United States v. Prueitt

Dissent — Hufstedler

HUFSTEDLER, Circuit Judge (dissenting):

Except for Petersen’s appeal, this case should be remanded to the district court for the purpose of conducting an evidentiary hearing to answer these questions: (1) Did Deputy Attorney General Kleindienst sign the letter purporting to authorize Mr. Brannigan to present this case to the grand jury? (2) Did the Attorney General, or a person to whom he properly delegated authority, impose upon Mr. Brannigan’s appointment the specific directions that are *1007required by 28 U.S.C. § 515(a)? Appellants, other than Petersen, tried to ascertain the answers to these questions by moving for a bill of particulars,1 and also moved to dismiss the indictment. Petersen has not attacked the indictment.

The district court abused its discretion in denying appellants’ Rule 7(f) motion. The requested information was crucial to the appellants’ attack on the validity of the indictment, and no justification existed for denying access to the information that the appellants sought. I agree with Judge Oliver’s conclusion in United States v. Williams (W.D.Mo.1974) 65 F.R.D. 422, that a Rule 7(f) motion is the appropriate procedural vehicle for obtaining this information and with his observation that “if the power vested in the Attorney General by . Section 515(a), (1) has not been properly exercised by the Attorney General in regard particularly to [Mr. Brannigan], or (2) if that statute, properly construed, is not broad enough to authorize the action which the Attorney General has, in fact, attempted to take pursuant to its authority, either possibility should be recognized and determined at the earliest possible moment so that any administrative defects in regard to the Attorney General’s present method of special appointment and specific direction of Special Attorneys be corrected or that additional congressional authorization be sought and obtained under the circumstances. [footnote omitted]” (65 F.R.D. at 428.)

On appeal, the Government defends the denial of the motions on the grounds that they “clearly sought a freewheeling fishing expedition through Government files in the outside hope that they might turn up some irregularity,” and, in any event, appellants suffered no prejudice from the denial. Both arguments are frivolous. Appellants had a license to fish, if any fishing were involved. The questioned letter bore no indicia of authenticity. Deputy Attorney General Kleindienst’s name was affixed by a rubber stamp. The appellants were entitled to know who stamped the letter and by what authority. The letter was dated some three years before this indictment was returned. If this letter was not authentic or was not issued pursuant to statutory authority, the indictment was void. The appellants were prejudiced by the denial of their motions by being thwarted from discovering the evidence that might have proved that the indictment was void.

*1008Even if it had been proved that Deputy Attorney General Kleindienst himself stamped his name on the letter, or authorized another to do so, the letter does not contain within it the specific directions that Section 515(a) requires. The letter purports to authorize Mr. Brannigan indefinitely to conduct all kinds of criminal proceedings throughout the country, specifically including certain drug abuse offenses in the Southern District of California. Although Section 515(a) should not be given a cramped reading, neither should it be read as permitting Attorneys General to appoint roving Special Attorneys unmoored from the direct command of the Department of Justice, from any United States Attorney in his district, or from a Strike Force that is itself circumscribed by detailed guidelines and regulations.

The appointment letter contains no specific directions nor restrictions on Mr. Brannigan’s authority. In this case, unlike In re Grand Jury Subpoena of Persico (2d Cir. 1975) 522 F.2d 41, the special prosecutor was not a Strike Force member. Nothing in this record, in contrast to Pérsico, suggests that Mr. Brannigan’s letter authority is limited in any way by “other writings, guidelines, practices and oral directions transmitted through a chain of command within the [Justice] Department.” (522 F.2d at 66.) If, on remand, evidence was produced showing that specific directions and restrictions were imposed on Mr. Brannigan’s authority as they were on the Strike Force lawyers in Pérsico, the requirements of Section 515(a) would be met, and the indictment would be immune from attack. If those directions and restrictions are not thus evidenced, the authorization fails under Section 515(a) and brings down the indictment as well.2 Compliance with the specifications of Section 515(a) cannot be brushed aside as an idle formality. Congress was aware of fears of an uncontrolled federal prosecution force. The history of Section 515(a) demonstrates that “Congress did not wish to see the traditional primary role of the local district [now United States] attorney before the grand jury reduced unless there was some special reason made explicit by the Attorney General.” (In re Subpoena of Pérsico, supra, 522 F.2d at 60.) Nor can the appearance of an unauthorized person before a grand jury be dismissed as a technicality. The authority to present cases to a federal grand jury carries with it solemn responsibilities both to the public and to persons who may be brought before it. The process can result in an indictment that throws the might of the Government against the individual, be he innocent or guilty. The conduct of the process is secret. Secrecy is designed to protect the process itself as well as to protect witnesses and the innocent accused. (United States v. Procter & Gamble Co. (1958) 356 U.S. 677, 681 & n. 6, 78 S.Ct. 983, 2 L.Ed.2d 1077.) The presence of an unauthorized person before the grand jury impairs secrecy. Because grand jury proceedings can be used to intimidate as well as to protect, their conduct is hedged with restrictions. One of those important restrictions is the requirement that only authorized persons are permitted to present cases to a grand jury. It is immaterial that a person who was indicted by a grand jury tainted by the presence of an unauthorized prosecutor would also have been indicted by the same grand jury free from that taint. The taint blights the process itself, and thus diminishes regard for the administration of justice. We can no more disregard this infirmity than we could dismiss as harmless an adjudication by a judge who was statutorily disqualified from hearing a case. In both instances, the stake is the integrity of the administration of justice, and the existence of prejudice to a defendant is irrelevant.

In addition to the indictment questions, I must reach the question whether the *1009searches and seizures involving the station-wagon and the aircraft are legal because these issues are raised by Petersen. I have no occasion to discuss the remaining issues because they should abide the outcome of the evidentiary hearing on remand.

Contrary to the majority opinion, Petersen had automatic standing to challenge the validity of the searches under Brown v. United States (1973) 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208. Among the counts of the indictment against him, was a charge of possession of marihuana with intent to distribute it; he was thus “charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.” (Brown v. United States, supra, 411 U.S. at 229, 93 S.Ct. at 1569.)

The majority interprets “charged” to mean “convicted.” That reading makes no sense as a matter of English or as a matter of law. Petersen’s standing to make his pretrial motion to suppress was patent. United States v. Boston (9th Cir. 1975) 510 F.2d 35, from which the majority quotes, speaks against the idea that standing at the time of the motion to suppress can be affected by later events at trial. “[T]ruth as it emerges from trial cannot reach backward to confer standing to move to suppress. Rather it is the showing made by the defendant at the time he moves to suppress that counts.” (Id. at 38.) The majority does not try to explain why “truth” cannot reach backwards to confer standing, but it can reach backwards to undo standing. I am unable to supply any explanation.

Jones v. United States (1960) 362 U.S. 257, 264, 80 S.Ct. 725, 733, 4 L.Ed.2d 697, teaches that standing based on the offense “charged” is determined by the face of the indictment: “In cases where the indictment itself charges possession, the defendant in a very real sense is revealed as a ‘person aggrieved by an unlawful search and seizure’ upon a motion to suppress evidence prior to trial.” Moreover, if standing is predicated upon one count of the indictment that charges an offense that contains possession as an ingredient, the defendant’s automatic standing permeates the remaining counts based on similar facts, even if none of them has a possession element. As the Court said in Jones: “[T]he Government should choose between opposing a motion to suppress made before trial [on standing grounds] and basing the case upon possession . . . .” (Id. at 265, n. 1, 80 S.Ct. at 733.) The Jones decision reversed the conviction on both the possessory and non-possessory counts.

Our holding in United States v. Boston, supra, 510 F.2d 35, that automatic standing permits the defendant to challenge only the possessory counts is wrong, based as it is on a misreading of both Jones and Brown v. United States, supra, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.3 However, Boston, right or wrong, does not support the majority’s singular conclusion that an acquittal on the possession count altogether foreclosed Petersen’s automatic standing.

Petersen’s motion to suppress should have been granted because the search of the stationwagon was not supported by probable cause in that the corroboration of the reliability of the tip, especially concerning the stationwagon, was inadequate. (Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguillar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.) The tip was very detailed about the aircraft involved, but the information given about the ground vehicles to be used was not only vague, it also did not match this stationwagon. The tip said the vehicle would be a “camper type.” No vehicle registrations, license numbers, or other physical description was given. The agents were unable to tell whether this station-wagon was one of the vehicles seen on the airstrip from the air the day before or earlier that day. The agents failed to cor*1010robórate any of the ground activity that the tip predicted, which was the only part of the tip that clearly suggested illicit activity. In short, the corroboration failed to meet the Aguillar test.4 The agents had enough information to found a suspicion to stop the vehicle, but insufficient basis to form probable cause to search it. No information developed after the stop to justify the search that followed immediately.

Without the fruit of the stationwagon search, no probable cause existed to sustain the search of the airplane. In absence of the evidence revealed by the illegal searches and seizures, the evidence was insufficient to convict Petersen.

I would remand the cases of all defendants other than Petersen for further proceedings consistent with the views herein expressed, and I would reverse Petersen’s conviction and remand for a new trial.

. In pertinent part, Prueitt and Hong’s motion said:

“With respect to Counts 1, 2 and 3 in the Indictment, state:

(a) If JAMES W. BRANNIGAN, JR„ Attorney, Department of Justice, has been specially appointed with regard to the instant matter pursuant to Title 28, U.S.C. § 515(a), state the following:

(1) The location of any document or documents evidencing such special appointment;

(2) The identity of the person who signed such special appointment;

(3) The date upon which such special appointment was signed;

(4) The district or districts to which such special appointment applied.

(b) If JAMES W. BRANNIGAN, JR., has received special directions with regard to the instant investigation or prosecution pursuant to Title 28, United States Code, § 515(a), state the following:

(1) The location of any document or documents evidencing such special directions;

(2) The specific directions included within such documents contained in (1) above.

(3) The offenses to which such special direction apply.

(4) The defendants to which such special directions apply.

(5) The identity of the person who signed such special direction.

(6) The date upon which such special direction was signed.

(7) The location at which such special direction was signed.

(8) The district or districts to which such special direction applied.

(c) If JAMES W. BRANNIGAN, JR., has been specially appointed or specially directed, or either of them, pursuant to Title 28 U.S.C. § 515(a), and if the person signing such special appointment or special direction is some person other than the Attorney General of the United States, state the following:

(1) Whether such person has been specifically delegated by the Attorney General to act pursuant to Title 28 U.S.C. § 515(a).

(2) The date that such delegation occurred.

(3) The manner in which such delegation was effected.

(4) The identity of any document or documents evidencing such delegation.

(5) The authority pursuant to which such delegation was effected.”

. The record does not support the majority opinion’s conclusion that Mr. Brannigan’s duties were “similar to a Strike Force attorney.” The record is silent on this point. But even if his duties were identical to those of Strike Force lawyers, his situation cannot be equated to Strike Force lawyers, unless, like them, Mr. Brannigan’s authority was limited by guidelines and regulations of the Department of Justice.

. None of the cases cited by the majority sustains this search. United States v. Patterson (9th Cir. 1974) 492 F.2d 995 did not involve any informants. In United States v. Archuleta (9th Cir. 1971) 446 F.2d 518, all the details were corroborated. In United States v. Smith (9th Cir. 1974) 503 F.2d 1037, border agents had detained the defendant earlier in the day and had verified the fact that the telephone number then found in the defendant’s pocket belonged to a major narcotics dealer. A detailed tip later given simply added the final touch for probable cause. In Gilbert v. United States (9.th Cir. 1966) 366 F.2d 923, the defendant did “not seriously contest” probable cause to arrest him based on a host of observations of his conduct together with a detailed tip identifying him as a bank robber. Instead, he argued that he had been arrested earlier, without probable cause, when he had been briefly detained earlier. We held that the earlier encounters were not arrests.

. Brown is limited to the situation in which none of the counts charged an offense with a possessory ingredient.