UNITED
STATES v. PIGNATIELLO, (D.COLO. 1984)
UNITED
STATES of America, Plaintiff, v. Joseph V.
PIGNATIELLO, Juan Carlos Schidlowski and Arlan I. Preblud, Defendants.
Crim. No.
83-CR-334.
United States District Court, D.
Colorado.
March 28, 1984. *252252
William G.
Pharo, Asst. U.S. Atty., Denver, Colo., for
plaintiff.
Lee
D. Foreman, Haddon, Morgan Foreman, Edward W. Nottingham, Sherman Howard, Kevin
Michael Shea, Ira M. Long, Roath Brega,
Denver, Colo., for defendants.
MEMORANDUM OPINION AND ORDER OF
DISMISSAL
MATSCH, District Judge.
The
defendants have moved to dismiss the indictment in this criminal proceeding
because of asserted violations of Rule 6(d) and Rule 6(e) of the Federal Rules
of Criminal Procedure during the course of the grand jury investigation which
resulted in the indictment. This court heard evidence on the motion on March 8,
1984; the motion has been briefed and oral argument was heard on March 23,
1984. There is no dispute on the relevant and material facts.
Lillian
Filegar is a lawyer employed by the Securities and
Exchange Commission ("SEC") and in that role she participated in an
investigation of OTC Net, Inc., a Colorado corporation, registered with the SEC
as a broker-dealer. That civil investigation led to the filing of Civil Action
No. 82-Z-877, SEC v. OTC Net, Inc., et al., a case which is still
pending in this district.
By
agreement between appropriate persons in the office of the United States
Attorney for the District of Colorado and the SEC, it was determined that Ms. Filegar would be appointed as a Special Assistant United
States Attorney, pursuant to 28 U.S.C. § 543, to enable her to assist the
Assistant United States Attorneys with the grand jury investigation.
Accordingly, on August 23, 1982, William R. Robie,
Director, Office of Attorney Personnel Management in the Department of Justice,
wrote a letter appointing Ms. Filegar as a Special
Assistant to the United States Attorney for the District of Colorado, for a
term expiring February 28, 1982. That date was an apparent typographical error.
The letter of appointment also contained the following sentence: "Please
execute the required oath of office at your earliest convenience." The oath
referred to was the oath required by28 U.S.C. § 544, providing as follows:
Each
. . . attorney appointed under section 543 of this title, before taking office,
shall take an oath to execute faithfully his duties.
Ms.
Filegar did not take that oath until September 14,
1982. The first witness called before the grand jury in the subject
investigation appeared on August 24, 1982. At that time, Assistant United
States Attorneys Robert McAllister and William Pharo
were present and introduced Lillian Filegar to the
grand jury as a Special Assistant United States Attorney authorized to assist
in the investigation. Ms. Filegar was then present
throughout the testimony of the witness and the transcript of that testimony
has been made a part of the record of this proceeding. Before appearing before
the grand jury, Ms. Filegar did read materials
provided to her by the United States Attorney, including the opinion in United
States v. Tager, 638 F.2d 167 (10th
Cir. 1980) concerning the requirements of Rule 6(e) of the Federal Rules of
Criminal Procedure. She acknowledged an understanding of grand jury secrecy
obligations in a letter, signed August 20, 1982, addressed to the Director of
the Executive Office for U.S. Attorneys. After the expiration of the term of
her first appointment, Lillian Filegar received other
appointments from officials at the Department of Justice and did not take any
other oath. Because of a concern that an appointment might expire or that there
may be a gap in successive appointments, Lillian Filegar's
name was included in a notice of disclosure *253253 under Rule 6(e) filed with
the Clerk of this court on March 17, 1983.
Rule
6(d) prescribes those who may be present in grand jury proceedings in the
following language:
(d)
Who May Be Present. Attorneys for the government, the witness under
examination, interpreters when needed and, for the purpose of taking the
evidence, a stenographer or operator of a recording device may be present while
the grand jury is in session, but no person other than the jurors may be
present while the grand jury is deliberating or voting.
"Attorneys
for the government" are those described in F.R.Cr.P.54(c). In terms
relevant here, the attorney must be an authorized "assistant" of the
United States Attorney. Accordingly, if by omission of the taking of the oath
of office, Ms. Filegar was not an authorized
assistant of the United States Attorney for the District of Colorado on August
24, 1982, she was not an "attorney for the government" and her
appearance before the grand jury on that date was a violation of Rule 6(d). The
government contends that the purposes of Rule 6(d) are to protect the secrecy
of the grand jury proceedings and to guard against undue influence upon the
grand jurors and the witnesses. Those purposes have, of course, been recognized
by the courts. See e.g., United States v. Echols, 542 F.2d 948,
951 (5th Cir. 1976), cert. denied, 431
U.S. 904, 97 S.Ct. 1695, 52 L.Ed.2d 387 (1977); United
States v. Lill, 511 F. Supp. 50,
55-56 (S.D.W.Va. 1980). Because there is no
contention that any intimidation did take place and because Ms. Filegar had acknowledged the obligation of secrecy, it is
argued that the omission of the oath should not be considered to be a violation
because she was appearing in an "authorized role."
The
Congress has used plain language to require that an attorney appointed under 28
U.S.C. § 543 take an oath to execute faithfully his duties "
before taking office." Section 544 must be read as a
necessary condition precedent to the exercise of authority as a Special
Assistant United States Attorney, and that condition was not met here. There is
sound policy support for requiring the oath of office. It solemnizes the
appointment and sensitizes the appointed person to the obligations and
limitations of the office. Additionally, it formalizes the appointment and
works an official notification that the appointed person represents the
government of the United States in its prosecuting authority and binds that
branch of government to the acts of the appointed individual. In terms familiar
to the law of agency, the oath is evidence of actual authority of the attorney
as agent and thereby avoids disputes which could be generated by reliance upon
some apparent authority.
Accordingly,
one of the underlying purposes of the limitations in Rule 6(d) would appear to
be the giving of assurance that the attorneys conducting the grand jury
proceedings have both the authority and responsibility to bind the executive
branch of government.
Having
concluded that Rule 6(d) was violated, the question presented is what
consequences flow from that violation? The government contends that this violation is analogous to claims of prosecutorial misconduct
and cite United States v. Pino, 708 F.2d 523 (10th
Cir. 1983). There, the Tenth Circuit Court of Appeals held that an indictment
should not be dismissed for prosecutorial misconduct before the grand jury
unless it is "flagrant to the point that there is some significant
infringement on the grand jury's ability to exercise independent
judgment."708 F.2d at 530. That, of
course, requires an evidentiary hearing which has the effect of an exposure of
matters which occurred before the grand jury and a consequent but necessary
exception to the strong policy of grand jury secrecy. There is no alternative
method to determine the existence of misconduct and its effects.
There
is an alternative in this case and that is to utilize a per se rule,
holding that a violation of Rule 6(d) compels a dismissal of the indictment
which was the product of *254254 the grand jury investigation in which the
violation occurred. That result is directly analogous to the sanction required
for a Rule 6(e) violation in United States v. Tager,
supra. There is no clear definition of what constitutes prosecutorial
misconduct. Necessarily, all of the facts and circumstances must be evaluated.
That is not the case here. The requirements of Rules 6(d) and 54, together with
§ 544 of Title 28 are clear and unequivocal. The consequence of a violation of
those requirements should also be clear and unequivocal and that means
dismissal of the indictment.
The
exact focus of this case appears to be a matter of first impression. There have
been many other cases involving violations of Rule 6(d) which are quite
different in character. In United States v. Kahan Lessin Co., 695 F.2d
1122, 1124 (9th Cir. 1982), United States v. Computer Sciences Corp.,
689
F.2d 1181,1185 (4th Cir. 1982), cert. denied, 459 U.S.
1105, 103 S.Ct. 729,74 L.Ed.2d 953 (1983), and United
States v. Rath, 406 F.2d 757 (6th
Cir.), cert. denied, 394 U.S.
920, 89 S.Ct. 1196,22 L.Ed.2d 453 (1969) the
unauthorized persons made brief intrusions on the proceedings and no testimony
was taken while they were present. United States v. Birdman, 602 F.2d 547,
557-58 (3d Cir.), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1979), another case cited by the
government, is also inapposite because the Third Circuit held that Rule 6(d)
was not violated. cf. United States v. Kazonis,
391 F. Supp.
804, 805 (D.Mass. 1975), aff'd
without opinion, 530 F.2d 962 (1st Cir.), cert. denied, 429 U.S. 826,
97 S.Ct. 80, 50 L.Ed.2d 88 (1976) (stating in dictum
that irregularities must infect the proceedings of the grand jury, deprive
defendants of a fundamental right or violate the paramount policy of the United
States).
United
States v. Lill, supra, is distinguishable from the instant case because there the
Rule 6(d) violation was addressed after the defendants' trial. Although the
court adopted a prejudice or potential prejudice standard, it made clear that
had it addressed the issue before the trial, it would have applied a per se
dismissal rule.
There
are cases ordering dismissal of indictments when unauthorized persons appeared
before the grand jury with aggravating circumstances which are not present in
this case. In United States v. Gold, 470 F. Supp. 1336 (N.D.Ill. 1979), an EPA lawyer, who was appointed as a
"Special Attorney in the Department of Justice," violated Rule 6(d)
by prosecuting the case and testifying before the grand jury, 470 F. Supp. at
1351, labored under a conflict of interest, Id., and violated Rule
6(e) on several occasions, 470 F. Supp. at
1351, 1353-54. Based on this and other conduct, the court also concluded
that the prosecutors destroyed the grand jury's independence and violated the
defendants' Fifth Amendment rights. 470 F. Supp. at 1356. In United
States v. Phillips Petroleum Co., 435
F. Supp. 610, 618-22 (N.D.Okla. 1977), the
court's discussion of an unauthorized person, without citing Rule 6(d), was not
dispositive of the case, because the court held that the prosecutor's failure
to introduce exculpatory evidence was an abuse of the grand jury process requiring
dismissal of the indictment. Similarly, in United States v. Braniff Airways, Inc., 428 F.
Supp. 579, 589 (W.D.Tex. 1977), the court held
that the manner in which the prosecution introduced evidence from a prior grand
jury proceeding, together with the failure to record that evidence, provided
the basis for dismissing the indictment, though the court did rule that the
presence of an unauthorized person during the grand jury proceedings was
"an independent ground sufficient to vitiate the indictment." See
also United States v. Daneals, 370 F. Supp. 1289
(W.D.N.Y. 1974) (Counsel for Selective Service System attended grand jury
proceedings, but indictment dismissed under totality of circumstances).
In
United States v. Treadway, 445 F. Supp.
959, 963-64 (N.D.Tex. 1978), the court ruled that
by testifying before the grand jury and remaining in the room, a prosecutor
violated Rule 6(d) and prejudiced the defendant. In United States v. Bowdach, 324 F. Supp. 123
(S.D.Fla. 1971), the court noted the "potential
for undue *255255 influence" that resulted from the presence of an FBI
agent who played a tape recording to refresh a witness' memory.
While
United States v. Echols, 542 F.2d 948 (5th
Cir. 1976), cert. denied, 431
U.S. 904, 97 S.Ct. 1695, 52 L.Ed.2d 387 (1977),
reaffirmed that circuit's commitment to the per se rule, its comments
are dicta because the court held that Rule 6(d) was not violated. Latham v.
United States, 226 F. 420 (5th Cir. 1915), which is cited with approval in Echols,
was decided prior to the adoption of Rule 6(d).
A
review of all of these cases reinforces the conclusion that the only effective
sanction for a violation of Rule 6(d) is dismissal without any further inquiry
into the effects of that violation.
The
defendants also contend that dismissal is required because of a violation of
Rule 6(e) by the disclosure to Ms. Filegar which
necessarily occurred while she was present in the grand jury room, and while
she was participating in the investigation. Rule 6(e)(2)
establishes the obligation of secrecy of matters occurring before the grand
jury. Rule 6(e)(3)(A)(ii) creates an exception to that principle by giving the
United States Attorney the authority to make disclosures of such matters to
"such government personnel as are deemed necessary by an attorney for the
government to assist an attorney for the government in the performance of such
attorney's duty to enforce federal criminal law." Clearly, Lillian Filegar as an SEC attorney was government personnel within
the meaning of that exception. Therefore, the Assistant United States Attorneys
in this case had the authority to make necessary disclosures of matters
occurring before the grand jury to her, provided that they complied with the
requirement of Rule 6(e)(3)(B) by giving notice promptly.
Rule
6(e) is separate and apart from Rule 6(d) in that the former obviously relates
to disclosures of matters occurring before the grand jury to persons who were
not then present in the grand jury room. The matters which transpired in the
grand jury room while Ms. Filegar was present and
before she took the oath work a violation of Rule 6(d) which could not be cured
by a Rule 6(e) notice. Upon taking the oath, Ms. Filegar
did become an authorized Special Assistant United States Attorney and her
subsequent appearances before the grand jury were authorized, unless there was
a lapse in the appointment. Assuming such a lapse, her further appearances
before the grand jury would simply be additional violations of Rule 6(d) for
which no additional sanction would be warranted, given the conclusion that
dismissal is required by the August 24, 1982 appearance alone. If there was a
lapse in the appointment and the disclosure which occurred by her reading
transcripts and being aware of the grand jury investigation was not within her
authority as a Special Assistant United States Attorney, those disclosures made
outside the grand jury room were properly made and the notice filed in March,
1983 does constitute a notice which is sufficiently "prompt" to be a
compliance with Rule 6(e)(3)(B) under the peculiar
facts and circumstances of this case.
Upon
the foregoing, it is
ORDERED,
that the indictment filed in this matter on October 19, 1983 is dismissed as to
all of the defendants herein and their bonds are exonerated.