# Appendix — Krum v. Michigan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1965
- **Citation:** 381 U.S. 935

## Text

Al

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-

A3

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.

AS

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.

A6

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.

A7

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.

A8

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.

A9

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.

Al0

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-

-

All

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.”

Al2

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.

Al3

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.”

Al4

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.)

Al7

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 speci

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0569%3A3. Public record. Not legal advice.