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UNITED STATES v. SANTUCCI

December 30, 1980

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ANTHONY SANTUCCI ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Defendants Loster Avery ("Avery") and Joseph Cook ("Cook") have moved to suppress statements and handwriting exemplars given by each to United States Postal Inspectors. In response to those pre-trial motions the United States acknowledged that a pre-trial hearing was necessary "to determine the issue of whether the subpoena power was abused in obtaining [that] evidence." Based on the evidence adduced at the hearing and the authorities submitted by the parties, the Court grants Avery's and Cook's motions to suppress.

Facts

During the course of investigation of claimed thefts from the mail, and subsequent cashing by means of forged endorsements, of a large number of United States Treasury checks, Postal Inspectors Robert Bishop and Joseph Tomaino focused attention on Harvest Liquor Store, 1708 West Madison Street, Chicago, as the place where such offenses had likely occurred and on defendants Avery and Cook as two of the persons likely to have been involved in such forgeries. In pursuit of that investigation, they obtained from Assistant United States Attorney Daniel Reidy a series of subpoenas duces tecum issued under the claimed authority of grand juries and calling for grand jury appearances to produce handwriting exemplars, fingerprints and photographs.

In fact none of the subpoenas was issued under specific grand jury authority. Although Avery provided the disputed materials (including a statement given at the time he furnished the requested evidence) early in 1977, he did so to the Postal Inspectors at the United States Post Office and never appeared before a grand jury until May 1978. That same Special March 1978 Grand Jury returned the indictment against Avery, Cook and the other defendants June 11, 1980. Similarly, Cook also provided disputed materials (including a statement) to the same Postal Inspectors at the United States Post Office in August and October 1977 and was never brought before any grand jury until November 1978.

There are some non-critical disputes in the evidence, but for purposes of this opinion the Court finds the following to be supported by a clear preponderance of the credible evidence:

Loster Avery

AUSA Reidy's secretary issued under his direction, in each instance at the request of Inspector Bishop, three separate subpoenas under the purported authority of grand juries on different dates in 1976, as well as the January 31, 1977 subpoena to which Avery ultimately responded. In each instance Inspector Bishop advised AUSA Reidy what the Postal Inspectors' investigation had produced and the added information thought to be needed. In each instance the date chosen for the subpoena was one on which the grand jury was anticipated to be sitting, although each such grand jury was a regular rather than a special one, with an expected life of some thirty days. In each instance no prior grand jury authority was ever sought or obtained (indeed the May 10, 1976 subpoena, calling for appearance before the June 1976 regular grand jury and purportedly issued under its authority, was issued before that grand jury ever came into existence). Neither of the Postal Inspectors nor AUSA Reidy ever appeared before any grand jury prior to the issuance of such subpoenas.*fn1

It appears (though Avery himself was unclear on this score) that Avery was told that he could respond to the subpoena either by reporting to the grand jury room (even though there were no facilities there for obtaining the requested evidence) or, at his option, by coming to the Post Office to meet with the Postal Inspectors. It is unquestioned that when he came to the Post Office, Avery was told by Inspector Bishop that he was not under arrest, Avery was read his rights and signed a waiver of rights and was treated with courtesy during the extended course of providing the handwriting exemplars (over a two-day period) and fingerprints. It is also unquestioned that except for the fact that his presence at the Post Office was under compulsion of law (that is, in response to the subpoena duces tecum) Avery's provision of the evidence and the contemporaneous oral statement (reduced to typewritten form by Inspector Tomaino and signed by Avery) was without any other element of coercion. Avery was not represented by counsel, but waiver of counsel was part of the waiver of rights form presented to and signed by him after an explanation of its terms. Avery was not a grammar school graduate, his schooling having terminated after third grade. In general it appeared at the hearing that he did not readily comprehend the questions posed to him and was easily led to answers by the way in which questions were put (whether by his own counsel or by AUSA Williams).*fn2

Joseph Cook

All subpoenas for Cook, including the one to which he ultimately responded by furnishing the requested evidence (and a contemporaneous handwritten statement) to the same two Postal Inspectors at the Post Office, were issued under the identical procedure as with Avery. Again the first subpoena ("served" on Josephine Avery, Avery's niece and merely an acquaintance of Cook!) was issued May 10, 1976 under the purported authority of a then-nonexistent June 1976 grand jury. Another subpoena was served on Cook in April 1977 and not responded to, and Cook's ultimate appearance to meet with the Postal Inspectors was in response to a July 1977 subpoena. Again none of the subpoenas, including the one to which Cook responded, was issued with any grand jury approval or involvement having been sought or obtained.

As to Cook, who did not testify, the evidence is that the one time he was personally served with a subpoena he too was told that he was not under arrest.*fn3 When Cook did come to the Post Office on August 1, 1977 (during which meeting he gave an oral statement in addition to handwriting specimens) and again October 18, 1977 (a continuation of the August 1 meeting, during which continuation Cook was fingerprinted and gave a handwritten statement), he too was read his rights and signed a waiver on each occasion. Cook was also not represented by counsel, but waiver of counsel was part of the waiver of rights form presented to and signed by him at the outset of each appearance at the Post Office.

Principles Governing Suppression in This Case

This action presents one phase of the familiar questions posed by the relationship between the prosecutor's office and the grand jury.*fn4 It does not deal with the kind of problem that has most often resulted from tension between investigations by the grand jury and by the United States Attorney alone (for example, the prosecutor's use of grand jury powers to obtain evidence for civil litigation or to obtain evidence for an already indicted criminal offense). Instead the issue is whether the ...


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