# Petition for ReHearing — Lampman v. United States District Court for the Central District of California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for ReHearing
- **Published:** January 1, 1970
- **Citation:** 397 U.S. 919

## Text

ee ee

LIBRARY | eee Dice Supreme Cont US
JPREME COURT, U.S. — | w. FILED

IN THE MAR 6 1970

‘Supreme Court of the beceaaal fates Davis, see

- Ae ene ome

October. Term, 1969
No. 1014

~OweEN B. LAMpMAN and TuRIFTIMART, INC., a corpo-
ration,
Petitioners,
US. 7

UNITED STATES.OF AMERICA, UNITED.STATES DISTRICT
CouRT FOR THE CENTRAL DISTRICT OF CALIFORNIA,
and JEssE W. Curtis, a Judge thereof,

Respondents.

? Ae pas
On Petition for Writ of Certiorari to the United States,

Court of Appeals for the Ninth Circuit.

Petition for Rehearing on Denial of Writ of
Certiorari (Rule 58).

WILLIAM J. CuRRER, JR.,

548 South Spring Street,
Suite 939,
_ Los Angeles, Calif. 90013,
(213) 628-9152,

Counsel for Petitioners.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 685-9790

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|
:

SUBJECT INDEX

Page
I.
intervening Circumstances EEO EE POE MYTH Me 2
A. Certiorari me Been Granted in Donaldson
V. TIGRE SREB oss secs isccc a cigntesegharoneieas 2
B. If Donaldson Prevails, Then Lampman and —
Thriftimart Should Prevail .......0..0..0..ccccc.-- 3
C. The Constitutional Limitations on the Admin-
istrative Summons or Subpoena Should Apply
Equally to Rule 17, FRCrP. ...........s. cece eeeeee a
ie |
Other Substantial Grounds Available to Petitioners
7

but Not Previously TION oan eaaes

II].
COUCMIGIN vesccckcckecitenivn swenesernessteenenuecesistonneesecsnsestnness

,

me ii.
TABLE OF AUTHORITIES CITED

Cases | ° Page

Aguilar v. Texas, 378 U.S. 108, 84 S.Ck 1509
PE ite NaS Suh ae 3,5, 6

Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct.
1032, 12 L.Ed.2d 77 (1964) ....2:....... CS ante L. 9

Badders v. United ‘States, 240 U.S: 391, 36 S.Ct.
Oe 5 Ce Ritts FU CRIN). a hicnirckcsocenttencerenarieinn = 12

} Bain, Ex parte, 121 U.S. 1, 7’S.Ct. 781, 30 L.Ed.
i BE 2 RATES SESE REIT TI CAREER ETE A TC 11

Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8
RU: OE TO CLI) siren eerissnscatareacneesniguccnemacaccanscnss 12

Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, .
Gs tee S79 (ISB) ck. ivasannsicesesor non 0)

Brown v. Unfted States, 59 U.S. 41, 79 S.Ct. 539,
PPR AENE MU GUI RIOD Gs aceciccuacsaintoescordnnsccineaes 10

Bush v. Commonwealth of Kentucky, 107 U.S. 110,
Deets cd, AF ble, GOW CICS) ecco a ceccecsessnecees 8

Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct.
I ER ica ee ccaueuenaas ao 6.

Cammer v. United States, 350 U.S. 399, 76 S.Ct.
O56 100 1a 474 (1956). 12

Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct.
ee ee Bee (190) 8

Commonwealth of Virginia, Ex parte, 100 U.S.
ie, ao 4 ee. CY (3880) nn... eC ON RR ER °8

Costello v. United States, 350 U.S. 359, 76 S.Ct.
Wg hs a da | 12, 14

Cuircio v. United States, 354 U.S. 118, 77 S.Ct.
hie Gp ee Db Lf a 10

Dennis v. United States, 384 U.S. 855, 86 S.Ct.
1840, 16 L.Ed.2d 973 (1966) ........ eal ieacabicauapeninns 12

ili.

Page
Dugan and McNamara, Inc. v. United States, 153
F.Supp. 389 (U.S. Ct. of Claims, 1957) .............. 14
Durbin v. United States, 94 U.S. App. D.C. 415,
221 F.2d S20 (1954) on Bi ccc cecncceccesees sobeeiiuneschees 16
Dymo Industries, Inc., In re, 300 F.Supp. 532 (D.C.
OE -Ca TR ee 16
Eubanks v. State of Louisiana, 356 U.S. 584, 76
».Ct. 970; 2 L.Ed. 24: 991 (1958) noice coceece 9
Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.
Ed. 652 (1906) orsusecnneseunesnatvsnoquenyovecsessvcowvesbosessecbane 9
Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502,
© Lage TOW. CIPOOY ce ee ae 11
Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44,
me LG FIG CIO) i ee 12
Harris v. United States, 382 U.S. 162, 86 S.Ct. 352,
5D Ln BOO CAMOOD wicioceeatisinsienl ices 10
Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159,
OO Ed. 3550 (ieee) - oi ee 8
Hoffman v. United States, 341 U.S. 479, 71 S.Ct.
ae, FD Em LILO CAO Ol Se 11
Holt v. United States, 218 U.S. 245, 31 S.Ct. 2,
OO ET OC en es 12
Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793,
oo Ld BSCS) ace eee ee 13
Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843,
o3 LBA Ue) cs 11
Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.
Be G00 0 DP ciceciaccmtineae 9

Lang v. New Jersey, 209 U.S. 467, 28 S.Ct. 594,
De elt, GPE CEES ccccntsetreieieien ace 12

iv.

Page
Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311,
i Re - Oe CIRO) asccscccct scl isi 12, 14
Levine v. United States, 362 U.S. '610, 80 S.Ct.
Hae, 4 1. Bare 969 (1960) —.../........... 10
Logan v. United States, 144 U.S. 263, 12 S.Ct.
Oar. ee ee | See ee) ae
Martin v. Beto, 397 F.2d 741 (5 Cir., 1968) ............ 14
Michael, In re, 326 U.S. 224, 66 S.Ct. 78, 90 L.
I ceinnees 10
Michel v. State of Louisiana, 350 U.S. 91, 76 S.
3 Be OG |...) Epa eee Our 13
Neal v. Delaware, 103 U.S. 393, 26 L.Ed. 567
2 aD: Coniocacoe tat cel ieee Riceotrebeyestitreevementemerenmpre miners 8
Norris v. State of Alabama, 294,U.S. 587, 55 S.
GOR Be 8 Se eG |...) ea ae ee ee eEn 9
Oliver, In re, 333 U.S. 257, 68 S.Ct. 499, 92 L.
ee Re cE SERS ESS a RIC ni et 10
Patton v. State of Mississippi, 332 U.S. 463, 68
ee ee ee cs FO RIED oot iret. 8
People: of the State of New York v. O’Neill, 359
U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959) ...... 13
Perlman v. United States, 247 U.S. 7, 38 S.Ct.
A, ee I CRPRD wticccreccencrceareetcectesens 12, 14
Piemonte v. United States, 367 U.S. 556, 81 S.Ct.
ee oe oe. ee ee Creat) oa. 10

Pittsburgh Plate Glass Co. v. United States, 360
U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959) .. 11

Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct.
aR” 2 gob . . '. } RRR ac ccmer en COE 9

Regan v. People, 349 U.S. 58, 75 S.Ct. 585, 99
eT RS. A 5.) aa SLE ate ome nt 10

Page

Reisman vy. Caplin, 375 U.S. 440, 84 S.Ct. 508
Se eg) se ERR Aa SS Ciera sed PND mE CaO rae ae Y

Reynolds v. United States, 98 U. S. 145, 25 L.Ed.
vetinith lic cig RN ne ok ay OEE as ae NS

St. Pierre v. United States, 319 U.S. 14, 63 S.Ct.
Pa ee tnd AO CRY

See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737
og, Eat ane alas cere Re te eae oe

Shillitani v. United States, 384 U.S. 364, 86 S.Ct.
1531, 16 L-Ed2d 622 (1966) ..;.........:......0

Sims y. Georgia, 389 U.S. 404, 88 S.Ct. 923, 19
Bice SU CEM Fa caediehe,

Smith v. State, 311 U-S. 128, 61 S.Ct. 164, 85
aM A A see 8

Smith v. United States, 360 U.S. 1, 79 S.Ct. 991,
Mae SEE AD cc 13,

Stevens v. Marks, 383 U.S. 234, 86 S.Ct. 788, 15
Laos Fae CEG) ee

Stirone v. United a 361 U.S. 212, 80 S.Ct.
a Sie dee UII) oo

Stout v. People etc., 13 Wall. (80 U.S.) 474, 20
en i PU a

Strauder v. State of West Virginia, 100 U.S. 303,
“ee Sek) . ARR etic BS eee

Sullivan v. United States, 348 U.S. 170, 75 S.Ct.
Be, OF te BOO CIDOB) ec cc k

United States v. Invader Oil Corporation, 5 F.2d 715
ge PE oS Le ESAS OD ale Bee ER

United States v. Johnson, 319 U.S. 503, 63 S.Ct.
1233, 87 L.Ed. 1546 Pa) atte ee

6

13

Page
United States v. Morton Salt Company, 216 F.Supp.
250 (DC: Minn; 162) es 15

United States v. Powell, 379 U.S. 48, 85 S.Ct.
266 (IGOR LS a re eee hare ie 2

United States v. Proctor and Gamble Company, 356 _
U.S. 677, 78-S.Ct. 983, 2 L.Ed.2d 1077 (1958) .. 11

United States v. Socony-Vacuum Oil CO. Gre Uie.

150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) .......... 11
United States v. White, 322 U.S. 694, 64 S.Ct.
1246, SS LBa- 14 CP) ea 9
Whitus v. State of Georgia, 385 U.S. 545, 87 S.
Ct: 643, 17: Litidi2d S99 CISG7) coc nee cee. 9
Wilson v. United States, 221 U.S. 361, 31 S.Ct 358, .
ge Pe Ree go EG 5 |e) ieee eledte ne ee elas is Wiel 9
Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8
De Oe PE Fate ois ica cayenits giv nto simu 11
Rules :
Federal Rules of Criminal Procedure, Rule 16 ........ 4

Federal Rules of Criminal Procedure, Rule 17 ....4, 6 |
Federal Rules of Criminal Procedure, Rule 17(c)

Rules of the Supreme Court of the United States,
PE BS os wilde iss ecdekesneatomncodisceiateeee eieeinlabiess 1

Statute
United States Constitution, Fifth Amendment ........ 13

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. <, x THE.
Supreme Court. at ad United States

October Term,, fee
No. 1014

5 tha
i
4

Owen B. LAMPMAN and Piatretlencs. INc., a corpo-

ration,
Petitioners,
US. :

UNITED STATES OF AMERICA, UNITED STATES DISTRICT
COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA,
- and JEssE W. Curtis, a Judge thereof,
. Respondents.

On Petition for Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.

Petition for Rehearing on Denial of Writ of
Certiorari (Rule 58).

To the Honorable Chief Justice and Associate Justices
of the Supreme Court of the United States of
America:

Owen B. Lampman and Thriftimart, Inc., petition
this Court for rehearing of the order denying their Pe-
tition for Writ of Certiorari made by this Court Feb-
ruary 24, 1970. This Petition is made on the grounds
permitted by Rule 58(2); to wit:

A. Intervening circumstances of substantial and
controlling effect.

poet, Jae
B. Substantial grounds available to petitioners
though not previously presented.

I.
Intervening Circumstances.

A. Certiorari Has Been Granted in Donaldson
v. United States.

Kevin L. Donaldson, Etc. v. United States of Amer-
ica and John P. Grady, et al., October Term, 1969, Num-
ber 942, arose out of the objection of Donaldson to an
Internal “Revenue Service summons and enforcement
proceedings commenced by the Service seeking to enforce
_ the summons. Among other things, the opposition to the
summons was based upon the claim that the summons
was for an improper purpose, that is to say, it sought
to obtain evidence for: use in a criminal prosecution.
Apparently the summons was broad and unlimited in
scope and did not state the things to be seized or the
. purpose of the seizure. Petitioner relied upon Reisman
wu. Caplin, 375 U.S. 440, 449-450, 84 S.Ct. 508, 513
(1964). The United States in its Memorandum did not
oppose the granting of certiorari and the Solicitor Gen-
eral in his Memorandum has pointed to a dispute with
respect to the meaning of the Court’s language in Reis-
man, supra, and its reference to the right to judicial
review of an administrative summons which is issued
for an improper purpose. | |

United States v. Powell, 379 U.S. 48, 58, 85 S.
Ct. 248 (1964).

Thus the Solicitor General states in his Memorandum
that since the question of “improper purpose” is pre-
sented by the Donaldson case and since in most criminal

pak,
investigations in which the Internal Revenue Service
- seeks enforcement of the summons it is compelled to ar;
gue and litigate the contention of the. respondent or in-
tervenor that the summons was improper, certiorari

should be granted to settle the issue. In Donaldson the
Court granted certiorari February 27, 1970.

B. If Donaldson Prevails, Then Lampman and
Thriftimart Should Prevail.

As the Solicitor General has .stated, in most summons
enforcement proceedings, the Internal Revenue Service
is met with the argument that the summons was im- °
proper, citing Reisman v.\ Caplin, supra. We do not
doubt this for a minute, judging by the summons
in this case. That summons was improper for the
reason that it sought a re-examination of the books and
records of Thriftimart, Inc., for certain years without
cause, it was general and included virtually every scrap
of paper of the company for the years sought to be re-
amined, it was issued to permit the Special Agent to
examine to find any crime he could find, a purpose de-
fined as improper by Reisman, supra, and it sought to
circumvent the limitations imposed by statute, the Con-
stitution and this Court’s determinations in Ca-
mara v. Municipal Court, 387 U.S. 523,87 S.Ct. 1727
(1967), See v. City of Seattle, 387 U.S. 541, 87 S.Ct.
— 1737 (1967), and Aguilar v. Texas, 378 U.S. 108, 84
S.Ct. 1509 (1964). The Internal Revenue Service did
not seek to enforce that summons. It conceded by its
failure to follow enforcement procedures that the sum-
mons was improper.

But that did not prevent its immediately turning
to a subpoena duces tecum under the guise of a “grand

pe a

jury” investigation whereby the same books and papers
sought by the summons are to be ‘turned over to ,the
same agents of the Internal Revenue Service, the United
States Attorney and representatives of the Attorney
General. By simply turning to Rule 17(c), FRCrP, and
using the “grand jury” as its own discovery device, the
Internal Revenue Service seeks to do indirectly what it
cannot do directly. To do this, of course, it must ma-
nipulate and abuse the entire grand jury process.

The importance and significance of this is that if the
Court were to decide Donaldson, supra, in favor of the
peetitioner Donaldson, or further define improper -use
of the summons procedure so as to compel the Internal
Revenue Service to abide by the law and the Constitu-
tion, it would only mean that the decision of this Court
would be circumvented by the supposed and pretended
use of a “grand jury subpoena”, issued without the
grand jury’s ‘knowledge, filled in bya prosecutor after
issuance in blank under Rule 17, FRCrP.

' We say, therefore, that if the Court is to define and
establish the appropriate limits of searches and seizures
under an Internal Revenue Service summons, it must
in view of the conduct exhibited in the Lampman case
(and the companion Lewis case, October Term, 1969,
Number 1020) also consider and determine the abuse
of the subpoena duces tecum process, the relationship
of Rule 17(c) to the new discovery Rule 16 of the Fed-
eral Rules of Criminal Procedure. Thus the Court has
granted certiorari in Donaldson and United States v.
Gifford-Hill-American, Inc. If the problem is to be
properly decided so that it is not the subject of piecemeal
litigation and piecemeal appeals, certiorari should be
granted in this case also so that the entire problem will

ae Oe

be before the Court. The Government expresses horror
at piecemeal appeals, but by resisting our petition for
certiorari, it is seeking piecemeal litigation which
amounts to the same thing. |

We respectfully submit that certiorari having been
granted in Donaldson and the Gifford-Hill- American
cases, certiorari should be granted in this case.

C. The Constitutional Limitations on the Administrative
Summons or Subpoena Should Apply Equally to Rule
17, FRCrP.

The fundamental reasons for the litaitations jon the
administrative summons or subpoena including the sum-
mons of the Internal Revenue Service are found in the
searches and seizures clause of the Constitution. -The
searches and seizures clause must be applied to all alike
by reason of the equal protection clause.

See v. Seattle, 387. U.S. 541, 87 S.Ct. 1737
(1967) ; : :
Camara v. Municipal Court, 387 U.S. 523, 87
Seok ated Akar)
Reisman v. Caplin, 375 U.S. 440, 449, & S.Ct.
508, 513 (1964).

Certainly the same limitations must apply to 17(c),
FRCrP. If the Government and any of its agents may
use 17(c), FRCrP as an omnibus search and seizure
provision with their own agents examining the rnaterial
searched and seized by the subpoena duces tecum and
by holding the material searched and seized in the pos-
session of the United States Attorney, then all the lofty
rhetoric in See, Camara, Reisman, supra, cases involving
warrants like Aguilar v. Texas, 378 U.S. 108, 84 S.Ct.
1509 (1964), is meaningless. In fact if the Government

° 6

can do what it claims it can do under Rule 17(c) and
what it is now attempting to do in this case, there is no
longer any reason for the constitutional limitations on

searches and seizures nor is there any real reason for .

the grand jury to exist. We should at least be honest
about it and simply abolish these troublesome consti-
tutional ideals.

If this Court really intends to open the flood gates
to permit any kind of search and seizure imaginable,
with or without even the ordinary protections .concern-
ing description, purpose and relevancy accorded a sub-
poena duces tecum in a civil case, it will deny this peti-
tion and also reverse its order granting certiorari in
Donaldson. To hold in a case like’ Donaldson that im-
proper summonses may not be issued is meaningless un-
less the Court also holds that 17(c), FRCrP is limited
to a proper purpose based on a proper showing as re-
quired by See, Camara, Reisman and Aguilar, supra.

This use of 17(c), FRCrP is of course contrary to
the true intent and purpose of the rule. The rule was
not intended as a discovery device. It was intended ob-
‘viously and solely as a means of producing. trial evi-

dence at trial. It was never intended to ,be used as an /

all-encompassing omnibus method of discovery to bé
used by the prosecutor without limit. 17(c) does not in
fact even suggest that it is to be used other than for
a court proceeding. THe record shows that the sub-
poena in this case was not returnable to the grand
jury but to a Government agency office. The record in
this case and Mr. Hansen’s affidavit in particular show
that 17 FRCrP was used solely to circumvent the de-
fective summons which Special Agent Frank Andy had
issued in the field. :

al

ona
We submit that the granting of certiorari in Donald-
son and denying certiorari in this case will not only
prevent consideration by this Court of the actual prob--

lem before the Court but it will also work a grave in-
justice upon the petitioners in this case.

II.

Other Substantial Grounds Available to Petitioners
but Not Previously Presented.

We are convinced that there should be an expression
by this Court of the true role of the grand jury in the
federal system of criminal justice. As matters now
stand the grand jury is simply not permitted to func-
tion as it was intended to function at the time of the
adoption of the Constitution.

With the exception. of the discrimination cases and
cases involving bias and some unusual circumstances,
the grand jury cases ‘considered by this Court have pri-
marily emphasized the function of the grand jury as a

“grand Me a body with power of investigation and

inquisition.”
°

The emphasis on inquisition has led not to the in-
quisition of the grand jury, but inquisition by the prose-
cutor wih the protective function destroyed and the in-
quisitorial function usurped. |
- We attribute this result to the fact that the first’
case decided by this Court directly. involving a grand
jury was decided in 1872, almost one hundred years
after the adoption of the Constitution.

Stout v. People etc., 13 Wall. (80 U.S.) 474,
20 L.Ed. 512 (1872).

By that time the industrial revolution was well on its
way and government) regulation of -business commenced.

—— |
They felt necessity of that time was the grand inquisi-
tion. as i
This was a departure from the purpose of the grand
jury as a protective body. The original purpose and
function of the grand jury as a protector is well stated
by Mr. Justice Field in his famous charge.
Charge of Mr. Justice Field, The Grand Jury,
San Francisco, 30 Fed. Cas. 18,255,.1872, page
992. ,

We believe that a classification of the grand jury
cases décided by this Court and the effect they have
had on the lower courts and prosecutors will show the
need.to consider this problem as it is presented in this”
case.

The Court has held that discrimination (originally
by law and later by practice) in the racial composition
of a grand jury is unconstitutional.

Strauder v. State of West Virginia, 100 U.S.
303, 25 L.Ed. 664 (1880) ;

Ex parte Commonwealth of Virginia, 100 U.S.
319, 25 L.Ed. 667 (1880) ;

Neal v. Delaware, 103 U.S. 393, 26°L.Ed. 567
(1880) ;

Bush v. Commonwealth of Kentucky, 107 U.S.

* 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883);

Smith v. State, 311 U.S. 128, 61 S.Ct. 164, 85
L.Ed. &4 (1940) ;

Hill v. State of Texas, 316 U.S. 400, 62 S.Ct.
1159, 86 L.Ed. 1559 (1942) ;

Patton v. State of Mississippi, 332 U.S. 463, 68
S.Ct. 184, 92 L.Ed. 76 (1947) ;

Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct.
629, 94 L.Ed. 839 (1950) ;

—9—

Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct.
167, 100 L.Ed. 77 (1955) ;

Eubanks v. State of Louisiana, 356 USS. 584, 76
S.Ct. 970, 2 L.Ed.'2d 991 (1958) ;

Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19
L.Ed. 2d 634 (1967) ;

Whitus v. State of Georgia, 385 U.S. 545, 87
S.Ct. 643, 17 L.Ed.2d 599 (1967) ;

Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19
L.Ed.2d 25 (1967);

Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct.
1032, 12 L.Ed.2d 77 (1964);

Norris v. State of Alabama, 294 U.S. 587, 55 S.
Ct. 579, 79 L.Ed. 1074 (1935).

:

These cases involving discrimination recognize the
protective function of the grand jury. When the Court
has considered the production of books, papers and
records, the Court has emphasized in the extreme the
virtual right of the prosecutor to use the grand jury as
his discovery tool in spite of the fact that this itself de--
stroys the independence of the grand jury and its true
constitutional function.

Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.
Ed. 652 (1906);

Blair v. United States, 250 U.S. 273, 39 S.Ct
468, 63 L.Ed. 979 (1918).

See also Wilson v. United States, 221 U.S. 361,
31 S.Ct. 358, 55 L.Ed. 771 (1910);

United States v. White, 322 U.S. 694, 64 S.Ct.
1248, 88 L.Ed. 1542 (1944), (involving the
books and records of an unincorporated as-
sociation, i.¢., a union).

tae,” a

The Court has held that contempt proceedings were
inappropriate where the witness refused to disclose the
whereabouts of union books and records since the
subpoena duces tecum required only the production of
such books and records but could not compel the peti-
tioner to reveal the contents of his mind.

Cuircio v. United States, 354 U.S. 118, 77 S.Ct.
1145, 1 L.Ed.2d 1225 (1957).

The Court has held that one may be compelled
to testify before a grand jury after refusing on grounds
of self-incrimination where the witness was granted
immunity.

Brown v. United States, 359 U.S. 41, 79 S.Ct.
539, 3 L.Ed.2d 609 (1959); } |

Levine v. United States, 362 U.S. 610, 80 S.Ct. °
1038, 4 L.Ed.2d 989 (1960) ;

Piemonte v. United States, 367 U.S. 556, 81'S.
Ct. 1720, 6 L.Ed.2d 1028 (1961).

These cases were overruled, however.

Harris v. United States, 382 U.S. 162, 86 S.Ct.
352, 15 L.Ed.2d 240 (1965).

Other miscellaneous waiver and contempt cases are:

Regan v. People, 349 U.S. 58, 75 S.Ct. 585, 99
L.Ed. 883 (1955);

Stevens v. Marks, 383 U.S. 234, 86 S.Ct. 788,
15 L.Ed.2d 724 (1966) ;

St. Pierre v. United States, 319-U.S. 14, 63 S.Ct.
910, 87 L.Ed. 1199 (1943):

In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.
Ed. 30 (1945):

In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92
L.Ed. 682 (1948).

atts

In’ Hoffman v. United States, 341 U.S. 479, 71
S.Ct. 814, 95 L.Ed. 1118 (1951), the Court upheld the
right to refuse to testify before a grand jury on the
‘grounds of self-incrimination and noted the protective
function of the grand jury and certain limitations on
investigation.

See also:

Wood v. Georgia, 370 U.S. 375, 82 S.Gt. 1364,
8 L.Ed.2d 569 (1962) ;

Stirone v. United States, 361 U.S. 212, 80 S.Ct.
270, 4 L.Ed.2d 252 (1960) ;

Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed.
849 (1887);

Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502,
4 L.Ed.2d 1307 (1960) (dissenting opinion) ;

Jenkins v. McKeithen, 395, U.S. 411, 89 S.Ct.
1843, 23 L.Ed.2d 404 (1969) ;

Shillitani v. United States, 384 U.S. 364, 86 S.
Ct. 1531, 16 L.Ed.2d 622 (1966).

Use of the grand jury as the tool of the prosecutor
(unsuccessful and successful) is found in:

United States v. Socony-Vacuum Oil Co., 310
U.S. 150, 60 S.Ct. 811, 84 L.Ed 1129 (1940);

United States v. Proctor and Gamble C ompany,
356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077
(1958) ; )

Pittsburgh Plate Glass Co. v. United States, 360
US. 395, 79 S.Ct. 1237, 3. L.Ed.2d - 1323
(1959). ,

Occasionally the use of the grand jury as a private
discovery tool of the prosecutor has been too much for
the Court.

?

ee | SO

See:

Dennis v. United States, 384 U.S. 855, 86 S.Ct.
1840, 16 L.Ed.2d 973 (1966).

Occasionally, the Court has found bias on the part of
the grand jury.
Cammer v. United States, 350 U.S. 399, 76
S.Ct. 456, 100 L.Ed. 474 (1956) ;
Beck v. Washington, 369 U.S. 541, 82 S.Ct.
955, 8 L.Ed.2d 98 (1962).

Various procedural and other matters have been

_ raised and considered by the Court. ;

Perlman v. United States, 247 U.S. 7, 38 S.Ct.
417, 62 L.Ed. 950 (1918) ;

Costello v. United States, 350 U.S. 359, 76 S.Ct.
406, 100 L.Ed. 397 (1956); _ |

Holt v. United States, 218 U.S. 245, 31 S.Ct.
2, 54 L.Ed. 1021°(1910);

Lawn v. United States, 355 U.S. 339,.78 S.Ct.
311, 2 L.Ed.2d 321 (1958) ;

Logan v. United States, 144 U.S. 263, 12 S.Ct.
617, 36 L.Ed. 429 (1892);

Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44,
54 L.Ed. 1101 (1910);

Badders v. United States, 240 U.S. 391, 36 S.
Ct. 367, 60 L.Ed. 706 (1916) ;

United States v. Johnson, 319 U.S. 503, 63 S.Ct.
1233, 87 L.Ed. 1546 (1943) ;

Sullivan wv. United States, 348 U.S. 170, 75
S.Ct. 182, 99 L.Ed..210 (1954) ;

Lang v. New Jersey, 209 U.S. 467, 28 S.Ct.
594, 52 L.Ed. 894 (1908) ;

ioe, eae

Hyde v. United States, 225 U.S. 347, 32 Sci.
793, 56 L.Ed. 1114 (1912);

Reynolds v. United States, 98.U.S. 145, 25 L.
Ed. 244 (1878) ; *

Michel v. State of Louisiana, 350 U.S. 91, 76 S.
Ct. 158, 100 L.Ed. 83 (1955) ;

People of the State of New York v. O'Neill, 359
U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959).

The thrust of petitioner’s argument goes not to
the inquisitorial function and the broad powers of the |
grand jury granted by the Fifth Amendment, but
rather, to the usurpatign of these powers by the Govern-
ment which : ‘in cffegt destroy’ the concomitant and
equally impof tant fytitetion of the grand jury as a pro-
tector of the people ‘front ‘the prosecutorial powers of the
Government. |

See Smith v. United States, 360 U.S. 1, 79 S.Ct.
991; 3 L.Ed.2d 1041 (1959) in addition to the previ-
ously cited cases upholding this proposition.

In essence, the argument of the petitioner is that this
problem is greater than the sum of its parts. Re-
spondent has cited in its‘ brief cases which uphold the
right of the Government to take each of the actions
which occurred in this case. Other cases cited, infra,
demonstrate that not only these, but-also, other actions
by Government agents which used the powers of the
grand jury have been sanctioned by the courts.

The following is an illustrative, but not exhaustive,
group of cases demonstrating the practices engaged in

oe) hae

by the Government and upheld by the courts. Grand jury

subpoenas were issued by an assistant district attorney

who signed the name of the grand jury foreman to

them. *" 2 |

‘Martin v. Beto, 397 F.2d 741 (5 Cir., 1968).
Indictment based entirely upon hearsay ; |

Costello. v. United States, 350 U.S. 359, 76 S.
Ct. 406, 100 L.Ed. 397 (1956).

The suspicion that the prosecution was using illegally |
obtained evidence to secure a grand jury indictment
where a previous indictment had been dismissed because
of the source of the same evidence was held to be
groundless.

Lawn v. United States, 355 U.S. 339,.78 S.Ct.
311, 2 L.Ed.2d 321 (1958).

The United States Attorneys’ Office obtained evi-
dence from the court which had retained possession of
evidence presented in a civil action which was subse-
quently dismissed in order to present the evidence to a
grand jury and obtain a perjury indictment.
Perlman v. United States, 247 U.S. 7, 38 S.Ct.
417, 62 L.Ed. 950 (1918).

After a motion to suppress evidence illegally obtained
by the United States Government was granted in crim-
inal proceeding, the Gdvernment obtained a subpoena
duces tecum from a grand jury in order to obtain the
same evidence to be used in a civil action.

“Dugan and McNamara, Inc. v. United States,
153 F.Supp. 389 (U.S. Ct. of Claims, 1957).

The Governmerit obtained issuance of a grand jury
. subpoena duces tecum by the Clerk of the Court while

—15—

the grand jury was .in recess and before a new grand
jury had been summoned. |

United States v. Morton Salt Company, 216 F.
Supp. 250 (D.C. Minn., 1962).

The Goyernment also cites case authority for the prop-
osition that the grand jury may have the assistance
of accounting experts to examine and explain books
and’ records. An examination of these cases reveal the
following factors (1) the proposition is stated as a gen-
eral rule without the citation of any other case authority
to support it; (2) the factual situations differ mate-
rially from the instant case; (3) the courts have im-
posed restrictions upon the methods used to examine
the evidence by the investigators or have placed restric-
tions upon-the ultimate, use of such information.

Furthermore, in United S tates v. Invader Oil C or po-
ration, 5 F.2d 715 (9 Cir., 1925), the court states that:

“There is no authority in the court to direct that
exhibits be delivered to investigators, although the
grand jury, having before it a witness suitably
qualified, may cause such witness to make his ex-
amination and report the facts; all the while the
custody of the records so produced being that of
the grand jury.”

Thus the decisions in these lower court cases must
be limited to the particular factual situation involved,
such as anti-trust investigation which is not applicable
here, or the power must be circumscribed and the pro-
cedural necessities must be observed in order to pre-
serve the secrecy of the grand jury investigation
which has not been done in the instant case.

eS ae

Any argument upholding the right of Government
agents to proceed as they have done which proceeds
step by step pointing out case authority for the sepa-
rate actions engaged in. by these agents may often be
supported by a decision upholding such action. In each
instance the decision of a court affirming the right of
the Government agents to proceed in a particular man-
ner may be reasonable in relation to the administration
and enforcement of the law as compared to the prejudi-
cial effect it has on the opposing party in a particular
case. sia?

However, the cumulative effect of all the decisions is
that bit by bit, step by step, and instance by instance,
_ the inquisitorial and investigative powers of the grand
jury have been assumed by agencies of the Government
without the counterbalancing of an assumption of the
concomitant and necessary protective powers of the
grand jury. Although the proposition that the prose-
cuting agency may not use for its own purposes the
processes available to the grand jury is stated in such
cases as In re Dymo Industrics, Inc., 300 F.Supp. 532
(D.C. N.D. Cal., 1969) and Durbin v. United States,
94 U:S. App. D.C. 415, 221 F.2d 520 (1954), but
few, if any, opinions have ever discerned such abuse.

The structure and organization of governmental
agencies make it impossible for these units to adopt the
protective function of the grand jury. The instigation
of inquiry, the gatheting of evidence and the prosecu-
tion of an action are functions which have become spe-
cialized, fractionated and divided among a host .of gov-
ernmental agencies. No single agency of the administra-
tive branch of the Government has the responsibility
or the power to review the entire case in perspective.

a fae

It is submitted that this latter function is that of the
’ grand jury and the primary rationale for its existence.

An absolute prerequisite to the performance of this
function is that the grand jury have access to all of
the facts in the case.

~ Smith v. United States, supra, (dissenting opin-
ion).

The presentation of evidence to the grand jury by
agents of the Government who have of necessity sifted
and culled a vast body of information down to a man-
ageable quantity which may be usefully presented to the
members of the grand jury as anathema to the above
stated principle. No employee of a governmental agency
could conceivably conduct an investigation of a vast
quantity of information without knowing the purpose
of the investigation. Without such knowledge, any and
every bit of data will be relevant to some investigative _
conclusion and therefore no winnowing of the informa-
tion would be possible at all unless the purpose of the
search were known to the investigator.

Such knowledge of the purpose of the’ investigation
inevitably and inexorably exerts a pressure on an in-
vestigator to find every scrap of evidence which relates
to the purpose of the investigation. For an investigator
to do otherwise would be to fail in his duties. Petitioner
hastens to add that no implication is being made that
an investigator would neglect to include evidence which
would tend to disprove any irregularity on the part of
the party whose records were being examined. It is to
‘be assumed that neither the employees nor the heads of
governmental agencies would let their desire to prove a
certain result influence the gathering of information.

ra) ae

It must be noted, however, that the investigator must
of necessity submit some type of report or résumé con-
cerning the investigation. It is, of course, the function
of the grand jury to weigh the evidence in order to
determine if a sufficient quantum of affirmative evi-
dence has been presented to return an indictment. How-
ever, before the evidence is presented to the grand jury,
the evidence is filtered through several layers of ad-
ministrators within a given agency and then turned over _
to another agency for presentation. Although. the evi-
dence may. be presented by a witness who was the orig-
inal investigator and thus the same person is testifying,
the information has passed through a process whereby
it is focused on a few major points in order that the
information be of a quantum which is manageable and
organized in a manner which makes it capable of co-
herent presentation to a grand jury.

Also, it is a member of a different governmental
organization who ‘is directing the giving of the testi-
mony and information may not necessarily be presented
in the same light nor to the same extent as was con-
templated by the investigative agency. Thus, by neces-
sity, a grand jury does not have all of the evidence pre-
sented to it. |

It is not the argument of petitioner- that it is to be
presumed that a governmental agency has abused its
discretion or neglected its duties, but rather that the
potential for abuse or neglect is patently present and
that this runs counter to our system of government
which is predicated on the system of checks and bal-
ances.

As the Constitution itself is drafted, no one branch
of government is free to exercise its powers unchecked.

aces 2

_ This prevents not only the conscious and deliberate
usurpation of power by one branch of the government,
it wisely provides a check on the overzealous or er-
roneous encroachment by one branch of government on
the powers of ‘another branch.

Therefore, it is the contention of petitioner that the
time has long since come and passed when the gradual
and almost imperceptible trend of the erosion of the
powers of the grand jury must. be stopped. As it stands
now, the grand jury is a hollow shell of an institution,
bereft of its independence and powerless to exercise
its protective function by a weighing of evidence pre-
sented by impartial witnesses‘and experts. :

Petitioner therefore respectfully urges this Court to
begin immediately the process of reversing this igno-
minious ‘trend and restoring the grand jury to its neces-
sary independence by refusing to allow the wholesale
distribution of subpoenas duces tecum in blank by the
clerk of the court to be filled in by any governmental
agency with the opportunity and the inclination to havé
- the broad inquisitorial and: investigative powers of the
grand jury or to gratuitously bestow these powers on
any other governmental agency merely by having the
subpoena duces tecunm issued in its name in order to
aid another agency which does not have the preroga-
tive of issuing such a subpoena itself.

Such a decision would of course represent only the
first tentative steps in reversing the erosion of the pow-
ers of the grand jury. But it would serve notice that
the grand jury as an independent institution is not
_ powerless and obsolete.

III. |
Conclusion.

_ We pray the Court that it grant this Petition for

Rehearing of the order denying certiorari, that it grant
certiorari, and that Donaldson, Lewis and this case
be heard together.

Respectfully submitted,

WILuIAM J. Currer, JR., |

Counsel for Petitioners, Owen
B. Lampman and Thrifti-
mart, Inc. |

Certificate of Counsel.
I, WILLIAM J. CURRER, JR., do hereby certify:

‘1. Iam a member of the bar of the Supreme Court
of the United States and duly enrolled upon the roll of
attorneys and counsellors of that Court.

2. I represent before this Court Owen B. Lampman
and Thriftimart, Inc.

3. I have prepared the foregoing Petition for Re-
hearing and it is presented in good’ faith and not for
delay. ;

4. The said petition is restricted to the grounds
specified in Rule 58(2).

5. My manuscript signature has been manually signed
by me on one of the forty copies of the said petition and
this certificate filed with the clerk as required by Rule 58.

Dated: March 5, 1970.
, WituiaM J. Currer, Jr.,

Counsel for Owen B. Lampman
and Thriftimart, Inc.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1238%3A3. Public record. Not legal advice.