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
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
"(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
". . . 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 ...