# Petition — Wall v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 944

## Text

— 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
.

—?" ee ee

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2519%3A1. Public record. Not legal advice.