Petition — Mabry v. Klimas

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AK, JR., CLERK

IN THE

Supreme Court of the United States

OcrospeR TERM, 1980

No. 79-662

HARVEY BIRDMAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for

the Third Circuit

DONALD J. GOLDBERG,

Attorney for Petitioner,

Harvey Birdman,

1420 Two Girard Plaza,

Philadelphia, Pennsylvania 19102

(215) 563-6345

Pennsylvania Appellate Printing Co.—Call Toll Free—! (800) 526-7560

TABLE OF CONTENTS

eee eee 1

IEE re eee 2

Question Presented ................. cece cece e eens 2

Constitutional Provision and Rule Involved .......... 2

EE SS SE eee 3

Reasons for Granting the Writ ..................--. rj

Ee 1]

Addendum A

Opinion of the Court of Appeals ............ A2

Addendum B

District Court’s Ruling on Motions .......... A34

Addendum C

Order of the Court of Appeals Sur Petition

EE eee ee An qa A44

Cases CITED:

Branzburg v. Hayes,

408 U.S. 665 (1972) ............e eevee ee ee es 7

Costello v. United States,

a ao ay css e esses ees. 7

Holt v. United States,

218 US. 245 (1910) ............ eee cece eee. oe

Robert Hawthorne, Inc. v. Director of IRS,

406 F. Supp. 1098 (E.D. Pa. OE ee 10

United States v. Blue,

984 US. 251 (1966) ...................0 005. 7

TABLE OF CONTENTS

Cases CITED:

United States v. Broward,

004 F.2d 345 (2 Cir. 1979) .................. 7

United States v. Calandra,

OG Ui ee CRED Gs chk owe eedecacveeren 7

United States v. Chanen,

549 F.2d 1306 (9 Cir.), cert. denied, 434 U.S. 825

I 5 Fae Ate ag 5 en eared. 8

United States v. Dionisio,

gt Re. See ee een ner 7

United States v. Estepa,

477 Pla 1138 (2 Cir. 1O7TB) .... 2... cece 8

United States v. Fields,

SOR F Sa GOS (3 Cir, WOTB) oon ccc vec sone 8

United States v. Gold,

470 F. Supp. 1336 (N.D. *. .. eee 10

United States v. Henderson,

Oe WO SET CE Cie. PETG) oo nccn ccc d ince: 7

United States v. Jacobs,

531 F.2d 87 (2 Cir.), vacated and remanded, 429

U.S. 909, aff'd. on remand, 547 F.2d 772 (2 Cir.

1976), cert. dismissed, 436 U.S. 31 (1978) .... 7, 8

United States v. Lardieri,

506 F.2d 319 (3 Cir. 1974) .............00... 10

United States v. Minnesota Mining & Co.,

551 F.2d 1106 (8 Cir. 1977) .............0 0005 7

iii

TABLE OF GCONTENTS

Cases CITED:

United States v. Owen,

SOD POs SU6 (0 Cir. BOTS) «2c cece seen 8

United States v. Serubo,

Nos. 78-2505/07 (3 Cir. filed Aug. 20, 1979) ....7, 8

United States v. Treadway,

445 F. Supp. 959 (N.D. Tex. 1978) ............ 10

United States v. Zudick,

BES Fe SHS (3 Cle. ITD) occ edi creed, 4

UNITED STATES CONSTITUTION CITED:

NES SSE aD EPS BEDE PEPE TE Re

FEDERAL RULES CITED:

Federal Rules of Criminal Procedure. Rule 6(d) ..... 2

Cope CITED:

RR a 6) es errr eee eee eee 2

AUTHORITIES CITED:

Antell, The Modern Grand Jury: Benighted

Supergovernment,

BE AALS. BD CIQGB) 2 ones ee cence 10

Boudin, The Federal Grand Jury,

61 Geo. L.J. 1 tears eee ree 10

Cowan, The New Grand Jury,

N.Y. Times Mag,, April 29, 1973 ...........-.-. 10

iv

TABLE OF CONTENTS

AUTHORITIES CITED:

Federal Grand Jury: Hearings on H.J. Res. 46, H.R.

1277 and Related Bills Before the Subcomm. on

Immigration, Citizenship & International Law of

the House Comm. on the Judiciary, 94th Cong.

Sd Sem. TE CAE) 3. xs cise eee ee 10

Fine, Federal Grand Jury Investigation of Political

Dissidents,

7 Harv. Civ. Rts.—Civ. Lib. L. Rev. 432 (1972) .. 10

Goodell, Where Did the Grand Jury Go?,

Harper's Mag., May 1973 ...................5. 10

Nat'l. Lawyers Guild, Representation of Witness Before

Federal Grand Juries: A Manual for Attorneys

Cs ) pe Wi 10

Schwartz, Demythologizing the Historic Role of the

Grand Jury,

10 Am. Crim. L. Rev. 701 (IG@R) «i... 44... 2.> 10

Younger, The Grand Jury Under Attack,

46 J. Crim. L. 26 (1955) .............000000e- 10

IN THE

SUPREME COURT OF THE UNITED STATES

OcToBER TERM, 1980

No.

HARVEY BIRDMAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for

the Third Circuit

Petitioner prays that a Writ of Certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Third Circuit in the above-entitled case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Third Circuit is reported at - F.2d — (3 Cir. 1979), and

is printed in Appendix A hereto at pp. Al-A33. The

opinion of the United States District Court for the Eastern

District of Pennsylvania is unreported and is printed in

Appendix B hereto at pp. A34-A43.

JURISDICTION

The judgment of the Court of Appeals was entered on

June 25, 1979 (Al). A timely petition for rehearing was

denied on September 27, 1979 (A44). The jurisdiction of

this Court is invoked under 28 U.S.C. §1254(1).

QUESTION PRESENTED

1. Must not an indictment be dismissed where the

Government attorney who conducted the grand jury pro-

ceedings also alternated in secret before the grand jury as

a significant witness for the prosecution?

CONSTITUTIONAL PROVISION

AND RULE INVOLVED

United States Constitution, Fifth Amendment:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of war or public danger; nor

shall any person be subject for the same offence to be

twice in jeopardy of life or limb; nor shall he be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law, nor shall private property

be taken for public use, without just compensation.”

Rule 6(d) of the Federal Rules of Criminal Procedure:

“Attorneys for the government, the witness under

examination, interpreters when needed and, for the

purpose of taking evidence, a stenographer or opera-

Constitutional Provision and Rule Involved 3

tor of a recording device may be present while the

grand jury is in session, but no person other than the

jurors may be present while the grand jury is delib-

erating or voting.”

STATEMENT OF THE CASE

This petition presents a glaring example of flagrant

grand jury abuse and the recurrent issue as to whether and

when prosecutorial misconduct before the grand jury re-

quires the legal sanction of dismissing the resulting indict-

ments. In this case, a senior staff attorney for the Securi-

ties and Exchange Commission (SEC) who directed the

SEC investigation of the matter was designated by the

Justice Department as its Special Attorney to conduct the

grand jury proceedings at issue here, but that same attor-

ney then alternated within the confines of the grand jury

as an important witness for the prosecution.

Petitioner Birdman was indicted in the Eastern Dis-

trict of Pennsylvania upon charges of securities fraud, secu-

rities price manipulation, conspiracy and mail fraud in

regard to his dealings in the common stock of Uni-Shield

International Corporation of which he was the president

and chief executive officer. He originally moved to dismiss

the indictment on the ground that government counsel who

conducted the proceedings against him before the grand

jury appeared there in the dual capacity of Special Attor-

ney for the United States Department of Justice as well as

attorney for the SEC, but during the motion proceedings,

he discovered purely by happenstance the prosecutor's

third role as a witness before the indicting grand jury and

that ground then became the primary thrust of his attack

on the indictment. When his motion to dismiss was de-

nied, Birdman entered a plea of nolo contendere, but ex-

pressly reserved the right to appeal denial of his motion as

4 Statement of the Case

provided in United States v. Zudick, 523 F.2d 848 (3 Cir.

1975). The conditional plea was accepted and Birdman

was sentenced to a year's imprisonment, three years’ proba-

tion, and a $100,000. fine.

The facts are largely undisputed.

One Dennis Taylor was a senior staff attorney for the

SEC. From 1973 to 1975, he directed the SEC investiga-

tion of Delphi Capital Corporation (Delphi) and of several

other companies whose stock was thought to have been

manipulated by Delphi. Birdman was president of one of

these companies, Uni-Shield International Corporation.

Mr. Taylor initiated discussions with the United States

Justice Department regarding possible criminal prosecu-

tions of subjects of the SEC investigation, and in May, 1975

the Philadelphia Strike Force of the Justice Department

asked the SEC to turn over the Delphi investigation file.

In June the SEC complied. On June 13, 1975 the Justice

Department designated Mr. Taylor as its Special Attorney

authorized to conduct the grand jury proceedings at issue

here. After this appointment, Mr. Taylor remained in the

SEC's employ and on its payroll, receiving no additional

compensation from the Justice Department. He continued

to act as an SEC attorney in matters relating to this case

and on at least one occasion acted as an “officer” of the

SEC. On that occasion he took testimony of a witness for

the SEC investigation, then immediately afterward ex-

amined that witness on the same subject before the grand

jury for its investigation.

As the attorney for the government before the grand

jury, Mr. Taylor repeatedly told witnesses and jury alike

that he was not only a Special Attorney with the United

States Department of Justice, but also an attorney em-

ployed by the United States Securities and Exchange Com-

mission.

-

Statement of the Case 5

Some of the witnesses who appeared before the grand

jury were employed by the SEC. By far, the most signifi-

cant of these witnesses was Mr. Taylor, himself. August

15, 1977 was the first time he testified. On that occasion,

Mr. Taylor evidently summoned himself to the witness

stand for he was the only attorney for the government be-

fore the grand jury at that session. He was “duly sworm

before the commencement of his testimony,” informed the

jury again of his dual role as a Special Attorney with the

Department of Justice and as an attorney for the SEC, and

then testified for twenty-seven pages as to the content of

his own investigation, his own review of the records of Uni-

Shield, and his own interviews with various individuals.

While some of what Taylor related to the grand jury pur-

ported to be a summary of testimony the jury had earlier

heard, most of it appeared to be an outline of what Taylor,

himself, had uncovered during his own investigation, and

how it all fit together into the indictment he proposed.

On September 6, 1977, again after being duly sworn,

Taylor testified before the grand jury in response to specific

questions from other government counsel. On this occa-

sion, Mr. Taylor recounted his dual role once more, made

plain that he had participated in the investigation through-

out, and then related how he had determined the dates of

the overt acts listed in the indictments he proposed.

Stepping back into his role as an attorney for the gov-

ernment, Mr. Taylor then continued to examine witnesses

before the grand jury, participated in drafting the Birdman

indictment and was at least present when its return was

recommended to the grand jury.

After learning of Mr. Taylor's participation as a wit-

ness before the grand jury, defense counsel moved for dis-

closure of all testimony before the grand jury in order to

6 Statement of the Case

better evaluate the triple capacity in which Mr. Taylor had

appeared there. The District Court ordered the govern-

ment to turn over all testimony by Mr. Taylor and other

SEC employees appearing before the grand jury but denied

the request for full disclosure of all grand jury testimony

and thereafter denied the motion to dismiss the indictment.

On appeal, the Third Circuit dwelt exhaustively upon

the reasons why the prosecutor's conduct here was repre-

hensible, and “condemn{[ed] in principle this practice of

serving as both prosecutor and witness” (A8), but never-

theless declined to impose a per se rule mandating dismis-

sal for such conduct, and divined no actual prejudice to

the accused even though no court has ever inspected all

of the grand jury testimony and the accused had been

denied the opportunity to conduct just such an examina-

tion.

This petition for a writ of certiorari followed:

REASONS FOR GRANTING THE WRIT

In federal criminal proceedings, the right to indictment

by a fair and unbiased grand jury is yuaranteed by the

Fifth Amendment provision that “[n]o person shall be held

to answer for a capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand Jury . . .” Cos-

tello v. United States, 350 U.S. 359, 362 (1956); United

States v. Dionisio, 410 U.S. 1, 16-17 (1973). When the

framers of the Bill of Rights placed that requirement in the

Fifth Amendment they did so to protect the citizen “against

unfounded criminal prosecutions,” Branzburg v. Hayes,

408 U.S. 665, 686 (1972), and “against arbitrary and op-

pressive government action,’ United States v. Calandra,

414 U.S. 338, 343 (1974), and “to provide a fair method

for instituting criminal proceedings,’ Costello v. United

States, 350 U.S. 359, 362 (1956).

This case presents a perfect record for this Court to

consider whether and when prosecutorial misconduct be-

fore the grand jury requires dismissal of the indictment.

The fact that grand jury proceedings are secret, ex parte

and largely under the control of the federal prosecutor,

magnifies the potential for abuse as well as the need for

guidance in dealing with it. While federal courts have

imposed a prop.aylactic rule of dismissal, in the exercise of

their inherent supervisory authority over federal criminal

proceedings,’ and have dismissed indictments in the exer-

1. See, e.g., United States v. Serubo, Nos. 78-2505/07 (3 Cir. filed Aug.

20, 1979); United States v. Jacobs, 531 F.2d 87, 90 (2 Cir.), vacated and

remanded, 429 U.S. 909, aff'd. on remand, 547 F.2d 772 (2 Cir. 1976), cert.

dismissed, 436 U.S. 31 (1978); United States v. Minnesota Mining ¢> Co., 551

F.2d 1106, 1112 (8 Cir. 1977); United States v. Henderson, 525 F.2d 247,

250 & n.12 (5 Cir. 1975). The supervisory authority to dismiss an indictment

is discussed but not applied in, e.g., United States v. Blue, 384 U.S. 251, 254-55

(1966); Costello v. United States, 350 U.S. 359, 363-64 (1956); Holt v.

United States, 218 U.S. 245, 247-48 (1910); United States v. Broward, 594

F.2d 345, 351 (2 Cir. 1979); United States v. Fields, 592 F.2d 638 (2 Cir.

8 Reasons for Granting the Writ

cise*of the supervisory power despite the absence of prej-

udice to the defendant,’ the Third Circuit in this very case

found the contours of its supervisory power too “ill-defined”

(A24) to impose such a rule of dismissal.

To reach that result—while condemning the prosecu-

tors misconduct—the Court of Appeals relied primarily

upon the established principle that an automatic grant of

a new trial is not, in general, an appropriate legal sanction

for a prosecutor's testifying at trial. But, tolerance for a

prosecutor's testifying at trial where both sides can invoke

the court's discretion to admit or disallow such testimony is

in no way analogous to the situation here, where a prosecu-

tor—shielded by grand jury secrecy and presumably safe

from discovery—unilaterally determined to put his own

oath as a witness behind the indictment he proposed.

A prosecutor operates before a grand jury without the

check of a judge or an adversary and virtually immune from

public scrutiny. As a consequence, there is scant likeli-

hood that the defendant will ever even know if his prosecu-

tor has testified there, and anything other than a bright-

line, absolute prohibition against such testimony, will leave

the accused completely at the mercy of government coun-

sel who must generally be relied upon to police himself in

the grand jury room, and nothing less than dismissal of the

indictment will effectively deter the kind of prosecutorial

misconduct displayed here.

Moreover, entirely apart from the fact that the govern-

ment attorney twice put his own oath behind the indict-

1978); United States v. Owen, 580 F.2d 365, 367 (9 Cir. 1978); United States

v. Chanen, 549 F.2d 1306, 1309 (9 Cir.), cert. denied, 434 U.S. 825 (1977).

2. United States v. Serubo, Nos. 78-2505/07 (3 Cir. filed Aug. 20,

1979); United States v. Jacobs, 547 F.2d 772 (2 Cir. 1976), cert. dismissed,

436 U.S. 31 (1978); United States v. Estepa, 477 F.2d 1132 (2 Cir. 1972).

Reasons for Granting the Writ 9

ment he sought, the content of his testimony too was

undoubtedly influential with the jury. In his two appear-

ances, he testified over and over again of what his own

investigation had shown, of what he had uncovered, of

records he had reviewed, and of what he had learned from

talking to others. While some of his testimony purported

to be a summary of testimony the jury had earlier heard,

and some could have been communicated to the grand jury

as argument, most of it appeared to be fresh evidence.

The prosecutor himself aptly characterized his testimony

tor the grand jury as an outline of what he had uncovered

during his own investigation, and how it all fit together

into the indictment he proposed.

While the Court of Appeals concluded that the govern-

ment attorney’s testimony added no new material evidence,

that was impossible of ascertainment without examination

of the rest of the grand jury testimony, which defendant

sought in the District Court but was denied. As a result,

the full significance of the prosecutor's testimony as well as

its accuracy could not be evaluated. But, the government

should never have been permitted to benefit on appeal be-

cause it successfully preserved inviolate below the very

grand jury proceedings which the prosecutor's own miscon-

duct had so badly tainted.

The Court of Appeals took solace in the absence of any

showing that the challenged activity had become an er-

trenched practice in the Circuit, but for all any outside of

the grand jury room know, it may be commonplace. In-

deed, it is precisely because we don’t know what takes

place in the grand jury room that a prophylactic rule of dis-

missal should be adopted.

Most recently, two other instances have been

“sighted” in which government counsel alternated as both

witness and prosecutor before the grand jury and in each

10 Reasons for Granting the Writ

case a per se rule mandating dismissal was imposed.

United States v. Treadway, 445 F. Supp. 959 (N.D. Tex.

1978); United States v. Gold, *470 F. Supp. 1336 (N.D.

Ill., 1979). To what extent such cases, and this one, are

representative of what occurs before Federal Grand

Juries is unknown and probably unknowable, but the

remedy whenever discovered ought to be as plain as the

mandate against such reprehensible conduct.

Independent of any concern for the rights of the ac-

cused, this Court has an institutional interest in preserving

and protecting the appearance and the reality of fair prac-

tice before the grand jury, an interest which could itself

justify granting the Writ in this case. Far too many critics

already have characterized the Federal Grand Jury as

nothing more than a prosecutor's tool."

3. United States v. Lardieri, 506 F.2d 319, 324 (3 Cir. 1974); Robert

Hawthorne, Inc. v. Director of IRS, 406 F. Supp. 1098, 1114 n.28 (E.D. Pa.

1976); see, e.g., Federal Grand Jury: Hearings on H. J. Res. 46, H. R. 1277

and Related Bills Before the Subcomm. on Immigration, Citizenship & Inter-

national Law of the House Comm. on the Judiciary, 94th Cong. 2d Sess. 52

(1976); Antell, The Modern Grand Jury: Benighted Supergovernment, 51

A.B.A.J. 153 (1965); Schwartz, Demythologizing the Historic Role of the

Grand Jury, 10 Am. Crim. L. Rev. 701 (1972); Boudin, The Federal Grand

Jury, 61 Geo. L.J. 1 (1972); Fine, Federal Grand Jury Investigation of Polit-

ical Dissidents, 7 Harv. Civ. Rts——Civ. Lib. L. Rev. 432 (1972); Younger,

The Grand Jury Under Attack, 46 J. Crim. L. 26, 214 (1955); Goodell, Where

Did the Grand Jury Go?, Harper's Mag., May 1973; Cowan, The New Grand

Jury, N.Y. Times Mag., April 29, 1973. See generally, Nat'l. Lawyers Guild,

Representation of Witness Before Federal Grand Juries; A Manual for Attor-

neys (1974).

1]

CONCLUSION

This petition deals with a form of gross professional

misconduct by prosecutors before Federal Grand Juries

which may well be widespread and which taints the result-

ing indictments and contaminates the institution of the

grand jury itself. Plenary review is needed.

Respectfully submitted,

/s/ Donald J. Goldberg

DONALD J. GOLDBERG

Attorney for Petitioner,

Harvey Birdman

ADDENDUM A

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 78-1940

UNITED STATES OF AMERICA

v.

BIRDMAN, HARVEY,

Appellant

(D.C. Crim. No. 77-00382-01 )

Nos. 78-1979 & 78-1980

UNITED STATES OF AMERICA

v.

RICHMAN, WILLIAM,

Appellant

(D.C. Crim. Nos. 77-00382-04 & 78-00070)

APPEALS FROM THE UNITED STATES DisTRICT COURT FOR THE

EASTERN DistTrRicr OF PENNSYLVANIA

Argued February 20, 1979

Before RosENN, VAN DusEN and Gartu, Circuit Judges

(Opinion filed June 25, 1979)

Al

A2 Addendum A

Donald J. Goldberg, Esq. ( ARGUED)

Joanna K. Weinberg, Esq.

Philadelphia, Pa.,

Attorneys for Appellant Birdman

Robert Scandone, Esq. (ARGUED)

Philadelphia, Pa.,

Attorney for Appellant Richman

John T. Bannon, Jr., Esq. ( ARGUED)

Jerome M. Feit, Esq.,

Attorneys, Department of Justice,

Washington, D.C.

and

Peter F. Vaira, U.S. Attorney,

Philadelphia, Pa.,

and

Ronald G. Cole, Esq.,

Philadelphia Strike Force,

Attorneys for Appellee

OPINION OF THE COURT

Van Dusen, Circuit Judge.

These appeals concern three different varieties of al-

legedly unethical behavior by attorneys for the United

States Government.

Appellant Harvey Birdman raises two questions re-

lating to federal grand jury proceedings: (1) does a

Government attorney's alleged violation during such pro-

ceedings of the ABA Code of Professional Responsibility’s

rules against an advocate’s testimony constitute an offense

warranting dismissal of the resulting indictments; and (2)

does the dual employment status of a United States Gov-

ernment agency staff attorney who is deputized as a Spe-

cial Attorney of the United States Department of Justice

Addendum A A3

to conduct a grand jury investigation constitute a conflict

of interest warranting dismissal of an indictment? Appel-

lant William Richman raises these two questions plus a

third: did the prosecution break its promise “to consider

deferred prosecution” for Mr. Richman, so as to warrant

suppression of all evidence allegedly induced by that

promise?

We answer all three questions in the negative and af-

firm the district court’s judgments of conviction and

sentence.

I.

A. Facts relating to grand jury conduct

The facts relating to the first two questions are largely

undisputed.

One Dennis Taylor was a senior staff attorney for the

Securities and Exchange Commission (“SEC”). From

1973 to 1975, he directed the SEC investigation of Delphi

Capital Corporation (“Delphi”) and of several other com-

panies whose stock was thought to have been manipulated

by Delphi. Appellant Birdman was president of one of

those companies, Uni-Shield International Corporation,

while appellant Richman had had dealings with Uni-Shield

stock. Mr. Taylor initiated discussions with the United

States Justice Department regarding possible criminal

prosecutions of subjects of the SEC investigation, and in

May 1975 the Philadelphia Strike Force of the Justice De-

partment asked the SEC to turn over the Delphi investi-

gation file. In June the SEC complied.

On June 13, 1975, the Justice Department designated

Mr. Taylor as its Special Attorney authorized to conduct

the grand jury proceedings at issue here. After this ap-

pointment, Mr. Taylor remained in the SEC’s employ and

A4 Addendum A

on its payroll, receiving no additional compensation from

the Justice Department. He continued to act as an SEC

attorney in matters relating to this case, and on at least

one occasion acted as an “officer” of the SEC. On that

occasion he took testimony of a witness for the SEC inves-

tigation, then immediately afterward examined that wit-

ness on the same subject before the grand jury for its

investigation.

In all of his appearances before the grand jury, Mr.

Taylor disclosed to witnesses and to the jury that he was

both a special attorney with the Justice Department and

an attorney employed by the SEC. When he took testi-

mony tor the SEC outside the grand jury room, he intro-

duced himself solely as a staff attorney of the SEC.

On two occasions of which defendants here complain,’

Mr. Taylor appeared before the grand jury with at least

some of the trappings of a witness. On August 15, 1977,

after being first duly sworn, Mr. Taylor made what the

stenographer’s transcript characterizes as a “Statement”

to the jury: a monologue purporting to summarize various

aspects of the investigation of Uni-Shield and to outline

the proposed indictment. On September 6, 1977, again af-

ter being duly sworn, Mr. Taylor delivered what the stenog-

rapher’s transcript characterizes as “Testimony,” wherein

another Strike Force attorney questioned him on the wit-

ness stand and he responded. On this occasion Mr. Taylor

presented an account of how he had determined or con-

firmed the dates of the overt acts listed in the indictment.

1. On November 17, 1976, Mr. Taylor made a “Statement” to the grand

jury, in which he simply read the transcript of Mr. Richman’s testimony

before an expired grand jury (273a-275a). On this occasion it does not

appear that Mr. Taylor was sworn in. Defendants do not claim that this

appearance warrants dismissal of the indictment. See, e.g., United States v.

Blitz, 533 F.2d 1329, 1344-45 (2d Cir.), cert. denied, 429 U.S. 819 (1976)

(prosecutor's “ministerial act” of reading testimony from prior grand jury

to second grand jury held proper); cf. United States v. Litton Systems, Inc.,

573 F.2d 195, 201 (4th Cir), cert. denied, 99 S. Ct. 101, reh. denied, 99 S. Ct.

601 (1978) (federal agents summarized prior grand jury evidence).

Addendum A AD5

On at least one occasion after his August 15 appear-

ance on the witness stand, Taylor, introducing himself as

“special attorney with the United States Department of

Justice and also an attorney with the United States Securi-

ties & Exchange Commission,” examined a witness before

the grand jury. He also assisted in drafting the indict-

ment with the Justice Department attorneys from the

Philadelphia Strike Force. Further, he was present in the

grand jury room when one J. Douglas McCullough, then a

Strike Force attorney, recommended return of the indict-

ment to the grand jury; Mr. Taylor did not himself make

the recommendation to the grand jury.

The grand jury returned indictments against both ap-

pellants. It charged Mr. Birdman with conspiracy, mail

fraud, securities fraud, securities price manipulation and

failure to file required securities reports; Mr. Richman

was charged with conspiracy. A subsequent indictment

charged Mr. Richman with mail fraud, securities fraud and

securities manipulation.

After learning of Mr. Taylor's participation in the

grand jury proceedings, defense counsel moved for disclo-

sure of all testimony before the grand jury and for dismis-

sal of the indiccment. The district court ordered the

Government to turn over to defendants all statements or

testimony by Mr. Taylor and other SEC employees appear-

ing before the grand jury. After hearings and after con-

sidering the statements and testimony by SEC employees,

the district court denied the request for full disclosure of

all grand jury testimony and denied the motions to dismiss

the indictments.

B. Facts relating to promise of deferred prosecution

Claiming that the Government did not in good faith

carry out its promises to him, defendant Richman moved

A6 Addendum A

for suppression of evidence allegedly produced in reliance

on those promises and for dismissal of his indictments.

At the hearing on these motions, Mr. Richman testi-

fied that he and his attorney had met with Mr. McCullough

to discuss cooperation. According to Mr. Richman’s tes-

timony at that meeting, “Mr. McCullough explained that he

would consider deferred prosecution,” but in order for de-

ferred prosecution to be granted, that the quality of the

information and the quantity of the information given by

me would be taken into account.”* In reliance on this

promise of consideration for deferred indictment, Mr.

Richman asserted, he proceeded to provide certain infor-

mation to the Government.

Mr. McCullough testified that he did in fact consider

recommending deferred prosecution to his superiors, but

decided against it. He stated that he took into account

several factors, some of which came to his attention after

the initial meeting with Mr. Richman; for example, the

number of victims of the alleged offenses, and Mr. Rich-

man's untruthfulness at certain times during the investiga-

tion.

Mr. McCullough also testified that he had considered

deferred prosecution in the past, at the request of other

prospective defendants, but had never ended up recom-

mending it. The attorney in charge of the Philadelphia

Strike Force also informed the court that to his knowledge

the office had never in the past recommended deferred

prosecution, but that he was asked to consider the possi-

bility of deferred prosecution for Mr. Richman.

2. Mr. Richman testified that he “understood deferred prosecution to be

a probationary period, where I would not in fact plead; and I would be

placed on probation for a period of time, and at the end of the proba-

tionary period the Indictment would be dismissed.”

Richman Appendix at 66.

3. Richman Appendix at 67 (emphasis added ).

Addendum A A7

The district court made the following finding, based

on this testimony:

The Court has heard the testimony of Mr. Mc-

Cullough; has considered the factors which he said he

took into consideration. And the Court believes, and

so finds, that Mr. McCullough did in fact, in good faith,

consider all of the relevant factors known to him in

making his decision against recommending deferred

prosecution.

“There is no evidence that anyone on behalf of

the Government ever misled Mr. Richman to believe

that he had a probability of being placed on deferred

prosecution. And it is clear from the evidence that

any cooperation which he gave in regard to deferred

prosecution was only with the hope that the possi-

bility of deferred prosecution would be realized.” *

Accordingly, the court denied Mr. Richman’s motions.

Il. APPELLATE JURISDICTION

The district court denied defendant Richman’s individ-

ual motions at a hearing on May 10, 1978.° After hearings

on May 10 and May 23, the court denied the joint motions

discussed under heading I.A. above on May 23.° On that

date, both defendants switched their pleas to nolo con-

tendere, conditional upon appeal of the denials of their

motions. The district court thereupon conditionally sen-

tenced Mr. Birdman to a year’s imprisonment, three years’

probation, and a $100,000. fine. It conditionally sentenced

4. Richman Appendix 186.

5. Richman Appendix at 186-87.

6. Birdman Appendix at 415a-427a (hereinafter referred to solely by page

number ).

AS Addendum A

Mr. Richman to five years’ probation. Defendants filed

timely notice of appeal.

This procedure conformed with that approved by this

court in United States v. Zudick.’ Although that case in-

volved a guilty plea and this case nolo pleas, we see no

meaningful distinction between the two in this particular

respect. Accordingly, we conclude that this court has juris-

diction and that the defendants properly preserved for re-

view the issues here asserted.

Ill. THe Dua ROLE oF PrRosEcUTOR AND WITNESS

The defendants both contend that the indictments

should be dismissed on the ground that Mr. Taylor ap-

peared as a witness befcie the grand jury, then failed to

withdraw as one of the Government’s presenting attorneys.

Accepting for purposes of this discussion that defendants’

characterization of the Government attorney’s actions is

accurate,” we condemn in principle this practice of serving

as both prosecutor and witness. However, since the limited

testimony of Mr. Taylor was procedural and not substan-

tive in character (see page 23 below) and was not prejudi-

cial to the defendants, in the circumstances of this case

we decline to impose the extreme sanction of dismissal.

7. 523 F.2d 848, 851-52 (3d Cir. 1975); see United States v. Moskow,

588 F.2d 882 (3d Cir. 1978).

8. The district court concluded from its examination of Mr. Tavlor’s

statements from the witness stand that those statements represented nothing

more than an attornev’s summation of evidence and explanation of the indict-

ment, and that therefore the SEC attorney could not properly be characterized

as “testifving as a witness” (423a). However, the record shows that the

attorney had the external indicia of a witness: he took the oath, and on his

September 6, 1977, appearance was questioned by another attorney. The

transcript refers to the SEC attorney’s utterances on the latter occasion as

“Testimony.” Although other characteristics of normal testimony may have

been lacking, particularly at the August 15 appearance, we are reluctant to

draw too fine a line around the words “witness” and “testimony” solely to

avoid confronting the ethical dilemma presented when a prosecutor, without

showing a compelling need to do so, takes the stand against a defendant or

prospective defendant. See discussion at notes 23 to 26 below.

Addendum A AQ

A. The professional impropriety

The professional impropriety of assuming a dual role

as advocate and witness has long been acknowledged by

both the English and the American bars.” The ABA Code

of Professional Responsibility states as an “ethical con-

sideration: ”

“The roles of an advocate and of a witness are incon-

sistent; the function of an advocate is to advance or

argue the cause of another, while that of a witness is

to state facts objectively.” *°

The ABA has also codified disciplinary rules designed to

prevent this conflict of roles and to minimize its prejudicial

potential when prevention is impossible. DR 5-101(B)

and DR 5-102 of the ABA Code prevent an attorney from

accepting employment as an advocate in litigation when it

is obvious that he will also be called as a witness; if the

need for his testimony on behalf of his client becomes ap-

parent after the lawyer has undertaken employment in the

litigation, he must withdraw from the role of trial advo-

cate; only in enumerated exceptional circumstances do

these requirements not apply, such as where the testimony

will relate solely to an uncontested matter or a matter of

formality to which no substantial opposing evidence is

likely to be offered, or where the lawyer's refusal to serve

as advocate would work a substantial hardship on the cli-

9. Professor Wigmore finds the first expression of this principle in

Anglo-American jurisprudence in Rex. v. Milne, 2 B. & Ald. 606, note (ca.

1810), and Rex v. Brice, 2 B. & Ald. 606 (1819), 6 J. Wigmore, Evidence

§1911 n.4. In this country, he cites (id. at 787-88 n.10) Reid v. Colcock,

lL N. & McC, 592, 597 (N.C. 1819), as stating that an attorney is not incom-

petent to testify, “but it is a matter of much delicacy,” and should be avoided

unless indispensable. In Potter v. Inhabitants of Ware, 55 Mass. (1 Cush.)

519, 520 (1848), the principle that an attorney should not testify on behalf

of his client was traced to Roman law.

10. American Bar Association, Code of Professional Responsibility EC

5-9 (1978) (hereinafter “ABA Code”). See also id. EC 5-10.

Al0 Addendum A

ent because of the lawyer's distinctive value in a particu-

lar case."

The ABA Standards Relating to the Prosecution Func-

tion '* make clear that these rules of professional propriety

are no less applicable to an attorney for the Government.

Section 3.1(f) of the ABA Standards provides:

11. ABA Code DR 5-101(B) provides, in pertinent part:

“(B) A lawyer shall not accept employment in contemplated or pending

litigation if he knows or it is obvious that he or a lawyer in his

firm ought to be called as a witness, except that he may undertake

the employment and he or a lawyer in his firm may testify:

(1) If the testimony will relate solely to an uncontested matter.

(2) If the testimony will relate solely to a matter of formality and

there is no reason to believe that substantial evidence will be

offered in opposition to the testimony.

(4) As to any matter, if refusal would work a substantial hardship

on the client because of the distinctive value of the lawyer

or his firm as counsel in the particular case.”

DR 5-102 provides:

“DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness.

(A) If, after undertaking employment in contemplated or pending liti-

gation, a lawyer learns or it is obvious that he or a lawyer in his

rm ought to be called as a witness on behalf of his client, he shall

withdraw from the conduct of the trial and his firm, if any, shall

not continue representation in the trial, except that he may con-

tinue the representation and he or a lawyer in his firm may testify

in the circumstances enumerated in DR 5-101(B)(1) through (4).

(B) If after undertaking employment in contemplated or pending liti-

gation, a lawyer learns or it is obvious that he or a lawyer in his

firm may be called as a witness other than on behalf of his client,

he may continue the representation until it is apparent that his

testimony is or may be prejudicial to his client.”

Former ABA Canon 19 provided:

“When a lawyer is a witness for his client, except as to merely formal

matters, such as the attestation or custody of an instrument and the

like, he should leave the trial of the case to other counsel. Except when

essential to the ends of justice, a lawyer should avoid testifying in court

in behalf of his client.”

See generally H. Drinker, Legal Ethics 158-59 (1953); ABA Committee on

Professional Ethics, Opinions, No. 50 (1931).

Local Rule 11 of the United States District. Court for the Eastern Dis-

trict of Pennsylvania provides that the ABA’s ethical guidelines “shall be-

come standards of conduct for attorneys of this Court.” See Kroungold ct.

Triester, 521 F.2d 763, 765 n.3 (3d Cir. 1975).

12. American Bar Association Project on Standards for Criminal Justice,

Standards Relating to the Prosecution Function and the Defense Function

(Approved Draft, 1971) (hereinafter, ABA Standards ).

Addendum A All

“The prosecutor should avoid interviewing a prospec-

tive witness except in the presence of a third person

unless the prosecutor is prepared to forego impeach-

ment of a witness by the prosecutor's own testimony

as to what the witness stated in an interview or to

seek leave to withdraw from the case in order to

present his impeaching testimony.”

The commentary on this provision emphasizes the profes-

sion’s rules against an advocate’s testifying:

“Use of a third person is virtually the only effective

means of impeaching a witness. Assuming a court

would permit it, a prosecutor is in a difficult situation

if he must seek leave to withdraw and substitute other

counsel so that he might take the stand to relate what

he claimed the adverse witness had said to him.

“The Code of Professional Responsibility takes a

firm position that a lawyer should avoid testifying in

court when he is the advocate. ABA Cope DR

5-102.” **

The courts have shared the legal profession's disap-

proval of the double role of advocate-witness."“ In par-

13. Id. at 80; accord, United States v. Alu, 246 F.2d 29, 34 (2d Cir.

1957).

14. E.g., United States v. Nobles, 422 U.S. 225, 253 (1975) (White, J.,

concurring); Hickman v. Taylor, 329 U.S. 495, 517 (1947) (Jackson, J.,

concurring); Universal Athletic Sales Co. v. American Gym, Recreational

Athletic Equipt. Corp., 546 F.2d 530, 539 (3d Cir. 1976), cert. denied,

430 U.S. 984 (1977); United States v. Armedo-Sarmiento, 545 F.2d &8§,

793 (2d Cir. 1976), cert. denied, 430 U.S. 917 (1977); United States v. Alu,

246 F.2d 29, 33-34 (2d Cir. 1957); Travelers Ins. Co. v. Dykes, 395 F.2d 747,

748-9 (5th Cir. 1968); United States v. Clancy, 276 F.2d 617, 636 (7th Cir.

1960), rev'd on other grounds, 365 U.S. 312 (1961); Christensen v. United

States, 90 F.2d 152, 154 (7th Cir. 1937); Hayes v. United States, 329 F.2d

209, 218 (8th Cir. 1964); Robinson v. United States, 32 F.2d 505, 510 (8th

Cir. 1929) (concurring opinion); United States v. Treadway, 445 F. Supp.

959, 960-62 (N.D. Tex. 1978); United States v. Maloney, 241 F. Supp. 49,

50 (W.D. Pa. 1965); see Annot, 54 A.L.R.3d 100, §4 (1973) (collecting state

decisions ).

Al2 Addendum A

ticular, the federal courts have almost universally frowned

upon the practice of a Government prosecutor testifying at

the trial of the case he is prosecuting, whether for * or

against ‘° the defendant, and have stated that the practice

should be permitted only in extraordinary circumstances or

for compelling reasons.'" Where the prosecutor's appear-

ance as witness is unavoidable, the courts have stated that,

in general, the prosecutor should withdraw from partici-

pation in the trial.”*

The reasons that have been cited for this judicial and

professional reprehension of the testifying prosecutor in-

clude the following. First, there is the risk that the prose-

cutor will not be a fully objective witness:

“It is obvious that the opportunity for tailoring a wit-

ness’s testimony to the needs of the Government's

case is maximized if recourse is permitted to the tes-

15. E.g., United States v. Schwartzbaum, 527 F.2d 249, 253 (2d Cir.

1975); Gajewski v. United States, 321 F.2d 261, 268 (8th Cir. 1963), cert.

denied, 375 U.S. 968 (1964); Hayes v. United States, supra. 329 F.2d at 218.

16. E.g., United States v. Armedo-Sarmiento, supra, 545 F.2d at 793;

United States v. Torres, 503 F.2d 1120, 1126, cert. denied, 424 U.S. 942

(1976); United States v. Pepe, 247 F.2d 838, 844 (2d Cir. 1957); United

States v. Alu, s.pra, 246 F.2d at 33-34; United States v. Treadway, supra,

445 F. Supp. at 260.

17. E.g., United States v. Schwartzbaum, supra, 527 F.2d at 253; United

States v. Torres, supra, 503 F.2d at 1126; United States v. Clancy, supra,

247 F.2d at 636; United States v. Pepe, supra, 247 F.2d at 844; United States

v. Alu, supra, 246 F.2d at 33-34; Christensen v. United States, supra, 90 F.2d

at 154; Robinson v. United States, supra, 32 F.2d at 510 (concurring opinion);

United States v. Maloney, supra, 241 F. Supp. at 50; see Annot. A.L.R.3d

100, §4 (1973).

18. E.g., United States v. Clancy, supra, 247 F.2d at 636; Robinson v.

United States, supra, 32 F.2d at 510 (concurring opinion); see Newman v.

Sigler, 421 F.2d 1377, 1379 (8th Cir.), cert. denied, 399 U.S. 935 (1970)

(testifying prosecutor should ordinarily withdraw, but under circumstances

failure to do so did not violate constitutional right to fair trial in state court);

Christensen v. United States, supra, 90 F.2d at 154-55 (trial court should

not have excluded counsel's testimony but could have disqualified him after-

ward). But see United States v. Fiorillo, 376 F.2d 180, 185 (2d Cir. 1967)

(not abuse of discretion for trial court to refuse to permit defense counsel's

withdrawal after testifying); United States v. Maloney, supra, 241 F. Supp.

at 51 (when defense calls prosecutor, need for withdrawal may be absent).

Addendum A Al3

timony of an experienced trial attorney who is inter-

ested in the successiul presentation of that case.

Especially in criminal litigation, where so much is at

stake for the defendant, must the Bench and Bar de-

mand adherence to a principle that is designed to en-

sure objectivity in the presentation of evidence.” ™

Second, it is feared that the prestige of a Government at-

torneys office will artificially enhance his credibility.

Although jurors of varying degrees of sophistication will,

of course, have different conceptions of the awe due to a

public officer, it is widely hypothesized that “[a] jury

naturally gives to the evidence of the prosecuting attorney

far greater weight than to that of the ordinary witness.” *°

A third consideration is that the prosecutor's testifying

might “create . . . confusion on the part of the jury as

to whether he [is] speaking in his capacity of prosecutor

or witness. *’ Such confusion, besides disrupting the nor-

mal workings of the judicial mechanism, may result in the

19. United States v. Alu, supra, 246 F.2d at 34. But see Sutton, The

Testifying Advocate, 41 Tex. L. Rev. 477, 480 (1963) (“It is strange to see

at this late date an attempt to use this discredited argument .. . .”).

20. Robinson v. United States, supra, 32 F.2d at 510. Accord, United

States v. Treadway, supra, 445 F. Supp. at 962; Frank v. State, 150 Neb.

745, 35 N.W.2d 816, 821 (1949); see United States v. Pepe, 247 F.2d 838,

844 (2d Cir. 1957) (prosecutor “threw his own weight into the scales against

defendant”). But see United States v. Cerone, 452 F.2d 274, 288 (7th Cir.

1971), cert. denied, 405 U.S. 963 (1972) (“As to the awesome-office theory,

we do not agree that the mere fact that a witness holds an office of public

trust should disqualify him as a witness [where he does not otherwise par-

ticipate in the trial] . . .”); United States v. Callanan, 450 F.2d 145 (4th

Cir. 1970) (the same).

The hypothesis that a Government attorney carries an enhanced image

in the mind of the average juror also underlies the proscription against prose-

cutors’ expressing personal belief in the credibility of a witness or the guilt

of a defendant, in ABA Standards, supra note 12, at §5.8(b). Id., Com-

mentary, 126-28, and authorities cited therein; see, e.g., Berger v. United

States, 295 U.S. 78, 88 (1935). See also, e.g., United States v. Gallagher,

576 F.2d 1028, 1041-43 (3d Cir. 1978).

21. Newman v. Sigler, supra, 421 F.2d at 1379 (8th Cir. 1970); accord,

United States v. Schwartzbaum, supra, 527 F.2d at 253.

Al4 Addendum A

_fact-finder according testimonial credit to the prosecutor's

closing arguments.”

While the above-cited reasons for the advocate-witness

rule all reflect a policy of avoiding the slightest risk of

prejudice to defendants, the most frequently cited justifica-

tion tor the rule reflects a broader concern for public con-

fidence in the process of justice. The chief fear which un-

derlies the ethical rule, it is commonly acknowledged, is

not that the testifying prosecutor actually will overreach

a hapless defendant, but that he will appear to a skeptical

public to have done so. The legal profession’s disappro-

bation of the advocate-witness is thus closely related to

the injunction in Canon 9 of the ABA Code of Professional

Responsibility that “[a] lawyer should avoid even the

appearance of professional impropriety.’ *‘ Particularly

where the lawyer in question represents the prosecuting

arm of the Government, the ethical rule serves to imple-

ment the maxim that “justice must satisfy the appearance

22. See, e.g., Note, The Attorney as Both Advocate and Witness, 4

Creighton L. Rev. 128, 144 (1970) (hereinafter, Advocate and Witness);

Note, The Advocate-Witness Rule: If Z Then X, But Why?, 52 N.Y.U. L.

Rev. 1365, 1370 (1977) (hereinafter, Advocate-Witness Rule ).

23. 6 J. Wigmore, Evidence § 1911, at 775-76; Sutton, supra note 19 at

482; Note, Advocate and Witness, supra, note 22, at 145; Note, Advocate-

Witness Rule, supra, note 22, at 1369; see Frank v. State, 150 Neb. 745, 35

N.W.2d 816, 821 (1949) (natural tendency for defendant to question fairness

of trial). See generally, e.g., Erwin M. Jennings Co. v. DiGenova, 107 Conn.

491, 492-500, 141 A. 866, 867-69 (1928) (primary reason for rule is to avoid

bringing distrust on legal profession ).

Some courts and commentators have questioned the validity of the ap-

pearance justification. International Electronics Corp. v. Flanzer, 527 F.2d

1288, 1294 (2d Cir. 1975); Enker, The Rationale of the Rule That Forbids A

Lawyer To Be Advocate and Witness in the Same Case, 1977 Am. Bar

Foundation J. 455, 459; Note, Advocate-Witness Rule, supra, at 1390 (“the

tenuous assumptions upon which the appearance of impropriety fear rest have

never been empirically examined”).

24. This court has held that violation of the injunction in Canon 9 is a

proper ground for disqualifying an attorney. Int'l Business Machines, Inc. v.

Levin, 579 F.2d 271, 283 (1978); Kramer v. Scientific Control Corp., 534 F.2d

1085, 1089 (3d Cir.), cert. denied, 429 U.S. 830 (1976); Richardson v. Ham-

ilton International Corp., 469 F.2d 1382, 1385-86 & n.12 (3d Cir. 1972), cert.

denied, 411 U.S. 986 (1973).

~

—

Addendum A Al5

of justice.” * This function of preserving public trust may

be especially necessary in proceedings of the grand jury,

which more than a few critics have characterized as a mere

tool of prosecutors.” Even an unarticulated sense among

grand jurors or their friends that something was “fishy”

about a proceeding where the prosecutor testified will feed

cynics claims.

The foregoing considerations and others ** demonstrate

that the general disapprobation of an advocate'’s testimony

25. Offutt v. United States, 348 U.S. 11, 14 (1954) (Frankfurter, J.).

Accord, 2 J. B. Atlay, Victorian Chancellors 460 (1908) (quoting Lord

Herschell ):

“{I]mportant as it was that people should get justice, it was even more

important that they should be made to feel and see that they were getting

i?

26. United States v. Lardieri, 506 F.2d 319, 324 (3d Cir. 1974); Robert

Hawthorne, Inc. v. Director of IRS, 406 F. Supp. 1098, 1114 n.28 (E.D. Pa.

1976); see, e.g., Federal Grand Jury: Hearings on H.]J. Res. 46, H.R. 1277

and Related Bills Before the Subcomm. on Immigration, Citizenship © Inter-

national Law of the House Comm. on the Judiciary, 94th Cong. 2d Sess. 52

(1976); Antell, The Modern Grand Jury: Benighted Supergovernment, 51

A.B.A.J. 153 (1965); Schwartz, Demythologizing the Historic Role of the

Grand Jury, 10 Am. Crim. L. Rev. 701 (1972); Boudin, The Federal Grand

Jury, 61 Geo. L.J. 1 (1972); Fine, Federal Grand Jury Investigation of Po-

litical Dissidents, 7 Harv. Civ. Rts—Civ. Lib. L. Rev. 432 (1972); Younger.

The Grand Jury Under Attack, 46 J. Crim. L. 26, 214 (1955); Goodell.

Where Did the Grand Jury Go?, Harper's Mag., May 1973; Cowan, The New

Grand Jury, N.Y. Times Mag., April 29, 1973. See generally Nat'l. Lawyers

Guild, Representation of Witness Before Federal Grand Juries: A Manual for

Attorneys (1974). ee

27° Concern for the attorney’s interest is another justification frequently

cited for the rule. The underlying psychological hypothesis is that one who

tries to perform both roles does neither well: [t]o attempt to be both ad-

vocate and witness is to attempt to be both partisan and non-partisan at

once .. . . The dual role is too difficult; the lawyer should not be subjected

to such a riptide of demands . . . .” Sutton, supra note 19 at 481 (footnote

omitted). As Justice Jackson put it, the lawyer is almost invariably a poor

witness.” Hickman v. Taylor, 329 U.S. 495, 517 (1947) (Jackson, J., con-

curring). Conversely, if he is too good a witness, he may find himself a

worse advocate upon reassuming the latter role. Sutton, supra at 481. As

an advocate, too, he may find himself confronted with the dubious and de-

meaning task of arguing his own credibility as a witness. F.g., ABA Code.

supra, note 10, at EC 5-9; Sutton, supra, at 481; Note, The Advocate-Witness

Rule, supra, note 22 at 1371. ao

The ABA Code also emphasizes the protection of the advocate’s client as

a rationale for the rule. See EC 5-9. This rationale rests on the hypothesis

that a testifying lawyer is less credible and more easily impeached than other

witnesses—a hypothesis contrary to that which supports the rationale dis-

Al6 Addendum A

is more than an outdated shibboleth disguised as a rule of

professional ethics. Furthermore, the justifications cited

tor the rule are as pertinent to grand jury proceedings

as they are to trials before petit juries, where the rule is

most often visible. That the rule applies to prosecutors in

grand jury proceedings, as well as in criminal trials, is im-

plicit in §3.5(b) of the ABA Standards Relating to the

Prosecution Function, which provides:

“The prosecutor should not make statements or

arguments in an effort to influence grand jury action

in a manner which would be impermissible at trial be-

fore a petit jury.”

The Commentary to §3.5 amplifies this directive:

“A prosecutor should not, however, take advan-

tage of his role as the ex parte representative of the

state before the grand jury to unduly or unfairly in-

fluence it in voting upon charges brought before it.

In general, he should be guided by the standards

governing and defining the proper presentation of the

state s case in an adversary trial before a petit jury.”

(Emphasis added. )

The standards for presenting the state’s case to a petit

jury * clearly preclude the prosecutor's testifying, except

in the limited circumstances referred to in DR 5-101(B)

of the ABA Code (see note 11 above).

cussed above in the text at note 20. The drafters of the ABA Code were

focusing primarily on the lawyer for the private client; protection of the

testifying lawyer's client may be less of a concern when the client is the

Government. Nevertheless, it is clear that the drafters of the ABA Standards

for the Prosecution Function intended the same restrictions to apply to the

ee aay — — of the underlying rationales for the restric-

ions mig different. See ABA Standards ad i

oo as tt es ards quoted in text at note 13 above.

Addendum A Al7

B. Legal sanctions for impropriety

The issue before this court, however, is not whether

professional sanctions would be appropriate against a Gov-

ernment attorney who both assisted the prosecution and

appeared on the witness stand in the same grand jury pro-

ceeding. The issue is whether such conduct requires the

legal sanction of dismissing the resulting indictments.

1. Per se rule of dismissal?

Defendants argue that this court should impose a per

se rule mandating dismissal for any prosecutorial testimony

in grand jury proceedings, regardless of actual prejudice

to the defendant resulting therefrom. In support of this

argument, defendants rely primarily on a decision out of

the Northern District of Texas, United States v. Tread-

way,” which appears to impose such a rule. However, to

the extent that decision deals with the issues raised in this

case, we decline at this time to follow it.

It should first be noted that in the analogous situation

where a prosecutor testifies at trial and then fails to with-

draw, the great weight of American authorities have held

that such conduct, while reprehensible, does not warrant

the sanction of reversal and new trial.” As this court

has noted in the civil context, “the Code [of Professional

Responsibility] does not delineate rules of evidence but

only sets forth strictures on attorney conduct.” ® Thus,

it is the settled rule in this Circuit and in most jurisdic-

tions that an attorney is not incompetent as a witness at

29. 445 F, Supp. 959 (N.D. Tex. 1978).

30. See Erwin M. Jennings Co. v. DiGenova, 141 A. at 869, and au-

thorities cited therein (while “[t]he rule in England appears to be that an

attorney is incompetent as a witness for his client,” the weight of American

authorities holds the admission of attorney's testimony not reversible error);

6 J. Wigmore, Evidence, at 788; Annotation, 54 A.L.R.3d 100, §63 (1973).

31. Universal Athletic Sales Co. v. American Gym, Recreational & Althletic

Equipment Corp., supra, 546 F.2d at 539.

Als Addendum A

trial, but that admission of such testimony is a matter

largely for the discretion of the trial court." In the federal

courts particularly, the strong judicial reprobation of a

prosecutor's testimony at a criminal trial has never hard-

ened into a per se prohibition of the practice:’ prosecu-

torial testimony alone is not sufficient for reversal, absent

additional instances of Government misconduct.*

32. Id. (civil trial), 6 J. Wigmore, Evidence §1911 (civil and criminal);

97 C.].S., Witnesses §113 (1957 & Supp. 1978) (criminal); Annot., 54

A.L.R.3d 100, §3 (1973) (criminal); see, e.g., French v. Hall, 119 U.S. 152

(1886) (civil); decisions cited in note 35, infra (criminal).

33. See authorities cited in note 32, supra (trial court permitted testi-

mony); see also United States v. Schwartzbaum, supra, 527 F.2d at 253

(trial court refused to let defendant call prosecutor); United States v. Phil-

lips, 519 F.2d 48, 50 (5th Cir. 1975), cert. denied, 423 U.S. 1059 (1976)

(refused to let defense attorney testify for defendant); United States v. New-

man, 476 F.2d 733 (3d Cir. 1973) (refused to let defense call prosecutor);

Hayes v. United States, supra, 329 F.2d at 218 (same); Gajewski v. United

States, supra, 321 F.2d at 268 (same); United States v. Clancy, supra, 276

F.2d at 636 (refused to let defense attorney testify unless he withdrew);

Fisher v. United States, 231 F.2d 99, 104 (refused to let defense call prosecu-

tor). But see Christensen v. United States, supra, 90 F.2d at 154-55 (error

to exclude testimony of defense attorney).

34. One explanation for the courts’ reluctance to harden what might

be termed an “axiomatic norm” (see Kramer v. Scientific Corp., 534 F.2d

1085, 1088 (3d Cir. 1976)) of proper professional conduct into a “rule in

the narrower sense” (see id.; Pound, Hierarchy of Sources & Forms in Dif-

ferent Systems of Law, 7 Tul. L. Rev. 475 (1933)), requiring a sanction

of reversal, is that less drastic sanctions lie elsewhere. At least where the

defendant has shown no actual prejudice to himself arising from the Govern-

ment attorney's alleged unethical conduct, professional disciplinary proceed-

ings, in which the Government attorney can explain the reasons for his conduct

or point to mitigating factors, seem a remedy better tailored to the impro-

priety than that of letting the criminal go free because the prosecutor may

have blundered. Wigmore has further suggested that the strong judicial dis-

approval has not turned into judicial prohibition

“because the expected evil is one that would be caused by an inveterate

practice and not by casual instances, and because the strong recommenda-

tions of the courts have proved sufficient to prevent the use of such testi-

mony other than in casual, unavoidable, and therefore harmless instances.”

6 J. Wigmore, Evidence §1911, at 788. These considerations are equally

applicable where the prosecuting attorney is alleged to have served as a

witness in grand jury proceedings. See discussion at notes 53 and 54 below.

35. E.g., Backo v. Local 281, United Bhd. of Carpenters, supra, 438 F.2d

at 179; Newman v. Sigler, supra, 421 F.2d at 1379; United States v. Alu,

supra, 246 F.2d at 34; see Irving v. Zerbst, 97 F.2d 257, 258 (5th Cir.), cert.

denied, 303 U.S. 637 (1938) (habeas corpus proceeding); cf. Christensen v.

United States, 90 F.2d at 155 (reversal for refusal to admit defense attorney's

testimony on behalf of defendant). Although some federal courts of appeals

Addendum A Al9

In light of this established principle that an automatic

grant of new trial is not in general an appropriate legal

sanction for a prosecutor's testifying at trial,** a com-

pelling legal mandate is necessary if this court is to im-

pose the analogous sanction of per se dismissal, where an

indictment issues from grand jury proceedings in which the

prosecutor has taken the witness stand and failed to with-

draw. There are three sources for such a mandate men-

tioned in the federal cases: the Constitution; Rule 6(d)

of the Federal Rules of Criminal Procedure, which

enumerates persons authorized to be present at grand

jury proceedings; and the public policy of assuring fair-

ness in the processes of justice, which underlies the super-

visory powers of the federal courts.”

Defendants do not argue, nor do we find, that the

prosecutorial conduct here rises to the level of a constitu-

tional violation.** Thus we need not consider whether a

prophylactic rule of dismissal would be justified under the

power to make what has been termed a “constitutional

common law” of remedies for violation of constitutional

rights.

have granted a new trial where the trial court had admitted a prosecutor's

testimony against the defendant, such cases have involved other instances of

misconduct. United States v. Torres, supra, 503 F.2d at 1126; United States

v. Pepe, supra, 247 F.2d at 844; Robinson v. United States, supra, 32 F.2d at

510 (concurring opinion) (“If this were the only question in the case, it might

not be sufficient to warrant a reversal”).

36. See authorities cited in note 35, supra. See generally United States

v. Somers, 496 F.2d 723, 737 (3d Cir.), cert. denied, 419 U.S. 832 (1974):

“(W]e will reverse upon demonstrations of prosecutorial misconduct only

in those situations in which prejudice inures to the defendant from the

challenged improprieties.”

37. See United States v. Treadway, 445 F. Supp. 959 (N.D. Tex. 1978).

38. See, e.g., United States v. Lardieri, 506 F.2d 319, 323 (3d Cir. 1974);

United States v. Riccobene, 451 F.2d 586, 587 (3d Cir. 1971); United States

v. Bruzgo, 373 F.2d 383, 387 (3d Cir. 1967). ae

39. Monaghan, The Supreme Court, 1974 Term—Foreword: Constitutional

Common Law, 89 Harv. L. Rev. 1 (1975); see Schrock & Welsh, Reconsider-

ing the Constitutional Common Law, 91 Harv. L. Rev. 1117 (1978).

A20 Addendum A

Instead defendants argue that a per se rule of dis-

missal is required under Rule 6(d) of the Federal Rules of

Criminal Procedure. Rule 6(d) provides:

“Attorneys for the government, the witness un-

der examination, interpreters when needed and, for

the purpose of taking the evidence, a stenographer or

operator of a recording device may be present while

the grand jury is in session, but no person other than

the jurors may be present while the grand jury is

deliberating or voting.”

Defendants urge this court to follow the lead of the United

States Court of Appeals for the Fifth Circuit, which has

held that “the presence of an unauthorized person [under

Rule 6(d)] results in a per se invalidity of the indict-

ment.” *°

However, the question whether to adopt this sanction

of dismissal does not arise until it has been established that

the alleged intruder filled none of the authorized roles listed

in Rule 6(d)." Here the whole ethical dilemma arises

not because a person fit none of the listed roles, but because

one person allegedly played two of those roles: both “attor-

ney for the government” and “witness under examination.”

After that person withdrew from the witness stand, as a

matter of professional ethics he ought to have withdrawn

also from his role as “attorney for the government,” to avoid

any appearance of professional impropriety. But a profes-

sional impropriety does not work a meiaphysical dissolu-

tion of his actual status as government counsel: the many

| 40. United States v. Echols, 542 F.2d 948, 951 (5th Cir.), cert. denied,

a po 904 das, reaffirming Latham v. United States, 226 F. 420 (5th

tir. 1915). Accord, United States v. Phillips Petroleum Co.. 435 F. §

610, 618 (N.D. Okla. 1977). 4 eal

41. Thus, in Echols, supra, the district court did not dismiss the indictment

because the person in question was found to be an authorized person. Accord,

United States v. Glassman, 562 F.2d 954, 957 (5th Cir. 1977).

Addendum A A21

cases in which trial courts have permitted testifying advo-

cates to continue their participation at trial ‘*’ demonstrate

that their testimony could not by itself deprive them of

legal authority to represent their clients. Nothing in the

plain language of Rule 6(d) or in its legative history indi-

cates that the rule was intended to have such an effect; the

Rule's concern is to exclude persons with no authorized

roles, not to implement the profession’s proscriptions

against conflicting roles. In sum, reprehensive though it

might be for one who has served as a grand jury witness to

remain as “attorney for the government,’ Rule 6(d) does

not prevent such conduct as a matter of law.

Defendants might have pressed the argument that this

court should impose a prophylactic rule of dismissal in the

exercise of its inherent supervisory authority over federal

criminal proceedings."* This general power of supervision

enables the federal courts to establish standards of fair play

higher than “those minimal historic safeguards for securing

42. See decisions cited in note 35, supra.

43. See, e.g., United States v. Jacobs, 531 F.2d 87, 90 (2d Cir.), vacated

and remanded, 429 U.S. 909, aff'd on remand, 547 F.2d 772 (2d Cir. 1976),

cert. dismissed, 436 U.S. 31 (1978); United States v. Minnesota Mining &

Mfg. Co., 551 F.2d 1106, 1112 (8th Cir. 1977); United States v. Henderson,

525 F.2d 247, 250 & n.12 (5th Cir. 1975). The supervisory authority to dismiss

an indictment is discussed but not applied in, e.g., United States v. Blue, 384

U.S. 251, 254-55 (1966); Costello v. United States, 350 U.S. 359, 363-64

(1956); Holt v. United States, 218 U.S. 245, 247-48 (1910); United States

v. Broward, 594 F.2d 345, 351 (2d Cir.), cert. petition filed, 47 U.S.L.W. 3684

(U.S., Apr. 9, 1979) (No. 78-1535); United States v. Fields, 592 F.2d 638

(2d Cir. 1978), cert. petition filed, 47 U.S.L.W. 3736 (U.S. Mar. 26, 1979)

(No. 78-1474); United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978);

United States v. Chanen, 549 F.2d 1306, 1309 (9th Cir.), cert. denied, 434

U.S. 825 (1977); United States v. Baskes, 433 F. Supp. 799, 804-07 (N.D.

Ill. 1977) (requiring amplification before exercising power to dismiss). For

discussion of the supervisory power and of prophylactic rules thereunder which

affect criminal trials, see generally, e.g.. McNabb v. United States, 318 U.S.

332, 340-42 (1956): Olmstead v. United States, 277 U.S. 438, 469-71 (1928)

(Holmes, J., dissenting); United States v. Fioraventi, 412 F.2d 407 (3d Cir.),

cert. denied, 396 U.S. 837 (1969); United States ex rel. Sturtivant v. New

Jersey, 289 F.2d 846, 848 (3d Cir.), cert. denied, 368 U.S. 864 (1961); Note,

The Supervisory Power of the Federal Courts, 76 Harv. L. Rev. 1656 (1963).

A22 Addendum A

trial by reason which are summarized as ‘due process of

law and below which we reach what is really trial by

force.” “‘ Further, the policy underlying the supervisory

power that “[t]he protection of its own functions and the

preservation of the purity of its own temple belongs only

to the court” “ is in general harmony with the most widely

cited rationale for the disapproval of the prosecutor-wit-

ness, that the unseemly appearance of the practice tends to

undermine public confidence in judicial processes.*"

However, to attempt to serve a public interest in the

purity of the grand jury proceeding, by the per se sanction

of dismissing indictments, is to disserve another public

interest by frustrating prosecutions of criminals. The ques-

tion whether to impose a prophylactic supervisory rule

traditionally presents this choice between two evils: on

the one hand, the evil “that the Government should play

an ignoble part,” and on the other “that some criminals

should escape.” “’

In balancing these evils in cases of alleged prosecu-

torial overreaching during grand jury proceedings, the fed-

eral courts have clearly established the principle “that the

dismissal of an indictment on the basis of governmental

44. McNabb v. United States, supra, 318 U.S. at 340. This court has

expressly espoused similar sentiments in United States ex rel. Sturtivant v.

New Jersey, supra:

““Over federal proceedings we may exert a supervisory power with

greater freedom to reflect our notions of good policy than we may consti-

tutionally exert over proceedings in state courts.’ ”

289 F.2d at 848, quoting Fay v. People of State of New York, 332 U.S. 261,

287 (1947); accord, e.g., United States v. Basurto, supra, 497 F.2d at 793

(Hufstedler, J., concurring); United States v. Cruz, 478 F.2d 408, 411 (5th

Cir.), cert. denied, 414 U.S. 910 (1973); Note, The Supervisory Power of the

Federal Courts, supra note 43 at 1666-67 (1963).

45. Sorrells v. United States, 287 U.S. 435, 457 (1932) (separate opinion

of Roberts, J.).

46. See discussion at notes 23-27 above.

47. See United States v. Olmstead, supra, 277 U.S. at 470 (Holmes, J.,

dissenting ).

Addendum A A23

misconduct is an extreme sanction which should be infre-

quently utilized.”"" Thus, in United States v. Bruzgo,”

which treated allegations of prosecutorial misconduct more

extreme than those in the case before us, this court affirmed

the refusal to apply such a sanction. In Bruzgo the defend-

ant claimed that the prosecutors had threatened a grand

jury witness, a close associate of the defendant, and had

called the witness a “thief” and “a racketeer,” allegedly

moving the grand jurors to such a passion that they “hissed”

the witness. Accepting these allegations as true, and con-

demning the prosecutor’s actions, this court nevertheless

concluded that their conduct was not sufficient to invali-

date an indictment which was otherwise supported by the

evidence.” This court reached the same conclusion in a

similar case, United States v. Riccobene,”' where the prose-

cutor had told grand jurors that they would not hear from a

key Government witness because the proposed defendants

were “connected with organized crime and could harm

him.” *

In view of the extreme character of this sanction of

per se dismissal, we are not persuaded that so broad-

48. United States v. Owen, supra, 580 F.2d at 367; accord, e.g., United

States v. Fields, supra, 592 F.2d at 647-48; United States v. Chanen, supra,

549 F.2d at 1310-12, and decisions discussed therein; Beatrice Foods Co. v.

United States, 312 F.2d 29, 39 (8th Cir.), cert. denied, 373 U.S. 904 (1963);

United States v. Dondich, 460 F. Supp. 849, 855 (N.D. Cal. 1978); United

States v. Baskes, supra, 433 F. Supp. at 806; see, e.g., United States v.

Houghton, supra, 554 F.2d at 1224 (finding misconduct insufficient to merit

dismissal); United States v. Cruz, supra, 478 F.2d at 441.

An alternative formulation of the above proposition is that a reviewing

court will not look behind a facially valid indictment absent strong reasons

for doing so. See, e.g., Costello v. United States, supra, 350 U.S. at 363 (no

pes of indictment based solely on hearsay evidence); Holt v. United

States, supra, 218 U.S. at 248 (incompetent evidence). See also United States

v. Calandra, 414 U.S. 338 (1978).

49. 373 F.2d 383 (3d Cir. 1967).

50. Id. at 386-87.

51. 451 F.2d 586 (3d Cir. 1971).

52. Id. at 587.

A24 Addendum A

gauged a remedy is necessary to supplement existing dis-

ciplinary procedures.”* While we acknowledge the public

interest in avoiding “even the appearance of impropriety”

in prosecutors conduct of fe@@ral grand jury proceedings,

defendants have not shown that the conduct of which they

complain added substantive matters or was anything but

an isolated incident unmotivated by sinister ends. A later

case might require a different result. There has been no

showing here that the practice of prosecutorial testimony

has become so entrenched and flagrant in this Circuit as to

require a prophylactic rule of dismissal.** Therefore, we

decline to stretch the ill-defined contours of the supervisory

power to impose such a rule in this case."

2. Dismissal for actual prejudice of defendants

Even in the absence of a per se rule of dismissal, dis-

missal of the indictment might be justified if defendants

suffered actual prejudice from the Government attorney's

appearance on the witness stand and subsequent failure to

disqualify himself. However, the district court found no

such prejudice in this case, and we agree that there was

none.

The district court concluded, based on its examination

of pertinent portions of the record, that the Government

53. See note 34, supra.

54. It is routine procedure for the prosecution to put its investigators on

the stand in grand jury proceedings, whether the investigator be an FBI agent

or an employee of a specialized agency like the SEC or IRS. Here, the

investigator had also become an attorney for the Government through the

relatively non-routine procedure of the §515 authorization. The Strike Force

team may have simply followed its standard procedure for investigator-wit-

nesses without realizing the impropriety el thereby in the circumstances

of this case.

55. See United States v. Broward, supra, 594 F.2d at 351.

56. See decisions cited in note 48; cf. Board of Education of New York v.

Nyquist, No. 78-6055, slip op. at 878 (2d Cir., Jan. 9, 1979) (“when there is

no claim that the trial will be tainted, appearance of impropriety is simply too

slender a reed on which to rest a disqualification order except in the rarest

cases” ).

Addendum A A25

attorneys presentations from the witness stand on August

15, 1977, and September 6, 1977, did not amount to inde-

pendent substantive evidence:

“[A] fair reading of the transcript of August 15,

1977, reveals, and the Court so finds, that he was act-

ing... as an attorney; explaining a proposed indict-

ment; identifying the parties named in the indictment;

reviewing evidence presented to the Grand Jury which

supported the indictment.

“It is clear that he was not then . . . giving mate-

rial or substantive evidence.

“., [the September 6 ‘testimony ] was the supplying

or explaining to the Grand Jury the indictment which

they would be asked to return that same day. There

is an explanation as to how the various dates used in

the indictment were arrived at.

“The basic structure of the examination was that,

starting with each overt act in the conspiracy, to ask

Mr. Taylor how the particular date was arrived at.

“Reading the transcript as a whole, it appears to this

Court that he was in fact summarizing evidence which

the Grand Jury had had presented to it by other

witnesses.”

Our reading of the pertinent portions of the grand jury

transcripts bears out the district court's above-quoted con-

clusion that the Government attorney's testimony added no

new material evidence. Although the testimony sum-

marizes contestable substantive evidence, it focusses pri-

marily on the structure of the proposed indictment. We

57. App. 323a-324a.

A26 Addendum A

need not decide whether such testimony falls within excep-

tions (1) and (2) of DR 5-101(B) in the ABA Code, as

“relat[ing] solely to an uncontested matter,” or “relat[ing]

solely to a matter of formality.” It is enough for present

purposes that this testimony could not “have had inde-

pendent material significance in the jurors’ minds when

they considered whether they wanted to indict defend-

at. ™

This case is in this respect distinguishable from the

facts of the Treadway case on which appellants chiefly

rely. There the prosecutor-witness provided independent

substantive evidence which was needed to prove a material

element of the offense charged in the indictment; * here

the testimony discloses that it was merely a summary of

prior evidence. Furthermore, it was alleged in Treadway

that the prosecutor's testimony was inaccurate in several

respects.” Defendants here do not allege that the prosecu-

tor falsified or distorted any substantive facts underlying

the indictments to which defendants later pleaded nolo

contendere. We are also satisfied that the testimony was

phrased in neutral terms, without possibly for inflammatory

effect.

In sum, although Treadway was decided on the basis

of a per se rule of dismissal, it is factually distinguishable

from this case because here it is possible to ascertain that

no actual prejudice to defendants could have resulted from

the prosecutors testimony. For this arguable injury to

the grand jury process, it appears at this time that more

appropriate remedies exist than a windfall dismissal for

unharmed parties.”

58. United States v. Bruzgo, supra, 373 F.2d at 386.

59. 445 F. Supp. at 960, 964.

60. Id. at 964.

61. It bears repeating that this decision should not be construed as a license

to prosecutors to take the witness stand in grand jury proceedings. In future

cases, this court may dismiss indictments on a showing that actual prejudice

has resulted from such undesirable prosecutorial conduct, or on a showing that

Addendum A A27

IV. DuaL EMPLOYMENT STATUS OF GOVERNMENT

ATTORNEY

Both defendants in this case also urge dismissal of the

indictment on the ground that an impermissible conflict of

interest inhered in Mr. Taylor’s dual employment status

as a staff attorney for the SEC and a Special Attorney for

the Justice Department, appointed pursuant to 28 U.S.C.

§515(a) and §534.° To support their argument, defend-

ants rely primarily on a decision by a panel of the United

States Court of Appeals for the Sixth Circuit, In Re April

1977 Grand Jury Subpoenas (General Motors Corp.), 573

F.2d 936 (6th Cir. 1978), appeal dismissed en banc, 584

F.2d 1366 (1978), cert. denied, 47 U.S.L.W. 3571 (USS.,

Feb. 26, 1979). We find their argument unpersuasive.

In General Motors, an Internal Revenue Service (IRS )

attorney, who was familiar with a prior civil tax investiga-

tion of General Motors Corporation and who had recom-

it is impossible to ascertain the degree of prejudice without examination of

much more of the grand jury proceedings than was necessary here. Further-

more, if the practice persists, a prophylactic rule of dismissal, regardless of

prejudice, may become necessary.

62. 28 U.S.C. §515(a) (1977) provides:

“The Attorney General or any other officer of the Department of

ustice, or any attorne agra appointed by the Attorney General under

w, may, when specifically directed by the Attorney General, conduct any

kind of legal proceeding, civil or criminal, including grand jury proceedings

and proceedings before committing magistrates, which United States attor-

neys are authorized by law to conduct, whether or not he is a resident of

the district in which the proceeding is brought.” (Emphasis added. )

Section 534 provides, in pertinent part:

“(a) The Attorney General shall—

(1) acquire, collect, classify, and preserve identification, criminal

identification, crime, and other records; and

(2) exchange these records with, and for the official use of,

authorized officials of the Federal Government, the States, cities, and

penal and other institutions.

“(c) The Attorney General may appoint officials to perform the func-

tions authorized by this section.”

Defendants do not challenge the authority of the Attorney General to appoint

the SEC attorney as a Special United States Attorney to assist in grand jury

proceedings in this case. That authority was extensively examined and upheld

in In Re Subpoena of Persico, 522 F.2d 41, 56-60 (2d Cir. 1975); United

States v. Wrigley, 520 F.2d 362, 365-67 (8th Cir. 1975).

A28 Addendum A

mended criminal prosecution of the company to the Justice

Department, was appointed a Special United States At-

torney to assist in the grand jury proceedings. A majority

of the appeals court panel concluded that this dual employ-

ment status created an appearance of a conflict of interest,

warranting disqualification of the attorney. Judge Merritt,

dissenting, found neither improper conflict nor appearance

thereof. After rehearing, the court en banc dismissed the

appeal for lack of appellate jurisdiction. While the en banc

majority found it unnecessary to reach the merits, the con-

curring opinion of Judges Edwards and Lively expressed

their agreement with Judge Merritt's earlier dissenting view

that “[t]here is no inherent conflict of interest in” the dual

Government employment status at issue. 584 F.2d at 1371.

In recent subsequent decisions by other courts, this

latter view has prevailed. The United States Court of Ap-

veals for the Seventh Circuit held, in In re Perlin, 589 F.2d

260 (7th Cir. 1978), that no impermissible conflict was

inherent in a Commodity Futures Trading Commission

(CFTC) attorney's participation as a Special Assistant

United States Attorney in grand jury proceedings; it thus

affirmed a contempt judgment against a recalcitrant witness

who claimed that the CFTC attorney's participation had

tainted the proceedings. Similarly, in United States v.

Dondich, 460 F. Supp. 819 (N.D. Cal. 1978), the district

court refused to dismiss an indictment on account of a

specially authorized SEC lawyer's participation in the

grand jury proceedings from which the indictment issued.

Both Perlin and Dondich involved attorneys from spe-

cialized Government agencies who, like Mr. Tay lor in this

case, had worked on their agency's civil investigations of

transactions which were later objects of grand jury inquiry.

In both cases, after the agency turned over evidence of

possible criminal violations to the Department of Justice,

Addendum A A29

the agency attorney was appointed a Special Assistant

United States Attorney under 28 U.S.C. §§515(a) and 534,

again like Mr. Taylor in this case. The specially deputized

attorneys in Perlin and Dondich also maintained close con-

tacts with their original agencies while working on grand

jury matters, as did Mr. Taylor, who remained on the SEC

payroll and continued to work for the SEC on matters re-

lating to this case.

Of facts substantially the same as those involved in

this case, both Perlin and Dondich expressly rejected the

position of the panel majority in General Motors. To sum-

marize briefly, both decisions concluded that an attorney

representing different agencies of the same Government is

not engaged in the kind of conflict of interest which the

drafters of the ABA Standards Relating to the Prosecution

Function and the ABA Code ™ intended to address:

63. Section 1.2 of the ABA Standards provides:

“Conflicts of interest.

“A prosecutor should avoid the appearanc or reality of a conflict of

interest with respect to his official duties. In some instances, as defined

in the Code of Professional Responsibility, his failure to do so will con-

stitute unprofessional conduct.”

The Commentary to §1.2 (Approved Draft 1971, incorporating language from

the original version of the standard in the Tentative Draft of 1970) illustrates

the standard:

“A conflict of interest may arise when for example,

(i) a law partner or other lawyer professionally associated with the

prosecutor or a relative appears as, or ob counsel for a defendant;

(ii) a business partner or associate or a relative has any interest in a

criminal case, either as a complaining witness, a party, or as counsel.”

The Commentary refers also to ABA e DR 5-101(A), which provides:

“Except with the consent of his client after full disclosure, a lawyer shall

not accept employment if the exercise of his professional judgment on

behalf of his client will be or reasonably may be affected by his own

financial, business, property, or personal interests.”

(Footnote deleted. )

See also DR 9-101:

“Avoiding Even the Appearance of Impropriety.

“(A) A lawyer shall not accept private em loyment in a matter upon the

merits of which he has acted in a judicial capacity.

“(B) A lawyer shall not accept private employment in a matter in which

he had substantial veiganslbtiy while he was a public employee.

“(C) A lawyer shall not state or imply that he is able to influence im-

ouipall or upon irrelevant grounds any tribunal, legislative body,

or public official.”

(Footnotes deleted. )

A30 Addendum A

“[A]lthough the prosecutor should not be a profes-

sional associate of defense counsel, there is no conflict

or appearance of conflict in his being professionally

associated with other lawyers interested in the prose-

cution. The prosecutor of course is himself interested

in the prosecution, but that is not the sort of interest

that creates a conflict.” ©

Further, both courts noted” that the position which de-

fendants herein urge would frustrate the congressional

policy of fostering intragovernmental cooperation in crimi-

nal prosecutions. This policy is implemented in 28 U.S.C.

§515(a) * and in the recent amendments to F.R. Crim. P.

6(e)."" The Supreme Court has recently noted the impor-

Since the record does not show that Mr. Taylor acted “in a judicial capacity”

tor the SEC in matters relating to this case, the decision in American Cyana-

mid Co. v. FTC, 363 F.2d 757 (6th Cir. 1966), is inapposite; to the extent

United States v. Braniff Airways, Inc., 428 F. Supp. 579 (W.D. Tex. 1977),

rests on a conflict of advocatory and judicial roles, it too is inapposite. In

addition, Braniff was expressly disapproved in In re Perlin, supra, 589 F.2d

at 265 n.5.

64. In re Perlin, supra, 589 F.2d at 265; accord, Dondich, supra, 460

F. Supp. at 856.

65. 589 F.2d at 265-67; 460 F. Supp. at 855-56; accord, United States v.

Fields, supra, 592 F.2d at 644-46; In re Grand Jury Subpoenas, April 1978, at

Baltimore, 581 F.2d 1103, 1109-10 (4th Cir. 1978).

66. See, e.g., H.R. Rep. No. 2901, 59th Cong., Ist Sess. (1906); In Re

Subpoena of Persico, supra, 522 F.2d at 56-60; United States v. Denton, 307

F.2d 336 (6th Cir.), cert. denied, 371 U.S. 928 (1962); Nick v. United States,

406 F. Supp. 1 (E.D. Mo. 1975), aff'd, 531 F.2d 936 (8th Cir. 1976). This

court's decision in In re Grand Jury Proceedings, 309 F.2d 440 (3d Cir. 1962),

i a to this case because the attorney there was not authorized under

§515(a).

67. The amendment in Rule 6(e)(2)(A), 18 U.S.C. (Supp. 1978), permits

disclosure of grand jury matters to

“(i) an attorney for the government for use in the performance of

such attorney's duty; and

“(ii) such government personnel as are deemed necessary by an attor-

ney for the government to assist an attorney for the government in the

performance of such attorney’s duty to enforce Federal criminal law.”

The stated purpose of the amendments was to lower the “barrier of secrecy...

between the facets of the criminal justice system upon which we all depend to

enforce the criminal laws.” §. Rep. No. 95-354 at 6, reprinted at 1977 U.S.

Code Cong. & Admin. News 527, 530. See Notes of the Advisory Committee

on Rules to 1977 amendments to Fed. R. Cr. P. 6(e), reprinted at 18 U.S.C.

Rule 6(e) (Supp. 1978).

Msn oe

Addendum A A8l

tance of such intragovernmental cooperation in United

‘States v L.aSalle National Bank, 437 U.S. 298, 312-13

(1978).

In sum, the better view appears to be that there is no

inherent conflict of interest or other impropriety in the ap-

pointment of an agency attorney to assist in criminal pro-

ceedings before a grand jury, and we follow the recent

decisions adopting this view. Of course, abuse of an attor-

ney’s dual employment status might be shown in particular

cases, especially where the agency uses the grand jury in-

vestigation to gather information for civil administrative

proceedings to which it would not otherwise have access.

Cf. LaSalle National Bank, supra. But no such specific

allegations are made in this case, nor could they plausibly

be on this record. Accordingly, we find no basis for dis-

missing the indictment on this ground.

V. GOVERNMENT'S PROMISE TO CONSIDER

DEFERRED PROSECUTION

Finally, defendant Richman argues that the Govern-

ment attorney did not in good faith carry out a promise to

consider deferred prosecution and that, therefore, all evi-

dence induced by such promise should be suppressed. At

oral argument and in a subsequent letter to this court,

counsel for Mr. Richman has urged that the recent decision

in United States v. Bowler, 585 F.2d 851 (7th Cir. 1978),

dictates grant of his motion for suppression. However, that

case is inapposite.

Bowler concerned ambiguous language in a written

plea agreement. The defendant construed the language as

a promise by the prosecution to consider reducing its rec-

ommendation as to jail sentence; the Government con-

strued it merely as a unilateral option to recommend a

A32 Addendum A

lesser sentence. The court interpreted the agreement most

favorably to the defendant, finding a promise to consider in

good faith a lesser sentence recommendation by analyzing

specific mitigating factors enumerated in the plea agree-

ment. The Government's presentation to the sentencing

judge showed no evidence that it had evaluated two of the

three specific factors and showed affirmative evidence that

it had not evaluated one of the factors. On these facts, the

court of appeals vacated the sentence and ordered specific

performance of the Government’s implied promise, requir-

ing that the prosecution set forth its evaluation of each

specific mitigating factor in the record at the time of resen- |

tencing. 585 F.2d at 855.

The instant case involves different facts and a differ-

ent procedural history. There was no dispute that there

was an oral promise “to consider recommending deferred

prosecution, but merely a dispute whether the Govern-

ment had carried out its promise. The parties had the

benefit of a hearing addressed specifically to that issue of

fact, unlike the parties in Bowler. After hearing live testi-

mony from both sides, the district court in this case found

as a fact that the prosecutor “did in fact, in good faith, con-

sider all of the relevant factors known to him in making

his decision against recommending deferred prosecution.”™

That finding is not “clearly erroneous.” Therefore, Mr.

Richman’s argument must fail.

VI. Disposition

We conclude that the appearance of impropriety cre-

ated by a Government attorney's taking the witness stand

in grand jury proceedings does not on this record warrant

so extreme a sanction as a prophylactic rule of dismissal;

68. Richman Appendix at 186.

69. See Government of the Virgin Islands v. Gereau, 502 F.2d 914, 922-23,

927 (3d Cir. 1974), cert. denied, 420 U.S. 909 (1975).

Addendum A A33

and we find that defendants could have suffered no actual

prejudice from the prosecutor's testimony in this case. We

further conclude that the dual employment status of a

Government agency attorney specially authorized under

28 U.S.C. §515(a) to assist Department of Justice attorneys

in grand jury proceedings creates neither an actual nor an

apparent conflict of interest, absent a showing that the

grand jury investigation was exploited for an improper

purpose. Therefore, the denial of defendant Birdman’s

and defendant Richman’s motion for dismissal of the indict-

ments was not error.

We further conclude that the district court was not

clearly erroneous in finding no breach of the Government's

promise to consider deferred prosecution of Mr. Richman,

and that the denial of Mr. Richman’s motion to suppress

evidence was not erroneous.

The judgments of sentence: will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

A34

ADDENDUM B

UNITED STATES DISTRICT COURT

FOR THE EASTERN DisTRICT OF PENNSYLVANIA

No. 77-382

UNITED STATES OF AMERICA

v.

HARVEY BIRDMAN

WILLIAM RICHMAN

ARTHUR SALAMAN

Philadelphia, Pennsylvania

May 23, 1978

Before Hon. Ciirrorp Scotr GREEN, J.

COURT’S RULING ON MOTIONS

CHARLES D. WALKER

Official Court Reporter

2722 U.S. Courthouse

601 Market Street,

Philadelphia, Pa. 19106

WA 5-9480

APPEARANCES:

RONALD G. COLE, ESQ.,

for the Government

DONALD J. GOLDBERG, ESQ.,

for Defendant Harvey Birdman

ROBERT J. SCANDONE, ESQ.,

for Defendant William Richman

C. OLIVER BURT, III, ESQ.,

for Defendant Arthur Salaman

Addendum B A35

THE COURT: This is the matter of the United States

of America v. Harvey Birdman, William Richman, and

Arthur Salaman, Criminal No. 77-382.

Gentlemen, I will dispose of the motions which are

presently before me: the motions being, first, the motion

filed by Mr. Goldberg, and joined in by Mr. Scandone and

Mr. Burt on behalf of their clients, for disclosure of Grand

Jury matters.

First 1 want to observe that it is my understanding

that the testimony of all witnesses that the Government

expects to present has already been produced and, there-

fore, to that extent at the time of the filing of the motions

defendants had that material; is that correct?

MR. COLE: That is correct, Your Honor.

THE COURT: Very well.

Pursuant to that motion, the Government required the

Government to produce any statements or testimony by Mr.

Taylor or by SEC employees appearing before the Grand

Jury, and that has been received; is that correct, Mr. Gold-

berg?

MR. GOLDBERG: Only the Government can answer

that question, sir.

THE COURT: Well, you have received some, any-

way? You have received material which the Government

represents is Mr. Taylor's statement, and the SEC personnel

who appeared before the Grand Jury?

MR. GOLDBERG: Precisely, Your Honor; and they

have been marked DB-1 through DB-5.

THE COURT: You have produced that material; is

that correct?

MR. COLE: Yes, Your Honor.

A36 Addendum B

THE COURT: So that these items have been pro-

duced.

As to the general request for disclosure of all testimony

produced before the Grand Jury, the request is denied.

Turning next to the Motion to Dismiss the Indictment,

which is joined in by all three defendants: I have carefully

considered the motion, the response thereto, the memo-

randa filed and the arguments of counsel in regard to the

motion.

In terms of findings of fact, the Court accepts, and

finds of fact, the matters which the parties have been able

to stipulate or agree to here on the record during the course

of this particular proceeding; and that findings of fact and

the stipulations which the parties have made constitutes as

practically a matter on agreed facts. There seems to be no

essential facts which are not agreed to.

In considering the motion after considering these mat-

ters, the Court has decided that in regard to the time limit

objection presented by the Government, that the Court will

accept Mr. Goldberg's statement that he promptly filed the

motion upon receiving from the Government for the first

time transcripts of testimony of witnesses before the Grand

Jury, which transcripts reveal to Mr. Goldberg for the first

time, that Mr. Taylor not only was presenting matters to

the Grand Jury, but also identifying himself both as an

Assistant United States Attorney and an employee-attorney

of the Securities & Exchange Commission.

The Court thus finds that the motion is timely, because

the Government's basis for interposing this defense or ob-

jection to the motion was based on his belief that Mr.

Goldberg had previously received the transcript.

However, while not deciding, the Court notes that

probably there is a good basis for determining otherwise on

Addendum B A37

the time limits issue based on the information which was

clearly within the knowledge of Mr. Birdman.

However, I pass to the merits of the matter.

In passing to the merits of the matter, I deny the Mo-

tion to Dismiss the Indictment.

In explanation of this denial, it is clear that Mr. Taylor

has at all times relevant to this motion been an attorney and

officer of the Securities & Exchange Commission; and dur-

ing the investigation which focused, in part, on Mr. Bird-

man and Mr. Richman and Mr. Salaman, and companies

in which Mr. Birdman had an interest, he was clearly, dur-

ing all that time, an attorney and officer of the Securities &

Exchange Commission; and he was clearly acting in that

capacity, of course, when he handled the Delphi investiga-

tion.

The Court finds, as has been stated, that on May 7,

1975, Mr. Friedman, the attorney in charge of the Phila-

delphia Strike Force, requested the SEC to turn over rec-

ords dealing with the Delphi investigation. There was at

that time no formal recommendation by SEC for formal

prosecution, but I do not accord any weight to that be-

cause, clearly in my mind, the information as supplied by

Mr. Taylor was a factor in the Government's request to turn

over the records.

So that I consider that as being established that Mr.

Taylor's conversation with the Strike Force was a factor in

having the records turned over.

The Court notes that on June 13, 1975, Mr. Taylor was

duly appointed a special attorney, and was authorized and

was told in the letter that is attached to the Government's

response, that he would remain in the employ of the SEC

and be paid by the SEC.

A38 Addendum B

Certainly, as so appointed, he is an attorney for the

Government authorized to present matters to the Grand

Jury and, as so appointed, he is not an unauthorized person

appearing before the Grand Jury.

The Court notes the argument by defendants that

there may not be authority to appoint an attorney for the

SEC, in consideration of the independent-agency status of

SEC, and the Congressional enactment concerning the

SEC.

I find and conclude that Mr. Taylor could be duly ap-

pointed a special attorney, and that such appointment was

made.

In this regard, I would not—I have considered, but do

not tollow General Motors v. United States of America, to

the extent that that case is cited for the proposition that the

apparent conflict of interest which exists in dual employ-

ment requires the Court to impose a sanction, such as is

asked here, dismissal of the Indictment.

I note that General Motors Corporation does not in-

volve the sanction asked here; but I do not find that there

is clear conflict, or even apparent conflict, in an attorney

from a specialized agency being appointed as a special as-

sistant attorney.

Additionally, I note that Judge Higginbotham did not

at any time, when he looked at challenges to certain actions

by the Government in regard to the Delphi investigation—

that Judge Higginbotham knew that SEC attorneys could

be placed in the category of attorneys for the Government,

and never denied the Government the right to so use SEC

attorneys.

Thus, it is my conclusion that Mr. Taylor at all times

relevant was an authorized person to appear before the

Grand Jury.

Addendum B A39

The more serious challenge presented by defendant,

in my belief, is whether or not Mr. Taylor's testimony be-

fore the Grand Jury, or his statements before the Grand

Jury, however characterized, made him at that point an

unauthorized person to appear before the Grand Jury.

I believe it is possible for an authorized person, a

United States Attorney, on testifying before a Grand Jury

to give testimony of such a nature as to require that upon

testifying he withdrew as attorney. However, to deter-

mine whether Mr. Taylor comes within this category, I

have read the various copies of the appearances by Mr.

Taylor before the Grand Jury.

First, the appearance of November 17, 1976: The

Court notes that he identified himself as Dennis Taylor,

special attorney, United States Department of Justice, an

attorney with the Securities & Exchange Commission; and

the Court notes that in other testimony he similarly identi-

fied himself.

What has been stated, and what I have stated to be

testimony here, is probably mischaracterized as “testi-

mony,” insofar as it relates to the November 17, 1976, ap-

pearance. It is clear that all that Mr. Taylor did on that

occasion was to read testimony of William Richman given

to the Grand Jury—to the prior Grand Jury, and he merely

read that testimony.

It is clear in that regard, that he was doing no more

than a presenting attorney would have a right to do in

presenting evidence; and that the evidence presented was

actually that of Mr. Richman, not that of Mr. Taylor.

Accordingly, there would be no reason for finding that

that appearance before the Grand Jury made Mr. Taylor

an unauthorized person.

A40 Addendum B

Turning to his August 15, 1977 appearance: It is pos-

sible to read that particular transcript, and by taking state-

ments out of context, to conclude that he was giving testi-

mony. It is true that the transcript reports it is a sworm

statement.

However, a fair reading of the transcript of August 15,

1977, reveals, and the Court so finds, that he was acting

again as an attorney; explaining a proposed indictment;

identifying the parties named in the indictment; reviewing

evidence presented to the Grand Jury which supported the

indictment.

It is clear that he was not then testifying as a witness,

giving material or substantive evidence.

Turning to the September 6, 1977 transcript, which is

labeled “Testimony of Dennis Taylor”: The Court notes

that he was sworn; that he was questioned, and responded

to questions put to him by Mr. McCullough. Again he

identified himself in the dual role of attorney for the Se-

curities & Exchange Commission, and that he had been

granted special status by the United States Department of

Justice.

The transcript reveals that Mr. Taylor provided the

Grand Jury answers to. questions put to him by Mr. McCul-

lough, but that actually it was the supplying or explaining

to the Grand Jury the indictment which they would be

asked to return that same day. There is an explanation as

to how the various dates used in the Indictment were ar-

rived at.

The basic structure of the examination was that, start-

ing with each overt act in the conspiracy, to ask Mr. Taylor

how the particular date was arrived at.

ee Oe ener ee att Sk

Addendum B A4l

In almost every instance the answer reveals that it was

arrived at by viewing matters before the Grand Jury which

had been subpoenaed for the Grand Jury, testimony for the

Grand Jury, and this was true as to his testimony generally

before the Grand Jury.

It may be argued that the testimony on Pages 7, 10,

13 and 14, which relates to overt acts M, D, E-1 and H-1l,

that that testimony does not itself reveal that its source is

matters which had previously been before the Grand Jury.

However, once again reading the testimony as a whole,

or reading the transcript as a whole, it appears to this

Court that he was in fact summarizing evidence which the

Grand Jury had had presented to it by other witnesses.

I make two other comments in this regard. I note that

one objection is that Mr. Taylor, not only in the instances

stated but in other instances, always identified himself in

the dual capacity as an attorney for the SEC, and as a spe-

cial attorney with the United States Department of Justice.

I have listened to the arguments of counsel, and find

nothing improper in this designation. It does not appear to

have been used to unduly influence the Grand Jury, or to

have had any effect on the Grand Jury; but was in fact a

factual statement of his employment status.

So that that testimony and the characterization of him-

self in a dual capacity, the Court finds no impropriety in.

Similarly, the Court finds that there was nothing im-

proper in Mr. Taylor being a special attorney and having

appeared before the Grand Jury also. Other members of

the Securities & Exchange Commission—and the Court

notes, in order to pass on it, that DB-6 and DB-7 are ex-

amples of Mr. Taylor during the course of the Grand Jury

proceeding acting both as an attorney, in DB-6, for Securi-

ties & Exchange Commission and as a special attorney be-

fore the Grand Jury, in DB-7.

A42 Addendum B

As I said, I believe that acting in such dual capacity

is specifically authorized by law, and that there is no im-

propriety therein.

Looking at his testimony, however, I have viewed his

testimony after reading it, each transcript in context as be-

ing in all but the last instance, clearly nothing more than

the presentation of an explanation by an attorney to the

Grand Jury the evidence, or an explanation of an indict-

ment.

Certainly, there is no reason for dismissing this Indict-

ment for that type of formal presentation.

As to his last appearance before the Grand Jury:

Again, as I mentioned, in reading it in toto it appears that

the information supplied was formal information already

before the Grand Jury; an explanation, really, of the In-

aictment as to how the dates were arrived at.

Accordingly, the Court could not impose the sanction

which the Court imposed in the United States v. Treadway.

That Court based its sanction on the Rule 6, and also

on the Code of Professional Responsibility as it relates to

attorneys. That Court found that an attorney who testifies

to material contested facts ought not to act as an advocate

in that same matter; and found that the continuation of

acting as an attorney after having testified was such a

violation as required a dismissal of the indictment.

Here, I have found that the matters testified to—and

I do not really believe it is testimony, but it is so labeled

in the transcript—that the matters which Mr. Taylor stated

to the Grand Jury were formal in nature and, therefore,

does not call for the sanction which was imposed in Tread-

way.

In addition, I would note that in regard to his last

appearance, it would appear that that alone would not have

ee ae

i ee ee

ina tenets eNO E

Addendum B A438

been sanctioned conduct in Treadway, because the holding

in Treadway appears to be that once the witness assumes

the witness stand, he should no longer continue as an

advocate.

I note that after his last appearance there is no evi-

dence—indeed, the evidence is to the contrary, that any

evidence was presented by anyone to this Grand Jury. The

Grand Jury thereafter returned the Indictment on that

same day.

For these reasons I deny the Motion to Dismiss.

We shall proceed, at least, to get a jury panel. Per-

haps we can talk preliminarily about the process, the voir

dire.

Mr. Scandone has filed a motion. This motion was

filed in regard to 382; that in 78-70 there is no such motion

filed. But I will have the docket show that you join in that

motion, and your motion was not limited to 382. It was

intended to be as relates to 78-70, which involves Mr. Rich-

man only; is that correct?

MR. SCANDONE: That’s correct, Your Honor.

THE COURT: Mr. Goldberg.

MR. GOLDBERG: May we see Your Honor at side-

bar?

THE COURT: Surely.

(Discussion at side-bar off-the-record. )

(The Court and counsel proceed to chambers. )

A44

ADDENDUM C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 78-1940, 78-1979, 78-1980

UNITED STATES OF AMERICA

v.

HARVEY BIRDMAN and WILLIAM RICHMAN

Harvey Birdman, Appellant in 78-1940

William ‘Richman, Appellant in 78-1979/80

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, VAN DUSEN, ALDISERT,

ADAMS, GIBBONS, ROSENN, HUNTER, WEIS,

and GARTH, Circuit Judges

The petitions for rehearing filed by

appellants

in the above entitled case having been submitted to the

judges who participated in the decision of this court and to

all the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition for

rehearing is denied.

By the Court,

/s/ Max Rosenn

Judge

Dated: September 27, 1979