Appendix — Krum v. Michigan

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APPENDIX A

The Opinion of the Court of Appeals for the Fifth

Circuit upon which a Writ of Certiorari is sought.

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 22018

THE UNITED STATES OF AMERICA; THE HONOR-

ABLE NICHOLAS deB. KATZENBACH, Acting Attor-

ney General of the United States; and THE HONOR-

ABLE ROBERT E. HAUBERG, United States Attorney

for the Southern District of Mississippi,

Petitioners,

versus

HONORABLE W. HAROLD COX, United States District _

Judge of the United States District Court for the Southern

District of Mississippi,

: Respondent.

Petition for a Writ of Prohibition

No. 22019

THE HONORABLE ROBERT E. HAUBERG, United States

Attorney for the Southern District of Mississippi; and

THE HONORABLE NICHOLAS deB. KATZENBACH,

Acting Attorney General of the United States,

Appellants,

versus

HONORABLE W. HAROLD COX, United States District

Judge of the United States District Court for the Southern

District of Mississippi,

Appellee.

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Appeal from the United States District Court for the

Southern District of Mississippi.

(January 26, 1965.)

Before TUTTLE, Chief Judge, and RIVES, JONES,

BROWN, WISDOM, GEWIN and BELL, Circuit Judges.

JONES, Circuit Judge: On October 22, 1964, an order

of the United States District Court for the Southern Dis-

trict of Mississippi, signed by Harold Cox, a judge of that

Court, was entered. The order, with caption and formal

closing omitted, is as follows:

THE GRAND JURY, duly elected, impaneled and

organized, for the Southern District of Mississippi, re-

convened on order of the Court at 9:00 A.M., October

21, 1964, in Court Room Number 2 in Jackson, Missis-

sippi, for the general dispatch of its business. The

grand jury was fully instructed as to their duties,

powers and responsibilities and retired to the grand

jury room under 538 in the Federal Building at Jack-

son to do its work. The United States Attorney (and

one of his assistants) sat with the grand jury through-

out the day on October 21 and explained in detail to

the grand jury the perjury laws and the Court’s con-

struction of such laws for their information. The grand

jury heard witnesses throughout the day on October

21, 1964. On the morning of October 22, 1964, the grand

jury, through its foreman, made known to the Court

in open court that they had requested Robert E. Hau-

berg United States Attorney, to prepare certain indict-

ments which they desired to bring against some of the

persons under consideration and about which they

had heard testimony, and the United States Attorney

refused to draft or sign any such indictments on in-

structions of the Acting Attorney General of the United

States; whereupon the Court ordered and directed said

United States Attorney to draft such true bills or no

bills as the grand jury may have duly voted and de-

sired to repert and to sign such instruments as re-

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quired by law under penalty of contempt. The United

States Attorney was afforded one hour within which

to decide as to whether or not he would abide by the

instructions and order of the Court in such respect.

At the end of such time, the Court re-convened and

the United States Attorney was specifically asked in

open court as to whether or not he intended to con-

form with the order and direction of the Court in said

respects whereupon the United States Attorney an-

swered that he respectfully declined to do so on in-

structions from Nicholas deB. Katzenbach, Acting At-

torney General. He was thereupon duly adjudged by

the Court to be in civil contempt of the Court and was

afforded an opportunity to make any statement which

he desired to make to the Court before sentence;

whereupon the United States Attorney reiterated his

inability to comply with the order of the Court upon

express and direct instructions from Nicholas deB.

Katzenbach, Acting Attorney General of the United

' States.

WHEREFORE, IT IS ORDERED AND AD-

JUDGED by the Court that Robert E. Hauberg, United

States Attorney, is guilty of civil contempt of this Court

and in the presence of the Court for his said refusal

to obey its said order and he is ordered into custody

of the United States Marshal to be confined by him in

the Hinds County, Mississippi, jail, there to remain

until he purges himself of this contempt by agreeing

to conform to said order by performing his official

duty for the grand jury as requested in the several

(about five) pending cases before them on October 21

and October 22, 1964.

IT IS FURTHER ORDERED by the Court that a

citation issue to Nicholas deB. Katzenbach, Acting

‘Attorney General of the United States, directing him

to appear before this Court and show cause why he

should not be adjudged guilty of contempt of this

Court for his instructions and directions to the United

States Attorney to disregard and disobey the orders

of this Court in the respects stated.

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The United States Attorney requested a stay of

enforcement of this order and further proceedings

herein for five days after this date to enable him to

apply to the United States Court of Appeals for the

Fifth Circuit for a writ of prohibition and such re-

quest is granted; and these proceedings and enforce-

ment of this order in its entirety is stayed for five days,

subject to the further orders of the United States Court

of Appeals on said application; and for the enforce-

ment of all of which, let proper process issue.

The United States Attorney, Robert E. Hauberg, and

the Acting Attorney General, Nicholas deB. Katzenbach,

have appealed from the order and they, joined by the

United States, seek a writ of prohibition against the Dis-

trict Judge from enforcing the Court’s order, and from

asserting jurisdiction to require the Attorney General or

the United States Attorney “to institute criminal prosecu-

tions or to take any steps in regard thereto.” The facts

recited in the order are uncontroverted. No further facts

are essential to a decision of the issues before this Court.

Although the issues here presented arose, in part at least,

as an incident of 2 civil rights matter, no civil rights ques-

tions are involved in the rather broad inquiry which we

are called upon to make.

The constitutional requirement’ of an indictment or

presentment? as a predicate to a prosecution for capital or

infamous crimes has for its primary purpose the protection

of the individual from jeopardy except on a finding of

probable cause by a group of his fellow citizens, and is

designed to afford a safeguard against oppressive actions

of the prosecutor or a court. The constitutional prevision

is not to be read as conferring on or preserving to the

1. U.S. Const. Amend. V.

2. Nothing in this case involves or requires a discussion of a

presentment.

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grand jury, as such, any rights or prerogatives. The con-

stitutional provision is, as has been said, for the benefit

of the accused. The constitutional provision is not to be

read as precluding, as essential to the validity of an indict-

ment, the inclusion of requisites which did not exist at

common law.

Traditionally, the Attorney for the United States had

the power to enter a nolle prosequi of a criminal charge

at any time after indictment and before trial, and this he

could have done without the approval of the court or the

consent of the accused. It may be doubted whether, before

the adoption of the Federal Rules of Criminal Procedure,

he had any authority to prevent the return of an indict-

ment by a grand jury. There would be no constitutional

barrier to a requirement that the signature of a United

States Attorney upon an indictment is essential to its

validity.

It is now provided by the Federal Rules of Criminal

Procedure that the Attorney General or the United States

Attorney may by leave of court file a dismissal of an in-

dictment. Rule 48(a) Fed. Rules Crim. Proc. 18 U.S.C.A.

In the absence of the Rule, leave of court would not have

been required. The purpose of the Rule is to prevent

harassment of a defendant by charging, dismissing and re-

charging without placing a defendant in jeopardy. Wood-

ring v. United States, 8th Cir. 1963, 311 F. 2d 417. Rule 7

eliminates the necessity for the inclusion in an indictment

of many of the technical and prolix averments which were

required at common law, by providing that the indictment

shaii be a plain, concise and definite written statement

of the essential facts constituting the offense charged. The

Rule also provides that “It shall be signed by the attorney

for the government.”’ Rule 7(c) Fed. Rules Crim. Proc. 18

US.C.A.

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The judicial power of the United States is vested in

the federal courts,* and extends to prosecutions for viola-

tions of the criminal laws of the United States. The execu-

tive power is vested in the President of the United States,*

who is required to take care that the laws be faithfully

executed.® The Attorney General is the hand of the Presi-

dent in taking care that the laws of the United States in

legal proceedings and in the prosecution of offenses, be

f.ithfully executed.* The role of the grand jury is re-

stricted to a finding as to whether or not there is probable

cause to believe that an offense has been committed. The

discretionary power of the attorney for the United States

in determining whether a prosecution shall be commenced

or maintained may well depend upon matters of policy

wholly apart from any question of probable cause.’ Al-

though as a member of the bar, the attorney for the United

States is an officer of the court, he is nevertheless an ex-

ecutive official of the Government, and it is as an officer

of the executive department that he exercises a discretion

as to whether or not there shall be a prosecution in a par-

ticular case. It follows, as an incident of the constitutional

separation of powers, that the courts are not to interfere

with the free exercise of the discretionary powers of the at-

torneys of the United States in their control over criminal

3. U.S. Const. Art. ITI.

4. U.S. Const. Art. II, Sec. 1.

5. U.S. Const. Art. II, Sec. 3.

6. Ponzi v. Fessenden, 258 U.S. 254, 262, 42 S. Ct. 309, 66 L.

Ed. 607.

7. Schwartz, Federal Criminal Jurisdiction, 13 Law & Con-

temp. Prob. 64; 2 Ops. Att’y Gen. 482; 38 Ops. Att’y Gen. 98.

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prosecutions.* The provision of Rule 7, requiring the sign-

ing of the indictment by the attorney for the Government,

is a recognition of the power of Government counsel to per-

mit or not to permit the bringing of an indictment. If the

attorney refuses to sign, as he has the discretionary power

of doing, we conclude that there is no valid indictment. It

is not to be supposed that the signature of counsel is merely

an attestation of the act of the grand jury. The signature

of the foreman performs that function. It is not to be sup-

posed that the signature of counsel is a certificate that the

indictment is in proper form to charge an offense. The

sufficiency of the indictment may be tested before the

court. Rather, we think, the requirement of the signature

is for the purpose of evidencing the joinder of the attorney

for the United States with the grand jury in instituting a

criminal proceeding in the Court. Without the signature

there can be no criminal proceedirig brought upon an in-

dictment. Substantial compliance rather than technical

exactness meets the requirement of the rule. There seems

to be no authority for the statement that the absence of a

signature is not fatal. 4 Barron, Federal Practice & Pro-

cedure 61, § 1913.

If it were not for the discretionary power given to the

United States Attorney to prevent an indictment by with-

holding his signature, there might be doubt as to the con-

8. Statements of the controlling principles and references to

other precedents may be found in Dean Wing Jung v. United

States, 9th Cir. 1963, 312 F. 2d 73; Swepston v. United States,

8th Cir. 1961, 289 F. 2d 166, cert. den. 368 U. S. 812, 82 S. Ct.

689, 7 L. Ed. 2d 612; People v. Flerio, 301 N.Y. 48, 92 N.E.2d

881, 17 A L R 2d 993; Hassan v. Magistrates Court, 191 N.Y.S.

2d 238; Murphy v. Sumners, 54 Tex. Crim. App. 369, 112 S.W.

1070.

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stitutionality of the requirement of Rule 48 for leave of

court for a dismissal of a pending prosecution.°

Because, as we conclude, the signature of the Govern-

ment attorney is necessary to the validity of the indict-

ment and the affixing or withholding of the signature is

a matter of executive discretion which cannot be coerced

or reviewed by the courts, the contempt order must be

reversed. It seems that, since the United States Attorney

cannot be required to give validity to an indictment by

affixing his signature, he should not be required to indulge

in an exercise of futility by the preparation of the form

of an indictment which he is unwilling to vitalize with his

signature. Therefore he should not be required to prepare

indictments which he is unwilling and under no duty to

sign.

Judges Tuttle, Jones, Brown and Wisdom join in the

conclusion that the signature of the United States Attor-

ney is essential to the validity of an indictment. Judge

Brown, as appears in his separate opinion, is of the view

that the United States Attorney is required, upon the re-

quest of the grand jury, to draft forms of indictments in

accordance with its desires. The order before us for re-

view is in the conjunctive; it requires the United States

Attorney to prepare and sign. A majority of the court,

having decided that the direction to sign is erroneous, the

order on appeal will be reversed.

So much of the order of the district court as adjudges

the United States Attorney for the Southern District of

Mississippi to be in contempt is a final order, appealable

as such, and for the reasons here assigned, is reversed.

That part of the order of the district court as would re-

9. Consideration of the constitutionality of the rule is not

necessary for the disposition of the matters before us.

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quire the Acting Attorney General to show cause why he

should not be held in contempt is interlocutory and not

appealable, and the appeal of the Acting Attorney General

wil! be dismissed.

There remains for our consideration and disposition

the petition of the United States, the Acting Attorney

General and the United States, for a Writ of Prohibition

to prohibit the Respondent District Judge from enforcing

the order. The reversal of the order as to the United

States Attorney makes unnecessary, so far as he is con-

cerned, any consideration of the application for a Writ

of Prohibition. There has been no citation issued for

service on the Attorney General requiring him to show

cause. He has not yet been put in jeopardy. Our disposi-

tion of the appeal makes it improbable that such citation

will be issued and served. {t does not appear that there

is any necessity at this time for the issuance of the dis-

cretionary Writ of Prohibition. The petition will be denied.

We are of the opinion that whenever a United States

Attorney is under a legal duty which he has been directed

to perform by a valid order of court, his refusal to per-

form such duty and comply with such order will not be

justified or excused by instructions from the Attorney

General to disregard his duty and disobey the order. Thus

the way is open for relief if a further order is entered

with respect to the rendering of assistance to the grand

jury by the United States Attorney in the preparation of

indictments.

The respondent-appellee has challenged the right of

the United States to join in the petition for a Writ of Pro-

hibition. We find it unnecessary to pass on this question.

The Court’s mandate will issue forthwith. APPEAL

DISMISSED as to Katzenbach, Acting Attorney General.

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ORDER ON APPEAL REVERSED as to Hauberg, United

States Attorney PETITION FOR WRIT OF PROHIBI-

TION DENIED.

RIVES, GEWIN and BELL, Circuit Judges, Concurring

in part and dissenting in part:

The question presented arose pointedly when the fore-

man of the grand jury, in the presence of the grand jurors

in open court, requested help from the court as follows:

“BY FOREMAN COWAN:

“Judge Cox, we have under consideration three

different matters, two we have concluded, the third

is in the process of being concluded. On yesterday

we asired Mr. Hauberg, the United States District

Attorney, to assist us in preparing true bills in the

manner that we have been served here before hand-

ing us these bills. Mr. Hauberg said that he could

not do so without permission being given from the

Department in Washington. We concluded yesterday

afternoon by asking him to secure that permission and

to have those true bills ready for us this morning. Mr.

Hauberg now tells us that he has been instructed on

all three matters not so to do. In other words we are

at the position now in the event that we should vote

indictment why we don’t know what to do with it

after that may or may not be accomplished.” (Em-

phasis added)

The court then asked the District Attorney if he wished

to respond. The District Attorney stated that he had been

instructed by the Acting Attorney General not to prepare

the indictments. The record discloses that the grand jury

had heard evidence about certain matters which the At-

torney General’s office had already investigated and de-

termined did not warrant prosecution. The grand jury

had also heard evidence about matters of which the At-

torney General had no knowledge and had made no in-

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vestigation.' The District Attorney disclosed to the court

that the Acting Attorney General had directed him to re-

quest the FBI to investigate such matters, but that he had

likewise been directed not to proceed in assisting the grand

jury. In this colloquy the court stated to the District At-

torney that the court considered the grand jury to be

within its province in hearing the matters under con-

sideration and in passing upon them pursuant to their

oath. Accordingly, the court directed the District Attorney

to disregard his instructions from the Department of

1. “BY MR. HAUBERG: If the Court please, after the grand

jury requested me to prepare proposed indictments in several

matters on yesterday I contacted Mr. Burke Marshall and had a

lengthy conversation with him and was to receive further instruc-

tions early this morning, but last night I was instructed that not

to prepare the proposed indictments. This morning on the tele-

phone with Mr. Katzenbach, the Acting Attorney General of the

United States, and Mr. Burke Marshall both on the telephone there

I was directed by Mr. Katzenbach that as to the one of the matters

the Department of Justic2 and the United States felt as if the law

and the fact was not sufficient to constitute perjury and that an

indictment thereon would be no good.

“BY THE COURT: That’s in connection with two witnesses

for the government wasn’t it that they are considering?

“BY MR. HAUBERG: Yes, Your Honor, and as to the other

two matters the Department of Justice had no knowledge of the

individuals involved until the Grand Jury received or started

taking testimony on it starting out with Mr. Boyce Holleman back

I believe on the 30th of September and the Department had not

conducted or had the FBI conduct any investigation in either that

matter or in the matter which subsequently came to the attention

of the Grand Jury this week. I am authorized to state that the

Attorney General has requested me and directed me to ask the FBI

to investigate those other two matters, but that as United States

Attorney I would be unable to proceed in either one of these mat-

ters, so I have now as of this morning, Your Honor, been directed

by Mr. I. «tzenbach that as a United States Attorney or representing

the United States of America that I cannot proceed in any one of

these three matters, that Mr. Katzenbach, the Attorney General,

has taken away my authority as such.”

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Justice and to serve the grand jury by preparing the true

bills as had been requested. The court then recessed and

requested the District Attorney to « mmunicate further

with the Department of Justice and to advise that De-

partment of the instructions of the court. After the recess,

the District Attorney reported to the court that he had

conferred by telephone with the Acting Attorney General

who instructed him as follows:

“T have been instructed ‘As United States Attorney

neither you nor any of your assistants are authorized

to prepare or to sign indictments in the matters being

heard on October 21 and 22 by the Grand Jury and I

direct you and vour assistants to refrain from doing

so in your official capacity. If the Court should direct

you to disregard my instructions on pain of contempt

you should inform the Court that the Department will

immediate]: apply to the Court of Appeals for a writ

prohibiting such an order. You should request the

Court for a stay of further proceedings pending the

application and decision with respect to the writ of

prohibition.”

The court further inquired whether the District Attorney

was refusing to obey the court’s order to prepare true bills

and sign the same as requested by the grand jury “in these

cases presently pending and being considered by the Grand

Jury.” The District Attorney stated to the court as follows:

“If the Court please, because of instructions I have

received I most humbly and respectfully have to re-

fuse to comply.”

Thus the basic issue before this Court is whether the

controlling discretion as to the institution of a felony prose-

cution rests with the Attorney General? or with the grand

2. The United States Attorney has acted at the direction of

the Attorney General, and the record does not disclose his inde-

pendent views.

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jury. The majority opinion would ignore the broad in-

quisitoriai powers of the grand jury, and limit the consti-

tutional requirement of Amendment V to the benefit of

the accused.*

We agree with Professor Orfield that:

“The grand jury serves two great functions.”

One is to bring to trial persons accused of crime upon

just grounds. The other is to protect persons against

unfounded or malicious prosecutions by insuring that

no criminal proceeding will be undertaken without

a disinterested determination of probable guilt. The

inquisitorial function has been calied the more impor-

tant 3%

*86°Tn re Charge to Grand Jury, C.C.C.Cal. 1872,

30 Fed.Cas. pages 992, 993, No. 18,255, dissenting opin-

ion of Harlan, J., in Hurtado v. People of State of Cali-

fornia, 1884, 110 U.S. 516, 538, 555-556, 4 S.Ct. 111, 28

L.Ed. 232; Ex. parte Bain, 1887, 121 U.S. 1, 11, 7 S.Ct.

781, 786, 30 L.Ed. 849.

‘361In re Grand Jury Proceedings, D.C.E.D. Pa.

1333, 4 F.Supp. 283, 284.”

Orfield, The Federal Grand Jury, 22 F.R.D. 343, 394.

In the case last cited by Professor Orfield, Judge Kil-

patrick said:

“The inquisitorial power of the grand jury is the

most valuable function which it possesses today and,

far more than any supposed protection which it gives

to the accused, justifies its survival as an institution.

3. According to the majority, “The constitutional provision is

not to be read as conferring on or preserving to the grand jury, as

such, any rights or prerogatives. The constitutional provision is,

as has been said, for the benefit of the accused. The constitutional

provision is not to be read as precluding, as essential to the validity

of an indictment, the inclusion of requisites which did not exist at

common law.”

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As an engine of discovery against organized and far-

reaching crime, it has no counterpart. Policy emphat-

ically forbids that there should be any curtailment of

it except in the clearest cases.”

In re Grand Jury Proceedings, D.C.E.D. Pa. 1933, 4 F.Supp.

283, 284.

The grand jury possesses plenary and independent in-

quisitorial powers. The Supreme Court has held that an

Executive Order and a Circular Letter of the Department

of Justice requiring approval of the Attorney General be-

fore any evidence could be presented in certain cases “was

not intended to curtail or limit the well-recognized power

of the grand jury to consider and investigate any alleged

crime within its jurisdiction. See United States v. Thomp-

son, 251 U.S. 407, 413-415; Blair v. United States, 250 US.

273, 282; Hale v. Henkel, 201 U.S. 43, 61-66; Frisbie v.

United States, 157 U.S. 160, 163.” Sullivan v. United States,

1954, 348 U.S. 170, 173.

A federal grand jury has the unquestioned right to

inquire into any matter within the jurisdiction involving

violations of law and to return an indictment if it finds a

reasonable probability that a crime has been committed.

This it may do at the instance of the court, the District

Attorney, the Attorney General or on its own initiative,

from evidence it may gather or from knowledge of its

members.*

The majority holds that: “The provision of Rule 7, re-

guiring the signing of the indictment by the attorney for

4. Hale v. Henkel, 1906, 201 U.S. 43; United States v. Thomp-

son, 1920, 251 U.S. 407; Blair v. United States, 1919, 250 U.S. 273;

Frisbie v. United States, 1895, 157 U.S. 160; United States v.

Phiiadelphia & R.Ry. Co., E.D. Pa. 1915, 225 Fed. 301; United States

v. Smythe, N.D. Cal. 1952, 104 F.Supp. 283; Re Miller (DC Pa)

F.Cas. No. 9552; and see Re Charge to Grand Jury (CC W.Va.)

F.Cas. No. 18248.

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the Government, is a recognition of the power of Govern-

ment counsel to permit or not to permit the bringing of

an indictment.”

With deference we call attention that no authority is

cited in support of that holding and we submit that it

ignores the history of the grand jury and of the Rules of

Criminal Procedure. Professor Orfield, himself a member

of the Advisory Committee on Rules of Criminal Pro-

cedure, has preserved for us the history of Rule 6, cap-

tioned “‘The Grand Jury.” See 22 F.R.D. 346-357. There

is nothing in that history, nor in the succeeding Rule 7,

which would authorize Government counsel to so radi-

cally reduce the powers of the grand jury. To the con-

trary, Professor Orfield points out that before the federal

criminal rules, “It was the practice of the United States

Attorney cr his assistant to sign the indictment and for

the foreman to sign below the endorsement ‘A True Bill’

on the face of it.” 22 F.R.D. 377, 378. Rule 7 simply con-

tinued the already existing practice. Professor Orfield

further States,

“When the United States Attorney does sign, this

‘merely attests the action of the grand jury.**’

*857Crowley v. United States, 1904, 194 US. 46i,

475, 24 S.Ct. 731, 737, 48 L.Ed. 1075.”

22 F.R.D. at 394. In the case cited by Professor Orfield,

Crowley v. United States, 1903, 194 U.S. 461, 475, the Su- ©

preme Court said:

“The indictment embodies charges made by grand

jurors, and the signature of the United States Attor-

ney merely attests the action of the grand jury,

whereas an information rests upon the responsibility

of the attorney representing the Government, and im-

ports an investigation of the facts by him in his offi-

cial capacity.” (Emphasis added.)

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The finding and return of the indictment are the acts

of the grand jury. When a United States Attorney pre-

pares and signs an indictment, he does not adopt, approve,

or vouch for the charge, nor does he institute a criminal

prosecution.°®

The United States Attorney cannot, except in an ad-

visory capacity, inquire into the merits of whether indict-

ments should be found and returned in particular cases

being considered by the grand jury. Only the grand jurors

themselves have that power. It would be grossly wrong

for it to be usurped. Moreover, that is praciically impos-

sible, because “no person other than the grand jurors may

be present while the grand jury is deliberating or voting.”

Rule 6(d), F.R. Crim. P. The responsibility of finding and

returning an indictment rests solely upon the grand jurors.

The majority holds, “If the attorney [that is the at-

torney for the Government] refuses to sign, as he has the

discretionary power of doing, we conclude there is no valid

indictment.” The only authority cited for that holding is

4 Barron, Federal Practice & Procedure 61, § 1913, which, in

turn, cites Wheatley v. United States, 4 Cir. 1946, 159 F.2d

599, where the rule was well stated as follows by Judge

Soper, Judges Parker and Dobie concurring:

“It has been held that the signature of the prosecuting

attorney is no part of the indictment and is necessary

only as evidence of the authenticity of the docurnent;

and it has also been held that the improper signing of

an indictment is not such a defect as would invalidate

the instrument; In re Lane, 135 U.S. 443, 449, 10 S.Ct.

760, 34 L.Ed. 219; Miller v. United States, 6 Cir., 390

F. 529, 536, certiorari denied, 266 U.S. 624, 45 S.Ct. 123,

5.. That is true also as to the foreman who is under a duty to

“sign all indictments,” including those for which he does not vote.

See Rule 6(c). (Emphasis added.)

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69 L.Ed. 474; King v. United States, 5 Cir.,-279 F. 103,

104; United States v. McAvoy, C.C.N.Y., 26 Fed.Cas.

(No. 15,654) 1044, 1045.”

We submit that the rule is well settled that the absence

of the signature of the United States Attorney from an

indictment does not invalidate a conviction based on it.®

Rule 7(c), F.R. Crim. P., provides that the indictment

“shall be signed by the attorney for the government.”

Rule 6(c) requires that the foreman of the grand jury

also “shall sign all indictments.”* An indictment may be

found upon the concurrence of twelve or more jurors. It

must be returned by the grand jury to a judge in open

court. Such return is not adequate authentication. Rule

6(f). Professor Orfield states that, “Indorsement is de-

sirable as sometimes grand juries return indictments which

they have not found.” Orfield, “The Federal Grand Jury,”

22 F.R.D. 343, 347. The signature of the United States At-

torney is a mere authentication. that the indictment is the

act of the grand jury.

It is not for us to pass upon the wisdom of requiring

such authentication. It is enough that the law provides

for the indictment to be authenticated by the signature

of the attorney for the government. The United States

Attorney is an officer of the court, and may be required to

perform this purely ministerial act. There are few legal

6. In re Lane, 1890, 135 U.S. 443, 449; Abramson v. United

States, 5 Cir. 1964, 326 F.2d 565, 567; United States v. Keig, 7 Cir.

1964, 334 F.2d 823; Wiltsey v. United States, 4 Cir. 1955, 222 F.2d

600; Wheatley v. United States, 4 Cir. 1946, 159 F.2d 599; King v.

United States, 5 Cir. 1922, 279 Fed. 103.

7. “Attorney for the government” is defined in Rule 54(c),

¥F.R. Crim. P.

8. The forms attached to Rule 58 provide for the signatures

of both the foreman and the United States Attorney.

Al18

documents which bear more awful import and potentiai ¢t-

fect upon liberty and life than does an indictment. The

importance of an indictment makes rational the triple

authentication which the rules have seen fit to require;

viz., that it be signed both by the attorney for the govern-

ment and by the foreman, and that it be returned by the

grand jury to a judge in open court. All doubt will thus

be removed as to whether the indictment is really the act

of the grand jury.

The Attorney General himself takes the position that

the grand jury has the power to return a valid indictment

without the signature of the District Attorney, but con-

tends that such an indictment does not require the defend-

ant charged therein to answer or plead to it, or to appear

and give bond. Such an indictment, according to the At-

torney General’s contentions, is innocuous so far as the

defendant is concerned, unless and until the District At-

torney or one of his assistants signs. In the meantime it

is conceded that such an indictment would lie in court in-

active and ineffective. Statutes of limitations would not

be tolled by the return of such an indictment according

to the Attorney Generai. He asserts that only the signa-

ture of the District Attorney (or his authorized assistants)

gives the indictment life. Such argument is used to sup-

port the position that the action of the Department of

Justice or the District Attorney in refusing to prepare or

sign the indictment in no way impairs, impedes or in-

fluences the action of the grand jury. The Attorney Gen-

eral suggests that the grand jury can obtain assistance

to a degree from the judge, and that some “outside per-

son” may assist the grand jury in preparing the indict-

ment, but that such “outside person’? has no authority

to sign the indictment and no authority to enter the grand

jury room. In our view, the position of the Attorney Gen-

eral is untenable. We subscribe fully to the following as-

A19

sertion from the exhaustive and scholarly opinion of Judge

Fee in United States v. Smyth, subsequently cited with

approval by the Supreme Court in Sullivan v. United

States, supra.

“The grand jury is similar to the trial jury who may

convict notwithstanding positive instructions to ac-

quit and who may pardon notwithstanding a direction

to find guilty. Unquestionably, the grand jury are

under no necessity to follow the orders of the prose-

cutor. They can present an indictment whether he will

or not.’® (104 F. Supp. 283, 294.)

9. In support of the quoted conclusion, Judge Fee quotes the

following in footnote 44 from the Manual for Grand Jurors, pre-

pared by the Federal Grand Jurors Association fo: the Eastern

Disfrict of New York, Congressional Record, February 21, 1952,

A1115°

“‘g What is the place of the United States Attorney (or

his assistant) in the functioning of the grand jury? You must

naturally accord him the respect due an officer of the govern-

ment, sworn to protect and enforce its laws; you must realize

that usually he is an intelligent, experienced individual acting

in all sincerity. But do not forget that he is, from the view-

point of the grand jury, only a lawyer, an agent of the Federal

Department of Justice and by law he is only the legal advisor

to the grand jury. This does not make him infallible in his

opinions, although his experience and position require respect-

ful attention of the jurors. Should a dispute arise between him

and the grand jury, recourse should be had to the federal judge

who administered the oath to you.’ The grand jury has the

power and duty: ‘7. To insist at all tirnes on the independence

of the grand jury from pressures of any sort, whether these

stem from the prosecuting official or the court * * *.’”

Judge Fee makes the following additional assertions in his

opinion as to the power of grand jurors:

«_..As such, with its essential elements of plenary power to

investigate and secrecy of its deliberations, it was preserved

by the Constitution of the United States not only to protect the

defendant but to permit public spirited citizens, chosen by

democratic procedures, to attack corrupt conditions. A criti-

cism of the action of the grand jury is a criticism of democracy

itself.” (Opinion p. 288.)

«|. But the grand jurors, by use of secrecy of their pro-

ceedings, stubbornly retained the power of instituting an in-

A20

The Attorney General insists that the prosecution of

offenses against the United States is an executive func-

tion of the Attorney General deraigned from the executive

power vested in the President to “take care that the laws

be faithfully executed.” U.S. Const. art. II, §3. The

short answer is that one of the most fundamental and im-

portant of the laws so to be faithfully executed is the

clear and explicit provision of the Fifth Amendment to

the Constitution that “No person shall be held to answer

for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a grand jury... .”

The Fifth Amendment adopted the grand jury as it had

then been developed in England over the course of many

centuries, and made it a part of the fundamental law of

the United States for the institution of prosecutions for

crime.’® Thus the grand jury originated long before the

doctrine of separation of powers was made the consti-

tutional basis of our frame of government. The same Con-

stitution which separated the three powers of govern-

ment adopted the institution of the grand jury. It follows

that no nice distinction need be drawn as to whether the

grand jury may perform some function of the executive

department. As well said by the Seventh Circuit:

vestigation of their own knowledge or taking a rumor or sus-

picion and expanding it through witnesses. As we shall see,

this comprehensive power also remains at this hour. The Con-

stitution of the United States preserved the grand jury with

all its powers and inherent character .... No other instru-

ment can cope with organized crime which cuts across state

lines, conspiracies to overthrow the government of the United

States, or alleged deviations from rectitude hy those who have

been entrusted by the government with public trust. Even

the most virulent critics are unanimously in accord that the

grand juries must be preserved in the federal system for these

purposes.” (Opinion pp. 290-91.) ;

10. See Costello v. United States, 1956, 350 U.S. 359, at 361;

Ex parte Bain, 1887, 121 U.S. 1, 10, 11; In re Apri! 1956 Term

Grand Jury, 7 Cir. 1956, 239 F.2d 263, 268, 269.

A21

“While the grand jury is, in a sense, a part of

our court system, when exercising its traditional func-

tions it possesses an independence which is unique.

Its authority is derived from none of the three basic

divisions of our government, but rather directly from

the people themselves.”

In re April 1956 Term Grand Jury, 1956, 239 F.2d 263, 269.

Moreover, in point of law and reality, the plenary in-

quisitorial power of the grand jury does not impinge in

the slightest upon the executive function of the Attorney

General to prosecute or not to prosecute offenses against

the United States, for as soon as the indictment is re-

turned, “The Attorney General or the United States At-

torney may by leave of court file a dismissal ....” Rule

48(a), F.R. Crim. P. The majority expreks the view that

their holding of a discretionary power of the United States

Attorney to prevent an indictment is needed to remove

some doubt as to the constitutionality of the requirement

of Rule 48 for leave of court for a dismissal of a pending

prosecution. We do not agree that any such doubt ex-

ists. Rule 48(a) was primarily intended to authorize the

court to protect defendants and not to confer prosecutive

functions upor the court. Judge Weinfield in United

States v. Greater Blouse, Skirt & Neckwear Contractors

Ass’n, S.D.N.Y. 1964, 228 F. Supp. 483, 489-490, well de-

scribed the situation which might arise after indictment

where the Attorney General or the United States Attor-

ney does not wish to prosecute and where the district

court denies dismissal:

“The Attorney General is the head of the Department

of Justice, a part of the Executive branch of the Gov-

ernment. Even were leave of Court to the dismissal

of the indictment denied, the Attorney General would

still have the right to adhere to the Department’s view

that the indictment cannot be supported by proof upon

a trial of the merits, and accordingly, in the exer-

A22

cise of his discretion, decline to move the case for

trial. The Court in that circumstance would be with-

out power to issue a mandamus or other order to com-

pel prosecution of the indictment, since such a

direction would invade the traditional separation of

powers doctrine. And if the indictment continues to

remain in status quo, each defendant would be in a

position to move for dismissal of the indictment under

Rule 48(b).”

The grand jury may be permitted to function in its

traditional sphere, while at the same time enforcing the

separation of powers doctrine as between the executive

and judicial branches of the government. This can best

be done, indeed, it is mandatory, by requiring the United

States Attorney to assist the grand jury in preparing

indictments which they wish to consider or return, and

by requiring the United States Attorney to sign any in-

dictsnent that is to be returned. Then, once the indictment

is returned, the Attorney General or the United States

Attorney can refuse to go forward. That refusal will, of

course, be in open court and not in the secret confines

of the grand jury room. To permit the district court to

compel the United States Attorney to proceed beyond this

point wouid invest prosecutorial power in the judiciary,

power which under the Constitution is reserved to the

executive branch of the government. It may be that the

court, in the interest of justice, may require a showing

of good faith, and a statement of some rational basis for

dismissal. In the unlikely event of bad faith or irrational

action, not here present, it may be that the court could

appoint counsel to prosecute the case. In brief, the court

may have the same inherent power to administer justice

to the government as it does to the defendant. That ques-

tion is not_now before us and may never arise. Except

for a very limited discretion, however, the court’s

power to withhold leave to dismiss an indictment is solely

for the protection of the defendant.

A23

The United States Attorney'‘is under an affirmative

and mandatory duty to lend his assistance to a grand jury

in making effective its decision to institute a criminal prose-

cution. When the grand jury insists on finding and re-

turning an indictment, the Attorney General must acqui-

esce, even though its action may be contrary to the advice

of the United States Attorney. The further prosecution

of the case is another matter.

We agree that proper enforcement of the law does not

require that indictments should be returned in every

case where probable cause exists. Public policy may in

some instances require that a case not be prosecuted. Such

consideration of public policy may be submitted to and

acted on by the grand jury. As well said by Colonel E. R.

Mattoon in an article entitled “The Lawyer as a Social

Force,” 15 Ala. Law. 55, 64 (1954): “. . . the jury system

calls on the lawyer to have faith in the common man—

that the average citizen can be relied on, when given an

adequate explanation, to understand a problem, apply

reason to it, and arrive at a wise solution. This faith in

the coinmon man to solve his problems by his own reason

is of the essence of a democracy.” In the few cases in

which the United States Attorney is unable to persuade

the grand jury and the Attorney General disagrees with

its action, his recourse is not to prevent the grand jury

from finding and returning’ an effective indictment, but to

file a dismissal of the indictment under Rule 48(a), F.R.

Crim. P."!

11. Under the Attorney General’s theory as to separation of

powers, it is logical to argue that the Attorney General or the

United States Attorney has the power to prevent a bench warrant

from issuing on an indictment even though it has been held that

the court itself has no such power. Ex parte United States, 1932,

287 U.S. 241. Such a result is, however, somewhat anomalous or

at least startling.

A24

For the Attorney General to prevent the grand jury

from returning an indictment would, in effect, be to con-

fine the grand jury to returning a mere presentment. That

derogates from the grand jury its alternative power to

return either “a presentment or indictment.” U.S. Const.

amend. V. The power of the grand jury cannot be limited

in any case to a presentment; it may return an indictment.

Looking beyond the present controversy, one can fore-

see the grave danger inherent in such a restriction of the

powers of a grand jury. If a grand jury is prevented

from returnins an indictment no more effective than a

presentment, the statute of limitations may permanently

bar prosecution for the crime. When the presentment is

made public, the accused may flee or witnesses may get

beyond the jurisdiction of the court. For all practical

purposes, the case could be dead and there would be no

point in any future Attorney General causing the pre-

sentment to be followed by an indictment. Worse still,

this could be accomplished in the shadows of secrecy,

with the Attorney General not being required to disclose

his reasons. How much better is the constitutional system

by which the grand jury can find and return an effective

indictrrent upon which a prosecution for crime is insti-

tuted. At that point the power of the grand jury ceases.

It is effectively checked and overbalanced by the power

of the Attorney General, recognized in Rule 48(a), to

move for a dismissal of the indictment. The court may

then require such a motion to be heard in open court.

Instead of a prevention in the shadows of secrecy, there

would be a dismissal] in a formal, public judicial proceed-

ing. We do not believe that the Acting Attorney Gen-

eral has the authority to instruct a District Attorney to

refuse to serve a grand jury when help is requested directly

by the grand jury and when he is ordered by the pre-

siding trial judge to give such service and assistance.

A25

That question arose in United States v. Smyth, supra,

where there appeared to be a conflict between an as-

sistant district attorney and his superiors. The court con-

cluded:

“. . . So, when the grand jury is impaneled, an As-

sistant United States Attorney goes into the grand jury

room. So far as the grand jury and the public are

concerned, he is the United States Attorney. All ac-

cep. him as such. He need net wear a uniform. He

need not present to the grand jury authorization

signed by the United States Attorney. He is an of-

ficer duly designated and acting by virtue of his ap-

pointment. He has power to be present at any session

of the grand jury and may talk to them freely inside

or outside the grand jury room, except when the

grand jury is deliberating or voting. His authority is

not destroyed by any order of the United States At-

torney that someone eise conduct the proceedings or

by any controversy in che office of the United States

Attorney.” (Emrnasis added.) (104 F. Supp. 306.)

In brief and in oral argument the Acting Attorney

General states that ethical or moral considerations sup-

port his refusal to permit assistance to the grand jury or

to permit the signing of the indictment by a government

attorney. He relies on Rule 11, FR. Civ. P. and Rule 7(c),

F.R. Crim. P."* We disagree. It is true that an indict-

ment may properly be described as a type of pleading in

a criminal case, but it constitutes the acticn of the grand

jury and not the Attorney General. No one coulc logi-

eally contend that the Attorney General cr the Listrict

Attorney was preferring the charges, because neither of

12. See Rule 7(c), F-R. Crim. P. Rule 11 provides:

“The signature of an attorney constitutes a certificate by him

that he has read the pleading; that to the best of his knowl-

edge, information, and belief there is good ground to support

it: and that it is not interposed for delay. * * * For a wilful

violation of these rules an attorney may be subjected to ap-

propriate disciplinary action.”

A26

them is permitted to remain in the grand jury room dur-

ing deliberations or when the grand jurors vote a true bill

or refuse to indict.'* It is well for the Attorney General

to investigate, but conclusions :2ached by him as to facts

ere not binding on the grand jury. Grand jurors are un-

limited in their inquisitorial powers. Their source of in-

formation is not limited to facts disclosed by investigative

agencies or to information furnished by the Attorney Gen-

eral or the District Attorney.** It is often true that law-

yers and judges alike disagree with the actions of petit

juries and grand juries. Corrective legal action may be

taken, but neither the grand jury nor the petit jury can

be compelled to follow the course of action desired by

either the court or the Justice Department. The short

answer to all of these contentions is the fact that Rule

11, F.R. Civ. P. does not apply to an indictment. On the

other hand, Rule 7(c), F.R. Crim. P. positively requires

the signature of the District Attorney.

By way of precaution, let us state that nothing here

said is intended to reflect upon the present Acting At-

torney General, in whose integrity we have the utmost

confidence. Memory goes back, however, to days when

we nad an Attorney General suspected of being corrupt.

13. The rule may be different as to significance of the Dis-

trict Attorney’s signature on an information. That queStion is not

before us.

14. The following statement of the rule was approved in

United States v. Thompson, 1920, 251 U.S. 407, 64 L.ed. 333:

“That the power and duty of the grand jury to investigate is

original and complete, susceptible of being exercised upon its

its OF . mo, on and upon such knowledge as it may derive

from any source which it may deem proper, and is not there-

fore dependent for its exertion upon the approval or disap-

proval of the court; that this power is continuous, and is there-

fore not exhausted or limited by adverse action taken by a

grand jury or by its failure to act, and hence may thereafter

be exerted as to the same instances by the same or a subse-

quent grand jury.”

A27

There is no assurance that that will never again happen.

We are establishing a precedent for other cases; we are

construing a Constitution; we should retain intact that

great constitutional bulwark, the institution of the grand

jury.

On the cases before the Court, we agree with Judge

Brown that the United States Attorney is required, upon

the request of the grand jury, to draft forms of indictment

in accordance with its desires. There is thus a majority

of the Court in favor of that holding. We go further, and

think that the United States Attorney is required to sign

any indictment that may be found by the grand jury.

We concur with the majority as to the dismissal of the

appeal of the Acting Attorney General and as to the de-

nial of the petition for writ of prohibition. We would,

however, affirm the judgment of civil contempt against

the United States Attorney.

We therefore concur in part and dissent in part.

BROWN, Circuit Judge, concurring specially:

Mine is a middle course. | agree with the opinion

written by Judge Jones that the District Attorney may

not be compelled to sign the formal indictment which

the Grand Jury has voted to return. I concur also that

F.R. Crim. P. 48(a) vests the unfettered discretion in the

District Attorney to determine whether a prosecution is

to be maintained or dismissed. The trial Court’s range of

action is confined to the protection of the rights of the

defendant, F.R. Crim. P. 48(b). But I do not agree that

the District Attorney may ignore the efforts of the Grand

Jury to the point of declining to prepare in proper legal

form the indictment they have voted to return. On the

contrary, I am of the view that the Court may properly

compel the District Attorney to act as legal scrivener to-

A28

the Grand Jury. The Court may, therefore, order the

District Attorney to prepare the indictment in legal form.

Since the joint Rives-Gewin-Bell opinion would empower

the Court to compel signing of the indictment—a thing

which necessarily encompasses preparation of the writing

—I align myself with them to the extent of ordering the

District Attorney to prepare the indictment.

Before discussing this limited duty, I have these com-

ments in furtherance of the Court's holding that the prose-

cutor may not be compelled to sign the indictment—the

necessary last step to an indictment’s vitality.

Responsibility for determining whether a prosecution

is to be commenced or maintained must be clearly fixed.

The power not to initiate is indeed awesome. But it has

to reside somewhere. And the more clearly pinpointed it

is, the more the public interest is served through the focus

of relentless publicity upon that decision. It may not, with

safety, be left to a body whose great virtue is the combi-

nation of anonymity, transitory authority, and en

unresponsibility.

All must be aware now that there are times when the

interests of the nation require that a prosecution be fore-

gone. These instances will most often be in the area of

state secrets and national security. With stakes so high,

the safety of our country, and hence the security of the

world, ought not to be imperiled by leaving the important

decision to a body having no definitive political responsi-

bility. And it is hardly realistic to suggest, as do the

dissenters, that these factors may be evaluated by the

Giand Jury. What will be the source of their informa-

tion? How extensive will it be? How close will a Grand

Jury session approach a presidential cabinet meeting?

How wil! essential government secrets be kept when dis-

A29

closed to persons none of whom as Grand Jurors will

have been subjected to customary security clearance checks?

And even in less Sensitive areas, the practical oper-

ation of the prosecutorial function makes imperative the

need for executive determination. The familiar example

those who, often equally guilty, are named as co-conspira-

tors but not as defendants, or others not named who are

executive’s purpose to effectuate Specific policies thought

to be of major importance would be frustrated or encum-

Putting to one side these factors which bear on the

delicate nature of governmental decisions, there are tech-

nical reasons indigenous to criminal law which are equally

and experience of laymen composing the Grand Jury.’

The aim of the Grand Jury indictment as the means of

protecting the citizen against the initiation of unfounded

1. Use of the “law” is a common weapon against members

of a class seeking to achieve civil] rights. Such action is now

Specifically prohibited by the Civil Rights Act of 1984. See, e.g.,

§203(c), 42 USCA §2000a-2 (1964).

2. See, as examples, prosecution for violation of the Pure

Food & Drug Act, Van Liew v. United States, 5 Cir., 1963, 321 F.2d

664, and 321 F.2d 674; and for failure to file SEC registration

A30

charges is hardly advanced by a rule that permits the ©

Grand Jury on its own to initiate the prosecution when

the conscientious District Attorney knows to a legal cer-

tainty that a federal crime cannot be established.

Finally, it seems to me incongruous to assert, as do

the dissenters, that the signing of the indictment is a min-

isterial act having no function other than one of authenti-

cation. I am, of course, aware that language of such

import has been employed in some of the cases.* I do not

see why an indictment formally signed by the foreman

and reported in a solemn open court proceeding as the act

of the Grand Jury needs “authentication”. And I am at

a complete loss to understand how the District Attorney—

excluded as he is from the Grand Jury while it is voting,

F.R. Crim. P. 6(d)—can “authenticate” from hearsay, or

why his imprimatur is any better or different than that

which would come from other Grand Jurors, each of

whom can be polled by the Judge, not as to his vote, but

whether a majority did vote to return the true bill.*

The fact is that the signature.of the District Attorney

has much more awesome consequence. Without a doubt

that signature, together with that of the Grand Jury’s

foreman, is a formal, effective initiation of a prosecution.

What it might be in the absence of the District Attorney’s

signature, we need not determine. With it, the whole

prosecution has been started. And what was previously

3. See note € of the Rives-Gewin-Bell opinion. Interestingly

enough, in all but one the indictment was actually signed, though

signed by the Assistant District Attorney, not the District Attorney

himself. In the other the signature was typed. No case has yet

held that an indictment which the District Attorney deliberately

refuses to sign has any vitality.

4. In the instant case signature or other action of the District

Attorney was not needed to establish what the Grand Jury desired

to do.

A31

an unfettered discretionary right on the part of the ex-

ecutive not to initiate prosecution has now been set in

motion and can be stopped only on the executive taking

affirmative action® for dismissal with all of the uncertain-

ties which F.P Crim. P. 48(a) generates.®

But while I am firm that signature is a vital and sig-

nificant act which reflects the exercise of an executive

discretion to initiate prosecution—-a thing here lacking—

I am equally positive that the District Attorney has the

duty to prepare the indictment when requested to do so

by the Grand Jury. If this lacks logical consistency, I can

only urge that an institution as old as the Grand Jury,

5. The humor of the incident as reported by the Supreme

Court of California does not conceal this great historical truth:

“An incident related in 2 Campvteli’s Lives of the Chancellors

173 is of interest in this connection. After Lord Holt had

ordered the imprisonment of a group of fanatics called

‘Prophets’ for seditious language, he was visited by Lacy, one

of their friends, who informed a servant that he carried a

message ‘from the Lord God.’ Lacy was admitted and told

Lord Holt: ‘I come to you a prophet from the Lord God, who

has sent me to thee, and would have thee grant a nolle prosequi

for John Atkins, his servant, whom thou has cast into prison.’

Lord Holt replied: ‘Thou art a false prophet, and a lying

knave. If the Lord God hae sent thee it would have been to

the Attorney-General, for he knows that it belongeth not to

the Chief Justice to grant a nolle prosequi; but I, as Chief

Justice, can grant a warrant to commit thee to bear him com-

pany.’ ”

People v. Sidener, 1962, 25 Cal. Rptr. 697, 698, n. 4, 375 P.2d 641,

642.

6. The Court seems to be in virtual agreement that this rule

is for the protection of the defendant alone. But the fact is we

have not yet so held in a case directly presenting the question and

in any event, viewed from the standpoint of the parties here,

neither the District Attorney nor the Attorney General were re-

quired to assume that Rule 48(a) might not ultimately be con-

strued as reserving considerable power to the District Judge him-

self in determining whether to enter a dismissal on the Govern-

ment’s motion. Actually, of course, the dissenters’ concurrence

on this is carefully hedged.

A32

implanted in the structure as idealistic as the Constitution,

is one born, not out of logic, but out of the needs of his-

tory’s rich experience.

Whether a Grand Jury is, or is not, an agency outside

of or beyond the traditional three powers, it certainly ex-

ists. It exists as a distinct institution with important

functions. It operates as an established agency in con-

nection with the Federal Judiciary. It is customarily

charged with the important duty—as it was here specifi-

cally—to look into all crimes against the Federal Govern-

ment.

Since it is charged with the duty of ascertaining

whether, in the opinion of the Grand Jury, there is proba-

ble cause for believing that federal crimes have been com-

mitted, it has not only the right but the imperative duty

to make a report of its conclusions to the tribunal giving

it those instructions. As it is an instrument of the law, it

is entitled to make its official report in a mode and termi-

nology befitting that atmosphere. Broadly stated, it may

report in one of three ways. It may formally report a

no bill. It may return a true bill indictment in customary

form. Or it may return a presentment, a constitutional

mode fortunately no longer practiced.

To me the thing seems this simple: the Grand Jury is

charged to report. It determines what it is to report.

It determines the form in which it reports. Once it de-

termines that what it wants to report is to be in the

form of a true bill indictment, it obviously needs legal

help. Unless its official report is to have no more sig-

nificance than a presentment—a loose and ambiguous pro-

cedure which will not constitute the initiation of a prose-

cution—it is essential that the indictment be drawn with

great care and precision. Even with the modern and

proper liberality in procedural matters, both civil and

A33

criminal, the indictment to be valid must fairly assert

each essential element of the crime.” It is a denial of all

that the profession of law stands for to think that at this

important juncture in its work, the Grand Jury can get

along without a lawyer. The need is imperative. The

source of help is restricted. It has neither the means

nor the capability of obtaining or using outside counsel.

The very nature of the Grand Jury proceedings makes it

impermissible for private counsel to work with and par-

ticipate in Grand Jury inquiries. And it is unrealistic

to suppose that through some sort of controlled con-

frontations, the Grand Jury, or its emissaries, could dis-

close enough of the facts heard to permit the lawyer to

draft the indictment without, at the same time, rending

the veil of secrecy.

There are a number of reasons why it is essential that

the Grand Jury’s conclusions be reflected in language

which is legally sufficient and in proper form.

First, and perhaps foremost, in no other way can the

Grand Jury effectively carry out its obligations as charged

to it by the Judge. An important historical body, it ought

not to have to cast about for recognition or, seemingly

frustrated as it was in this case, mill around the court-

room or its environs in a sort of hat-in-hand helplessness.

Although, as the Court holds, the “indictment” thus re-

turned would be ineffective without the signature of the

District Attorney, reporting its conclusion in traditional

legal form would do two things. First, it would clearly

reflect the conscientious conclusion of the Grand Jury

itself. And, second, it would, at the same time, sharply

7. We have constantly fresh reminders of the substantive im-

portance of the formal sufficiency of indictments. See, e.g., Russell

v. United States, 1962, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240:

Smith v. United States, 1959, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d

1041.

A34

reveal the difference of view as between the Grand J ury

and the prosecuting attorney.

This leads to the second important reason. The pow-

ers of the Executive are so awesome in determining those

whom it will not prosecute, that where there is a differ-

ence between the Grand Jury and the Executive, this de-

termination and the resulting conflict of views should be

revealed in open court. With great power cores great

responsibility. Disclosure of this difference of view and

the resulting impasse would subject this decision of the

Executive to the scrutiny of an informed electorate. The

issue would be clearly drawn and the responsibility, both

legally and in the public mind, plainly fixed. There

would not be the sort of thing reflected in this record in

which only in the loosest way could the public see what

it was the Grand Jury purposed to do and what the Exec-

utive declined to help it to do.* And for future cases

unless the Court holds (as it does by the concurrence of

Judges Rives, Brown, Gewin and Bell) that the District

Attorney must prepare the indictment form fur the Grand

Jury, even that limited disclosure would not be available.

This is so because the Court (through another majority)

holds that the trial Court may not compei the District At-

torney to sign the indictment. There would thus be no

occasion for, or any relief to be expected from, an oral

report to the Court of the pending impasse.

8. Indeed, the colloguy—some of it being quoted in the early

part of Rives-Gewin-Bell opinion—between the Court and the

Grand Jury, the Court and the District Attorney reflects on all

hands extremely guarded statements, inquiries and responses

couched in the vaguest sert of language lest there be a breach of

Grand Jury secrecy or an intrusion upon the part of the Court or

the District Attorney into the affairs reserved exclusively to it.

Only in the contempt proceedings resulting in an order which we

hold to have been unauthorized was the impasse between the

Executive and the Grand Jury revealed in any detail.

A35

By following this middle course we preserve fully the

rightful independence of the Grand Jury in its inquisi-

torial role and the time-proved wisdom of the separation

of powers which commits determination (and responsi-

bility) to the Executive. This route avoids the dissenters’

process which at one and the same time regards the act

of signing of no real consequence, as being esszntial to

“really” initiate the prosecution, but which means noth-

ing since the Executive may immediately demand that the

Court dismiss the proceedings. Unless the dissenters an-

ticipate that the Judge on a post-indictment Rule 48(a)

motion to dismiss will undertake to determine—or appear

to be doing so—whether there are “good” enough grounds

for the Executive’s determination not to prosecute, the

public disclosure, so vital to pinpointing responsibility

within the ranks of the Executive, will be no greater than

the open court proceedings in which the unsigned indict-

ment is reported together with the fact of impasse.

For these reasons I concur specially in the reversal of

the contempt order, the dismissal of the Acting Attorney

General’s appeal, and the denial of the writ of prohibition.

WISDOM, Circuit Judge, concurring specially:

Too many opinion-writers are like too many cooks. I

brave this danger only because the savory aroma of the

dish served up by the dissenters conceals the nature of

its undesirable ingredients and its unhappy effects on the

constitution.

It takes judicial craftsmanship of the highest order to

write persuasively about “the traditional sphere’ of the

grand jury and not turn up one case holding that a court

may compel a prosecutor to prepare and sign a bill of

indictment requested by a grand jury—not one case in

all the years between 1166 and 1965. I submit that the

result reached in the dissent is the product of a misunder-

A36

standing of the historical meaning of “presentment and

indictment”, a failure to give effect to the difference be-

tween the sword and the shield of the grand jury,’ and

an abstract approach that disregards the factual setting

in which the issue is presented.

Nothing in the position of any of the judges in the

majority “ignores” or tends to diminish the purely in-

quisitorial role of the federal grand jury.* But when that

role goes beyond inquiry and report and becomes ac-

cusatorial, no aura of constitutional sanctity surrounds

the grand jury. The Grand Jury’s place in the Bill of

Rights was earned by its shield, not by its sword.

1. The Federal Grand Jury Handbook, p. 8, describes the

functions of the Grand Jury in these words:

“The Grand Jury is both a sword and a shield of justice—

a sword because it is the terror of criminals, a shield because

it is the protection of the innocent against unjust prosecution.

But these important powers obviously create equally grave

responsibilities to see that such powers are in no wise per-

verted or abused. With its almost limitless powers, a Grand

Jury might, urless motivated by the highest sense of justice,

find indictments not warranted by the evidence and thus be-

come a source of oppression to our citizens.”

2. The encomia addressed to the inquisitcrial role of the

grand jury properly apply to the traditional common law jury or

a jury in those States still giving the jury a free rein in the

exercise of its inquisitorial power. Federal grand juries, as dis-

tinguished from State grand juries, do not have the power of the

latter to investigate public institutions or the actions of public

officials, where they hare no reason to believe that a crime has

been committed. Compare United States v. Smyth, D.C.N.D.Cal.

1952, 104 F. Supp. 283 and Application of United Electrical

Workers, D.C.S.D.N.Y. 1953, 111 F. Supp. 858 with State of Florida

ex rel Brautigam v. Interim Report of Grand Jury, Fla. 1957, 93

So. 2d 99. Investigations by Congress and the administrative

agencies lessen the need for federal juries to investigate corruption

in public office. The Attorney General's tight control over local

United States attorneys lessens the likelihood of a United States

attorney's failing to investigate and prosecute in the proper case.

A37

I.

The Fifth Amendment requires the grand jury’s “pre-

sentment or indictment” as a prerequisite to trial for a

“capital, or otherwise infamous crime”. This language

provides no aid and comfort to the notion that either the

grand jury or the court has the power to compel prosecu-

tion once the grand jury has exercised its accusatorial

function. “In fact, confusion reigns as to just what a

[federal] grand jury can do. Federal statutes are silent

on the relationship which is to exist between a federal

grand jury, the district court which summons it, and the

United States attorney's office in the district. From 1789

to the present; Congress has made no definitive statement

concerning grand jury powers.”* There is, however,

“every reason to believe that our constitutional grand

jury was intended to operave substantially like its English

progenitor’.

Historians usually trace the English grand jury back to

the Assize of Clarendon issued by Henry II in 1166, based

not on Anglo-Saxon antecedents but on Norman-French

inquests.> The function of the early grand juries was “to

3. Comment, Powers of Federal Grand Juries, 4 Stan. L. Rev.

69 (1951). See also, Dression & Cohen, The Inquisitorial Function

of Grand Juries, 41 Yale L. J. 687 (1932).

4. Costello v. United States, 1956, 350 U. S. 359, 362, 76 S. Ct.

406, 100 L. Ed. 397; Russell v. United States, 1962, 369 U.S. 749, 82

S. Ct. 1038, 8 L. Ed. 2d 240.

In 1951 Senator Nixon introduced a bill (S. 2086, 82d Cong.,

lst Sess.) defining the powers of the grand jury and providing for

the appointment of a special counsel to assist any grand ju. - de-

siring to investigate any criminal action on its own initiative. The

bill died in the Judiciary Committee.

5. Stephen, A History of the Criminal Law of England

(1883), 185-186, 252-254; 1 Holdsworth, History of English Laws

(1956), 312-323; 2 Pollock and Maitland, History of English Law

Before The Time of Edward I (1959), 642-647; Plucknett, History

of the Common Law (1956), 111-120.

A38 -

discover and present facts in answer to enquiries ad-

dressed to them by the King’’.® The prima’y purpose was

to furnish the King with the names of those who were

defamed by common repute, fama pubiica, an institution

historically analogous to the infamia’ in Roman law, both

of which add content to the meaning of the phrase “in-

famous crimes” in the Fifth Amendment.* The “whole

principle” of the early grand jury “was to get information

useful to the Crown from those most likely to have it—

the principle of the ancient inquisition.”® This ordeal

by trial avoided private prosecution by “appeal” and en-

abled the Crown to discover criminals who weuld have

escaped prosecution by private parties, thereby providing

another source of revenue from fines and forfeitures as

well as improving the machinery for preserving law and.

order. The procedure was for the benefit of the Crown. ~

From its beginning until its abolition by Parliament in

1933,’° the English common law presenting jury could act

6. The Roman infamia was: “* * * a moral censure pro-

nounced by a competent authority in the State on individual mem-

bers of the community, as a result of certain actions which they

had committed, or certain modes of life which they had pursued,

this censure involving disqualification for certain rights both in

public and in private law.” Greenidge, Infamia (1897), 37.

8. Franklin, Infamy and Constitutional Civil Liberties, 14

Law. G. Rev. 1 (1954); Franklin, Roman Law and The Constitu-

tion, 38 Tul. L. Rev. 621, 623-26, 641 (1964).

9. Plucknett, supra, 126.

10. Great law reformers have criticized the grand jury as an

anachronism in a modern government and as subject to abuse

because of its secrecy. Most of the criticism has been directed at

the grand jury’s inquisitorial power. And most of the criticism

came before the totalitarian movement of recent years. Jeremy

Bentham, 3 Rationale of Judicial Evidence c. 15, §II ; Edward

Livingston, Complete Works (1873) I-372, II-249-250; Pound &

Frankfurter, Criminal Justice in Cleveland (1922) 176, 211-212,

A39

on its own knowledge, or on the information of others,

or on the Crown’s written bill of indictment. But only

when this bill was preferred to the grand jury by the

Crown and endorsed as a “true bill” was the accusation

known as an indictment. This was the accepted usage

when the Fifth Arnaendment was adopted. Blackstone

explained:

“A presentment, generally taken, is a very com-

prehensive term; including not only presentments

properly so called, but also inquisitions of office, and

indictments by a grand jury. A presentment, properly

speaking, is the notice taken by a grand jury of any

offence from their own knowledge or observation, with-

out any bill of indictment laid before them at the suit

of the king. As, the presentment of a nuisance, a libel,

and the like; upon which the officer of the court must

afterwards frame an indictment, before the party pre-

sented can be put to answer it... . An indictment is

a written accusation of one or more persons of a crime

or misdemeanor, preferred to, and presented upon oath

by, a grand jury.... When the grand jury have heard

the evidence, if they think it a groundless accusation,

248: Wayne Morse, A Survey of the Grand Jury System, 10 Ore.

L. Rev. 101, 239 (1931); Pound, Criminal Justice in America

(1930) 109, 186; Moley, Politics and Criminal Prosecution (4929),

127-128; Wickersham Commission, Report on Prosecution of the

National Commission on Law Observance and Enforcement (1931)

34, 125; Willoughby, Principles of Judicial Administration, (1929)

180-194. Section 113 of the A.L.I. Code of Criminal Procedure

provides that all offenses heretofore required to be prosecuted by

indictment may be prosecuted either by indictment or information.

In 10 states the Constitution allows the legislature to modify or

abolish the grand jury. Senator, then Professor, Morse found

that in 1931 twenty-six states did not require indictment by the

grand jury. Model Code of Criminal Procedure, Appendix 414-31.

But see Dression, From Indictment to Information, 42 Yale L. J.

163 (1932); Younger, The Grand Jury Under Attack, 46 Journ.

Crim. L. C. & P. S. 26, 215 (1955); Hall, Analysis of Criticism of

the Grand Jury, 22 J. Crim. L. 692, 699-700 (1932).

A40

they used formerly to endorse on the back of the bill,

‘ignoramus;’ or, we know nothing of it; intimating,

that though the facts might possibly be true, that truth

did not appear to them: but now, they assert in Eng-

lish, more absolutely, ‘not a true bill;’ or (which is the

better way) ‘not found;’ and then the party is dis-

charged without further answer. . . . If they are satisfied

of the truth of the accusation, they then endorse upon

it, ‘a true bil',’ antiently, ‘billa vera.’ The indictment is

then said to be found, and the party stands indicted.”

Blackstone’s Commentaries, Vol. IV, C. XXIII, pp. 301,

302, 305. (Italics supplied by the Editor, St. George

Tucker, in the First American edition, 1803).

The Fifth Amendment, therefore, does not offer a grand

jury a choice between presentment or indictment. Unless

there is a bill of indictment preferred to the grand jury

at the instance of the Government, there can be no in-

dictment. It is therefore entirely in the hands of the

Government whether to submit an accusation to the grand

jury leading to presentment in the form of an indictment

and serving as the initial pleading in a criminal prosecu-

tion.

Professor Orfield finds the distinctions between indict-

ment and presentment “confusing” as, no doubt, they

are—today. His explanation of the terms is substantially

similar to Blackstone’s:

“Both indictment and presentment are ‘presented’ to

the court. Both are accusations. The presentment,

however, is made by the grand jury. An indictment,

on the other hand, is someone else’s accusation which

has been drawn up into a bill of indictment and pre-

ferred to the grand jury, who examine the evidence

in support of it and then find it to be a true bill. In

finding an indictment the grand jury is playing the

role of a prosecutor. For that reason a presentment

must be drawn up into a bill of indictment and resub-

A4l

mitted to the grand jury.” Orfield, Criminal Proce-

dure from Arrest to Appeal, 157 (1947).”

Professor Orfield concedes that there may be some argu-

ment that the Fifth Amendment uses the term “present-

ment” as 2n alternative for “indictment”. However, he

writes:

“TI]f the term [‘presentment’] is used in the Fifth

Amendment with the meaning it had when the Con-

stitution was adopted, it means a statement of facts

by grand jurors upon which .1 indictment would be

subsequently framed by a United States attorney, or

it may mean an accusation by the grand jurors upoi

presentment of facts to them by a special prosecutor

acting for a private individual. But it is no longer used

in the federal courts because of the constant availability

of a United States attorney to assist the grand jury

and because of the decline of prosecution by private

individuals.” Ibid. 158. (Emphasis supplied).

Criminal presentment based on the grand jury’s own

knowledge or on knowledge furnished by others may be in

disuse in federal courts, but it has not been read out of the

Constitution. Hale v. Henkel, 1906, 201 U.S. 43, 62, 26 S.

Ct. 370, 50 L. Ed. 652.12 See also Blair v. United States, 1919,

11. Similarly, Wharton states: “In its stricter meaning a

presentment has been said to be an accusation by the grand jury

sua sponte, made ex mero moto, whereas an indictment is a written

accusation, preferred to the grand jury and presented upon oath

at the instance of the Government.” 4 Wharton, Criminal Pro-

cedure (1957) § 1713, p. 471.

12. In Hale v. Henkel, 1906, 201 U. S. 43, Hale was called

to testify before a grand jury, refused to do so, and was ad-

judged in contempt. He argued, in seeking release from custody

on habeas corpus, that the grand jury was powerless to make

any inquiry in his case since it was not acting pursuant to a

particular charge (There was no question of prosecutor’s non-

cooperation in that case; there simply was no formal charge prior

to the grand jury’s investigation.) The following language of

the Court carries a strong implication that the prosecutor is

entitled to refuse to prepare a bill of indictment:

A42

250 U.S. 273, 280, 39 S. Ct. 468, 63 L. Ed. 979 and Sullivan

v. United States, 1954, 348 U.S. 170, 173, 75 S. Ct. 182, 99

L. Ed. 210.

Presentment is a natural corollary to the grand jury’s

inquisitorial power, either for an inquisition of office or

for a prosecutory purpose. Its use here would not ac-

complish its prosecutory purpose, because the Attorney

General still could decline to submit a bill of indictment

to the grand jury. On the other hand, in this case a pre-

sentment in open court with an appropriate minute entry

would meet many of the objections raised in the dissenting

opinion and Judge Brown’s opinion. Subject to the quali-

fication that the United States Attorney is bound by his

instructions from the Attorney General not to prosecute

Goff and Kendrick, and therefore could not draw bills

indicting them, I see nu objection to his rendering cther

services within his ordinary duties as the legal advisor

to the jury. Aborting of the criminal presentment would,

in effect, convert it into the familiar inquisition of office

“employed for centuries to designate the findings of a grand

jury with respect to derelictions in matters of public

concern, particularly of officials, which may fall short of

being criminal offenses”.'* This use of presentment would

be in accord with the established procedure in the common

law and with the original understanding of the framers.

“If the grand jury . . . from the examination of witnesses,

know of any offense committed in the country, for which

no indictment is presented to them, it is their duty, either to

inform the officer, who prosecutes for the State, of the

nature of the offense, and desire that an indictment for it be

laid before them; or, if they do not, or if no such indictment

be given them, it is their duty to give such .:nformation of it

to the court; stating, without any particular form, the facts

and circumstances which constitute the offense. This is

called a presentment.’ ”

13. In re Presentment Sy Camden County Grand Jur. 1952,

10 N.J. 23, 89 A. 2d 416.

A43

I consider it preferable to the piacebo the Government sug-

gests: an indictment (which is not an indictment) to lie

fallow until some day another Attorney General might or

might not come along to vitalize it.

In su.> there is nothing in my view or in that of the

other judges in the majority that would, as the dissenting

judges assert. authorize Government counsel to “radically

reduce the powers of the grand jury”. The grand jury

never had a plenary power to indict. It had a limited

power to indict—after accusation by the Crown or the

Government in the form of a bill of indictraent preferred

to the grand jury. The common law oath of a grand juror,

as Justice Vanderbilt has nointed out, “says not a single

word about indictments; on the contrary, at common law

the grand jury swore to ‘diligently inquire and true pre-

sentment make’. See Shaftesbury Trial, 8 St. Tr. 759.”"*

The oath a federal grand juror takes today is identical with

the common law oath in its avoidance of any reference to

“indictment”.

The decision of the majority does not affect the in-

quisitorial power of the grand jury. No one questions the

jury’s plenary power to inquire, to summon and interrogate

witnesses, and to present either findings and a report or an

accusation in open court by presentment.

Finally, the decision does not affect the power of the

grand jury to shield suspected law violators. By refusing

to indict, the grand jury has the unchallengeable power

to defend the innocent from government oppression by

unjust prosecution. And it has the equally unchallengeable

power to shield the guilty, should the whims of the jurors

or their conscious or subconscious response to community

pressures induce twelve or more jurors to give sanctuary

to the guilty.

14. Ibid. 89 A. 2d at

A44

8

Because recognition of the grand jury’s shield-like

function is lodged in the Bill of Rights, the bedrock of

basic rights, it is fair to say that national policy favors

a liberal construction of the power of the grand jury to

protect the individual against official tyranny. No such

policy favors the grand jury in its accusatory role. And

we should expect to find a check on its unjust accusations

similar to the grand jury’s check on the government’s un-

just accusations.

If there is one aspect of the doctrine of Separation of

Powers that the Founding Fathers agreed upon, it is the

principle, as Montesquieu stated it: “To prevent the abuse

of power, it is necessary that by the very disposition of

things, power should be a check to power”.’® Taking their

institutions as they found them, the framers wove a web

of checks and balances designed to prevent abuse of power,

regardless of the age, origin, and character of the institu-

tion. At the same time, the framers were too sophisticated

to believe that the three branches of government were

absolutely separate, air-tight departments.’® It does not

matter, therefore, whether the grand jury is regarded as

an arm of the court, as the Federal Grand Jury Handbook

15. Montesquieu, The Spirit of Laws (Edinburgh, 1772) Bk.

XI, C. IV.

16. Madison, for example, wrote in No. 47 of the Federalist:

“{I]t may clearly be inferred that, in saying, “There can be

no liberty where the legislative and executive powers are

united in the same person, or body of magistrates,’ or, ‘if

the power of judging be not separated from the legislative

and executive powers,’ he (Montesquieu) did not mean that

these departments ought to have no partial agency in or no

control over, the acts of each other. His meaning, as his

own words import, and still more conclusively as illustrated

by the example in his eye, can amount to no more than this,

that where the whole power of one department is exercised

by the same hands which possess the whole power of another

department, the fundamen‘:! principles of a free constitution

are subverted.”

A45

states,’ or is regarded as a sui generis institution derived

from the people. What does matter is that the power of

the executive not to prosecute, and therefore not to take

steps necessarily leading to prosecution, is the appropriate

curb on a grand jury in keeping with the constitutional

theory of checks and balances. Such a check is especially

necessary, if there is any question of the grand jury and

the district court being in agreement; if they differ, of

course the district court may dismiss the grand jury. The

need is rendered more acute if there is a possibility that

community hostility against the suspected offenders, indi-

vidually or as a race, may jeopardize justice before the petit

jury. In short, if we give the same meaning to “present-

ment or indictment” that Madison and others gave to these

terms when the Bill of Rights was introduced in the First

Congress, the grand jury provision in the Bill of Rights

cuts both ways: It prevents harassment and intimidation

and oppression through unjust prosecution—by the Grand

Jury or by the Government.

Il.

The prosecution of offenses against the United States

is an executive function within the exclusive prerogative

of the Attorney General. “There shall be at the seat of

government an executive department to be known as the

Department of Justice, and an Attorney General, who

shall be the head thereof.” 5 U.S.C. 291. That official,

the chief law-enforcement officer of the Federal Govern-

17. Federal Grand Jury Handbook, p. 9.

See In re Presentment by Grand Jury of Ellison, D.C.D.

Del. 1942, 44 F. Supp. 375, aff'd 133 F. 2d 903, cert. den’d 218

U. S. 791.

A46

ment is “the hand of the President in taking care that the

laws of the United States in protection of the interests

of the United States in legal proceedings and in the prose-

cution of offenses, be faithfully executed.” Ponzi v. Fas-

senden, 1922, 258 U. S. 254, 262, 42 S. Ct. 309. 66 L. Ed.

607. He “has the authority, and it is madc his duty, to

supervise the conduct of all suits brought by or against

the United States”, including the authority “to begin

criminal prosecution”. United States v. San Jacinto Tin

Co., 125 U. S. 273, 278-279, 8 S. Ct. 850, 31 L. Ed. 747. He

“is invested with the general superintendence of all such

Suits, and all the district attorneys who do bring them in

the various courts in the country are placed under his

immediate direction and control.” Id.. p. 279; and see

In re Neagle, 135 U. S. 1, 66, 10 S. Ct. 658, 34 L. Ed. 55.

The determination of whether and when to prosecute

“is a matter of policy for the prosecuting officer and for

the determination of the Courts”. District of Columbia v.

Buckley, D.C.Ct. App. 1942, 128 F.2d 17. As another court

has stated it:

“All of these considerations point up the wisdom

of vesting broad discretion in the United States At-

torney. The federal courts are powerless to interfere

with his discretionary power. The Court cannot com-

pel him to prosecute a complaint, or even an indict-

ment, whatever his reasons for not acting. The remedy

for any dereliction of his duty lies, not with the courts,

but with the executive branch of our government and

ultimately with the people.” Pugach v. Klein, S.D.N-Y.

1961, 193 F. Supp. 630, 634.

“Congress, well aware of this discretion has never chal-

lenged its existence.” Schwartz, Federal Criminal Juris-

A47

diction and Prosecutors’ Discretion, 13 L. & Cont. Prob.

64, 83 (1948).'S

In the Confiscation Cases, 7 Wall. 454 (1868) the Su-

preme Court, over the objection of informers entitled to

fees, allowed the Attorney General, in his discretion, io dis-

miss libels for the crirnina! condemnation of certain vessels

under a statute permitting the seizure and condemnation

of property knowingly used to aid insurrection against

the United States. The statute made it the duty of fu:

President to see to it that such property was seized and

condemned. The Court relied not only upon the statutory

authority of the Attorney General to control all prosecu-

tions and civil actions brought by or against the United

States, but also upon common law principles:

“Public prosecutions, until they come before the

court to which they are returnable, are within the

exclusive direction of the district attorney, * * * Set-

tled rule is that those courts will not recognize any

18. Schwartz points up his comment with this significant

illustration: “In the hearing on the confirmation of Attorney

General Jackson as Associate Justice of the Supreme Court, the

nomination was attacked because of Jackson’s failure to prose-

cute Drew Pearson and Robert S. Allen for criminal libel on

Senator Tydings. Jackson had taken the position that it was

the policy of the Department of Justice to avoid the criminal

libel laws when the courts were open to the injured party in civil

prcceedings, and that prosecutions of this character would tend

to impai; freedom of the press. (Emphasis supplied.) Republican

Senator (now Mr. Justice) Burton stated:

“The prosecuting attorney, being charged, as he is charged,

with the great responsibility of deciding under the laws of

the United States, the laws under which he is serving,

whether a case should be prosecuted, owes a duty to himself,

his community, and the Constitution to decide whether the

case should be prosecuted. ... In my judgment the

Attorney General was within his rights when he declined to

prosecute, and in stating the grounds as he did state them

under the circumstances.’ ”

13 L. & Cont. Prob. at 83.

A48

suit, civil or criminal, as regularly before them, if

prosecuted in the name and for the benefit of the

United States, unless the same is represented by the

district attorney, or some one designated by him to at-

tend to such business in his absence, as may appertain

to the duties of his office.”

The functions of prosecutor and judge are incom-

patible. In United States v. Thompson, 1920, 251 U. S. 407,

40 S.Ct. 289, 64 L. Ed. 333, for example, the Supreme Court

reversed a lower court for attempting to prevent a United

States Attorney from instituting criminal prosecution by

resubmitting the matter to a grand jury. The Court’s de-

cision was expressly based upon “the absolute right of

the United States to prosecute,” and upon “the right of

the Government to initiate prosecutions for crime”, a right

not subject to control by judicial discretion. 251 U. S. at

412-413, 415. Similarly, the Court has held that a district

court was without jurisdiction to refuse to issue a warrant

of arrest upon an indictment by a grand jury upon the ap-

plication of the United States Attorney, because such re-

fusal would bar “ ‘the absolute right of the United States

to prosecute’”’ and would bar “the lawful authority of the

United States Attorney.” Ex parte United States, 1932,

287 U. S. 241, 53 S. Ct. 129, 77 L. Ed. 283.

In Goldberg v. Hoffman, 7 Cir. 1955, 225 F.2d 463, a

petition for mandamus was filed against the Attorney Gen-

eral, an Assistant Attorney General, and the United States

Attorney, to compel them to relieve the petitioner of an

indictment. The Court of Appeals dismissed as to the At-

torney General and Assistant Attorney General for lack

of jurisdiction:

“Our adjudication of the issues raised must be

guided by considerations inherent in the well settled

principle of the separation of the powers vested in

the three branches of government, which is the key-

A4S

note of our constitutional mandate. We must bear in

mind that the United States Attorney is an officer of

the executive branch responsible primarily to the

President, and through him: to the electorate, and that

the remedy sought against Tieken is a broad one, to-

wit, a direct mandate from this court compelling him

to take, or refrain from taking a specific course of ac-

tion with respect to the indictment pending against

petitioner. More specifically, we are asked to review

the exercise of administrative discretion, overrule the

decision of the executive and direct the course which

that discretion must take. We think such judicial con-

trol of an executive officer is beyond the power of this

court.” 225 F. 2d at 464.

See also Moses v. Kennedy, D.C. 1963, 219 F. Supp. 762,

appeal pending.

In United States v. Brokaw, S.D. Ill. 1945, 60 F. Supp.

100 the court denied a motion for leave to file a petition

as amicus curiae asking the court to enter an order direct-

ing the United States attorney to show cause why an order

of: nolle prosequi should not be vacated and the cause re-

instated and set for trial. The court said:

“That the United States District Attorney in his

capacity as the public prosecutor in his district is

clothed with the power and charged with “ne duties

of the Attorney General in England under the com-

mon law is generally recognized and supported by

the Federal Courts. United States v. Thompson, 1920.

251 U. S. 407. He is the representative of the public

in whom is lodged a discretion which is not to be con-

trolled by the courts, or by an interested individual,

or by a group of interested individuals who seek re-

dress for wrongs committed against them by use of

the criminal process. In United States v. Thompson,

supra, the Supreme Court held that courts have no

power to control the initiation of criminal proceedings,

that being the prerogative and duty of the United

States District Attorney.”

A50

Thus, “courts generally refuse to order the prosecutor to

initiate a prosecution on the ground that it is a discre-

tionary act which may not be compelled by mandamus.”

Note, Prosecutor’s Discretion, 103 Pa. L. Rev. 1057, 1058

(1955).

Rule 48(a) does not directly apply to the present case,

because there has been no indictment, information, or com-

plaint, but since the rule preserves the prosecutor’s discre-

tion to dismiss a complaint before indictment, the drafters

of the Rules must have intended to preserve the discretion

not to prosecute. In this case, the prosecutor cannot rnove

to dismiss; there is nothing to dismiss. What he can do,

however, is to refuse to prepare and sign the indictment.

Under this theory, Rule 7(c), requiring that the indictment

be signed by the United States Attorney, preserves the

prosecutor’s traditional discretion as to whether to initiate

prosecution. .

The reason for vesting discretion to prosecute in the

Executive, acting through the Attorney General is two-

fold. First, in the interests of justice and the orderly, ef-

ficient administration of the law, some person or agency

should be able to prevent an unjust prosecution. The free-

dom of the petit jury to bring in a verdict of not guilty and

the progressive development of the law in the direction

of making more meaningful the guarantees of an accused

person’s constitutional rights give considerable protection

to the individual before and after trial. They do not

protect against a baseless prosecution. This is a harass-

ment to the accused and an expensive strain on the ma-

chinery of justice. The appropriate repository for au-

thority to prevent a baseless prosecution is the chief law-

enforcement officer whose duty, unlike the grand jury’s

duty, is to collect evidence on both sides of a case.

Second, when, within the context of law-enforcement,

national policy is involved, because of national security,

UD eee —

A5l

conduct of foreign policy, or a conflict between two

branches of government, the appropriate branch to decide

the matter is the executive branch. The executive is

charged with carrying out national policy on law-enforce-

ment and, generally speaking, is informed on more levels

than the more specialized judicial and legislative branches.

In such a situation, a decision not to prosecute is analogous

to the exercise of executive privilege. The executive’s

absolute and exclusive discretion to prosecute may be ra-

tionalized as an illustration of the doctrine of separation of

powers, but it would have evolved without the doctrine and

exists in countries that do not purport to accept this doc-

trine.””

IV.

This brings me to the facts. They demonstrate, better

than abstract principles or legal dicta, the imperative ne-

cessity that the United States, through its Attorney General,

have uncontrollable discretion to prosecute.

The crucial fact here is that Goff and Kendrick, two

Negroes, testified in a suit by the United States against

the Registrar of Clarke County, Mississippi, and the State

of Mississippi to enforce the voting rights of Negroes under

the Fourteenth Amendment and the Civil Rights Act.

United States v. Ramsey, 5 Cir. 1964, 331 F.2d 824; rev'd

on reh’g, 331 F.2d 838.

Goff and Kendrick testified that some seven years

earlier at Stonewall, Mississippi the register had refused

to register them or give them a; ‘auon forms. They said

that they had seen white person. registering, one of whom

was a B. Floyd Jones. Ramsey, the registrar, testified that

Jones had not registered at that time or place, but had reg-

19. “Hobbes told us long ago, and everybody now under-

stands that there must be a supreme authority, a conclusive

power, in every state on every point somewhere.” Bagehot, The

English Constitution ( 1872) p. 248.

A52

istered the year before in Enterprise, Mississippi. He testi-

fied also that he had never discriminated against Negro ap-

plicants for registration.”® Jones testified that he was near

the registration table in Stonewall in 1955, had talked with

the registrar, and had shaken hands with him. The pre-

siding judge, Judge W. Harold Cox, stated from the bench

that Goff and Kendrick should be “bound over to await the

action of the grand jury for perjury”.*'

20. Judge Cox found “as a fact from the evidence that

negro citizens have been discriminated against by the registrar’,

although he found also that there was “no pattern or practice

of discrimination’. In its original opinion in the Ramsey case

this Court noted the “testimony which witness by witness con-

victs Ramsey of palpable discrimination.” United States v.

Ramsey, 5 Cir. 1964, 331 F.2d 824, 826. In his opinion Judge

Rives noted that “This case reveals gross and flagrant denials of

the rights of Negro citizens to vote.” 331 F.2d at 833. And on

rehearing, this Court ruled that the finding that “there was no

pattern or practice in the discrimination by the Registrar” was

“clearly erroneous.” 331 F.2d at 838. No one has suggested that

Mr. Ramsey may have been guilty of perjury. .

21. When counsel for the State, Mr. Riddell, completed Mr.

Ramsey’s direct examination, and before his cross-examination,

respondent Judge W. Harold Cox, who was presiding, stated:

I want to hear from the government about why this

Court shouldn’t require this Negro Reverend W. G. Goff

and his companion Kendrick to show cause why they shouldn’t

be bound over to await the action of the grand jury for

perjury. I want to hear from you on that.

* = *

I think they ought to be put under about a $3,000.00

bond each to await the action of a grand jury. Unless I

change my mind that is going to be the order.

BY MR. STERN [Government counsel]: I will be happy

to reconcile their testimony.

BY THE COURT: I just want these Negroes to know that

they can’t come into this Court and swear to something as im-

portant as that was and is and get by with it. I don’t care

who brings them here.

BY MR. STERN: I understand.

BY THE COURT: Yes sir. And I mean that for whites

alike, but I am talking about the case at hand. I just don’t

intend to put up with perjury. That is something I will not

tolerate. All right.”

A53

In January 1963 attorneys of the Department of Justice

requested the Federal Bureau of Investigation to investigate

the possible perjury. The FBI completed a full investiga-

tion in March 1963 and referred the matter to the Depart-

ment’s Criminal Division. In June 1963 the Criminal Divi-

sion advised the local United States Attorney, Mr. Hauberg,

that the matter presented “no basis for a perjury prosecu-

tion”. Mr. Hauberg informed Judge Cox of the Depart-

ment’s decision. Judge Cox stated that in his view the mat-

ter was clearly one for the grand jury and that he would be

inclined, if necessary, to appoint an outside attorney to pre-

sent the matter to the grand jury. (1 find no authority for

a federal judge to dispiace the United States Attorney by

appointing a special prosecutor.) On receiving this infor-

mation, the Criminal Division again reviewed its files and

concluded that the charge of perjury could not be sustained.

General Katzenbach, then Deputy Attorney General, after

reviewing the files, concurred in the Criminal Division’s

decision. In September 1963 General Katzenbach called

on Judge Cox as a courtesy to explain why the Department

had arrived at the conclusion that no perjury was involved.

Judge Cox, unconvinced, requested the United States At-

torney to present to the grand jury the Goff and Kendrick

cases, which he regarded as cases of “palpable perjury”.

In October 1963 Goff and Kendrick were arrested,

jailed for t » days, and placed on a $3,000 bond for viola-

tions of Stace law for falsely testifying in federal court.

After their indictment by a state grand jury, the Depart-

ment of Justice filed suit against the State District Attor-

ney, United States v. Warner, (Civ. No. 1219, S.D.Miss.}.

seeking to enjoin the state prosecution on the grounds that:

(1) the States have no authority to prosecute for alleged

perjury committed while testifying in a federal court; (2)

the purpose and effect of the State’s prosecution was to

threaten and intimidate Goff and Kendrick and to inhibit

A54

them and other Negroes from registering to vote. See

United States v. Wood, 5 Cir. 1961, 295 F.2d 772; United

States v. Harvey, 5 Cir....,...F.2d... The district court

(per Mize, J.) ruled in favor of the United States, citing In

re Loney, 1890, 134 U. S. 372, 10 S. Ct. 584, 33 L. Ed. 949, and

42 U.S.C. 1971(b) prohibiting intimidation for the purpose

of interfering with voting rights.

The Federal Grand Jury, originally convened on Sep-

tember 9, 1963, was reconvened on September 21, 1964.

September 28, 1964, the Foreman of the Grand Jury advised

the Government Attorney who was presenting matters to

the Grand Jury that Judge Cox had asked the Foreman to

hear several witnesses. September 29, 1964, Mr. Riddell,

attorney for the Registrar, and the district attorney for the

Second Circuit District for the State of Mississippi, Mr. Holl-

eman, came to the courthouse to appear before the Grand

Jury. Judge Mize, in a special charge to the Grand Jury

stated—in open court—that Judge Cox had informed him,

before leaving for his vacation, that:

* * * he wanted the Grand Jury to call before it Mr.

Boyce Holleman of Gulfport, Mississippi and Mr. Tal-

ley [sic] Riddell of Quitman, Mississippi as witnesses,

because it was his impression that they had sors mat-

ters that ought to be investigated at least and that they

should be permitted to appear.

Judge Mize stated that he was not familiar with the matters

“other than just what Judge Cox requested me to do, to see

to it that these two witnesses had an opportunity to appear

before the Grand Jury.” Judge Mize advised the Grand

Jury that they had a right to hear the testimony of Messrs.

Riddell and Holleman, but requested them not to do so until

October 21, 1964, the day after Judge Cox was to return

from his vacation.

October 20 Mr. Katzenbach talked with Judge Cox by

telephone, reiterating the Department’s position. He also

A55

instructed Mr. Hauberg not to prepare or sign indictments.

October 22 the foreman of the grand jury in open court in-

formed Judge Cox that Mr. Hauberg had declined to assist

in preparing true bills. The United States Attorney stated

that “the Department of Justice and the United States felt

as if that the law and the fact was not sufficient to consti-

tute perjury and that an indictment thereon would be no

good.” Judge Cox said:

“J here and now order and direct you to disregard your

instructions from the Department of J ustice and ‘9 pre-

pare true bills or no bills as this Grand Jury may Cirect

you to do and to sign those bills or no bills as the Grand

Jury maw decide under penalty of contempt, de od nate

Judge Cox recessed court for one hour. During this re-

cess Mr. Hauberg and Mr. Katzenbach conferred by tele-

phone; the Attorney General directed the United States At-

torney not to prepare or sign perjury indictments of Goff

and Kendrick. Court reopened. Mr. Hauberg respectfully

declined to comply with the court’s order. Judge Cox forth-

with adjudged him “guilty of civil contempt”, ordered him

confined to a jail in Hinds County, ordered the issuance of

a citation to the Acting Attorney General to appear beicre

the court to show cause why he should not be held in con-

tempt; and stayed the order for a period of five days.

* * +

Against the backdrop of Mississippi versus the Nation

in the field of civil rights, we have a heated but bona fide

difference of opinion between Judge Cox and the Attorney

General as to whether two Negroes, Goff and Kendrick,

should be prosecuted for perjury. Taking a narrow view

of the case, we would be justified in holding that the At-

torney General’s implied powers, by analogy to the express

powers of Rule 48(a), give him discretion to prosecute.

Here there was a bona fide, reasonable exercise of discre-

tion made after a full investigation and long consideration

A56

of the case—both sides of the case, not just the evidence

tending to show guilt. If the grand jury is dissatisfied

with that administrative decision, it may exercise its in-

quisitorial power and make a presentment in open court.”

Jt could be said, that is all there is to the case.

This Court, along with everyone else, knows that Goff

and Kendrick, if prosecuted, run the risk of being tried in

a climate of community hostility. They run the risk of a

punishment that may not fit the crime. The Registrar, who

provoked the original litigation, runs no risk although the

district court, in effect, found that he did not tell the truth

on the witness stand. In these circumstances, the very least

demands of justice require that the discretion to prosecute

be lodged with a person or agency insulated frorn local pres-

sures and parochial pride. This is not the hard case that

makes bad law. This is the type of case that comes up, in

one way or another, whenever the customs, beliefs, or in-

terests of a region collide with national policy as fixed by

the Constitution or by Congress. It is not likely that the

men who devised diversity jurisdiction expected to turn

over to local juries the discretionary power to bring federal

prosecutions. This case is unusual only for the clarity with

which the facts, speaking for themselves, illuminate the im-

perative necessity in American Federalism that the discre-

tion to prosecute be lodged in the Attorney General.

The decision not to prosecute represents the exercise

of a discretion analogous to the exercise of executive privi-

lege. As a matter of law, the Attorney General of the

=>

22. Younger points out, however, that every known imstance

of an impasse after presentment was resolved by political action.

In one instance Theodore Roosevelt, then governor of New York,

removed a district attorney from office who had refused to

prosecute. Younger, The People’s Panel: The Grand Jury in

The United States, 1634-1941, at 188-90 (1963).

A57

United States has concluded that there is not sufficient evi-

dence to prove perjury. As a matter of fact, the Attorney

General has concluded, as he pleaded in United States v.

Warner, that trial for perjury would have the effect of in-

hibiting not only Goff and Kendrick but other Negroes in

Mississippi from registering to vote. There is a conflict,

therefore, between society’s interest in law enforcement

(diluted in this case by the Attorney General’s conclusion

that the evidence does not support the charge of guilt) and

the national policy, set forth in the Constitution and the

Civil Rights Acts, of outlawing racial discrimination. The

resolution of this conflict must lie in the unfettered discre-

tion of the executive.

My memory, like Judge Rives’s memory, goes back to

the days when we had “an Attorney General suspected of

being corrupt.” I am not aware, however, that we have had

more lawless Attorneys General than lawless juries.

A58

APPENDIX B

Judgment of the Court of Appeals for the Fifth Circuit

Judgment

Before TUTTLE, Chief Judge, and RIVES, JONES,

BROWN, WISDOM, GEWIN and BELL, Circuit Judges.

These causes came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Mississippi, and was argued by coun-

sel;

UPON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the appeal as to

Katzenbach, Acting Attorney General, be, and the same is

hereby dismissed; the order on the appeal of Hauberg,

United States Attorney be, and the same is hereby, re-

versed; and that the Petition for Writ of Prohibition is

denied, all in conformity with the opinion of this Court.

January 26, 1965

RIVES, GEWIN and BELL, Circuit Judges, concur in part

and dissent in part.

BROWN, Cirevit Judge, specially concurs.

WISDOM, Circuit Judge, specially concurs.

Issued as Mandate: Jan. 26, 1965

A59

APPENDIX C

Order of October 22, 1964

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

In the Matter of Grand Jury Investigations of

October 21 and October 22, 1964, and Refusal of

United States Attorney on Advice of Acting United

States Attorney General to Aid and Assist the

Grand Jury As Directed by the Court; and Order

of Commitment of United States Attorney for Civil

Contempt; and for Issuance of Citation to Acting

Attorney General of the United States to Show

Cause; and Granting of Stay of Executies

THE GRAND JURY, duly elected, impaneled and or-

ganized, for the Southern District of Mississippi, re-con-

vened on order of the Court at 9:00 A.M., October 21, 1964,

in Courtroom Number 2 in Jackson, Mississippi. for the gen-

eral dispatch of its business. The grand jury was fully in-

structed as to their duties, powers and responsibilities and

retired to the grand jury room number 538 in the Federal

Building at Jackson to do its work. The United States At-

torney (and one of his assistants) sat with the grand jury

throughout the day on October 21 and explained in detail

to the grand jury the perjury laws and the Court’s con-

struction of such laws for their information. The grand

jury heard witnesses throughout the day on October 21,

1964. On the morning of October 22, 1964, the grand jury,

through its foreman, made known to the Court in open court

that they had requested Robert E. Hauberg, United States

Attorney, to prepare certain indictments which they de-

A60

sired to bring against some of the persons under considera-

ation and about which they had heard testimony, 2nd the

United States Attorney refused to draft or sign any such

indictments on instructions of the Acting Attorney Gen-

eral of the United States; whereupon the Court ordered and

directed said United States Attorney to draft such true bills

or no bills as the grand jury may have duly voted and de-

sired to report and to sign such insiruments as required by

law under penalty of contempt. The United States Attor-

ney was afforded one hour within which to decide as to

whether or not he would abide by the instructions and or-

der of the Court in such respect. At the end of such time,

the Court re-convened and the United States Attorney was

specifically asked in open court as to whether or not he in-

tended to conform with the order and direction of the Court

in said respects whereupon the United States Attorney an-

swered that he respectfully declined to do so on instructions

from Nicholas de Katzenbach, Acting Attorney General.

He was thereupon duly adjudged by the Court to be in

civil contempt of the Court and was afforded an opportu-

nity to make any statement which he desired to make to the

Court before sentence; whereupon the United States At-

torney reiterated his inability to comply with the order of

the Court upon express and direct instructions from Nich-

olas de Katzenbach, Acting Attorney General of the United

States.

WHEREFORE, IT IS ORDERED «.ND ADJUDGED

by the Court that Robert E. Hauberg, United States Attor-

ney, is guilty of civil contempt of this Court and in the pres-

ence of the Court for his said refusal to obey its said order

and he is ordered into custody of the United States Marshal

to be confined by hirn in the Hinds County, Mississippi, jail,

there to remain until he purges himself of this contempt by

agreeing to conform to said order by performing his official

duty for the grand jury as requested in the several (about

A61

five) pending cases before them on October 21 and October

22, 1964.

IT IS FURTHER ORDERED by the Court that a cita-

tion issue to Nicholas de Katzenbach, Acting Attorney Gen-

eral of the United States, directing him to appear before this

Court and show cause why he should not be adjudged guilty

of contempt of this Court for his instructions and directions

to the United States Attorney to disregard and disobey the

orders of this Court in the respects stated.

The United States Attorney requested a stay of en-

force”. nt of this order and further proceedings herein for

five days after this date to enable him to apply to the United

States Court of Appeals for the Fifth Circuit for a writ of

prohibition, and such request is granted; and these proceed-

ings and the enforcement of this order in its entirety is

stayed for five days, subject to the further orders of the

United States Court of Appeals on said application; and for

the enforcement of all of which, let proper process issue.

ORDERED AND ADJUDGED, this October 22, A.D.,

1964.

/s/ Harold Cox

UNITED STATES DIS-

TRICT JUDGE

A TRUE COPY, I HEREBY CERTIFY.

LORYCE E. WHARTON, CLERK

By /s/ C. Thomas

Deputy Clerk

A62

APPENDIX D

U.S.C.A. Constitution P. 377

ARTICLE II—THE PRESIDENT

Section 3. Messages; Convene and Adjourn Congress;

Receive Ambassadors; Execute Laws; Commission Officers

Section 3. He shall from time to time give to the Con-

gress Information of the State of the Union, and recommend

to their Consideration such Measures as he shall judge nec-

essary and expedient; he may, on extraordinary Occasions,

convene both Houses, or either of them, and in Case of Dis-

agreement between them, with Respect to the Time of Ad-

journment, he may adjourn them to such Time as he shall

think proper; he shall receive Ambassadors and other public

Ministers; he shall take Care that the Laws be faithfully

executed, and shall Commission all the Officers of the

United States.

APPENDIX E

U.S.C.A. Constitution P. 379

ARTICLE II—THE JUDICIARY

Section 1. The judicial Power of the United States,

shall be vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time ordain and

establish. The Judges, both of the supreme and inferior

Courts, shall hold their Offices during good Behavior, and

shall, at stated Times, receive for their services, a Compen-

sation, which shall not be diminished during their Continu-

ance in Office. ,

A63

Section 2. The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or which

shall be made, under their Authority;—to all Cases affecting

Ambassadors, other public Ministers and Consuls;—to all

Cases of edmiralty and maritime Jurisdiction—to Contro-

versies to which the United States shall be a Party;—to

Controversies between two or more states;—between a

State and Citizens cf another State;—between Citizens of

different States——between Citizens of the same State

claiming Lands under Grants of different States, and be-

tween a State, or the Citizens thereof, and foreign States,

Citizens or Subjects,

APPENDIX F

U.S.C.A. Constitution Amendments I to 5 P. 287

AMENDMENT V—CAPITAL CRIMES; DOUBLE JEOP-

ARDY; SELF-INCRIMINATION; DUE

PROCESS; JUST COMPENSATION

FOR PROPERTY

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

wise infamous crime, unless on a presentment or indict-

ment ofa Grard 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 put in jeopardy of life or limb;

nor shall 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.

A64

APPENDIX G

Title 18, U.S.C.A. Rules of Criminal Procedure PP. 138, 176

III. INDICTMENT AND INFORMATION

Rule 6. The Grand Jury (P. 138)

2 = .

(d) Who May be Present. Attorneys for the govern-

ment, the witness under examination, inierpreters when

needed and, for the purpose of taking the evidence, a ste-

nographer 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.

(e) Secrecy of Proceedings and Disclosure. Disclos-

ure of matters occurring before the grand jury other than

its deliberations and the vote of any juror may be made to

the attorneys for the guvernment for use in the performance

of their dutics. Otherwise, a juror, attorney, interpreter

or stenographer may disclose matters preliminarily to or

in connection with a judicial proceeding or when permitted

by the court at the request of the defendant upon a showing

that grounds may exist for a motion to dismiss the indict-

ment because of matters occurring before the grand jury.

No obligation of secrecy may be imposed upon any person

except in accordance with this rule. The court may direct

that an indictment shall be kept secret until the defendant

is in custody or has given bail, and in that event the clerk

shall seal the indictment and no person shall disclose the

finding of the indictment except when necessary for the

issuance and execution of a warrant or summons.

« * :

A65

Rule 7. The Indictment and the Information (P. 176)

(a) Use of Indictment or Information. An offense

which may be punished by death shall be prosecuted by in-

dictment. An offense which may be punished by impris-

onment for a term exceeding one year or at hard labor shall

be prosecuted by indictment or, if indictment is waived, it

may be prosecuted by information. Any other offense may

be prosecuted by indictment or by information. An in-

formation may be filed without leave of court.

(c) Nature and Contents. The indictment or the in-

formation shall be a plain, concise and definite written

statement of the essential facts constituting the offense

ch: rged. It shall be signed by the attorney for the govern-

ment. It need not contain a formal commencement, a for-

mal conclusion or any other matter not necessary to such

statement. Allegations made in one count may be incor-

porated by reference in another count. It may be alleged

in a single count that the means by which the defendant

committed the offense are unknown or that he committed

it by one or more specified means. The indictment or in-

formation shall state for each count the official or custom-

ary citation of the statute, rule, regulation or other provi-

sion of law which the defendant is alleged therein to have

violated. Error in the citation or its omission shall not be

ground for dismissal of the indictment or information or for

reversal of a conviction if the error or omission did not mis-

lead the defendant to his prejudice.

A66

APPENDIX H

Title 18, U.S.C.A. Rules of Criminal Procedure P. 377

GENERAL PROVISIONS

Rule 48. Dismissal

(a) By Attorney for Government. The Attorney

General or the United States attorney may by leave of court

file a dismissal of an indictment, information or complaint

and the prosecution shall thereupon terminate. Such a

dismissal may not be filed during the trial without the con-

sent of the defendant.

(b) By Court. If there is unnecessary delay in pre-

senting the charge to a grand jury or in filing an informa-

tion against a defendant who has been held to answer to the

district court, or if there is unnecessary delay in bringing a

defendant to trial, the court may dismiss the indictment,

information or complaint.

APPENDIX I

Title 28, U.S.C.A. Judiciary and Judicial Procedure P. 230

COURTS OF APPEALS—JURISDICTION

Sec. 1291. Final decisions of district courts

The courts of appeals shall have jurisdiction of appeais

from all final decisions of the district courts of the United

States, the District Court for the Territory of Alaska the

United States District Court for the District of the Canal

Zone, and the District Court of the Virgin Islands, excep:

where a direct review may be had in the Supreme Court.

June 25, 1948, c. 646, 62 Stat. 929.

A67

APPENDIX J

Title 28, U.S.C.A. Judiciary and Judicial Proeedure P. 42

SUPREME COURT—JURISDICTION

Sec. 1254. Courts of appeals; certiorari; appeal; certi-

fied questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after rendi-

tion of judgment or decree;

had * *

CERTIFICATE OF SERVICE

I, L. ARNOLD PYLE, one of the Attorneys for the

Petitioner herein and a Member of the Bar of the Supreme

Court of the United States, hereby certify that I have this

day served printed copies of the foregoing Petition for a

Writ of Certiorari on the Respondents in the manner

following:

1. By mailing five (5) printed copies thereof in a

duiy addressed envelope, with air mail postage prepaid,

to Honorable John W. Douglas, Assistant Attorney Gen-

eral, Department of Justice, Washington, D. C. 20530, and

by mailing two (2) printed copies thereof in a duly ad-

dressed envelope, with air mail postage prepaid, to David

L. Rose, Esq., Department of Justice, Washington, D.C.

20530, said Messrs. Douglas and Rose being the attorneys

who presented Respondents in the court below;

A638

2. By mailing three {3} printed copies thereof in a

duly addressed envelope, with air mail postage prepaid,

to Honorable Archibald Cox, The Solicitor General, De-

partment of Justice, Washington. D.C. 20530: and

3. By mailing one (1) printed copy thereof in a duly

addressed envelope, with regular postage prepaid, to Hon-

orable Robert E. Hauberg, United States Attorney, Federal

Building, Jackson, Mississippi.

I further certify that I have this date mailed, postage

prepaid. forty (40) printed copies thereof to the Clerk.

United Sta Supreme Court, Washington, D.C. 20530.

This 7 day of i

L. ARNOLD PYLE

1347 Deposit Guaranty

P. O. Box 427

Jackson, Mississippi

One of the Attorneys for Petitioner