
  to the interests of the Government to have the
  assistance of one who is specially or particularly
  qualified by reasons of his peculiar knowledge and
  skill to properly present to the grand jury the
  question being considered by it. . . ."

    "It seems eminently proper that such powers and
  authority be given by law. It has been the practice
  to do so in the past and it will be necessary that
  the practice shall continue in the future.

    If such a law is necessary to enable the Government
  to properly prosecute those who are violating its
  laws, it is no argument against it that some grand
  jury may be, perhaps, unduly influenced by the
  demands or importunities that may be made upon it by
  such special counsel. The same argument can as well
  be made against permitting a district attorney from
  attending a sitting of such jury.

    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. The law proposed by the bill
  under consideration seems to be the very necessary,
  because of the decision in the Rosenthal case,
  hereinbefore referred to, and the committee
  recommends its speedy enactment" H.R.Rep. No. 2901,
  59th Cong., 1st Sess. (April 4, 1906).

Since 1906 § 515(a) has frequently been the subject of litigation. The key
issue, until the recent dilemma regarding the authority of "strike force" attorneys, centered around the question of whether the Attorney General "specifically directed" the appointee; or, whether the appointee was retained because of a special assignment that required a particular useful knowledge or skill.

The "specific direction" by the Attorney General to the specially appointed attorney is customarily by letter, which may be issued to each attorney individually or to an officer in immediate supervision over several other such officers, United States v. Hall, 145 F.2d 781, 785 (9th Cir. 1944). This authorization to conduct legal proceedings is complete when signed and need not be filed with the Court. Belt v. United States, 73 F.2d 888 (5th Cir. 1934). Some courts have found that the requirement that the attorney be "specially directed [to] conduct any kind of legal proceeding" is mainly for the protection of the United States. Shushan v. United States, 117 F.2d 110, 114 (5th Cir. 1941), cert. denied 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531, reh. denied 314 U.S. 706, 62 S.Ct. 53, 86 L.Ed. 564; United States v. Powell, 81 F. Supp. 288, 291 (E.D.Mo., 1948). Supposedly the requirement protects the United States against an abuse of discretion by the special attorney and unnecessary expense (see, e.g., Wall v. United States, 384 F.2d 758 (10th Cir. 1967).

The defendants have mounted their challenge on a claim that Mr. Shapiro's authorization is too broad. However most of decided cases under Section 515(a) were brought because the letter of authorization was too narrow to permit the challenged conduct. In sustaining the broad powers of a specially appointed attorney to appear before grand juries Judge Augustus Hand, in United States v. Morse, 292 F. 273 (2 Cir. 1922) stated that:

    "I see no reason for assuming, because on the face
  of the letter no interrelation is set forth, that it
  is not sufficiently specific. Indeed, it probably is
  as specific as was possible, if adequate power to
  deal with the situation without impairment of
  usefulness or unnecessary reduplication of labor were
  to be given. Nor does the fact that proceedings may
  be taken in more than one district render the
  authority broader than the act of 1906 justifies, for
  no such limitation seems necessarily involved in the
  language of the act, and to impose it would cause
  unnecessary inconvenience in enforcing the law" (292
  F. at 276).

In Powell, supra, the Court looked with approval at United States v. Martins, 288 F. 991 (D.Mass. 1923) which held that to require the assistant be designated by the Attorney General to act in each particular case would be unnecessarily narrow and technical. The Court, quoting Martins, said:

    "The statute [the Act of 1906] should be given the
  meaning which is the more helpful and practical in
  the dispatch of the government's business, especially
  as this meaning has been placed upon it by the
  Department concerned" (81 F. Supp. at 291).

In United States v. Amazon Industrial Chemical Corp., 55 F.2d 254 (D.Md. 1931) the authorizing letter was challenged as being overbroad. The court stated:

    "Defendants claim that this commission is defective
  in that it fails to refer, either specifically or
  generally, to alleged violations of any federal
  statute. We consider that this argument is too great
  a refinement and not to be supported. It is true that
  the nature of the investigation, and the statute
  alleged to have been violated, are not set out in the
  appointment; and it is further true that it is
  customary to describe such an appointment with more
  particularity than was done in the present case.
  However, failure to do so is not fatal, because a
  mere matter of form and not of substance" (55 F.2d at

It can be seen, therefore, that while a "special attorney" may not exceed his authority and that a defendant may challenge any actions beyond the scope of the Attorney General's direction, the letter of authority may define the scope of authority to suit the wishes of the United States. In the instant case, the letter of authority authorized the "special attorney" to conduct grand jury proceedings in the Northern District of Illinois regarding violations of federal criminal statutes by persons unknown. The broad authorization clearly encompassed the action by the "special attorney" in this case.


The Attorney General, with some exceptions, is vested with the function of all agencies, employees and officers of the Department, and may delegate to any employee, officer or agency of the Department any of the Attorney General's functions. Title 28, United States Code, Sections 509, 510. Prosecutions for federal crimes not otherwise specifically assigned to another officer of the Department of Justice and the coordination of enforcement activities directed against organized crime and racketeering have been delegated by the Attorney General to the Assistant Attorney General in charge of the Criminal Division of the Department of Justice, 28 C.F.R. § 0.55. The Assistant Attorney General in charge of the Criminal Division is authorized to designate attorneys to present evidence to grand juries in all cases under his supervision. 28 C.F.R. § 0.60. This delegation of authority to appoint "special attorneys" was approved in May v. United States, 236 F. 495 (8th Cir. 1916) in which the court held that:

    "We do not think the act of June 30, 1906, in
  conferring the power of appointment upon the Attorney
  General, should be construed to mean that the
  Attorney General must, in all cases, sign the
  appointment himself, but that the power of
  appointment is conferred upon the Attorney General as
  other powers are conferred to be exercised by him
  personally or through his lawful assistants when duly
  authorized for such purpose" (236 F. at 500).

To permit attorneys under his supervision to fully investigate matters relating to organized crime, the authorization from the Assistant Attorney General must necessarily be broad to ensure that the "special attorneys" do not exceed the scope of their authority. Such broad authority vests the "special attorney" with many of the same rights, powers and authority which United States Attorneys have, a situation specifically contemplated in the enactment of the Act of June 30, 1906.

However, attorneys specially appointed by the Attorney General (such as the strike force members) do not have the power or practical ability to usurp the function of a local United States Attorney. In the Northern District of Illinois strike force attorneys are dependent upon the local United States Attorney for the following: allocation of grand jury time; allocation of office space, telephones, and other equipment; in fact, no indictment is valid without the United States Attorney's signature. United States v. Wright, 365 F.2d 135 (7th Cir. 1966); United States v. Keig, 334 F.2d 823 (7th Cir. 1964).

The use of the "strike force" attorneys to battle organized crime has been steadily on the increase since the original idea was introduced in the sixties. At the hearings before the Subcommittee on Criminal Laws and Procedures of the Judiciary Committee the Attorney General, John Mitchell, analyzed the strike force's function as follows:

    "The strike force concept is bottomed on the view
  that a highly effective investigative effort can be
  achieved if investigators from different government
  agencies work together as a team. A strike force
  composed of experienced supervisory

  investigators and attorneys, concentrating their
  efforts [on matters particularly identified as
  organized crime] can accomplish more than the loosely
  coordinated effort of the different agencies
  operating through routine and established practices.
  Central to the strike force design is the concept of
  mutual planning, based on combined intelligence and
  pooled experience. Participants in the project have
  the dual function of participating in the formulation
  of the group's strategy and coordinating the
  implementation of that strategy by their agency. In
  effect, each participant is a conduit for the
  dissemination of intelligence information to and from
  his agency for the other participants. Additionally,
  the agency representative insures that the group acts
  in compliance with the internal regulations of his
  agency. It is of paramount importance to the project
  that assigned members' must be of supervisory level.
  Each participant must be able to secure the
  unqualified cooperation of his agency's local office,
  and to make or obtain high level decisions on the
  conduct of investigations by local or field personnel
  of his agency" 91st Cong., 1st Sess. (1969).

Recently, in sustaining the legal right of "strike force" attorneys to appear before grand juries Judge Milton Pollack explained why a broad grant of authority under § 515(a) was necessary and proper, in United States v. Brown, supra. We take the liberty of quoting extensively from his well-reasoned opinion wherein he stated:

    "An examination of the history and purposes of the
  strike forces reveals the reason why this broad grant
  of power and direction was considered necessary by
  the Department of Justice and why it is proper.

    While the appointment of single special
  prosecutors, each commissioned ad hoc to focus on
  specific instances of crime, and each having a
  particular legal competence, may have been
  appropriate in the early years of this century, by
  the latter part of the 1960's, conditions had clearly
  changed. As the President said in a 1968 message to
  Congress, `It is clear that sporadic, isolated,
  uncoordinated attacks on the disciplined army of the
  underworld cannot obtain lasting results.' `To Insure
  the Public Safety — Message from the President
  of the United States', (H.Doc.250), 114 Cong. Record
  2412 (Feb. 7, 1968).

    The concept of `strike forces' of federal officers
  to deal with organized crime was first developed by
  Attorney General Ramsey Clark during the presidency
  of Lyndon Johnson, in response to a general feeling
  on the part of the Administration and the Congress
  that the federal government had been ineffective in
  fighting crime. See, e.g., `Federal Effect Against
  Organized Crime: Report of Agency Operations', by the
  Legal and Monetary Affairs Subcommittee of the House
  Committee of Government Operations (House Rep. No.
  1574, 90th Congress, 2d Session), reported in 114
  Cong. Record 21014 (July 12, 1968) at 21015: `The
  Federal Government has not borne its obligation with
  the constancy and force that its role in the overall
  battle against organized crime demands.'

    In a message to Congress not long after taking
  office, President Nixon informed the Congress that
  the strike forces already set up would be continued
  and new units would be initiated. In his speech of
  April 23, 1969, the President said that the strike
  forces were necessary. . . ."

    "The statutory requirement of a specifically
  directed authorization was apparently enacted in an
  atmosphere of the appointment of individual special
  prosecutors with particularized experience for
  particular cases. But this should not be and has not
  been interpreted as a requirement to thwart the
  comprehensive sweep of the statutory language, which
  was to facilitate the government's prosecutorial
  efforts when unleashed by the

  Attorney General to deal with rackets and organized
  crime through an elite corps of the government's


In presenting their motion to dismiss the defendants place great emphasis on the recent decisions in United States v. Crispino, supra; United States v. Williams, supra; and United States v. Wrigley, supra. The Court has reviewed these decisions which extensively discuss Section 515(a). In fact, this Court is in agreement with much of the analyses contained in these decisions. However, the Court believes the conclusions reached are in error.

United States v. Crispino is well researched and well written. The facts of the case parallel the situation presented in the present case. However, in concluding that the "strike force" attorney was improperly before the grand jury Judge Werker stated:

    "The commission letter issued to Mr. Padgett is a
  bold assertion of authority by the Attorney General
  to appoint special attorneys in any case regardless
  of its importance and regardless of whether any
  particular skill or knowledge is required. If upheld
  it would allow these special attorneys to supersede
  the local United States Attorneys and their regular
  assistants, whose statutory duty for the last 186
  years has been to prosecute all offenses against the
  United States in their districts, in any cases
  involving a violation of a `federal criminal
  statute.' Congress never intended to give such a
  broad authority when it passed the Act of 1906 even
  if the statute be for the `prosecution of the United
  States,' and no case construing that statute supports
  such a proposition."

This Court believes this statement by Judge Werker to be inaccurate. As was previously stated (see pp. 86, 87) the local United States Attorneys are in no danger of losing their statutory power. "Special attorneys" such as "strike force" attorneys must depend upon overall coordination and cooperation from local United States Attorneys' offices. While it may be stated that "special attorneys" could conceivably perform their duties without total local cooperation, it cannot be stated, due to the sheer physical necessities alone, that "special attorneys" could usurp the duties and functions of a local United States Attorney. The Crispino opinion appears to forewarn a problem that could exist if the statute were not strictly interpreted. Yet the realities of federal criminal prosecution indicate that even if Section 515(a) is given the most liberal of interpretations there is no real danger.

The Crispino decision has not been the only view expressed in the Southern District of New York. Judge Milton Pollack's decision in United States v. Brown, supra, stands in direct contradiction to Crispino. We believe that Brown is the better view. Judge Pollack reviewed Crispino before ruling and stated that:

    "The concerns expressed in Crispino on the
  subject of overly broad commissions do not seem to
  apply to Strike Force situations. The appointment of
  Strike Force attorneys was not intended to create a
  competition as between the regular local prosecutors
  and the members of the nationally organized strike
  force teams. Each serve a separate need and purpose.
  One does not supersede the other — they
  complement each other's function. The situations
  dealt with by the Strike Force cannot be equated with
  routine and local situations normally prosecuted in
  particular Districts nor to authorizations that might
  fall into legally insufficient competence."

Defendants also direct the Court's attention to United States v. Williams, supra, wherein the court dismissed the indictment because of the failure of the government to sufficiently respond to discovery orders entered by the court which related to the authority of certain "strike force" attorneys to present the Williams case to the grand jury. The disputed orders centered around the proposed production and in camera inspection of internal guidelines, agreements and memoranda of the Department of Justice as to the authority of "strike force" attorneys to appear before the grand jury and the efforts made to secure approval from the Justice Department for the prosecution of Williams.

In response to the court's order, the government took the position that the "special attorney" was legally authorized under Section 515(a) and that any requests for internal documents of the Justice Department would violate the interests of confidentiality in law enforcement and the exercise of prosecutorial discretion. The government also asked the court to reconsider its initial order, and stated that it might suffer dismissal of the case if the order was not modified. The court refused to modify its original order and on December 3, 1974 dismissed the indictment with prejudice.

The present case differs from Williams in several aspects: (1) there are no issues involving pre-indictment delay; (2) questions concerning who actually signed the commission letter*fn3 and whether internal Justice Department documents should be produced are not seriously pressed; and (3) the commission letters of the "special attorneys" in Williams differ markedly from the commission letter of Mr. Shapiro. The commission letter in the Williams case authorized the "special attorney" to assist in the trial of cases growing out of certain transactions named in the letter. The letter then specified over twenty different statutes which may have been violated. Included among the list was 29 U.S.C. § 439, the statute under which Williams was indicted.

The Williams decision was cogently criticized in the Crispino opinion. We join in the criticism and respectfully submit that Williams was decided incorrectly in light of the proper interpretation of Section 515(a) and the cases construing that section.

The final case cited by defendants is United States v. Wrigley, supra, and it apparently relies heavily on United States v. Williams, supra. In the digest of the opinion presented we see no points, authorities, or arguments which are substantially new or persuasive.

Ultimately each court that is presented with this question must analyze the overall effect of limiting the powers of "strike force" attorneys by narrowly assessing the scope of Section 515(a). Assuming, arguendo, that the legislative history of § 515(a) was silent on the question of the power of the Attorney General to designate "special attorneys" (which it clearly is not) the Court would still be required to interpret the statute in light of present day realities. What constitutional rights were the defendants denied by Mr. Shapiro's appearance before the grand jury? What harm or disadvantage did the defendants suffer because of Mr. Shapiro's presence? Would not the defendants be placed in the same position had the local United States Attorney appeared before the grand jury? Clearly defendants' motion is based on form and not substance. A "special" ability to execute his oath of office should not depend upon what type of form letter his superior uses in appointing him. As stated in United States v. Brown:

    "Since the statute does not confine its application
  to particular facts or particular defendants, it
  would appear appropriate for the Courts to implement
  the public policies to be

  served through Strike Forces by upholding a broad
  grant of authority and to sustain a commission that
  directs members of the specially selected Strike
  Force to prosecute any kind of legal proceeding.
  Indeed to hold that such commissions are
  insufficiently specific would not serve any public
  purpose but might have mischievous and drastic
  effects as a precedent against the current needs of
  law enforcement across the country. No fundamental
  rights are at stake here that need be conserved in
  the constitutional interests of criminal targets.
  There is a strong public interest in implementing the
  broad purposes of the Congress and the executive by
  upholding the authority of the special prosecutors of
  the Strike Force."

Accordingly, it is hereby ordered that defendants' motion to dismiss the indictment is denied.*fn4

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