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UNITED STATES v. WEINER

March 17, 1975

UNITED STATES OF AMERICA, PLAINTIFF,
v.
IRWIN WEINER ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

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.

  I. A REVIEW OF SECTION 515(a) INDICATES THAT THE PRESENCE OF
     SPECIAL ATTORNEYS AT GRAND JURY PROCEEDINGS IS NOT IMPROPER.

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 ...

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