522 F.

2d 41

In re Grand Jury Subpoena of Alphonse PERSICO, Appellant.

No. 880, Docket 75-2030.

United States Court of Appeals,

Second Circuit.
Argued March 19, 1975.
Decided June 19, 1975.
1

Nancy Rosner, New York City, for appellant.

David G. Trager, U. S. Atty., E. D. N. Y., by William I. Aronwald and Robert

Del Grosso, Special Attys., U. S. Dept. of Justice (Sidney M. Glazer and Victor
D. L. Stone, Departmental Attys., U. S. Dept. of Justice, of counsel), for
appellee.

SUMMARY
I. Facts
3

II. Alleged Threat of Organized Crime and response of the Federal Government
III. Organization of Strike Forces

IV. Relationship between locally and centrally controlled prosecutors

A. History
5B. Summary of present powers of Attorney General
C. 28 U.S.C. 543
D. 28 U.S.C. 515(a)
1. Language of 515(a)
2. Legislative history of 515(a)
6a. Precursor limitations on outside counsel

7b. Rosenthal, Cobbin and Twining cases

8c. Act of June 30, 1906
3. Court construction of 515(a)
9

V. Inappropriateness of too narrow an interpretation of applicable provisions

10

VI. Inapplicability of Rules of Criminal Procedure limiting appearance before

grand juries

11

VII. Power of Assistant Attorney General to exercise authority of Attorney

General
VIII. Conclusion

12

Appendix Guidelines establishing relationship between Strike Forces and

United States Attorneys

13

Before SMITH and TIMBERS, Circuit Judges, and WEINSTEIN, District

Judge.*
WEINSTEIN, District Judge:

14

The record of full hearings and arguments and of a series of affidavits and other
documents fully supports the trial judge's determinations that appellant
contemptuously refused to answer questions before a grand jury and that no
questions to him were based on unlawful electronic surveillance. His claim,
though unfounded, that the government attorney who questioned him before the
grand jury lacked power to do so, requires more extended treatment. At stake is
the power of the Department of Justice's Organized Crime Strike Force to
effectively prosecute crime.

I. FACTS
15

Alphonse Persico was subpoenaed in January of 1974 to appear before a grand

jury sitting in the Eastern District of New York, investigating infiltration of
racketeers into legitimate businesses. 18 U.S.C. 1962. He was given
testimonial immunity and testified that he had an illegal gambling business
involving "horses, sports and numbers," but he refused to identify his
employees on the ground that the questions were the result of illegal electronic

surveillance. Judge Judd rejected this argument, found Persico in civil

contempt, and sentenced him to no more than sixty days in the custody of the
United States Marshal. 28 U.S.C. 1826(a). The order was affirmed. In re
Persico, 491 F.2d 1156 (2d Cir.), Cert. denied sub nom. Persico v. United
States, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158 (1974).
16

After the sentence had been served, the government re-subpoenaed Persico to
appear before the same grand jury. He moved for an order requiring: (1) a
demonstration by the attorneys of the Justice Department's Organized Crime
Strike Force of their authority to conduct grand jury proceedings; and (2) filing
of affidavits affirming or denying electronic surveillance of Persico's attorney
and of several named places in which Persico had a proprietary interest or was
known to frequent.

17

Again Judge Judd ordered Persico to testify. Once more he appeared before the
grand jury, was granted testimonial immunity anew, and refused to testify
concerning the identity of those involved in his enterprises. Following a hearing
and receipt of affidavits and other documents supporting the government's
contention that there was no basis for believing that any illegal electronic
surveillance had occurred, Judge Judd found Persico in contempt and sentenced
him to incarceration for the remainder of the grand jury's term.

18

Conducting proceedings before the grand jury was Robert Del Grosso, a
Special Attorney of the Organized Crime Section of the Justice Department's
Criminal Division, assigned to the Strike Force office investigating organized
crime in the Eastern District of New York. He operates under the supervision of
the Assistant Attorney General in charge of the Criminal Division, the Chief of
the Organized Crime Section and the Deputy Section Chief who are in
Washington, and the locally based Attorney-in-Charge of the Eastern District
Strike Force field office. The latter coordinates his efforts with the United
States Attorney for the Eastern District of New York, who signs applications
for immunity orders and indictments returned by the grand jury. In briefs and
appearances in court, Mr. Del Grosso is listed as appearing on behalf of the
United States Attorney.

19

The government contends that the Strike Force attorney was properly
authorized to appear before the grand jury for the reason, among others, that he
bore a commission signed by the Assistant Attorney General in charge of the
Criminal Division. The commission states the attorney's authority in broad and
general terms:

20

"November 30, 1972

20

"November 30, 1972

"Dear Mr. Del Grosso:

21
22 Department is informed that there have occurred and are occurring in the
"The
Eastern District of New York and other judicial districts of the United States
violations of federal criminal statutes by persons whose identities are unknown to
the Department at this time.
23 an attorney at law you are specially retained and appointed as a Special Attorney
"As
under the authority of the Department of Justice to assist in the trial of the aforesaid
cases in the aforesaid district and other judicial districts of the United States in
which the Government is interested. In that connection you are specially authorized
and directed to file informations and to conduct in the aforesaid district and other
judicial districts of the United States any kind of legal proceedings, civil or criminal,
including grand jury proceedings and proceedings before committing magistrates,
which United States Attorneys are authorized to conduct.
24
"Your
appointment is extended to include, in addition to the aforesaid cases, the
prosecution of any other such special cases arising in the aforesaid district and other
judicial districts of the United States.
25 are to serve without compensation other than the compensation you are now
"You
receiving under existing appointment.
26
"Please
execute the required oath of office and forward a duplicate thereof to the
Criminal Division.
27

The validity of this commission under the terms of 28 U.S.C. 515(a)

constitutes the primary issue posed by the appellant in this case. That section
appears to require a specific direction of the Attorney General (or, as
demonstrated below, a properly authorized Assistant Attorney General). It
reads:

28 Attorney General or any other officer of the Department of Justice, or Any

"The
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." (Emphasis supplied.)
29

It is the contention of appellant that the commission constitutes a "roving

authority" rather than the specific direction required by section 515(a). As

demonstrated below, when viewed in context, the government attorney who

carries such a letter has little more freedom to rove than a cog in the clock on
the courthouse lobby wall. Even if the authority permitting his appearance
before a grand jury was limited by the phrase "specifically directed," the statute
would be satisfied. To understand why that is so, we turn first to a
consideration of some of the problems faced by the Department of Justice, in
their historical setting. II. ALLEGED THREAT OF ORGANIZED
30
CRIME AND RESPONSE OF THE FEDERAL GOVERNMENT
31

Since World War II the public has become increasingly aware, largely through
a succession of Congressional investigations, of charges respecting the
awesome dimensions of organized criminal activity in this country. See, e. g.,
Hearings Before the Special Senate Comm. to Investigate Organized Crime in
Interstate Commerce, 81st Cong., 2d Sess. and 82nd Cong., 1st Sess., pts. 1-15
(1950-51); Senate Select Comm. on Improper Activities in the Labor or
Management Field, 1st Interim Rep., Sen.Rep.No. 1417, 85th Cong., 2d Sess.
(1958); Id., 2d Interim Rep., Sen.Rep.No. 621, 86th Cong., 1st Sess., pts. 1-2
(1959); Id., Final Rep., Sen.Rep.No. 1139, 86th Cong., 2d Sess., pts. 1-4
(1960); Hearings Before the Permanent Subcomm. on Investigations of the
Senate Comm. on Gov't Operations on Gambling and Organized Crime, 87th
Cong., 1st Sess., pts. 1-3 (1961); Senate Comm. on Gov't Operations,
Organized Crime and Illicit Traffic in Narcotics, Sen.Rep.No. 72, 89th Cong.,
1st Sess. (1965); Hearings Before the Permanent Subcomm. on Investigations
of the Senate Comm. on Gov't Operations on Labor Racketeering Activities,
89th Cong., 2d Sess. (1966); Hearings Before a Subcomm. of the House
Comm. on Gov't Operations on the Federal Effort Against Organized Crime,
90th Cong., 1st Sess. (1967); House Comm. on Gov't Operations, Federal
Effort Against Organized Crime, H.R.Rep.No. 1574, 90th Cong., 2d Sess.
(1968); Hearings Before a Subcomm. of the House Comm. on Gov't Operations
on the Federal Effort Against Organized Crime: Role of the Private Sector, 91st
Cong., 2d Sess. (1970); Hearings Before the Permanent Subcomm. on
Investigations of the Senate Comm. on Gov't Operations on Organized Crime
and Securities: Thefts and Frauds, 93rd Cong., 1st Sess., ser. 2 (1973). See also
Hearings Before a Subcomm. of the Senate Comm. on Commerce on
Investigation of So-Called "Rackets," 73rd Cong., 2d Sess. (1933); E. Kefauver,
Crime in America (1968); R. Kennedy, The Enemy Within (1960).

32

Organized crime has been defined as an intricate, centralized, nationwide

network of persons engaged primarily in "crimes that cannot be perpetrated
profitably by small criminal systems." D. Cressey, Organized Crime and

Criminal Organizations 10 (1971). A Presidential Commission has

characterized organized crime as,
33 society that seeks to operate outside the control of the American people, and
"(A)
their governments. It involves thousands of criminals working within structures as
complex as those of any large corporation, subject to laws more rigidly enforced
than those of legitimate governments. Its actions are not impulsive, but rather the
result of intricate conspiracies carried on over whole fields of activity in order to
amass huge profits."
34

President's Commission on Law Enforcement and Administration of Justice,

Task Force Report on Organized Crime (1967), cited in House Comm. on Gov't
Operations, Federal Effort Against Organized Crime, H.R.Rep.No. 1574, 90th
Cong., 2d Sess. 3-4 (1968). It has been said to be,

35 criminal syndicate consisting of families operating as criminal cartels in large

"a
cities across the Nation, banded together in an organization with what corresponds to
a board of directors at the top to settle problems, such as jurisdictional disputes, and
to enforce discipline."
36

Id. at 4.

37

Some law enforcement officials believe that organized criminals are engaged in
gambling, loan sharking, narcotics, and many other crimes and that they have
moved into legitimate unions and businesses by force, by purchase, and by
corruption of public officials. It has been charged that they

38
"currently
control all but a tiny part of the illegal gambling in the United States.
They are the principal usurers (loan-sharks), and the principal importers and
wholesalers of narcotics. They have infiltrated certain labour unions, where they
extort money from the employees and, at the same time, cheat the members of the
union. (They) have a virtual monopoly on some legitimate enterprises, such as
distribution of cigarette vending machines and juke boxes, and they own a wide
variety of legitimate retail firms, restaurants and bars, banks, hotels, apartment
houses, trucking companies, food corporations, linen-supply houses, office
buildings, factories, and even garbage-collection routes. They have corrupted
officials in the legislative, executive and judicial branches of government at the
local, state and federal levels."
39
"Measured
by amount of profit, (organized crime) is one of America's largest
business enterprises. The U. S. President's Commission in 1967 estimated that
confederated crime cost Americans almost nine billion dollars a year more than all

other types of crime combined, and just about double the amount spent annually in
the United States for all police, court and correction work."
40

D. Cressey, Organized Crime and Criminal Organizations 10-11 (1971). See

also House Comm. on Gov't Operations, Federal Effort Against Organized
Crime, H.R.Rep.No. 1574, 90th Cong., 2d Sess., 4-5 (1968); Johnson,
Organized Crime: Challenge to the American Legal System, 53 J.Crim.L.C. &
P.S. 399, 402-406 (1962). In short, Congress and the Executive have grounds to
conclude that these are purveyors in a kind of supermarket of crime, with
demonstrated capacity and inclination to violate almost any criminal law
included in the United States Code.

41

Not only has the effect of organized crime on the nation's well-being reportedly
been pervasive, but it has been largely immune to law enforcement efforts.
Alleged participants are exceedingly difficult to prosecute. It is believed, first,
that they are typically part of a hierarchy with the highest command level
insulated by a series of management echelons from the lowest level of easilyreplaceable members who actually perform observable physical acts. Johnson,
Organized Crime: Challenge to the American Legal System, 53 J.Crim.L.C. &
P.S. 399, 416-417 (1962); D. Cressey, Theft of the Nation, The Structure and
Operation of Organized Crime in America, 109-161 (1969); Senate Comm. on
Gov't Operations, Organized Crime and Illicit Traffic in Narcotics, Sen.Rep.No.
72, 89th Cong., 1st Sess., 7-8 (1965). Second, a code of silence is said to prevail
among members concerning their operations. D. Cressey, Theft of the Nation,
The Structure and Operation of Organized Crime in America 177, 186-220
(1969); Senate Comm. on Gov't Operations, Organized Crime and Illicit Traffic
in Narcotics, Sen.Rep.No. 72, 89th Cong., 1st Sess. 12 (1965); Johnson,
Organized Crime: Challenge to the American Legal System, 53 J.Crim.L.C. &
P.S. 399, 417 (1962). Third, prosecution is hindered by fear of physical and
economic sanctions against potential witnesses. Johnson, Organized Crime:
Challenge to the American Legal System, 53 J.Crim.L.C. & P.S. 399, 416-417
(1962).

42

These difficulties are illustrated by the case before us. An admitted leader of an
illegal gambling ring has brazenly refused to testify before a grand jury despite
a grant of immunity.

43

Finally, organized crime reportedly utilizes corruption of political institutions

and investigative agencies to protect itself from prosecution. Johnson,
Organized Crime: Challenge to the American Legal System, 53 J.Crim.L.C. &
P.S. 399, 419-422 (1962); D. Cressey, Theft of the Nation, The Structure and
Operation of Organized Crime in America 248-289 (1969); J. Gardiner, The

Politics of Corruption, Organized Crime in an American City (1970); House

Comm. on Gov't Operations, Federal Effort Against Organized Crime,
H.R.Rep.No.1574, 90th Cong., 2d Sess. 8 (1968); G. Tyler, Organized Crime in
America 15 (1962).
44

These obstacles led one local law enforcement official to conclude:

45 are gnawing away at one or two heads of a many-headed Hydra, without

"We
knowing with certainty where the other heads are, or where the rest of the body
extends."
46

Statement of Suffolk Co., N.Y. Police Commissioner Thom Before N.Y. State
Commission of Investigation on April 22, 1960, cited in D. Cressey, Theft of
the Nation, The Structure and Operation of Organized Crime in America 290
(1969).

47

Because of the pervasive and interstate nature of suspected organized crime, a

fragmented law enforcement approach can meet with only limited success.
House Comm. on Gov't Operations, Federal Effort Against Organized Crime,
H.R.Rep.No. 1574, 90th Cong., 2d Sess. 10 (1968); Note, The Strike Force:
Organized Law Enforcement v. Organized Crime, 6 Colum.J.L. & Soc.Prob.
496, 500-502 (1970); Johnson, Organized Crime: Challenge to the American
Legal System, 53 J.Crim.L.C. & P.S. 399, 418-419 (1962).

48

After the revelations of the Kefauver Committee (Hearings Before the Special
Senate Committee to Investigate Organized Crime in Interstate Commerce, 81st
Cong., 2d Sess. and 82nd Cong., 1st Sess., pts. 1-15 (1950-51)), the federal
government formed an Organized Crime and Racketeering Section within the
Justice Department. House Comm. on Gov't Operations, Federal Effort Against
Organized Crime, H.R.Rep.No.1574, 90th Cong., 2d Sess. 12-13 (1968). But it
was not until Robert Kennedy became Attorney General that a major federal
effort began. Id. at 14-15; Note, The Strike Force: Organized Law Enforcement
v. Organized Crime, 6 Colum.J.L. & Soc.Prob. 496, 503-505 (1970). He
expanded the Organized Crime and Racketeering Section, greatly increased its
activities, began to centralize the compilation of organized crime data, and
obtained a dramatic increase in convictions. Note, The Strike Force: Organized
Law Enforcement v. Organized Crime, 6 Colum.J.L. & Soc.Prob. 496, 505
(1970). See generally V. Navasky, Kennedy Justice 44-95 (1971).

49

Difficulties remained in coordinating the numerous separate federal and state

law enforcement efforts. House Comm. on Gov't Operations, Federal Effort

Against Organized Crime, H.R.Rep.No.1574, 90th Cong., 2d Sess., 74-80

(1968). It was troublesome to induce the variety of federal investigative
agencies E. g., Secret Service, Internal Revenue, Federal Bureau of
Investigation, Customs, and Immigration to share their information. See United
States v. Schipani, 289 F.Supp. 43, 47-53 (E.D.N.Y.1968), aff'd, 414 F.2d 1262
(2d Cir. 1969), Cert. denied, 397 U.S. 922, 90 S.Ct. 902, 25 L.Ed.2d 102
(1970).
50

In an effort to stimulate the drive against organized crime, which had declined
after Attorney General Kennedy's departure, and to provide on-the-scene
federal coordination and involvement, the Justice Department in 1966 began
establishing specialized organized crime prosecutorial offices in a number of
cities. Note, The Strike Force: Organized Law Enforcement v. Organized
Crime, 6 Colum.J.L. & Soc.Prob. 496, 497-498, 507-519 (1970). These Strike
Force offices were placed under the control of the Organized Crime and
Racketeering Section. Id. at 507-509. In this Circuit offices were organized in
Brooklyn and Manhattan. This court, therefore, has had ample opportunity to
observe the difficulties faced in prosecuting alleged organized criminals, the
organization of the Strike Forces and the fruits of their work. Cf. Rule 201,
Fed.R. of Evid. (judicial notice).

51

Strike Force efforts have been widely publicized, receiving particular emphasis
in Justice Department annual reports. At Congressional budget hearings there
have been extensive inquiries into the role and performance of the Strike
Forces, followed by approval through annual budgetary authorizations. See
Hearings on a Department of Justice 1968 Budget Request Before a Subcomm.
of the House Comm. on Appropriations, 90th Cong., 1st Sess., 199-216, 275281, 303-305 (1967); Hearings on a Department of Justice 1969 Budget
Request Before a Subcomm. of the House Comm. on Appropriations, 90th
Cong., 2d Sess., 124-126, 133-134, 199-209, 234-242 (1968); Hearings on a
Department of Justice 1970 Budget Request Before a Subcomm. of the House
Comm. on Appropriations, 91st Cong., 1st Sess., 216, 227, 238-241, 376-394,
437, 447-451 (1969); Hearings on a Department of Justice 1971 Budget
Request Before a Subcomm. of the House Comm. on Appropriations, 91st
Cong., 2d Sess., 197-198, 208-211, 338-345, 353, 363, 409-413 (1970);
Hearings on a Department of Justice 1972 Budget Request Before a Subcomm.
of the House Comm. on Appropriations, 92d Cong., 1st Sess., 345, 364-366,
497-504, 508-513, 521-531, 564-574, 577-578 (1971); Hearings on a
Department of Justice 1973 Budget Request Before a Subcomm. of the House
Comm. on Appropriations, 92d Cong., 2nd Sess., 327, 475-481, 492, 508-511,
540-547 (1972); Hearings on a Department of Justice 1974 Budget Request
Before a Subcomm. of the House Comm. on Appropriations, 93d Cong., 1st

Sess., 494, 504, 514-524, 545 (1973); 115 Cong.Rec. 10041-10043 (daily ed.
April 23, 1969) (President's message on organized crime and remarks of Rep.
Ford); President's Message to Congress on Crime and Law Enforcement of Feb.
7, 1968, W'kly Compil. of Pres. Doc's. 243-244 (Feb. 12, 1968).III.
ORGANIZATION OF STRIKE FORCES
52

In view of the complex and intricate tasks of Strike Force attorneys, and of the
extreme difficulty of prosecuting alleged organized crime, specific authority
and supervision is necessarily based on daily evaluations by authorities in
Washington and in the field rather than on a single document in the form of a
commission issued at the beginning of an attorney's service. Continuing control
from Washington is to be expected since the aim of the Strike Forces is,

53 achieve maximum coordination among federal agencies and between those

"to
agencies and the attorneys in the Department of Justice responsible for prosecuting
organized criminals. . . . The members of the strike force work with each other on a
daily basis and out of the same office. Together they plan and implement a
coordinated attack on organized criminal activity in their area. Each representative
supervises his agency's part in the overall investigative plan. There is continuous
communication regarding ongoing investigations. The result is an integrated and
purposeful accumulation of information designed to maximize the opportunities for
successful prosecution."
54

Note, The Strike Force: Organized Law Enforcement v. Organized Crime, 6

Colum.J.L. & Soc.Prob. 496, 498 (1970).

55

Excerpts from the detailed guidelines establishing the relationship between

Strike Forces and United States Attorneys Offices are set forth as an appendix
to this opinion. Order No. 431-70, Attorney General of the United States, April
20, 1970. They, along with the literature in the field, and our own observations
of cases in our courts, furnish, for the purposes of this case, sufficient basis for
an understanding of how the Strike Force attorneys are controlled.

56

The Department of Justice is an extremely complex organization headed by the

Attorney General. See 28 C.F.R. Chapt. 1. See also L. A. Huston, The
Department of Justice 54 (1967) (organizational chart). It is divided into a
series of (1) offices, such as that of the Deputy Attorney General who
supervises the Executive Office for United States Attorneys and an office of
Criminal Justice with "an overview of the criminal justice system" (28 C.F.R.
0.15-0.17), and the Solicitor General (28 C.F.R. 0.20-0.21); (2)
Divisions, such as the Antitrust, Civil and Criminal Divisions (28 C.F.R.
0.40-0.78); and (3) Administrations, Services, Bureaus, and Boards, such as the

Federal Bureau of Investigation, the Bureau of Prisons, the Drug Enforcement

Administration, and the United States Marshals Service (28 C.F.R. 0.850.129-2). There is even an explicit provision in the Code of Federal Regulations
governing the resolution of "jurisdictional" disagreements among the various
units of the Department. 28 C.F.R. 0.195.
57

Delegated to the Criminal Division are a variety of functions including those

assigned to the Organized Crime and Racketeering Section which is responsible
for

58
"Coordination
of enforcement activities directed against organized crime and
racketeering."
59

28 C.F.R. 0.55(g). In connection with his duties, the Assistant Attorney

General in charge of the Criminal Division is authorized to act for the Attorney
General in securing special grand juries and depositions required in the
prosecution of "organized criminal activity." 28 C.F.R. 0.59. He is also
authorized to "designate attorneys to present evidence to grand juries in all
cases . . . supervised by his division." 28 C.F.R. 0.60.

60

Before a Strike Force begins its work there is a gathering of personnel from
various agencies of the government, intensive training, compilation of
intelligence, and designation of the individuals to be investigated. See generally
Note, The Strike Force: Organized Law Enforcement v. Organized Crime, 6
Colum.J.L. & Soc.Prob. 496, 511-515 (1970).

61

Beyond the coordination between the United States Attorney and the local
Strike Force Attorney-in-Charge, each of the Strike Forces is managed and
supervised on a day-to-day basis by the Organized Crime and Racketeering
Section. This section consists of a Chief and four Deputy Chiefs. The Chief of
the Organized Crime and Racketeering Section reports to the Assistant
Attorney General in charge of the Criminal Division. Each Deputy Chief is
responsible for the operation of those Strike Forces in the geographical area
assigned to him. There is almost daily contact between each local Strike Force
and the Organized Crime and Racketeering Section in Washington with respect
to the status of pending investigations.

62

Prior to the filing of an indictment the Strike Force submits to the Organized
Crime and Racketeering Section a prosecution memorandum setting forth the
evidence obtained as a result of its investigation. This memorandum contains
the Strike Force attorney's recommendations on whether a prosecution should

be instituted. Indictments are not filed until prosecution is authorized by the

Organized Crime and Racketeering Section.
63

Daily reports are forwarded to Washington by the Strike Forces concerning the
filing of indictments and all other significant court actions such as convictions,
acquittals and pleas of guilty. These reports are transmitted by the Organized
Crime and Racketeering Section to the Attorney General through the Office of
the Assistant Attorney General in charge of the Criminal Division.

64

Each Strike Force has an Attorney-in-Charge who is directly responsible for the
work of those attorneys assigned to that Strike Force. All indictments,
prosecutions, memoranda, immunity authorization requests, wiretap
applications, and nolle prosequis are reviewed and approved by the Attorneyin-Charge and the local United States Attorney before they are filed.

65

Where it is deemed necessary to reassign a Strike Force attorney from one

permanent duty station to another, an order is issued, signed by the Assistant
Attorney General in charge of the Criminal Division, or the Deputy Attorney
General, or one of their duly authorized representatives. Before being permitted
to travel on a per diem basis, in connection with a specific duty assignment, a
Strike Force attorney is required to obtain a travel authorization from the
Department of Justice.

66

Such central, yet flexible, control of the work of the Strike Force is essential
when dealing with alleged national crime syndicates. Note, The Strike Force:
Organized Law Enforcement v. Organized Crime, 6 Colum.J.L. & Soc.Prob.
496, 514 (1970). As one commentator put it:

67 effectiveness of the strike force depends on two important factors: (1) the
"The
strike force as an institutionalized structure with agents as members and (2) overall
coordination by (Organized Crime and Racketeering) in Washington."
68

Id. at 520.

69

As the guidelines in Appendix A suggest, there is also active cooperation

between the local United States Attorney and the local Strike Force personnel.
The primary responsibility of the United States Attorney to prosecute crimes in
the district is recognized. Decentralization is not ignored.

70

The commission itself, then, does not begin to express the specific limitations
on Mr. Del Grosso's authority. It places him as a unit in a tight bureaucratic

hierarchy controlled by the Attorney General in Washington through a direct

line of subordinates. Mr. Del Grosso cannot roam freely through the country
prosecuting whom he pleases for whatever crimes he can get any grand jury to
charge. He is assigned by higher authority in Washington to a specific district
and he can move outside that district only when ordered by his superiors in
Washington to do so. He can only investigate those persons and crimes related
to organized criminal activity as his superiors from time to time allow. Let him
step out of line into other areas and the local United States Attorney, jealous of
his prerogatives, will refuse to sign indictments and will complain forcefully to
the Attorney General in Washington. The Executive Office for United States
Attorneys, under the Deputy Attorney General, has assistant directors for each
area of the country who devote considerable attention to resolving such
conflicts between the local United States Attorneys and the Strike Forces. The
reaction through orders from the Attorney General and his subordinates to
overreaching by a member of the Strike Force will likely be swift. The practical
controls on a member of the Strike Force who does not understand his limited
powers will be brought to bear. If the Attorney General be too laggard in
bringing his Strike Force subordinates to heel, our heavy machinery of checks
and balances would come wheeling into place. The United States Attorney for
the District may appeal to Congressional and other forces; a call from Congress
will alert the Attorney General to his duties to control his subordinates in the
exercise of their limited powers. And, as a final check, the district courts have
powers to control abusive prosecution.
71

All of this mass of paperwork, guidelines, tradition and practical reality of

political science must be read into a commission. A Strike Force attorney, no
matter how broad his commission, is under virtually constant specific direction
and control. The situation here is quite unlike that we would face were the
Attorney General to grant such a commission to a single person outside the
bureaucratic structure who might take action and incur fiscal and other
liabilities for the government without limit.

72 RELATIONSHIP BETWEEN LOCALLY AND CENTRALLY

IV.
CONTROLLED PROSECUTORS
A. History
73

While this challenge concerns the ability of one Strike Force attorney to appear
before one grand jury, in a larger sense it calls into question the federal
government's ability to effectively organize its prosecutorial apparatus. The
problem of centralized versus decentralized control of criminal law enforcement
is at least as old as the Roman Empire. See F. Abbott, A History and

Description of Roman Political Institutions, 284-285, 346-349, 363-364, 367368, 371-372 (1901).
74

In England, from about 1253 onward, the crown had its own attorney, known
after 1461 as the Attorney General, to bring prosecutions in the ruler's name.
See J. Norton-Kyshe, The Law and Privileges Relating to the Attorney General
and Solicitor General of England i-xv, 1-6 (1897). The Attorney General was
empowered to prosecute such cases as he chose generally those seriously
endangering the public peace or government. See 4 Blackstone's Commentaries
308-309 (W.D.Lewis ed., 1922); I Chitty, Criminal Law 842-848 (Perkins ed.,
1841). American colonies generally followed the contemporary English model
of strong prosecutorial powers vested in an Attorney General. See O. W.
Hammonds, The Attorney General in the American Colonies (1 AngloAmerican Legal History Series No. 2, 1939); H. Cummings and C. McFarland,
Federal Justice 8-15 (1937).

75

Our American experiment in federalism reduced the problem since the primary
burden of maintaining internal tranquility was assumed by the states.
Nevertheless, the issue remained and grew more troublesome as the national
government exercised greater powers.

76

After the American Revolution, the Continental Congress, functioning pursuant

to the Articles of Confederation, contemplated creating an office of Attorney
General, with authority to prosecute all suits for the United States in federal and
state courts. H. Cummings and C. McFarland, Federal Justice 16 (1937);
Journal of the Continental Congress XIX, 156 (1912).

77

The Judiciary Act of 1789, which created the federal court system, while it
called for an Attorney General at the Capitol, adopted a scheme of federal
prosecution primarily at the local level. It provided for the appointment of

78 meet person, learned in the law to act as Attorney-general For the United States . .
"a
. To prosecute and conduct All suits in the Supreme Court in which the United States
shall be concerned, and to give his advice and opinion upon questions of law when
required by the President of the United States, or when requested by the heads of
any of the departments, touching any matters that may concern their departments."
(Emphasis supplied.)
79

Judiciary Act of 1789, 35, 1 Stat. 93. The Judiciary Act also provided for
United States Attorneys in each judicial district

"To prosecute . . . all delinquents for crimes And offenses, cognizable under the
80

authority of the United States, and all civil actions in which the United States shall
be concerned." Judiciary Act of 1789 35, 1 Stat. 92. (Emphasis supplied.)
81

Since the Attorney General was required to appear only in the Supreme Court,
there was doubt about his ability to appear in other courts. As Attorney General
Cummings observed,

82 wording of the thirty-fifth section of the Judiciary Act may have been
"This
accidental. Those who desired only a federal Supreme Court, leaving the trial work
to state courts, would not likely object to confining the Attorney General to the
Supreme Court. The original draft of the Judiciary Act had proposed that the district
and Supreme Courts each appoint the attorney to appear before them on behalf of
the government. Under such an arrangement it was but natural for the duties of those
attorneys to be limited to the courts which had appointed them. When this plan of
appointment was abandoned, the wording of the section was not revised and the
Attorney General remained charged only with the duty of appearing before the
Supreme Court."
83

H. Cummings and C. McFarland, Federal Justice 16 (1937). See also Warren,

New Light on the History of the Judiciary Act of 1789, 37 Harv.L.Rev. 49,
108-111 (1923).

84

Early Attorneys General did not view the Judiciary Act as limiting their ability
to appear before federal courts other than the Supreme Court. They took active
roles prosecuting a number of early cases in federal trial courts. H. Cummings
and C. McFarland, Federal Justice 31, 38, 44, 48, 60, 90 (1937); IV The Works
of Alexander Hamilton 588-589 (J. Hamilton ed. 1851). They participated in
the drafting of indictments and may well have appeared before grand juries in a
few cases. F. Wharton, State Trials of the United States During the
Administrations of Washington and Adams 77-78 (1849 ed.); H. Cummings
and C. McFarland, Federal Justice 31, 38, 44, 48 (1937); H. Adams, The Life
of Albert Gallatin 148 (1879 ed.).

85

Because Attorneys General were provided with only skeletal staffs until after
the Civil War (L. Huston, The Department of Justice 9-11 (1967); J. EasbySmith, The Department of Justice 6 (1904)), however, and because they were
preoccupied with growing requests for advisory opinions and with expanding
Supreme Court litigation, the local district attorneys remained all but
completely independent. See H. Cummings and C. McFarland, Federal Justice
218-220 (1937); Wirt, Attorney General and District Attorneys, 1 Op.Att'y
Gen. 608-611 (1823); Taney, The Jewels of the Princess of Orange, 2 Op.Att'y
Gen. 482, 491-492 (1831) (power of the President, acting through the Attorney

General, to issue directions to United States district attorneys); Cushing, Office

and Duties of the Attorney General, 6 Op.Att'y Gen. 326, 335-336, 347-349
(1854). Thus, prior to the Civil War, federal prosecutorial efforts were almost
completely decentralized, with authority vested in the hands of local United
States Attorneys.
86

The crisis of the Civil War compelled Attorney General Bates to renew a
proposal of the first Attorney General, Edmund Randolph, to make supervision
of district attorneys a duty of the Attorney General. H. Cummings and C.
McFarland, Federal Justice 218-219 (1973). In 1861 Congress followed this
recommendation. It also authorized the Attorney General to appoint special
assistants to United States district attorneys to assist the Attorney General in the
performance of his duties. Act of August 2, 1861, 12 Stat. 285 c. 37, Rev.Stat.
363 (now codified, as modified, at 28 U.S.C. 543(a)).

87

After the creation in 1870 of the Department of Justice, the Attorney General
obtained authorization to name special attorneys to aid the Attorney General in
the "trial of any case." Act of June 22, 1870, 16 Stat. 162 c. 150, 17, Rev.Stat.
364-366 (now codified, as modified, at 28 U.S.C. 518(b)). In order to
employ such special attorneys, the Attorney General was required to certify that
the services of the special attorneys

88
"were
actually rendered, and that the same could not be performed by the AttorneyGeneral, or solicitor-general, or the officers of the department of justice, or by the
district attorneys."
89

Act of June 22, 1870, 16 Stat. 164 c. 150, 17, Rev.Stat. 365. The
requirement of certification in section 365 was added to avoid unnecessary
expenditures and abuses by persons without supervision. See United States V.
Crosthwaite, 168 U.S. 375, 379, 18 S.Ct. 107, 108, 42 L.Ed. 507 (1897) ("It
was left to (the Attorney General) to determine whether public interests
required the employment of special counsel"). Cf. 31 U.S.C. 665(b);
Wickersham, Employment of Retired Army Officer, 30 Op.Att'y Gen. 51 (Feb.
7, 1913); United States v. Morse, 292 F. 273 (S.D.N.Y.1922).

90

Armed with these provisions, Attorneys General made extensive use of special
attorneys. They employed them in grand jury proceedings as well as trials.
House Judiciary Comm., Report on H.R. 17714, H.R.Rep.No. 2901, 59th
Cong., 1st Sess. at 1 (1906).

91

During the Grant administration, the Attorney General, at the head of the new

Department of Justice, began exercising direct authority over federal district

attorneys in an effort to supervise the enforcement of Reconstruction laws
designed to protect newly-enfranchised black citizens from widespread Ku
Klux Klan terrorism in Southern states. H. Cummings and C. McFarland,
Federal Justice 230-249 (1937). As part of this effort it appears that some
members of the Department of Justice staff were dispatched to the South to
assist local United States attorneys. Id. at 242. This program marked the first
widespread use of prosecutorial authority by the Attorney General. It stands as
historical precedent for the centralized efforts of the organized crime Strike
Forces. See also Dixon, The Attorney General and Civil Rights 1870-1964, in
Roles of the Attorney General of the United States, 105-110 (L. A. Huston, et
al., eds. 1968). More recently, important tax, civil, land, antitrust and civil
rights cases have been increasingly controlled from Washington through the
various divisions in the Department of Justice set up for that purpose.
B. Summary of Present Powers of Attorney General
92
93

The Executive Branch specifically, the Attorney General has the power to
conduct federal criminal litigation. 28 U.S.C. 516. It is "an executive function
within the exclusive prerogative of the Attorney General." United States v.
Cox, 342 F.2d 167, 190 (5th Cir.), cert. denied sub nom. Cox v. Hauberg, 381
U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965), (Wisdom, J., concurring).
Under the broad ambit of applicable statutes the Attorney General may appoint
officials "to detect and prosecute crimes against the United States." 28 U.S.C.
533. He has supervision of all litigation in which the United States is a party
and is commanded to "direct all United States Attorneys, assistant United States
Attorneys, and special attorneys . . . in the discharge of their respective duties."
28 U.S.C. 519. He may appoint assistant United States Attorneys in any
district in which they reside (28 U.S.C. 542, 545) or "appoint special
attorneys, regardless of their residence, to assist United States Attorneys when
the public interest so requires." 28 U.S.C. 542, 543. He may direct any
officer of the Department of Justice to conduct and argue any case in any court
of the United States. 28 U.S.C. 518. He also may direct "any other officer of
the Department of Justice, or any attorney specially appointed by the Attorney
General under law . . . when specifically directed by the Attorney General" to
"conduct any kind of legal proceeding . . . including grand jury proceedings."
28 U.S.C. 515(a). Under the Attorney General's supervision, the United
States Attorney, an appointee of the President, has the duty, "except as
otherwise provided by law," to prosecute all offenses against the United States
within his district. 28 U.S.C. 547.

94

Since 28 U.S.C. 509, deriving from the Reorganization Acts of 1949 and

1950, vests all functions of the Department of Justice, with some limited
exceptions, in the Attorney General, the statute for delegation appearing in 28
U.S.C. 510 is essential so that he may "make such provisions as he considers
appropriate authorizing the performance by any officer . . . of any function of
the Attorney General." See United States v. Giordano, 416 U.S. 505, 513, 94
S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974).
95

Recently, the Supreme Court considered these principles and some of these
statutes in ruling on the justiciability issue involving the Watergate Special
Prosecutor and the President in United States v. Nixon, 418 U.S. 683, 694-696,
94 S.Ct. 3090, 3101, 41 L.Ed.2d 1039 (1974). The Supreme Court pointed out:

96
"Under
the authority of Art. II, 2, Congress has vested in the Attorney General the
power to conduct the criminal litigation of the United States Government. 28 U.S.C.
516. It has also vested in him the power to appoint subordinate officers to assist
him in the discharge of his duties. 28 U.S.C. 509, 510, 515, 533. Acting pursuant
to these statutes, the Attorney General has delegated the authority to represent the
United States in these particular matters to a Special Prosecutor with unique
authority and tenure."
97

418 U.S. at 694, 94 S.Ct. at 3100.

98

In sum, the Attorney General has authority to assign other officers of the
Department of Justice, not only under 28 U.S.C. 515, but also under the other
statutes giving him power over criminal litigation. If it were otherwise, his
broad power to enforce the criminal laws of the United States would be
seriously hampered at its inception the initiation of a criminal case by
presenting evidence before grand juries.

99

We have focused thus far on the general authority of the Attorney General over
federal criminal cases. But this power must be considered in conjunction with
that of grand juries since no serious criminal case may be commenced without a
grand jury indictment. A grand jury has wide latitude to conduct an inquiry into
violation of criminal laws. As the Supreme Court recently observed in United
States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561
(1974):

100
"Traditionally
the grand jury has been accorded wide latitude to inquire into
violations of criminal law. No judge presides to monitor its proceedings. It
deliberates in secret and may determine alone the course of its inquiry. The grand
jury may compel the production of evidence or the testimony of witnesses as it
considers appropriate, and its operation generally is unrestrained by the technical

procedural and evidentiary rules governing the conduct of criminal trials. 'It is a
grand inquest, a body with powers of investigation and inquisition, the scope of
whose inquiries is not to be limited . . . by doubts whether any particular individual
will be found properly subject to an accusation of crime.' Blair v. United States, 250
U.S. 273, 282 (39 S.Ct. 468, 471, 63 L.Ed. 979), (1919)."Both the power of the
Attorney General to designate an attorney to conduct a grand jury inquiry and the
power of the grand jury to investigate would be circumscribed, despite the principles
expressed in Calandra and Blair, if the Attorney General could not direct that his
assigned officer question within the entire scope of the inquiry. Otherwise the
proceeding would be restricted to the area of the authority of the Justice Department
lawyer; questions by jurors themselves outside these bounds would be out of order.
It would inhibit its freedom "to pursue its investigations unhindered by external
influence or supervision . . . ." United States v. Dionisio, 410 U.S. 1, 16-17, 93 S.Ct.
764, 773, 35 L.Ed.2d 67 (1973). The Attorney General's power to assign attorneys to
a grand jury inquiry is of necessity as broad as the inquiry itself or, in other words, as
broad an inquiry as "United States attorneys are authorized by law to conduct." 28
U.S.C. 515(a).
C. 28 U.S.C. 543
101 Moving from the broad statutory framework under which the Attorney General
conducts the criminal litigation of the United States, the plain language of 28
U.S.C. 543 suggests that the Attorney General has the power to assign an
attorney of the Department of Justice to conduct a grand jury inquiry with the
same breadth as an inquiry conducted by a United States Attorney. Section 543
gives the Attorney General power to appoint "attorneys to assist United States
attorneys when the public interest so requires." This grant of power is similar to
his authority under section 542 to appoint Assistant United States Attorneys
"when the public interest so requires." Neither statute contains any words of
limitation on the power of these appointees to conduct criminal proceedings,
including grand jury proceedings. No authority suggests that an Assistant
United States Attorney cannot conduct a broad grand jury inquiry by virtue of
his office. A departmental or special attorney appointed under section 543
would likewise appear to be subject to no limitation. The letter of appointment
of Mr. Del Grosso might, then, reasonably be read as an appointment under this
section.
102 There remains the question of whether the organizational structure of the Strike
Forces precludes a conclusion that its attorneys were appointed to "assist" (28
U.S.C. 543) the United States Attorney. The close relationship between Strike
Forces and the United States Attorneys revealed in the Appendix to this opinion
supports a finding that investigation and prosecution of "organized crime" in a

particular district constitutes assistance to the United States Attorney for that
district. Where, as here, the United States Attorney reviews and signs all
indictments and organized crime prosecutions are coordinated with his work,
the attorneys of the Strike Force are "assisting" the United States Attorney.
103 While authority for centralized prosecutorial efforts by the Justice Department,
such as the Strike Forces offices, provides a context for interpretation and
understanding, it is not dispositive where specific statutes are applicable. We
turn, therefore, to an analysis of the genesis and interpretation of section 515(a)
of Title 28, the most narrowly drawn of the relevant provisions.
D. 28 U.S.C. 515(a).
104
1. Language of 515(a)
105 Section 515(a) provides that an attorney may be "specifically designated" to
conduct "any kind of legal proceedings . . . which United States Attorneys are
authorized by law to conduct." The letter of authorization in question expressly
tracks the statute, stating that the attorney is "specifically authorized and
directed to file informations . . . and to conduct . . . any kind of legal
proceedings . . . including grand jury proceedings . . . which United States
Attorneys are authorized to conduct." Plain meaning arguably permits the
Attorney General to give the assigned attorney a specific direction to conduct
grand jury proceedings to the same extent as the United States Attorney. Upon
this basis, then, the letter of authorization might be deemed sufficient.
106 Even if the words "specifically directed" are read to require a specific limitation
in the proceedings to which a special attorney is assigned, it does not
necessarily follow that this construction is applicable to regular attorneys of the
Department of Justice. The statute applies to three categories of attorneys: the
Attorney General, any officer of the Department of Justice, and an attorney
specially appointed by the Attorney General. The phrase "specifically directed"
obviously does not apply to the Attorney General himself. The thrust of the
1870 Congressional debates and enactments suggest that specific direction was
only necessary for specially-hired counsel, not regular Justice Department
attorneys. Cong.Globe, 41st Cong., 2d Sess., pt. 4, 3036-3039 (1870); Act of
June 22, 1870, 16 Stat. 162 c. 150, 17. See also, United States v. Denton, 307
F.2d 336, 338 (6th Cir. 1962), cert. denied, 371 U.S. 923, 83 S.Ct. 292, 9
L.Ed.2d 232 (1963). Since section 510 permits the Attorney General to
delegate this power to other officers of the department, there is reason to read
section 515(a) to make the phrase "specifically directed" inapplicable to "any
officer of the Department of Justice." "Specifically directed" might be read

though the syntax is severely strained to be applicable only to "any attorney

specially appointed by the Attorney General who may, when specifically
directed," conduct any kind of legal proceeding.
107 Under this reading, Mr. Del Grosso would have had legal authority to conduct a
broad grand jury inquiry. As a regular attorney in the Department of Justice, he
qualifies under common usage as an officer of the Department of Justice. See,
e. g., the use by the Supreme Court of that term in United States v. Giordano,
416 U.S. 505, 513-516, 94 S.Ct. 1820, 1825-1827, 40 L.Ed.2d 341 (1974).
108 Nevertheless, reading out of section 515(a), as it applies to officials, the words
"specifically directed" seems unwarranted in view of the relevant statutory
history of this 1906 provision. This is the subject to which we now turn.
2. Legislative History of 515(a)
a. Precursor limitations on outside counsel
109
110 The 1861 and 1870 Acts serve as background for our consideration of the 1906
Act. By the Act of August 2, 1861, 12 Stat. 285 c. 37, as already noted,
Congress provided that the Attorney General was "charged with the general
superintendence and direction of the (district) attorneys . . . as to the manner of
discharging their respective duties." He was also
111
"empowered,
whenever in his opinion the public interest may require it, to employ
and retain (in the name of the United States) such attorneys and counselors-at-law as
he may think necessary to assist the district-attorneys in the discharge of their duties,
and shall stipulate with such assistant counsel the amount of compensation."
112 Id. 2. The latter section is now codified, in modified form, as 28 U.S.C.
543(a).
113 The Act of June 22, 1870, 16 Stat. 162 c. 150, which created the Department of
Justice was, in large measure, adopted in reaction to abuses in the employment
of outside counsel, including the payment of excessive fees and the sometime
inferior quality of their services. See, e. g., Cong.Globe, 41st Cong., 2d Sess.,
pt. 4, 3036-37, 3038 (1870) (Remarks of Rep. Jenckes and Lawrence):
114
"Retainers
of $3,000 and $7,500 have been sent to counsel in other parts of the
United States. Some have rendered service, and some we cannot find rendered any
at all.

115some instances the amount paid one single attorney for a series of years has
"In
largely exceeded the whole salary of the Attorney General."Section 17 of the 1870
Act (16 Stat. 162, 164) provided that the need for outside counsel was to be publicly
stated prior to their employment, and the scope of their commission was not to
exceed this stated need. In addition it had to be certified that no personnel of the
Department of Justice could do the job clearly implying Washington's power and
duty to send experts from the Capitol to take over those prosecutions where there
were special needs:
"(N)o counsel or attorney fees shall hereafter be allowed to any person or persons, . .
116
. for services in such capacity to the United States, or any branch or department of
the government thereof, unless hereafter authorized by law and then only on the
certificate of the Attorney-General that such services were actually rendered, and
that the same could not be performed by the Attorney-General, or solicitor-general,
or the officers of the department of justice, or by the district attorneys. And every
attorney and counsel(l)or who shall be specially retained, under the authority of the
Department of Justice, to assist in the trial of any case in which the government is
interested, shall receive a commission from the head of said Department as a special
assistant to the Attorney-General, or to some one of the district attorneys, as the
nature of the appointment may require, and shall take the oath required by law to be
taken by the district attorneys, and shall be subject to all the liabilities imposed upon
such officers by law." (Emphasis added.)
117 16 Stat. 162, 164 17.
118 In the Congressional debates it was made clear that the Attorney General
would be held responsible for the expenditure of funds to retain outside counsel
and for the quality of their performance. Cong.Globe, 41st Cong., 2d Sess., pt.
4, 3036-3037 (1870). This was to be accomplished by requiring that the need
for outside counsel and the purposes for which he was retained be specified on
the face of each special commission "in order that (counsel) may be responsible
to him (the Attorney General) and to the government for the performance of
their duties." Cong.Globe, 41st Cong., 2d Sess., pt. 4, 3035 (1870).
119 Congress, in establishing the Department of Justice, apparently showed no
concern that its employees would interfere with the functions of the district
attorneys and gave the Attorney General power to use the persons he employed
to attend to any interest of the United States. The primary Congressional
concern was that limited commissions be granted to outside counsel so that
their responsibility to the Attorney General would be clearly evidenced.
b. Rosenthal, Cobban and Twining Cases
120

121 Three contemporaneous district court cases provide a background for

consideration of the 1906 Act, now section 515(a). United States v. Rosenthal,
121 F. 862 (S.D.N.Y.1903), the case section 515(a) was designed to deal with,
is critical.
122 Merchants in New York were disturbed about the possible fraudulent
importation of silk at the Port of New York. They consulted their own private
attorney, one Wickham Smith, who, after inquiry, suggested that they ask the
President of the United States and the Attorney General to investigate the
matter. When the Attorney General responded that he lacked funds, the
merchants offered to pay Mr. Smith's expenses. He was then appointed by the
Attorney General to investigate "alleged fraudulent importation of Japanese
silks at the Port of New York" and "to prepare and conduct such civil and
criminal proceedings as may result." His compensation was to "be determined"
on the completion of his services, but the expectation was that it would be paid
by the merchants. Armed with this warrant, he proceeded to appear before a
grand jury and obtain indictments against competitors of the silk merchants of
New York.
123 On this peculiar state of facts it is not surprising that the district judge quashed
the indictments. The danger in permitting private persons to use the grand jury
for their own purposes is obvious enough. See Sutherland v. International Ins.
Co. of N. Y., 43 F.2d 969 (2d Cir.), cert. denied, 282 U.S. 890, 51 S.Ct. 103, 75
L.Ed. 785 (1930).
124 While acknowledging the power of the Attorney General, or any person
authorized by him, to conduct litigations and trials in any United States Court,
the district judge drew a sharp distinction between trials and grand jury
proceedings. Only the United States Attorney for the district or one of his
assistants, he held, could present a matter to a grand jury.
125 There is no need to analyze again the statutory authority then extant to
demonstrate how the same result could have been reached without taking so
narrow a view of the Attorney General's power vis-a-vis grand juries. In fact,
United States v. Cobban, 127 F. 713, 717 (D.Mont.1904), and United States v.
Twining, 132 F. 129, 131-132 (D.N.J.1904), both promptly rejected the
Rosenthal construction, of what is now 28 U.S.C. 543 and 515(a).
126 Instead of relying on the courts to limit Rosenthal to its special facts, Congress,
acting on the Attorney General's request, shortly thereafter adopted a statute. It
affirmed his power, that of other officers of the Department of Justice, and

persons he specially designated, to conduct proceedings before federal grand

juries.
c. Act of June 30, 1906
127
128 The express purpose of the bill as reflected in the House Committee report was
to overrule the broad holding in Rosenthal.
129 purpose of this bill is to give to the Attorney General, or to any officer in his
"The
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."
(Emphasis supplied.)
130 House Judiciary Comm., Report on H.R. 17714, H.R.Rep. No. 2901, 59th
Cong., 1st Sess. 1 (1906).
131 When the report discussed the employment of "special counsel," it was
obviously concerned primarily with specially-retained outside counsel.
Nevertheless, the language of the report is sufficiently broad to support the
interpretation that Congress wished the local district attorneys to handle grand
jury matters except where there was a special reason to have another attorney
appear. The House Report that accompanied the legislation read in part:
132has been the practice of the Attorney-General for many years to employ special
"It
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, (decided) the case of the United States v.
Rosenthal. . . .
133 Rosenthal) decision makes the proposed legislation necessary if the
"(The
Government is to have the benefit of the knowledge and learning of its AttorneyGeneral 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 and no matter
how necessary it 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.

134 Attorney-General states that it is necessary, in the due and proper

"The
administration of the law, that he shall be permitted to employ special counsel to
assist the district attorney in cases (requiring special skill) which district attorneys or
lawyers do not generally possess, and in cases of (un) usual importance to the
Government, and that such counsel be permitted to possess all of the power and
authority, in that particular case, granted to the district attorney, which, of course,
includes his right to appear before a grand jury either with the district attorney or
alone.
"There
135 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 very necessary,
because of the decision in the Rosenthal case, hereinbefore referred to, and the
committee recommend its speedy enactment." (Emphasis supplied.)
136 House Judiciary Comm., Report on H.R. 17714, H.R.Rep. No. 2901, 59th
Cong., 1st Sess. (1906).
137 The Senate version of what is now 515(a) did not contain the House language
that the special attorney be "specifically directed by the Attorney General" (See
40 Cong.Rec. 7913-14 (1906)), and the accompanying Senate Judiciary
Committee Report made no mention of a requirement that a special attorney's
commission be specifically drawn. Senate Judiciary Comm., Report on S.
2969, Sen.Rep. No. 3835, 59th Cong., 1st Sess. (1906). The Senate, however,
acceded to the House version of the bill. See 40 Cong.Rec. 9662 (1906)
(Remarks of Senator Kean).
138 Certainly the House Report should be read against Congress' contemporary
concern with ensuring that the Attorney General's power to appoint special
outside counsel did not become subject to financial abuse. See discussion in
United States v. Crosthwaite, 168 U.S. 375, 381, 18 S.Ct. 107, 109, 42 L.Ed.
507 (1897) (construes Act of June 22, 1870, 16 Stat. 162, 164, c. 25 16-17,
Rev.Stat. 363-366, as intending to "protect the treasury from the expense
incident to the employment of special counsel"). See also, Wall v. United
States, 384 F.2d 758, 763 (10th Cir. 1967); United States v. Denton, 307 F.2d
336, 338 (6th Cir. 1962), Cert. denied, 371 U.S. 923, 83 S.Ct. 292, 9 L.Ed.2d
232 (1963); Cong.Globe, 41st Cong., 2d Sess., pt. 4, 3035-3039 (1870). During
the same year that 515(a) was enacted, Congress passed an Act of Feb. 27,
1906, 34 Stat. 48, now codified as 31 U.S.C. 665(b). This provision aimed "to

prevent the (Executive) Departments from incurring financial obligations over

and above those authorized by Congress" through claims for extra or
unauthorized services. Wickersham, Employment of Retired Army Officer, 30
Op. of Att'y Gen. 51, 53 (Feb. 7, 1913). See also, United States v. Morse, 292
F. 273 (S.D.N.Y.1922) (appointment of Special Counsel of Emergency Fleet
Corporation as Special Assistant Attorney General, without additional
compensation, does not violate 665(b)). While these Congressional
deliberations do not modify the House Report, they do provide illumination as
to Congressional concerns and aims for section 515(a).
139 Nevertheless, the legislative history, fairly read, suggests that in addition to
fiscal concerns, Congress did not wish to see the traditional primary role of the
local district attorney before the grand jury reduced unless there was some
special reason made explicit by the Attorney General. And this, the language of
the statute seems to say, applied to full-time officers of the Department of
Justice as well as to part-time private attorneys.
140 The form of the special direction that was required was not touched upon by the
statute. Generally, the cases construing section 515(a) have tended towards a
liberal construction in favor of validity of the indictments.
3. Court Construction of Section 515(a)
141 Almost every case which has interpreted 28 U.S.C. 515(a) favors the
government. Challenges to the grand jury appearances of assigned attorneys,
whether regular full-time government attorneys or specially retained part-time
counsel, have been rejected on a number of grounds.
142 In May v. United States, 236 F. 495 (8th Cir. 1916) one Robert Childs was
specially retained at $25.00 per day plus expenses pursuant to a letter signed by
an Assistant Attorney General, to assist in the preparation and trial "in the
Eastern District of Missouri," of "Oleomargarine Cases". After stating that the
1906 Act permitted the Attorney General to retain special counsel "personally
or through his lawful assistants," the court indicated lack of sympathy with
collateral attacks on the authority of an attorney with apparent authority to
appear before a grand jury as a representative of the United States. It pointed
out:
143 is not a proceeding to try the title of Mr. Childs to the office of special
"This
assistant to the Attorney General for the purposes mentioned in the appointment. It
is a motion to quash an indictment for the reason that an unauthorized person took
part in the proceedings of the grand jury which resulted in the indictment. Such a

motion only attacks the authority of Mr. Childs in a collateral way, and beyond all
question he was a de facto officer, acting by color of authority, and his acts are valid
until it is judicially declared by a competent tribunal in a proceeding for that purpose
that he has no right to the office, the duties of which he is performing."
144 236 F. at 500.
145 Shushan v. United States, 117 F.2d 110 (5th Cir.), Cert. denied, 313 U.S. 574,
61 S.Ct. 1085, 85 L.Ed. 1531 (1941), involved defendants who alleged that
three "special assistants to the Attorney General participated in the proceedings
before the grand jury without having been specifically directed to do so by the
Attorney General." Each commission evidenced the appointment of the person
named as "special assistant to the Attorney General" and specifically directed
him to conduct in the Eastern District of Louisiana proceedings in which the
United States was interested, "including grand jury proceedings." Id., at 114. In
some of the commissions there was mention of violations of the mail fraud
statute by named persons "and other persons unknown." Id., at 114. None of
the commissions evidencing appointment specifically referred to any person
indicted. The Court, in refusing to abate the indictment on this ground, noted:
146 think it appears that these persons had and acted in an official status with
"We
respect to this case, and that the authority of each extended specifically to appearing
in grand jury proceedings in the Eastern District of Louisiana in prosecutions under
the mail fraud statute. The mention of persons supposed to be guilty was too general
to restrict the authority to cases against them only. When a grand jury, which is an
inquisitorial body, begins an investigation it cannot be known in advance whom they
will indict. . . . The words of Section 310 (now 515(a) ), 'when thereunto
specifically directed by the Attorney General, (to) conduct any kind of legal
proceeding', Are mainly for the protection of the United States. They do not require
the naming of the persons or the particular cases to be prosecuted. Mail fraud cases
in the Eastern District of Louisiana were specifically enough mentioned here, and
we think it would be going too far to hold, at the instance of the accused, that the
appointees were exceeding their authority in conducting this proceeding." (Emphasis
supplied.)
147 117 F.2d at 114.
148 United States v. Hall, 145 F.2d 781 (9th Cir. 1944), Cert. denied, 324 U.S. 871,
65 S.Ct. 1016, 89 L.Ed. 1425 (1945), is the only appellate case which
concerned the use of officials of the Department of Justice, rather than specially
retained outside counsel. Consequently, the opinion does not speak in terms of
special commissions, oaths or salary limitations. Rather, it focuses on whether

participation by officers of the Department of Justice was, in fact, authorized by

the Attorney General. The court approved broad direct and indirect
authorizations. It declared:
149 are of the opinion and so hold that the authorization may be direct to each
"We
designated officer of the Department or it may be to an officer in immediate
supervision over several other such officers and may include such authorization to
any or all of the several. And we are further of the opinion and we so hold that such
authorization need not be directed to specifically designated cases but may be
designated and limited descriptively as was done in the instant case by the Attorney
General when he authorized Mr. Brett and the attorneys under his immediate
direction to act in the kind of cases, to-wit, such land cases as from time to time shall
be assigned to the Los Angeles Lands Division office."
150 145 F.2d at 785.
151 Courts have generally held that a special attorney's commission need not
specify the statutes under which the attorney is to investigate and prosecute or
the specific prospective defendants. In United States v. Amazon Industrial
Chemical Corp., 55 F.2d 254, 256-257 (D.Md.1931), the court concluded that
an omission in a commission letter of the particular federal statutes allegedly
violated was a "mere matter of form and not of substance." See also, United
States v. Powell, 81 F.Supp. 288, 291 (E.D.Mo.1948) (correct statutes need not
be specified in commission letter). In United States v. Morse, 292 F. 273
(S.D.N.Y.1922), Judge Augustus Hand was confronted with two commission
letters from the Attorney General authorizing a special attorney to investigate
sales of stock. One of the letters authorized an investigation of specified
companies and persons, pursuant to specified criminal statutes. Although the
special attorney did not limit his investigation and subsequent indictments to
the companies and persons named in the commission, the commission was
upheld by Judge Hand, who warned that to require the commission to be more
specific "would cause unnecessary inconvenience in enforcing the law." Id. at
276.
152 An individual case need not be specifically designated. In United States v.
Martins, 288 F. 991, 992 (D.Mass.1923), a court found that to require a special
attorney to be designated by the Attorney General in each particular case would
be unnecessarily narrow and technical. In United States v. Hall, 145 F.2d 781
(9th Cir. 1944), already referred to, the court approved the Justice Department's
establishment of a "Lands Division" office in the Southern District of
California to which it assigned special attorneys who were authorized to
conduct such "Lands Division" cases as might be assigned to them. The court

reversed a district judge and upheld the commissions of special attorneys not
directed to specifically designated cases. The fact that a commission failed to
specify the nature of the investigation the special attorney was to undertake did
not invalidate the commission. United States v. Amazon Industrial Chemical
Corp., 55 F.2d 254, 256 (D.Md.1931).
153 Authority to act as a special attorney continues even after the specific official
granting the authority and signing the commission leaves office. United States
v. Morton Salt, 216 F.Supp. 250, 255-256 (D.Minn.1962), Aff'd per curiam,
382 U.S. 44, 86 S.Ct. 181, 15 L.Ed.2d 36 (1965). The commission when signed
need not be filed with the court. Belt v. United States, 73 F.2d 888, 889 (5th
Cir. 1934).
154 Three Circuits have implied that any challenge by defendants to commission
letters as overbroad may be inappropriate since the "specifically directed"
language in Section 515(a) was included to protect the government from abuse
of discretion by a special attorney or unnecessary personnel expenditures by the
Attorney General, not to limit the Attorney General's power to prosecute. Wall
v. United States, 384 F.2d 758, 763 (10th Cir. 1967); United States v. Denton,
307 F.2d 336, 338 (6th Cir. 1962), Cert. denied, 371 U.S. 923, 83 S.Ct. 292, 9
L.Ed.2d 232 (1963); Shushan v. United States, 117 F.2d 110, 114 (5th Cir.),
Cert. denied,313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed.2d 1531 (1941); See also,
United States v. Powell, 81 F.Supp. 288, 291 (E.D.Mo.1948) (the statute is for
"the protection of the United States" and should be construed to assist the
government's business); United States v. Martins, 288 F. 991, 992
(D.Mass.1923) ("the statute 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").
155 While broadly drawn commissions have received support, the government
faces a danger when commissions are too specific and narrow. See, United
States v. Cohen, 273 F. 620 (D.Mass.1921) (because a special attorney's
commission specified power to conduct grand jury proceedings, court construed
that he did not have the right to file informations); United States v. Huston, 28
F.2d 451, 456 (N.D.Ohio 1928) (where commission specified two districts in
which a special attorney was to operate, but indictments were returned in
another district, the commission was insufficient because too narrowly drawn).
156 Running counter to the general pattern of cases tolerating increasingly broad
commission letters was United States v. Goldman, 28 F.2d 424 (D.Conn.1928).
There the court found that a special attorney could not appear before a grand
jury in a case not specified in his commission. The court expressed a fear that if

the attorney's appearance was not disallowed "it would follow that the Attorney
General of the United States could, under the act now under discussion, issue a
roving commission without any limitations, extending to every district in the
United States and embrace all criminal investigations." Id., at 430. Supporting
Goldman, there is dicta in some cases suggesting a somewhat more narrow
interpretation of section 515(a). In United States v. Morse, 292 F. 273, 276
(S.D.N.Y.1922), the court suggested that the commission should be
"sufficiently specific . . . (as) possible, if adequate power to deal with the
situation without impairment of usefulness or unnecessary reduplication of
labor were to be given." See also, United States v. Hall, 145 F.2d 781, 785 (9th
Cir. 1944), Cert. denied, 324 U.S. 871, 65 S.Ct. 1016, 89 L.Ed. 1425 (1945)
(dicta to the effect that although a commission need not specifically designate
cases it "may be designated and limited descriptively" such as by the
designation "land cases").
157 Such dicta should not be allowed to stand against the legislative history and the
basic thrust of the case law on section 515(a). This conclusion is buttressed by
holdings that the authority granted to special attorneys of the Justice
Department should be equal to that held by assistants to a United States
Attorney. United States v. Morton Salt, 216 F.Supp. 250 (D.Minn.1962), Aff'd
per curiam, 382 U.S. 44, 86 S.Ct. 181, 15 L.Ed.2d 36 (1965); United States v.
Sheffield Farms Co., 43 F.Supp. 1, 3 (S.D.N.Y.1942).
158 Recent decisions dealing specifically with the Strike Force and Section 515(a)
also support, with a few exceptions, the conclusion that Section 515(a) should
be read to support an indictment wherever it is reasonable to do so. See,
supporting a broad Strike Force commission: United States v. Di Girlomo, 393
F.Supp. 997 (W.D.Mo.1975) (Hunter, J.); United States v. Lyberger, No. 75CR-25 (N.D.Ill. March 24, 1975) (McGarr, J.); United States v. Weiner, 392
F.Supp. 81 (N.D.Ill.1975) (Bower, J.); United States v. Jacobson, 74-CR-936
(S.D.N.Y. March 3, 1975) (Frankel, J.); In re Langella, No. 74-C-638
(E.D.N.Y. Feb. 27, 1975) (Dooling, J.); Sandello v. Curran, M-11-188
(S.D.N.Y. Feb. 27, 1975) (Tenney, J.); United States v. Brown, 389 F.Supp.
959 (S.D.N.Y.1975) (Pollack, J.); United States v. Albanese, No. 74-CR-814
(E.D.N.Y. Feb. 14, 1975) (Judd, J.); United States v. Ferri, No. 74-277 Crim.
(W.D.Pa. Feb. 18, 1975) (Marsh, J.); United States v. Brodson, 390 F.Supp.
774 (E.D.Wis.1975) (Gordon, J.). See, opposing a broad Strike Force
commission: United States v. Agrusa, 392 F.Supp. 3 (W.D.Mo.1975) (Oliver,
J.); United States v. Crispino, 392 F.Supp. 764 (S.D.N.Y.1975 and March 24,
1975) (Werker, J.); United States v. Wrigley,392 F.Supp. 9 (W.D.Mo.1975)
(Oliver, J.); United States v.

Williams, No. 74-CR-47-W-1 (W.D.Mo. Nov. 15, 1974) (Oliver,

159
J.). V. INAPPROPRIATENESS OF TOO NARROW AN
INTERPRETATION OF APPLICABLE PROVISIONS
160 The "specifically directed" phrase in Section 515(a) should not be so niggardly
construed as to interfere with the federal government's ability to efficiently
administer its criminal laws. Plain and intrinsic meaning can mislead when it
ignores the thought and intent behind words in a changing world.
"To
161 disregard the natural implications of the statute and to imprison our reading of it
in the shell of mere words is to commit the cardinal sin in statutory construction,
blind literalness."
162 Pope v. Atlantic Coast R. Co., 345 U.S. 379, 392, 73 S.Ct. 749, 756, 97 L.Ed.
1094 (1953) (Frankfurter, J., concurring). See also, e. g., United States v.
Whitridge, 197 U.S. 135, 143, 25 S.Ct. 406, 408, 49 L.Ed. 696 (1905) (Holmes,
J.); Borella v. Borden Co., 145 F.2d 63, 64-65 (2d Cir. 1945), Aff'd, 325 U.S.
679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945) (Learned Hand, J.); United States v.
Fisher, 2 Cranch (6 U.S.) 358, 386, 2 L.Ed. 304 (1805) (Marshall, C. J.);
Heydon's Case, 3 Coke 7a, 76 Eng.Rep. 637 (Exchecquer 1584) ("the office of
all the Judges is always to make such construction as shall suppress the
mischief, and advance the remedy, and to suppress subtle inventions and
evasions for continuance of the mischief, and pro privato commodo, and to add
force and life to the cure and remedy, according to the true intent of the makers
of the Act, pro bono publico"); Frankfurter, Some Reflections on the Reading
of Statutes, 47 Colum.L.Rev. 527, 533 (1947); 1 Kent Commentaries on
American Law 461-62 (1832 ed.).
163 On the theory that "a page of history is worth a volume of logic" (N.Y. Trust
Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921)),
courts rely heavily on legislative history. See Flora v. United States, 362 U.S.
145, 151, 80 S.Ct. 630, 634, 4 L.Ed.2d 623 (1960); Landis, A Note on
"Statutory Interpretation," 43 Harv.L.Rev. 886, 888-892 (1930). The difficulty
with discovering legislative intent from this source alone is, of course, that a
"legislature certainly has no intention whatever in connection with words which
some two or three men drafted." Radin, Statutory Interpretation, 43
Harv.L.Rev. 863, 870 (1930).
164 Thus, inquiry into meaning may not be limited to an examination of materials
contemporary with a bill's passage.

165 enactment is an organism in its environment. And the environment is not

"An
merely the immediate political or social context in which it is to be placed, but the
whole traditional system of law and law enforcement, of recognized remedies and
procedures which are the presuppositions of our law."
166 Frankfurter, Foreword to Symposium on Statutory Construction, 3 Vand.L.Rev.
365, 367 (1950). See also, Frank, Words and Music: Some Remarks on
Statutory Interpretation, 47 Colum.L.Rev. 1259 (1947). As Justice Cardozo
suggested, in making legislative interpretations courts must analyze "(w)hich
choice is it the more likely the Congress would have made?" Burnet v.
Guggenheim, 288 U.S. 280, 285, 53 S.Ct. 369, 370, 77 L.Ed. 748 (1933). See
also, Borella v. Borden Co., 145 F.2d 63, 64-65 (2d Cir. 1945) (Learned Hand,
J.), Aff'd, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945); Horock, In the
Name of Legislative Intention, 38 W.Va.L.Q. 119, 129 (1931).
167 In this connection it is useful to consider Professor Llewellyn's suggestion that
we take account of the age of the statute.
168
"(i)ncreasingly
as a statute gains in age . . . its language is called upon to deal with
circumstances utterly uncontemplated at the time of its passage. Here the quest is
not properly for the sense originally intended by the statute, for the sense sought
originally to be put in it, but rather For the sense which can be quarried out of it in
the light of the new situation." (Emphasis added)
169 Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or
Canons About How Statutes are to be Construed, 3 Vand.L.Rev. 395, 400
(1950). The reasons for this position are grounded in the needs of government
to react to new conditions in society if it is to survive:
170 judicial function is regarded today as administrative as well as interpretative.
"(T)he
The court . . . must ask itself not only what the legislature means abstractly, or even
on the basis of legislative history, but also what it ought to mean in terms of the
needs and goals of our present day society. This approach is required by the
insuperable difficulties of readjusting old legislation by the legislative process and
by the fact that it is obviously impossible to secure an omniscient legislature."
171 Phelps, Factors Influencing Judges in Interpreting Statutes, 3 Vand.L.Rev. 456,
469 (1950).
172 In this spirit of the need to recognize new problems, specific Congressional
appropriations for a departmental activity often are interpreted as ratification of
that activity. Fleming v. Mohawk Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 1132,

91 L.Ed. 1375 (1947); Brooks v. Dewar, 313 U.S. 354, 361, 61 S.Ct. 979, 982,
85 L.Ed. 1399 (1941); Isbrandtsen-Moller Co. v. United States, 300 U.S. 139,
147, 57 S.Ct. 407, 411, 81 L.Ed. 562 (1937); HoltzmanV. Schlesinger, 484
F.2d 1307, 1313 (2d Cir. 1973), Cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40
L.Ed.2d 286 (1974); Orlando v. Laird, 443 F.2d 1039, 1042-43 (2d Cir.), Cert.
denied, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971).
173 Of course, appropriation bills tend to become laden with many amendments, in
the process of legislative compromise, that Congress would not necessarily
validate if dealt with separately. But the facts here show not a last-minute
amendment, but a highly-publicized government effort, examined in detail by
the relevant committees, and approved annually since 1967.
174 It is apparent, then, that the 1906 language must be interpreted against its
historical background as well as the more recent needs expressed by both
Congress and the President for a sustained attack against organized crime, of
wide publicity given to Strike Force efforts, and of repeated Congressional
approval of Strike Force appropriations. Yet, in moving beyond the confines of
literal statutory language and of legislative history, courts must proceed
cautiously for fear of overreaching their traditional role, particularly where
statutes may be dangerously expanded to encroach on individual liberties. In
the instant case, the dangers are reduced because legislative knowledge and
approval of the purpose and need for which the interpretation is sought is not in
the least equivocal.
175 While Congress may not have specifically condoned broad grants of authority
to particular special attorneys of the Justice Department's Strike Force, it
authorized the Department to undertake a wide-ranging and effective attack on
organized crime, of which the broad commission letters were an integral aspect.
Congress is nothing if not pragmatic. It was aware that organized crime is said
to be like a chameleon. It would hardly have faulted the Attorney General for
failing to list the crimes to be prosecuted when the task would require
specification of almost every crime in Title 18 and almost every color of the
spectrum of criminal conduct. Nor would it have expected that the names of
prospective targets be announced; often they are not revealed until after the
work in a grand jury is well under way. Some degree of secrecy and surprise is
required before indictment. Specificity must be construed in a practical context.
176 While a reading more favorable to the government is possible, for purposes of
this case we prefer to adopt a more conservative interpretation, namely, that an
officer or other full-time employee of the Department of Justice must be
"specifically directed" to conduct grand jury proceedings if he is not a United

States Attorney or an Assistant United States Attorney. We hold that such a

specific direction to an attorney regularly employed on a full-time basis by the
Department of Justice need not be embodied in a single written authorization,
but may be implied from other writings, guidelines, practices and oral
directions transmitted through a chain of command within the
Department. VI. INAPPLICABILITY OF RULES OF CRIMINAL
177
PROCEDURE LIMITING APPEARANCE BEFORE GRAND JURIES
178
Nothing contrary to this interpretation of the relevant statutes is found in the
179 Federal Rules of Criminal Procedure. The persons who may appear before a
grand jury include "(a)ttorneys for the government." Rule 6(d).
Fed.R.Crim.Pro. Rule 54(c) of the Federal Rules of Criminal Procedure defines
those persons as including:
180 Attorney General, An authorized assistant of the Attorney General, a United
"the
States Attorney, an authorized assistant of a United States Attorney . . . ." (Emphasis
added.)
181 The original Advisory Committee Notes to Rules 6(d) and 54(c) indicate that
the rules are to be read in accord with existing statutes, including 28 U.S.C.
515(a) (codified before 1966 at 5 U.S.C. 310). See West, 18 U.S.C.A. annot.
to Rule 6 at 234 (1969). Our interpretation of Section 515(a) thus controls
Rules 6(d) and 54(c).
182 This result accords with current views of the role of the grand jury. Even were
Rosenthal soundly decided in 1903 on the theory that the sanctity of the grand
jury should be protected against persons other than United States Attorneys and
their assistants, its conceptual approach has been seriously eroded in the
interim. Cf. I C. A. Wright, Federal Practice and Procedure 106, 109 (1969).
The reasons behind the requirement of secrecy in the grand jury have been
summarized as follows:
183 To prevent the escape of those whose indictment may be contemplated; (2) to
"(1)
insure the utmost freedom to the grand jury in its deliberations . . . ; (3) to prevent
subornation of perjury or tampering with the witnesses who may testify before the
grand jury and later appear at the trial of those indicted by it; (4) to encourage free
and untrammeled disclosures by persons who have information with respect to the
commission of crimes; (5) to protect the innocent accused who are exonerated from
disclosure of the fact that he has been under investigation . . . ."
184 United States V. Amazon Industrial Chemical Corp., 55 F.2d 254, 261

184 United States V. Amazon Industrial Chemical Corp., 55 F.2d 254, 261
(D.C.Md.1931). See also, e. g., United States V. Procter and Gamble Co., 356
U.S. 677, 681, n. 6, 78 S.Ct. 983, 986 n. 6, 2 L.Ed.2d 1077 (1958). None of
these reasons have any applicability to the case before us.
185
VII. POWER OF ASSISTANT ATTORNEY GENERAL TO
EXERCISE AUTHORITY OF ATTORNEY GENERAL
186 The contention that the Attorney General could not delegate his power to
assign government attorneys to the grand jury to the Assistant Attorney General
in charge of the Criminal Division is without basis. Section 510 of Title 28
permits the Attorney General to delegate any of his functions to "any other
officer" of the Department of Justice. By regulation, 28 C.F.R. 0.55 and
0.60, the Attorney General delegated his power to designate attorneys to
present evidence to grand juries in all cases "assigned to, conducted, handled,
or supervised by the Assistant Attorney General in charge of the Criminal
Division" to that Assistant Attorney General. This includes prosecution of all
federal crimes not otherwise specifically assigned and the coordination of
enforcement activities against organized crime and racketeering. See May V.
United States, 236 F. 495, 499 (8th Cir. 1916); United States v. Twining, 132 F.
129, 130 (D.N.J.1904). Contrary to appellant's contention, apart from 28 C.F.R.
0.60, which gives the Assistant Attorney General specific power to designate
attorneys to appear before grand juries, the general authority given to him
under 28 C.F.R. 0.55 to prosecute all federal crimes embraces the power to
assign attorneys to the grand jury.
187 As Judge Werker concluded in United States V. Crispino, 392 F.Supp. at 764
(S.D.N.Y.1975), a case involving the Strike Force:
188
"(P)ower
to appoint Special Attorneys was properly delegated to Mr. Petersen (The
Assistant Attorney General in charge of the Criminal Division). This is not a case of
improper delegation as was found in United States V. Giordano, 416 U.S. 505 (94
S.Ct. 1820, 40 L.Ed.2d 341) (1974). That case involved a question of delegation of
power to authorize wiretaps under Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. 2510-2520. Section 2516(1) of that act allows the
Attorney General or any Assistant Attorney General to authorize the application.
The official who authorized the wiretap in Giordano was in fact the Executive
Assistant to the Attorney General. The Court concluded that despite the broad
delegation provision in 28 U.S.C. 510, Congress in enacting 2516(1) 'intended to
limit the power to authorize wiretap applications by the Attorney General himself
and to any Assistant Attorney General he might designate.' 416 U.S. at 514 (94 S.Ct.

1826). In enacting section 515(a) . . . there was no limitation imposed on the

Attorney General's ability to delegate his power of appointment of Special Attorneys
to other officers of the Department of Justice such as Mr. Petersen." (Footnote
omitted.)
189 Nor is it necessary, as appellant argues, that the letters of appointment contain a
statement that the assignment of a particular attorney is at the direction of the
Deputy Attorney General. The regulations give the Assistant Attorney General
power to act, without first receiving approval from the Deputy Attorney
General.
VIII. CONCLUSION
190 The underlying fear is not of a broad commission but of an uncontrolled
prosecution force. Most of us share with the nation's founders a concern that on
occasion institutions will expand too far and abuse the powers granted to them.
The potential abuses by a local United States Attorney are hardly comparable
to those of a national prosecution machine. While federal use of centralized
criminal prosecutorial powers has been rare, the dangers are sufficient to give
us pause before sanctioning its expansion. But the commission we have before
us presents this problem only obliquely. There is no occasion for courts to
check an abuse of power here for there is none. No statute prevents central
control of Strike Forces prosecuting organized crime. In view of the net of
bureaucratic controls already binding the Strike Force, we face only a problem
of the form of paperwork involved in assigning Strike Force attorneys. That
work was, when the bureaucratic limits and guidelines governing this Strike
Force attorney are read into his commission, sufficiently precise to meet the
Congressional mandate of a specific direction required by 28 U.S.C. 515(a).
191 The decision of the court below holding appellant in contempt must be
affirmed. The Department of Justice Organized Crime Strike Force attorney
was lawfully authorized to appear before the grand jury that called appellant.
The government sufficiently rebutted the suggestion that unlawful electronic
surveillance may have occurred.
192 Affirmed.
APPENDIX
OFFICE OF THE ATTORNEY GENERAL
WASHINGTON, D.C.
193

ORDER No. 431-70

194
ESTABLISHING
GUIDELINES GOVERNING INTERRELATIONSHIPS
BETWEEN
STRIKE FORCES AND UNITED STATES ATTORNEYS' OFFICES
195
196 By virtue of the authority vested in me by Sections 509 and 510 and Chapter 35
of Title 28 and Section 301 of Title 5 of the United States Code, I hereby direct
that:
197 The appended "Guidelines Governing Interrelationships Between Strike Forces
and United States Attorneys' Offices" shall henceforth govern the
interrelationships between the Strike Forces operating under the Organized
Crime and Racketeering Section of the Criminal Division and the Offices of the
United States Attorneys for the districts in which such Strike Forces are
located.
Dated: 4/20/70 GUIDELINES GOVERNING INTER- RELATIONSHIPS
198
BETWEEN STRIKE FORCES AND UNITED STATES ATTORNEYS' OFFICES
199
I. Purpose
200 Organized crime is a serious national problem requiring a special concentration
and coordination of Federal investigative and prosecutive activities in
geographic areas where the problem is most severe. In such areas, direction of
the Federal efforts against organized crime is assigned to Strike Forces
operating under the Organized Crime and Racketeering Section of the Criminal
Division of the Department of Justice. These guidelines are designed to clarify
the division of responsibilities and to govern the interrelationship between the
Strike Forces and the United States Attorneys' offices. Since it is extremely
important that the Government present a unified front against organized crime,
the existence and importance of this division of responsibilities and the
necessity of complete cooperation must be recognized by all personnel in both
the Strike Forces and the United States Attorneys' offices.
III. General Responsibilities
201 The Strike Force assigned to a particular geographic area by the Organized
Crime and Racketeering Section of the Criminal Division of the Department of
Justice shall be responsible for supervising all Federal investigations of

organized crime matters within such area, and for coordinating such
investigations with state and local efforts against organized crime. The Chief of
the Strike Force and the United States Attorney in such area shall have the
responsibility of keeping each other fully advised of all organized criminal
matters in progress. Where the area assigned to the Strike Force encompasses
more than one judicial district, the Chief of the Strike Force shall work under
these guidelines with each United States Attorney having jurisdiction of a
portion of such assigned area.
IV. Personnel
202 The Strike Force shall remain for all administrative and personnel purposes
within the Organized Crime and Racketeering Section of the Criminal Division
of the Department of Justice and the United States Attorneys' Office for all
administrative and personnel purposes shall remain as now constituted. An
attorney shall be appointed as Chief of each Strike Force by the Assistant
Attorney General in charge of the Criminal Division with the advice of the
United States Attorney of the district where the Strike Force is located.
V. Investigative Matters
203 The Federal investigative agencies operating within the judicial district shall
submit to the United States Attorney all cases concerning violations of Federal
law except those concerning an organized crime subject or activity. Where a
case clearly concerns an organized crime subject or activity, the investigative
agency, including the Tax Division of the Department of Justice,* shall submit
the matter in the first instance to the Strike Force. In the event that either the
United States Attorney's Office or the Strike Force receives an investigative
report of a matter of primary concern to the other, a prompt referral shall be
made so that the case may proceed without delay.
204 In the case of a difference of opinion between the United States Attorney and
the Chief of the Strike Force as to the assignment of an investigative matter, the
United States Attorney shall make the initial assignment, but the Chief of the
Strike Force may refer the matter to the Criminal Division of the Department of
Justice which will review the decision of the United States Attorney and
thereafter make a determination which shall be final. All concerned
investigative agencies shall be advised of the assignment made with regard to
an investigative matter.
205 The chain of command for pre-indictment investigative efforts within the field
of organized crime shall be from the Attorney General to the Assistant Attorney

General, Criminal Division, to the Chief of the Strike Force, to the

investigatory personnel assigned to the Strike Force. Each United States
Attorney shall be kept fully advised of organized crime developments within
his district. When a specific investigation has progressed to the point where
there is to be a presentation for an indictment, the Chief of the Strike Force
shall then for this purpose operate under the direction of the United States
Attorney who shall oversee the judicial phase of the development of the case.
The matter shall be handled by attorneys assigned to the Strike Force unless the
Chief of the Strike Force requests assignment to the Assistant United States
Attorney. Where it is necessary in the judgment of the United States Attorney
for the Government to be represented by two or more attorneys, at least one
shall be a Strike Force attorney and one shall be an Assistant United States
Attorney.
206 Where practicable, arrest warrants and search warrants sought in connection
with a matter assigned to the Strike Force shall be sought with the concurrence
of the United States Attorney.
VI. Requests for Authorization for Electronic Surveillance Applications
207
208 Requests to the Criminal Division of the Department of Justice for
authorization to apply to a Court for an electronic surveillance order pursuant to
Chapter 119 of Title 18 of the United States Code (Title III of Public Law 90351, June 19, 1968), in the course of an investigation assigned to the Strike
Force, shall be made by the Chief of the Strike Force with the concurrence of
the United States Attorney. If the United States Attorney concurs in the request
initiated by the Chief of the Strike Force, the request shall be forwarded to the
Criminal Division of the Department of Justice for a final decision as to
whether the request should be submitted to the Attorney General for his
approval. If the United States Attorney does not concur in the request of the
Chief of the Strike Force, he shall advise the Chief of the Strike Force of his
reasons for not concurring. The Chief of the Strike Force, upon receipt of the
United States Attorney's reasons for not concurring, may elect either to accede
to the views of the United States Attorney or to submit the question to the
Criminal Division which shall review the matter and make a final decision as to
whether the request should be submitted to the Attorney General for his
approval.
209 A Strike Force attorney whose request for an electronic surveillance application
has been approved by the Attorney General shall be authorized to present the
application to the appropriate court. The Strike Force attorney shall advise the
United States Attorney when the application will be presented to the court in

order that the United States Attorney may be present if he so desires.

VII. Authorizations to Proceed with Prosecutions
210
211 Where the Chief of the Strike Force concludes that indictment is warranted on a
matter assigned to the Strike Force, he shall set forth his recommendation in a
prosecution memorandum to the United States Attorney. If the United States
Attorney agrees with the recommendation, the matter shall be submitted to the
Criminal Division of the Department of Justice for review prior to indictment.
If the United States Attorney disagrees with the recommendation, he shall
advise the Chief of the Strike Force of his reasons for disagreement. The Chief
of the Strike Force, upon receipt of the United States Attorney's reasons for
disagreement, may elect either to accede to the views of the United States
Attorney or to submit the question to the Criminal Division of the Department
of Justice which shall review the matter and make a determination which shall
be final.
212 All indictments and informations shall be signed by the United States Attorney.
213 After indictment, any reduction of charges or other negotiated concessions to a
defendant in an organized crime case must be approved by the Assistant
Attorney General, Criminal Division.
VIII. Litigation
214 The chain of command in all litigation shall be from the Attorney General to
the Assistant Attorney General, Criminal Division, to the United States
Attorney, to the Chief of the Strike Force. The United States Attorney's
responsibility in this area is personal and is not to be delegated to anyone other
than the Strike Force Chief. The composition and duties of the litigation team
shall be the joint responsibility of the United States Attorney and the Chief of
the Strike Force.
215 All Strike Force attorneys shall be appointed as Special Attorneys by the
Deputy Attorney General, as provided by 28 U.S.C. (s) 543 and regulations
issued pursuant thereto, and shall be accorded all the rights and privileges
provided in the letters of authorization issued by the Deputy Attorney General
of the United States.
216 The United States Attorney shall compile, supervise, and dispose of all court
calendar listings of Strike Force cases, including hearings, arraignments, trials,

sentences, arguments, convenings of the grand jury, and any special

proceedings or hearings otherwise directed by the court. The United States
Attorney shall consult with the Chief of the Strike Force for the purpose of
assigning appropriate priority in the scheduling of such Strike Force cases as
are mutually agreed upon between them.
217 In all Strike Force cases, documents which are to be filed with a clerk of a
court, with a court, or with a United States Magistrate or Commissioner
including subpoenas, briefs, motions, legal memoranda, points for charge,
stipulations, and petitions shall be signed by both the United States Attorney
and a Strike Force attorney in the following manner:IX. Files and Exhibits
218 The principal files and exhibits involving Strike Force matters shall be
maintained by the Strike Force in its offices. The function of maintaining
traditional status cards, mark-sense cards, and cards on organized crime cases,
shall remain with the United States Attorney. The United States Attorney and
the Chief of the Strike Force shall adopt appropriate administrative procedures
to maintain records of organized crime matters in keeping with normal
Department of Justice practices applicable to matters other than organized
crime matters.
X. Sentence Recommendations
219 If the Chief of a Strike Force believes that a recommendation should be made to
a court in regard to a sentence for an organized crime offender, he shall submit
his views in a memorandum to the United States Attorney. If the United States
Attorney disagrees with those views, he shall advise the Chief of the Strike
Force of his reasons for disagreement. The Chief of the Strike Force, upon
receipt of the United States Attorney's reasons for disagreement, may elect
either to accede to the views of the United States Attorney or to submit the
question to the Criminal Division of the Department of Justice which shall
review the matter and make a determination which shall be final.
XI. Publicity Releases and Public Statements
220 Because the efforts against organized crime are national in scope and require
national support, and because premature publicity releases or public statements
can severely damage enforcement efforts, all publicity releases and public
statements on the subject of organized crime by persons assigned to the Strike
Force shall first be submitted for clearance to the Office of Public Information
of the Department of Justice and shall in all respects conform to the
requirements of 28 C.F.R. 50.2. In these matters, as in other matters involving

public relations, the United States Attorney shall act as the principal
representative of the Department of Justice in his district, and publicity releases
authorized by the Office of Public Information to be issued locally shall
generally be issued in the name of the United States Attorney. The Office of
Public Information is directed to make special effort to give appropriate credit
in approved releases to the individuals or agencies involved, and to conduct its
duties in such a way as to build maximum public support for the entire
organized crime effort.
XII. Supplementary Guidelines
221 Supplementary guidelines which are not inconsistent with those contained
herein may be adopted in any district upon the mutual agreement of the Chief
of the Strike Force and the United States Attorney.

Jack B. Weinstein of the United States District Court for the Eastern District of
New York, sitting by designation

Supervisory jurisdiction of such cases will remain in the Tax Division