Petition — Wall v. United States

— Court, U. US bi

fh ILED

78-1302 |

No. 3 ~~ 1979

———__—_—

LBWHAR fi R., CLERK |

In the

Supreme Cowt of the United States

Octroser Term, 1978

JOHN F. WALL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

EDWARD J. CALIHAN, JR.

ANNA R. LAVIN

53 W. Jackson Boulevard

Chicago, Illinois 60604

Attorneys for Petitioner

Joun F. Wath

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX

PAGE

en cn Gee Gs eee a... 2

REE: A SARS ee maare nil ioe

Questions Presented For Review ..0000....002......00-..0--.-- 2

Constitutional and Statutory Provisions and Regula-

Neen ic cnastetemnceemecomneen 3

Statement of the Case ....................... oe |

Reasons For Granting The Writ ~......2002220.... eee 14

Conclusion . SS ES Se a 22

Appendices :

Appendix A—Opinion of the United States Court

of Appeals . nail iieadaitnsbnineenncsniiscondonmen App. 1

Appendix B—Order denying Petition for

Rehearing ..... 00 ES App. 10

AUTHORITIES CITED

Cases

Aetna Life Insurance Co. v. Haworth, 300 U.S. 227

SS LALA 12

LS LI 21

DeFunis v. Odegaard, 416 U.S. 312 (1974) ~.....00...- 12

In re DiBella, 499 F.2d 1175 (2 Cir. 1974) 0... 15

In re Grand Jury Proceedings, 563 F.2d 577 (3 Cir.,

ELSE 20

i

PAGE

Kilbourn v. Thompson, 103 U.S. 168 (1881) 2.000000... 20, 21

United States v. Brewster, 408 U.S. 501 (1971) ....... 20-21

United States v. Concentrated Export Association,

mas, See Ue. TOP CRD | ickiteee 12

United States v. Craig, 528 F.2d 773 (7 Cir., 1976),

oare.. Gem, GBB UB. DEB CHV GD: vccsnccsectbaw costars 20

United States v. Craig, 537 F.2d 957 (7 Cir., 1976), en

banc, cert. den. sub nom. Markert v. United States,

RD Wee UND ccvnkcsentidiien steniacuinscicaenan nhac isuadieeaiias 10, 20

United States v. DiCarlo, 565 F.2d 802 (1 Cir., 1977),

enrt, Gat, OB- BG: Ge nde 20

United States ex rel. Accardi v. Shaughnessy, 347 U.S.

DUN cidticiciseiinlics hinsiblaeapadeaanticeetina a ea rae a 16

United States v. Gillock, 587 F.2d 284 (6 Cir., 1978) .... 20

United States v. Giordano, 416 U.S. 505 0... 14, 15, 16

United States v. Yanagita, 552 F.2d 940 (2 Cir., 1977) 15

Other Authorities

Article 6, Clause 2 of United States Constitution ....3, 21

Fifth Amendment to United States Constitution ....... 3, 21

eR Ty Ce Ae I eile iaiss-cctnisdnicntathlcgbadiaedhdoa 14, 15

SEE Ty Se ED Chlinc cs cnind eicccrcsciepooteiinnnaabaall 3, 7,9

Title 18, U.S.C. § 6008 ....................... 4, 12, 14, 15, 16, 18, 22

eee ee Ch OS GE Ste 9, 16

Title 18, U.S.C. § 6008(b) <n... 2, 9, 10, 15, 16, 17

TTI, SAE II cihtcdinstaeroncnhanca senna 8

EE SE RAIDS: SEAM ‘ahcevescncieshicibigsssetimnhedgadbicann eau ecaGaell 14, 15

iii

PAGE

se 4, 8, 15

Title 28, U.S.C. § 515(a) -.ssss-scccssccsscscseeeeeee 12

en 5,18

IR, cs cane 5, 8

i ne i a 5, 18

a ee eee 6,7

Oe ar i seeeeeeec6y 15

Sorte 16

nee ce 16

In the

Supreme Court of the United States

Ocroser TrRM, 1978

No.

JOHN F. WALL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

To The Honorable, The Chief Justice and Associate Jus-

tices of the Supreme Court of the United States:

Petitioner, John F. Wall, prays that a writ of certiorari

issue to review the opinion of the United States Court of

Appeals entered in this cause.

OPINION OF THE COURT BELOW

The Opinion of the United States Court of Appeals for

the Seventh Circuit affirming the validity of the order of

immunity directed to your Petitioner is not officially re-

ported, but is printed in the Appendix hereto (Appendix

A).

JURISDICTION

The Opinion of the United States Court of Appeals was

filed on January 9, 1979 (Appendix A). A Petition for

Re-Hearing timely made was denied on January 23, 1979

(Appendix B). This Petition is filed within the time period

directed by law. The jurisdiction of this Court is invoked

under Title 28 U.S.C. §1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Can the Attorney General appoint from his office

an attorney to make the ‘‘judgment’’ of possible necessity

to the public interest, when the making of that ‘‘judgment’’

is by Act of Congress (Title 18 U.S.C. §6003(b)) reposed in

the United States Attorney, subject to the approval of

the Attorney General?

2. When the Congress dictates two functions in two

separate offives, one to make a judgment, the other to re-

view and approve that judgment, does it defeat clear legis-

lative mandate to merge both functions into one office?

3. Do the principles of common law in light of reason

and experience dictate the recognition of a federal com-

mon law legislative privilege to be applied in federal pro-

ceedings involving elected State legislators?

3

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND REGULATIONS INVOLVED.

Article 6, Clause 2 of the Constitution provides:

‘“‘This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.”’

Amendment V to the Constitution provides in pertinent

part:

‘*No person shall... be deprived of life, liberty or

property, without due process of law;...

Title 18 U.S.C. §6002 provides:

‘*Whenever a witness refuses, on the basis of his

privilege against self-incrimination, to testify or pro-

vide other information in a proceeding before or an-

cillary to—

(1) acourt or grand jury of the United States,

(2) an agency of the United States, or

(3) either House of Congress, a joint commit-

tee of the two Houses, or a committee or a sub-

committee of either House,

and the person presiding over the proceeding com-

municates to the witness an order issued under this

part, the witness may not refuse to comply with the

order on the basis of his privilege against self-incrimi-

nation; but no testimony or other information com-

pelled under the order (or any information directly

or indirectly derived from such testimony or other

information) may be used against the witness in any

+

criminal case, except a prosecution for perjury, giving

a false statement, or otherwise failing to comply with

the order.’’

Title 18 U.S.C. §6003 provides:

(a) In the case of any individual who has been or

may be called to testify or provide other information

at any proceeding before or ancillary to a court of the

United States or a grand jury of the United States, the

United States district court for the judicial district

in which the proceeding is or may be held shall issue,

in accordance with subsection (¥) of this section, upon

the request of the United States attorney for such

district, an order requiring such individual to give

testimony or provide other information which he re-

fuses to give or provide on the basis of his privi-

lege against self-incrimination, such order to become

effective as provided in section 6002 of this part.

(b) A United States attorney may, with the ap-

proval of the Attorney General, the Deputy Attorney

General, or any designated Assistant Attorney Gen-

eral, request an order under subsection (a) of this

section when in his judgment—

(1) the testimony or other information from

such individual may be necessary to the public in-

terest; and

(2) such individual has refused or is likely to

refuse to testify or provide other information on

the basis of his privilege against self-incrimina-

tion.

Title 28 U.S.C. §515(a) provides:

(a) The Attorney General or any other officer of

the Department of Justice, or any attorney specially

appointed by the Attorney General under law, may,

when specifically directed by the Attorney General,

5

conduct any kind of legal proceeding, civil or criminal,

including grand jury proceedings and proceedings be-

fore committing magistrates, which United States at-

torneys are authorized by law to conduct, whether or

not he is a resident of the district in which the pro-

ceeding is brought.

Title 28 U.S.C. §543(a) provides:

‘‘(a) The Attorney General may appoint attorneys

to assist United States attorneys when the public in-

terest so requires.’’

Title 28 U.S.C. §541 provides,

‘‘(a) The President shall appoint, by and with the

advice and consent of the Senate, a United States at-

torney for each judicial district.

‘*(b) Each United States attorney shall be ap-

pointed for a term of four years. On the expiration

of his term, a United States attorney shall continue to

perform the duties of his office until his successor is

appointed and qualifies.

‘*(c) Each United States attorney is subject to re-

moval by the President.’’

Title 28 U.S.C. §545 provides:

‘‘(a) Each United States attorney and assistant

United States attorney shall reside in the district for

which he is appointed, except that these officers of the

District of Columbia and the Southern District of

New York may reside within 20 miles thereof.

‘‘(b) The Attorney General may determine the

official stations of United States attorneys and assis-

tant United States attorneys within the districts for

which they are appointed.’’

6

Title 28 U.S.C. §1826 provides:

‘*(a) Whenever a witness in any proceeding before

or ancillary to any court or grand jury of the United

States refuses without just cause shown to comply

with an order of the court to testify or provide other

information, including any book, paper, document,

record, recording or other material, the court, upon

such refusal, or when such refusal is duly brought to

its attention, may summavily order his confinement at

a suitable place until such time as the witness is will-

ing to give such testimony or provide such information.

No period of such confinement shall exceed the life of—

**(1) the court proceeding, or

‘*(2) the term of the grand jury, including ex-

tensions,

before which such refusal to comply with the court or-

der occurred, but in no event shall such confinement

exceed eighteen months.

‘*(b) No person confined pursuant to subsection

(a) of this section shall be admitted to bail pending the

determination of an appeal taken by him from the or-

der for his confinement if it appears that the appeal is

frivolous or taken for delay. Any appeal from an

order of confinement under this section shall be dis-

posed of as soon as practicable, but not later than

thirty days from the filing of such appeal.’’

28 CFR §0.131 provides:

‘*Kach U.S. Attorney is authorized to designate any

Assistant U.S. Attorney in his office to perform the

functions and duties of the U.S. Attorney during his

absence from office, and to sign all necessary documents

and papers as Acting U.S. Attorney while performing

such functions and duties.’’

STATEMENT OF THE CASE

This case comes from the United States Court of Ap-

peals for the Seventh’Circuit on expedited appeal as man-

dated by Title 28, U.S.C. $1826, having begun by the filing

of a Petition on November 3, 1978, for an Order Granting

Petitioner Immunity pursuant to Title 18 U.S.C. §6002.

The salient factors leading to affirmance occurred prior

to the Petitioner being subpoenaed as a witness. We have

attempted to set them forth chronologically hereinafter.

The Special September 1978 Grand Jury (II) for the

Northern District of Illinois is, among other things, en-

gaged in an on-going investigation of legislation considered

by the General Assembly of the State of Illinois in connec-

tion with currency exchanges operating within the State.

The present United States Attorney for that District is

one Thomas Sullivan. It has been represented in this pro-

ceeding, and your Petitioner accepts the representation,

that Mr. Sullivan, prior to his appointment, acted as at-

torney for some form of confederation of currency ex-

change operators. We are awa.e that this is somewhat

vague, but it represents all detail of which we are apprised.

Whether Mr. Sullivan’s representation took him into con-

tact with members of the General Assembly through lobby-

ing, or otherwise, we do not know. Whatever the repre-

sentation entailed, Mr. Sullivan deemed it sufficient to him-

self that his conducting the Grand Jury investigation was

inappropriate or unwise. He recused himself, and all his

assistants, from activity in this area.

1The Seventh Circuit decision reflects that Mr. Sullivan deter-

mined to recuse “on grounds of conflicting interests”. (Appendix A,

p. 2) We accept that on faith. But the opinion continues later

(footnote continued )

8

In apparent response to this withdrawal by Mr. Sulli-

van, a certain Mr. Keuch, an acting Assistant Attorney

General, purporting to act on behalf of a Mr. Benjamin

Civiletti, an Assistant Attorney General, addressed a com-

munication to one Thomas H. Henderson, who is described

by Mr. Keuch in the content of the letter ‘‘as an attorney

for the government employed full-time by the Department

of Justice and assigned to the Criminal Division . . .’’ pur-

porting to authorize and direct him to file informations and

to conduct legal proceedings which United States Attorneys

are authorized to conduct.’

Pursuing the investigation described above, Mr. Hender-

son, through his assistant, Mr. Kerr, caused a Grand Jury

subpoena to issue to the Petitioner, Mr. John F. Wall.

(footnote continued )

“Since the United States Attorney has recused himself from this

case however the witness concedes that the immunity request could

not be made by Thomas Sullivan”. (Appendix A, p. 5, fn. 4) No

such concession was ever made. While we do not think it an im-

portant factor, concessions should not be so casually attributed.

The law makes no provision for a United States Attorney’s recusal

(compare Title 28 U.S.C. §455), we find no occasion to do so, nor

to “concede” any propriety to abdication of his statutory duties.

* The trial court judge considered this appointment to be made

under the authority of Title 28 U.S.C. §543, which authorizes the

Attorney General to appoint Special Attorneys “to assist United

States Attorneys when the public interest so requests.” The Court

of Appeals for the Seventh Circuit found the source of appointment

in Title 28 U.S.C. §515(a), which allows an attorney specifically

appointed by the Attorney General and acting under specific direc-

tion to “conduct any kind of legal proceeding, civil or criminal, in-

cluding 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 proceedings is brought.” (Appendix A, p. 6)

9

Mr. Well was, for many years, an Illinois legislator and a

member—sometimes chairman—of the Committee charged

with consideration of laws regulating currency exchanges

within the State.

At some point, Mr. Henderson requested, purportedly

pursuant to the provisions of Title 18 U.S.C. §6003(b),

the Attorney General’s approval to make a request that the

Court grant Mr, Wall immunity.’

Mr. Civiletti, as a ‘‘designated Assistant Attorney Gen-

eral’’ (Title 18 U.S.C. $6003(b)) gave approval to the ‘‘re-

quest’’, and Mr. Henderson, again acting through his as-

sistant, Mr. Kerr, petitioned the District Court for an

order granting immunity under §6002. The petition, di-

rected toward satisfying the provisions of §6003(a) that

the order issue ‘‘upon the request of the United States At-

torney’’ for the Northern District of Illinois, incorporated

in his Petition:

‘*Tt is our judgment as Chief Public Integrity Sec-

tion, Department of Justice and Acting United States

Attorney for the Northern District of Illinois for this

investigation, No. 76 GJ 560 only, that the testimony

of JOHN F. WALL, in regard to the above-described

investigation before the Grand Jury is necessary in

the public interest, as is the production of books, pa-

pers or other evidence he may have in his possession

or control.’’ (Doc. 1) (Our emphasis)

% This request is not part of the record because of an indisposition

of the Public Integrity Section of the Department of Justice (of.

which Mr. Henderson is Chief) that matters and things set forth

therein are premature for, or improper to, divulgence. There is no

question, however, that Mr. Henderson made the “request” and

also made the determination that Mr. Wall’s testimony “inay be

necessary to the public interest” as required under §6003(b).

10

The immunity order issued subject to any later objec-

tions, the qualifications on issuance were due to practical

considerations not » rtinent here, in due course, at the

request of the Department of Justice, an Order to Show

Cause why the direction to Mr. Wall to testify and pro-

duce evidence should not be enforced issued, a procedure

also dictated by practical considerations not pertinent nor

a subject of contest.

The Return to The Rule put into issue the authority of

Mr. Henderson to make the determination of the possible

demands of the public interest and to make the ‘‘request”’

for the Attorney General’s approval under §6003(b), the

statutory conditions precedent to Petitioning for, and se-

curing, the immunity order from the Court. The Return

also invoked what it proposed as the common-law privilege

of State Legislators, customarily defined in constitutional

provisions respecting Speech and Debate.

As to the latter ground the trial court found itself bound

by the Seventh Circuit decision reported in United States

v. Craig, 537 F.2d 957 (1976), and on appeal the Seventh

Circuit, sub silentis, declined reconsideration of the Craig

decision.

On the former ground—the authority of Mr. Henderson,

the misgivings of the trial court were resolved on the basis

of official regularity.‘

*The Court: I am reluctant even to suggest that somewhere

along the way Congress might straighten this out. We are left

with a bit of confusion. It is difficult for you, it is difficult for

the United States and it is difficult for—

Miss Lavin: Mr. Wall.

The Court: —Mr. Wall. It may be that Mr. Wall would

say, “If Mr. Sullivan thinks that my testimony is necessary to

(footnote continued )

11

The Trial Court granted a stay of its order sufficient to

appeal and docket in the Court of Appeals and to make

request for a stay extension there. The Court of Appeals

denied repeated requests to extend the stay. Faced with

the threat of immediate incarceration, the Petitioner pro-

(footnote continued )

the public interest, I'll respect it, because he is the man ap-

pointed with the advice and consent of the Senate by the Presi-

dent of the United States. But I have no respect for, nor in-

terest nor belief in the intelligence of a Mr. Henderson, who is

just an attorney working for the government in Washington

who is hired as a full time attorney in the Criminal Division in

Washington, coming down here and exercising authority about

this community and the public interest that is circumscribed by

the community in which this is transpiring.”

United States Attorneys are from districts appointed by the

President in that they are to represent the thinking of the com-

munity, the community from which he, Mr. Wall, comes, and

that that should never be preempted by an underling in the

Department of Justice who comes in to Chicago by plane for the

first time in his life and asserts the authority of a presidential

appointee. So I can understand his standing on his—what is

it—on his dignity, too. So it is a question, but I think that I

have the obligation without further guidance to read the statutes

to leave the presumption of regularity, except where it clearly

has been shown that it is totally irregular, and I have tried to do

so by reading Sections 543 of Title 28 and 6003 of Title 18 in

such a manner as to cause the letter of April 27th, 1978 of Mr.—

Mr. Kerr: Henderson.

The Court: No, this is Robert L. Keuch, K-e-u-c-h—I am

sure he is a fine gentleman, but we here in the Northern Dis-

trict of Illinois have never heard of him—Mr. Keuch to Mr.

Henderson—sufficient authority to justify the grant of immunity

which apparently Mr. Keuch’s superior granted on the request

of Mr. Keuch that I grant immunity to Mr. Wall. So it is.

12

ceeded to testify as directed, and he continues his testi-

mony to this day, whenever, and as, he is directed so to do.°

The Court of Appeals found that 28 U.S.C. $515(a) did

authorize the immunity petition under 18 U.S.C. $6003 in

the circumstances of this case, continuing:

‘*Whether Section 515(a) should always be read to

authorize a special attorney to exercise the powers of

a United States Attorney under 18 U.S.C. § 6008 is a

question we need not reach. In most instances it may

be desirable, or perhaps even mandatory, for the United

States Attorney for the district, or his designate, to

participate in the section 6003 request. See In re Di-

Bella, 499 F.2d 1175, 1177-78 (2d Cir.), cert. denied,

419 U.S. 1032 (1974).

The factual circumstances of this case, however,

make it entirely appropriate to read section 515(a) as

conferring section 6003 authority on the special attor-

ney. Section 6003 will not be undermined by the con-

struction here because two facts demonstrate that in

this case, the special attorney should be considered

to be the United States Attorney named in Section

6003. First, this is a case of recusal. The statute

cannot be read to require the participation of a United

States Attorney who has conflicting interests. It is,

therefore, only reasonable to permit the individual

essentially acting in his capacity—the special attor-

ney—to exercise the immunity power. Certainly this

result is more consistent with the statutory purpose

5 The government made the argument on appeal that the case was

mooted by Petitioner’s electing testimony over the confinement altern-

ative. The Court, however, found “a substantial continuing contro-

versy” within the scope of this Court’s decisions in DeFunis v..

Odegaard, 416 U.S. 312, 317 (1974) ; Aetna Life Insurance Co. v.

Haworth, 300 U.S. 227, 240-41 (1937); United States v. Concen-

trated Export Association, Inc., 393 U.S. 199, 203 (1968). (Appen-

dix A, pp. 3-4).

13

than permitting the witness to evade testifying in light

of the conclusion reached by other courts that the

statutory requirements ‘were not intended to protect

witnesses but to minimize overuse of immunity grants.’

United States v. Yanagita, 552 F.2d 940, 947 (2d Cir.

1977). Cf. In re Tierney, 465 F.2d 806, 813 (5th Cir.

1972), cert. denied, 410 U.S. 914 (1973).’’ (Appendix

A, pp. 7-8)

This conclusion the Court of Appeals found buttressed

by a letter of the predecessor United States Attorney who

apparently® advised that a Department of Justice attorney

be assigned to oversee the investigation and be given final

authority ‘‘to make the necessary investigative and prose-

cutorial decisions. ...'’ (Appendix A, p. 8)

® This “letter” was never shown to Petitioner, nor his counsel.

So far as the content is concerned, we are apprised only so far as

they are quoted in the Court of Appeals opinion (Appendix A)

and only after the opinion was filed and published.

14

REASONS FOR GRANTING THE WRIT

We respectfully request this Court to grant its Writ of

Certiorari to review the judgment of the Court of Appeals

in this case on the following grounds:

1. This case presents a delegation by the Attorney Gen-

eral of the statutory authority of the United States Attor-

ney. It is in direct conflict with, and goes beyond in con-

flict, this Court’s decision in United States y, Giordano, 416

U.S. 505.

In Giordano, this Court was addressing a not dissimilar

statutory mandate from that involved here. Section 6003

requires a ‘‘request’’ by the United States Attorney for

approval by designated officials of the Attorney General’s

office (the Attorney General, the Deputy Attorney General

or a designated Assistant Attorney General) to apply for

an immunity order, ‘‘when in his [a United States At-

torney’s] judgment—(1) the testimony or other informa-

tion from such individual may be necessary to the public

interest; ...’’ Gtordano considered § 2516 of Title 18,

U.S.C. which allowed a United States Attorney to apply

for a wire-tap authorization only upon approval from the

Attorney General or his Assistant Attorney General desig-

nate. Apparently under the delegation authority in Title

28, U.S.C. § 510, the Attorney General delegated his au-

thorized approval power to his Executive Assistant. This

Court determined that such delegation effected a defeat

of the Congressional direction.

Here, under § 6003, the Congressional concern clearly

encompasses a concurrence by the Attorney General (or

15

his designated Assistant) and the United States Attorney

that a grant of immunity is desirable. (See In re DiBella,

499 F.2d 1175, 1177 (2 Cir. 1974)). Here we go beyond

Giordano. The Attorney General has delegated, not his

own authority, but that of the United States Attorney, a

delegation not even statutorily arguable.’

Any suggestion that the broad language of §515 (en-

acted in 1966) temporizes the specific designation of §6003

(enacted in 1970) was settled by this Court in Giordano,

where similar language as to the Attorney General’s ap-

proval was determined an exclusive mandate under Title

18 U.S.C. $2516, unrelieved by the Attorney General’s

power of delegation under Title 28 U.S.C. §510. Logic re-

pels any suggestion that the requirements designating the

author of the ‘‘request’’ for approval can be less exacting

than those of the approver.

The Court of Appeals proposes its result is justified be-

cause the purpose of the specificity of the statute was a

rein on the excesses of the executive, not the protection of

the witness (Appendix A, p. 8). The Petitioner-witness, it

concludes, is in no position to complain. It relies on two

cases.

The first was United States v. Yanagita, 552 F.2d 940,

947 (2 Cir., 1977) where the mode of designation of ‘‘any

designated Attorney General’’ (18 U.S.C. §6003(b)) by

7 We are aware of the regulatory authority of Mr. Sullivan to

delegate his authority to one of his assistants (28 C.F.R. §0.131).

Whether that regulatory power would prevail over the statutory im-

perative is not necessary to reach, since Mr. Sullivan made no dele-

gation. The letter of his predecessor, Mr. Skinner, is equally non-

compelling. No residual powers, or powers in perpetuity, exist in

the former office holder.

16

regulation (28 C.F.R. $§0.175, 0.133) was the issue, a ques-

tion certainly not present here. The second case concerned

a failure to follow intermural guidelines (Jn re Tierney,

405 F.2d 806, 813 (5 Cir., 1972), another issue not present

here, since we make our contentions strictly within the

mandate of the statute. These cases are no authority for

reliance.

The conclusion of the Court of Appeals that the Peti-

tioner-witness cannot be heard to complain defies realities.

It is the witness who is being stripped of several of the few

civil rights secured to him (the right of privacy and

against self-incrimination, and, if existent, the common-

law speech and debate privilege). There is no cogent rea-

soning nor authority behind the imperious statement that

the statutory provisions are not to protect the witness.

The same type of sophistic proposal was made in respect of

the wiretap in United States v. Giordano, 416 U.S. 505, and

there rejected by this Court.

On almost every conceivable plane, this case should be

governed by this Court’s determinations in Giordano,

2. The merging of the dual functions directed by §6003

(b) into a unitary function of the Attorney General, and

one of his attorneys, amends the statute. Aside from this

invasion of legislative function by the executive, the case

presents a direct conflict with applicable authority of this

Court expressed in United States ex rel. Accardi v. Shaugh-

nessy, 347 U.S. 261.

The statute is unambiguous:

‘¢§ 6003. Court and grand jury proceedings

**(a) In the case of any individual who has been or

may be called to testify or provide other information

at any proceeding before or ancillary to a court of the

17

United States or a grand jury of the United States,

the United States district court for the judicial dis-

trict in which the proceeding is or may be held shall

issue, in accordance with subsection (b) of this sec-

tion, upon the request of the United States attorney

for such district, an order requiring such individual to

give testimony or provide other information which he

refuses to give or provide on the basis of his privilege

against self-incrimination, such order to become effec-

tive as provided in section 6002 of this part.

(b) A United States attorney may, with the ap-

proval of the Attorney General, the Deputy Attorney

General, or any designated Assistant Attorney Gen-

eral, request an order under subsection (a) of this

section when in his judgment—

(1) the testimony or other information from

such individual may be necessary to the public m-

terest; and

(2) such individual has refused or is likely to

refuse to testify or provide other information on

the basis of his privilege against self-incrimina-

tion.’’ (Our emphasis)

The Court will note that, while the authority to approve

the request is vested in any of an almost unlimited num-

ber of persons, and is prone to uninhibited designation,

the power to request is vested in the United States Attor-

ney alone.

Similarly, the Administrative and Congressional News

speaks singularly of the authority to petition, and of the

incidents necessary to activating the request:

‘‘With the approval of the Attorney General, Depu-

ty Attorney General, or assistant attorney general who

is designated by the Attorney General, the U.S. attor-

ney may seek a court order. He must be satisfied that

the testimony is needed in the public interest and the

18

witness must have refused or be likely to refuse to

testify, claiming self-incrimination.’’ (See 1970 at p.

4018) (Our emphasis)

This is a statutory imperative that does not allow of in-

formal unauthorized designations. Where there is Con-

gressional mandate, and where it is particularly apparent

that alternate designation (as in the case of approval by

the Attorney General) was recognized and, if considered

appropriate, could have been authorized by the Congress,

and where it did not elect to do so, the clear evidence of

the Statute itself denies oversight, and precludes loose in-

terpretation.

Clearly the Statute speaks of the United States Attorney.

Clearly it regulates to him the power to make, and exercise,

‘this gudgment.’’ The United States Attorney must have

special qualifications. He must be appointed by the Presi-

dent, with the advice and consent of the Senate. (Title 28

U.S.C. §541) He must be resident of the District in which

he acts as attorney for the government. (Title 28 U.S.C.

$545) We are unable to explain by what endowment the

Attorney General arrogates to himself the facile resolution

he has assumed by having one of jis assistants through one

of his deputy assistants (See Doc. 13) appoint one of his

attorneys to act in lieu of the presidential appointment, an

appointment of equal dignity to his, the Attorney General’s

own.

The Congress, in $6003, directed two separate steps by

officers independent of each other, each operating in a

specific and different area. The procedure implemented

here would merge the diverse operations into a single func-

tion performed under the authority of a single functionary.

In significantly less auspicious circumstances, this Court

rejected the intrusion of the Attorney General into an area

19

where executive regulation-—as opposed to Statute—gave

the Board of Immigration Appeals power to exercise dis-

cretion subject to review by the very source of the regula-

tion itself, the Attorney General. Speaking to the inde-

pendent and separate functions, this Court said:

‘‘The regulations just quoted pinpoint the decisive

fact in this case: the Board was required, as it still is,

to exercise its own judgment when considering appeals.

The clear import of broad provisions for a final review

by the Attorney General himself would be meaning-

less if the Board were not expected to render a deci-

sion in accord with its own collective belief. * * *

And if the word ‘discretion’ means anything in a

statutory or administrative grant of power, it means

that the recipient must exercise his authority accord-

ing to his own understanding and conscience.’’

(347 U.S. at 266-7)

The majority of this Court found the Regulations au-

thored by the Attorney General established its indepen-

dence, and he bound himself to those restrictions. No such

Regulations exist here.6 Here we have ‘‘an attorney...

employed full time by the Department of Justice and as-

’ signed to the criminal division. ...’’ He operates directly

under and is answerable to the Attorney General. His

decisions, in law, are the decisions of the Attorney General.

Compare the dissent in Accardi, 347 U.S. at pp. 269-70.

Thus, the duality of function contemplated by the statute

is defeated. The necessary independence of judgment de-

fined by this Court in Accardi is rejected.

Congress vested in the United States Attorney, and in

him alone, the discretion to exercise his judgment in this

8 Though did they exist, we would contend their conflict with the

legislative mandate.

20

area. It gave the Attorney General no power of initial

judgment, merely the power to review and evaluate a

judgment formed. He cannot—under the guise of serving

an unanticipated expediency—seize a power that Congress

denied him.

3. The question of whether this Petitioner is entitled

to a common-law speech and debate privilege against in-

quiry by the United States—or anyone else—into the ac-

tivities and their underlying bases, when within the scope

of State legislative activity has divided the Circuit Courts

of Appeals,® and has not been, but we submit, should be,

decided by this Court.

The several Circuits give the preponderance in favor of

the recognition of such a privilege, though the Seventh

Cireuit persists in withholding it, notwithstanding it has

been repeatedly requested to reconsider.

Though this Court has until now rejected several peti-

tions of litigants to speak directly to the issue here pre-

sented, applicable decisions of this Court tend to indicate

the privilege exists. First addressing the question in

Kilbourn v. Thompson, 103 U.S. 168 (1881), this Court

directed broad application of the privilege. In Kilbourn,

as well as in all civil rights cases involving state legisla-

tors, deference has been given the privilege. In United

® United States v. Craig, 528 F.2d 773 (7 Cir., 1976), cert. den.,

425 U.S. 973 (1976) ; United States v. Craig, 537 F.2d 957 (7 Cir.,

1976), en banc, cert. den. sub nom. Markert v. United States, 429

U.S. 999; United States v. DiCarlo, 565 F.2d 802 (1 Cir., 1977),

cert. den., 98 S.Ct. 404; In re Grand Jury Proceedings, 563 F.2d

577 (3 Cir., 1977), and the very recent decision in United States v.

Gillock, 587 F.2d 284 (6 Cir., 1978), wherein we are advised the

suggestion of the government for re-hearing en banc was denied in

January of this year.

21

States v. Brewster, 408 U.S. 501 (1971), this Court quoted

with approval from Coffin v. Coffin, 4 Mass. 1 (a state case)

prohibiting inquiry. If the privilege applies, it provides

protection in the broad sense directed in Kilbourn against

actions in the criminal context, as well as the civil; against

the Executive, as well as private individuals.

In this context, we further submit that this Court should

inquire and define whether the Supremacy clause of the

Constitution (Article 6, Clause 2) is ill applied in the

area of co-existing sovereigns, where the concept of that

co-existence is independence and equality—not supremacy.

We also submit that the privilege secured by 43 of the

50 states, including Illinois, the English Bill of Rights,

the Articles of Confederation of the United States, as well

as the Constitution itself as it concerns United States legis-

lators is imposingly indicative of the historic significance

of the question presented, and the importance of resolution

in this contest between the legislative arm of the State as

a sovereign and the executive component of the co-ordinate

federal sovereignty.

4. This case represents a palpable rejection of con-

sistency in application of the laws, and plainly states that

its decision here is of doubtful application otherwise. It is

forthright in denying to this Petitioner relief it would

otherwise grant. In its supervisory power this Court should

reject an admitted unequal protection of the laws, insured

by implication in the due process clause of the Fifth Amend-

ment.

The dissent in Accardi repeated the adage that ‘‘Hard

cases make bad law.’’ (347 US. at p. 268) Added to the

speech and debate question and the application of the privi-

lege, if it exists, to a state legislator, is the aspect of a

22

competent man to fill the august position of United States

Attorney, but whose personal fastidiousness directs that

he not engage in a particular investigation, and who in his

personal restraint, declines to exercise a power bestowed

on the office he holds. In deference to those scruples, the

Courts below have found occasion to avoid the mandate of

the law and seize upon an expediency—but at the same

time rejecting that expediency (See Appendix A, p. 7),

saying that what has been excused here (the participation

of the United States Attorney, in the $6003 request) may

be desirable in most cases, and mandatory in some.

We submit to the Court that such social graces are ad-

mirable in the ambit of laissez faire and noblesse oblige.

But they are intolerable in a nation of laws, not of men.

No expediency has ever ultimately in this country been

found sufficient to suspend its laws.

CONCLUSION

Wherefore, for the above and foregoing reasons, it is re-

spectfully prayed that this Court issue its Writ of Cer-

tiorari to the United States Court of Appeals for the

Seventh Circuit.

Respectfully submitted,

Epwarp J. CaLrHan, JR.

Anna R. Lavin

Attorneys for Petitioner

APPENDIX

APPENDIX A

3n the

United States Court of Appeals

For the Seventh Circuit

No. 78-2505

In Tue Marrer Or THe SpeciaL SEPTEMBER 1978

Granp Jury (II)

Joun F. Wax, Witness, Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78 GJ 560 — James B. Parsons, Judge.

Arcuep DecemsBer 19, 1978 — Decipep January 5, 1979

Before Swycert, Cummines, and Sprecuer, Circuit

Judges.

Sprecuer, Circuit Judge. John Wall, a witness sum-

moned to testify in a continuing grand jury proceeding,

appeals from the district court order finding him in con-

tempt for refusal to testify after a judicial grant of use

immunity. The issues presented on appeal are whether

the case is moot and whether the order of immunity was

obtained in compliance with 28 U.S.C. § 6003.

rd

App. 2

I.

The Special September 1978 Grand Jury (II) for the

Northern District of Illinois has been investigating possible

violations of various federal statutes in the Northern Dis-

trict. The United States Attorney for the District, Thomas

Sullivan, recused himself and his office from conducting

this investigation on greunds of conflicting interests. An

Assistant Attorney General, Benjamin Civiletti, desig-

nated an attorney in the Department of Justice in Wash-

ington, Thomas Henderson, to conduct the grand jury

proceeding here in the Northern District.

On September 28, 1978, John Wall, a state legislator,

appeared before the grand jury pursuant to a subpoena,

but refused to testify. He asserted both a constitutional

and legislative privilege. On November 3, 1978, Thomas

Henderson petitioned the district court under 28 U.S.C.

§ 6003 for an order granting the defendant immunity.

The court entered the immunity order to compel testimony.

On November 16, John Wall was again called before the

grand jury and again he refused to testify. On that date,

the government attorney moved for a rule to show cause

why the witness should not be held in contempt.

The judge heard the arguments of the parties on No-

vember 29, determined that the immunity order complied

with legal requirements, and found the defendant in con-

tempt for his November 16 refusal to testify. The judge

committed the witness to confinement for the duration

of the grand jury proceeding but not to exceed 18 months,

or until the witness obeyed the order to testify.

1 The Assistant Attorney General derives his authority to designate

special attorneys from 28 C.F.R. § 0.13, allowing the Attorney Gen-

eral to delegate his power of designation to Assistant Attorney

Generals and Deputy Assistant Attorney Generals. The witness

does not challenge the validity of this regulation.

App. 3

The trial judge stayed execution of the sentence until

December 4, to allow time for the filing of an appeal. The

appeal was filed November 29, 1978, but a further stay of

execution was denied by this court.

On December 5, 1978, the witness informed the judge

that he was willing to comply with the court order to

testify in order to avoid incarceration. The witness testi-

fied before the grand jury on December 7. The subpoena

was continued for further appearance as may be directed

by the person conducting the grand jury proceedings.

Il.

The government has argued that the dispute between

the parties is moot. John Wall’s decision to testify did

prevent the district court order of confinement from be-

ing executed. Release from an order of custody is not the

only relief that was sought by the appeal however. The

witness also sought, through the contempt proceeding, to

vacate the order of immunity.2, On November 29, the dis-

trict court resolved the challenge to the validity of the

immunity order against the witness and entered the judg-

ment of contempt. The fact the order of confinement has

been mooted does not prevent this court from determining

any remaining issue if it represents ‘‘a substantial con-

2 The immunity order was initially entered by the district court

with the agreement that a judgment on validity would be made in a

later proceeding. The witness filed a motion to vacate the order of

immunity on November 8. The government filed a motion to strike

the petition to vacate arguing that the proper procedure for challeng-

ing the immunity order was in response to a rule to show cause,

relying on our decision in Jn re Paul Perlin, ........ ) + ee (7th

Cir. 1978). The parties as well as the judge considered the contempt

proceeding as encompassing the prior request to vacate the im-

munity order.

App. 4

troversy, between parties having adverse legal interests,

‘of sufficient immediacy and reality... .’’ Super Tire En-

gineering Co. v. McCorkle, 416 U.S. 115, 122 (1974), quot-

ing Maryland Casualty Co. v. Pacific Coal & Oil Co., 312

US. 270, 273 (1941); Powell v. McCormack, 395 U.S. 486,

496 & n.8 (1969).

The district court judgment on the validity of the im-

munity order does represent a substantial continuing con-

troversy. The district court order granting the petition

for immunity requires the witness to testify before the

Special September 1978 Grand Jury (II) and produce docu-

ments, without resort to the privilege against self-incrimi-

nation. The order is not restricted by date,® and it has

been estimated that this grand jury may continue through

the fall of 1981. The government concedes that it may be

necessary to call John Wall to testify again as the investi-

gation proceeds. The witness, on the other hand, persists

in his desire not to testify or produce documents. These

facts clarify that the ‘‘controversy between the parties’’—

the validity of the immunity—is ‘‘definite and concrete,’’

‘*touch[es] the legal relations of parties having adverse

legal interests,’’ and is theretore justiciable. DeF unis v.

Odegaard, 416 U.S. 312, 317 (1974), quoting Aetna Life

Insurance Co. v. Haworth, 300 U.S. 227, 240-41 (1937);

United States v. Concentrated Phosphate Export Associa-

tion, Inc., 393 U.S. 199, 203 (1968). See generally, 6A

3 The letter written by the Assistant Attorney General, Benjamin

Civiletti, approving Thomas Henderson’s request for immunity,

authorized Mr. Henderson to petition the court for an order pursuant

to 18 U.S.C. §§ 6002-03 “requiring John F. Wall to give testimony

or provide other information in the [grand jury] matter and in any

further proceedings resulting therefrom or ancillary thereto.”

App. 5

Moore’s Federal Practice, {| 57.13 at 57-124, 57-128 (2d ed.

1974).

IIl.

The narrow issue presented by this appeal is whether

Thomas Henderson, a special attorney appointed by the

Assistant Attorney General to conduct a grand jury pro-

ceeding, when the United States Attorney has recused his

office from the investigation, has authority to petition the

court for an immunity order. We conclude that he does.

Congress established a procedure for granting witness

immunity in 18 U.S.C. § 6008. The statute provides that

(a) ... [t]he United States district court for the

judicial district in which the proceeding is or may

be held shall issue, in accordance with subsection (b)

of this section, wpon the request of the United States

attorney for such district, an order requiring such in-

dividual to give testimony or provide other informa-

tion which he refuses to give or provide on the basis

of his privilege against self-incrimination. . . .

(b) A United States attorney may, with the ap- —

proval of the Attorney General, the Deputy Attorney

General, or any designated Assistant Attorney General,

request an order under subsection (a) of this section

when in his judgment—

(1) the testimony or other information from

such individual may be necessary to the public

interest; and

(2) such individual has refused or is likely to

refuse to testify or provide other information on

the basis of his privilege against self-incrimination.

(Emphasis added). The witness argues that the statute,

by its express terms, requires that the request for im-

App. 6

munity be made by the United States Attorney for the

district.*

Although Congress has not expressly provided for statu-

tory procedures when a United States Attorney recuses

the entire office for one case, we believe that under the

facts of this case, 28 U.S.C. § 515(a) provides an appropri-

ate solution. Section 515 provides:

(a) The Attorney General or any other officer of

the Department of Justice, or any attorney specially

appointed by the Attorney General under law, may,

when specifically directed by the Attorney General,

conduct any kind of legal proceeding, civil or criminal,

including grand jury proceedings and proceedings be-

fore committing magistrates, which United States at-

torneys are authorized by law to conduct, whether or

not he is a resident of the district in which the pro-

ceeding is brought.

The witness argues that Section 515(a) in inapplicable

because a petition for immunity is not the conduct of a

‘‘legal proceeding.’’ We reject such a rigid reading of the

statute. This court examined the legislative history for

section 515(a) in Jnfelice v. United States, 528 F.2d 204

(7th Cir. 1975). In Infelice, we concluded that the legis-

lative history’s ‘‘stated purpose was to grant to the ‘special

attorney’ the same rights, powers and authority whic) the

United States Attorneys possessed.’’ Jd. at 206. See also

* Since the United States Attorney has recused himself from this

case however the witness concedes that the immunity request could

not be made by Thomas Sullivan. Nonetheless, he argues that the

district court, rather than the Attorney General, should have ap-

pointed a substitute under 28 U.S.C. § 546, allowing the district

court “for the district in which the office of United States attorney

is vacant” to appoint an interim U. S. Attorney. We do not believe

that the office of United States Attorney is now “vacant.”

App. 7

United States v. Wrigley, 520 F.2d 362, 366 (8th Cir.),

cert. denied, 423 U.S. 987 (1975). The House Report spe-

cifically stated that the bill granted special attorneys the

same powers ‘‘district attorneys now have or may here-

after have in presenting and conducting proceedings be-

fore a grand jury or committing magistrate.’’ H. R. Rep.

No. 2901, 59th Cong., Ist Sess. (1906) (emphasis added).

Immunity orders are an integral part of ‘‘presenting and

conducting proceedings before a grand jury.’’ Therefore

it is possible to read section 515(a) as authorizing a special

attorney to exercise the power of request delegated to a

United States Attorney under 18 U.S.C. § 6008.

We conclude that 28 U.S.C. § 515(a) did empower the

special attorney to request the immunity petition under

18 U.S.C. § 6003 in the circumstances of this case. Whether

Section 515(a) should always be read to authorize a special

attorney to exercise the powers of a United States Attor-

ney under 18 U.S.C. § 6003 is a question we need not reach.

In most instances it may be desirable, or perhaps even

mandatory, for the United States Attorney for the district,

or his designate, to participate in the section 6003 request.

See In re DiBella, 499 F.2d 1175, 1177-78 (2d Cir.), cert.

denied, 419 U.S. 1082 (1974).

The factual circumstances of this case, however, make

it entirely appropriate to read section 515(a) as confer-

ring section 6003 authority on the special attorney. Sec-

tion 6003 will not be undermined by the construction here

because two facts demonstrate that in this case, the special

attorney should be considered to be the United States At-

torney named in Section 6003. First, this is a case of

recusal. The statute cannot be read to require the par-

ticipation of a United States Attorney who has conflicting

interests. It is, therefore, only reasonable to permit the

individual essentially acting in his capacity—the special

App. 8

attorney—to exercise the immunity power. Certainly this

result is more consistent with the statutory purpose than

permitting the witness to evade testifying in light of the

conclusion reached by other courts that the statutory re-

quirements ‘‘were not intended to protect witnesses but

to minimize overuse of immunity grants.’’ Umted States

v. Yanagita, 552 F.2d 940, 947 (2d Cir. 1977). Cf. In re

Tierney, 465 F.2d 806, 813 (5th Cir. 1972), cert. denied,

410 U.S. 914 (1973).

A second fact buttresses the conclusion that the special

attorney is here acting in the capacity of the United States

Attorney for the purposes of Section 6003. Before leaving

office, Samuel Skinner, the United States Attorney pre-

ceding Mr. Sullivan, requested Mr. Civiletti (the Assistant

Attorney General), to appoint a special attorney for this

investigation. Mr. Skinner advised the Assistant Attor-

ney General ‘‘that it would be in the best interest of the

Department and all parties concerned that an attorney

within the Department in Washington, D.C., be assigned

to oversee the investigation. This attorney would have

final authority to make the necessary investigative and

prosecutorial decisions. ...’’ Prior cases in this and other

circuits have held that the requirements of section 6003 are

satisfied when the request for immunity is made by a

designate of the United States Attorney.” Ryan v. Com-

missioner, 568 F.2d 531 (7th Cir. 1977); In re Grand Jury

Proceedings, 554 F.2d 712, 713 (5th Cir.), cert. denied,

434 U.S. 892 (1977); United States v. Smith, 532 F.2d 158

5 We reject the argument forwarded by the witness that designa-

tion by Samuel Skinner would be ineffective, urging that a valid

designation would have to derive from the present United States

Attorney. We consider this designation valid both because Mr.

Skinner made the request while still in office and because it would

be less appropriate to have the designation made by the official with

a conflict of interest.

App. 9

(10th Cir. 1976). These cases are distinguishable since

the delegations in issue were made to individuals subor-

dinate and accountable to the United States Attorney.

We are persuaded nonetheless that the underlying rea-

soning is applicable. The act of designation by the United

States Attorney confers the status of the office on the

designate. For this reason, Thomas Henderson is ‘‘the

United States Attorney’’ authorized to seek immunity or-

ders under section 6003 in the case for which he was desig-

nated. This case simply does not present the question of

whether section 6003 would permit a special attorney to

rely on section 515(a) powers to circumvent the United

States Attorney in petitioning for immunity.

The judgment of the lower court upholding the validity

of the immunity order is accordingly

AFFIRMED.

A. true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circut

App. 10

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

January 23, 1979

Before

Hon. LUTHER M. SWYGERT, Circuit Judge

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

No. 78-2505

IN THE MATTER OF THE SPECIAL

SEPTEMBER 1978 GRAND JURY (II)

JOHN F. WALL, Witness, Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78 GJ 560

James B. Parsons, Judge.

On consideration of the petition for rehearing filed in

the above-entitled cause by appellant, John F. Wall, all of

the judges on the original panel having voted to deny the

same,

IT IS HEREBY ORDERED that the aforesaid petition

for rehearing be, and the same is hereby, DENIED.

ee ee See ee eee en ee ee Spit ato

.

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